Military Rehabilitation and Compensation Commission v May

[2015] HCATrans 302

[2015] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S144 of 2015

B e t w e e n -

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Applicant

and

BENJAMIN JAMES EDWARD MAY

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 NOVEMBER 2015, AT 11.20 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   Your Honours, I appear with MR P.G. WOULFE for the applicant.  (instructed by Moray & Agnew Solicitors)

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MS B.K. NOLAN, for the respondent.  (instructed by Legal Minds)

BELL J:   Yes, Mr Hanks.

MR HANKS:   Your Honours, no doubt have read the reasons of the Tribunal and the reasons of the Full Court. 

BELL J:   Yes.

GAGELER J:   Not every word of the reasons of the Tribunal, no.

MR HANKS:   Your Honours will have read the findings by the Tribunal.  We have summarised them in our summary of argument in paragraph 5 which starts on page 129 of the application book.  What distinguishes the Tribunal’s findings is its finding that there was an absence of any objective evidence or of any medical support or any pathology to explain the symptoms that were presented by May.

BELL J:   Yes, the respondent had symptoms and it was not suggested he was a malingerer.

MR HANKS:   Correct, but there was detailed, as your Honours will have read in the reasons of the Tribunal, medical examination.  None of the specialists could find an explanation for those symptoms.  The question that the Tribunal had to decide was whether Mr May could have been said to have suffered an injury other than a disease or whether he had suffered a disease, those being the alternatives that are posed by the Act as it then stood and as it still stands.

As it then stood, that was the definition of “injury” in section 4(1).  As it now stands, we have a definition in, section 5A.  Both of those provisions are in the Act.  As your Honours know, “injury”, the defined term, which is either a disease or an injury other than a disease, is central to the operation of the Act.  It is what founds the liability to pay compensation under section 14 of the Act.  I will not take your Honours to any of that detail.  I am confident that your Honours are well familiar with it.

Now, the Tribunal concluded that there was no injury other than a disease, we say for two reasons.  The first reason was that there was no sudden or identifiable physiological change in the normal functioning of the body.  That was the first reason.  The second reason was that there was an absence of supporting physiological evidence or pathology or a known diagnosis to explain his symptoms and your Honours will see those two reasons given by the Tribunal on page 24 of the application book and repeated at page 24 of the application book and then the second reason given earlier on page 21 of the application book.

The Full Court concluded that both propositions were infected with error.  First, the five members of the Full Court said the concept of injury in section 4(1) of the Act did not require a sudden or identifiable physiological change and that was not a basis for excluding the vertigo of which Mr May complained.  Your Honours will see that on page 114 of the application book.  I will just turn up that page briefly.  It is paragraph 207, so it carries over onto page 115.  So that was the first proposition that their Honours advanced, endorsed.

The second proposition, in paragraph 209, on page 115 of the application book, was that there is no requirement for physiological evidence, pathology or a known diagnosis to explain symptoms or a psychiatric disorder to account for them.  Rather, the question that is posed by the statutory concept was whether the person has experienced a physiological change or disturbance of the normal physiological state that can be said to be an alteration from the functioning of a healthy body or mind.

BELL J:   Whether a person has symptoms.

MR HANKS:   Yes, that is it.  That is it, essentially, yes, your Honour.  Now, there are two errors, in our submission, but before we get to them, it must be accepted that this Act treats “disease” and “injury” as quite distinct concepts and that is apparent from the definition of “injury” in section 4(1), for an injury is either a disease or it is an injury other than a disease.

GAGELER J:   You say symptoms are neither.

MR HANKS:   That is right, we do.  We do in fact say that, yes, your Honour.  Now, no doubt that “disease” is a term that is statutorily defined in the Act and one finds the definition of that in the Act as it then stood in section 4(1), disease is an ailment.  “Injury” is not defined.  It would carry its normal meaning.  We are reminded, and we might remind your Honours, of the point made in Hume Steel v Peart by Chief Justice Latham that, according to the common use of language, there is a difference or a distinction between getting hurt and becoming sick and that we suggest is a distinction that is carried over into this statutory scheme.

GAGELER J:   Why did the Full Court sit five judges?

MR HANKS:   We think not to explore the concept of injury, your Honour, but rather to explore the notion of what is a question of law for the purposes of section 44 of the AAT Act. 

GAGELER J:   Yes.

MR HANKS:   Your Honours will have perhaps noticed that on the same day that this judgment was handed down, the five judges handed down judgment in a case called Haritos v Commissioner of Taxation.  That was heard in Melbourne by the same five judges over the two days immediately before the hearing of this appeal and it had been thought that each of the cases would throw up for decision this vexed question, what is a question of law for the purpose of section 44(1) of the AAT Act.

Now, that is not an issue that we are agitating in this case and, indeed, as the argument proceeded before the Full Court in May, that issue largely fell away.  There could not be any significant dispute that defining the elements or the components or the integers of this concept of injury other than a disease, raises a question of law.  So, that was the reason, your Honour.  But having dealt with that, that vexed question, it is dealt with in considerable detail in Haritos and in May, their Honours have simply adopted a set of propositions from Haritos, rather than all of the analysis in that case.

GAGELER J:   Yes.

MR HANKS:   But having dealt with that, their Honours went on to deal with what was the point of the appeal before Justice Buchanan, namely, whether the Tribunal had fallen into error of law in deciding that there was no injury, either a disease or an injury other than a disease.  Now, your Honours understand that we say that the element of a sudden or identifiable physiological change is an essential element in the concept of injury and we have referred to what was said by, first of all, the High Court in Zickar. 

One of the interesting things about Zickar is that all members of the Court saw that as an element in the concept of injury.  The minority of Justices, it was the Chief Justice and Justices Dawson and Gaudron, said it is an essential element and it must be stimulated by something external to the body.  That was the thing that distinguished the majority from the minority.  The minority saw it as an essential element but said it could be stimulated by something internal to the body such as the progression of an underlying disease.

That notion was picked up by the Court in the Kennedy Cleaning Case or the Petkoska Case, depending which short version you wish to adopt.  We say that it is well established.  For that reason, when the Full Court said that the presence of a sudden or identifiable physiological change is irrelevant they have abandoned a critical discrimen between injury, on the one hand, and disease on the other.  That is our first point. 

Our second point goes to the Full Court’s rejection of the relevance and, in the present case, the decisive relevance of the absence of medical, pathological support for the presence of an injury or a disease.  Now, there are two ways in which we attack that.  The first is to take your Honours to page 117 of the application book. 

Here, the Full Court has set out two passages from Adelaide Stevedoring v Forst.  Your Honours see those, one from the Acting Chief Justice and one from Sir Owen Dixon.  We wish to make this point.  The propositions advanced in those passages are fundamentally and notoriously opposed to each other.  Sir Owen Dixon dissented and he stressed the significance, the relevance of medical, scientific evidence on a medical, scientific question. 

So, where it appears that the present state of knowledge does not admit of an affirmative answer and the competent and trustworthy expert opinion regards an affirmative answer as lacking justification, in that circumstance, his Honour said - and we need to make an adaptation here and I will explain what the adaptation will be - in that circumstance the burden of proof has not been discharged.  Of course, in the AAT there is no formal burden of proof but where the Tribunal, the decision‑maker, is left in a state of not being able to conclude that there is such a phenomenon as is necessary to support the application for review, the application for review must fail.  That is what happened here. 

So, I have made the point, I trust, that Sir Owen Dixon had a very different view of the relevance and significance of scientific and medical evidence.  The Acting Chief Justice took what one might describe as the more robust commonsense approach, post hoc, propter hoc.  So that if symptoms develop after a particular incident then you can attribute the symptoms to that incident and you do not need to go any further.  Perhaps I have oversimplified but that is essentially what his Honour said.  Now, if we go to the top of page 58 in the application book, the Full Court said:

These statements have been often applied -

Then there is a catalogue of cases.  Our concern is that the five members of the Full Court in the present case were confused because the statements that

they have just cited and quoted are opposed to each other.  It is true that both statements have had some influence but Sir Owen Dixon’s emphasis on the relevance of scientific and medical opinion, where the fact to be established has that scientific or medical aspect to it, that has also been followed by some courts in Australia. 

GAGELER J:   But, as you explained the Acting Chief Justice’s view, it was about a practical approach to determining a causal link ‑ ‑ ‑

MR HANKS:   That is so, your Honour.

GAGELER J:   ‑ ‑ ‑ between an event and some symptoms.  You say the event here is missing?

MR HANKS:   That is right, but we take two, as it were, elements of comfort here.  One is that distinction, which your Honour has put back to me, and the other is the fact that enforced, Sir Owen Dixon had a very clear view which has had some influence on the later course of decision and would fully justify the Tribunal’s decision here. 

I do not think I need say any more about some of the matters that we have covered in the affidavit that we filed in this matter.  We have only done that in order to demonstrate, with the assistance of Comcare, that there are a large number of decisions that could be affected.  I only point out to your Honours that that material in the affidavit comes from the authority that administers the SRC Act for what are called premium payers – in short terms, Commonwealth departments and agencies.

There is another significant element of employers who are covered by the Act.  They are called licensed corporations.  They are quite independent of the government, but they have been admitted to the scheme and they account for some 40 per cent of claims under the Act.  So the material that we have presented deals with the 60 per cent of claims that are administered by Comcare.  One could reasonably extrapolate that this decision of the Full Federal Court with its, we say, generous reading of the concept of injury will have a broad application.  If your Honours please.

BELL J:   Yes, thank you.  Yes, Mr Menzies.

MR MENZIES:   If your Honours please.  The appeal raises but one issue and that is whether the Full Court erred in finding their Honours’ proper construction of the term “injury (other than a disease)” did not require a sudden or identifiable physiological or pathological change.

GAGELER J:   Yes.

MR MENZIES:   That is the only point we are dealing with.  The questions of causation, which my learned friend now seeks to slide in, are really a bit beside the point – really entirely beside the point.  What one has to find only is was there an injury arising out of or in the course of his employment?  In this case, was there an injury arising in the course of his employment?  In our respectful submission, that was certainly open, it was what the Full Court ultimately found and plainly that was the position.

Can I take your Honours to the judgment of the Full Court and particularly at application book 65 where the Full Court is dealing with the concept of the meaning of “injury”?  Remember that the proposition upon which my learned friend proceeds is an elision of two concepts – that is, one of which contains the word “sudden”.  He seeks to take the expression of “sudden” or “identifiable” and change that definition, which he asserts is the one we should be using, to “sudden and identifiable.”  So, in any event, to come back to paragraph 22, the Full Court made these observations in trying to deal then with what are the concepts that we proceed upon:

If the appellant is to be accepted as truthful, as he apparently was –

there is no issue about that –

he has a “condition” that the Tribunal “loosely described” . . . as vertigo; it was preceded by various physiological changes at different times:  a swollen tongue, within 30 to 60 minutes of receiving some vaccinations, nausea with stomach discomfort, sore teeth, swollen glands, and a feeling of disequilibrium or dizziness.  No doctor has been able to diagnose the true nature of the condition; no disease has been identified of which these physiological changes might be described as symptoms; no doctor has been able to identify an event (external or internal) that caused or explained these physiological changes. 

But of the existence of physiological changes there is no doubt.  There is no issue.

BELL J:   But there was no doubt that he exhibited symptoms.

MR MENZIES:   Your Honour, the physiological changes that he exhibited were identified.  They are not symptoms, could I suggest.  Stomach discomfort, sore teeth and swollen glands are physiological changes and ‑ ‑ ‑

BELL J:   Stomach discomfort is a physiological change.

MR MENZIES:   Of course it is, your Honour, and, more importantly, a feeling of disequilibrium or dizziness.

BELL J:   A feeling, a sensation of dizziness is a physiological change answering the description of “injury” for the purposes of this statutory scheme.

MR MENZIES:   But your Honour must bear in mind that this definition includes physical and mental illnesses.  Mental illnesses are notoriously, for example, very much dependent upon descriptions.  If the man describes a feeling of disequilibrium or dizziness, then he is describing, if you like, a symptom but a symptom of physiological change. 

BELL J:   That may well be right, but is it not a question suitable for the grant of special leave to determine whether it is correct.  It would, on the face of it, seem to be an advance on the statements in Zickar and Kennedy Cleaning.

MR MENZIES:   The appeal that we came here to meet was one where the only issue was whether or not suddenness was a requirement.  The proposition that is now being advanced is a different one.  The grounds of appeal are very limited and we proceeded upon ‑ ‑ ‑

BELL J:   Ground 1 asserts error in the construction of the term “injury (other than a disease)” as it appears in paragraph (b) of the definition.  The second ground asserts that on its proper construction:

the term “injury (other than a disease)” –

the court erred in finding that that expression –

did not require a sudden or identifiable physiological or pathological change. 

The third ground asserts that:

The Full Court should have found that the Tribunal did not err in finding that the condition  . . . was not an “injury (other than a disease)” because there was no evidence before the Tribunal of a sudden or identifiable physiological change –

I must say, Mr Menzies, I may be obtuse but I had rather understood Mr Hanks’ submissions were directed to those propositions.

MR MENZIES:   In my submission, they went beyond those propositions.  Having heard your Honour, it is a dead horse I will not continue to flog. 

Let me turn, finally, your Honour, to the way in which the matter was dealt with.  I hear what your Honour Justice Bell has already said, but I need to take your Honours to the consideration of the issues by the Full Court, beginning at 106, going through to 120.  Importantly, for our purposes – and this deals with the matter howsoever and accepting your Honour’s comments – if your Honours look at 110, any relevant constraints ‑ ‑ ‑

GAGELER J:   Page 110, is it?

MR MENZIES:   I am sorry, your Honour, paragraph 110, page 90.  It starts at 189, but I probably need to take you back to 110, at 89:

We do not, however, see in the statutory concept of injury in the SRC Act any necessity for the attribute of “suddenness”  . . .  An injury involves “physiological change or disturbance of the normal physiological state” –

I repeat my response to your Honour Justice Bell’s comment and that is that an observation of a change in physiological state is just as valid, if you like, as medical evidence.  This is a case where medical evidence did not identify it.  That, in our respectful submission, is by no means the end of the argument.  I will not go further, except to take your Honours to 111:

Where, however, as here, there is no diagnosed disease whose progression can be assessed as inevitable or not, the general conceptions spoken of by Latham CJ in Hume Steel are of particular relevance:  the distinction according to ordinary language between getting hurt and becoming sick; something that involves “a harmful effect on the body”; “a disturbance of the normal physiological state which may produce physical incapacity”.

Those are our submissions, if your Honours please.

BELL J:   Thank you, Mr Menzies.  We do not need to hear further from you, thank you, Mr Hanks.  There will be a grant of special leave in this matter.  Now, that is on the understanding at application book 138, paragraph 35:  the Commission does not oppose attaching a condition to the grant, namely, that it pay the respondent’s costs in this Court in any event and that the costs orders made in the respondent’s favour below remain undisturbed.

MR HANKS:   That is so, your Honour.

BELL J:   There will be a grant.  It is subject to that condition.

MR HANKS:   Of course, your Honour.  There is one matter perhaps I should foreshadow.  It is at least possible that Comcare will intervene.  It has a statutory right under the SRC Act to intervene.  It may regard its interests as affected by the outcome here.  Maybe it will want to come in and slow me down.  I do not know; it may want to intervene, your Honour.

BELL J:  With that caveat, what is the estimate, Mr Hanks?

MR HANKS:   I think half a day, your Honour.

BELL J:   Mr Menzies.

MR MENZIES:   Half a day.

BELL J:   Yes.  Well, we will work on the basis of half a day in the event you are not slowed down, Mr Hanks.  The likelihood is that this matter will be listed in the March sittings

MR HANKS:   That is very convenient, your Honour.

BELL J:   I will ask your instructing solicitors to collect the directions.

MR HANKS:   Thank you, your Honour.

BELL J:   There is some adjustment to them to take account of the Christmas break.

MR HANKS:   Of course.

BELL J:   Yes.

MR HANKS:   If your Honour pleases.

BELL J:   Very well.  Would you adjourn the Court to 10.15 am on Wednesday, 2 December in Canberra.

AT 11.47 AM THE MATTER WAS CONCLUDED