Comcare v Martin [2016] HCA 43

I refer you to the judgment summary which states the facts.

The High Court allowed the appeal and dismissed the interpretation of the statutory words “as a result of” in the context of ss 5A, 5B of the Safety, Rehabilitation and Compensation Act 1988 as requiring the application of the “common sense” approach to causation, but rather that it required that it is an “event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.”

[42] Causation in a legal context is always purposive[16]. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose[17]. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm[18]. Nevertheless, the majority in the Full Court construed the phrase “as a result of” in s 5A(1) as importing a “common sense” notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.

[43] Within a statutory context which includes ss 5A and 5B, the exclusionary phrase “as a result of” in s 5A(1) is naturally read, not as imposing its own separate and free-standing test of causation, but rather as referring relevantly to the test of causation spelt out in s 5B(1).

[44] The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers that description of reasonable administrative action.

[45] When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.

[46] That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action[19]. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee’s reaction.

[47] Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.

[48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.

[49] The reasoning of the Tribunal was correct in law on the findings of fact which it made.

The comparative provision in the Workers’ Compensation and Rehabilitation Act 2003 is s.32(5):

“…injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

David Cormack – Brisbane Barrister & Mediator

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