HCA: SRCA – “sudden or identifiable physiological change” injury definition

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

French CJ, Kiefel, Gageler, Nettle and Gordon JJ

The respondent served in the Royal Australian Air Force (RAAF) before being discharged. He had complained that he had become dizzy as a result of certain vaccinations he received while employed by the RAAF. The respondent applied under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for compensation for the dizziness amongst other symptoms. Section 14(1) relevantly provides:

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Section 5A(1) of the Act defined “injury”. It relevantly provided:

“(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment.”

In 2002, the respondent applied under s 14 for compensation for an injury other than a disease. In 2003, a delegate of the appellant denied the claim as a connection between the claimed condition and his employment with the RAAF could not be found. In 2010, the appellant reconsidered the application, but affirmed the decision.

Later in 2010, the respondent applied to the Administrative Appeals Tribunal for a review of the earlier 2010 decision. As stated by the majority in the High Court, the tribunal found that:

[29] … Mr May had failed to establish his case: he had not demonstrated that he had suffered a physical injury amounting to a “sudden or identifiable physiological change” in the normal functioning of the body or its organs attributable to the vaccinations received while serving in the RAAF.

The respondent then appealed to the Federal Court of Australia but was dismissed by the primary judge, finding no legal error. The respondent then appealed to the Full Court of the Federal Court arguing the proper construction of “injury” and whether that required a “sudden or identifiable physiological change”. In allowing the appeal, The Full Court allowed the appeal and ordered the matter be remitted to the tribunal for determination according to law. As summarised by the majority:

[34] … the Tribunal made an error in reading “injury” as requiring a “sudden or identifiable physiological change” in every case. The Full Court concluded that the inquiry posed by the statutory definition of injury was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.

[35] … the Tribunal made an error in considering that there was a requirement for a “diagnosis or medically ascertained cause” for there to be an “injury”. Instead, the Full Court found that the Tribunal should have recognised that “injury” could be established by the drawing of inferences on a common-sense basis, independent of medical diagnosis.

On appeal to the High Court, the appellant argued that the Full Court was wrong to hold that an “injury (other than disease)” did not require a “sudden or identifiable physiological change”. In allowing the appeal, the majority said:

[45] “Injury” in par (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word”.

[52] If there is not a “disease” within par (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.

[67] [The respondent] asserted that he felt unwell. The Tribunal accepted that he felt unwell. But the “nature and incidents of the physiological [or psychiatric] change” suffered by [the respondent] were not established. There was no “injury” in the primary sense of that word.

The appeal was allowed and the orders of the Full Court of the Federal Court set aside.

David Cormack – Brisbane Barrister & Mediator

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