Military Rehabilitation and Compensation Commission v May

The High Court has allowed an appeal against a decision of the Full Federal Court on workers compensation and the meaning of ‘injury’ in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The appellant, a former RAAF officer cadet, began to experience symptoms similar to vertigo that could not be diagnosed specifically, and which gradually arose after he received various vaccinations during the course of his employment. The FCAFC held that the Tribunal and a single Federal Court judge erred in concluding that the established definition of injury as a ‘sudden or identifiable physiological change’ was applicable in every case, and that here the appropriate inquiry was more general. The FCAFC also held that the Tribunal erred in insisting on a causal link between the symptoms and the vaccinations, and in requiring a clear medical diagnosis (see [201]ff).

The Court unanimously allowed the appeal. The joint judgment (French CJ, Kiefel, Nettle and Gordon JJ) held that the FCAFC’s interpretation of the term ‘injury’ within the context of the statute was incorrect, and that dizziness was not an injury for the purposes of the Act and thus not compensable. While ‘injury’ is to be read in its ‘primary sense’ as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (see at [41][46]), suddenness is not necessary requirement for there to be an injury: an injury may be either ‘sudden and ascertainable’ or ‘dramatic’ (at [47]). Although suddenness is not irrelevant, it is just one way in which a physiological change can be recognised: it is the physiological change itself ‘the nature and incidents of that change’ that ‘remains central’ (at [47]). In the statutory context, a tribunal must ask whether the evidence shows the existence of an ailment, and whether that state was contributed to in a material degree by employment by the Commonwealth (at [49][50]). If the answer to both questions is ‘yes’, then there is a ‘disease’ for the purposes of the statute (at [51]). If the answer to the first question is ‘no’, the tribunal then considers whether an ‘injury (other than a disease)’ (as in para (b) is present (at [52]). The joint judges stated that this approach to construing the statute means the ‘disease’ limb of the definition in s 4 remains as an additional basis of liability, and reflects an important distinction between diseases and other injuries in the act to create different bases for liability (see [55][56]). This goes beyond merely subjective experiences of feeling ‘unwell’ without an accompanying physiological or psychiatric change (see at [57][62]), and in this case, while the respondent could show that felt unwell, he could not provide evidence to establish that he had undergone any physiological or psychiatric change, and thus could not show he had suffered an injury compensable under the Act (see [63][69]).

Gageler J agreed with the orders of the joint judges, emphasising that the statute requires establishing some definite, distinct or identifiable change or disturbance beyond merely being sick or hurt (at [75][79]). For Gageler J the FCAFC correctly observed that the claimant need not point to a diagnosis of a recognised medical condition or provide corroborating medical opinion agreeing that the claimant is suffering from an injury, but it erred in concluding that the Tribunal did not take that approach: the Tribunal did not make any legal error in concluding that the respondent experienced debiliating dizziness but that the evidence was insufficient to show he suffered an injury within the meaning of the statute (at [80][82]).

High Court Judgment [2016] HCA 19 11 May 2016
Result Appeal allowed
High Court Documents MRCC v May
Full Court Hearing [2016] HCATrans 45 3 March 2016
Special Leave Hearing [2015] HCATrans 302 13 November 2015
Appeal from FCAFC [2015] FCAFC 93 30 June 2015
Judgment, FCA
[2014] FCA 406 30 April 2014
Decision, AATA
[2011] AATA 886 14 December 2011
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.