Hart v Comcare [2005] FCAFC 16 (11 March 2005)

Last Updated: 16 March 2005

FEDERAL COURT OF AUSTRALIA

Hart v Comcare [2005] FCAFC 16

WORKERS’ COMPENSATION – Commonwealth employees – appeal from Administrative Appeals Tribunal – failure to obtain a promotion- definition of "injury" in s 4(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth)


Comcare v Mooi (1996) 69 FCR 439 discussed

































OLGA HART v COMCARE
ACD 35 of 2004

BRANSON, CONTI & ALLSOP JJ
11 MARCH 2005
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 35 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLGA HART APPELLANT
AND:	COMCARE RESPONDENT
JUDGES:	BRANSON, CONTI & ALLSOP JJ
DATE OF ORDER:	11 MARCH 2005
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. There be no orders as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 35 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLGA HART APPELLANT
AND:	COMCARE RESPONDENT

JUDGES:	BRANSON, CONTI & ALLSOP JJ
DATE:	11 MARCH 2005
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from orders made by a Judge of this Court allowing an appeal under s 44 of the Administrative Appeals Tribunal Act 1976 (Cth) (the "AAT Act") from a decision of the Administrative Appeals Tribunal (the "Tribunal"). The Tribunal had set aside a decision of the respondent, Comcare, and determined that Comcare was liable to pay compensation to the appellant, Ms Hart, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the "SRC Act") for an "adjustment disorder", the onset of which occurred around July to August 2000.

2 The Notice of Appeal under s 44 of the AAT Act identified five questions of law all of which concerned the proper construction of the definition of "injury" in s 4(1) of the SRC Act. That definition was in the following terms:

"injury" means:

(a)	a disease suffered by an employee; or
(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; or
(c)	an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
[emphasis added]

3 The definition of "disease" in s 4(1) was in the following terms:

"disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

4 The central issue raised by the questions of law that constituted the subject matter of the appeal heard by the primary judge was the meaning to be given by the emphasised words in the last part of the above definition of "injury". This remains the central issue before this Court.

5 An appreciation of the issue and the resolution of the appeal require an understanding of the findings of fact made by the Tribunal.

6 The appellant had sought compensation under ss 14 and 19 of the SRC Act. Section 14(1) of the SRC Act was in the following terms:

14 Compensation for injuries

(1)	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.

...

7 The appellant had been employed by the Department of Defence for some years prior to 2000. She made a claim for rehabilitation and compensation on 18 August 2000, complaining of depression, anxiety and an adjustment disorder with anxious and depressed moods caused by events associated with her application for these positions.

8 Comcare had accepted that the appellant presently suffered from an adjustment disorder, but rejected her claim on the bases that it was not satisfied that her employment contributed to her condition and that in any event the portion of the definition of the word "injury" in s 4(1) of the SRC Act, emphasised at [2] above, applied to the circumstances of the appellant’s case.

9 The Tribunal did not accept the appellant’s evidence unless it was uncontested or corroborated by other evidence. One consequence of this rejection of the uncorroborated evidence of the appellant was the rejection of her case that her condition was materially contributed to by events at the Department going back to 1996.

10 The Tribunal found that the appellant first suffered the adjustment disorder during the events at the time of and connected with the procedures employed in relation to the three promotions for which the appellant had applied. It is unnecessary to deal in detail with these events save to say that they involved the cancellation of interviews with the appellant, what was said in relation thereto, the identity of an independent observer at one of the interviews, and that with the exception of the choice of the independent observer there was no fault in the conduct of the Department or its officers or how the promotion procedure was conducted.

11 The Tribunal found that the adjustment disorder, in respect of which the appellant claimed compensation after her failure to obtain the three promotions for which she applied, was materially contributed to by the failure to obtain promotions and by the events at the time of and connected with the procedures employed in the process leading up to the decisions as to the promotions. Thus, the Tribunal approached the resolution of the matter by identifying two concurrent causes: the failure to obtain promotion, which was excluded by s 4(1); and, the events connected with the process of promotion, which was not excluded by s 4(1). This approach can be best seen in [96] and [98] of the Tribunal’s reasons:

96. In any event it would be far too narrow an approach to the evidence in this case to say that the illness suffered by Ms Hart was solely as a consequence of her failure to obtain a promotion. To do so would be to disregard the existence of multiple concurrent causes which contributed materially to her adjustment disorder even if the failure to obtain a promotion was one of those causes. Any other conclusion would be inconsistent with the beneficial nature of the Act.

...

98. I have found that Ms Hart suffers from an adjustment disorder to which a series of work related incidents contributed. A number of these incidents - the promotion related incidents – do not fall within the exclusion to the definition of "injury" in section 4(1) of the Act. Ms Hart has therefore suffered an "injury" for the purposes of section 14(1).

12 The primary judge had before him a notice of appeal for the purposes of s 44 of the AAT Act which raised the proper construction of the definition of "injury" in s 4(1) of the SRC Act. Those questions included the following paragraphs.

2.1	the proper construction of the definition of "injury" in s 4(1) of the SRC Act – in particular, of the exclusion from that definition of any "disease, injury or aggravation suffered by an employee as a result of ...failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment";
2.2	whether an employee’s injury, of which an employee’s failure to obtain a promotion is a material cause, can only be excluded from the term "injury" as defined in s 4(1) of the SRC Act if that failure to obtain a promotion is the only cause of the employee’s injury;
2.3	whether it is sufficient, to exclude an employee’s injury from the term "injury" as defined in s 4(1) of the SRC Act if that failure to obtain a promotion is a substantial and operative cause of the injury;

...

13 The primary judge allowed the appeal and set aside the decision of the Tribunal. That course was based on his Honour’s view that the distinction made by the Tribunal between the failure to obtain promotion and the events in the procedure leading up to the promotion decisions was "spurious". The primary judge concluded that (to use the words of ground 4.4(a) of the notice of appeal before him) it was incumbent on the Tribunal to conclude that the aspects of the application, interview and promotion processes identified as the material contributing factors to the condition were an aspect of , and not distinct from, the appellant’s failure to obtain a promotion.

14 The appellant appeals from the primary judge’s orders. It is unnecessary to deal with all the written submissions. Mr Glissan QC who, with Mr Anforth, appeared for the appellant, dealt with the matter succinctly in address. The written submissions and the address propounded the following essential propositions:

(a)	The distinction made by the Tribunal was a valid one. The condition began before the decisions as to promotion. The words of the definition refer to the failure to obtain a promotion. Distressing events in the antecedent procedure were temporally, logically and (most importantly for the definition) textually distinct from the failure to obtain a promotion.
(b)	Where there were two operative causes, one compensable and the other not, the whole history of the approach to the law of multiple causation in the law of torts and of the beneficial approach to workers’ compensation legislation supported the approach taken by the Tribunal.

15 In its notice of contention, the respondent raised another issue of construction beyond that dealt with by the primary judge. This was that if, as here, there were findings sufficient to meet the words of the provision (that the disease or injury suffered by the appellant was as a result of the failure of the appellant to obtain a promotion) there was no injury as defined. This was so, it was said, even if the disease or injury within paragraphs (a) or (b) of the definition was as a result of other employment related factors for the purposes of the definition of "disease" in s 4(1) or para (b) of the definition of "injury".

16 This latter argument approached the resolution of the matter by asking the question posed by the definition:

Was the disease or injury (otherwise falling within the confines of the definition of "disease" and para (a) or within the confines of (b)) suffered by the appellant as a result of failure by the appellant to obtain a promotion?

17 If the answer was ‘yes’ that was the end of the enquiry. There was no "injury" as defined.

18 There was no issue on the appeal or before the primary judge that the Tribunal’s factual finding, that the failure to obtain the promotions materially contributed to the adjustment disorder for which compensation was claimed, allowed the conclusion to be drawn that the disease or injury was suffered as a result of the failure to obtain the promotions. Thus, it was said, the conclusion flowed ineluctably that the adjustment disorder was not an ‘injury’ as defined. This was so irrespective of the other so-called operative and "non-excluded" causes.

19 In our view the argument based on the notice of contention is sound.

20 The task is one of statutory construction. This is a beneficial statute. Nevertheless, conformably with that, it is necessary to construe the words used by the Parliament.

21 The so-called proviso in the definition does not exclude causes. It provides that if a disease of injury which would otherwise fall within the definition ("any such") is one which answers a description (relevantly here: "suffered as a result of ... the failure to obtain a promotion"), the disease or injury is not an "injury" as defined. The words are satisfied here. There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.

22 In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.

23 It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.

24 To the extent that Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 448 took a different view as to the operation of the definition, we respectfully disagree. To the extent that his Honour did, it was clearly obiter.

25 The appeal should be dismissed, based on the above issue of construction raised in this notice of contention.

26 As to the way the primary judge approached the matter, we are of the view that as a matter of construction of the definition the distinction drawn by the Tribunal was not necessarily inappropriate. The events which surround a promotion process may, conceivably, be such as to cause serious injury, mental or physical. Injury as a result thereof could be quite distinct from any injury suffered as a result of a failure to obtain a promotion. However, equally, distress at or with the process of assessing the candidates for promotion may, as a matter of fact, be suffered as a result of failure to obtain the promotion. It is possible to envisage circumstances where someone who would have had no, or limited, criticism of the events surrounding a promotion process had he or she achieved the promotion, becomes aggrieved by those processes to the extent of suffering psychological harm following a failure to obtain the promotion. In such circumstances, there may be factual issues, including medical issues, as to what was the role of the events in the procedure and of the failure to obtain the promotion. However, we do not think that it can be concluded, as a matter of construction of the definition, that events concerned with the process of evaluation of the promotion application are necessarily bound up with the decision as to the promotion and any failure to obtain the promotion.

27 The respondent does not seek the costs of the appeal. Therefore, the order will simply be that the appeal be dismissed.

28 The Court is grateful to counsel and solicitors for their assistance.

I certify that the preceding twenty- eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Conti & Allsop.

Associate:
Dated: 11 March 2005

Counsel for the Appellant:	Mr J Glissan QC with Mr Anforth
Solicitor for the Appellant:	Elrington Boardman Allport
Counsel for the Respondent:	Mr P Hanks QC with Mr Pilkington
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	17 February 2005
Date of Judgment:	11 March 2005