Comcare v Gregory Keith Laidlaw [1997] FCA 1009 (12 September 1997)

FEDERAL COURT OF AUSTRALIA

WORKERS COMPENSATION - meaning of injury - whether disease and injury mutually exclusive under the Act - injury resulting from disease aggravation - Tribunal's failure to apply s7(6) an error of law - for the purposes of s7(6) disease and injury are mutually exclusive - Safety Rehabilitation and Compensation Act 1988 (Cth) s4, s7(6).

Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 140 ALR 156 (referred to)

Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19 (followed)

Comcare v Porter (1996) 138 ALR 469 (followed)

Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd [1994] HCA 68; (1994) 68 ALJR 525 (approved)

Ilsley v Wattyl Australia Pty Ltd, Full Federal Court, unreported, 14 May 1997 (approved)

COMCARE (Applicant) v GREGORY KEITH LAIDLAW (Respondent)

ACT G18 of 1997

FINN J

CANBERRA

12 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	) G 18 of 1997 )
	)
GENERAL DIVISION	)

BETWEEN:	COMCARE Applicant
AND:	GREGORY KEITH LAIDLAW Respondent

JUDGE:	FINN J
PLACE:	CANBERRA
DATED:	12 SEPTEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. That the appeal be allowed.

2. That the decision of the Tribunal dated 21 February 1997 be set aside.

3. That the matter be remitted to a differently constituted Tribunal for consideration of the application of subsection 7(6) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") to the evidence before the Tribunal.

4. That the Tribunal's further consideration of the matter be undertaken on the basis of the evidence already presented to the Tribunal.

5. That the Tribunal's further consideration of the matter be conducted on the basis that the findings already made by the Tribunal in relation to subsection 7(7) of the Act stand.

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	) G 18 of 1997 )
	)
GENERAL DIVISION	)

BETWEEN:	COMCARE Applicant
AND:	GREGORY KEITH LAIDLAW Respondent

JUDGE:	FINN J
PLACE:	CANBERRA
DATED:	4 SEPTEMBER 1997

EX TEMPORE REASONS FOR JUDGMENT

In its decision in this matter the Administrative Appeals Tribunal ("The Tribunal") held that the definition of "injury" in s4 of the Safety Rehabilitation and Compensation Act 1988 (Cth) should be so construed that:

"If the event for which compensation is claimed constitutes an injury, then the fact that it is associated with a disease, or is superimposed on a disease, or causes the aggravation of a disease, does not ... alter its status as an "injury (other than a disease)" under the Act."

Consistent with this the Tribunal went on to hold that the respondent, Mr Laidlaw, who suffered a preexisting back disease which was dramatically aggravated in consequence of an incident at work in which he jarred his back, could nonetheless properly treat that incident as the cause of a frank injury for which he could claim compensation because of resultant incapacity for work.

In its appeal to this court under the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act"), the applicant, Comcare, has assigned a variety of errors of law to the Tribunal's decision. Put compendiously, these as argued before me can be reduced to the following two.

Error 1:

Having found that Mr Laidlaw had a disease that was aggravated by the work incident, the Tribunal erred in failing to apply, or to consider the application of, s7(6) of the SRC Act in determining whether Mr Laidlaw's incapacity resulted otherwise than from a disease or its aggravation. This matter was raised before the Tribunal in Comcare's written submissions. It was not addressed by the Tribunal in its Reasons for Decision.

Section 7(6) provides that:

"(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less."

Counsel for the respondent has conceded quite properly (given the Tribunal's findings) that Mr Laidlaw had a preexisting back disease and that this was aggravated by the work incident.

Error 2:

Given the frame of the definitions of "injury", "disease", "ailment" and "aggravation" in s4 of the SRC Act, the Tribunal erred in not finding that "disease" and "injury" were so defined as to be mutually exclusive of each other. The consequence attributed to this error was that, having found Mr Laidlaw to have suffered a back disease and an aggravation of it in the work incident, it was not open to the Tribunal to find that he sustained a back injury by that incident.

The s4 definitions insofar as presently relevant are as follows:

"`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;

`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;

`ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

`aggravation' includes acceleration or recurrence;"

Counsel for the respondent, having made the concession I earlier noted, went on to concede at the close of the applicant's submissions that the Tribunal had made the first of the two errors noted above and that for that reason the matter should be remitted to the Tribunal. I will for convenience call this the "s7(6) concession". That concession was an entirely proper one to make. On the basis of the Tribunal's findings and the submissions made to it, it was inevitable that I would find that this error had been made out.

This course of events has occasioned an apparent difficulty. Mr Howe for Comcare has submitted that were I to remit the matter on the basis of the s7(6) concession it would still leave uncorrected the second of the above errors and that if for some reason the Tribunal found that s7(6) of the SRC Act did not apply in the circumstances it could well go on to repeat that error again.

Given the concession made, I have not been addressed by the respondent on the alleged second error. Neither have I been addressed by either party on the possible bearing s7(6) on its proper construction might have on the alleged mutual exclusivity of "injury" and "disease" in the s4 definition. In these circumstances I am reluctant to venture further than I am obliged to in expressing views on issues that have sharply and regularly divided judges far more familiar than I with the general field of workers compensation. The diversity of opinion expressed in the decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 140 ALR 156 itself cautions against my taking other than a restrained course in this matter.

While the orders and directions I propose will be limited to having the Tribunal rehear the matter having regard to the provisions of s7(6), it is appropriate to say, additionally, this much.

(1) Irrespective of whether the scheme of the s4 definitions creates the mutual exclusivity of "disease" and "injury" that the applicant alleges, s7(6) of the Act for its purposes does precisely this in that it assigns an exclusive province to disease and the aggravation of a disease as operative causes of incapacity or impairment, to the exclusion of injury.

(2) The device utilised in s7(6) to attribute an incapacity or impairment to a disease or its aggravation, is to give exclusive `causative' effect to the disease or its aggravation if any one of the three "but for" tests are satisfied - notwithstanding that what otherwise might be said to be an "injury (other than a disease)" (subject of course to the separate s4 definitional question) was suffered by, and was causative of, the incapacity or impairment: cf Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19 esp at 28. This said, as Jenkinson J indicated in Comcare v Porter (1996) 138 ALR 469 at 476:

"the considerations which each of the three paragraphs of s7(6) raise may, in a large number of cases, be indeed `artificial in relation to fundamental ideas of medical science'."

For this reason his Honour was unprepared to understand s7(6) as an exhaustive exposition of the meaning to be assigned to the expression "results in" in s14(1) of the SRC Act, "with reference to disease and its aggravation": emphasis added. The practical consequence of this is that s7(6) gives exclusivity to "disease or its aggravation" within its sphere of coverage. Beyond that, if such exclusivity is to continue its basis has to be found elsewhere in the scheme of the SRC Act.

(3) It is clear that the SRC Act imposes a distinctive regime in relation to diseases. It does not blindly embrace the principle that "every employer must take a worker as he or she is found": Zickar v MGH Plastic Industries Pty Ltd, above, at 186 per Kirby J. Not only does s7 give disease and its aggravation exclusivity for its purposes, it also stipulates in s7(7) that:

"(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease."

If there are at least some indications here that "disease" is to be accorded distinctive treatment in the scheme of the SRC Act, I would note, for example, that the New South Wales legislation considered by the High Court in Zickar v MGH Plastic Industries Pty Ltd, above, contained no provisions comparable to s7(6) and (7).

(4) As I have foreshadowed already, I do not intend to express any concluded view on the second of the errors the applicant assigned to the Tribunal's decision. There is a real likelihood that the s4 definitional question will be found to have no relevance to cases of the present variety. Moreover I have not had the benefit of controverted argument on the matter. I would, though, venture this much. The question whether the s4 definitions attribute mutual exclusivity to "disease" and "injury" is one of statutory construction. And in answering that question, to adopt the words of Brennan J in Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd [1994] HCA 68; (1994) 68 ALJR 525 at 526 "there is ... no substitute for the statutory text". Furthermore as the Full Court of this Court recently emphasised in relation to workers compensation legislation, it is erroneous to make the a priori assumption that differently worded statutes dealing with a similar subject matter will yield up common meanings when properly construed: see Ilsley v Wattyl Australia Pty Ltd, unreported, 14 May 1997. The case law on such statutes must likewise be treated with appropriate caution.

(5) My failure to deal with the definitional question should not be interpreted as an endorsement of the construction adopted by the Tribunal. There is a serious question there to be determined. While I acknowledge the significance that question may have in other cases, this is not an appropriate one in which to pass on it.

I intend to remit this matter to the Tribunal to have the application of s7(6) of the SRC Act to the evidence before the Tribunal determined. It is appropriate that a differently constituted Tribunal hear the matter. The Tribunal has already made serious findings adverse to Mr Laidlaw - and in particular that he made a wilful and false representation of the type proscribed by s7(7) of the SRC Act. I am in no way impugning either this finding or the impartiality of the Tribunal that heard this matter. It, nonetheless, is desirable in the interests of the Tribunal that the course I have proposed be followed.

I will order the parties to bring in short minutes of orders and of proposed directions to give effect to these reasons and to secure the limited rehearing proposed.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 12 September 1997

Counsel for the Applicant: T Howe

Solicitor for the Applicant: Blake Dawson Waldron

Counsel for the Respondent: A Tonkin

Solicitor for the Respondent: Peter Smyth Burnett & Co

Dates of Hearing: 2 September 1997