FEDERAL COURT OF AUSTRALIA

May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely upon the amended notice of appeal filed on 15 October 2014.

2.    The appeal be allowed.

3.    The orders of the Court made on 30 April 2014 be set aside, and in lieu thereof order that:

(a)    the decision of the Administrative Appeals Tribunal dated 14 December 2011 be set aside;

(b)    the matter be remitted to the Tribunal for determination according to law; and

(c)    the respondent pay the appellant’s costs.

4.    The respondent pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

THE COURT ORDERS THAT:

1.    The time in which the applicant be permitted to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended to 15 October 2014.

2.    The application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) be heard and determined by the Full Court of the Federal Court, together with the applicant’s appeal from the decision of the Court (Buchanan J) dated 30 April 2014.

3.     The said application be dismissed, the first respondent to pay the applicant’s costs thereof.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

THE COURT

Introduction and summary

1    Shortly after joining the Royal Australian Air Force (RAAF), the appellant, Mr May, suffered from symptoms or a condition that the Administrative Appeals Tribunal said in its decision dealing with his claim for compensation, “cut short what might have been a very promising career as a pilot of the RAAF”. The Tribunal concluded, however, that Mr May (to whom we shall refer as the appellant, notwithstanding he is also an applicant before the Court) had not suffered an “injury” for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that the Military Rehabilitation and Compensation Commission (MRCC), the respondent, was not liable to pay him compensation under the SRC Act. It should be said at the outset that there was no issue about the truthfulness and reliability of the appellant’s claim as to his disability, in that he was (and became shortly after joining the RAAF) significantly disabled by what the Tribunal called vertigo.

2    The primary judge found the appellant had not identified any legal error in the Tribunal’s decision, and in particular, in its approach to the determination of whether the appellant suffered an “injury” as that term is to be construed in the SRC Act.

3    There is complexity in the documentation before this Court on appeal. In conjunction with an appeal from the primary judge’s decision, the appellant filed an application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). Also an amended application was filed, together with an amended notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). We will return to this thicket of documentation in due course.

4    In the appeal, the Court is concerned, first, with whether error has been shown in the decision of the primary judge and, if so, whether legal error has been shown to exist in the Tribunal’s decision. That legal error may be identified either through a question of law formulated in the appeal under s 44 of the AAT Act, or in grounds of review formulated to support a claim for relief under s 39B of the Judiciary Act or under ss 5 and 16 of the AD(JR) Act, if these latter two judicial review mechanisms are available in the circumstances.

5    The existence of a challenge to the lawfulness of the Tribunal’s decision under both the Judiciary Act and the AD(JR) Act might, on one view, render detailed consideration of the particular approach to s 44(1) unnecessary. However, a court of five members was constituted to consider that issue in particular; and we have determined the appeal on that basis.

6    On the issues concerning the nature and scope of an appeal under s 44 of the AAT Act, these reasons for judgment should be read in conjunction with our reasons for judgment in Haritos v Commissioner of Taxation [2015] FCAFC 92. We summarise the effect of our decision in Haritos in relation to s 44 of the AAT Act at [161] below.

7    We are satisfied the appellant has established error in the decision of the learned primary judge, and that certain questions of law identified by the appellant should be answered favourably to him.

Factual background

8    The appellant enlisted in the RAAF on 6 November 1998 and was discharged on 30 July 2004 at the rank of Officer Cadet. Between 10 November 1998 and 30 March 2000, the appellant received various vaccinations in the course of his employment in the RAAF.

9    The Tribunal’s factual findings on the sequence of events experienced by the appellant after the vaccinations were set out at [53] of the reasons:

Mr May has described the symptoms he experienced following the vaccinations he received on 10 November 1998. It is clear from the medical tests that Mr May underwent before he was accepted for entry into the RAAF as an officer cadet, that he was healthy and very fit. Mr May states that within 30 to 60 minutes of receiving the vaccinations, he began to experience symptoms and that these increased over the next few days. He says his tongue felt swollen, he felt dizzy and experienced nausea and diarrhoea. There are clinical notes on his reporting sick from 22 November 1998 and these notes appear to record the symptoms as described by Mr May at the time. The medical opinions recorded in the notes […] indicate that Mr May’s treating doctors thought that he was probably suffering from a viral illness and possibly bacterial gastroenteritis. Thereafter, he had a history of infections, particularly of the upper respiratory tract, which, on some occasions required hospital treatment.

10    The primary judge also referred to what occurred at [28] of his reasons:

… After the first set of vaccinations which occurred during his RAAF service he was diagnosed with a viral illness. The following year (1999), he was again diagnosed with a viral illness. In 2000 Mr May was found to need gammaglobulin treatment for persistent lymphopenia (low lymphocytes count). It was suggested then that the treatment would be lifelong but in 2001 the treatment was found to be no longer necessary. In the succeeding years Mr May underwent a series of investigatory procedures which produced no clear identification of the cause of his symptoms.

11    The appellant’s claim was summarised by the Tribunal at [2] of its reasons:

… On 29 November 2002, Mr May lodged a claim for rehabilitation and compensation dated 20 November 2002 in respect of “low immunity, fatigue, illnesses, dizziness” which he claimed was caused by vaccinations received in the course of his employment in the RAAF. On 11 March 2003, a MRCC delegate denied Mr May’s claim noting that specialists who had examined Mr May had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service.

12    Following an application for review, on 22 April 2010, the MRCC reconsidered but affirmed the decision of 11 March 2003 denying the appellant’s claim.

Relevant legislative framework

13    Section 14 of the SRC Act provides:

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.

(2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

14    At the relevant time, the word “injury” was defined in s 4(1) of the SRC Act 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;

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.

15    At the relevant time, the word “disease”, was defined in s 4(1) as follows:

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.

16    At the relevant time, the word “ailment” was in turn separately defined under s 4(1) as follows:

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

Central issues in the appeal

17    It will be necessary to refer more fully to the terms of the appellant’s complaints about the Tribunal’s and primary judge’s approaches, but the central question and errors of law can be expressed tolerably simply as follows.

18    The central question in the appeal is whether the primary judge erred in failing to identify a relevant error of law made by the Tribunal in addressing the question as to whether the appellant suffered an injury arising in the course of his employment with the RAAF.

19    At least the following errors of law were said by the appellant on appeal to have been committed by the Tribunal:

(a)    The Tribunal misconstrued the statutory definition of the word “injury” in s 4 of the SRC Act by giving meaning to the word only by reference to certain specific remarks of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 dealing with another piece of legislation, rather than by construing the Act as a whole and in its historical (including legal) context, with the assistance of cases such as Kennedy Cleaning.

(b)    The Tribunal misconstrued or misapplied the phrase “injury arising in the course of employment” by effectively requiring proof of a causal contribution of employment to the injury suffered temporally in the course of employment.

(c)    The Tribunal misdirected itself as to the evidence that could be sufficient in determining whether the appellant had suffered an “injury” and thereby failed to undertake its review function according to law.

20    The asserted errors in (b) and (c) were raised before the primary judge, but not that in (a), at least not in its particular terms.

21    For the reasons which follow, the errors asserted in (a), (b) and (c) are all made out.

The statutory and legal context of s 14 of the SCR Act and the meaning of “injury” therein

22    Before turning to the background to s 14 and the conceptions of “injury” and “disease” in the legislation, it is worthwhile noting the unusual nature of the circumstances and why great care needs to be exhibited in a precise understanding of the statute and of the concepts dealt with in it. If the appellant is to be accepted as truthful, as he apparently was, he has a “condition” that the Tribunal “loosely described” (see Tribunal [61]) as vertigo; it was preceded by various physiological changes at different times: a swollen tongue within 30 to 60 minutes of receiving some vaccinations, nausea with stomach discomfort, sore teeth, swollen glands, and a feeling of disequilibrium or dizziness. No doctor has been able to diagnose the true nature of the condition; no disease has been identified of which these physiological changes might be described as symptoms; no doctor has been able to identify an event (external or internal) that caused or explained these physiological changes.

23    In this context, it is crucial to understand the statute, and from it, to understand what the notion of “injury” is, how it relates to “disease” and the extent to which, if at all, an “injury” requires a specific event or cause that explains symptoms or a condition that can otherwise be said to be an identifiable physiological change to the body, or a disturbance of the normal physiological state, or something which involves a harmful effect on the body. To understand these issues and to explain why the Tribunal fell into error and the proper conception of “injury” in the SRC Act, it is necessary to understand the development of the provisions, and the meaning of the concepts in question, as explained and discussed in a number of authoritative and persuasive cases.

24    The structure and meaning of s 14 and the relevant definitions in s 4 of the SRC Act take their place after over a century of legislation dealing with the compensation of injured workers. Whilst it is not necessary to trace this history in exhaustive detail, it is instructive to note certain aspects of it in order to understand the legal context of the SRC Act and, in particular, the definitions of “injury” and “disease”.

25    The following discussion owes much to the full and authoritative consideration of the development of Australian workers’ compensation legislation, the concepts involved and the proper approach to construction of statutes, such as the SRC Act, that is to be found in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and Kennedy Cleaning. Given, however, the uniqueness of the appellant’s position, we think it appropriate to deal with the legal context in a little detail.

26    The first Australian statutes were based on United Kingdom legislation: the Workmen’s Compensation Act 1897 (UK) (1897 Act) and the Workmen’s Compensation Act 1906 (UK) (1906 Act). Neither statute defined “injury” or “disease”. The central operative provision of both the 1897 Act and the 1906 Act linked compensation to “personal injury by accident arising out of and in the course of employment [being] caused to a workman”.

27    The authoritative interpretation of the compound expression “personal injury by accident” was given by the House of Lords in Fenton v J Thorley & Co, Limited [1903] AC 443 at 448 and 451 (Lord Macnaghten and Lord Shand, respectively), as follows:

Now the expression “injury by accident” seems to me to be a compound expression. The words “by accident” are, I think, introduced parenthetically as it were to qualify the word “injury”, confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words “arising out of and in the course of employment” qualify the word “accident”, or the word “injury”, or the compound expression “injury by accident”? I think the latter view is the correct one…I come, therefore, to the conclusion that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed: Lord Macnaghten at 448.

[After agreeing with the speech of Lord Macnaghten] I shall only add that, concurring as I fully do in holding that the word “accident” in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence: Lord Shand at 451.

28    That disease could be personal injury by accident using those words in the ordinary sense was recognised in Brintons Limited v Turvey [1905] AC 230 at 233-234 (Earl of Halsbury LC), 234-235 (Lord Macnaghten) and 237- 238 (Lord Lindley). The use of the word “accident” was, as the Earl of Halsbury LC said in Brintons at 233, to exclude idiopathic disease. As we have just set out, in Fenton at 448, Lord Macnaghten said that the word “accident” was used in its ordinary sense as “denoting an unlooked-for mishap or an untoward event which is not expected or designed”. As Latham CJ later said in Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 at 252, if diseases were excluded from compensation that was so not because they were not injuries, but because they were not within the conception of the word “accident”. See also Kennedy Cleaning at 294 [21] per Gleeson CJ and Kirby J.

29    The 1906 Act introduced, in s 8, specific provision for diseases set out in the schedule to the Act if “the disease is due to the nature of any employment in which the workman is employed”.

30    Section 8(10) provided that nothing in s 8 (by its dealing with certain diseases):

shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this Act.

31    Thus, there was no doubt that a disease could be a personal injury, but it had to be “by accident”.

32    The relationship between disease and injury within the phrase “personal injury by accident” arose with the question as to whether the rupture of an aneurism (the aneurism being a manifestation of an idiopathic disease) could be “personal injury by accident”. The House of Lords held that it could be: Clover, Clayton & Co Limited v Hughes [1910] AC 242 where a workman suffering from a serious aneurism fell dead while employed straining and tightening a nut.

33    The distinction drawn in these cases, necessitated by the requirement of “accident” and the conjunctive “and”, was between the consequence of the progress of a disease (not personal injury by accident) and a consequence contributed to by an event that occurred in the course of employment (a personal injury by accident). That distinction, in some form, has (as the discussion of the authorities below reveals) permeated later statutory formulations: see also the comments of Brennan CJ and Dawson and Gaudron JJ in Zickar at 316.

34    The early legislation in all States and Territories adopted the definition of “injury” in the 1897 Act and the 1906 Act (“personal injury by accident arising out of and in the course of employment”). Some adopted the approach to disease in s 8 of the 1906 Act.

35    Commonwealth legislation was passed in 1912: Commonwealth Workmen’s Compensation Act 1912 (Cth) (1912 Cth Act), which likewise followed the model of the 1897 Act: a scheme where liability arose for personal injury by accident arising out of and in the course of employment, with no definition of “injury” or “disease”.

36    In 1930, the Commonwealth Employees’ Compensation Act 1930 (Cth) (1930 Cth Act) was passed, which adopted the 1906 Act model: an operative provision for personal injury by accident in the same terms as the 1897 Act and the 1912 Cth Act, with “disease” dealt with in a schedule. There was, however, no equivalent of s 8(10) of the 1906 Act.

37    In 1948, the 1930 Cth Act was amended by the Commonwealth Employees’ Compensation Act 1948 (Cth) (1948 Cth Amending Act) to include definitions of “injury” and “disease” in s 4:

‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;

…

‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;

38    The relevant operative provisions (s 9 as to “injury” and s 10 as to “disease”) were amended. Section 9 was repealed and replaced with a provision with subs (1) as follows:

If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.

(Emphasis added.)

39    The provision was similar to the 1897 Act and the 1906 Act structure with the important exception of the change from “and” to “or” in the phrase “arising out of and or in the course of”. The requirement for “personal injury by accident” remained. By this time, 1948, such a more liberal provision (based on the disjunctive “or” not the conjunctive “and”) was found in equivalent legislation in a majority of States, and the words “by accident” had been removed in many States, though not in the 1930 Cth Act.

40    Importantly, s 10 (the provision dealing with compensation for diseases) was amended by replacing the existing provision referring to a schedule of diseases (subs (1)) with a generally expressed provision in subs (1) as follows:

Where –

(a)    an employee is suffering from a disease and is thereby incapacitated for work; or

(b)    the death of an employee is caused by a disease,

and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.

41    The changes to s 10 marked a departure from the approach to liability for disease in the 1906 Act that identified particular occupational diseases which were compensable. This was the first time that the Commonwealth scheme sought to identify what constituted a disease in a general sense, rather than by simply relying on the ordinary meaning of the word or a schedule which listed diseases for the purposes of the Act. Furthermore, it provided for compensation for any “disease” which was “due to the nature of the employment in which the employee was engaged”.

42    In the Minister's second reading speech (Commonwealth, Parliamentary Debates, Representatives, 16 September 1948, 531-2 (Mr Dedman)) which otherwise emphasised that the general purpose of the Act was to increase the amounts payable to injured workers, the following observations were made about these amendments:

… [I]t is proposed to repeal the present second schedule to the Act which specifies the diseases on account of which compensation will be granted, and limits compensation to particular processes causing disease. Following the example of New South Wales, Victoria and Queensland, compensation will, under this proposal, be granted on account of incapacity for work caused by any disease provided that it is due to the nature of the employment.

…

In total, therefore, the Act, if amended as proposed, will be thoroughly up to date, and will incorporate a wide and ample scheme of safeguards for those who serve the Commonwealth in their daily work. …

43    In Hume Steel 75 CLR 242, the High Court dealt with a journey claim under the Workers Compensation Act 1926 (NSW) (1926 NSW Act). The case concerned a man who died of a coronary occlusion riding his bicycle to work. It was said by the employer that there was no injury. The deceased’s aorta and coronary arteries were in an advanced state of atheroma; the artery was brittle; a piece of lining of the artery had loosened and blocked the artery. Journey claims were dealt with under s 7(1)(b) that commenced, “Where a worker has received injury …”. Section 6(1) defined “injury” in a manner to include disease “to which the employment was a contributing factor”. The section read:

‘Injury’ means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor…

44    The Court found the definition of “injury” in s 6(1) was not applicable to the word “injury” in s 7(1)(b). Importantly, for later cases, and for this case, Latham CJ discussed the nature of, and relationship between, injury and disease in s 6. In passages in Hume Steel, parts of which were quoted and cited by Toohey, McHugh and Gummow JJ and by Kirby J in their two sets of reasons in Zickar 187 CLR at 332 and 340 and referred to and cited by Gleeson CJ and Kirby J, and Gaudron J in Kennedy Cleaning 200 CLR at 300 [39] and 303 [50], Latham CJ said 75 CLR at 252-253:

Many cases have been decided in English courts on the words “personal injury by accident”… Cases such as Fenton v. J. Thorley & Co. Ltd.; Clover, Clayton & Co.Ltd. v. Hughes and many other cases have dealt with the subject of accident, and have resulted in the establishment of the proposition which I quote from Fenton v. J. Thorley & Co. Ltd. That the “expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed,” that is, is not expected or designed by the worker… In many cases the relation of the conception of “accident” to that of disease has been discussed. But the word “accident” is not found in the New South Wales legislation and these authorities are in my opinion of no assistance in determining the question which arises in the present case.

The cases in which the question was whether the contraction or aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employment all assume that a disease is an injury. What are described as idiopathic diseases are outside the English Act (Brintons Ltd. v. Turvey). The plaintiff’s atheromatous condition, according to the findings of the Commission, was such a disease – it was a morbid condition of which the cause is unknown. But these diseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word “accident” as defined in Fenton v. J. Thorley & Co. Ltd. Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury.

There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury.

(Emphasis added.)

45    Notwithstanding the fate of the approach in Hume Steel to the construction of the relevant statute brought about in later cases to which reference is made below, these passages are (by reason of their modern adoption in Zickar and Kennedy Cleaning) of continuing importance to understand the meaning of “injury” (in what might be called its ordinary meaning) and also to place in context what Gleeson CJ and Kirby J said in Kennedy Cleaning, and in particular to recognise that their use of words was not definitional in character, but by way of exemplification.

46    Hume Steel is also important for its place in the history of the construction and interpretation of provisions such as s 6(1) of the 1926 NSW Act which defined “injury” without the phrase “by accident” and with the disjunctive “or” and expressly included disease to which the employment was a contributing factor. In Hume Steel the Chief Justice and all the justices (Latham CJ at 252-253, Rich J at 254, Starke J at 254, Dixon J at 256-258 and McTiernan J at 259) refused to confine “injury” as including only diseases to which employment was a contributing factor. Exemplifying this unanimous view, Dixon J said at 258:

I am unable to agree in the argument that was advanced founded upon the express reference in the definition of “injury” to diseases contracted in the course of the employment to which the employment is a contributing factor. That argument was that the only disease or pathological state or change covered by s 7(1), whether under the head of “injury” or otherwise, is that described in the reference to disease contained in the definition of “injury.”

It must be remembered that the words in question were introduced to enlarge the scope of the definition. I think a restrictive inference of so drastic a kind cannot be based upon them.

47    This latter view as to the non-exclusive effect of including diseases so contributed to by employment (as well as the view that the s 6(1) definition of “injury” was not applicable to s 7(1)(b) journey claims) was rejected in 1951 by the Privy Council in a New South Wales workers compensation appeal in Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13. Lord Simonds said that the meaning of injury was narrowed by the exclusionary effect of the inclusion of disease contributed to by employment, saying at 19-20:

The Act, as is commonly conceded, makes a substantial departure from former legislation in this field, and in particular deals not, as had previous Acts, with “injury by accident” but with “injury” simpliciter, a change which made it necessary to define what had previously been undefined. The difficulty of such definition is shown in the several alterations which were made in Amending Acts between 1926 and 1947, and is, perhaps, further illustrated by the fact that in the end the definition still contains the word which is itself to be defined. But this at least is clear, that in the Act the word “injury” (unless the context or subject-matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease.

48    Slazengers was followed in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 in a case under s 6(1) of the 1926 NSW Act concerning a watchman who collapsed and died from a coronary occlusion after suffering from progressive heart disease. Dixon CJ, Fullagar, Kitto and Windeyer JJ applied Slazengers. At 495-496, Dixon CJ made clear that the evidence only revealed the progression of the heart disease and not a “separate or distinct disease”; see also 505 (Fullagar J), 509 (Kitto J) and 518 (Windeyer J). There was no relevant employment contribution; so, the worker failed. Fullagar J observed at 500:

With regard to Kellaway's Case [Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210], it is important to note that Jordan CJ expressed the opinion that all cases of disease must, both under the Act of 1929 and the Act of 1942, be subsumed under the second part of the definition of “injury”, i.e. that part of the definition which deals specifically with diseases. A case of disease could no longer be regarded as a case of injury in the general sense of the first part of the definition. His Honour said: - “The portion of the definition of injury beginning with the words ‘and includes a disease’ was inserted to indicate that injury is no longer, in the Act, to be read, by a somewhat forced construction, in a non-colloquial sense wide enough to include disease generally, but is to include it only when it is ‘contracted’ in the conditions specified. … It follows that if a worker originally contracts a not immediately disabling disease from causes to which his employment does not contribute, and, for causes to which also the employment does not contribute, the disease, by its natural progress, grows worse until it reaches a point at which it disables him or causes his death, his employer incurs no liability to compensation”. So far I would agree with his Honour: indeed, I think it is clear that the view which he has expressed is correct. …

(Emphasis in bold added; emphasis in italics in original.)

49    Windeyer J also observed at 518 that the effect of the definition (in s 6(1)) and of the Privy Council’s decision was that the only compensable disease under the 1926 NSW Act was one which came within the definition (that is, a disease to which employment was a contributing factor).

50    The distinction between disease and injury of the kind dealt within the construction of s 6(1) of the 1926 NSW Act in Slazengers was brought to the 1930 Cth Act in three cases: Commonwealth v Ockenden [1958] HCA 37; 99 CLR 215, Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547, and Commonwealth v Hornsby [1960] HCA 27; 103 CLR 588. It is to be recalled that the 1930 Cth Act used the phrase “personal injury by accident”.

51    In Ockenden, a naval officer with a “rheumatic heart” claimed compensation under the 1930 Cth Act. Initially it was contended that he was suffering a “disease” within the meaning of s 4(1) but the Commissioner and the County Court Judge were both of the opinion that his condition was not in any way attributable to naval service. On the appeal to the County Court, he successfully argued that his condition constituted “personal injury by accident”. The Court (Dixon CJ, Fullagar and Taylor JJ) in concluding that the facts did not disclose any injury by accident held, in respect of cases falling within the statutory definition of “injury” rather than “disease” (at 223-224):

The acceptance in Sharpe’s Case [(1955)] AC 1] of the view that in Victoria it is now no longer necessary to find an external event of some kind associated with a sudden physiological change rested, essentially, of course, upon the special provisions of the amendment introduced into the Workers’ Compensation Acts of that State by the amending Act of 1946. But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker’s employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word “accident” of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.

(Emphasis in bold added; emphasis in italics in original.)

52    The “traditional view” referred to by the Court in this passage in Ockenden is illuminated by a perusal of the advice of the Privy Council in James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1 (referred to in the above passage in Ockenden) delivered by Lord Reid, in particular at 13-15. After referring to Fenton v Thorley, Lord Reid noted Viscount Caldecote LC’s views in Fife Coal Co v Young [1940] AC 479 at 483 of a steady extension of the meaning (that is, width of application) of the phrase “personal injury by accident”. Lord Reid said (at 14) that this extension was “particularly notable in cases dealing with disease”. Lord Reid referred to Lord Tomlin’s review of the authorities in a Scottish appeal, Walker v Bairds & Dalmellington Ltd 1935 SC (HL) 28. The relevant considerations concerning accident can be understood from what Lord Tomlin then said at 1935 SC (HL) 32, cited by Lord Reid, what Viscount Caldecote said in Fife Coal at 484, also cited by Lord Reid, and from what Lord Reid himself said in discussing the cases:

… there may be personal injury by accident, even though the employee’s work has proceeded in the normal way, and even though the injury is due to the presence of a special condition in the employee’s body: Lord Tomlin in Walker 1935 SC (HL) at 32.

But death or disability which was merely the result of continuous process over a period, there being no particular change in the man’s condition at any one time, was never held to be due to injury by accident: Lord Reid in Sharpe at 14.

[After reference to various cases where recovery had been denied]. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen’s Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged. When the workman’s claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workman in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover, Clayton & Co. Ld. v. Hughes or heart failure as in Falmouth Docks & Engineering Co. Ld. v. Treloar.”: Viscount Caldecote in Fife Coal at [1940] AC 484

In all cases in the United Kingdom and in Victoria before 1946 it was necessary to prove that some external event or some action of the deceased had caused the sudden physiological change to happen when it did. In the present case the worker’s death was due to a sudden physiological change which happened at a time deemed to be in the course of his employment, but there is no finding that any external event or any action of the deceased played any part in causing the fibrillation to happen when it did and their Lordships must deal with the case on the footing that the fibrillation was due solely to the onset or progress of some disease within the man’s body: Lord Reid in Sharpe at [1955] AC 15.

(Emphasis added.)

53    That the “incident” to which the Court referred in Ockenden need not be external was made clear in Kavanagh 103 CLR 547 where the High Court was asked to consider whether a ruptured oesophagus constituted an “injury by accident” within the meaning of s 4(1). Dixon CJ said at 553:

The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection …

54    The Chief Justice distinguished Ockenden, saying at 555:

It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency. I say this because I do not think that it is consistent with s 9(1) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the “employment”, including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof.

55    Fullagar J concurred with this conclusion (at 558) as did Menzies J (at 569). Taylor J (at 562) and Windeyer J (at 578) also concurred in this respect, but dissented in the result on the question of “in the course of” employment.

56    Kavanagh also reinforced, unequivocally, the lack of employment causality in “arising…in the course of employment”: 103 CLR at 555-557 (Dixon CJ), 558-560 (Fullagar J) and 569-572 (Menzies J).

57    The need for a sudden or distinct physiological change to be associated with or attributable to an incident of employment (whether external or internal) derived principally from the notion of “injury by accident”. So, silicosis as a result of a continuous process was not injury by accident. In Ockenden, if there had been evidence of exertions causing a sudden and distinct physiological change, such as the day’s exertion contributing to the occlusion in Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; 62 CLR 317, an injury by accident may have been established.

58    On the same day Kavanagh was handed down, the Court delivered Hornsby 103 CLR 588. There the respondent suffered from a stroke due to a thrombus forming in a cerebral vessel. Dixon CJ (at 592-593) refused to give the same interpretation to s 9 as was given to provisions of the 1926 NSW Act by the Privy Council in Slazengers:

In the second place the view may be suggested that the Commonwealth Employees’ Compensation Act should receive the same interpretation with reference to the distinction between injury by accident and disease as was placed by the Privy Council upon the material provisions of the New South Wales Workers’ Compensation Act 1926-1951 in Slazengers (Australia) Pty. Ltd. v. Burnett: see Darling Island Stevedoring and Lighterage Co. Ltd. v Hussey. Section 9 and s. 10 are the two parallel provisions dealing respectively with injury by accident arising out of or in the course of the employment and incapacity through disease due to the nature of the employment. The structure of these provisions and of the material definitions is unlike that of the sections of the Act of New South Wales and in my opinion there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration.

(Emphasis added.)

59    Fullagar J observed at 596-597 that:

Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered “personal injury by accident”. This statement, however, requires qualification, because the words “injury by accident” (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. Examples are Brintons Ltd. v. Turvey [(1905) AC 230] (anthrax) and Miller v. J. W. Handley Pty. Ltd. [(1948) 2 WCD (Vic) 134] (tuberculosis), which was discussed in Nash v. Sunshine Porcelain Potteries Ltd. [(1959) 101 CLR 353, at 363, 364, 378 and 379]. Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus (Clover, Clayton & Co. Ltd. v. Hughes [(1910) AC 242], Kavanagh v. The Commonwealth [(1906) 103 CLR 547]). It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a “sudden physiological change”. Examples are found in Hetherington’s Case (coronary occlusion) and Sharpe’s Case (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged.

In all these cases it is to be remembered that the question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose out of or in the course of the relevant employment. The questions have not always been kept distinct, and I am not quite sure that we kept them distinct at all points in Ockenden’s Case.

Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are case of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled.

Cases of the first and third classes are, of course, cases of disease.

60    The three classes of cases referred to by Fullagar J reflect the fact intensive nature of the judgment as to whether the circumstances reveal an injury or disease.

61    The High Court returned to the injury/disease issue under s 6(1) of the 1926 NSW Act in Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580. There the Court was dealing with a slightly amended definition as follows:

“Injury” means personal injury arising out of or in the course of employment, and includes –

(a)    a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor.

62    Not without clear reservations in the judgment of Barwick CJ, the exclusion of “disease” from “injury” in the 1926 NSW Act was restated in the judgments of Barwick CJ, Stephen J and Mason J at 592, 593 and 596-597, respectively.

63    A decade later, in Hockey v Yelland [1984] HCA 72; 157 CLR 124, the Court gave the same construction to the equivalent definition in the relevant Queensland legislation as was given to the 1926 NSW Act in Favelle Mort. Section 3(1) of the Workers’ Compensation Act 1916 (Qld) contained the following definition of the word “injury”:

‘Injury’ means (without in any wise limiting the operation and scope of section nine of this Act) personal injury arising out of or in the course of employment includes –

(a)     a disease which is contracted in the course of the employment, whether at or away from the place of employment, to which the employment was a contributing factor; and

(b)    the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration,

but does not include those diseases as specified in section 14B of this Act;

64    Gibbs CJ (with whom Mason and Brennan JJ agreed) observed at 136 – 137:

… [T]he definition of injury in s. 6(1) of the N.S.W. Act, which is indistinguishable for present purposes from that in s. 3(1) of the Queensland Act, includes a disease only if it falls within par. (a) or par (b), and so only if employment was a contributing factor. I see no reason to doubt the correctness of the construction placed upon the definition in …[Slazengers and Darling Island Stevedoring], but even if, contrary to my present view, a disease which is not autogenous, but is caused or exacerbated by an external stimulus, can come within the description of injury simpliciter and so within the opening words of the definition, it is clear that an autogenous disease which happens to manifest itself in the course of employment is only an “injury” if it comes within par. (a) or par. (b)

… On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition: if the incapacity is to be compensable it must fall within par. (a) or par. (b). On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment.

65    In 1971, the Parliament passed the Compensation (Commonwealth Employees) Act 1971 (Cth) (1971 Cth Act). It retained in s 5(1) definitions of “injury” and “disease” as follows:

“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;

“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;

66    In the operative provision for compensation for “injury” (s 27), the requirement of “by accident” was removed. The operative provision for compensation for “disease” (s 29) required that employment be a “contributing factor”.

67    So, through the exclusion of disease from the definition of injury in s 5 (for the purposes of s 27) and the separate treatment of disease in s 29, injury and disease can be seen as separate concepts in the 1971 Cth Act.

68    The meaning of “injury” and “disease”, the relationship of the two concepts, and the operation of the relevant provisions of the 1971 Cth Act were considered by Full Courts of this Court in Commonwealth v Whillock [1983] FCA 183; 48 ALR 433 and Health Insurance Commission v Van Reesch [1996] FCA 1118; 45 ALD 302. Before Van Reesch was decided, the High Court in Zickar considered the correctness of Slazengers, Hussey, Favelle Mort and Hockey v Yelland in relation to the Workers Compensation Act 1987 (NSW) (1987 NSW Act).

69    In Whillock the deceased (a Chief Petty Officer in the Navy) died after he suffered a myocardial infarction on board ship caused by an occlusion of his right coronary artery by a thrombus of recent origin. The thrombus was caused by a reaction on his blood passing through degenerate blood vessels which were diseased. Smithers and St John JJ upheld the Commonwealth’s appeal from the award of compensation by the Workers Compensation Commission of New South Wales. The findings of the Commission were that there was a “pathological change to … a vital organ.” This was held by the Commissioner to be an “event” which constituted an injury.

70    Smithers J at 438 said the following:

Of course the thrombus, the occlusion and the myocardial necrosis were injuries in the sense that they caused harm. Also each was an incident of physical degeneration precedent to the myocardial necrosis which led to the ultimate death. So in a sense was the narrowing of the artery itself. To say that each of these was an injury does not assist. To support the reasoning of the Commissioner the injury or injuries he regarded as critical is not significant until it is decided that they were not the result of a disease.

71    Smithers J then referred to Hume Steel, Slazengers and Hussey. He concluded that a step in the progress of a disease is a disease, not an injury. Smithers J referred to and adopted the following comment of Fullagar J in Hussey on Hume Steel (102 CLR at 505):

If it were permissible to ignore that part of the definition of ‘injury’ which deals with diseases, it would be permissible to say that the physiological event of the blocking of an artery, if some exertion on the part of the worker had contributed to it, was within an artificial but established meaning of the term ‘injury’. This is what was done in Peart’s Case…But since Slazengers’ Case…it is no longer permissible to reason in this way, and Peart’s Case must, in my opinion, be regarded as overruled. A case where the immediate cause of death is a coronary occlusion is unquestionably a death from disease.

72    Thus, Smithers J said 48 ALR at 441:

All this suggests that the attempt to link the death exclusively with any one of the events or combination of events following the atheroma, is unsound. And it is in this connection that the foregoing judicial comments are significant. They indicate that an event which is but a step in the progress of a disease is a disease. It is also an injury in the ordinary sense of that word, but if it is an injury which is a disease then it is only an injury for the purposes of s 27(1) of the Act if the employment contributed to it. Of course under the present definition of disease a work-contributed aggravation or acceleration of a disease is an injury within the meaning of s 27(1).

73    He continued at 443:

When, with respect to an event for example death, the question is posed whether that event resulted from a particular bodily occurrence, the question is not really answered by isolating one event in a chain of causation, albeit itself constituting an injury, and to say the event resulted from that injury. Really, it did not, if that injury was itself the result of a previous injury or the progress of an existing disease. In the sense relevant to the context in which the question is asked the only injury which resulted in the disability was that which transformed the employee’s body from a healthy body able to work to one in which, by reason of development of that initial injury or disease, the ultimate disability would or did result.

74    St John J reasoned shortly at 444-445:

The facts and the relevant parts of the Act are fully set out in the judgment of my brother Smithers. Except for s 29, the definition of “injury” draws a clear distinction between “injury” within the meaning of the Act, and the harm or detriment to the body or mind caused by disease. In its ordinary meaning “injury” is harm or detriment, however caused.

When the learned Commissioner described the formation of, and the consequences of, the thrombus as a “pathological injury”, he was expressing a contradiction in terms, having regard to the definition of “injury” in the Act. “Pathological” means pertaining to disease.

The matter should be remitted for consideration by the Commissioner of the respondent’s claim based upon s 29 of the Act.

75    Northrop J (in dissent) noted at 449 that in “its normal meaning the word ‘injury’ is apt to describe a discrete event occurring in the course of the progression of a disease.” He referred to Hume Steel and to the passages in Latham CJ’s judgment to which we have referred (and which Toohey, McHugh and Gummow JJ and Kirby J quoted in Zickar and which Gleeson CJ and Kirby J cited in Kennedy Cleaning), and to passages from the judgment of Dixon J in Hume Steel. Northrop J recognised the exclusionary effect of the definition of injury, but said there was a factual basis for the finding of injury, in the way reasoned by the Commissioner.

76    If Whillock stood unaffected by later authority, there would be a tolerably clear authority (at least for the 1971 Cth Act) for the propositions that injury and disease were distinct; that the latter could be within the former only if s 29 was satisfied; and that the somewhat fine distinctions involved in identifying separate events in the working out of diseases as injuries themselves, as was done in Hume Steel, should be rejected.

77    Then came the case of Van Reesch. After the argument, but before delivery of judgment, Zickar was handed down. Mrs Van Reesch had a back condition, which she did not disclose on being interviewed for employment. Her suffering that prevented her working was “a right S1 nerve root compression due to extended nucleus L5-S1”. The Tribunal dealt with her matter only by reference to disease and not injury. Treated thus, her non-disclosure was fatal to her claim because of a provision providing for the consequences of non-disclosure of pre-existing disease. Finn J, and then a Full Court (Northrop, Wilcox and RD Nicholson JJ), found error in the failure of the Tribunal to address the question of injury. (There was no disclosure provision about injury.) Wilcox J wrote the leading judgment. At 314, his Honour dealt with Whillock as follows:

There was a division in opinion among the members of the court in Whillock whether the myocardial infarction which killed the deceased was an injury or a disease. For present purposes, that difference does not matter. What is important is that it was accepted by all members of the court that the case had to be dealt with under s 27 if the evidence indicated that the death occurred as a result of a physical injury that was not part of a disease. The definition of “disease” was not read in such a way as to cover the field and exclude the notion of “injury” or the operation of s 27.

78    There is not a little difficulty, with respect, in reconciling the views in Whillock as Wilcox J did in Van Reesch 45 ALD at 314. It is unnecessary, however, to examine whether that expression of the matter adequately identifies the difference between the majority and Northrop J in Whillock. This is particularly so because of the decision in Zickar. At 315, Wilcox J noted:

Since the above reasons were written, the High Court has delivered judgment in Zickar …By majority, the court held that a rupture of a cerebral aneurism should be regarded as an injury rather than a disease. The actual result is in line with Northrop J’s dissenting view in Whillock but the decision is of limited assistance in relation to the interpretation of the 1971 Act. It turns on the definitions of “injury” in the Workers Compensation Act 1987 (NSW). However, the decision demonstrates once again that an “injury” may take the form of an event arising out of an autogenous disease. This was pointed out by Toohey, McHugh and Gummow JJ at 173:

But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant’s claim to personal injury within para (a) is based on the rupture which occurred …If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon para …(b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.

79    Zickar, on one view, can be seen to be contrary to the views of Smithers J and St John J if they were expressing a view that one could not isolate an identifiable event (such as a rupture) connected with a disease (the aneurism), as an injury. A reading of the pellucid (if we may say so) discussion by Kirby J in Zickar 187 CLR at 340-344 of the course of authority from Hume Steel onwards makes this point clear, and undermines the explanation by Wilcox J in Van Reesch of the differences between the members of the Court in Whillock.

80    Northrop J in Van Reesch (of course, the dissentient in Whillock, but a member of the majority in Van Reesch) saw Zickar as crucial: 45 ALD at 307. At 305, Northrop J stated the following about ss 27 and 29 of the 1971 Cth Act:

As a result, a disease or its aggravation, acceleration or recurrence is deemed to be an injury if and only if there is the contributing factor between the employment and the disease or its aggravation, acceleration or recurrence. There is no similar limitation with respect to an injury. It follows that if an incident or event occurs to an employee which is not the inevitable consequence of a disease form which the employee is suffering, that incident or event may be a personal injury without any reliance on the definition of disease and of s 29.

81    At 307-308, he said the following about Mrs Van Reesch’s position:

From a consideration of the reasons for judgment in Zickar, it follows that the first matter that should have been determined by the tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a “right S1 nerve root compression due to extended nucleus L5-S1” arising out of or in the course of her employment with the commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and s 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury.

82    Zickar concerned the operation of the 1987 NSW Act and the definition of “injury” which was as follows:

In this Act –

    “injury” –

    (a)    means personal injury arising out of or in the course of employment;

    (b)    includes –

(i)    a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and

(ii)    the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and

(c)    does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

83    The minority plurality (Brennan CJ, Dawson and Gaudron JJ) examined the major authorities in England and Australia from Fenton v Thorley onwards, whilst recognising the importance of the words “by accident” in the early phrase “personal injury by accident”. Their Honours examined these authorities, especially Hussey, Ockenden, Kavanagh and Hornsby. They applied at 325 Hockey v Yelland, applying Favelle Mort and Slazengers. They made no reference to Hume Steel. They said at 326:

By judicial decision, the consequence of a progressive disease had been excluded from the cover of “injury by accident” if there were no cause of the consequence other than the progress of the disease. It did not matter that the consequence was gradual or was a sudden and distinct physiological change. If there were no underlying disease, however, a sudden and distinct physiological change could amount to “injury by accident” even though there were no external cause for the change. When liability was made to depend on a definition in the terms to be found in the 1926 Act – at least from the time of the insertion of the 1929 amendment – diseases and their consequences were removed from the category of “personal injury” in the opening words of the definition of “injury” and were covered exclusively by the forerunner or equivalent of the provisions now found in sub-pars (i) and (ii) of s 4(b) of the 1987 Act.

(Emphasis added.)

84    With respect to Wilcox J in Van Reesch at 314, the above statement of the minority plurality clearly reflects the approach of Smithers J and St John J in Whillock. See also Kirby J in Zickar in the passages to which we have already referred.

85    The majority plurality (Toohey, McHugh and Gummow JJ) did not consider that Hockey v Yelland or any previous authority prevented the appeal being successful. Crucially, however, at 330, in the context of the 1987 NSW Act and their view that its structure was different from the 1926 NSW Act, their Honours rejected the existence of the rule of construction that the Privy Council had applied in Slazengers. In that respect, they agreed with the strongly expressed doubts of Barwick CJ in Favelle Mort. Such rejection undermined the approach, not only of the Privy Council in Slazengers, but of the Court in Favelle Mort and Hockey v Yelland on the 1926 NSW Act and the equivalent Queensland provision. (Their Honours saw Hockey v Yelland as confined in its reach to the context of error on the face of the record: Zickar 187 CLR at 332-333.) Their Honours distinguished between the natural progression of a pre-existing morbid condition or autogenous disease and claims arising from injuries being identifiable “events” (at 334) such as the rupture of an aneurism or of an oesophagus, or the breaking of an artery. Importantly, their Honours (at 332) quoted the passage from the judgment of Latham CJ in Hume Steel set out in the last paragraph of the extract at [44] above, as well as (at 335) the following passage in the judgment of Murphy J (with whom Crockett and Cummins JJ agreed) in Accident Compensation Commission v McIntosh [1991] 2 VR 253 at 262:

If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur.

86    The majority plurality had earlier said at 334:

If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.

87    Kirby J (187 CLR at 345-351) squarely confronted Slazengers, Hussey, Favelle Mort and Yelland v Hockey and said they were wrong.

88    The utilisation by the majority plurality and Kirby J in Zickar of Hume Steel must be taken to negate any overruling of Hume Steel by Slazengers.

89    Further, not only was Hume Steel revived by Zickar, but also the majority plurality and Kirby J approved of McIntosh [1991] 2 VR 253, which itself was based in part on Hume Steel. There Murphy J said the following at 257:

It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change causing incapacity and occurring during a protected period is an “injury” within the meaning of the Works Compensation Act (Vic).

In Willis v Moulded Products Sholl J said, at p. 70: “I do not myself see why under the Victorian Act, a defined, separate, and observable step in the progress of a disease (occurring during a protected period) should not, if it produces incapacity or death, be compensatable.”

90    A little later (at 258) Murphy J referred to Darling Island Stevedoring and Lighterage Co Ltd v Hankinson [1967] HCA 10; 117 CLR 19 where the distinction was drawn between the suffering of a disease of the spine and a “dramatic event at work…through the collapse of [the] spinal vertebrae”.

91    Whilst we have not yet dealt with the SRC Act, the above makes clear, in different legislative frameworks, that the notion of injury, subject to specific statutory context, can be seen to include the kinds of considerations discussed by Latham CJ in Hume Steel, as well as events or physiological changes that have a relationship with disease, but cannot be said merely to be the natural progression of an autogenous disease.

92    It should be noted that the decision in Zickar prompted the New South Wales Parliament to introduce s 9A into the 1987 NSW Act, subs (1) of which read:

No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

93    For a discussion of s 9A see Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503. No such provision has been introduced into the SRC Act. For recent recommendations in this regard, see the report of Mr Hanks QC reviewing the SRC Act: “Safety, Rehabilitation and Compensation Act Review, Report – February 2013” (Commonwealth of Australia 2013) at 44-46 [5.66]-[5.83].

94    The SRC Act (as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)) repealed the 1971 Cth Act.

95    The Minister’s Second Reading Speech (Commonwealth, Parliamentary Debates, Senate, 24 May 1988, 2767-2770 (Senator Tate)) made it clear that one of the central purposes of the new Act was to establish “a more equitable and cost-effective compensation system, with particular emphasis on the rehabilitation of injured employees”. These remarks were made against the backdrop of the Minister decrying, in the second sentence of his speech, the more than 700% increase in the expenses associated with Commonwealth workers’ compensation over the 1976-1986 period. The Minister then went on to make specific observations about the disease provisions:

Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.

In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee.

96    There was, accordingly, a clearly expressed intent to restrict the circumstances in which employees could claim that the Commonwealth was liable for occupational diseases. Nevertheless, there was no discussion of the interrelationship between disease and injury in the Act.

97    In Australian Postal Corporation v Burch [1998] FCA 42 Northrop J (at first instance) discussed in detail the text and structure of the 1971 Cth Act and the SRC Act. The case involved an employee suffering a stroke when bending over to pick up some letters.

98    The delegates (one original, one reviewing) of the Postal Corporation rejected the claim on the basis of the majority in Whillock. The stroke was to be seen as part of a disease and it had not been contributed to in a material degree by Mr Burch’s employment. The Tribunal, basing its decision on Zickar, reversed the delegates. The Tribunal found an “injury simpliciter” as follows:

In conclusion, I find that on 29 September 1994 Mr. Burch experienced a sudden disturbance of his physiological state, being the occlusion of his right middle cerebral artery, which resulted in a stroke. The stroke, which has given rise to a degree of incapacity, did not occur as a result of disease. Rather, it was an injury in the primary sense, being an “injury simpliciter” in the context already explained in these reasons. As such, Mr. Burch’s stroke was an injury within the meaning of section 4(1) of the Act.

99    Northrop J dismissed the appeal. His Honour’s careful analysis of the 1971 Cth Act and the SRC Act accepted that workers’ compensation legislation, including the 1971 Cth Act, had treated disease and injury as distinct; but recognised that injury included events or disturbances such as a ruptured aneurism or the sudden disturbance of the physiological state, as in that case.

100    In his discussion of the definitions of injury and disease in s 4 of the SRC Act, Northrop J noted that disease had a limited meaning: disease “means …”. Implicit in his Honour’s reasons was the conclusion that the words “(other than a disease)” in para (b) of the definition referred to the narrow and express definition of “disease” in s 4, leaving the word “injury” in (b) (so-called “injury simpliciter”) to include events or changes that may be seen to have a relationship with disease (such as the rupture of an aneurism). Northrop J expressed the view, correctly, with respect, that the Second Reading Speech was not of assistance, as it was not directed to the question of the definition of the word “injury”.

101    The Postal Corporation appealed: Australian Postal Corporation v Burch [1998] FCA 944; 85 FCR 264. In the Full Court (Heerey, Sundberg and North JJ), there were two arguments propounded that are set out at 267 as follows:

First, in the expression “(other than a disease)” in par (b) of the definition of “injury”, “disease” is not used in the statutorily defined sense (ailment materially contributed to by employment) but in the ordinary sense of an ailment, whether or not connected with employment. Mr Burch suffered a disease in that sense; therefore he could not have suffered an injury within the meaning of par (b). Necessarily involved in that argument is the contention that not only was Mr Burch’s condition properly characterised as a “disease” (in the ordinary sense) rather than an “injury” (in the ordinary sense) but notwithstanding his alternative case advanced before the Tribunal, his disease (in the ordinary sense) was not contributed to in a material degree by his employment.

Secondly, there was no basis for the finding that Mr Burch suffered an injury in the ordinary sense, or at any rate there were insufficient findings of fact to support this conclusion.

102    The first argument was rejected. The word “disease” in parentheses in para (b) of the definitions was used in the statutorily defined sense. The Court said at 268:

The matter can be approached in this way. In lay terms injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.

Since both injury and disease are misfortunes which may have a relationship to employment, workers’ compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.

The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment – there need not be a causal connection.

Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment. Such a claimant may, as an alternative, again like Mr Burch, seek to show that if what was suffered was not an injury in the ordinary sense, then it was a disease in the ordinary sense, and that there was contribution to a material degree by employment to that disease. This Mr Burch also attempted to do. He gave evidence as to alleged harassment in the workplace by fellow employees which contributed to his condition. But because he won on the first issue of injury (in the ordinary sense), it was not necessary for the Tribunal to reach any conclusion as to this alternative claim.

The definition of “injury” in s 4(1) is consistent with this analysis, although some confusion is caused because the alternative meanings of “injury” are set out in a somewhat illogical sequence. It would make more sense if the first possible meaning of “injury” was injury (in the ordinary sense) arising out of or in the course of employment. If an employee satisfied this lower test of work connection there would be no need to go any further. However, it is we think reasonably clear that the expression “(other than a disease)” is inserted to make it clear that par (b) of the definition, which requires only the lower level of work connection, is referring to something different from disease (in the statutory sense) referred to in par (a) which requires the higher level of work connection (contribution to a material degree).

(Original emphasis.)

103    The second argument was rejected on the basis of Kavanagh, McIntosh and Zickar. The stroke was an injury as a disturbance of the normal physiological state: Hume Steel at 252-253 (Latham CJ) or an ascertainable lesion or dramatic physiological change (McIntosh at 257).

104    We see no reason to doubt the approach of the Full Court in Burch. The reasoning was approved by the Full Court in Petkoska v Kennedy Cleaning Pty Ltd [1998] FCA 1289; 87 FCR 526 at 534-535, from which an appeal was dismissed in Kennedy Cleaning 200 CLR 286. Burch was also cited with apparent approval by Gleeson CJ and Kirby J in Kennedy Cleaning.

105    We come to Kennedy Cleaning 200 CLR 286. In Kennedy Cleaning, the worker collapsed at work on the occurrence of a brain lesion which caused a stroke, having suffered for some years from rheumatic mitral valve disease. As in Zickar, there was no dispute that her employment did not cause or contribute to the contraction of the disease, or aggravate or accelerate the underlying condition. All members of the Court, except Callinan J, held that the lesion was a “physical injury” within the meaning of s 7(1) of the Workers’ Compensation Act 1951 (ACT). The majority rejected the argument that the different legislation should lead to a different outcome to that taken by the majority in Zickar, rejecting the submission that the legislative scheme established mutually exclusive classifications of “injury” and “disease”.

106    The reasons of Gleeson CJ and Kirby J at [35], make clear that the phrase “sudden or identifiable physiological change” was included within the concept of injury. In [36], the phrase used is “sudden physiological change”. That phrase, or similar ones; for example, in [39] “ascertainable lesion or dramatic physiological change” (taken from McIntosh [1991] 2 VR at 257), the disturbance of the normal physiological state (taken from Hume Steel 75 CLR at 252-253), and also “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, appear throughout the reasons of Gleeson CJ and Kirby J. Their Honours refer with approval to Latham CJ in Hume Steel, to the Full Court in Burch, and to the Victorian Court of Appeal in McIntosh. It is to be recalled that the factual context in which these phrases were being used in Kennedy Cleaning was Mrs Petkoska’s stroke brought on by a lesion.

107    Gaudron J (citing amongst other cases, Hume Steel at 252-253) said at [50]:

Whether physiological change resulting from a progressive disease that is not employment related is or is not an injury for the purposes of workers’ compensation legislation depends on the terms of the legislation in question. There is no doubt that, as a matter of ordinary language, the word “injury” is apt to include sudden physiological change resulting from a disease, as in the case of stroke resulting from progressive heart disease or the rupture of an aneurysm as a result of the progressive weakening of an arterial wall.

108    The plurality (McHugh, Gummow and Hayne JJ) took as uncontroversial “sudden physiological change” as one descriptor for the statutory concept of ‘injury’: see Kennedy Cleaning at [68]. They also referred to the judgment of Finn and Merkel JJ in the Full Court decision under appeal where their Honours said that it was not a pre-requisite to the finding of an injury of an internal nature that a physical event or incident involve a rupture or breaking and occlusion causing a disturbance of the normal physiological state will suffice (referring to Hume Steel at 252-253).

109    Adjectives such as “sudden” and “identifiable” help emphasise the distinction made in both Zickar (by the majority) and Kennedy Cleaning between a disease and some of its consequences or effects; they also reflect the historical fact that injuries often occurred in the workplace in the context of an “accident”.

110    We do not, however, see in the statutory concept of injury in the SRC Act any necessity for the attribute of “suddenness”. The passage from the judgment of Latham CJ in Hume Steel 75 CLR at 252-253 has force, not as a substitute definition, but as an informing guide to the content of meaning of the word, including its relationship to ordinary meaning or common understanding. An injury involves “physiological change or disturbance of the normal physiological state” as an alteration to a person’s physical or mental state, and one that can be said to be an alteration from the functioning of a healthy body or mind. It is antithetical to the use of a word like “injury” in this legal context to load it up with qualifications having the effect of narrowing or constraining the circumstances to which it might be applied, unless those qualifications or constraints are drawn from the text or structure of the statute. Any relevant constraints on meaning are to be found expressed by Parliament in the legislation. The degree to which an injury may reflect an identifiable event will depend on the circumstances. The precise identification of the breaking of an arterial wall or lining or a rupture of an aneurism may make suddenness of an identifiable event useful as the discrimen to distinguish an identifiable physiological change from the natural progress of the underlying (and in one sense, closely related) disease.

111    Where, however, as here, there is no diagnosed disease whose progression can be assessed as inevitable or not, the general conceptions spoken of by Latham CJ in Hume Steel are of particular relevance: the distinction according to ordinary language between getting hurt and becoming sick; something that involves “a harmful effect on the body”; “a disturbance of the normal physiological state which may produce physical incapacity”. See also McIntosh at 257, 263 and 264.

112    In circumstances where one has physiological change, and the enquiry is whether there is the mere progression of a disease, or an event or identifiable change that can be seen as a separate injury, there will be room for debate and factual assessment. Suddenness may assist in the demarcation of the injury from the progression of the disease. However, if one has, as here, physiological changes without apparent aetiology or any real diagnostic explanation then “suddenness” may have less relevance. To elevate it to a pre-requisite to the finding of injury may be to introduce an element of fortuity or incident or accident into the concept of injury that was discussed in cases such as Ockenden as relevant to “injury by accident”, thus impermissibly taking the construction and application of these provisions back to a time where an additional element was present.

113    This approach is consistent with the High Court’s decision in Canute v Comcare [2006] HCA 47; 226 CLR 535. At [10] the Court said:

At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.

(Emphasis added.)

114    As the High Court there observed, the presence in the SRC Act of a distinction between mental and physical injuries is significant. There may, or may not, be a ‘suddenness’ attached to mental injury. There may or may not be a clear diagnosis. There must, for it to be an injury within s 4, be an alteration or disturbance to the functioning of a normal and healthy mind. The focus of the statutory concept is on the effects of events, incidents or ailments on the worker’s body and mind.

115    Contrary to the respondent’s submissions, this approach does not deprive the concept of disease of utility in the legislative scheme. As Gleeson CJ and Kirby J pointed out in Kennedy Cleaning at [40]:

The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense. There is no reason to read the word “injury” down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.

116    Again, contrary to the respondent’s submissions, there is nothing in this approach which is inconsistent with Burch. As we have said at [112] above, distinguishing between injury and mere progression of disease will inevitably leave room for factual assessment and debate on a case by case basis.

117    The determination whether a person has suffered an injury for the purposes of s 4 is not the product of the application of a formula. As we have observed, the concept of injury and its difference from disease is attended with the common understanding so clearly expressed by Latham CJ in Hume Steel 75 CLR at 252-253. Freed from the previous statutory constraint of an association with “accident”, and capable of comprehending physiological changes related to a disease (although not as part of its natural progression), the determination of injury will be factually intensive.

118    The meaning of the word “injury” in s 4(1) comes in part from the statutory legal context of, and what is revealed by, cases such as Hume Steel, McIntosh, Zickar and Kennedy Cleaning. The phrases used in those cases are not substitute definitions, but are exemplifications of meaning. Their utility and relevance will often be influenced or dictated by the precise context. For instance, suddenness is of particular relevance when distinguishing between the natural progression of a disease and an event or incident that is an injury. Also, there is a degree of ordinary meaning or common understanding involved, as was recognised by Latham CJ in Hume Steel: the difference between getting hurt and becoming sick. Medical evidence or opinion will, of course, be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.

119    With that context and those comments on the construction of the word “injury” in s 4(1), it is convenient to turn to the Tribunal’s decision. We do so, not to ignore the primary judge’s reasons (being the focus of the appeal), but to make more explicable why we consider his Honour, with respect, erred in not ascertaining error.

120    Once we have dealt with the decision of the Tribunal and the reasons of the primary judge, we will turn to the procedural and other questions about s 44 of the AAT Act and the utilisation of s 39B of the Judiciary Act and the AD(JR) Act. This latter exercise will be undertaken by reference to and assuming familiarity with the Court’s reasons in Haritos. Finally, we will turn to a detailed explanation of the legal errors in the Tribunal’s decision, and in the approach of the primary judge.

The Tribunal’s decision

121    Before the Tribunal, the appellant did not rely upon the definition of “disease” under the SRC Act. Rather, he contended what he suffered was a result of the vaccinations and that it was an injury, and an injury which arose out of or in the course of his employment.

122    As we have already said, the Tribunal accepted the appellant as an honest witness. It noted at several points in its reasons the opinion of those medical practitioners who had examined the appellant that he was genuinely reporting physiological effects he has experienced. At [28] of its reasons, in recounting the report of an ear, nose and throat surgeon, the Tribunal quoted the following extract from the surgeon’s report:

I have thoroughly reviewed all the information available about Mr May.

Although he would appear genuinely handicapped, I cannot find any evidence of any vestibular or central nervous system abnormality and, indeed, the whole matter is very puzzling.

123    At [34]-[35] of its reasons, the Tribunal referred to the evidence of Dr Loblay, Director of the Allergy Unit at the Royal Prince Alfred Hospital in Sydney. The Tribunal subsequently indicated in its reasons that it placed considerable weight on Dr Loblay’s evidence. At [34], the Tribunal recorded the following aspect of Dr Loblay’s evidence:

….Dr Loblay said he accepts that Mr May is not malingering and is significantly disabled by his condition. He also accepts that based on Mr May’s history, there is a temporal relationship between his vaccinations and symptoms. However, Mr May’s history is not characteristic of an immune reaction to vaccinations. If a person has an immune response to something, there is always evidence of inflammation and Dr Loblay was not satisfied of this in Mr May’s case.

Dr Loblay acknowledged that he has not been able to find an alternative explanation for Mr May’s condition. In Mr May’s case, there is no biological mechanism consistent with a vaccine generating an immune response. However, Dr Loblay said it is not uncommon for a person to have symptoms without there being an explanation for the symptoms and without there being a diagnosable disease. He described Mr May’s condition as an “illness”, being a subjective description of his symptoms. In answer to a question from the Tribunal, Dr Loblay said that in the absence of damage to the vestibular system, the vertigo experienced by Mr May cannot be linked to an immunological reaction.

124    We note the focus in this part of the Tribunal’s reasons on a search for a connection, through the medical evidence, between the vaccinations the appellant was given and the physiological effects he reported. We return to this issue below, for in the present case it is indicative of error.

125    The Tribunal accepted that the appellant was genuinely reporting physiological effects he was suffering, was not malingering, and did in fact experience vertigo and the other effects about which he gave evidence. The respondent made no submissions to the contrary to the primary judge, nor to this Court. Rather, it submitted (as we set out below) that the genuine reports by the appellant were insufficient to establish an “injury” within the meaning of s 14 of the SRC Act, and the Tribunal was correct to so find.

126    The Tribunal made a clear finding that the appellant suffered from vertigo. It also made clear findings about the effect of that condition on the appellant at [48] of its reasons:

There appears to be no dispute that Mr May is significantly disabled by his condition. This was confirmed by Dr Loblay in giving evidence at the hearing, and the Tribunal notes a Centrelink ‘Job Capacity Assessment Report’ dated 28 October 2011 provided by Mr May which indicates that he is qualified for a disability support pension. That report states that the medical condition from which Mr May suffers is vertigo. The evidence before us indicates that it is this condition that Mr May currently finds most disabling.

127    Revealingly, in relation to the errors we identify, the Tribunal then continued:

Yet, in the Tribunal’s view, there is no medical evidence to establish a connection between Mr May’s vertigo and the vaccinations he received while in the RAAF.

(Emphasis added.)

128    The Tribunal then addressed what it saw as the required causal connection for the purposes of the statutory concept of “injury”, and injury simpliciter at [49] and [51], referring to the applicant’s express reliance before the Tribunal on that part of the reasons for judgment of Gleeson CJ and Kirby J in Kennedy Cleaning, to which we have referred at [106] above:

It is the causal connection between the vaccinations Mr May received and the reaction Mr May claims to have suffered following the vaccinations which is the critical issue in this case. Mr May does not contend that he suffered a ‘disease’. If, as he contends, he suffered an injury other than a disease, the Tribunal needs to be satisfied that this injury arose out of or in the course of his employment. For liability to be established under s 14 of the SRC Act, the Tribunal must also be satisfied that the injury resulted in incapacity for work or impairment.

…

However, even to establish an injury simpliciter requires, as the High Court stated in its decision in Kennedy Cleaning Services, that there has been “some sudden or identifiable physiological change”. The question in Mr May’s case is whether there is sufficient evidence to establish this. The Tribunal notes that ‘physiological’ is defined in the Macquarie Dictionary (Revised 3rd edition) as meaning “consistent with the normal functioning of an organism” and ‘physiology’ as “the science dealing with the functioning of living organisms of their parts”.

129    Within the approach it understood to emerge from Kennedy Cleaning, the Tribunal saw two questions as arising. It decided that both should be answered unfavourably to the appellant. In a critical passage in its reasons, the Tribunal stated at [52]:

… First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers (sic) to both questions is ‘No’.

130    As we discuss in more detail below, it is clear from this passage that the Tribunal saw existing authorities as dictating a negative answer to each of these questions. Existing authorities and, more importantly, the SRC Act itself, do not dictate the answers the Tribunal gave; and the answers are affected by legal error.

131    The Tribunal’s conclusions on the appellant’s claim to have suffered an “injury simpliciter” were expressed in [61]-[63]:

With regard to what we have loosely described as Mr May’s vertigo, which is the condition which is the principal cause of Mr May’s current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.

The Tribunal does not accept, as Mr May contended, that the fact that there is no plausible alternative explanation is sufficient to establish, on the balance of probabilities, that he suffered a physical injury as a result of the vaccinations. The medical evidence, for example of Dr Halmagyi and Dr Loblay, discounts the possibility of such a connection. Moreover, while the Tribunal accepts that Mr May is significantly disabled by vertigo, we note the medical evidence, for example of Dr Kertesz and Dr Pohl in 2008 and Dr Lowy and Dr Dowe in 2011, indicating a lack of any pathology consistent with Mr May’s symptoms, resulting in their inability to make a diagnosis.

In conclusion, we are not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs that can be attributed to the vaccinations he received while serving in the RAAF. There is insufficient evidence to establish that he suffered such an injury in the course of his employment.

(Emphasis added.)

132    Although the appellant had not claimed that he suffered from a “disease” within s 4 of the SRC Act, the Tribunal also considered whether he did, and whether any identified disease was contributed to in a material degree by his employment. The Tribunal rejected this at [65] as follows:

… First, as noted above, none of the specialists who have examined Mr May have been able to make a definitive diagnosis for this condition [vertigo]. Second, there is no objective evidence to connect the condition with the vaccinations Mr May received and, therefore, we are not satisfied that Mr May’s vertigo was contributed to in a material degree by his employment in the RAAF. Thus, there is no ‘disease’ in respect of which the RAAF is currently liable to pay Mr May compensation.

133    The Tribunal affirmed the decision under review.

The primary judge’s decision

134    On 13 January 2014, the appellant filed a notice of appeal from the Tribunal’s decision to the Federal Court under s 44 of the AAT Act.

135     The appellant was legally represented on that appeal. On 24 February 2014, the appellant filed an amended notice of appeal under s 44 of the AAT Act identifying the following four questions of law:

1.    Whether the Administrative Appeals Tribunal erred in law in its construction of the definition of ‘injury’ and ‘disease’ in section 4 Safety Rehabilitation and Compensation Act 1988 (the Act) as it stood at the relevant time.

2.    Whether the Administrative Appeals Tribunal erred in law in failing to address and determine an argument seriously advanced by the Applicant that the injury arose from the unintended consequences of medical treatment paid for by the Commonwealth in accordance with section 6A(1)(b) [sic: 6A (2)(b)] of the Act.

3.    Whether the Administrative Appeals Tribunal erred in law in failing to consider and determine whether on the facts found by the Tribunal, the Applicant’s injury satisfied the temporal limb of the test for an “injury” in section 4, namely whether the injury arose “in the course of the employment” with the Commonwealth.

4.    Whether the Administrative Appeals Tribunal erred in law in applying a wrong standard of proof in coming to its conclusion that the Applicant did not suffer an injury within the meaning of the Act.

136    In support, the appellant relied upon the following six grounds:

(1)    The Tribunal misconstrued the definition of “injury” in section 4 SRCA in that it wrongly held that the constellation of symptoms suffered by the Applicant was not capable of constituting an “injury” without a definitive diagnosis of the underlying condition.

(2)    The Tribunal misconstrued the definition of “injury” in section 4 SRCA in that it wrongly required “objective” evidence by way of corroboration of any reported symptoms as a necessary prerequisite to finding an injury.

(3)    The Tribunal misconstrued the definition of “injury” in section 4 SRCA in that it wrongly held that a medical history given by the Applicant to doctors was not of itself capable of establishing an injury without the presence of “objective” corroboration.

(4)    The Tribunal misconstrued the definition of “injury” in section 4 SRCA in that it wrongly held that an adverse reaction to a vaccination could not amount to “injury” as opposed to a “disease”. More specifically, the Tribunal wrongly applied the test for an “injury simpliciter” and wrongly held that the adverse reaction could not amount to an injury simpliciter.

(5)    The Tribunal did not consider the argument seriously advanced by the Applicant that there as an “injury” pursuant to section 6A(1)(b) [sic: 6A (2)(b)] of the Act arising from the unintended consequences of the medical treatment paid for by the Commonwealth in the course of the Applicant’s employment with the Commonwealth.

(6)    The Tribunal applied an incorrect standard of proof in determining whether the effects of the vaccination constituted an injury for the purposes of the Act. In particular the Tribunal erred in finding that it was necessary for the medical witness to opine “definitively” whether the Applicant had suffered that adverse reaction.

137    As he had when he was self-represented before the Tribunal, before the primary judge the appellant expressly contended that the proper construction of the term “injury” in s 4 of the SRC Act was a “sudden or ascertainable or dramatic physiological change or disturbance of the normal physiological state” in accordance with the passage from Kennedy Cleaning to which we have referred above. On some occasions in his submissions before the primary judge, this was condensed to “a sudden or identifiable physiological change”. The respondent is correct, however, to submit that it was not until the appeal to this Court that the appellant expressed any contention to the effect that this particular phrase from Kennedy Cleaning should not have been used by the Tribunal as the meaning of “injury” in s 4 of the SRC Act.

138    Before the primary judge, the respondent contended that no “pure” question of law had been identified; that the appeal lacked competence because it was not confined to questions of law in that sense; and that the appeal was in effect an attack on the fact finding of the Tribunal on what was then an agreed approach between the parties to the concept of “injury” in s 14 of the SRC Act.

139    The primary judge noted (at [57] of his reasons) there was “a good deal of force in the challenge made by the respondent that these asserted questions do not state any question of law which arises for consideration in the present case”. The primary judge nonetheless found it was not necessary to determine the appeal by reference to the challenge to competence, and dismissed the appeal on the substance of the grounds argued by the appellant.

140    His Honour identified the substance of ground 1 by reference to the appellant’s written submission that the Tribunal had erred by “adding to the statutory test for ‘injury’ the requirement for a definitive diagnosis”. His Honour found (at [60]-[61]) that the Tribunal:

… was not distracted or diverted by any mistaken view that it needed to identify a ‘definitive diagnosis’. … The AAT did not add an additional test; it found as a fact that Mr May had not established that he had suffered an injury.

141    On grounds 2 and 3, his Honour concluded (at [63]) that they wrongly stated the effect of the Tribunal’s analysis of the facts, and in any event the findings challenged were all factual findings. Grounds 4, 5 and 6 were dealt with in a similar fashion: in each case, the primary judge determined that the Tribunal had relevantly made findings of fact which could not be impugned on the grounds relied upon by the appellants.

142    Dealing with oral arguments, the primary judge found the appellant’s case was put more broadly on the s 44 appeal than it had been before the Tribunal. Whereas the appellant’s case before the Tribunal was that it should be accepted, absent any other plausible explanation, that his condition was the result of the vaccinations, the primary judge described the submission on appeal in the following terms at [69]-[70]:

… that the AAT should have gone beyond the parameters of the case advanced by Mr May and examined for itself the proposition that his reported symptoms were sufficient evidence of an injury regardless of any suggested connection with vaccinations.

As I understood the argument, it was that Mr May’s own evidence should have been accepted by the AAT as sufficient evidence of an injury (a sudden or identifiable physiological change) of a physical or mental nature occurring during his employment, regardless of its cause.

143    The primary judge said at [72] that the Tribunal should not be criticised for dealing with “the case presented to it, rather than one which was not. No error of law has been identified in that respect.” In any event, his Honour held the Tribunal had in substance examined the matter on the broader basis for which the appellant contended on appeal. In the primary judge’s view (at [73]), it was apparent “the AAT felt unable to accept that the reported symptoms represented an injury simpliciter in their own right. … it had not overlooked the possibility of a broader case; it had effectively rejected it.” Again, the primary judge determined the findings supporting those conclusions were all findings of fact and did not incorporate or involve legal error. Accordingly, his Honour dismissed the appeal under s 44.

The appeal from the primary judge’s orders and decision

Amended notice of appeal

144    On 16 June 2014, the appellant (once again, not legally represented) lodged a notice of appeal to this Court. That document identified six grounds of appeal, most of which continued to focus on the Tribunal’s approach to what could constitute an injury for the purposes of s 4 of the SRC Act.

145    On 15 October 2014, the appellant, now represented by new counsel, filed an amended notice of appeal pursuant to leave granted on 13 October 2014. The amended notice of appeal, taking into account a small amendment to ground 8 made during the hearing of the appeal and for which leave was granted (and which we reproduce with underlining below), abandoned the six grounds previously relied on and reformulated them into these grounds of appeal, (grounds 7, 8 and 9):

7.    The primary Judge erred by failing to find that the Tribunal misunderstood its statutory task and fell into error of a jurisdictional kind capable of corresponding to the court’s exercise of jurisdiction under s 44 of the AAT Act, by relying on the remarks of the High Court in Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286 so as inform itself of the meaning and effect of the statutory definition of “injury” in the context of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

8.    The primary judge erred by failing to find that the Tribunal misconstrued the statutory definition of “injury” in the context of the SRC Act and thereby fell into jurisdictional error.

9.    The primary judge erred by failing to find that the Tribunal misdirected itself as to the statutory definition of “injury” in the context of the SRC Act and thereby fell into jurisdictional error.

146    Whether the appellant required leave to rely on the amended notice of appeal, and whether leave ought to be granted, was contested. The respondent submitted the proposed amendment sought to add new questions of law, which was not permissible on an appeal by way of rehearing where the Court’s jurisdiction relied on s 44 of the AAT Act. Alternatively, if a new question of law could be raised, leave was required and should not be granted on the basis that the new point (in ground 7 set out above) had doubtful merit and the appellant had provided no adequate explanation as to why it was not raised before the primary judge.

147    That the amendments were essentially a reformulation can be seen from the text of grounds 1, 2, 3, 4 and 6 that were abandoned and replaced by grounds 7, 8 and 9 above:

1.    The court erred in law by failing to hold that the Tribunal erred on a question of law by failing to hold that the constellation of symptoms suffered by the Applicant is capable, without a definitive diagnosis, of being an injury within s 4 of the SRC Act.

2.    The court erred in law by failing to hold that the Tribunal erred on a question of law by failing to hold that the constellation of symptoms suffered by the Applicant is capable, without ‘objective’ evidence by way of corroboration of any reported symptoms, of being an injury within s 4 of the SRC Act.

3.    The court erred in law by failing to hold that the Tribunal erred on a question of law by failing to hold that the constellation of symptoms as reported by the Applicant is capable, without ‘objective’ evidence by way of corroboration, of being an injury within s 4 of the SRC Act.

4.    The court erred in law by failing to hold that the Tribunal erred on a question of law by failing to hold that a physiological change in the course of the employee’s employment, with no identifiable pathology and no identifiable causal nexus is capable of being an injury within s 4 of the SRC Act.

…

6.    The court erred in law by failing to hold that the Tribunal erred on a question of law by failing to apply the correct standard of proof in determining whether the effects of the vaccination constituted an injury for the purposes of the Act. In particular the Tribunal erred in finding that it was necessary for the medical witness to opine ‘definitively’ whether the Applicant had suffered an adverse reaction.

148    For the reasons more fully set out below, the appellant should have leave to rely upon the amended notice of appeal filed on 15 October 2014.

Notice of contention

149    The respondent filed a notice of contention, designed to raise the objection to competency it put to the primary judge and which the primary judge found he did not need to determine. The respondent contended that the decision of the learned primary judge should be affirmed on the ground that:

The appeal against the decision of the Administrative Appeals Tribunal is not confined to questions of law as required by section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth): Comcare v Etheridge [2006] FCAFC 27 per Branson J especially at [11]-[17], [19], [26] & [29].

Further applications before the Full Court

Application for judicial review under s 39B of the Judiciary Act and the AD(JR) Act

150    In addition to his appeal against the decision of the primary judge, on 18 September 2014 the appellant lodged an application for relief pursuant to s 39B of the Judiciary Act in respect of the Tribunal’s decision. The grounds of the judicial review application reflected the second and third grounds of appeal (grounds 8 and 9) in the amended notice of appeal from the primary judge, to which we have referred in paragraph [145] above.

151    On 15 October 2014, the judicial review application was amended to incorporate a claim for relief pursuant to the AD(JR) Act, including seeking an extension of time for the claim under the AD(JR) Act. The amended judicial review application also particularised the same two grounds of review relied upon in the application under s 39B of the Judiciary Act.

152    Although the respondent did not oppose the extension of time sought by the appellant in relation to his AD(JR) Act application, it contended the appellant was Anshun-estopped from bringing a further application for judicial review (whether under s 39B of the Judiciary Act or under the AD(JR) Act) after the primary judge had made final orders in respect of the s 44 appeal. The respondent also contended the appellant was issue-estopped on the basis that he had expressly conceded the word “injury”, as it appeared under subparagraph (b) of the definition in s 4(1) of the SRC Act, required a sudden or identifiable physiological change, and that concession formed part of the primary judge’s determination. Conversely, if the s 44 appeal were to succeed and no relevant estoppel were found, the respondent contended there would be no utility in the Court also deciding the application for judicial review.

153    The appellant submitted that no Anshun estoppel arose, because the proceedings remained in the nature of judicial review and both the applications concerned whether the decision was affected by legal error going to the Tribunal’s jurisdiction. As such, there was no possibility of inconsistent judgments.

Proposed amended supplementary notice of appeal from a tribunal

154    Pursuant to the Chief Justice’s orders dated 13 October 2014, the appellant also filed a proposed amended supplementary notice of appeal under s 44 of the AAT Act, together with submissions in support of leave to rely on the amended document. The cross references in the proposed amended s 44 notice and the amended notice of appeal from the primary judge indicate they are intended to be read together.

155    The proposed amended s 44 notice identified two questions of law, and three grounds, and gave a set of particulars underneath the grounds. Save for one additional particular, which sought to invoke this Court’s fact finding powers under s 44(7) of the AAT Act, the particulars given in the proposed amended s 44 notice were substantively identical to those in the amended judicial review application

156    Although there are some variations in placement and expression as between the amended notice of appeal from the primary judge, the judicial review application and the proposed amended s 44 notice, in a substantive sense each of these documents seeks to raise the three errors of law we have identified at [19] above.

157    The only real difference between the judicial review application on the one hand and the notice of appeal from the primary judge (read together with the proposed amended s 44 notice) on the other, is that the latter documents seek to have this Court make certain findings of fact in favour of the appellant, rather than having the matter remitted to the Tribunal.

158    In his written submissions filed in accordance with the Chief Justice’s direction, the appellant recognised that he sought to raise new questions of law not raised before the primary judge, at least insofar as the contention about the Tribunal’s use of the passage from the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning is concerned. However, he submitted that leave should be granted to raise the new question of law because, whether considered under s 44 of the AAT Act or in the further judicial review application, the proceeding was one which was in the nature of judicial review. That being the case, and given that the grounds went to the root of the review of the Tribunal’s decision (referring to the High Court’s decision in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 at [30]-[34]), it was expedient and in the interests of justice for leave to be granted (referring to O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319). While the appellant accepted that some issues ought to have been raised before the primary judge, the appellant contended that this Court was the appropriate forum because of the binding nature of the decision of the Full Court in Comcare v Etheridge and Others [2006] FCAFC 27; 149 FCR 522 at [26].

159    The respondent submitted that no leave should be granted, since the present appeal was by way of rehearing. As such, this Court’s task, it contended, was to correct any legal, factual or discretionary errors made by the primary judge. In the respondent’s submission, if the appellant wished to seek leave to raise points on appeal not raised before the primary judge, the appropriate course would be to do so in the present notice of appeal to this Court, not by filing a supplementary s 44 notice of appeal. Like the respondent in the Haritos appeal, the respondent contended that this Court’s appellate jurisdiction was restricted to the questions of law formulated before the primary judge for the purposes of s 44 of the AAT Act. The respondent did not contend there were any issues of fact, or matters of evidence, which arose under the new question of law which should preclude leave being granted on the basis of prejudice to it.

160    In oral submissions for the appellant, there appeared to be some withdrawal from the earlier acknowledgment that new questions of law were now raised. The appellant instead pressed the proposed amended s 44 notice, and the notice of appeal from the primary judge’s decision, on the basis that they sought merely to articulate more clearly the questions of law raised in substance, albeit infelicitously, before the primary judge. We consider that submission has some force.

Summary of this Court’s decision in Haritos

161    In Haritos, for the reasons there set out, the Court at [62] summarised its legal conclusions as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the notice of appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “ may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of the Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522, HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34; 149 FCR 291 and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

On what basis should the Court consider the appellant’s substantive legal contentions?

162    There are three matters to address before turning to why we consider the Tribunal’s decision is affected by errors of law: the ambit of the appeal to this Court from the primary judge’s decision; the relevance of the further judicial review application; and the relevance of the appellant’s amended s 44 notice of appeal.

163    The procedural complexity of this proceeding is due in no small measure to the practical difficulties created by previous decisions of this Court propounding a narrow focus for s 44, emphasising drafting precision in the founding of jurisdiction and by these means separating this Court’s jurisdiction under s 44 of the AAT Act from its other judicial review jurisdiction. The appellant cannot be criticised, given the state of the authorities to date, for protecting his position by filing further judicial review proceedings (involving both the Judiciary Act and AD(JR) Act) in an attempt to ensure the Tribunal’s decision is subject to review by this Court on the real and substantive matters that he seeks to raise.

The ambit of the appeal to this Court from the primary judge’s decision

164    For the reasons more fully set out in Haritos and summarised above, s 44 is not to be narrowly confined: it is an ample judicial review provision engaging the jurisdiction of this Court as a matter of substance and not of drafting form.

165    The principal aspect of the proceeding is the exercise of appellate jurisdiction, under s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of the decision of the primary judge. As we have noted already, the respondent contends this Court’s appellate jurisdiction is constrained, in the sense that on an appeal from a primary judge’s decision on an appeal under s 44 of the AAT Act, the Full Court only has jurisdiction to consider questions of law raised before the primary judge. It follows, the respondent submitted, that if the questions before the primary judge were not correctly characterised in their terms as questions of law (as the respondent contends in this appeal), then no new or different questions can be raised for the first time on appeal.

166    By similar reasoning, the respondent contends that if there was one question of law raised in the notice of appeal before the primary judge, then this Court’s appellate jurisdiction is confined to considering whether the primary judge erred in her or his approach to that one question, and again, no new or different questions can be raised for the first time on appeal.

167    For the reasons we have given in Haritos, subject to the usual discretionary considerations there is no impediment in point of jurisdiction or power to this Court in an exercise of its appellate jurisdiction dealing with a question of law for the purposes of s 44 of the AAT Act which was not raised before a primary judge.

168    Further, and contrary to the respondent’s notice of contention filed in the appeal, in our opinion the amended s 44 notice of appeal before the primary judge disclosed as a matter of substance questions of law sufficient to found this Court's jurisdiction, and indeed raised the matters which have been consistently agitated by the appellant, albeit they have been expressed differently in various documents. Those matters are the ones we identify at [19] above.

169    The proper construction of the term “injury” has always been central to the appellant’s contentions about why the Tribunal’s decision was legally erroneous. Even in his original notice of appeal under s 44 of the AAT Act, the first question of law was framed as:

Whether the Administrative Appeals Tribunal erred in law in its interpretation of the terms “injury” “disease” and “ailment” in section 4 of the Safety Rehabilitation and Compensation Act 1998, in particular:-

1.1    by determining the question of injury by reference to the occurrence of an act or event rather than by the effect of such act or event on the physical state of the Applicant,

1.2    by determining that the suffering of symptoms by the Applicant without other supporting physiological evidence and his evidence as to those symptoms was insufficient to establish injury in its primary sense,

1.3    by determining that the suffering of symptoms by the Applicant without other supporting physiological evidence and his evidence as to those symptoms was insufficient to establish injury in the sense of a disease contributed to in a material degree by the employment, and

1.4    in failing to determine whether there was an injury constituted by an unintended consequence of medical treatment paid for by the Commonwealth.

170    We do not consider that formulation of a question of law, nor the formulations in the amended notice of appeal as it was before the primary judge, to be affected by the kinds of problems identified by Ryan J in Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; 12 AAR 515 at 527-528. For the reasons we outline in more detail below, and also for the reasons we have given in Haritos about the meaning of a “question of law”, a question which asks whether the Tribunal erred in its interpretation of a statutory term by reference to matters the drafter contends were not properly part of that interpretation, raises a question of law. The reasons of Ryan J in Lambroglou should not be understood as entirely precluding the formulation of a question using the introductory words “whether the Tribunal erred in law by…”: rather, Ryan J’s reasons emphasise that use of this formulation does not change the character of what is properly a matter for the Tribunal to determine on the merits. Where a formulation of this kind is used in order to raise the proper construction of a statutory term, the formulation may well be sufficient adequately to invoke s 44 of the AAT Act.

171    In the current proceeding, whether one examines the original s 44 notice of appeal or the amended s 44 notice before the primary judge, the principal matter raised is the proper construction of “injury” in s 4(1) of the SRC Act, with the subsidiary (and necessary) question about the proper construction of the word “disease” in that same provision.

172    It would, on any view, be artificial for the Court to consider the proper construction of the statutory concept of “injury” without considering the role to be played by the descriptions of that term used by members of the High Court in Kennedy Cleaning. In our opinion, all the appellant has done with the formulation of the first ground in this appeal directed at the reasons for judgment of Gleeson CJ and Kirby J in Kennedy Cleaning is to add another particular, or contention, as to why, and how, the Tribunal’s construction of the term “injury” was legally erroneous.

173    This is not a circumstance such as that dealt with by Gummow J in Raptis, where the argument sought to be raised substantively relied on a different factual version of events, or sought different inferences to be drawn from facts before the Tribunal that had not been put to the Tribunal, nor to the other party during the review before the Tribunal.

174    The appellant's argument about the proper construction of injury is located in the statute itself, considered in the context of the history of legislation and judicial decisions to which we have referred. In the Tribunal’s reasoning, and its approach to its fact finding, the Court is able to see the manifestation of the construction error, and the misapplication of the statutory concept of injury, in the way we set out below.

175    As we make clear at [201]-[220] below, the Tribunal in part misunderstood Kennedy Cleaning, and in part used one expression from it as definitional. The word “injury” in the SRC Act is wide enough to encompass the concepts discussed by Latham CJ in Hume Steel and by Murphy J in McIntosh. We consider it appropriate to grant leave to the appellant to raise the Tribunal’s use of the expressions drawn from parts of Kennedy Cleaning as part of his contention about the proper construction of the word “injury” in s 4 of the SRC Act.

176    In our view, despite the fact that both parties proceeded before the primary judge on the basis that there needed to be a “sudden or identifiable physiological change” in the sense this phrase is used in Kennedy Cleaning, the appellant should be permitted to contend that, as a matter of construction, the statutory concept of injury (and what is sometimes referred to as “injury simpliciter”) is not limited by that phrase. The correctness of that proposition is to be derived from Kennedy Cleaning itself. The substantial body of authority to which we refer in Haritos at [63]-[83] is applicable: the “new” contention remains concerned with statutory construction, and there is no prejudice to the respondent in this Court dealing with it. The proper construction of “injury” has always been at the centre of the appellant’s arguments about the Tribunal decision. It is expedient and in the interests of the administration of justice that this Court consider fully whether the Tribunal adopted and applied the correct construction of “injury”.

The judicial review application

177    Given the view we have taken of the nature and scope of s 44 of the AAT Act, nothing of any different nature is added to the appellant’s attack on the Tribunal’s decision by his further judicial review application employing the Judiciary Act and AD(JR) Act. That application is brought in the original jurisdiction of this Court. Although it would usually be heard by a single judge pursuant to s 20(1) of the FCA Act, it can be heard by a Full Court if the Chief Justice so directs pursuant to s 20(1A) of the FCA Act. It was held prior to the enactment of s 20(1A) that s 20(1) of the FCA Act did not preclude the court constituted as a Full Court hearing an AD(JR) Act application where there are appropriate reasons to do so: R v Kearney; Ex parte Attorney-General (Northern Territory) [1984] FCA 261; 3 FCR 534 at 538-9 per Woodward and Neaves JJ, Fisher J agreeing. Section 20(1A) gives the Chief Justice this power expressly, and at the Chief Justice’s direction this Full Court was constituted on that basis after the judicial review application was filed.

178    We consider it is appropriate for the appellant’s judicial review application to be considered by this Court at the same time as it considers the appellant's appeal from the primary judge. No prejudice is suffered by the respondent if that occurs since the legal arguments are the same, and what differs is only the question whether these arguments can be pursued by the appellant under s 44 of the AAT Act. The respondent did not suggest that as a matter of law these arguments were outside the Court's jurisdiction under s 39B of the Judiciary Act or the AD(JR) Act; they clearly are not. Nor did it suggest there was any prejudice to it in the Court considering them on that basis. There is no Anshun estoppel because under the construction of s 44 that we favour, we would set aside the primary judge’s orders.

179    If we are wrong about the nature and scope of s 44, then it is clear that the appellant would succeed on his grounds of review under s 39B of the Judiciary Act or s 5 of the AD(JR) Act, for the reasons we have set out in our consideration of the questions of law under s 44 of the AAT Act. Orders setting aside the Tribunal’s decision, and remitting the matter to the Tribunal, could have been supported on this alternative basis. However, given the view we take about s 44 of the AAT Act, it is unnecessary for us to consider whether to make orders under either the Judiciary Act or the AD(JR) Act favourable to the appellant.

180    Save for the observation at [178] above, there is therefore no need for us to express a concluded view about the respondent’s arguments as to issue estoppel, and Anshun estoppel, developed in its written submissions, indeed it would be inappropriate.

181    If, as we have concluded in both Haritos and this appeal, questions of law under s 44 extend to, but also beyond, jurisdictional error, then in most cases there will be little additional work for an application under s 39B of the Judiciary Act or s 5 of the AD(JR) Act to do, and dismissal of a s 44 appeal may well create issue estoppel, and or alternatively Anshun estoppel, as against a subsequent proceeding by way of further judicial review. Those matters should be left for determination in a proceeding where they must be squarely faced. It is however one of the ironies of claims of abuse of process in this area of the law that in Tuite v Administrative Appeals Tribunal [1993] FCA 71; 40 FCR 483 Davies J propounded the view that applications for judicial review other than under s 44 may be an abuse and did so by reason of the broad width and scope his Honour attributed to s 44 itself. If his Honour had taken a narrow view of s 44 it is very doubtful that a claim of abuse of process could have arisen by an applicant resorting to s 39B of the Judiciary Act or to the AD(JR) Act.

The proposed amended s 44 notice

182    The third procedural issue is the appellant's reliance on the proposed amended s 44 notice of appeal, rather than simply relying on his amended notice of appeal from the decision of the primary judge. Given the view we take about this Court’s appellate jurisdiction, any amendments to the underlying s 44 notice of appeal in the form it took before the primary judge are unnecessary, though if necessary could be made: Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 182; 49 FCR 409 at 411, 416-417 and 428.

The construction of injury in s 4 of the SRC Act is a question of law

183    The respondent submitted that the word “injury” was used in its ordinary English sense in (b) of the definition in s 4(1) of the SRC Act or in a way which renders the Tribunal’s decision about its meaning a question of fact.

184    Statutory provisions are increasingly complex, subject to multiple, often reactive, amendments reflecting conscious legislative choices to modify statutory language to address particular issues. Not only the language used, but also the level of qualification, exception and exemption attached to many provisions, together with inclination towards statutory definitions means it is frequently difficult to characterise terms used in a statute as used in an “ordinary” way, or according to “common understanding”. Constructional choices are often involved, and that results in a question of law.

185    Valuable as ordinary and natural meaning is as a foundation of statutory interpretation (Jones O, Bennion on Statutory Interpretation (6th ed, Lexis Nexis UK, 2013) at s 363, p 1058) too ready or simple a reliance on an approach based on “ordinary” or “natural” meaning may run foul of the problem identified by Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391:

[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural.

186    What is and is not an “injury” for the purposes of s 4(1) of the SRC Act involves a statutory concept. It is apparent from the large number of authorities in State and federal jurisdictions, to some of which we have referred, that what can constitute an injury for the purposes of workers’ compensation regimes may require constructional choices. Within the well-established parameters of text, context and purpose, recognising the existence of constructional choices reflects a recognition that language is plastic and nuanced, leading to a level of legal indeterminacy which Courts must resolve: see Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [50] per French CJ. It is too simplistic to see the word “injury” in s 4(1) of the SRC Act as having merely or only an “ordinary meaning”, whether as an individual word or a statutory concept. It has a statutory meaning, which must be arrived at in accordance with the principles of statutory construction. That meaning involves, however, everyday and familiar concepts. As Latham CJ said in Hume Steel – there is a difference between getting hurt and becoming sick.

187    The High Court has observed, by reference to its own decision in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 396-397, that notions of meaning and construction are interdependent, and in any statutory interpretation exercise the meaning of a word or phrase in a statute will be affected by context, syntax and other words used in the statute: Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at 428 [36].

188    The importance of this observation for circumstances where the Court’s jurisdiction is limited to questions of law was highlighted by Allsop P (as his Honour then was) in OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606, where his Honour observed at 610 [8] that the High Court's decision in Agfa-Gevaert:

... should not be taken as denying the conceptual distinction between the ascertainment of semantic meaning (interpretation) and determining legal effect or legal content (construction) of a legal text. The processes can be seen to be distinct in terms of legal theory and function. What the High Court stated was that their inter-relationship in the process of ascription of meaning to a legal text meant that for the purpose, at least, of distinguishing between questions of law and fact, the distinction was illusory."

189    These comments made by the High Court in Agfa-Gevaert at 396-397 (the passage being approved by Gleeson CJ and Gaudron, Gummow and Hayne JJ in Aktiebolaget Hässle at 428 [36]) in discussing the distinction between meaning and construction were drawn from what was said by Isaacs J in Life Insurance Company of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 at 78 and by Kitto J (at first instance) in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 at 512. These matters had formed the foundation of what this Court (Neaves, French and Cooper JJ) said in Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 in the second of the five well-known propositions at 287:

The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

190    In the light of Agfa-Gevaert and Aktiebolaget Hässle that second proposition in Pozzolanic should be seen to suffer from some difficulty: see generally OV 79 NSWLR at 609-610 [2]-[18].

191    We also respectfully agree with the observations of Beazley ACJ in Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; 84 NSWLR 697 at [62]:

The High Court's obiter remarks in Agfa-Gevaert and their approval in Aktiebolaget Hassle v Alphapharm indicate that it cannot be said that the ordinary meaning of a word or its non-technical meaning is a question of fact, at least as a stand alone proposition. Rather, when the Court is engaged in a task of statutory construction, it is required to have regard to the language used by Parliament and the context in which it is used. That task involves a question of law.

192    We do not understand anything said by the High Court in its decision in the appeal from the NSW Court of Appeal (NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; 250 CLR 490) to have cast any doubt on Beazley ACJ’s observations.

193    Accordingly, we do not accept the respondent’s submission that the word “injury” is used in an ordinary English sense in paragraph (b) of the definition in s 4(1) of the SRC Act or otherwise in a way which renders the Tribunal’s decision about its meaning a question of fact. The correct construction of “injury” in s 4(1) of the SRC Act is, as we have said, a question of law.

194    The subsequent (but inextricably related) question of whether, on the facts as found by the Tribunal in the present case, it was open to the Tribunal to decide that the appellant had not suffered an “injury” is also a question of law. That is, adopting the correct construction of the statutory concept of injury in s 4(1) of the SRC Act, whether the material before the Tribunal reasonably admitted of different conclusions is a question of law. In contrast, assuming a positive answer to this, the next question – which conclusion should be drawn – is a question of fact: Bell v Commissioner of Taxation [2013] FCAFC 32 at [18] (Jessup, Jagot and Robertson JJ), referring to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; 82 ALR 175 at 182. Thus, where the Tribunal’s reasoning discloses no error of construction and the facts as found are capable of “falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact not law”: Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; 59 FCR 6 at 16 (Hill J); and see Haritos at [194]-[197].

195    The authorities which are collected by the respondent in its submissions (Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 7 per Mason J; Pozzolanic (1993) 43 FCR 280 at 287-8 (Neaves, French and Cooper JJ); Sharp Corporation at 11-12 (Davies and Beazley JJ), 15-16 (Hill J); Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 at 576-7 [53] (Lindgren J); Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450-451 [25]-[26] (Gleeson CJ, Gummow and Callinan JJ), 477-8 [108] (Hayne J); Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522 at 529 [26] (Branson J); Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153; 207 FCR 247 at 256 [39] (Lander and Foster JJ); and Sea Shepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; 212 FCR 252 at 259-260 [30]-[31] (Gordon J)), many of which we have specifically addressed in Haritos, do not support the respondent’s contentions.

196    We acknowledge the respondent’s submission may be seen as supported by Branson J's conclusion in Etheridge at 529 ([26]), read with what her Honour said at 531 [33]-[35]:

It is not suggested that the word ‘injury’ is used in s 4(1) in other than its ordinary or common meaning. Consequently, and notwithstanding the potential relevance of expert evidence (for example, expert evidence reflecting current medical opinion as to the aetiology of mesothelioma), the question of whether facts as found fall within the meaning of the word ‘injury’ as defined is a question of fact rather than a question of law (Hope v Bathurst City Council (1980) 144 CLR 1 esp per Mason J at 7).

197     With the greatest of respect to her Honour, if the first proposition in this passage was intended to suggest the construction of the word injury in s 4 is not a question of law, we respectfully disagree.

198    Our approach is, we consider, consistent with the approach taken by Lindgren J in Bridgestone [2001] FCA 954; 109 FCR 564 at 576-7, [54] (Mansfield J agreeing at 589 [86]). Robertson J recognised the tension between what we consider to be the correct approach (referring to Bridgestone) and her Honour’s approach in Etheridge in O’Kane v Comcare [2014] FCA 341; 221 FCR 482 at 499 [93].

199    That the content of meaning of the word “injury” in s 4 is derived not only from ordinary language or common understanding, but also historical and legal context as we have discussed, makes plain the legal character of the task of ascription of meaning to it.

200    We move then to examine the approach taken by the Tribunal to the construction of “injury” in s 4 of the SRC Act, and whether in making its factual findings that what happened to the appellant was not an “injury”, its review function miscarried.

The errors in the Tribunal’s approach: misconstruction and misapplication

201    At [43] of its reasons, the Tribunal summarised the submissions made on behalf of the appellant, which relied on Kennedy Cleaning, including a passage from the High Court’s decision:

At the hearing, Mr May contended that as a result of the vaccinations, he suffered an ‘injury’ (rather than a ‘disease’) arising in the course of his employment. He referred to the High Court decision in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning Services) (for example, Gleeson CJ and Kirby J at [35]), where the Court referred to the long line of decisions in which it has been recognised that an injury involves “a sudden or identifiable physiological change”. Mr May contended that he had provided evidence of clinical features occurring within 30 to 60 minutes of the vaccination on 10 November 1998. As was recognised by the High Court (as above at [39]):

If this evidence amounts, relevantly, to something that 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. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment.

202    Earlier at [5]-[7] of its reasons, in tracing what it saw as the issues on the review before it, the Tribunal had said:

Thus, where a person has suffered an injury other than a disease (often referred to as an injury simpliciter), the causal connection of which the Tribunal must be satisfied is that the injury arose out of or in the course of their employment. Where a person has suffered from a disease, the Tribunal must be satisfied that the disease, or any aggravation of the disease, was contributed to in a material degree by the person’s employment.

In Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, the High Court said that a long line of decisions in Australia had recognised that for there to be ‘an injury’ requires that it be established that there has been “a sudden or identifiable physiological change”: Gleeson CJ and Kirby J at [35]. If an injury, in what was described as the “primary sense of that word”, happens in the course of the person’s employment, “it is ordinarily compensable without proof of a specific causal connection with the worker’s employment”: at [39].

Mr May contends that he suffered an injury simpliciter and not a disease and that there is sufficient evidence to establish a causal link between his condition and the vaccinations he received while in the RAAF. The MRCC contends that whether Mr May’s condition is treated as an injury simpliciter or a disease, there is an insufficient causal link, there being no clear diagnosis for his condition and it having not been established that his symptoms are connected with the vaccinations he received. It therefore denies liability to pay compensation to Mr May under s 14(1) of the SRC Act.

203    Reading the Tribunal’s reasons as a whole these paragraphs must be taken as reflective of the principles applied in resolving the matter by the Tribunal.

204    The respondent submitted in substance that the Tribunal took an orthodox and correct approach to the meaning of “injury” in the SRC Act, and that it was a “necessary precondition” for the appellant to demonstrate that he underwent a “sudden or identifiable physiological change” to show he had suffered an “injury”. Any other approach would involve a new test of injury, and one which is not consistent with the decisions in Zickar, Kennedy Cleaning and Burch. It would also set too low a threshold for the purposes of the SRC Act.

205    With respect, the Tribunal’s expression of what Gleeson CJ and Kirby J said in Kennedy Cleaning at [35] in [6] of its reasons was wrong. Their Honours (the Chief Justice and Kirby J) did not say that a long line of decisions recognised that for there to be an injury requires that a “sudden or identifiable physiological change” be established. They said the following at [34]-[35]:

There are differences in the approaches adopted in the majority comprised of the joint reasons of Toohey, McHugh and Gummow JJ, and the reasons of Kirby J in Zickar. But less important than the differences are the points in common which all members of the majority recognised and emphasised.

These included the reminder that a long line of decisions in Australia had recognised that an "injury", being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers' compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of “injury” in s 6(1) of the Act of “mental injury” makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.

206    We do not read their Honours’ use of the word “being” on the second line of [35] as definitional. They used other phrases in their reasons and they referred with approval to Hume Steel.

207    Further, to the extent that the Tribunal and the submissions of the respondent sought to substitute for the statutory concept of “injury” in s 4 the words “sudden or identifiable physiological change” (a phrase not included in the statute) and by implication necessarily to exclude the vertigo suffered by the appellant, as well as the other physiological changes he reported, such a course was erroneous.

208    Paragraph 52 of the Tribunal’s reasons was the commencement in detail of the Tribunal’s reasoning process on the facts and material as found by it. At [52] (part of which also appears at [129]) the Tribunal said:

We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May’s case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers (sic) to both questions is ‘No’.

209    A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of “injury” in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls “symptoms” and the need for a “diagnosis”. As part of the statutory question, one asks 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. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.

210    Secondly, even if there was – as the Tribunal put it – a need for “physiological evidence, pathology or a known diagnosis”, the Tribunal itself had made a finding (at [48] of its reasons) that the condition the appellant found “the most disabling” was vertigo. There is no other way to read [48] of the Tribunal’s reasons than that it accepted, as a matter of fact on the evidence and material before it, that the appellant suffered from vertigo at the time of its review. The Tribunal repeated the substance of that finding at [65] of its reasons where it stated that the appellant’s other conditions (gastroenteritis and upper respiratory tract infections)

…appear to have been transient and the current cause of his incapacity appears to be what we have described as vertigo, an illness the symptoms of which appear to be ongoing.

211    Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as “symptoms”) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.

212    Thirdly, neither the terms of s 4 of the SRC Act, nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process at [52] was to proceed on the basis that a claimant’s account could never suffice to establish an injury.

213    The error in seeing objective medical evidence as necessary before an “injury” within s 4(1) could be found was perpetuated by the Tribunal’s statement at [59] of its reasons that:

The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change…However there is no objective evidence of Mr May’s swollen tongue or dizziness or pathology to support his account of his symptoms.

214    This passage does not indicate that the Tribunal did not believe the appellant. Reading its decision as a whole, it is clear it accepted him as an honest witness, and an accurate historian of the changes he experienced in his own physiological functions. Nor do these passages suggest, contrary to the respondent’s submissions, simply a weighing of evidence by the Tribunal. The Tribunal is, we consider, instructing itself that it cannot find an “injury” for the purposes of s 4 without corroborating understood pathology or medical opinion.

215    Again at [61], the same erroneous approach is taken, where the Tribunal states:

With regard to what we have loosely described as Mr May’s vertigo, which is the condition which is the principal cause of Mr May’s current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.

216    This focus on the lack of pathology, aetiology or diagnosis which the Tribunal emphasises again at [62] and [66] of its reasons, illustrates the Tribunal’s misconception that it needed to be satisfied of an appropriate clinical diagnosis of the physiological disturbances the appellant reported before it could find he had suffered an “injury” within s 4(1).

217    This focus on the need for an appropriate clinical diagnosis reflects a tendency to elevate a requirement for one kind of proof (medical opinion) over reasonably founded lay common-sense inference that is not scientifically derived, but drawn from the plain sequence of events. In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Rich ACJ said the following at 563-564:

In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore's labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone: cf. Partridge Jones and John Paton Ltd. v. James. I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. The conclusion of the special magistrate may prove to be in advance of its time, but, as matters stand, I prefer that of the Full Court.

218    At 569 in the same case Dixon J said:

First, I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.

219    These statements have been often applied: in such cases as Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; 10 ALR 303 at 307, 310-311, EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 241; Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at 61-62 [69]; Tabet v Gett [2010] HCA 12; 240 CLR 537 at 588 [149]; Australian Iron and Steel Ltd v Connell [1959] HCA 54; 102 CLR 522 at 535-536 [6]; Allianz Australia Ltd v Sim [2012] NSWCA 68 at [48]; Evans v Queanbeyan City Council [2011] NSWCA 230; Webb v Repatriation Commission [1988] FCA 127 at [18]; Australian Telecommunications Commission v Barker [1990] FCA 489; 12 AAR 490 at 493-494; Major Engineering Pty Ltd v Timelink Pacific Pty Ltd (No 2) [2009] VSCA 83 at [19]. It is also the point made by Latham CJ in Hume Steel: 75 CLR 242 at 252.

220    Once one appreciates the presence in the reasoning of the Tribunal of the need for objective clinical evidence (in effect a satisfactory medical diagnosis) apart from anything else, one can readily understand the refusal to draw the link from the vaccinations to the condition suffered. The appellant only identified and argued errors going to the analysis of injury arising in the course of employment. Those errors have been demonstrated. Thus, it is not appropriate to comment further on the Tribunal’s refusal to find a causal connection between the vaccinations and the condition, that is arising out of employment. As we discuss below, the matter must be remitted to the Tribunal. On that remitter, the whole question of what the evidence reveals (whether injury, and whether arising out of or in the course of employment) will need to be examined. A correct focus for the examination of all the evidence will be important, not being a focus requiring clinical diagnosis or known pathology as a pre-requisite to the finding of injury, or whether it arose out of or in the course of employment, as opposed to another focus (more in accordance with Forst) as to whether the medical evidence denied any inference that might be thrown up by the sequence of events.

Further error: the Tribunal looked unnecessarily for more than a temporal link

221    We have set out at [202] above the Tribunal’s statement of the issues at [5]-[7] of its reasons.

222    It can be seen from those paragraphs that when dealing with the appellant’s claim for injury arising in the course of employment the Tribunal’s reasons apprehended the need for a causal link to employment of some kind (beyond the temporal in “in the course of”). In [7] of its reasons it is apparent that the Tribunal was searching for a causal link between (at least, read in conjunction with its later findings) the appellant’s vertigo, and the vaccinations he was given after joining the RAAF.

223    That this was the task it considered it needed to undertake is made clear by the Tribunal’s statement at the start of the “Discussion” part of its reasons (at [48]-[49]) that:

…Yet, in the Tribunal’s view, there is no medical evidence to establish a connection between Mr May’s vertigo and the vaccinations he received while in the RAAF.

It is the causal connection between the vaccinations Mr May received and the reaction Mr May claims to have suffered following the vaccinations which is the critical issue in this case...

224    At this point in its reasoning process, it is apparent that the Tribunal’s reasoning is miscarrying. The authorities place beyond doubt the proposition that for injury to arise in the course of a person’s employment (as distinct from arising out of employment) there is no requirement for a causal link between the employment and the injury – beyond the temporal one: Kavanagh 103 CLR at 555-557, 558-560, and 569-572. There was no debate that the appellant was required to undergo the vaccinations as part of his employment with the RAAF, that he underwent them during his employment with the RAAF, and that the physical effects he described in his evidence (which was not questioned) arose during performance of his duties as a member of the RAAF, and indeed some of them within 30 minutes of the vaccinations.

225    For example, at [19]-[21] the Tribunal records the extensive clinical evidence about the way the appellant presented to various air force doctors (which the Tribunal appears to accept as having occurred), including the Chief Medical Officer, and in these paragraphs the Tribunal records how the appellant experienced the physical effects of which he complained while performing flying and other duties:

On 25 February 1999, an unidentified doctor found Mr May was fit for a combat survival course…. There are further notes on his condition which had significantly improved by mid-October 1999. On 8 November 1999, Mr May was recorded as fit to return to full flying duties. On 7 December 1999, Mr May is recorded as having experienced sinus pain on descending from 12,000 feet to 2,000 feet in four seconds, which continued for some days, and following which he had a sore throat and then headaches, diarrhoea, nausea and abdominal discomfort. There follow other similar records.

226    For the purpose of deciding whether the appellant had suffered an injury in the course of his employment the Tribunal did not need to be satisfied of any more than that he suffered an injury during the “protected period of work hours”, without any further contribution from the appellant’s employment: see Kennedy Cleaning at [28] per Gleeson CJ and Kirby J.

227    The Tribunal adopted an approach which looked for some kind of explanation from, or causal connection to, the appellant’s employment to decide whether he had suffered an injury in the course of employment. At [59], and in the part of its reasons headed “Did Mr May suffer an injury simpliciter…”, it stated:

The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change. Similarly, objective evidence of diarrhoea and upper respiratory infections would be evidence of physiological change, albeit that these conditions would ordinarily be considered ‘ailments’ in the context of the SRC Act. However, there is no objective evidence of Mr May’s swollen tongue or dizziness, or pathology to support his account of his symptoms. The only contemporary evidence is his description of a swollen tongue and dizziness to the doctors who subsequently examined him and recorded his description in their clinical notes. The Tribunal accepts that there is objective evidence of Mr May suffering from diarrhoea and upper respiratory infections. Diagnoses were made in respect of these ailments which were treated and subsequently resolved. Nevertheless, even if we were to accept, which we do not, that these ailments should be treated as the product of an injury simpliciter, there appears to be no objective evidence connecting these conditions with the vaccinations. More particularly, as is discussed below, there is insufficient evidence to establish that the ailments were contributed to in a material way by Mr May’s employment.

(Emphasis added.)

228    This passage is affected by the other errors of law we have discussed above. However, in the emphasised passage the Tribunal also erroneously looks for (as a requirement) contribution from the appellant’s employment.

Error by the primary judge

229    At [48] of his reasons, the learned primary judge described one of two elements in the AAT’s reasoning which he considered fatal to the appellant’s case.

First, the AAT was unable to find, to its own satisfaction, that Mr May in fact suffered from an injury within the meaning of s 14 of the SRC Act. His reported symptoms did not establish that fact to the satisfaction of the AAT.

230    With respect to the primary judge, for the reasons we have set out above, the Tribunal did make a finding about a condition the appellant suffered from: namely, vertigo. What it was required to do, but did not do, was to determine whether there was an injury, in the overall sense we have explained at [201]-[220] above. This aspect of the primary judge’s reasoning fails to identify the error in the Tribunal’s approach.

231    It is also not correct, in our respectful opinion, to characterise (as the primary judge did at [53]) what occurred in the Tribunal’s reasoning on the question of injury, as factual conclusions. Rather, the Tribunal proceeded on a misconstruction of “injury” in s 4, then applied that misconstruction to the facts as found by it which led it, erroneously, to decide that the appellant’s own evidence could not be sufficient. That misconstruction also led the Tribunal to impose restrictions and limitations not present in the statutory concept of injury: namely that there must be a clinical diagnosis, and supporting medical evidence. Further, these erroneous approaches also led the Tribunal to look for a causal link of a kind not required by the phrase “in the course of employment”.

232    The primary judge’s conclusions (at [76]) that “there was no legal error, arising from any wrongly decided questions of law or otherwise, which vitiates those findings of fact” cannot, in our respectful opinion, be accepted.

CONCLUSION

233    This was, as the Tribunal observed, a difficult case. It is appropriate in our opinion for another Tribunal, differently constituted, to consider again whether the appellant has suffered an injury within the meaning of s 4 of the SRC Act and whether the injury arose out of or in the course of his employment. It is not appropriate to remit other than the whole dispute for reconsideration. Given the Tribunal’s findings about the appellant’s vertigo, this matter comes close to a case where there may only be one answer. However, we accept that a differently constituted Tribunal, properly instructed about what needs to be established to come within the concept of “injury”, may take a different approach to significant aspects of the evidence, including the appellant’s accounts of what he experienced. Accordingly, we consider it more appropriate for a new Tribunal, rather than this Court under s 44(7) of the AAT Act, to determine the question.

234    Our conclusion on the appeal from the learned primary judge means that no consideration need be given to substantive orders under s 16 of the AD(JR) Act, or s 39B of the Judiciary Act. If we had dismissed the s 44 appeal on substantive grounds, then given the view we take about the overlap between s 44 of the AAT Act and jurisdictional, and non jurisdictional error, it may have been unlikely that the appellant would have succeeded on judicial review, even putting to one side issue and Anshun estoppel. Nevertheless there were costs associated with the further judicial review application that were necessitated by the position taken by the respondent. The application should be dismissed as unnecessary, but the appellant should have his costs of propounding the application.

Orders

235    We would make the following orders:

In the appeal (NSD 485 of 2014):

1.    Leave be granted to the appellant to rely upon the amended notice of appeal filed on 15 October 2014.

2.    The appeal be allowed.

3.    The orders of the Court made on 30 April 2014 be set aside, and in lieu thereof order that:

(a)    the decision of the Administrative Appeals Tribunal dated 14 December 2011 be set aside;

(b)    the matter be remitted to the Tribunal for determination according to law; and

(c)    the respondent pay the appellant’s costs.

4.    The respondent pay the appellant’s costs of and incidental to the appeal.

In the further judicial review application (NSD 945 of 2014):

1.    The time in which the applicant be permitted to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended to 15 October 2014.

2.    The application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) be heard and determined by the Full Court of the Federal Court, together with the applicant’s appeal from the decision of the Court (Buchanan J) dated 30 April 2014.

3.    The said application be dismissed, the first respondent to pay the applicant’s costs thereof.

Associate:

Dated:    29 June 2015