FEDERAL COURT OF AUSTRALIA

Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

RARES J:

1    During the course of argument of this appeal from the decision of the Administrative Appeals Tribunal, the questions of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) narrowed to one, namely whether the Tribunal asked itself and answered the correct question as to whether the applicant, Travis Bailey, had suffered a “disease” or an “injury (other than a disease)” within the meaning of “injury” as defined in s 3 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act). If he had suffered a disease, as defined, then s 10(7) of the Seafarers Act operated, on the Tribunal’s findings, to deny Mr Bailey any right to compensation.

2    I am of opinion that the Tribunal failed to exercise its jurisdiction because it did not ask or answer that question. Instead, the Tribunal merely made an assumption as its own finding of fact rather than making a finding on the contested facts before it. The Tribunal made that assumption because it found that other Tribunals and courts had proceeded on the agreed fact that an adjustment disorder, being the “injury” for which Mr Bailey claimed compensation, was a “disease” within the defined meaning of “injury”. The factual characterisation of the medical diagnosis of Mr Bailey’s “adjustment disorder” was critical to the determination of his claim to compensation. The Tribunal did not analyse, or make findings of fact based on, the evidence before it but instead proceeded on the erroneous basis of the agreed or assumed facts in the decisions and cases to which it referred in a lengthy paragraph of its reasons. That amounted to a failure to exercise its jurisdiction.

Background

3    On 16 February 2017, the Chief Justice exercised his power under s 44(3) of the Administrative Appeals Tribunal Act to have the Full Court hear this appeal. The detailed facts and submissions are set out in the reasons of Reeves and Derrington JJ.

4    The Tribunal dealt with Mr Bailey’s argument that he had suffered an “injury (other than a disease)” rather than a “disease” in seven paragraphs of its reasons. First, it dismissed his reliance on Dr John Chalk’s evidence, which was the only direct evidence before it on the characterisation question. Dr Chalk had said that each of an adjustment disorder and a post-traumatic stress disorder was not a disease but an injury if, as he had opined, “it has arisen as a consequence of an event”. The Tribunal dismissed that evidence, saying that Dr Chalk had based his answer on his State Workcover experience (at [20]).

5    The Tribunal then referred to the definitions of “disease” and “ailment” in s 3 of the Seafarers Act, saying (at [22]):

A mental health condition has been held to be an ailment under the definition in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). (emphasis added)

6    It referred to another Tribunal decision, two cases decided by single judges of this Court and Comcare v Martin (2016) 258 CLR 467 as each having accepted that an adjustment disorder was appropriately described as a disease. However, in each of those decisions, there was no issue whether, for the purposes of the legislation or the proceedings, the disorder was either or both a “disease” or an “injury (other than a disease)”. Thus, in Martin 258 CLR at 473 [13] French CJ, Bell, Gageler, Keane and Nettle JJ recorded that:

There was no dispute before the Tribunal that Ms Martin suffered a disease within the meaning of s 5B(1).

7    Yet, the Tribunal then proceeded, without any reasoning process, to say at [23]:

23.    The definition of ailment in s 3 of the Act is indistinguishable from the definition of ailment in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). I find that the mental condition of the applicant, which [had] been diagnosed as an adjustment disorder, is an “aliment” [sic] and therefore a “disease” for the purposes of s 10(7) of the Act.

8    After making that “finding”, the Tribunal considered whether Mr Bailey had suffered “a sudden psychological [scil: physiological] change” prior to his leaving work. It noted that he had referred to his experiencing a gradual build up due to fatigue, stress and lack of sleep, and that Dr Chalk had described the change in his mental condition as having developed over a relatively brief period of time.

9    The Tribunal found that it was not material whether the onset of the ailment was sudden or gradual. That was, it found, because the definition of “ailment” in s 3 included both ones of sudden onset and of gradual development. It then found that each of Mr Bailey’s psychiatric illnesses in 2011 and 2014 was, first, an “ailment” and a “disease” within the meaning of ss 3 and 10(7) of the Seafarers Act and, secondly, the same condition. Accordingly, the Tribunal reasoned, the 2014 condition the subject of his claim was the same disease which he had “previously suffered” in 2011.

Consideration

10    The Tribunal must give what it considers to be the correct or preferable decision: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. It must also give reasons for its decision under s 43(2) of the Administrative Appeals Tribunal Act and, where, as here, it does so, s 43(2B) required that:

those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

11    Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said in Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 at 250 that the purpose of an analogue of s 43(2B) was:

to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. (emphasis added)

12    Moreover, the purpose of a provision such as s 43(2) is to enable a court judicially reviewing the Tribunal’s reasons for its decision, first, to identify the findings that it made in reaching its conclusion, and, secondly, to infer, in appropriate cases, that the Tribunal did not consider to be material any matter that it did not mention in those reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. As McHugh, Gummow and Hayne JJ said in Yusuf 206 CLR at 346 [69]:

The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24]. (emphasis in original)

13    A purpose of the Parliament in providing for the three classifications in the definition of “injury” in s 3, was to expand the range of injuries for which compensation could be payable by providing for it to include a disease, an injury (other than a disease) and an aggravation of a physical or mental injury (other than a disease). Importantly, the definitions of both “disease” and “injury (other than a disease)” included physical and mental affects, namely, in the former case, by reference to the definition of “ailment”, as meaning “any physical or mental ailment, disorder, defect or morbid condition” and in the latter, by reference to the definition of “injury (other than a disease”) as meaning “a physical or mental injury arising out of, or in the course of, the employee’s employment”.

14    Thus, the fact that the injury complained of affects physiologically a person’s mental condition or state is neutral as to whether the injury falls within one or other or both of the definitions of “disease” and “injury (other than a disease)”. Whether it falls within a particular definition is a question of fact involving, often, expert evidence as to the correct or appropriate classification of the particular injury in all of the circumstances of the seafarer’s case.

15    As six justices held in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, over the years, workers’ compensation legislation has tended to expand some of the range of compensable matters beyond injuries (in the natural and ordinary meaning of “injury”), so as to include diseases as an extension of, rather than an alternative to, what would otherwise be comprehended by the field of work-related physical or mental injuries: see Petkoska 200 CLR at 301-302 [43]-[46] per Gleeson CJ and Kirby J, at 305 [56] per Gaudron J and at 309-310 [70]-[73] per McHugh, Gummow and Hayne JJ.

16    The compendious expression “injury” as defined in the Seafarers Act includes physical and mental states of affairs that may fall within each of the limbs (or subparagraphs) in the definition. A stroke or heart attack may be a manifestation of both a disease and an injury (other than a disease) or they may be one or the other. Because the definition of “ailment” includes a “morbid condition”, I will use the expressions physical state and mental state to describe in a neutral way an injury (in the broad sense of that word in the definition in s 3). A physiological state that a person may have or suffer can be both or, depending on the facts, one or other of a disease or injury (other than a disease) in the sense in which s 3 defines those expressions.

17    As Dr Chalk made clear in his evidence, it can be medically, and may also be legally, correct to describe an adjustment disorder of the kind that Mr Bailey experienced as either or both an injury (other than a disease) and a disease. Usually when a person experiences a broken bone, that will be classified as an injury (other than a disease), but it may be possible for it to fall within the definition of an aggravation of an ailment, if the person has a disease affecting the soundness of his or her bone structure.

18    The Seafarers Act does not prescribe a binary choice into which a seafarer’s claimed injury, being a physical or mental state, necessarily must fall. Rather, the scheme of the Seafarers Act provides that compensation will be payable to a seafarer if his or her mental or physical state falls within a particular statutory provision even if it is excluded from a different provision in that Act. A seafarer can, as Mr Bailey did, rely on alternative statutory paths to seek compensation. In particular, he claimed that his adjustment disorder was an “injury” (as defined).

19    In Petkoska 200 CLR at 308-309 [68]-[70], McHugh, Gummow and Hayne JJ explained that the statutory provisions in question there (the Workers’ Compensation Act 1951 (ACT)) did not create a strict dichotomy between “injury” and “disease”. They said that:

[t]he circumstance that a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a “physical injury” for the purposes of s 7(1).

20    Earlier, they had identified that s 7(1) of the ACT legislation imposed liability on an employer in respect of personal injuries which answered either of two criteria, namely those “arising out of” and “in the course of” the employment, even though the criteria were expressed disjunctively (200 CLR at 307 [63]-[64]). Gleeson CJ and Kirby J reasoned similarly, holding that the statute there did not expressly provide that “injury” and “disease” were alternatives, as it might have done (200 CLR at 301 [41]).

21    French CJ, Kiefel, Nettle and Gordon JJ considered, in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, the structure of the definition of “injury” s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which is analogous to that of the definition of injury in s 3 of the Seafarers Act. They recognised that, again, the definition of “injury” comprising of both “disease” and “injury (other than a disease)” did not necessarily create a dichotomy. They explained why that result followed in their reasons that I refer to below (257 CLR at 482-483 [50]-[56], esp at [54]). Their Honours commenced their reasoning, before identifying two questions. They said (257 CLR at 481 [47]-[49]):

That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease [May (2015) 233 FCR 397 at 425 [110]] (as occurred in Zickar v MGH Plastic Industries Pty Ltd [(1996) 187 CLR 310 at 332] and Kennedy Cleaning [(2000) 200 CLR 286 at 288-289 [5]-[8], 300 [39]]). But it is the physiological change – the nature and incidents of that change – that remains central.

That an “injury” in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning [(2000) 200 CLR 286 at 300 [39]] when their Honours stated:

“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. 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.”

(Emphasis added.)

It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis, … accepted at trial” [Kennedy Cleaning (2000) 200 CLR 286 at 300 [39]] and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.

(italic emphasis in original; bold emphasis added)

22    French CJ, Kiefel, Nettle and Gordon JJ then posed two questions, first, whether the evidence amounted to something “that can be described as an ‘ailment’” and, if so, secondly, whether the person’s employment contributed to a material degree to that state (257 CLR at 482 [50]). They said that if the answer to both questions were “yes”, there was a “disease” within par (a) of the meaning of “injury”. If there were not such a “disease”, the tribunal of fact next had to ask if there were an “injury (other than a disease)” within par (b) (257 CLR at 482 [51]-[53]), but, importantly they then said (at 482-483 [54]-[56]):

It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of “ailment” (and therefore result in a positive answer to the first question) but the second question is answered “No”. But if that is the position on the evidence, there will not be any relevant overlap between a “disease” and an “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act. It reflects the fact that there are marked differences between arising “out of” or “in the course of” (in para (b)) and “contributed to in a material degree” (for para (a)) in the definition of “injury”. And it simply means that the employee was unable to satisfy the different level of employment connection required under para (a) of the definition of “injury” under the Act.

This construction of the definition of “injury” in s 4(1) of the Act does not “rob” [Kennedy Cleaning (2000) 200 CLR 286 at 300 [40]] the “disease” limb of utility. The “disease” limb of the definition remains an additional basis of liability [cf Australia, House of Representatives, Parliamentary Debates (Hansard), 27 April 1988, p 2192].

The proper construction of the Act reflects the importance of the distinction drawn by the Act between “disease” and “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme. (emphasis added)

23    Thus, their Honours recognised that, ordinarily, one can proceed sequentially through the definition of “injury” to ascertain whether the physical or mental state of the worker or seafarer answers all of the elements of each defined term. However, there can be cases where that state can meet parts of the definitions of “disease” and “injury (other than a disease)”, but not all of the elements of one or other definition.

24    However, they also explained that the categories of “disease” and “injury (other than a disease)” within the definition of “injury” were not mutually exclusive, saying (257 CLR at 483 [56]):

The proper construction of the Act reflects the importance of the distinction drawn by the Act between “disease” and “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme. (emphasis added)

25    And, in Prain v Comcare [2017] FCAFC 143 at [72], Kenny, Tracey and Bromberg JJ held that the authorities, including Petkoska 200 CLR 286 and May 257 CLR 486, “show that if the Tribunal did in fact treat ‘disease’ and ‘injury (other than a disease)’ as mutually exclusive categories, it would have been in error”. They held at [76] that, in that case, the Tribunal had examined the evidence before it in order to determine the nature and incidents of the change to Mrs Prain’s mental state, as the authorities required. They cited May 257 CLR at 484 [62] where French CJ, Kiefel, Nettle and Gordon JJ said:

The “nature and incidents of the physiological [or psychiatric] change” [Kennedy Cleaning (2000) 200 CLR 286 at 300 [39]] will determine whether there was an “injury (other than a disease)”. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events [cf Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563, 564. But see also at 569, 570]. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. (emphasis added)

26    Kenny, Tracey and Bromberg JJ held (Prain [2017] FCAFC 143 at [74]) that “whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the psychological change”.

27    Accordingly, the Tribunal of fact first must ask itself the question whether the injury complained of is, on the evidence, properly described as an “ailment suffered by an employee … that was contributed to in a material degree by the employee’s employment”. Necessarily, there must be both physical and mental phenomena that, depending on their incidents, will be either a disease or an injury (other than a disease) within the meaning of s 3 of the Seafarers Act. That is because both terms comprehend physical and mental states.

28    After the Full Court published its decision in Prain [2017] FCAFC 143 we invited the parties to make written submissions as to its effect, if any, on their arguments. The respondent, Broadsword Marine Contractors Pty Ltd, repeated its earlier concession, in oral argument, that the Tribunal had “not articulated as clearly as it ought” the reason why it had treated Mr Bailey’s mental health condition as a disease. Broadsword also conceded that the Tribunal had erred in its conclusion that it had not been material to decide whether the onset of his mental health condition was sudden or gradual, but, it contended that the error “demonstrates more clearly that Mr Bailey’s argument is flawed and that, contrary to [his] Notice of Appeal, the only conclusion open on the evidence was that Mr Bailey’s adjustment disorder was a ‘disease’ rather than ‘an injury (other than a disease)’.”

29    However, like the Tribunal, Broadsword did not articulate any basis on which it relied to support its contention that Mr Bailey’s adjustment disorder necessarily fell, and could only fall, within the definition of “disease”.

30    In ordinary parlance it is easy enough to understand that a common cold is a “disease” whereas a broken leg is an “injury (other than a disease)”. But, as in Petkoska 200 CLR 286, a person can suffer from a disease that, itself, produces an injury (other than a disease), the latter of which is separately compensable under legislation such as the Seafarers Act.

31    Here, the Tribunal did not analyse or ask itself the question whether, or make findings of fact about, the nature and incidents of the physiological change to Mr Bailey’s mental state on the evidence, to ascertain if it was a mental “ailment” as defined in s 3 or, if not, it was a mental “injury (other than a disease)”. Instead it referred to assumed or conceded factual matters in other contexts, in [22] of its reasons, none of which considered, let alone decided, whether the particular set of facts before the respective tribunals of fact was or was not an “ailment” as defined. The Tribunal did not give any consideration, in answering the statutory question as required, to the precise evidence of what happened to Mr Bailey’s mental state in 2014 when he suffered the injury for which he sought compensation: May 257 CLR at 481 [49].

32    Instead, the Tribunal merely asserted, wrongly, that a “mental health condition has been held to be an ailment under the definition in s 4 of the Safety, Rehabilitation and Compensation Act”. That was wrong, because no such finding had been made in any of the cases that the Tribunal cited and even if it had, that would have been a factual, not legal, conclusion in the circumstances of the particular matter. That factual conclusion could not be relevant to, or determinative of, the ascertainment of the medical and factual issues going to the classification of Mr Bailey’s mental state as an “injury” of one kind or another within the categories in the definition of injury in s 3.

33    Accordingly, no decision to which the Tribunal referred had held, as a factual or legal finding, that a “mental health condition” was an “ailment”. But even if the Tribunal’s unfounded assertion were correct, each finding would have been arrived at on precise evidence, on a fact by fact basis, applying the relevant definitions of “disease” and “injury (other than a disease)” in the individual circumstances of the particular proceeding in which it was made: Petkoska 200 CLR at 300 [39]; May 257 CLR at 481 [49]. Such a finding could not create any precedent or factual or legal conclusion apposite to decide Mr Bailey’s claim.

34    Dr Chalk gave evidence that an adjustment order and, in particular, Mr Bailey’s adjustment disorder, was not a disease. He considered that it was an injury because it had occurred as a consequence of an event. The Tribunal, without any reasoning, stated at [23] of its reasons that it found that:

the mental condition of [Mr Bailey], which [has] been diagnosed as an adjustment disorder, is an “ailment” and therefore a “disease” for the purposes of s 10(7) of the Act.

35    Having made the erroneous assertion that “a mental health condition” was an ailment, the Tribunal then found that s 10(7) operated to exclude Mr Bailey’s entitlement to compensation. Such a finding could only be made if the Tribunal had addressed the factual issue of whether Mr Bailey’s mental state for which he sought compensation was an “ailment” as defined and, if it were, whether his employment by Broadsword had contributed in a material degree to it.

Conclusion

36    For these reasons, the Tribunal did not perform its statutory function in relation to Mr Bailey’s claim for compensation. That function required the Tribunal to give “consideration to ‘the precise evidence, on a fact by fact basis, …’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’”: May 257 CLR at 481 [49].

37    Accordingly, I would allow the appeal with costs, and order that the decision of the Tribunal made on 20 December 2016 to affirm the decision under review be set aside and the matter be remitted to the Tribunal to be heard and determined according to law. I would also order that Broadsword pay Mr Bailey’s costs.

Associate:

Dated:    22 December 2017

REASONS FOR JUDGMENT

REEVES and DERRINGTON JJ:

38    The Bing Bong Mining Loadout Facility is remotely located on the coastline in the south-western corner of the Gulf of Carpentaria. In 2014, the appellant, Mr Travis Bailey, desired to take up employment there in the maritime industry with the respondent, Broadsword Marine Contractors Pty Ltd (Broadsword). In order to do so, he required the permission of the owners of the loadout facility, Western Desert Resources Ltd, to access it. To obtain that permission he was required to make disclosure to Western Desert Resources of his prior medical conditions. He omitted to disclose the condition of “adjustment disorder with associated depression and anxiety” which he had suffered in 2011 and which had caused him to cease work. Within a month of commencing work at the Bing Bong facility, Mr Bailey again suffered the same condition and, again, he has been required to cease work. He sought compensation from Broadsword under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (SRCA) claiming that he had suffered a “disease” within the meaning of that Act.

39    Relevantly, s 10(7) of the SRCA excludes from the operation of the Act a disease which has been suffered by an employee and which would otherwise be within its scope where an employee, “for purposes connected with his or her employment … in the maritime industry” has “made a wilful and false representation that he or she … had not previously suffered, from that disease”.

40    After paying Mr Bailey compensation for some time in respect of his most recently claimed disease, Broadsword relied upon s 10(7) to deny his claim for ongoing benefits and in a “reconsideration determination” made by it on 22 June 2015, it confirmed that determination. That decision was affirmed by the decision of a Deputy President of the Administrative Appeals Tribunal (the Tribunal) in the matter of Bailey v Broadsword Marine Contractors Pty Ltd [2016] AATA 1048.

41    Mr Bailey now appeals from the Tribunal’s decision. As it proceeded before this Court the exact foundation of the appeal became more opaque although, ultimately, it seems to have centred around the assertion that the Tribunal did not correctly consider the question of whether the adjustment disorder suffered by Mr Bailey in 2014 was compensable as a physical injury rather than as a “disease”.

The background facts

42    Mr Bailey commenced employment in the marine industry in around May 2003. It is not necessary to consider the full details of his employment since that time save to mention that from about 2007 he had been engaged in various positions as a tug master involved in the towing and manoeuvring of barges.

43    On 25 May 2011 a psychologist, Mr Farr, prepared a report in which he recorded his diagnosis that Mr Bailey was suffering from an “adjustment disorder”. Mr Farr first examined Mr Bailey a week prior to writing that report and had recorded in his clinical notes that Mr Bailey was suffering from severe depression and severe anxiety. It appears that Mr Bailey began suffering from that episode of adjustment disorder during the course of his then employment.

44    Despite that, on 15 June 2011 Mr Bailey was certified “medically fit” as a seafarer. It appears that this certification was made for the purposes of enabling him to engage in employment as a tug master with a firm identified as Sea Swift Gladstone Operations.

45    On 22 April 2014, Broadsword sent Mr Bailey a letter of assignment seeking to engage him as a launch master in relation to a tug and barge operation which it was then conducting at Bing Bong. The nature of the work was operating barges for the transhipment of ore to transport vessels in the deeper waters of the Gulf. Mr Bailey accepted the letter of assignment and he subsequently took up employment with Broadsword commencing at Darwin Harbour.

46    On 26 May 2014 Mr Bailey completed and signed a document which was entitled “Western Desert Resources – Medical Information Form”. As is apparent from its title, its purpose was to record the medical information of the person who completed it. The heading of the relevant section of the document for this matter is “MEDICAL HISTORY (Please tick appropriate box)”. It was found by the Tribunal that the document was produced by Western Desert Resources, and was required to be completed by any person entering its site at Bing Bong. Mr Bailey gave evidence that the form had been provided to him by an employee of Broadsword and that he was told to complete it “ASAP” and return it to that employee. The section of the form headed “MEDICAL HISTORY” required the person completing it to identify the illnesses from which they had suffered or were suffering. It sought that information in two respects. First, it sought information as to whether the person had suffered, or was suffering, from certain specified medical conditions. Mr Bailey did not indicate that he had suffered from any of the identified conditions. Second, it contained an open question which required that the party completing it provide details of any other medical conditions from which they were suffering or had suffered. The question was posed by the words of “Other (Give Details)” and a space was provided whereby those details might be inserted. Adjacent to that question Mr Bailey inserted the word “NIL”. It is not in dispute that by answering in that fashion he conveyed that he did not suffer and had not suffered from any other medical conditions.

47    Having completed the necessary paperwork Mr Bailey was able to gain access to the operations site at Bing Bong and he commenced operational work for the respondent.

48    On 26 June 2014, being about one month after completing the medical information form, Mr Bailey was signed off from the vessel on which he had been working. He ceased his duties as a result of sustaining a claimed injury. The circumstances surrounding the cessation of work are not unimportant in this appeal. In particular, the contents of an incident report made by a Mr Oliver, who was in a managerial position at the time when Mr Bailey ceased his duties, was critical to the findings of the Tribunal. Mr Oliver wrote in that incident report that Mr Bailey had told him that that he suffered from “manic depression” and that he had received treatment for suicidal tendencies. He also recorded that Mr Bailey had informed him that he had previously been treated for suicidal tendencies and for serious depression and that he had not told Broadsword as he felt that it would be detrimental to his employment opportunities. Although, in his evidence Mr Bailey denied that the conversation occurred as recorded by Mr Oliver, the Tribunal accepted Mr Oliver’s version of it.

49    On 23 July 2014, Mr Farr assessed Mr Bailey as having “moderate/severe” depression on the depression, anxiety and stress scale.

50    On 5 August 2014 Mr Bailey lodged a claim for workers compensation in respect of “fatigue induced stress and anxiety and depression”. The claim form before the Tribunal identified that Mr Bailey considered that his injury or illness was the result of a “gradual build up due to fatigue, stress and lack of sleep”. In support of that assertion he listed the events which he considered led to his illness or injury being:

•    Extreme fatigue caused by continuous periods of inadequate breaks between operations (operating 24/7).

•    Facilities on board not conducive to sleep in break periods (eg sea state, noise of operation and inadequate mattress).

•    Vessel constantly being at sea with varying sea state made sleep periods inadequate.

•    Lack of organisation and structure of operations resulted in constant interruption of planned duties and rest periods.

•    In summary while workplace standards may have been in practice they were unable to be adhered to ie fatigue, management plan units exceeded due to work output expectations. These stated expectations took precedence over all other activities.

In that claim form Mr Bailey was asked to indicate whether he had previously suffered from any injury or illness similar to the one from which he was then suffering. He responded in the affirmative and provided details that in April 2011, he had suffered “stress related depression and anxiety due to poor management (by others), work schedule and lack of roster and structure”.

51    On 22 October 2014 a psychiatrist, Dr Chalk, produced a report which diagnosed Mr Bailey as suffering from an “adjustment disorder with depressed and anxious mood” dating from June 2014. In it, Dr Chalk indicated that the symptoms of the disorder had developed over time. References are made to fatigue “kicking in” and that Mr Bailey “got to the point where he just could not cope”, that he “developed ‘moments of suicide’”. That said, Dr Chalk also indicated that the symptoms developed over a relatively short period of time. He noted of Mr Bailey that “His past history suggests a brief reactive depression, or an adjustment disorder that resolved” and, in respect of his present condition, “I think that he did develop symptoms of an adjustment disorder with depressed and anxious moods”.

52    A determination was made by Broadsword on 22 December 2014 pursuant to s 78 of the SRCA by which a deemed decision to disallow the claim was revoked. In lieu thereof it was determined that liability was accepted under s 26 of the SRCA to pay compensation for the condition of “adjustment disorder with depressed and anxious moods”.

53    However, on 7 April 2015 Broadsword made a further determination by which it denied liability under the SRCA on the basis that the disease suffered by Mr Bailey was not taken to be an injury for the purposes of the Act by reason of the operation of s 10(7). Mr Bailey sought a reconsideration of that decision and, on 22 June 2015, Broadsword made a reconsideration determination by which it affirmed its earlier decision.

54    It was from that reconsideration decision by Broadsword that Mr Bailey sought review by the Tribunal.

The issues before the Tribunal

55    Before the Tribunal the parties identified that the sole issue for determination was whether s 10(7) of the SRCA operated to preclude the entitlement of Mr Bailey to compensation. If the adjustment disorder from which he suffered in 2014 was a disease and the same disease from which he had suffered in 2011 (and the other requirements of s 10(7) were satisfied), he would not be entitled to compensation. In his Reasons the Deputy President recorded that Mr Bailey asserted that s 10(7) did not apply because his 2014 condition was an “injury” rather than a “disease”. (See paragraph [20] of the Tribunal’s Reasons). Although it is far from clear, it seems that before the Tribunal the Respondent accepted that if Mr Bailey’s condition amounted to an “injury” he would be entitled to compensation under the SRCA. That would suggest that the parties agreed that the other elements for liability were established on the facts. In this way the central question put to the Tribunal was whether the 2014 condition was a “disease” or an “injury” and if the former, was it the same as the 2011 condition.

56    The Tribunal posed for itself the question of whether Mr Bailey’s 2014 condition was an injury or a disease and concluded that it was the latter. It considered that the other elements of s 10(7) were satisfied such that the section operated to preclude Mr Bailey from continuing to receive compensation payments because the disease from which he was suffering was the same as that from which he suffered in 2011 and that he had made a wilful and false representation that he had not suffered from the disease.

The relevant legislative provisions

57    Although the specific provision of the SRCA requiring consideration is s 10(7), it is necessary to identify some of the definitions relevant to that section as well as the context in which the section is found.

58    The expression “injury” as it is variously used in the SRCA causes much confusion. It is used in a very general manner to identify a state of affairs which, when they occur, gives rise to a liability of the employer to pay compensation. Section 26 provides:

26     Compensation for injuries

(1)     If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.

59    The word “injury” as it is used in that sentence is not simply a bodily condition arising from the occurrence of some identifiable event as it might be understood in ordinary parlance. The word is defined in the SRCA in a way which in some respects widens and in some respects narrows its usual meaning. It is widened to include a “disease” (if that disease is contributed to in a material degree by an employee’s employment) and it is narrowed by requiring not only the existence of a relevant bodily injury, but also a relevant connection between the injury and the employee’s employment.

60    The relevant definitions are:

injury means:

(a)    a disease; or

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

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

disease means:

(a)    any ailment suffered by an employee; or

(b)    the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.

61    The statutory concept of “injury” is further expanded by the inclusion of the word “ailment” as used in the definition of “disease”. That word is defined as follows:

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

62    It follows that the concept of “injury” as it is used in s 26 is comprised of two broad types of bodily condition which have a relevant connection to the employees’ employment. In general terms they are:

(a)    Firstly, a disease (which is defined to include any “ailment”) which was contributed to in a material degree by the employee’s employment; and

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

63    The consequence of the above is that the expression “injury (other than a disease)” is a composite expression comprising both the bodily condition identified as a “physical or mental injury” and the relevant connection with the employee’s employment. However, it can be immediately noticed that within the concept of “injury (other than a disease)” the legislation again uses a definition of the word “injury” being a “physical or mental injury”. That concept is sometimes referred to as “injury in its primary sense”, its “ordinary sense” or “injury simpliciter”. These expressions connote that the word is not being used as a composite expression, the elements of which found liability, but as the description of a certain type of bodily condition. In some of the authorities in this area the expression “injury (other than a disease)” is referred to as an “injury simpliciter” or “injury in its primary sense”. When that occurs it can usually be seen that what is actually being identified is “injury” as a bodily condition per se, rather than the concept of a bodily condition which has a relevant causal nexus with the employee’s employment.

64    The word “disease” has also caused confusion amongst the authorities on this topic. As a subset of the definition of “injury” it has a composite meaning; a particular type of bodily condition which was contributed to in a material degree by the employee’s employment. However, the primary sense in which the word “disease” is used in the authorities is as an “ailment”. Unfortunately the word “ailment” is defined by using the word itself. It is likely that the word “ailment” in the expression “physical or mental ailment” is intended to convey its ordinary meaning; being “an illness, disease, or disorder, usually a mild one; a minor complaint affecting part of the body” (Oxford English Dictionary, 2017) or a “morbid affection of the body or mind; indisposition; a slight ailment” (The Macquarie Dictionary, 2017). Additionally, the statutory definition of “disease” extends the ambit to conditions that are both sudden onset and gradual development.

65    Section 10 of the SRCA consists of a number of facilitative deeming provisions relating to causative steps or temporal aspects of claims by employees for compensation for diseases. For present purposes it is s 10(7) which is relevant as it deems an employee not to have suffered an injury in certain circumstances. It provides:

10 Provisions relating to diseases

    …

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

66    In this subsection the word “disease” is used in its primary sense in that it does not refer to the concept of an ailment coupled with a causal nexus to an employee’s employment.

The decision of the Tribunal

67    As previously mentioned, the parties agreed that the substantive issue before the Tribunal was whether s 10(7) applied to deny Mr Bailey any entitlement to compensation by reason of his omission to disclose his prior condition in the Western Desert Resources medical information form.

68    In considering the arguments raised by the parties the Deputy President first turned attention to the nature of Mr Bailey’s psychiatric conditions from which he suffered in 2011 and 2014 respectively (para [11]ff). He concluded that, on both of those occasions, Mr Bailey had suffered an adjustment disorder with mixed anxiety and depressed mood (see especially para [13]). He based that conclusion upon the evidence of the psychiatrist, Dr Chalk, whose report had identified Mr Bailey’s conditions in 2011 and 2014 and considered their similarities. The Deputy President also relied upon the claim form which had been completed by Mr Bailey in 2014 in which he stated that he had previously suffered a similar illness or injury in April 2011; being stress related depression and anxiety. Reliance was also placed upon the clinical notes of Mr Farr who had referred to the 2011 condition as being an “adjustment disorder”. The Deputy President acknowledged that the symptoms suffered in July 2014 by Mr Bailey were more intense or severe than they were in 2011, however, he noted that differing severities did not alter the question of whether or not Mr Bailey had suffered previously from the same disease (para [14]).

69    Before the Tribunal Mr Bailey asserted that the condition from which he suffered in 2014 was a post-traumatic stress disorder arising from an incident during his employment with the respondent when a vessel he was in started taking water. This assertion was the subject of expert evidence from Dr Sardinha, a psychiatrist. However, the Tribunal rejected the contention that Mr Bailey had suffered from PTSD. It reached that conclusion by noting that the alleged stressor was not mentioned by the appellant to Dr Chalk and, further, determined that there was no cogent evidence that the appellant experienced any life threatening or similar event (paras [15] – [19]).

70    The Deputy President then considered the argument advanced by Mr Bailey that the adjustment disorders suffered in 2011 and 2014 were within the definition of an “injury" and not a “disease” (para [20]ff). Mr Bailey relied upon an answer given by Dr Chalk under cross-examination that an adjustment disorder was an “injury”. In relation to this issue the Deputy President referred to the definition of “ailment” in the SRCA and noted that it included “any mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. He referred to a number of authorities in which a mental health condition had been held to be an ailment under analogous legislation. In relation to the 2014 condition, the Deputy President observed that Mr Bailey had asserted that he had suffered from a “gradual build up due to fatigue, stress and lack of sleep” whilst noting that Dr Chalk had described the changes as having developed over a relatively brief period of time. However, given that the wide definition of “ailment” includes the expression “whether of sudden onset or gradual development”, the Deputy President considered that the appellant’s conditions in 2011 and 2014 were both “ailments” within s 3 of the SRCA and therefore “diseases” within the meaning of s 10(7). He found that they were both the same condition, being adjustment disorders with symptoms of depression and anxiety (para [24]). It followed that, in respect of the condition suffered in 2014, Mr Bailey had “previously suffered” that same disease within the meaning of s 10(7) (para [26]).

71    The Deputy President then turned his attention to the nature of the representation made by Mr Bailey. He found that by writing in the word “NIL” adjacent to the statement “Other (Please Give Details)” in the medical information form, Mr Bailey had represented that he had not suffered any other medical conditions apart from those which he had specified. That representation was found to be untrue because he did not disclose that he had previously suffered from his psychiatric condition of “adjustment disorder” in 2011. That, the Deputy President found, was a false representation within the meaning of s 10(7) (para [29]).

72    The Deputy President also determined that the false representation was one made for purposes connected with the appellant’s employment or proposed employment in the “maritime industry” (para [32]). At the time of completing the form, Mr Bailey was seeking to be engaged on a tugboat as an employee of the respondent company. Broadsword had been engaged by Western Desert Resources to conduct tug boat operations in the Gulf of Carpentaria as part of its mining operations. The completion of the medical information form provided by Western Desert Resources was a precondition to Mr Bailey entering upon the operational site and, hence, to his employment in the maritime industry. In those circumstances the Deputy President determined that the false representation was made for purposes “connected with” Mr Bailey’s “employment within the maritime industry”.

73    The Deputy President also determined that the representation was “wilful” on the basis that it was made without any belief that it was true (see Comcare v Porter (1996) 70 FCR 139, 150 per Jenkinson J). In support of that determination the Deputy President identified that on 26 June 2014 Mr Bailey had told a Mr Oliver who was employed by the respondent of his previous suicidal tendencies and treatment (para [34]). Mr Oliver said that Mr Bailey had stated that he had not told the respondent because he thought that it would be detrimental to his work opportunities. The Deputy President also did not accept Mr Bailey’s assertion that he had not been informed that he had been diagnosed with anxiety and depression in 2011. Consequently, the Deputy President found that Mr Bailey’s failure to disclose his past psychiatric condition on the medical information form amounted to a wilful and false representation that he did not suffer or had not previously suffered from a disease (para [37]).

74    Given the above, the Deputy President determined that the circumstances of the case fell within the scope of s 10(7) with the result that Broadsword was not liable and the revocation decision under review was affirmed.

Matters not raised before the Tribunal

75    It was, apparently, not part of Mr Bailey’s case before the Tribunal that if it was found that s 10(7) should apply to prevent him from receiving compensation because his conditions were “diseases”, the Tribunal should then proceed to determine whether he would be entitled to compensation on the basis that the bodily condition he suffered or the sequela of it could also be characterised as an “injury” and one which arose out of, or in the course of, his employment. That is, it does not appear that it was suggested to the Tribunal that if it found that Mr Bailey’s 2014 condition was a “disease”, it should also consider whether his changed physiological condition (or even his changed psychological condition), if any, amounted to an “injury”. The case advanced was simply that his adjustment disorder was either a disease or an injury.

Consideration

76    The Notice of Appeal contained numerous purported questions of law as founding the appeal, few of which were ultimately pursued. Most were founded upon allegations relating to the sufficiency or want of evidence. The first three related to legal issues arising under s 10(7) and were:

1.    Whether the learned Deputy President applied the correct test pursuant to section 10(7) of the Seafarers Rehabilitation Compensation Act (1992) (Cth) (“Act”) to determine that it applied to deny the appellant compensation.

2.    Whether the learned Deputy President considered that the respondent was required to demonstrate that s 10(7) of the Act applied to the applicant’s claim as he was required to do.

3.    Whether, having found that the applicant suffered from an adjustment disorder, it was open on the evidence before the tribunal to consider an adjustment disorder to be a “disease” within the meaning of section 10(7) of the Act.

The other questions identified went to particular aspects of the Tribunal’s findings.

An attempt to isolate the issue on appeal

77    As the hearing of this appeal proceeded its foundation transmogrified into whether the Tribunal engaged upon the task of determining whether the adjustment disorders suffered by Mr Bailey were “diseases” rather than “injuries (other than a disease)” by asking itself the various sequential questions identified in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468. In part, this encapsulated a question of whether the Tribunal correctly turned its mind to the nature and incidents of Mr Bailey’s condition and assessed the nature of the physiological changes consequent upon that condition. Because it is important in the resolution of this appeal, it is appropriate to identify the appellant’s statement of the case it sought to agitate before this Court. Counsel for Mr Bailey submitted that the real point on appeal was that “the tribunal never asked the question whether the employee has suffered something that can be described as a sudden and ascertainable dramatic physiological change or disturbance of the normal physiological state, because it pre-supposed that had already been decided in the case as it referred to in paragraph 22” (at page 17, lines 39-46 of the transcript). The phraseology of “a sudden and ascertainable dramatic physiological change or disturbance of the normal physiological state” is a reference to part of the decision of Gleeson CJ and Kirby J in Kennedy Cleaning Services (2000) 200 CLR 286 as adopted by the majority of the High Court in the subsequent decision of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468. The appellant identified that the alleged “physiological changes” were those which caused the symptoms of which Mr Bailey complained and which were recorded by various medical practitioners (see page 18, line 36 to page 19, line 5 of the transcript). This question became the sole ground of appeal which was agitated in the course of oral submissions.

78    A number of points should be made about the identification of what was said to be the real issue on appeal. First, the reference to the changed “physiological” circumstances reflects that Mr Bailey was agitating that the Tribunal ought to have ascertained that he had sustained some form of physical injury and that was so even though the diagnosed condition was an “adjustment disorder” which is, essentially, a mental or psychiatric condition. Second, the absence of any criticism that the Tribunal did not consider the changes to Mr Bailey’s psychological state or consider any psychiatric disorder, eschews an assertion that he was claiming to have suffered any “mental injury” (see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 482; [52] fn 75f; Prain v Comcare [2017] FCAFC 143; [77]). Third, the reference to the “physiological changes” which underlay Mr Bailey’s symptoms was a reference to evidence which was not adduced by Mr Bailey before the Tribunal. As will be seen below, there was evidence before the Tribunal of Mr Bailey’s symptoms which he claimed to have suffered (fatigue, depression and depressive symptoms, anxious mood etc) but there was no evidence of the underlying physiological changes, if any, which Counsel for Mr Bailey submitted must have caused the symptoms (at page 19, lines1-5 of the transcript). Fourth, the unusual reference to the physiological changes in relation to what is essentially a mental illness might have suggested that Mr Bailey was agitating a case that those physiological changes, secondary to his adjustment disorder, would have been sufficient to amount to an “injury” in their own right in the manner discussed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning) and Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar). Ultimately, though, in the absence of any evidence of the consequent physiological changes, even if this ground was raised it could not have succeeded. Fifth, these issues were far removed from anything which the Tribunal was asked to determine or consider although it can be acknowledged that the obligations of the Tribunal are not necessarily circumscribed by the cases advanced by the parties.

79    Therefore, as framed on appeal, there are significant difficulties with Mr Bailey’s case. His focus upon “physiological” changes as discussed in May tends to distract from what might have been a more logical submission that Mr Bailey suffered from a “mental injury”. If that were done it would have been necessary for the Tribunal to consider the nature and incidents of the “psychological changes” which Mr Bailey had suffered. However, it may be that this focus by Mr Bailey on appeal was deliberate given that the Tribunal did consider the nature and incidents of his “psychological changes” and determined that it did not amount to an injury. Mr Bailey might also have mounted a case that he sustained an injury secondary to his adjustment disorder on the basis that the claimed physiological changes consequent upon his psychiatric illness were, of themselves, sufficient to be characterised as an injury in the sense considered in Kennedy Cleaning and Zickar. Those cases are part of a line of authorities where the sequela of a disease becomes a secondary condition which, because of the acute physiological changes involved, can, itself, be characterised as an “injury”. However, if that were the case which Mr Bailey sought to agitate it was not done with any clarity and, there is a distinct lack of evidence of any “physiological changes”.

80    From the above, it is impossible to avoid the conclusion that the “real issue” on appeal as identified by Mr Bailey was, in fact, misguided.

81    The consideration of the Tribunal was, in part, directed to the basic consideration of whether the bodily condition suffered by Mr Bailey was “an ailment” rather than an injury (see paragraph 20 of the reasons for judgment of the Tribunal). In doing so the Tribunal considered Mr Bailey’s adjustment disorder and the manner in which it developed including the speed with which it developed. It concluded that the disorder was a disease rather than an injury. In arguing his appeal, Counsel for Mr Bailey was not able to identify any further fact, symptom or circumstance relating to his physiological or psychological condition which was before the Tribunal which, if added to the Tribunal’s consideration would have characterised his condition as a “bodily or mental injury”. Indeed, Mr Bailey was not able to point to any circumstance relating to his 2014 condition which was not considered by the Tribunal. In this respect his argument encounters much difficulty. It is an unattractive argument that the Tribunal failed to consider whether Mr Bailey “suffered something that can be described as a sudden and ascertainable dramatic physiological change or disturbance of the normal physiological state” when there was no evidence of such matters for it to consider.

Ailment or injury

82    In his submissions Mr Bailey asserted that whether a condition suffered by an employee is a “disease” or an “injury (other than a disease)” is a question of fact. That is not correct. These expressions, as used in the SRCA and the analogous Safety Rehabilitation and Compensation Act 1988 (Cth), have meanings other than their ordinary or natural meaning. Moreover, they are composite expressions which encompass a bodily condition and a relevant nexus to employment. Questions of whether the primary facts as found meet such statutory definitions are questions of law.

83    Despite that, one might have thought that the anterior question which needs to be determined on an application for compensation under the SRCA, being whether an employee’s bodily condition amounted to an ailment (and therefore a disease) or a physical or mental injury (and therefore an “injury”) would be a question of fact. That is because, usually, the determination of whether the facts as found come within the ordinary meaning of words used in the statute are regarded as questions of fact. However, the expression “injury” as it is used in workers’ compensation legislation in Australia has been the subject of immense judicial refinement over the years such that it can no longer be said to be a word which is used in its “ordinary” or “natural” sense (May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 (not overruled on this point)). It follows that whether the facts as found constitute a “physical or mental injury” within the meaning of its use in the SRCA, is a question of law.

84    It is apparent that there is involved in the consideration of this matter, two separate distinctions which must be kept steadily in mind. First, there is the difference between an “ailment” and a “physical or mental injury”. Second, there is the distinction between “disease” and “injury (other than a disease)”. Unfortunately, from time to time the latter is conflated with the former. Distinctions such as these have been the subject of much consideration by the High Court over the years. Whilst it is not necessary to identify all such authorities in order to contextualise the issue in question it is necessary to consider some of the more recent.

85    The context of such cases usually concern the compensation entitlements of workers in circumstances where they have suffered a “disease” of some description and the sequelae of the disease (which is secondary to the disease) prevents them from continuing to work or, at least, impairs them in their work. In these cases the employees have not been able to demonstrate the necessary causal link between their employment and the suffering of the disease. Generally that is because in most pieces of workers’ compensation legislation, the required causal nexus between employment and a disease is more demanding than that required between an injury and employment. An injury need only “arise out of” or occur “in the course of” the employment which means that a temporal connection will suffice. It follows that where an employee is unable to establish the nexus between the “disease” and employment, an alternative case is often framed asserting that the sequela of the disease is within the concept of an “injury”. This necessarily gives rise to questions which test the boundaries of the concept of “injury”.

86    The decision in Zickar concerned a worker who had collapsed at work after suffering a rupture of a cerebral aneurism. The aneurism was a congenital weakness which was not contributed to by the worker’s employment. The dissenting judgment (by Brennan CJ, Dawson and Gaudron JJ) provides a valuable analysis of the history of workers’ compensation legislation in Australia and the various approaches which have been taken to the interpretation of such laws. Whilst there is no need to consider that judgment in detail their Honours would have disallowed recovery on the basis that the rupture of the cerebral aneurism was not an “injury” (in the primary sense) but part of the disease. Their Honours held that, as a matter of construction, in order for a disease (or the sequela of a disease) to be compensable under the Act in question, the necessary connection with employment had to be established; ie the disease was one in respect of which the employment was a contributing factor. Their Honours reasoned that in the Workers’ Compensation Act 1987 (NSW) there was a distinction between an “injury” on the one hand and “disease” on the other. The concept of disease included the sequelae of those diseases. That being so, the only path to recovery for a disease or the consequences thereof would be by establishing the necessary causal nexus for a disease. The majority in Zickar consisted of Toohey, McHugh, Gummow and Kirby JJ. Toohey, McHugh and Gummow JJ delivered a joint judgment in which they reasoned that the appellant’s condition fell within a natural reading of the definition of “injury”. The injury, being the rupture of the arterial wall, constituted a personal injury and there was no need to consider whether it was also a disease or the consequence of a disease. Their Honours considered that the case was not one simply of the existence of an autogenous disease. Although the aneurism was itself, an autogenous disease, the personal injury claimed was the rupture which occurred. There was, as their Honours held, a clear distinction between the underlying disease and the sequela of that disease, being the rupture of the arterial wall. That rupture was, of itself, within the definition of an “injury” and the mere presence of the disease did not preclude reliance on that event as a personal injury. Kirby J reached the same conclusion for similar reasons.

87    The effect of Zickar was to make two dramatic changes to the manner in which workers’ compensation legislation of this type was construed. First, by identifying that the concepts of disease and injury, albeit separate categories of liability, might be satisfied by the same underlying bodily condition. Second, by holding that the sequela or the consequences of a disease may amount to an injury, which if occurring in the course of employment, is compensable regardless of its association with the underlying disease.

88    The next relevant decision is that of Kennedy Cleaning. In this case the employee collapsed during the course of her work. For some years prior to that event she had been suffering from rheumatic mitral valve disease which was not in any way connected with her employment. That disease carried the risk of the release of clots (embolisms) into the blood stream. It had the consequence that a blood clot formed in the employee’s left atrium and subsequently detached. On the occasion of her collapse the clot happened to pass directly to the left temporo-parietal region of the appellant’s brain, the effect of which was to inhibit blood flow to her brain causing a stroke. In medical terms the stroke was diagnosed as being “due to a cerebral embolus secondary to valvular heart disease”.

89    Gleeson CJ and Kirby J (who were part of the plurality) held that the sudden and dramatic changes or disturbances in the physiological state of the employee were of such a significance that their condition amounted to an injury. Their Honours observed (at para [35]) that it had long been recognised that conditions of this nature could qualify as an “injury” within the ordinary application of that expression as used in workers’ compensation legislation despite the fact that the change was wholly internal to the body of the worker. The injury did not need to be external or be produced by external causes. It was also recognised (at para [36]) that the mere fact that a “sudden physiological change was in some way connected with an underlying ‘disease’ process did not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case”.

90    Their Honours then considered how the consequence or sequela of a disease might be characterised an “injury” so as to be compensable when the underlying disease was not. At paragraph 39 of their Honours’ reasons, it was observed that the effects of a disease may be characterised as an “injury” (in the primary sense) if the evidence concerning the nature and incidence of any physiological changes consequent upon the disease can be described as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. Read in context, their Honours were indicating that if the physiological changes or disturbances were sudden and ascertainable or dramatic, such a characterisation might take them out of the category of the mere consequences of a disease and render them “injuries” and compensable as such. It seems plain that their Honours were not suggesting that this is the only way in which the sequela of a disease might be characterised as an injury. However, it is certainly clear that they were indicating that this approach was reflective of the history of cases where diseases had caused consequential physiological disturbances or alterations which could be identified as “an injury”. Examples of such physiological changes, which may be internal or external to the body of the employee, were identified by the majority in May at [46]:

…the breaking of an artery (Hume Steel (1947) 75 CLR 242 at 252-253), the detachment of a piece of the lining of an artery (Hume Steel (1947) 75 CLR 242 at 253), the rupture of an arterial wall (Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; [1996] HCA 31 at 332) or a lesion to the brain (Kennedy Cleaning (2000) 200 CLR 286 at 289 [6], [8]). Each would be described as an “injury” in the primary sense.

91    It is appropriate to set out here the whole of the pivotal paragraph 39 of Gleeson CJ and Kirby J’s judgment:

It is impossible to reconcile the approach urged by the appellant in this case with the reasoning of the majority in Zickar. If the appellant's approach were adopted, the mere fact that an ascertainable lesion or dramatic physiological change had taken place or that the normal physiological state had been disturbed would be irrelevant because it would be no more than the outcome, direct or indirect, of a progressive congenital or other disease process. However, this is not the way the majority approached the matter in Zickar. It is also inconsistent with the approach in McIntosh and Burch. All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. 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. If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.

92    The importance of a sudden physiological change or disturbance to the issue of identifying whether the sequela of a disease might, of itself, amount to an injury is emphasised by Gleeson CJ and Kirby J in the immediately following paragraph of their reasons which reads:

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.

93    It is relevant that their Honours identified no other test by which the consequences of a disease or changed physiological conditions might qualify as “an injury” per se. The only criteria identified which might be applied was that of the existence of “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. It seems plain from the context of the reasons that their Honours were using the adjectives, of “sudden”, “ascertainable” and “dramatic” as qualifying both a “physiological change” and a “disturbance of the normal physiological state”. It would be illogical to require such a degree of acuteness in relation to a physiological change for it to constitute an “injury”, but to say that any “disturbance” to the “normal physiological state” would be sufficient.

94    In Kennedy Cleaning, Gaudron J departed from the position which she had adopted in Zickar relating to the question of the construction of workers’ compensation legislation. Her Honour considered that the sequela of diseases could amount, on their own, to injuries and be compensable as such. Her Honour said (at [54]):

… And when the words of the definition are given their ordinary meaning, they clearly extend to a sudden physiological change, even one that results from a progressive disease.

95    McHugh, Gummow and Hayne JJ in Kennedy Cleaning also agreed that the blocking of the employee’s blood supply, especially the blocking of the artery, indicated a sudden change or disturbance to the physiological state of the employee and thus was within the concept of an injury. Their Honours, at [67] apparently agreed with the ACT Supreme Court (Kennedy Cleaning Services v Petkoska (1998) 87 FCR 526, 535) as to the circumstances in which a physical injury might be found. They held that it was not a pre-requisite to the finding of an injury (which is of an internal nature) that a physical event or incident involve a “rupture or breaking”. They held an occlusion (blockage) causing a disturbance of the normal physiological state would be sufficient. Their Honours also held that the fact that a sudden physiological change has been caused or provoked by a disease did not prevent it from constituting a “physical injury” for the purposes of the Act. It followed that their Honours agreed that the occlusion, albeit the result of a disease suffered by the appellant, was appropriately characterised as an injury.

96    The distinction between “disease” and “injury” (in its primary sense) was most recently considered by the High Court in Military Rehabilitation and Compensation Commission v May. This case differs to the other High Court authorities discussed as it does not concern the proper characterisation of the sequela of a disease. This matter arose under the provisions of the Safety Rehabilitation and Compensation Act which are relevantly analogous to the provisions of the SRCA. The respondent, a serviceman, claimed that as a result of receiving vaccinations in the course of his military service he developed symptoms of fatigue, illness, dizziness and low immunity. He asserted that he was entitled to compensation under the Act because he had suffered an “injury”. The Administrative Appeals Tribunal held that the respondent had not suffered an injury because there was nothing to indicate that he had suffered an injury amounting to a sudden or identifiable physiological change in the normal functioning of the body or organs which was attributable to the vaccinations. It is relevant to note that there was no evidence before the Tribunal as to the biomechanical or physiological causes of his claimed symptoms. The Tribunal had determined that Mr May had not shown that he had suffered an “injury” and his claim was dismissed. The Full Court of this Court (in May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397) held that a sudden or identifiable change did not have to be shown, and that the inquiry was simply “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” (at [209]). It found that there was no need to find that the person had experienced “a sudden or identifiable physiological change” in every case (at [34]).

97    The majority of the High Court (French CJ, Kiefel, Nettle and Gordon JJ) identified (at [42]) that the two sets of conditions being “disease” and “injury (other than a disease)” were “separate but related bases of liability” and that each had a different meaning in the statutory scheme.” The two concepts were seen as “sub-sets” of the general expression, “injury”. In this respect it was observed that, “If an employee establishes that they have a “disease” within para (a) of the definition of “injury”, there is no need to consider para (b)”. Their Honours emphasised that the injury in question had to be a “physical or mental injury” (at [44]) and explained that the word “injury” in the phrase “injury (other than a disease)” was used in its primary sense. In identifying the nature and incidents of a condition which might be characterised as an “injury”, their Honours (at [45]) referenced Kennedy Cleaning (at 300; [39]) where Gleeson CJ and Kirby J said that if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.” Their Honours accepted the conclusion of the Full Court that “suddenness” is not always necessary for there to be an injury in the primary sense. That said, it was recognized (at [47]) that the physiological change which is characterised as an injury might be sudden and ascertainable, dramatic or might be described as “a disturbance of the normal physiological state”. However their Honours also identified that “suddenness” is not irrelevant and that it is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying disease, but it is the physiological changes – the nature and the incidents of that change – that remains central (at [47]). Subsequently, their Honours identified the above as the test which will generally apply in determining whether an injury has been sustained.

98    It should be mentioned at this point that the conclusion that “suddenness” is not required in every case was supported by a reference to paragraphs [35], [39] and [40] of the reasons for judgment of Gleeson CJ and Kirby J in Kennedy Cleaning. As the analysis of that decision above demonstrates, what their Honours were there considering were the characteristics of the sequelae of a disease which would take that sequelae out of the category of a disease, or the effect of a disease, and render it an “injury” in the primary sense. If it could not be so characterised as an “injury” it would remain merely the consequence or symptom of the underlying disease. In that sense, it would appear that Gleeson CJ and Kirby J considered that “suddenness” in relation to the physiological change might be a necessary, but not sufficient, characteristic which would permit the sequela of a disease to be characterised as “an injury”. That is, if the changed physiological conditions or disturbance of the normal physiological state were sudden and ascertainable or dramatic they might qualify as an “injury”. That would be consistent with the authorities which had preceded Kennedy Cleaning in which the consequences of a disease which were sudden and ascertainable or dramatic were regarded as injuries. In none of the above authorities (being the High Court decisions or the cases mentioned in them) is there to be found any case where a changed physiological condition which was not sudden and ascertainable or dramatic was held to be an injury. Given that it is recognised that nearly all diseases carry with them some physiological change (in the sense of an alteration to the normal functioning) to the host body, if all that was required to be shown was any physiological change or disturbance, all diseases contracted by an employee would give rise to an injury. That is obviously not the intention of the SRCA. In this respect it is not insignificant that in neither Kennedy Cleaning nor May did the High Court identify how the sequelae of a disease might be identified as an injury in the absence of some sudden and ascertainable or dramatic physiological change.

99    In his concurring judgment in May Gageler J succinctly identified the nature of physiological change which justifies its characterisation as an “injury”. His Honour said at [75]:

[75] More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to “getting hurt” (an injury might be constituted by nothing more than “something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel”) but that suffering an injury involves something more than merely “becoming sick”. An injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”. The universality of that explanation has been questioned, and the comment has fairly been made that “a distinct physiological change is not itself an expression of clear and definite meaning”. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.

100    In the immediately following paragraph his Honour identified that if an “injury” were equated to any alteration from the functioning of a healthy mind or body (as the Full Court in that case seemed to suggest by its reliance upon the notion of a “physiological change or disturbance”), that would “in truth involve a significant departure from the particular sense which the repeated explanations of injury in terms of a definite or distinct physiological change or disturbance have sought to convey” (May at [76]). His Honour added at [77]:

[77] Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. Indeed every manifestation of an ailment or of the worsening of an ailment might potentially be so described. Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.

101    It follows that the centrality of a sudden and ascertainable or dramatic change in a person’s physiological condition as a criterion of “injury” was recognised by both the plurality in May and by Gageler J.

102    In the context of this discussion three important points might be made about the High Court’s decision in May. First, there was an acceptance that the formulation of the test relating to the necessary quality of physiological change as identified by Gleeson CJ and Kirby J in Kennedy Cleaning was sufficient to establish an injury. Second, there was no acceptance that any physiological change or any disturbance of the normal physiological state was sufficient to characterise the sequela of a disease as an injury. Third, the High Court identified no other test which might be applied in ascertaining whether any alterations to a physiological state amounted to an “injury”.

103    As it is relevant to the consideration of the subsequent discussion of the decision in this Court in Prain v Comcare [2017] FCAFC 143 it should be identified that the plurality in the High Court in May used language which eschews the proposition that there was any overlap between the statutory categories of liability being “a disease” and “an injury other than a (disease)”. At paragraph [42] their Honours said:

The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” and “injury (other than a disease)” the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.

The identification by French CJ, Kiefel, Nettle and Gordon JJ that the two concepts comprise “sub-sets” of the general concept of “injury” tends to negate the suggestion that they are exclusive as does the subsequent comment that they “comprise separate but related bases of liability”. The further observation that each of the two concepts have a different meaning in the statutory scheme would be erroneous if the two concepts were overlapping as the Full Court has suggested. That said, the question which arises in the present matter is not whether the concepts of “disease” and “injury (other than a disease)” overlap or are mutually exclusive. The real question is whether an employee’s disease or the consequences of their disease (being a physiological change, a disturbance of the normal physiological state or a psychiatric disorder) can also be characterised as an injury.

104    A further important point which ought to be noted is that in May the considerations of physiological changes or alterations to the normal physiological state were relevant to the determination of whether the employee had suffered a physical injury. Footnote 75 found in paragraph [52] of the reasons of the plurality identifies that in the case of a “mental injury” the general test will be applied, mutatis mutandis, to any psychiatric disorder. There the question will be whether the employee has suffered something that can be described as a sudden and ascertainable dramatic psychiatric or psychological change or disturbance of the normal psychological state.

105    Subsequent to the hearing of oral argument a Full Court of this Court handed down the decision in Prain. The parties in this action were invited to make submissions as to its relevance to the matters under appeal which they did.

106    Neither at the hearing of this matter, nor in the further submissions was any point agitated that the Tribunal below erred in treating the statutory concepts of “disease” and “injury (other than a disease)” as being mutually exclusive. No ground of appeal to that effect was relied upon by Mr Bailey and no submission was made to that effect. No party sought to make any submission in relation to the obiter dictum statement in Prain (at [72]) which suggests that those two categories are mutually exclusive. The Full Court (Kenny, Tracey and Bromberg JJ) there said at [72]:

The authorities to which we have already referred show that if the Tribunal did in fact treat “disease” and “injury (other than disease)” as mutually exclusive categories, it would have been in error. We are not, however, persuaded that it did so. …

107    The authorities to which reference was apparently being made were Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; Hume Steel Ltd v Peart (1947) 75 CLR 242; May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. Unfortunately, no particular passages of those decisions are identified which might support the proposition that the two concepts were not mutually exclusive.

108    From the discussion above, it is apparent that if all that the Full Court in Prain was saying was that the consequences of a “disease” (being a sufficiently acute physiological change) might also satisfy the definition of “bodily injury” (for the purposes of the expression “injury (other than a disease)”), that would be an accurate reflection of the cases to which reference was made. It would also be reflective of the departure from previous authority undertaken by the High Court in Zickar and followed in Kennedy Cleaning. In essence, it is an acknowledgement that simply because physiological changes suffered by an employee are the consequence or sequelae of a “disease”, it does not follow that those changes (if sufficiently acute) cannot be characterised as “an injury”. However that may be, as the concepts of “disease” and “injury (other than a disease)” in s 4(1) have different requirements in relation to the causal nexus with employment, the High Court in May identified them as being separate grounds of liability which do not overlap (see May at [54]).

109    It would appear that Mr Bailey made no submissions on this issue because his case seems to be simply that the physiological changes which occurred to him were an injury. He did not appear to attempt to make a case that his “injury” arose from the sequela of a disease and was therefore secondary to that disease.

110    Consistently with the development of the law in this area, the Full Court in Prain recognised that “suddenness” in the consideration of the question of whether a condition was an injury or a disease was often useful even though it was not a prerequisite to a finding of an “injury”. Their Honours held that whether or not “suddenness” would be significant in any case would depend upon what the particular facts disclosed about the nature and incidents of the physiological or psychological changes (at [73]). Also, consistently with authority, the Full Court saw no error in the Tribunal noting that mental illness was more aptly placed in the category of “disease” rather than “injury” although that may not necessarily be the case on all occasions (at [74]). Whether a mental illness is to be categorised as a “disease” or an “injury” will depend upon the nature and incidents of the psychological changes.

111    Their Honours in Prain held that in the consideration of the nature and incidents of Mrs Prain’s condition it was appropriate to consider the “suddenness” or the existence of “dramatic” change. The Tribunal’s finding that her psychological condition was “the outcome of a slow build-up of hurt and resentment rather than of a climatic episode” was supportive of the finding of a disease and not of an injury in the primary sense (at [76]). The Court also accepted that in most cases, the acuteness of the physiological changes will be relevant to the determination of whether an “injury” was suffered. At paragraph [77] their Honours said:

It is relevant, in this context, also to bear in mind the statement of the plurality [in May] (at [52]) that “the existence of a physical or mental ‘injury’ (in the primary sense of that word)” will generally “be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological or disturbance of the normal physiological state” (or a psychiatric disorder, see n 65): see also Compensation Commission v May at [62]. The Tribunal’s finding (at [42] of its reasons) that Mrs Prain’s “loss of equilibrium seemed to be the outcome of a slow build-up of hurt and resentment rather than of a climactic episode of confrontation or conflict” was consistent with this approach; and, having regard to Compensation Commission v May, on the facts as found by the Tribunal, it was clearly open to it to reject Mrs Prain’s claim that she suffered an injury in the primary sense.

112     The Full Court recognised that the Tribunal had considered all of the relevant facts concerning Mrs Prain’s psychological condition and, on the question of whether she was suffering from a disease or a mental injury, it determined that she suffered from a disease. No error was disclosed by reason of the fact that the Tribunal did not expressly find that there was no mental injury in the primary sense (at [76]).

What the Tribunal was required to do in this case

113    In this case Mr Bailey’s claim before the Tribunal appears to have been simply that his adjustment disorder amounted to an injury and not a disease. This is not a case where Mr Bailey seeks to assert, as an alternative, that the sequela of his disease might be characterised as an injury.

114    On appeal Mr Bailey effectively submitted that the Tribunal, in determining his claim, had been required to consider the nature and extent of the physiological changes which might have indicated the occasioning of a physical injury. Such a case must necessarily fail because there was no evidence before the Tribunal of any physiological change or disturbance of the normal physiological state (sudden, ascertainable, dramatic or otherwise). There was simply no evidence for the Tribunal to consider.

115    If the case had been put to the Tribunal that the injury suffered by Mr Bailey in 2014 was a “mental injury”, a consideration of any psychological changes would have been required to ascertain its existence. Paraphrasing the test for physical injury as used in May, had such a case been agitated the Tribunal would have been required to undertake the following:

(a)    Consider the precise evidence, on a fact by fact basis, concerning the nature and incidents of the psychological changes which have been accepted. The nature and incidents of the psychological changes will be central to the determination of this issue;

(b)    It will generally be the case that if evidence so considered amounts to something which can be described as a sudden or ascertainable or dramatic psychological change or a sudden or ascertainable or dramatic disturbance of the normal psychological state, it may be appropriately characterised as a “mental injury” in the primary sense;

(c)    If it were asserted that the sequela of a mental disease was, itself, a mental injury, the suddenness of any psychological change would be a useful criterion to distinguish between any such mental injury and the natural progression of an underlying psychological disease.

(d)    However, suddenness is not required in every case in order for the psychological condition to be characterised as an “injury”. That said, it is likely that there must be some definite or distinct psychological change for the worse which is either sudden or, at least, identifiable. Descriptions such as “distinct”, “ascertainable” or “dramatic” are apt.

116    In summary, therefore, the Tribunal was required to consider the conclusions reached as to the psychological changes or disturbance experienced by Mr Bailey and the acuteness of those changes or that disturbance (in terms of whether they were sudden or ascertainable or dramatic).

What the tribunal did not do

117    In considering whether Mr Bailey’s condition was a disease or an injury (other than a disease) the Tribunal did not consider the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological changes which have been accepted and nor did it consider whether that evidence amounted to a sudden or ascertainable or dramatic physiological change or disturbance of the normal physiological state. On appeal it was said that it ought to have done so. That was misguided given the absence of any evidence of any physiological changes. In any event, that is a test for ascertaining the existence of a physical injury and not a mental injury and there was not one iota of evidence before the Tribunal that Mr Bailey had suffered any kind of physical injury.

118    There was evidence before the Tribunal of Mr Bailey’s symptoms (both from himself and some medical professionals) but, as was the case in May, there was no evidence of the existence of any physiological changes or of any disturbance of his normal physiological state. Counsel for Mr Bailey submitted that there may have been physiological changes consequent upon Mr Bailey’s psychiatric illness which gave rise to the symptoms which he experienced. Even if that were true, there was no evidence of any such changes before the Tribunal.

119    Had the Tribunal turned its mind to the questions identified above, it could not have reached any conclusion other than the one it did as there was no evidence that Mr Bailey suffered any “physical injury”.

What the Tribunal did do

120    However, the Tribunal did consider whether Mr Bailey suffered from a disease or an injury (other than a disease). Its consideration of the nature of the psychological changes experienced by Mr Bailey indicates that it was considering the only question which it might possibly have considered in the circumstances. That is, did Mr Bailey suffer from a “mental injury”.

121    It first ascertained that the conditions from which Mr Bailey had suffered in 2011 and 2014 were appropriately described as “adjustment disorder with mixed anxiety and depressed mood”. It reached that conclusion by a consideration of the medical evidence before it as to his depression and anxiety and noted that the adjustment disorder suffered by him was more severe in 2014 than it was in 2011. The Tribunal rejected the contention that he was suffering from post-traumatic stress disorder which was asserted to have been caused by the stressor of having been on a vessel which was taking water. In doing so, the Tribunal rejected the contention that he experienced the alleged stressor. That is, it disbelieved his evidence of the alleged near sinking of the vessel. Of course, had Mr Bailey experienced the sudden onset of PTSD as a consequence of having experienced a stressor of the kind he claimed, a conclusion might have been open that he had sustained a mental injury.

122    The Tribunal then turned its attention to Mr Bailey’s contention that s 10(7) had no application because his condition was “an ‘injury’ and not a ‘disease’” (See paragraph 20 of the reasons of the Tribunal). In this respect there was limited material before the Tribunal. The hearing was conducted on the basis of the evidence of Mr Bailey’s “symptoms” (which were evidenced by his direct statements and repeated by various medical professionals) rather than evidence of any physiological changes. There was, however, some limited evidence of the suddenness, or lack thereof, of the psychological changes which he had endured.

123    It is important to read the reasons of the Tribunal fairly and as a whole (see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (as per Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272). When that is done it can be seen that the decision making path of the Tribunal was that it:

(a)    identified from the report of Dr Chalk, that Mr Bailey suffered from “symptoms of adjustment disorder with depressed and anxious mood”;

(b)    also identified that it had had regard to Dr Chalk’s written report and oral evidence;

(c)    concluded that Mr Bailey’s reaction to difficult circumstances was the same in 2011 as it was in 2014, namely that the reaction encompassed depression and anxiety symptoms;

(d)    held that, in relation to both 2011 and 2014, Mr Bailey suffered from adjustment disorder with mixed anxiety and depressed mood and that the appellant identified that he suffered from stress related depression and anxiety;

(e)    observed that, in 2014, Mr Farr identified that the symptoms Mr Bailey suffered in 2014 were more severe than those suffered in 2011 and in that in the latter period he was suffering from moderate to severe depression on the depression / anxiety scale;

(f)    rejected the assertion that in 2014 Mr Bailey suffered post-traumatic stress disorder as a result of being on a vessel which was taking on water. The Tribunal also rejected the suggestion that Mr Bailey actually suffered from the alleged stressor;

(g)    held that the condition suffered by Mr Bailey was a psychiatric condition;

(h)    identified that “One issue is whether the mental condition of the applicant prior to him leaving work involved a sudden psychological change” (at paragraph 24). In this respect it noted that Mr Bailey had described his symptoms as being the result of a gradual build-up of fatigue, stress and lack of sleep and recited the following passage from Dr Chalk’s report which identified the gradual nature of the symptoms which Mr Bailey was experiencing:

This thirty-two year old man has been off work since June, and certainly reports some mixed improvement since that time. He describes the presence and development over time of mixed anxiety and depressive symptoms that have improved to a degree with treatment, and I note that in the material he has described a number of events that in his view have led up to the development of his condition. Certainly it does appear from his account as though his symptoms developed over a relatively brief period of time, and that similar to his previous experiences removal from the causative irritant seems to have improved matters over a period of time.

(i)    noted that that the condition might still fall within the definition of “ailment” even if it were of sudden onset because that definition included ailments of “sudden or gradual development”.

(j)    rejected the conclusion that the condition had been brought on as a result of experiencing a “stressor”.

124    The evidence which was before the Tribunal as to the psychological changes experienced by Mr Bailey was very sparse. Although Mr Bailey sought to agitate a case that his condition was PTSD which was brought on suddenly by reason of him having experienced a stressor, he failed to convince the Tribunal that he suffered the condition of PTSD or even that he experienced the claimed stressor. The other evidence relating to the speed of the development of his adjustment disorder seems to have been that his condition was a consequence of a gradual accumulation of events. This too was considered by the Tribunal. (See paragraph 24 of the Tribunal’s reasons).

125    Mr Hack QC who appeared for the respondent submitted that the Tribunal probably meant to refer to a “sudden physiological change” in paragraph 24 of its reasons when it said “One issue is whether the mental condition of the applicant prior to him leaving work involved a sudden psychological change”. However, that contention is probably not correct. The Tribunal was obviously adapting the test applied in May in relation to physical injuries so as to consider whether the psychiatric condition might have amounted to a mental injury. That is the approach which was subsequently approved of in Prain. The Tribunal acted correctly in posing to itself that question. Ultimately, the Tribunal identified that it was not material that the occurrence of the psychological disorder was sudden as the condition might still have been an ailment even if it were sudden. On the other hand, the fact that the onset of the condition was not sudden or dramatic must have weighed heavily in the conclusion in favour of the condition not being an injury as has been indicated by the High Court decisions discussed above. Given that the Tribunal had rejected the sudden onset of PTSD brought on by a stressor involving Mr Bailey being in a boat which was taking water, there was simply nothing before the Tribunal which might have possibly indicated any suddenness at all in relation to the onset of the psychological condition.

126    The above were the matters which the Tribunal considered when reaching the conclusion that Mr Bailey suffered from an “ailment”. Although not all of those matters are referred to under the heading in the Tribunal’s reasons “Did the applicant suffer from a disease?”, many were set out in the Tribunal’s discussion of the nature of the psychiatric condition which Mr Bailey suffered. Whilst the Tribunal did not expressly set down in any particularly structured form the circumstances which led it to the conclusion that Mr Bailey suffered from an “ailment”, that is not necessary where it is apparent that the Tribunal had informed itself of the nature and incidents of Mr Bailey’s condition and regarded his condition as developing gradually rather than suddenly.

127    It is not immediately clear from the submissions made on behalf of Mr Bailey on appeal what other matter, if any, the Tribunal ought to have considered or what other process it ought to have followed when reaching the determination that he had suffered from an “ailment”. It is not suggested that there was any evidence relating to Mr Bailey’s condition which was overlooked in ascertaining whether his condition amounted to an ailment. It is not suggested that any matter relating to the acuteness of any psychological changes in Mr Bailey were not given appropriate consideration. It may be that the Tribunal did not accept some oral evidence of a psychiatrist relating to this topic, however, it was entitled to do that. Given that an “ailment” includes a “mental ailment” no sophisticated reasoning is required to reach the conclusion that the symptoms amounted to an “ailment”.

128    One of the difficulties in this case is that the primary question before the Tribunal was whether s 10(7) applied. No such similar or analogous question arose in May. It may be that once the conclusion is reached that s 10(7) applies, there is no need for the Tribunal to proceed further. This is discussed further below.

129    Mr Bailey did not advance any argument that the Tribunal should have further considered whether the sequela of his adjustment disorder amount to an “injury”. That is not surprising given that the evidence did not disclose any independent event arising from the progression of the psychiatric condition which might have amounted to a separate condition which could have been characterised as an injury. Whilst it is not clear what scientific or medical evidence might become available, there is, perhaps, an element of unreality in seeking to characterise the sequelae of psychiatric illnesses as “injuries”, at least in the sense discussed in this matter. Whilst there may exist some scope for considering whether the events in question came within the definition of “mental injury” that was not debated on this appeal.

The exclusionary effect of s 10(7)

130    Once the Tribunal determined that Mr Bailey’s circumstances came within s 10(7), it is likely that this section applied to exclude recovery under the SRCA, even if the disease might also be characterised as an injury. That would afford the section a sensible operation and the converse would obviously run counter to its object and purpose. The position might not be the same if what is relied upon as the injury is the sequela of the disease rather than the disease itself. Whilst this may give rise to some illogical and inconsistent results, that would be the necessary legacy of the majority decision in Zickar, which abandoned the injury/disease dichotomy in the construction of workers’ compensation legislation.

Construction of the Tribunal’s reasons

131    It was suggested in the course of argument that all that the Tribunal did was to identify that in other cases adjustment disorders had been held to be a “disease” and thereby treat it as a matter of law that such was the case. At paragraph 22 of the Tribunal reasons those cases were referred to:

A mental health condition has been held to be an ailment under the definition in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In Kennedy v Comcare [2015] AATA 334 DP Hack at [50]-[51] regarded a depression condition as an ailment. The Federal Court of Australia in Gaffey v Comcare (2015) 239 FCR 76; [2015] FCA 1024 at [44] accepted a Tribunal finding that a psychiatric condition was a “disease” being an ailment. In Comcare v Power (2015) 149 ALD 286; [2015] FCA 1502, Katzmann J remarked at [74] that it was not in dispute that the adjustment disorder of the applicant was an ailment and therefore a disease within the meaning of Safety, Rehabilitation and Compensation Act 1988 (Cth). Recently, in Comcare v Martin [2016] HCA 43 the High Court of Australia at [13] accepted that it was appropriate that an adjustment disorder was appropriately described as a mental condition and therefore an ailment within s 5B(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and a “disease” within the meaning of s 5B(1) of that Act.

132    Given that the Full Court in May held that the question of what amounted to an injury (in the primary sense) for the purposes of workers’ compensation legislation was a question of law, it might be thought that the same would apply in relation to the question of what amounts to a disease. There is, however, no need to reach a concluded view on that in the circumstances of this case. There is nothing in that paragraph which suggests that the Tribunal considered that the question of whether an adjustment disorder was a “disease” was a matter of law which had been authoritatively decided. The contrary is true. The Tribunal makes it clear that it was identifying those cases as being instances of findings of fact. There is nothing wrong with the Tribunal, when ascertaining whether an adjustment disorder of gradual onset amounts an ailment, considering how that question was decided in other cases. Section 33(1)(c) of the Administrative Appeals Tribunal Act (1975) (Cth) provides that the Tribunal may inform itself on any matter in such a manner as it thinks appropriate. That is an ability “to get any information that is considers relevant” and is a process quite distinct from the judicial paradigm. This includes a consideration of evidence given in other cases (see Cadbury UK Ltd v Registrar of Trademarks (2008) 316 ALD 608; Wong v Law Institute of Australia [2014] VSC 136 at [51]). In this regard the comments of Moore J in Department of Veterans’ Affairs v Studdert [2001] FCA 1642 at [26] are particularly apposite:

I say that the Tribunal was entitled to act on the earlier findings of fact because of s 33 of the AAT Act. The Tribunal deals routinely with a range of matters in which common issues of fact of general application will arise. Members of the Tribunal will build up a body of knowledge about facts of general application in a class of matter that it can draw on in deciding a particular application in that class. Those facts may be known to a particular member of the Tribunal because that member has decided cases that are the same or similar and in which findings about those facts have been made. Equally those facts may be known to a particular member through decisions (containing findings of fact) of other members of the Tribunal. Plainly if a member of the Tribunal decides a matter by reference to facts known to the member in either of these ways, it should do so only if the parties have had an opportunity to comment on the facts as they might impact on the particular matter before the Tribunal. If there is a controversy about the facts in the sense that they are contentious, the Tribunal should also give the parties an opportunity to call or tender evidence about the contentious facts.

133    At the very least the Tribunal was entitled to inform itself that, within this area of discourse, there have been occasions when the condition of “adjustment disorder” has been held to be an “ailment”. There is nothing in the Tribunal’s reasons which suggests that the Tribunal considered that the question at hand was decided by reference to those exemplar cases. If that were so, there would have been no point in the Tribunal considering the impact of the speed at which Mr Bailey’s condition developed. Indeed, the Tribunal’s discussion of that point shows that it had the requirements of the test for “injury” as identified in May firmly in mind. One might add that given the analysis of the High Court authorities above, it is far from surprising that the symptoms of psychiatric illnesses are not likely to be characterised as changes which are acute enough to be classified as an “injury”. Indeed, in the recent decision in Prain the Full Court was faced with the submission that the Tribunal had expressly taken into account that the mental illnesses were usually placed in the category of disease and, in doing so, had fallen into error. That submission was rejected. The Court said at [74]:

Further, we do not consider that the reference at [20] of the Tribunal’s reasons to Comcare v Mooi was misplaced. We do not think that it was impermissible for the Tribunal to note that the authorities “tended to place mental illness in the statutory category of disease”. We would not read the Tribunal’s statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an “injury (other than a disease)”. Once again the Tribunal’s reasons assumed, correctly, that whether or not a mental illness is to be categorised as a “disease” or, alternatively, an “injury (other than a disease)” will depend on the nature and incidents of the psychological change.

134    In this case, the Tribunal merely identified a number of cases where an adjustment disorder was held to be a disease and that was in keeping with the observations referred to above. It did not determine that this was in any way conclusive of the issue as it went on to consider the suddenness of the onset of psychological change.

Conclusion as to the main ground of appeal

135    It follows that it has not been shown that the Tribunal asked itself the wrong question or applied the wrong test in ascertaining whether Mr Bailey was suffering from a “disease” or an “injury”. It is also apparent that Mr Bailey cannot succeed in relation to the sole issue which he sought to ventilate during the hearing of the appeal. He postulated a test which required the Tribunal to consider the nature and extent of any physiological changes when there was no evidence of any such changes. He might have agitated a case upon an assertion that the Tribunal was required to consider the nature and extent of any psychological changes which might have characterised his condition as a mental injury. However, he did not do so. Even if he had sought to advance such a case, it would not have succeeded. There was no error by the Tribunal in the manner in which it considered the nature and extent of Mr Bailey’s psychological conditions including the acuteness and speed of their development.

136    It follows that Mr Bailey cannot succeed on this ground of appeal.

Other matters

137    Although at the hearing of this appeal Counsel for the appellant acknowledged that the above matter was the only “real” issue in the appeal, it is appropriate to say something about the other grounds which were raised in the written submissions.

Were the “adjustment disorders” in 2011 and 2014 the same disease?

138    Mr Bailey asserted that the Tribunal erred in determining that he suffered from the same disease in 2011 as he did in 2014. Given that he accepted that the question of whether an “adjustment disorder” was a disease was one of fact, it must follow that, on its face, this second question is also one of fact. On that basis no valid ground of appeal can be founded upon it.

139    However, Mr Bailey’s submissions go further and assert that the Tribunal failed to consider what he said was “uncontested evidence” as to the character of the condition although he was not able to precisely identify what that evidence was. In the written submissions he made reference to the fact that the “adjustment disorder” suffered in 2014 was more severe than that which he suffered in 2011, but that the Deputy President did not consider that issue. However, it is patent from paragraph 14 of the Tribunal’s reasons that it did note the increased severity of the 2014 disease. The Tribunal reasoned that the appellant suffered from the same disease on both occasions even though the second was more severe.

140    To the extent that Mr Bailey’s submissions assert that there was an absence of evidence as to the coincidence of the conditions in 2011 and 2014, the respondent submits that there was before the Tribunal, evidence which supported the proposition that the condition suffered by Mr Bailey in 2011 was also an adjustment disorder. That evidence included the following:

(a)    The report of Dr Chalk which had identified the earlier condition was a brief reactive depression, or an adjustment disorder that had resolved (T20, p 75). It is plain that Dr Chalk considered that the conditions on each occasion were the same.

(b)    That Mr Bailey did develop symptoms of an adjustment disorder with depressed and anxious mood in 2014 (T20, pp 75-76) and that was the same condition as he had been diagnosed as having suffered in 2011;

(c)    Under cross examination Dr Chalk identified that in both 2011 and 2014, Mr Bailey suffered from adjustment disorder (See in particular the cross examination at pages 92 and 94 of the transcript before the Tribunal). Dr Chalk considered that the presentations in 2011 and 2014 were very similar and Mr Bailey’s reactions to difficult circumstances was the same in each case including depressive symptoms, anxiety symptoms and stress symptoms. (see page 89 of the transcript)

(d)    In his claim form under the SRCA Mr Bailey had described himself as having suffered a similar injury or illness in April 2011 (T14, p 46);

(e)    The clinical records of Mr Bailey’s treating General Practitioner also recorded that Mr Farr had diagnosed Mr Bailey in 2011 as suffering from an “adjustment disorder” which was the same condition that he had suffered in 2014.

141    The suggested ground that there was no evidence on which the Tribunal might reach a conclusion that Mr Bailey suffered the same disease in 2011 and 2014 or that such a finding was “not open”, cannot be sustained.

142    At paragraph 25 of his written submissions Mr Bailey asserts that “the most that could be said is that Mr Bailey had twice suffered from an adjustment disorder”. It seems that there is in this submission the implicit contention that s 10(7) did not contemplate an employee suffering the same disease on separate occasions but only that the employee must continually have the same disease which reoccurs. This appears to be a suggestion that the section is directed to a continuing disease which might become symptomatic from time to time. That is not a correct interpretation. The words “or had not previously suffered from that disease” makes that clear. The section contemplates that the disease which has not been disclosed might be one which continued to exist or was one from which the employee had previously suffered such that the second episode of the suffering of the disease is separate and distinct from the first. Therefore, the representation which might trigger s 10(7) could relate to whether the employee was presently suffering from the disease which was then asymptomatic or, alternatively, a disease which the employee had previously suffered from but which they had fully recovered. The failure to disclose either would be caught by the section.

Did Mr Bailey make a representation?

143    The issue in this part of the appeal is whether Mr Bailey had made a representation that was “for purposes connected with his employment in the maritime industry”.

144    From his written submissions it appears that Mr Bailey accepts that the representation was made and that the issue in this respect is whether that representation was connected with Mr Bailey’s employment in the maritime industry. The answer to that question would appear to be a factual one based upon an analysis of the circumstances in which the representation was made. It is assumed that the appellant seeks to agitate this as raising a “question of law” upon the presumption that there was “no evidence” on which such a finding might be made.

145    The “Medical Information Form” on which the representation was made was a document of Western Desert Resources whose name appeared prominently at the top. That is so even though the tug, on which Mr Bailey was employed to work, was owned or operated by Broadsword. The tug was to be based at Bing Bong where Western Desert Resources owned the mine and transhipping facility and Broadsword had been engaged by Western Desert Resources to tranship ore in barges to larger vessels offshore. It does not seem to be in contest that in order for Mr Bailey to engage in his work on the tugboat, he was required to enter and be upon the mine and transhipping facility site. Necessarily for work health and safety reasons, Western Desert Resources required persons entering that site to provide information to it including medical information. One might think that this is particularly prudent given the remote location of the Bing Bong facility which had limited access to medical facilities and services. Mr Bailey understood that he was required to provide that information on the Medical Information Form in order for him to commence work on that site (Part B, Tab 52, Transcript p 13, line 41). He gave evidence to the effect that he had received the Medical Information Form from a Broadsword employee who sent him an email saying:

“Please fill these forms out ASAP and get them back to me so we can get you on site.” (Part B, Tab 52, Transcript p 12, line 12-18).

146    It is a necessary conclusion that the purpose for which Mr Bailey filled out the Medical Information Form was so that he would have clearance to enter the mine and transhipping facility site so that he might take up his employment as a launch master. It follows that the making of the representation was for purposes connected with his employment or proposed employment in the maritime industry. The completion of the form including the answering of the question relating to other medical conditions was a precondition to his undertaking work in the maritime industry. Clearly, there existed evidence from which the Tribunal might make the finding that the connection required by the statute existed.

147    It follows that this ground of appeal must also fail.

Did Mr Bailey make a “wilful” and “false” representation?

148    The thrust of the submission on behalf of Mr Bailey in this respect is also that there was “no evidence” on which the Tribunal might find that he made a wilful and false representation by filling out the medical information form in the way in which he did.

149    In relation to this the Tribunal correctly identified that for a representation to be regarded as “wilful” it was necessary that the “representation be made without any belief that it is true” (Comcare v Porter (1996) FCR 139 at 150). The Tribunal found that Mr Bailey was conscious that he was making a misrepresentation on the Medical Information Form and accordingly it found that the misrepresentation was “wilful”.

150    In his submissions, Mr Bailey focussed upon the proposition that it was not put to him in the course of cross examination that he had made a wilful and false representation or that he intended to mislead. It is said that it was also not suggested to him that he believed that what he said on the form was false or that he did not believe it to be true. This appears to be a reference to the rule in Browne v Dunn which is to the effect that the cross examiner of a witness in adversarial litigation must put to a witness the nature of the case on which the cross examiner’s client proposes to rely in contradiction to that witness. However, pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), proceedings in the Tribunal are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act permits. That section also provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. These factors tend to negate the applicability of the rule in Browne v Dunn in proceedings before the Tribunal. This is similar to the position of the Migration Review Tribunal (as it then was) at the time of the decision of the High Court in Re Ruddock; ex parte S154/2002 (2003) 201 ALR 437 at 449-450. In that case Gummow and Heydon JJ said of the rule in Browne v Dunn at [56]:

However, the rule has no application to proceedings in the tribunal. Section 420(2) of the Act states:

The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49], 635 [74]–[77], 642–3 [108], 668 [179]; 162 ALR 577 at 588, 594, 600, 620. See also Sue v Hill (1999) 199 CLR 462 at 485 [42], 520 [147]–[148]; 163 ALR 648 at 661, 689). Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282; 136 ALR 481 at 498–9. See also Mahon v Air New Zealand [1984] AC 808 at 814; [1984] 3 All ER 201 at 205), administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.

[57] Accordingly, the rule in Browne v Dunn has no application to proceedings in the tribunal. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant (Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]; 162 ALR 1 at 51 per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 146 [52]; 179 ALR 296 at 309 per Kirby J). The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out (Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]; 162 ALR 1 at 51 per Gummow and Hayne JJ); it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.

151    Those paragraphs appear to be generally applicable to matters before the Tribunal (see in particular the decision of Healy J in Lawrance v Centrelink (2005) 88 ALD 664 at 672, [31]; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 594 – 595, [149] – [151] and Sun v Minister For Immigration and Border Protection (2016) 243 FCR 220 at 241 – 242, [68]).

152    It follows that Mr Bailey cannot obtain any forensic advantage by relying upon an asserted failure to put any question to him in the course of the proceedings. In any event, it appears that the issues which were to be considered by the Tribunal were well and truly ventilated before the hearing commenced such that, if the rule did apply, there was sufficient compliance with it. It could not be said that Mr Bailey was not aware that the respondent was relying on s 10(7) as an answer to his claim for compensation. That being so, he was aware or ought to have been aware that the respondent would submit that he had made a wilful misrepresentation in the Medical Information Form.

153    Mr Bailey’s submission that there was no evidence on which the Tribunal might have found that the making of the representation was wilful cannot succeed. There was more than sufficient evidence on which the Tribunal might have reached that conclusion. In its reasons it pointed to a number of matters including:

(a)    That on 26 June 2014 Mr Bailey spoke of his pre-existing suicidal tendencies and depression. That tends to suggest that he would have been well aware a month before he filled out the form of the condition from which he had suffered;

(b)    Mr Bailey’s statement to Mr Oliver that he did not disclose his prior psychological condition to the respondent because it would have been detrimental to his employment opportunities.

(c)    The Tribunal disbelieved Mr Bailey when he asserted that he had not been informed that he had been diagnosed with anxiety and depression in 2011;

(d)    The medical records of Mr Farr recorded that Mr Bailey was advised on 25 May 2011 of his adjustment disorder condition;

(e)    The Medical Information Form was not a form which Mr Bailey had casually completed. He had given evidence that he had “leant some thought” to the information which he would provide in it. That was particularly so in the context that he understood that if he had included additional information it would be detrimental.

154    The evidence on which the Tribunal relied was supportive of the contention that the representation made by Mr Bailey was wilful. That being so this ground of appeal must also fail.

Conclusion and orders

155    In the result the appeal must be dismissed.

156    The orders which we would make are:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Associate:

Dated:    22 December 2017