Federal Court of Australia

Woodhouse v Comcare [2021] FCAFC 95

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

COLLIER J:

1    I am very grateful to his Honour Derrington J for providing me his reasons in draft, I entirely agree with his Honour’s reasoning and proposed orders.

Associate:

Dated:    7 June 2021

REASONS FOR JUDGMENT

RANGIAH J:

2    I agree with the reasons of Derrington J and the orders proposed by his Honour.

Associate:    

Dated:    7 June 2021

REASONS FOR JUDGMENT

DERRINGTON J:

3    This was an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed two decisions of Comcare concerning the applicant, Ms Jacqueline Woodhouse. A direction was made under s 44(3) of the AAT Act that this appeal be heard by the Full Court.

4    The appeal concerns only the first of the decisions affirmed by the Tribunal, namely that the applicant was not presently entitled to compensation pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The applicant appeals that decision, primarily on the ground that the Tribunal erred by construing the relevant definition of “disease” to mean that an “ailment” only continues to be a “disease”, and is thus compensable as an “injury”, if it continues to be contributed to, in a material degree, by the employee’s relevant employment. She also appeals on the grounds that the Tribunal erred by construing the entitlement to compensation for incapacity for work pursuant to s 19 as being limited to incapacity for work which is “as a result of” a contemporaneous injury, and a similar submission is made in relation to application of the deeming provision in s 7(6).

5    For the reasons which follow, the appeal should be dismissed.

BACKGROUND

6    The applicant is a former professional violinist. During her career, she held positions in a number of pre-eminent Queensland based orchestras. On the evidence before the Tribunal, it also appears that she has suffered from psychiatric conditions of greater and lesser severity since childhood. Those conditions plainly worsened following a performance in August 2003 and have subsequently had a substantial, adverse impact on her ability to function in many aspects of her life, including causing the end of her career.

7    The applicant commenced her professional career with the Queensland Youth Orchestra. In the mid-1990s, she obtained a position with the Queensland Philharmonic Orchestra (QPO). In 2001, the QPO was merged with the Queensland Symphony Orchestra (QSO) to form the Queensland Orchestra (QO). This created an environment where musicians from each orchestra were required to compete for positions in the new entity. In her Amended Statement of Facts, Issues and Contentions dated 29 March 2019 (ASFIC), the applicant reported experiencing “bullying, bitchiness and backstabbing behaviours” during the merger process.

8    Following the merger, the applicant obtained a prestigious position with the QO, described either as “First Violinist” or “First Chair”. In her ASFIC, she reported experiencing further hostility after obtaining that position. She also later became aware of a complaint to the QO’s leadership group by another musician to the effect that she “had not been practising sufficiently and was undeserving of her placement in the first chair violin section”. Although she was advised that the complaint had been dismissed as baseless, she was nonetheless shocked and upset by it and she claims this led to her losing confidence and experiencing increased anxiety.

9    The culmination of those events was that the applicant experienced a severe panic attack in August 2003 while performing with the QO, resulting in her abruptly leaving the stage before the performance had ended (the Incident). Putting aside how the ailments from which she suffered following the Incident and their cause were to be classified, it is clear on the findings of the Tribunal that her mental health deteriorated significantly at the time of or following the Incident. The pharmacology regime prescribed by her treating psychiatrist was ineffective. Her attempts to return to work undertaking alternative work or working reduced hours were also unsuccessful, and she was ultimately unable to return to work in any capacity.

Legislative background

10    The SRC Act was originally enacted as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). It established a new statutory workers’ compensation scheme for persons who suffer injuries in the course of their employment with the Commonwealth or a Commonwealth authority: Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth) (Explanatory Memorandum), 8. In that regard, it replaced the former Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) which had in turn replaced the earlier Commonwealth Employees’ Compensation Acts 1930-1970 (Cth).

11    Paragraph (c) of the definition of “Commonwealth authority” in s 4(1) of the SRC Act confers a power upon the responsible Minister to declare certain bodies corporate to be Commonwealth authorities. In 2000, a declaration was made in respect of the QO’s corporate entity, Queensland Orchestras Pty Ltd: Safety, Rehabilitation and Compensation Act 1988 – Notice of Declaration – Queensland Orchestras Pty Ltd (Notice No. 4 of 2000). Accordingly, while the applicant was employed as a violinist with the QO, she was an “employee” for the purposes of the SRC Act: s 5(1). Presently, she remains an employee under the SRC Act, but for limited purposes: s 5(9).

12    Part II of the SRC Act governs the circumstances in which Comcare is liable to pay compensation in respect of an “injury” suffered by an “employee”.

13    Section 14 is pivotal to this appeal. It makes Comcare liable to pay compensation in respect of injuries that result in death, incapacity for work, or impairment, and provides:

14    Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

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

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

14    The provisions in Part II following s 14 provide more specifically in relation to Comcare’s liability to pay compensation under that provision by reference to the detrimental consequences of the injury: injuries resulting in death (Division 2); injuries resulting in incapacity (Division 3); and injuries resulting in impairment (Division 4).

15    In particular, in relation to injuries resulting in incapacity, s 19 provides:

19    Compensation for injuries resulting in incapacity

(1)    This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2)    Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

…

16    There are a series of deeming provisions in s 7 of the SRC Act, one of which, s 7(6), concerns whether incapacity for work or impairment is the result of a particular “disease”, and provides:

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

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

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

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

17    There are two further liabilities to pay compensation in Division 1 of Part II. In particular, Comcare is liable pay compensation in respect of the cost of medical treatment obtained in relation to an injury, whether or not it results in death, incapacity for work, or impairment. In that regard, s 16 provides:

16    Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

    Note:    Compensation is not payable under this subsection in relation to certain claims (see section 119A).

(2)    Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

…

18    Comcare is also liable to compensate an employee for certain property damage resulting from accidents that do not cause injury: s 15.

19    Key to the application of ss 14, 16 and 19 in this appeal are the definition of “injury” for the purposes of the SRC Act and, as an element of that definition, the definition of “disease”.

20    The definitions of those terms have been altered by amendments to the SRC Act since the Incident occurred in 2003: Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), Sch 1, cll 5 and 6. However, the transitional provisions of the amending act preserve the operation of the former definitions in the circumstances of this appeal: Sch 1, cll 41 and 42. Unless otherwise indicated below, a reference to the terms “disease” or “injury”, or to the definition of those terms, is a reference to those terms as they were defined in s 4(1) before the amending act came into effect.

21    The parties to the appeal agreed that for the present purposes the SRC Act, as at the date of the Tribunal’s decision, otherwise governs the applicant’s entitlement to compensation.

22    At the relevant time, s 4(1) defined “injury” as follows:

injury means:

 (a)    a disease suffered by an employee; or

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

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

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

23    At the relevant time, s 4(1) defined “disease” as follows:

disease means:

(a)    any ailment suffered by an employee; or

(b)    the aggravation of any such ailment;

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

24    Section 4(1) also defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” and defines “aggravation” to include an “acceleration or recurrence”. Those definitions have not changed since the Incident occurred. It was not in dispute that the psychiatric conditions which the applicant presently suffers were “ailments” for the purposes of the SRC Act. However, their categorisation as a “disease” and an “injury” is the essence of the dispute between the parties.

25    The terms “injury” and “disease” are now defined by ss 5A and 5B respectively. As the new definitions generally adopt the same structure as the former definitions, the discussion in these reasons is likely to be relevant to the interpretation of the new definitions and their operation.

The applicant’s compensation claim

26    On 9 February 2004, the applicant lodged a workers’ compensation claim with Comcare (as she was an “employee” for the purposes of the SRC Act for the reasons explained above). In her claim form, she described her condition as being “panic disorder with major depression” and she related her inability to perform on stage.

27    Medical investigations in respect of the applicant’s conditions ensued. On 9 June 2004, Comcare accepted liability in respect of her claim under s 14 of the SRC Act on the basis that she had the following compensable conditions:

(a)    aggravation of major depression disorder (MDD), recurrent episode; and

(b)    aggravation of anxiety state.

28    In the period that followed, the applicant received compensation in the form of payment of the cost of her medical expenses and incapacity payments pursuant to ss 16 and 19 of the SRC Act (until 14 September 2017). She also received a lump-sum amount of compensation for permanent impairment pursuant to Div 4 of Part II of the SRC Act.

29    Unfortunately, the applicant’s condition has not substantially improved since 2004. The Tribunal did observe (at [166]) that there was an absence of evidence of her receiving treatment during most of 2008 and 2009 and, from this, inferred that it was likely that her symptoms had resolved during that period. If that was so, her condition plainly deteriorated again, and the later medical reports are consistent with the pre-2008 reports in terms of the extent of her condition and its adverse consequences. The evidence also indicates that she has required extensive treatment, including periods of hospitalisation, since 2009.

30    The Tribunal’s reasons record that the applicant’s mental health was assessed on numerous occasions by several medical professionals, including for the purposes of assessing her ongoing claims for compensation pursuant to the SRC Act. The medical reports feature differing characterisations of the causes and classifications of the applicant’s conditions before and at times after the Incident. The more recent reports before the Tribunal included several which questioned the contribution of the applicant’s employment with the QO to her current condition. For example, a report of a psychiatrist, Dr Greig Richardson, dated 2 December 2013 expressed the view that “it is difficult to ascertain how said employment can be contributing to her condition at this present time given it has been ten years since she left the Queensland Symphony Orchestra”. (The reference to the QSO should be understood to be a reference to the QO). Other reports identified the impact of non-work-related stressors on the applicant’s current condition and/or characterised her condition as being the natural progression of her pre-existing condition. It should also be noted that the applicant’s treating psychiatrist, Dr Larder, continued to express the view that her employment with the QO continued to contribute to her current condition.

31    On 21 August 2017, Comcare advised the applicant of its intention to determine that she was not presently entitled to compensation pursuant to the SRC Act. The letter invited her to present further medical evidence supporting her claim for compensation. It is not entirely clear on the material before the Court whether the applicant availed herself of that opportunity, but in any event Comcare advised her on 14 September 2017 that it had determined that she had no present entitlement to compensation pursuant to ss 16 and 19 of the SRC Act. Following her request made on 19 September 2017 for a reconsideration, Comcare affirmed that determination on 17 October 2017 on the basis that her current condition was “due to [her] pre-existing psychological condition” and her employment with the QO was no longer a “material contributing factor” to her incapacity.

32    On 18 October 2017, the applicant applied to the Tribunal for a review of Comcare’s decision. On 20 July 2020, the Tribunal affirmed that decision (the Tribunal’s decision).

the tribunal’s decision

33    The Tribunal identified the factual issues for determination as follows (at [54] and [55]):

(a)    whether the applicant continued to suffer from the compensable conditions accepted by Comcare in 2004; and

(b)    whether those conditions continued to be materially contributed to by the applicant’s previous employment with the QO (such that she continued to be entitled to receive compensation pursuant to ss 16 and 19 of the SRC Act).

34    The framing of the issues in this way plainly derives from the issues identified for determination in the AFSIC and in Comcare’s Amended Statement of Facts, Issues and Contentions dated 28 June 2016. The latter issue is premised on the construction of the term “disease” (as that term was formerly defined in s 4(1)) as requiring that an “ailment” continue to be contributed to in a material degree by the applicant’s relevant employment. It was not in dispute that this was the construction adopted by the Tribunal in reaching its decision. Counsel of the applicant, Mr Black, accepted that this was also the construction which the parties had submitted the Tribunal should adopt.

35    In determining the issues stated above, the Tribunal assayed a considerable volume of medical evidence produced by the parties concerning the applicant’s mental health since her childhood. That evidence included various medical reports discussing the causes and classification of the applicant’s conditions before and at times after the Incident. The parties’ respective experts, Dr Lovell and Dr Mathew, also gave concurrent evidence to the Tribunal at the hearing: see [116] to [118] of the Tribunal’s decision.

36    The key findings and conclusions of the Tribunal may be summarised as follows:

(1)    Prior to the Incident, the applicant had:

•    a pre-existing anxiety disorder: at [90]; and

•    a pre-existing depressive disorder: at [96]; described as a “recurrent form of depression”: at [101].

(2)    The Tribunal was not satisfied on the available evidence that the applicant had MDD prior to the Incident, but it was clear that she had MDD following the Incident: at [101].

(3)    In the course of the applicant’s employment with the QO, she experienced the following (the Employment Factors): at [56] and [73]:

•    bullying and harassment during the merger of the QPO and the QSO;

•    shock and upset upon learning of the complaint about her; and

•    a loss of confidence and increased anxiety culminating in the Incident.

(4)    In 2004, the applicant had the following compensable conditions (the Compensable Injuries): at [103]:

•    an “[a]ggravation of depressive disorder resulting in major depressive disorder, recurrent” or, more specifically, the applicant had MDD: at [101]; and

•    an “[a]ggravation of anxiety state”.

(5)    The Employment Factors caused the applicant to develop the Compensable Injuries: at [102] and [161]. This was, in effect, a finding that her employment with the QO contributed, in a material degree, to those Compensable Injuries: at [102] and [103].

(6)    Based on the absence of evidence of the applicant receiving treatment between February 2008 and December 2009, it was likely that her symptoms from the Compensable Injuries had resolved at that time: at [166].

(7)    The applicant presently suffers from “recurrent major depressive disorder, social anxiety disorder, panic disorder largely in remission and a generalised anxiety disorder”: at [140].

(8)    After 2004, there were “a plethora of non-work-related factors contributing to [the applicant’s] ongoing symptomology” (the Non-Employment Factors): at [170] and [171]. Those factors included, in particular, her feelings in relation to the loss of her career as a professional violinist and her related sense of lost opportunity: at [172].

(9)    The Tribunal specifically rejected the applicant’s submissions that any of the Non-Employment Factors were the “resultant effects” of the Compensable Injuries in the sense that those factors would not have arisen “but for” those injuries: at [157] and [158]. There was no evidence to support such findings: at [150]; nor to support a finding that she had been left susceptible to future depressive episodes as a result of the Compensable Injuries: at [151] and [158]. Rather, it was “an undisputed fact that [she] has been suffering from essentially lifelong anxiety”: at [158].

(10)    Given the extent and significance of the Non-Employment Factors and their impact on the applicant, her condition can no longer be said to be “contributed to a material degree by her employment with the QO over 15 years ago”: at [173]. Those factors have “crowded out” the Employment Factors which originally gave rise to her Compensable Injuries: at [173]. Put another way, “[the applicant’s] current psychological ailments are not contributed to, to a material degree, by the claimed Employment Factors that were the subject of her 2003 claim for compensation”: at [178].

(11)    There was no evidence before the Tribunal that “[the applicant’s] incapacity would not have occurred but for the injury” (such that s 7(6) would apply): at [174]. In context, this should be understood as meaning her current incapacity would not have occurred but for her former “injury” (constituted by the Compensable Injuries).

37    Those findings and conclusions were largely not in dispute on appeal.

The applicant advances new construction

38    Before this Court, the applicant advanced a construction of the definition of “disease” which it had not made to the Tribunal. That construction was that an ailment was a “disease” and therefore an “injury” if it was originally contributed to in a material degree by the employee’s employment, even if that causal connection no longer exists. On that basis, she claims that she should succeed because she is presently debilitated by MDD, and it was MDD from which she suffered as a result of the Incident in 2003. This submission involved somewhat of a departure from the construction of “disease” which the parties had urged the Tribunal to accept: namely that, to constitute a “disease”, an ailment must continue to be contributed to, in a material degree, by the employee’s employment. The Tribunal dealt with the matter on that basis and concluded that the conditions from which the applicant presently suffers were not contributed to, in the requisite degree, by her employment. Necessarily, it did not consider whether those conditions now suffered were the same as the Compensable Injuries previously suffered by the applicant or, if they were, whether Comcare therefore remained liable.

39    Mr Black accepted that, on the applicant’s now preferred construction of “disease”, had the Tribunal found that the applicant’s current ailments were different ailments to the Compensable Injuries, then they would not constitute a “disease” and thus would not be compensable as an “injury”. However, he submitted that no such finding had been made. Comcare did not contend to the contrary, but did submit that, had the applicant raised that construction before the Tribunal, it would have led further evidence with a view to establishing that her current ailments were not the same as the Compensable Injuries.

40    It is clear that the Tribunal did find that the applicant was currently suffering from, inter alia, “recurrent major depressive disorder”: at [140]. While this was the same type of ailment as it found she suffered from following the Incident: at [101] and [103]; a finding that she suffered from the same type of ailment does not necessarily amount to a finding that she suffered from the same ailment. On the other hand, the Tribunal found that the applicant’s symptoms had likely resolved in 2008 and 2009: at [166]; but it also did not make a further finding that her current ailments were not the same as the earlier Compensable Injuries on that basis.

questions of law

41    The applicant’s notice of appeal identifies four questions of law for the purposes of s 44(1) of the AAT Act to be answered on appeal:

(1)    Did the Tribunal err by construing ss 4, 16 and 19 of the SRC Act as meaning that compensation was only payable if the applicant’s previous employment by the Commonwealth continued to be a material contributing factor to her ailment?

(2)    In the alternative to Question (1), did the Tribunal err by failing to ask whether the “injury” from which it found the Applicant had in fact suffered, resulted in any current incapacity for the purposes of s 19(1) of the SRC Act?

(3)    Did the Tribunal err by construing s 7(6) of the SRC Act as being applicable only where an employee continues to suffer from the originally compensable “injury”?

(4)    Did the Tribunal err by failing to consider the application of ss 7(6)(b) or (c) of the SRC Act to the facts and evidence before the Tribunal?

Question 1

42    The issue raised by Question 1 was whether, on the proper construction of the SRC Act, an ailment is only a “disease” (as formerly defined by s 4(1)) if, as at the relevant time, it continues to be contributed to, in a material degree, by the employee’s employment. That “relevant time” is the period in respect of which the employee claims an entitlement to compensation. In its decision, the Tribunal adopted a construction of “disease” that required an employee’s employment to continue to contribute, in a material degree, to the ailment during the period that covered the “relevant time”, citing the decision of the Full Court in Prain v Comcare [2017] FCAFC 143 (Prain).

43    Applying that construction, it found that the applicant ceased to suffer from a “disease” for the purposes of the SRC Act because the Non-Employment Factors had “crowded out” the Employment Factors such that they no longer contributed, in a material degree, to her current ailment: at [173]. In other words, her employment with the QO had ceased to contribute, in a material degree, to her current ailment: at [178]. Accordingly, she no longer suffered from a “disease” or an “injury” for the purposes of the SRC Act, and thus had no present or future entitlement to compensation under ss 14, 16 and 19: at [178] and [180]. The question so answered by the Tribunal accorded with the issues as the parties had advanced them in argument.

Should the applicant be permitted to raise a new point on appeal?

44    It was not in dispute that Question 1 raises a new point on appeal. Before the Full Court, the applicant contended that the Tribunal had erred by adopting a construction of “disease” for which she had contended and which the Tribunal had ultimately adopted. She now submits the Tribunal ought to have construed “disease” as including an “ailment” which, albeit originally contributed to in the relevant degree by her employment, no longer had such a connection.

45    Comcare argued the applicant should not be permitted to raise this new construction on appeal because it may have adduced further evidence or made further submissions to the Tribunal had it been advanced below. Specifically, it submitted that:

(a)    it could have led additional evidence in relation to the nature of the applicant’s conditions following the Incident and as at the date of the hearing before the Tribunal;

(b)    based on such evidence, it would have contended that the conditions to which the applicant’s employment with the QO contributed were aggravations of her pre-existing ailments, which had since resolved, and that her present condition was, in fact, the continuation of her pre-existing ailments (being her underlying psychological condition) or a separate aggravation thereof; and

(c)    because of the construction advanced by the parties below, it instead submitted that whatever label was applied to the applicant’s present ailments, they were no longer “diseases” for the purposes of the SRC Act and, therefore, were no longer compensable as “injuries” because they were no longer contributed to, in a material degree, by her relevant employment.

46    The applicant said little in her submissions as to why she should be permitted to raise the new construction on appeal. She could not contend that she did not have an opportunity to do so at first instance. Rather, Mr Black submitted that the consequences of the failure of her legal representatives to raise it should not be visited upon her personally given its obvious importance. It was also submitted in her written submissions in reply that it was expedient and in the interests of justice to consider the issue for several further reasons: Repatriation Commission v Warren (2008) 167 FCR 511 [78]. Nothing was said for the applicant in relation to whether the point could possibly have been met by Comcare calling further evidence at first instance. Whether this was an oversight or a tacit admission that there was nothing that could be said in its favour, the failure to do so is ultimately fatal.

47    In Summers v Repatriation Commission (2015) 230 FCR 179 (Summers), the Full Court summarised the approach to be taken where a new point is raised on appeal to the Full Court from the decision of a primary judge on appeal from the Tribunal under s 44 of the AAT Act (at [93] – [94]):

Almost self-evidently, proposed ground 4D(a) was not raised before the primary judge; and parties are of course bound by the way a case is conducted. Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and, as reference to authorities such as University of Wollongong v Metwally (No 2), Water Board v Moustakas and Coulton v Holcombe show, an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue. The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so.

The Court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised. Generally speaking the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy.

(Citations omitted).

48    In Haritos v Commissioner of Taxation (2015) 233 FCR 315, the Full Court approved of an analogous approach where a new point is raised on appeal to a primary judge from the Tribunal under s 44 of the AAT Act: at [79] – [80]. It is clear then that the rule applies even where the consequence of success on the new point would be remittal to the Tribunal for a fresh hearing (during which the point could be met by calling further evidence). This reflects the view that parties should not be permitted to reduce hearings at first instance to mere preliminary skirmishes: Coulton v Holcombe (1986) 162 CLR 1 (Coulton) at 7.

49    The issue of whether a new point sought to be raised on appeal could possibly have been met by the respondent calling further evidence at first instance is generally of crucial importance and it is necessary for the party seeking to raise the new point to negative the possibility that it could have been so answered: Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71; Coulton at 7 – 9; Water Board v Moustakas (1988) 180 CLR 491 (Moustakas) at 496 – 497; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51] – [52]. Only once that possibility is negatived is it necessary to consider whether it is expedient and in the interests of justice to permit the new point to be raised: Moustakas at 497; O’Brien v Komesaroff (1982) 150 CLR 310 at 319.

50    In the present case, a very large amount of material had been gathered in relation to Ms Woodhouse’s psychiatric conditions both prior to and at times after the occurrence of the Incident in 2003. Whilst Comcare acknowledges the abundance of that evidence, it submits that it would have sought to lead additional evidence directed to the question of whether the applicant’s current condition is the same as that to which her employment was found to have contributed, being the Compensable Injuries. It submitted, with justification, that the evidence adduced before the Tribunal did not address that issue.

51    Comcare’s submissions should be accepted. On the construction accepted by the parties and adopted by the Tribunal below, the factual inquiry focused upon whether the ailment continued to be contributed to, in a material degree, by the employee’s employment. In that analysis, it was irrelevant that it was characterised as being the same or a different ailment as that from which she suffered following the Incident. Conversely, if her employment had ceased to contribute in a material degree to an ailment, it did not matter that it was the same ailment as that from which she suffered earlier. By contrast, on the construction for which the applicant now contends, it is only necessary to consider whether the ailment from which she now suffers is the same as her earlier ailment, the contraction of which was contributed to in a material degree by her employment. Whether that employment continues to contribute to the applicant’s ailments is irrelevant. As was noted above, Mr Black accepted that, on that construction, had the Tribunal found that the applicant’s current ailments were not the same as the Compensable Injuries, they would not be compensable under the SRC Act.

52    It necessarily follows that the applicant’s new point could have been responded to by the calling further of evidence at first instance. It is almost self-evident that, had the applicant advanced the new construction below, Comcare could have lead further evidence in relation to whether the applicant’s present ailments were the same as those from which she previously suffered. The argument it put to the Tribunal in relation to whether her employment continued to contribute to her ailment was only an answer to her claim on the construction advanced to and adopted by the Tribunal. It was not an answer on the construction now raised.

53    The applicant did not make any contrary substantive submissions in respect of these matters and, accordingly, the applicant should not be granted leave to advance the new point raised by Question 1 on appeal to this Court.

54    It can be accepted that, had the contrary conclusion been reached in relation to that threshold issue, it would have been expedient and in the interests of justice to consider the new point. It concerns a discrete point of law which is of importance to the question of the applicant’s statutory entitlements and has significant implications for the statutory scheme established by the SRC Act. While the failure to raise the point before the Tribunal ought not to be condoned, it does not appear that this was a case of deliberate failure. In the circumstances, the failure of applicant’s legal representatives to raise the point at first instance ought not to be visited upon her personally, particularly where the relevant point concerns statutory rights of considerable importance to her: Summers [95].

55    The conclusion reached above is unfortunate because it thwarts the applicant’s success on Question 1 where her substantive argument is not wholly devoid of merit. This is all the more unfortunate where the issue raised is of considerable importance to her and is of importance to the operation of the statutory scheme created by the SRC Act. In those circumstances, and because the new point was argued at length, it is convenient to consider the issue raised by Question 1 in relation to the proper construction of “disease” for the purposes of the SRC Act.

Did the Tribunal err by failing to address issue that was not raised for its consideration?

56    Before doing so, however, it is necessary to briefly consider the submission that the Tribunal did not err by failing to consider an issue that was not raised for its consideration: Commissioner of Taxation v Glennan (1999) 90 FCR 538 (Glennan) [82]. While that “general rule” may be accepted as being correct, it may not necessarily apply where the issue raised concerns the proper construction of the provisions which the Tribunal had to and did apply: Commissioner of Taxation v Service [1999] FCA 1304 [27].

57    Furthermore, the statement of a “general” rule implicitly assumes that there may be exceptions: Batchelor v Commissioner of Taxation (2014) 219 FCR 453 [94]. See also Carpentaria Transport Pty Ltd v Commissioner of Taxation [1990] FCA 311 [10]. The circumstances of this case appear to fall within an exception to that rule, if it applies at all. In particular, there is difficulty in accepting that the Tribunal does not err where it adopts an erroneous construction of a provision (even at the submission of the parties) with the consequence that it misunderstands the factual inquiry to be undertaken and incorrectly determines a person’s statutory rights. The position may differ where the Tribunal does not consider the application of a provision at all and, in such a case, it could properly be said that it was not raised as an issue before the Tribunal.

58    The effect of the discussion above is not to preclude a party from contending that the other party should not be permitted to raise a new construction of a provision which the Tribunal had to and did apply. Indeed, in that case, the principles discussed above in relation to when a party should be permitted to raise a new point on appeal provide a better framework within which to determine when a party should be bound by its conduct of proceedings at first instance.

What is the proper construction of the definition of “disease”?

The applicant’s submissions

59    The essence of the applicant’s submissions in support of the new construction was that there was no basis in s 14 or the definitions for construing the definition of “disease” as requiring an employee’s employment to continue to contribute to their condition. Rather, the use of the past tense “was” in that definition should be given effect such that an ailment or an aggravation thereof is a “disease” if it was ever contributed to, in a material degree, by relevant employment. On that construction, the employee would then be entitled to compensation so long as that ailment or the aggravation of an ailment continued, subject to any other restrictions in SRC Act. The need to give effect to the use of the past tense was said to be emphasised by the contrasting use of the present tense in relation to the term “injury” in ss 16 and 19.

60    Care must be taken in understanding of this submission. The applicant was not submitting that the opposing construction requires that an employee’s employment must have a constant contribution to the disease suffered. No party made that submission. Rather, Comcare’s contrary construction was that even if the employee was suffering the same original injury, if its continued existence is no longer contributed to by the employee’s employment, compensation is not payable.

61    On the applicant’s submission, the point at which the contribution must exist is at the commencement or onset of the ailment or its aggravation. In other words, the employment must contribute to the commencement or onset of the ailment or aggravation. This limitation does not necessarily arise from the use of the word “was” in the definition and it could sensibly be read as encompassing a contribution at any time prior to when the entitlement to compensation is being assessed. In any case, the applicant submits that if, on any occasion, the commencement or onset of the ailment or aggravation was materially contributed to by the employee’s employment, it remains for all time thereafter compensable pursuant to s 14, even if other factors take over as the cause of its continuance.

62    In support of this, Mr Black referred to passages from the Explanatory Memorandum which state as follows in relation to the definition of “disease”:

“disease” which is defined to mean any physical or mental ailment, disorder, defect or morbid condition, whether or sudden onset or gradual development, suffered by an employee, the contraction, aggravation, acceleration or recurrence of which was contributed to in a material degree by the employee’s employment by the Commonwealth.

The test of material contribution will not require an employee to show that his or her employment caused the disease, or that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease…

In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to…

(Emphasis added).

63    Mr Black submitted that the references to the contraction of a disease in those passages were consistent with and supported the applicant’s preferred construction of “disease”. On that argument, it is unnecessary to consider whether employment continues to contribute to an ailment as opposed to its contribution to the ailment’s commencement or onset. There was no submission as to whether the words “commencement” or “onset” were to be preferred to “contraction”, but they can be taken as being effectively synonymous in this context.

64    The applicant also relied on the wording “ailment or an aggravation that was contributed to” as confirming that it was the underlying ailment or aggravation, rather than the employment contribution, that must continue. She submitted that, on her preferred construction, an employee’s entitlement to compensation would still be available for continuing ailments even when they have ceased to be “work-related” if their contraction was contributed to, in a material degree, by the relevant employment. On that submission, an ailment or aggravation, once contributed to in a material degree by the relevant employment, could never cease to be work-related. Rather, the entitlement to compensation would only cease if there was a cessation of the ailment or aggravation and the detrimental consequences thereof.

65    It was also submitted that the Tribunal’s construction of “disease” conflates the contribution requirement (between employment and ailment or aggravation) with the causation requirement (between an injury and its detrimental consequences) by requiring a single, continuing connection between employment and the consequences of the disease: Bryant v Military Rehabilitation and Compensation Commission [2008] FCA 1424 (Bryant) at [42] – [45]. However, while such a requirement is the effect of the Tribunal’s construction, that does not involve any impermissible conflation in the sense considered in Bryant.

66    The applicant characterised the SRC Act as “remedial legislation” which was intended to benefit workers and which therefore ought to be given a construction which advances, rather than limits, that statutory purpose: Thiele v Commonwealth (1990) 22 FCR 342 (Thiele) at 346; Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181 at 188. Accordingly, it was submitted that, where two constructions were open, the one that favours the workers should generally be preferred: Thiele at 346; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335.

67    In a similar vein, she referred to the decision in Canute v Comcare (2006) 226 CLR 535, where the High Court stated (at [39]):

It should be added, for completeness, that the policy of the Act, discerned by the majority in the Full Court, of restricting liability to pay compensation, does not assist Comcare. The Act does impose limits upon Comcare’s liability to pay compensation… However, this policy does not dictate that something which falls within the definition of “an injury” in respect of which Comcare’s liability arises, ought to be excluded from the definition…

(Emphasis added).

68    Based on the emphasised sentence, she submitted that a condition which falls within the definition of “injury” or “disease”, ought not to be excluded from it, adding the additional gloss that the relevant definition is to be determined based on the plain reading of the statutory text. However, the High Court’s observation in that case was merely an acknowledgment of what had been recognised by each of the Tribunal, the primary judge and the Full Court before, namely that Mr Canute’s ailment, an adjustment disorder, met the definition of an “injury”: at [23] – [28]. The issue in that case was whether the Tribunal had erred in failing to consider the adjustment disorder to be a separate “injury” by treating it as a psychological sequelae and part of a physical injury: at [34] – [35]. Here, the task is to construe the relevant definition of “disease” to determine whether the applicant’s ailment was a “disease” and therefore an “injury” for the purposes of the SRC Act. The tautological submission that the definition of “disease” should not be construed to exclude something which falls within that definition does not assist in undertaking that task.

Comcare’s submissions

69    Comcare submitted that the applicant overstated the relevance of the use of the past tense “was” in the definition of “disease”. It referred to several provisions, including s 5A of the current iteration of the SRC Act, which used the past or present tense and submitted that the use of differing tenses in the provisions reflected the reality that an entitlement to compensation is determined in the present on the basis of events that occurred in the past. Very little can be derived from considering amended forms of legislation: see Allina Pty Ltd v FCT (1991) 28 FCR 203 at 212.

70    In its further written submissions, Comcare also submitted that the use of the past tense “was” could otherwise be explained because the entitlement to compensation in respect of an “injury” can only be determined after the “injury” had been suffered. By “suffered”, Comcare must be referring to the onset of the injury rather than suggesting that the entitlement was only to be determined after the injury had ceased being “suffered”. The use of the word “was” was also said to be explained by the use of the past tense “suffered” earlier in paragraph (a) of the definition of “disease”.

71    It further submitted that a critical issue raised by the text of the definition concerns the identity of the period or periods of time in respect of which the assessment of whether an employee’s ailment or aggravation was contributed to by their employment is to be undertaken. This submission was not clearly articulated, but seems to be that the meaning of “was” changes complexion when the entitlement to compensation in an earlier period is being assessed. In that case, assessing the statutory text conditioning the existence of a disease on whether an ailment was contributed to by employment could be understood to refer to whether the ailment was contributed to, in that earlier time period, by the employment.

72    It also submitted that the definitional provisions in the SRC Act evince a clear intention to draw a line between those injuries which are work-related and thus compensable and those which are too remote from relevant employment for Comcare to be liable. This line was to be drawn by reference to the factual connection or association between the circumstances of the injury and employment. In this regard, reference was made to observations of the majority of the High Court in Comcare v PVWY (2013) 250 CLR 246 (PVYW).

73    Comcare also referred to passages in the Explanatory Memorandum as follows (at 12 – 13):

The test of material contribution will not require an employee to show that his or her employment caused the disease, or that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. This is the test applicable under the 1971 Act. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.

(Emphasis added).

74    Plainly, Comcare’s submission was that the reference to the need to demonstrate a “close connection” supported its construction which required a continuing connection. However, it is clear from the preceding sentences that the need to show a “close connection” refers to the need to show that employment contributed to a material degree. That sentence says nothing about the need to show a continuing connection, but instead refers to the introduction of a higher threshold of contribution in the SRC Act: cf 1971 Act, s 29(1).

Consideration

75    It is unnecessary to analyse the general principles for construing statutes in these reasons. The proper approach was recently summarised in decisions of the Full Court in Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145 (at [239]) and in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 (at [4], [62], [117]), and those summaries can be accepted for present purposes.

The general effect of the definition of “disease” and s 14

76    When s 14 is read together with the definition of “disease”, it is apparent that two issues of causation arise. First, whether the ailment or aggravation “was contributed to in a material degree by the employee’s employment”. In Comcare v Laidlaw [1999] FCA 40 (Laidlaw), Finn J referred to this as being the “contribution requirement” and that nomenclature will be adopted in these reasons. Second, whether the sequelae of the injury results in death, incapacity or impairment. In Laidlaw, this was referred to as the “causation requirement” and, again, that nomenclature will be used here. In the former, the causal chain commences with the circumstances of employment and results in the sustaining of an ailment or an aggravation of an ailment. In the latter, the causal chain begins with the injury and ends with the sustaining of detriment, being death, incapacity or impairment. Section 14 provides for the payment of compensation by Comcare in respect of an injury suffered by an employee, in circumstances where the relevant “injury” is a constituent part of each chain of causation.

77    It should also be kept in mind that the manner in which Comcare is liable under s 14 “in respect of” the injury suffered is controlled and limited by other sections. Division 2 of the SRC Act regulates death benefits, Division 3 controls the amount and nature of compensation payable in respect of incapacity, and Division 4 does the same with respect to impairment. However, for the reasons explained below, the operation of each of those divisions is dependent upon s 14 and the imposition of liability on Comcare in respect of an injury.

The decision in Prain

78    Some assistance in identifying the impact of the definition of “disease” can be drawn from the Full Court’s decision in Prain which Comcare submitted “involved a clear acceptance” that the correct construction of the definition of “disease” (now in s 5B of the SRC Act) was that adopted by the Tribunal in this case. Comcare submitted such acceptance was part of the ratio of that case such that, to accept the applicant’s preferred construction, this Court must be satisfied that this aspect of Prain was plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say‑Dee Pty Ltd (2007) 230 CLR 89 (Farah) [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 [49].

79    In Prain, the Full Court considered an appeal from a decision of the Tribunal affirming Comcare’s decision that Mrs Prain did not have a present entitlement to compensation pursuant to ss 16 and 19 of the SRC Act. The relevant definitions of “injury” and “disease” were those now found in ss 5A and 5B of the SRC Act. The Tribunal had held that the adjustment disorder, from which Mrs Prain had suffered in 2011, was previously a “disease”: at [21]; but that her relevant employment had ceased to be a significant contributor to that ailment: at [29] – [30]. Other non-employment related factors had taken over and pushed the employment factors further into the background with the result that the ailment could no longer be said to have been contributed to, to a significant degree, by Mrs Prain’s employment. Applying the same construction, mutatis mutandis, as that applied by the Tribunal in this case, the Tribunal concluded that Mrs Prain, therefore, no longer relevantly suffered from a “disease”.

80    The aspect of Prain on which Comcare placed reliance in this case was the Full Court’s express approval of the construction of s 5B adopted by the Tribunal: at [87]. While such approval may be persuasive because it accords a sensible operation to the definition of “disease”, it does not attract the application of the principle stated in Farah. The questions raised on appeal in that case did not put in issue whether the adopted construction was correct: at [33]. See also at [35] – [37]. As Comcare seemed to accept, the most that could be said was that the ratio of Prain “involved a clear acceptance” that the construction adopted below was correct. This does not suffice to make that construction part of the ratio decidendi where the correctness of that construction was not in issue, as opposed to its operation in the circumstances of the particular case: see e.g. Garcia v National Australia Bank Limited (1998) 194 CLR 395 [56].

81    Nevertheless, the Full Court’s approval of the Tribunal’s construction in Prain may still be persuasive to some degree. The degree to which it is persuasive is necessarily reduced given that it is apparent that the parties in that case did not make submissions in relation to its correctness, and the Full Court did not undertake any analysis of the relevant provisions in expressing its approval.

Use of the past tense “was” in the definition

82    The purpose of the word “was” in the definition of “disease” is to causally connect the bodily condition with the employee’s employment. The phrase “was contributed to” identifies a level of cause and effect between those two subjects. Naturally enough, the causal factors precede the consequential bodily conditions and the word “was” is consistent with that. What is necessary, but not sufficient, to satisfy the definition is that the “disease”, in respect of which compensation is sought, had its origin in the contributive effects of the employee’s employment.

83    Although it was suggested by Comcare that as used “was” means “is”, that construction would also be problematic. It would suggest an ongoing active contribution from the employment is necessary in order for Comcare to be liable. That obviously cannot be so when an employee has become incapacitated and is no longer working. In order for the section to have any sensible meaning, it would be necessary to construe “is” as including the circumstance where the employment previously contributed to the disease, even where the employment had ceased. In other words, that it ought to mean “was”.

Uncertainty around the use of the expression “continuing”

84    Some understandable uncertainty and ambiguity crept into the submissions in this case which can be traced to the use of the word “continuing” in describing the causal relationship between the employment and the injury in respect of which compensation is sought. It must be kept in mind that s 14 operates to impose liability on Comcare where and for as long as certain conditions exist. However, s 14 only provides the core or central touchstone of liability and other sections regulate the extent and manner in which such compensation is provided. An important element of s 14 is the condition that compensation is payable only where it results in death, incapacity, or impairment. Whilst death is permanent, the other two sequelae may be temporary with the result that s 14 will only render Comcare liable where the causative requirement continues to have effect. Similarly, s 14 only renders Comcare liable where that which causes or has caused death, incapacity or impairment is an “injury” as defined by s 4(1); i.e. in this case, an ailment that has been contributed to by the employee’s employment and is therefore a “disease”. If the cause of incapacity ceases to be an “injury” as defined, the constituent elements for Comcare’s liability also ceases. It follows that it is the continuing existence of the necessary state of affairs which defines the duration of Comcare’s liability. However, some additional difficulty arises in the attempt to define the precise nature of that state of affairs. That is especially so in relation to the contribution requirement.

85    Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression “was contributed to” in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an “injury” in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.

86    The above is coherent with the purpose of the SRC Act to provide compensation for work-related injury or illness. On the construction advanced by the applicant, Comcare would be required to pay compensation to employees whose ailment is not causally connected with their employment but must do so merely because the ailment had been, but is no longer, contributed to by the employee’s employment. Contrary to the applicant’s submission, a past connection to an employee’s employment which has ceased at the relevant time does not suffice to make an ailment “work-related” at that time in any real sense.

87    The above is also coherent with the necessary existence of a temporal element of any claim made under the SRC Act. In some cases, the claim will relate to an ongoing and indefinite period of time such as the applicant claims in the present case. In others, the relevant period in respect of which a claim is made is fixed with identifiable commencement and concluding dates. The period may well have ended before the claim is made or determined. When a claim is made in respect of that period, Comcare’s liability only exists during that period time in respect of which it can be said of the relevant injury which was causative of detriment, that it was, inter alia, contributed to in the required degree by the employee’s employment. If it can be said of the injury that it has ceased to be so caused, Comcare’s liability will accordingly also cease.

88    The above construction gives effect to the use of the word “was” in the definition. It describes the causal consequences of the employee’s employment and the disease suffered and the establishment of the nexus created. That nexus, having been created, continues until broken. In this way, the Tribunal has used the correct tense of the verb “to be” in the definition.

The continuing effect of the “contribution requirement”

89    It follows that Comcare’s submissions in this respect were more correct than those of the applicant. Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an “injury”. In the case of an ailment said to constitute an “injury” on the basis that it is a “disease”, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment. (For the avoidance of doubt, this does not require causation in the sense of a “but for” test: Comcare v Canute (2005) 148 FCR 232 [67]). In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.

90    Conversely, the applicant’s preferred construction should be rejected. Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.

91    Although the Tribunal expressed the issue in generalised terms, it is sufficiently clear that the substance of its conclusion was that the original causal nexus or connection between the applicant’s employment and her psychological condition had been terminated. The Non-Employment Factors were causing the ongoing major depressive disorder, and had crowded out the contribution of the Employment Factors: at [173] of the Tribunal’s decision.

92    The result of the foregoing is that, even if the applicant were granted leave to raise the new point of construction on appeal, it would have failed.

Question 2

93    Question 2 was raised as an alternative to Question 1. It proceeded upon the assumption that the Tribunal’s construction of the definition of “disease” was correct and that, therefore, the applicant’s “injury” had ceased for the purposes of the SRC Act. However, the applicant contended that, on the proper construction of s 19, the reference to an “injury” was not confined to one that currently existed but also included an “injury” that had now resolved. Based on that construction, the applicant submitted that the Tribunal erred by failing to consider whether her current incapacity for work was “as a result of” the “injury” that it found the applicant had previously, but no longer, suffered.

94    In support of that construction, the applicant submitted that the causal test posed by the words “as a result of” in s 19 did not require contemporaneity between injury and incapacity for work. Rather, she submitted that it was only necessary to demonstrate that there was some relational connection between the two. She further submitted that incapacity for work could be “as a result of” a compensable injury that had previously resolved where the ailment underlying that injury triggers another ailment from which the incapacity results: Commonwealth v Smith (1998) 18 ALD 224 (Smith) at 226. In her submission, such a construction would give effect to the broad scope of the “as a result of” test which encompasses both direct and indirect consequences.

95    She further submitted that the correct approach to s 19 was that, once it is determined that an employee suffered from a compensable “injury” (even one that had ceased at the relevant time), it then became necessary to determine whether any current incapacity for work was the result of that injury: Clement v Comcare [2012] FCA 166 (Clement) [8]. So the submission went, because there was evidence before the Tribunal that was capable of supporting a finding that her incapacity for work was the result of her now resolved injury, the Tribunal had erred by failing to consider and determine whether that continuing incapacity for work was the result of that injury. She also contended that s 16, in particular the words “in relation to”, should be given a similar construction and that therefore the Tribunal made the same error in relation to s 16. This was not in her notice of appeal, nor did her Counsel seek leave at the hearing to amend it.

96    Comcare’s principal submission in respect of Question 2 was that, once an “injury” ceases to be such for the purposes of s 14 of the SRC Act, it is unnecessary to consider ss 16 and 19: Prain at [88] – [89]; Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford) at [57] – [59]; Lees v Comcare (1999) ALD 84 (Lees) at [27]. It further submitted that the applicant’s reliance on Clement and Smith was misplaced because those cases did not concern whether s 19 required contemporaneity between injury and incapacity for work.

97    Mr Berger QC for Comcare submitted that Questions 2, 3 and 4 fell if Question 1 was determined against the applicant. He was correct to do so. On the construction of “disease” reached above, Comcare has no liability under s 14 in respect of an ailment, the existence of which in no longer causally connected to the employee’s employment in the relevant time period or periods. It is s 14 which imposes the principal liability on Comcare in respect of injuries which results in death, incapacity for work, or impairment. Other sections merely regulate the scope and extent of it, but do not independently create it. Although s 16 imposes an obligation on Comcare in respect of injuries whether or not they result in death, incapacity for work, or impairment: s 16(2): interpreting it consistently with s 14, the liability in respect of an ailment ceases if that ailment ceases to be causally connected to the employee’s employment in the requisite degree, and thus ceases to be an “injury”, at the relevant time.

Consideration

98    The operation of s 19, amongst others, is conditioned upon liability being imposed upon Comcare pursuant to s 14, and that liability will only exist where the injury has the necessary causal connection to the employee’s employment on the one hand and causes the relevant detriment on the other. Where the injury does not have those characteristics, Comcare has no liability in respect of which s 19 might operate. So much appears from the decisions in Lees and Prain. Likewise, there is no reason for interpreting the reference to “injury” in s 16 differently to the reference in s 14: Queensland v Forest (2008) 168 FCR 532 [41]. Accordingly, liability pursuant to s 16 will only exist in a particular time period or periods where, on the one hand, the ailment has the necessary causal connection to the employee’s employment and, on the other, the relevant medical treatment was obtained in relation to the “injury” (subject to the further qualification that it was reasonable, in the circumstances, for the employee to obtain that medical treatment). In that regard, the “causation requirement” described above in relation to the liability pursuant to s 14 is replaced by a “relational requirement”.

99    In Lees, the Full Court considered two appeals concerning whether, on an appeal from a reconsideration of a determination by Comcare, the Tribunal could review aspects of an employee’s claim that were not the subject of the reconsideration. Ms Lees had sought to raise her entitlement to compensation for permanent impairment in an appeal to the Tribunal from a reconsideration of a determination that she was not entitled to payment of taxi fares pursuant to s 16: at [4]. Similarly, Mr O’Donohue sought to raise his entitlement to compensation for permanent impairment and non-economic loss in an appeal from a reconsideration of a determination under s 14 that he did not suffer from an “injury” for the purposes of the SRC Act: at [8]. In the course of summarising the statutory framework created by the AAT Act and the SRC Act, the Full Court observed (at [27]) in relation to the determination of the primary judge:

As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability “[s]ubject to” Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt II of the Act: see, for example, s 17(2). Secondly, the liability is a liability to pay compensation “in accordance with” the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.

100    The Full Court’s decision generally concerned the decision-making and review process provided by Pt VI of the SRC Act (at [32] – [39]) and the effect of the AAT Act. Ultimately, it was held that the subject matter of the determination (s 60 of the SRC Act) and the subsequent reconsideration (s 62) define the scope of the Tribunal’s jurisdiction on an appeal from a reconsideration (s 64): at [50], [55] – [56]. Accordingly, a Tribunal could not consider entitlements to compensation that were not the subject of the determinations or reconsiderations from which the appeals originated. For present purposes, the Court relevantly identified at [49] that Comcare’s liability in respect of an injury arose consequent upon the satisfaction of s 14 and in the administrative process that usually involved a determination that liability so existed under that section. It was only the extent of the liability that was to be determined under other sections, for example, by s 24 in relation to permanent impairment.

101    As discussed above in relation to Question 1, the Full Court in Prain held that the Tribunal had not erred in concluding that Comcare was no longer liable in respect of Mrs Prain’s condition pursuant to s 14. This conclusion was based on her having ceased to suffer from an “injury” for the purposes of s 5B: at [79] – [87]. The Court then turned to consider briefly whether the Tribunal had erred by failing to address s 19, apparently on the basis that the Tribunal’s conclusion in relation to s 14 might not necessarily be dispositive of the appeal to it in respect of a determination under s 19. In concluding that the Tribunal had not erred, the Court stated (at [89]):

The Tribunal concluded (at [71]) that Comcare was not liable for a compensable condition under s 14 of the SRC Act. It was therefore unnecessary for the Tribunal to consider s 19 (or s 16) which were the provisions under which Comcare determined that Mrs Prain had no entitlement to compensation: see Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57]-[59]. This is because s 14 creates a liability to pay compensation “in accordance with” the SRC Act, that is, a liability to pay the compensation for which provision is made in sections such as ss 16 and 19. As stated by the Full Court in Lees v Comcare (1999) 29 AAR 350 at [27]:

[Section] 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability “[s]ubject to” Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation “in accordance with” the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).

(Emphasis added).

102    It may be accepted that the import of the Full Court’s reasons at [89] is that Comcare’s liability to pay compensation in respect of incapacity for work depends on it being liable to pay compensation in respect of an injury: s 14. Likewise, it is implicit in the passage in Lees referred to above that, if there is no entitlement to compensation pursuant to s 14, then there can be no entitlement to compensation pursuant to s 19.

103    The applicant contended those authorities do not support the further proposition that if an “injury” ceases for the purposes of the SRC Act, then an employee’s entitlement to compensation pursuant to s 14 (and in turn pursuant to ss 16 and 19) also ceases (even if that was the result in those cases in the absence of the contentions raised by the applicant in this appeal). She submitted that the reference to “injury” in ss 16 and 19 includes injuries which have ceased for the purposes of the SRC Act.

104    These submissions must be rejected. As the authorities referred to make clear, the satisfaction of the requirements of s 14 is essential to Comcare’s liability to pay compensation. The Act operates such that only injuries within the scope of that section can be the subject of compensation. A determination that the section is satisfied is an acceptance by Comcare that its liability exists. Other sections may control the content, duration and means of satisfying how the liability is met or how compensation is paid, but they do not extend liability beyond the section: see also Australian Postal Corp v Oudyn (2003) 73 ALD 659 [29]. The structure of the Act as articulated in Prain makes that clear. It follows that if an injury ceases to be compensable under s 14 in respect of a relevant period of claim, no compensation is payable in respect of it under s 19.

105    The applicant’s response to the above authorities was that the proper construction of the causal test in s 19 has the consequence that incapacity for work can occur “as a result of” an injury if it triggers a further ailment which then causes the incapacity for work. Reliance was placed on the decision in Smith at 226 where Von Doussa J said:

Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly.

106    With respect to the submissions made, the decision in Smith does not answer or overcome the force of the above authorities. To the extent to which it is relevant, it does not hold that the operative injury does not have to have the relevant nexus to employment for the period of incapacity in respect of which the claim is made. In that case, the mariner’s incapacity arose from his psychological injury and not his wrist injury, hence it was the former which relevantly gave rise to liability if it existed. The position described in the above quote is that the psychological condition precipitated by a physical injury (which had resolved) was itself an “injury” for the purposes of the SRC Act, because it had the necessary causal connection required by the definition of injury and disease. Any incapacity for work which occurs “as a result of” that injury was then compensable.

107    In a similar manner, the applicant sought to rely upon the observations of Jagot J in Clement [8] where her Honour said:

The AAT … correctly identified this task as involving asking whether it was reasonably satisfied that Ms Clement “suffered a compensable injury of the kind or in the manner alleged and previously accepted by Comcare” (at [15]). If so, the AAT continued, it would then be necessary to determine whether the incapacity for work Ms Clement claimed was “as a result of” that injury. The AAT noted (also at [15]) that the phrase “as a result of” refers to “an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a commonsense evaluation of the causal chain between the claimed incapacity and the injury”. …

108    In relying on this passage, the applicant sought to bifurcate the issue of liability in s 14 into the existence of a compensable injury on the one hand and the resulting incapacity on the other. In effect, it was submitted that once a compensable injury was found to exist, Comcare was liable for all following incapacity regardless of whether the injury retained the characteristics which rendered it a compensable one. That argument has been rejected above and the observations of Jagot J do not support it. Indeed, on their natural meaning, they are against it. The words “was ‘as a result of’ that injury” are referring to the injury previously referred to, being a compensable “injury”. In any event, the issue in question in this matter was not considered by the Court in Clement. The main issue was whether Ms Clement ever suffered from an “injury” for the purposes of the SRC Act: at [8]. See also Clement and Comcare [2010] AATA 296 [3]. In that context, to the extent to which the cited passage suggests approval of the applicant’s approach, it cannot be so regarded.

109    For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an “injury” from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken. In the case of a disease, it must be one that was contributed to in a material (or significant) degree by the employee’s employment. For the reasons explained in Lees (at [27]), the entitlement to compensation arises pursuant to s 14 and is then controlled by the provisions that follow in Pt II of the SRC Act. For that reason, in the absence of a present “injury” and a consequent entitlement pursuant to s 14, there cannot be liability to pay compensation for incapacity for work that occurs “as a result of” an injury pursuant to s 19.

110    The applicant’s submissions in relation to the proper construction of s 19 should otherwise be rejected. That conclusion makes it unnecessary to consider the applicant’s further submissions that there was evidence before the Tribunal capable of supporting a finding that the applicant’s continuing incapacity occurred “as a result of” the resolved “injury” in respect of which the Tribunal had previously accepted liability. For present purposes, it suffices to note that it was open to the Tribunal to conclude that the applicant’s previous episode of MDD had resolved and the current episode was consequent upon her underlying conditions.

111    For the reasons stated above, Question 2 should be answered in the negative.

Questions 3 & 4

112    Section 7 of the SRC Act is entitled, “Provisions relating to disease”, and contains a number of deeming provisions relating to the operation of the provisions in Part II.

113    In particular, s 7(6) provides:

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

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

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

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

114    It is a peculiarity of this sub-section that it refers to “an aggravation of a disease”. In the scheme of the SRC Act, it is the aggravation of an “ailment” that can constitute a disease. It is also important to keep in mind that this section is concerned with the “causation requirement”, being the consequences of a work related injury. It is not concerned with “contribution requirement” and is not relevant to the assessment of whether the injury in question continues to have the relevant nexus to the employee’s employment.

115    The Tribunal considered the application of that sub-section at [148] and [149]. After having regard to the decision in Laidlaw, it concluded that for that sub-section to apply, “there must be a finding that [the applicant] continues to suffer from an “injury”…”. In Laidlaw, Finn J had observed that whilst s 7(6) assisted an employee in establishing the “causation requirement” between the injury and incapacity, it had no relevance in relation to the question of whether the injury was contributed to in a material degree by the employee’s employment: at [12] and [26]. In that sense, the Tribunal correctly identified in this matter that, unless the “contribution requirement” remained satisfied (namely that the applicant continued to suffer from an “injury”) in relation to a particular claim period, s 7(6) had no application. As it later found that the applicant was not presently suffering from a “disease” or an “injury” for the purposes of the SRC Act, s 7(6) could not apply to deem that the applicant’s present incapacity for work to be the result of her Compensable Injuries.

116    The applicant contended that the Tribunal erred in its construction of s 7(6) as there was nothing in the language of that sub-section which required a disease to exist at the relevant time for it to apply. She submitted that the Tribunal’s reliance on Laidlaw was misplaced as that case did not consider whether relevant employment must continue to contribute to an ailment or aggravation of an ailment for it to constitute a “disease” for the purposes of the SRC Act.

117    The applicant also referred to the following passage in Comcare v Porter (1996) 70 FCR 139 (Porter) in which Jenkinson J hypothesises as to the operation of s 7(6) (at 143):

In one respect at least the operation of the subsection appears to confer an entitlement to compensation which would not otherwise be conferred by the 1988 Act. If a worker were being treated in hospital for a disease and were attacked there by a deranged person who had wandered into the hospital, incapacity caused by the attack could reasonably be said to be an incapacity which, but for the disease, would not have occurred. …

118    The applicant described that approach to s 7(6) as being inconsistent with the Tribunal’s construction of the definition of “disease”. Although this was raised in relation to Question 1, that passage could be understood as supporting the applicant’s preferred construction of s 7(6) and it is appropriate to address it here in relation to her submissions on Question 3. Nevertheless, it should be rejected. The conclusion reached above in relation to Question 2 and the proper construction of s 19, was that an employee’s entitlement to compensation for incapacity depends on the employee first satisfying the condition that they suffer from an “injury” which is causative of the relevant incapacity in the relevant time periods. This followed from a similar construction of s 14. It is, therefore, pointless to consider whether s 7(6) can deem incapacity, which exists at a particular time, to be the result of a “disease” which has previously resolved for the purposes of the SRC Act.

119    The applicant’s submissions in relation to Laidlaw and Porter do not support her preferred construction of s 7(6). In Laidlaw, Comcare argued that, if Mr Laidlaw’s aggravation was not a “disease” (because he had not disclosed certain matters), it could not be an “injury” under a separate limb of the definition of that term. In the course of dismissing the appeal, Finn J made the following observations in relation to the operation of s 7(6) (at [22] – [24]):

[22]    As I noted earlier the scheme of the SRC Act is such that for incapacity for work to be compensable for a disease-based injury then (i) the relevant “ailment” or its aggravation must have been contributed to in a material degree by the employment of the claimant employee (the contribution requirement) (SRC Act s 4 “disease”); and (ii) the disease must result in incapacity for work (the causation requirement) (SRC Act ss 14(1), 19(1).

[23]     … And so it is that before the deeming effect of s 7(6) can be invoked by a claimant to show that his or her incapacity “resulted from” a disease or its aggravation that claimant must first satisfy the anterior condition that he or she suffers a s 4 “disease” with its attendant contribution requirement…

[24]    Put compendiously, if a claimant wishes to establish a liability in Comcare to compensate for a disease-based injury resulting in incapacity, he or she must first establish positively that a disease falling within the s 4 definition is suffered, but then, in making out the s 14(1) requirement that that disease has resulted in an incapacity for work, he or she can avail of the deeming effect of, but is not limited to, s 7(6).

120    The Tribunal referred to the observation at [24] in support of its construction of s 7(6) (at [148]). Regardless of whether that observation formed part of his Honour’s reasons in determining the issues before him, it was correct as to the general operation of the Act and consistent with the above discussion in relation to Questions 1 and 2. In order for Comcare to be liable in relation to incapacity for work during a particular period of time, there needs to exist an “injury” which is the source of the incapacity and in respect of which the “contribution requirement” remains satisfied during that period of time. In that sense the injury or disease must exist contemporaneously with the incapacity it is said to cause in order of s 7(6) to apply. In that way, Finn J’s observations support the Tribunal’s construction of s 7(6).

121    In Porter, prior to 1984, Mr Porter had suffered lumbar disc disease in the course of his employment, although it apparently did not then cause him any incapacity. Nevertheless, it had been contributed to in a material degree by that employment, such that it was a “disease” within the meaning of the SRC Act. He subsequently suffered a small tear in his L4/5 disc in 1984 which was held to be an aggravation of an ailment, namely the lumbar disc disease, being an aggravation that was contributed to in a material degree by Mr Porter’s employment. In 1993, he suffered a major rupture of the L4/5 disc in non-compensable circumstances. It was submitted that the major rupture was caused by the mechanical forces applied to his back when he was lifting a heavy gate on his property. That major rupture caused Mr Porter to be incapacitated. It was submitted by Comcare that the incapacity was caused by the non-compensable circumstances and which was separate and distinct from the earlier injury or disease. The Tribunal, however, concluded that the eventual rupture, which was on the application of relatively minor stress to the disc, was a common sequelae of the tear which occurred in 1984 and that finding was upheld on the basis that there was medical evidence which would support it. In his reasons, Jenkinson J turned his attention to s 7(6) and its relevance to the case before him and made the observations to which the applicant referred and which is set out above. She submitted that the Tribunal’s reasons in the present matter are inconsistent with those observations.

122    That submission cannot be accepted. As is discussed above, the Tribunal was concerned with the continued existence of an injury which satisfies the contribution requirement as the source of incapacity. The injury is said to “continue” because it has a continuing operative effect, being the satisfaction of the causation requirement. All that the passage of Jenkinson J does is identify that s 7(6) extends the operative effect of the injury beyond incapacity flowing directly from the injury to that which is caused more indirectly. That does not remove the requirement for the existence of an injury meeting the contribution requirement and which is the source of the incapacity. For that reason, the observations in Porter, assuming them to be correct, could not be regarded as authority for the construction of s 7(6) for which the applicant contends.

123    In reply, the applicant submitted that the availability of alternative avenues for seeking compensation does not support the Tribunal’s construction of s 7(6) in the case of “beneficial legislation”. Such a broad proposition cannot be accepted. Where it is possible to choose between two available constructions of a provision, it may be appropriate to prefer that which is more favourable to the class which the provision is intended to benefit. Here, however, the two constructions are not open. The applicant’s proposed construction undermines the whole structure of the SCR Act in the sense that it is inconsistent with the central importance given to the concept of an “injury” within the scheme of the SRC Act. By contrast, Comcare’s preferred construction is not. The absence of an express limitation of the operation of s 7(6) to a disease which exists contemporaneously with the incapacity for work or impairment that it is said to cause does not compel the conclusion that the sub-section should not be read as being subject to such a limitation.

124    For those reasons, Question 3 should also be answered in the negative. Based on that conclusion, it is unnecessary to consider Question 4.

conclusion

125    For the reasons set out above, the applicant is not permitted to raise a new point on appeal by Question 1 and the other questions of law raised in the notice of appeal should be answered in the negative. Accordingly, the appeal should be dismissed.

126    It is appropriate that the applicant pay Comcare’s costs of this appeal on a standard basis.

Associate:    

Dated:    7 June 2021