The High Court has recently had the opportunity to examine the meaning of 'injury' in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Whilst the Commonwealth legislation differs a little from its Victorian counterparts, the High Court's comments are relevant when considering the meaning of 'injury' in all workers compensation schemes around Australia.

Definition of injury under the Act

Injury is defined under s 4(1) of the Act as follows:

  1. a disease suffered by an employee
  2. an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment
  3. 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), that is an aggravation that arose out of, or in the course of, that employment.

The respondent in this case was a former RAAF officer cadet. He began to experience symptoms similar to vertigo that could not be diagnosed specifically and which progressively arose after he received various vaccinations during the course of his employment. In allowing an appeal from the Full Court of the Federal Court, the High Court found that the earlier court's interpretation of the term injury within the context of the statute was incorrect.

The High Court held that the Full Court had erred in holding that dizziness could be deemed an injury under the Act. The court noted that injury can be read in its 'primary sense' as being 'a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state'.1 However, it also acknowledged that whilst 'suddenness' may be indicative of an injury, it is not crucial to finding that an injury has been sustained.2 Rather, the focus is on the physiological change itself. The court held that the respondent's subjective experience of feeling unwell did not constitute an injury. The court required evidence establishing that the respondent had undergone physiological or psychiatric change. The worker's complaints in this case failed to satisfy this test.

In one sense it is a little surprising that this case had to go to the High Court to be resolved. There is a wealth of older authority setting out the meaning of injury in its primary sense. In essence these cases refer to concepts such as breaking a part of their body. This 'break' could be as subtle as the rupture of a blood vessel within the brain or as obvious as a fractured leg. Clearly, both involve physiological change. Nevertheless, if nothing else, the High Court hasn't made it easier for workers to demonstrate that they have sustained an injury.

Footnotes

1 Military Rehabilitation and Compensation Commission v May [2016] HCA 19 [45].
2Ibid [47].

The disease limb of the injury definition

The court noted that when determining whether a disease has been contracted, two questions should be asked:

  1. Does the evidence demonstrate the existence of an ailment?1
  2. Whether that state was contributed to in a material degree by the employee's employment by the Commonwealth?2

If the answer to both questions is 'yes', then the court may hold that there is a 'disease' pursuant to the statute. If, however, the answer to the first question is 'no', then it will be assessed whether an 'injury (other than a disease)' per paragraph (b) was sustained. This distinction between diseases and other injuries enables different bases for liability. In this case, the respondent did not contend that he had suffered a disease within the meaning of the Act.

Footnotes

1 Ailment was defined in s 4(1) of the Act to mean 'any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)'.
2 Military Rehabilitation and Compensation Commission v May [2016] HCA 19 [50].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.