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:
a disease suffered by an employee
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
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
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.
1Military Rehabilitation and Compensation
Commission v May  HCA 19 . 2Ibid .
The disease limb of the injury definition
The court noted that when determining whether a disease has been
contracted, two questions should be asked:
Does the evidence demonstrate the existence of an
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.
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)'. 2Military Rehabilitation and Compensation
Commission v May  HCA 19 .
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).