The recent Administrative Appeals Tribunal (Tribunal) decision of Hannaford and Telstra Corporation Limited [2008] AATA 979 examined the application of section 7(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to liability for diseases under that Act.
BACKGROUND
Mr Hannaford had been employed by a subsidiary of Telstra to lay cables in the McLean and Yamba areas in NSW from late 2001.
In early 2002, his work involved laying cables in areas surrounding a tidal swamp. Mr Hannaford gave evidence that during this period he and his colleagues were incessantly bitten by mosquitoes. Mr Hannaford reported that in February 2002, he began to feel generally unwell and his treating general practitioner diagnosed Ross River Fever.
Serological tests undertaken later ruled out Ross River Fever as a cause. Some medical evidence suggested Mr Hannaford suffered from an unidentified arbovirus, which was transmitted to him by a mosquito.
Mr Hannaford has been incapacitated for work since March 2002 to date, save for a one month period in around July 2002. Subsequently, the claimant also developed arthritis and, in the view of one doctor, a 'deconditioning' of his musculoskelatal system.
ISSUE
The primary issue for the Tribunal to consider was whether the claimant suffered from a disease, an unidentified arbovirus, that aggravated the degenerative arthritis suffered by him. It was submitted by the claimant that he was suffering from an occupational disease as set out in section 7(1) of the SRC Act.
Section 7(1) of the SRC Act states that, 'Where:
- an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
- the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
- the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established'.
Section 7(1) creates a causative presumption in favour of the claimant, when a disease is of a kind known be related to a specific type of employment. Where the presumption exists, in order to be successful, the employer will have to disprove a causative connection between the disease and the claimant's employment.
Relevantly, item 28 of the Declaration made by the Minister in relation to section 7(1) set out types of employment known to carry a particular risk of 'occupational infectious or parasitic diseases' including health or laboratory work, veterinary work and work handling animals, animal carcasses, parts of such carcases, or merchandise which may have been contaminated by animals, animal carcasses or parts of such carcasses.
DECISION
The Tribunal considered whether the geographical area in which Mr Hannaford worked could be said to fall within the Declaration. The Tribunal rejected this argument and considered that the Declaration clearly did not apply to the Applicant's employment of laying cable for a Telstra subsidiary, even in the tidal swamp areas. Relevantly, the Tribunal stated 'it is employment per se that must carry the particular risk, as for example the occupations specified, and not, as in this case, the geographical area in which the employment is carried out'. This is an important statement of principle, as it purports to limit the application of section 7(1) of the SRC Act to actual occupations which fall within the Declaration, not those which are geographically near such occupations.
In relation to the question of causation, the Tribunal noted that even if the Tribunal was satisfied that the applicant's illness was caused by an arbovirus, it could not be satisfied that the arbovirus arose as a result of a mosquito bite while Mr Hannaford was working in the swampy conditions. The Tribunal noted that the link between the applicant's illness and the work conditions was based on 'suspicion and conjecture' but there was no actual evidence to suggest it was the cause of the infection.
IMPLICATIONS
The decision provides some helpful tips as to how Declarations made under section 7(1) of the SRC Act may be applied by the Tribunal. In this case, the employee was unable to satisfy the Tribunal that the employment that he was engaged in, as opposed to the place of that employment, was such that it fell within the Declaration.
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