Military Rehabilitation and Compensation Commission v Benjamin James Edward May HCA 19
The High Court has provided guidance on the extent to which a medically diagnosed condition must be identified in order to prove an ‘injury’ in workers’ compensation claims.
Mr May served in the Royal Australian Air Force before becoming significantly disabled by dizziness, causing him to be discharged. His dizziness arose gradually after receiving various vaccinations at work, but specialists were unable to diagnose any specific condition.
Mr May was unable to prove that the vaccinations had caused his dizziness. He therefore brought his claim under the ‘injury’ provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth), rather than the ‘disease’ provisions, which required a material contribution from his employment.
The Tribunal and (on appeal) a single Federal Court judge concluded that Mr May’s claim failed because he had not proved a ‘sudden or identifiable physiological change’ (language used in well-known previous High Court decisions such as Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286).
However, the Full Federal Court upheld a further appeal by Mr May, finding that the Tribunal erred in requiring a clear medical diagnosis and in insisting on a causal link between his symptoms and the vaccinations. According to the Full Federal Court, an injury could be established by drawing appropriate inferences on a common-sense basis, independent of medical diagnosis. All that was required to prove causation was a temporal connection – that is, being at work when the unwell feeling arose.
On further appeal to the High Court, the question was posed succinctly: was Mr May’s dizziness an ‘injury’? Four Justices, in a joint decision, found that it was not.
Merely feeling unwell, without an accompanying physiological or psychiatric change, was insufficient: ‘there must be more than an assertion by an employee that he or she feels unwell’.
It was accepted that Mr May genuinely felt unwell. It was accepted that he ‘suffered a departure from good health’. However, there was no medical explanation for this, no substantial pathology to explain his symptoms and no diagnosis. There was also an absence of any psychiatric explanation for his reported symptoms.
The Court concurred with the Full Federal Court that ‘suddenness’ was not a necessary element of ‘injury’. However, the Court found that it was often a useful concept. Even absent suddenness as a necessary criterion, Mr May’s claim failed because he had not established the physiological change – the nature and incidents of that change – which remains central to establishing an ‘injury’.
MRCC v May continues a recent trend of the High Court paring back expansive interpretations applied by lower courts over many years to key workers’ compensation entitlement provisions. The conception of many that site attendance (such as ‘FIFO’ work) invokes ’24 hour coverage’ was diminished by Comcare v PVYW. Similarly, MRCC v May has reduced the potency of the notion of the ‘protected period of work hours’.
The focus of interest will now be the rigour with which tribunals at first instance and lower courts on appeal apply the principles arising from MRCC v May. As a guide, decisions post-PVYW have been a mixed bag, with some decision-makers seemingly unable to embrace the requisite dichotomy shift.
It should finally be noted that in WA (and other jursidictions), the enlivening provision is not simply ‘injury’ but ‘injury by accident’. The extent to which ‘accident’ imposes a higher standard of causation is a subject of ongoing debate (particularly due to the old High Court decision Commonwealth v Ockenden (1958) 99 CLR 215) and may provide a point of distinction in certain factual scenarios.