Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (11 May 2016)

Last Updated: 11 May 2016

HIGH COURT OF AUSTRALIA

FRENCH CJ,



KIEFEL, GAGELER, NETTLE AND GORDON JJ

MILITARY REHABILITATION AND



COMPENSATION COMMISSION APPELLANT

AND

BENJAMIN JAMES EDWARD MAY RESPONDENT

Military Rehabilitation and Compensation Commission v May



[2016] HCA 19



11 May 2016



S243/2015

ORDER

Appeal allowed.



Set aside paragraphs 2, 3(a) and 3(b) of the order of the Full Court of the Federal Court of Australia made on 30 June 2015, and in their place order that the appeal be dismissed.



The appellant pay the respondent's costs of the appeal to this Court.





On appeal from the Federal Court of Australia

Representation

P J Hanks QC with P G Woulfe for the appellant (instructed by Moray & Agnew Solicitors)

R G McHugh SC with B K Nolan for the respondent (instructed by Legal Minds)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Military Rehabilitation and Compensation Commission v May

Workers compensation – Where employee vaccinated in course of employment and later felt unwell, described as "vertigo" – Where evidence did not establish nature and incidents of any physiological or psychiatric change – Whether employee suffered "injury" within meaning of s 4(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth).

Words and phrases – "ailment", "disease", "disturbance of the normal physiological state", "injury", "injury (other than a disease)", "physiological change", "psychiatric change", "sudden or identifiable".

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 14(1).

FRENCH CJ, KIEFEL, NETTLE AND GORDON JJ. The respondent, Mr May, served in the Royal Australian Air Force ("the RAAF") before being discharged. Mr May had become "significantly disabled" by dizziness. This "cut short what might have been a very promising career as a pilot in the RAAF" [1] Mr May applied for compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") "in respect of an injury suffered by an employee [where] the injury results in death, incapacity for work, or impairment" (emphasis added). The question on this appeal is whether Mr May's dizziness was an "injury" for the purposes of the Act and therefore compensable under s 14 of the Act. The Full Court said it was. For the reasons that follow, that conclusion cannot be supported and the appeal must be allowed.

Legislative framework

This appeal is concerned with the Act as at 29 November 2002 [2] Section 14 of the Act, entitled "Compensation for injuries", relevantly provided:

"(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." (emphasis added)

"[I]njury" was defined in s 4(1) of the Act to mean:

"(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." (emphasis added)

"[D]isease" was defined in s 4(1) to mean:

"(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 ..." (emphasis added)

"[A]ilment" was defined in s 4(1) to mean "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)".

Issues

Mr May did not contend that he suffered a "disease" within the meaning of par (a) of the definition of "injury" in s 4(1) of the Act. Rather, he claimed he suffered an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. This appeal concerns the proper construction of the phrase "injury (other than a disease)" in par (b) of the definition of "injury" in s 4(1) of the Act. That question of construction is determined by reference to the text, context and purpose of the Act [3]

Facts

Mr May was born in 1975. On 6 November 1998, he enlisted in the RAAF. At that time, he was healthy and fit. He was discharged on 30 July 2004 at the rank of Officer Cadet. Between 10 November 1998 and 30 March 2000 (inclusive), in the course of his employment with the RAAF, Mr May was required to undergo a series of vaccinations. He said that he suffered a series of adverse reactions to these vaccinations. On 29 November 2002, Mr May applied under s 14 of the Act for compensation in respect of "low immunity, fatigue, illnesses, dizziness – immune system/whole body", which, he maintained, he sustained as a result of the vaccinations he received while he was employed with the RAAF. On 11 March 2003, a delegate of the appellant denied Mr May's claim, noting that specialists who had examined him had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service ("the determination"). In April 2010, following an application by Mr May, the appellant reconsidered but affirmed the determination.

Previous decisions

Administrative Appeals Tribunal ("the Tribunal")

In 2010, Mr May applied to the Tribunal for a review of that second decision. The Tribunal received extensive medical evidence about Mr May's medical history. The medical evidence relating to his "vertigo" included reports from a number of experts. Dr Barrie, an ear, nose and throat ("ENT") surgeon, reported that "[p]hysical examination reveals normal tests of balance with no gaze nystagmus" [4] [5] Dr Tonkin, an ENT specialist, initially found mild imbalance inconsistent both with Mr May's symptoms and with Eustachian tube dysfunction. Further test results were all negative, including a balance test, which was normal [6] [7] [8] [9] [10] [11] The Tribunal had "particular regard to" the evidence of Dr Loblay, a physician and the Director of the Allergy Unit at the Royal Prince Alfred Hospital, who gave evidence at the hearing and had many years' experience in the investigation and treatment of immune reactions, both to drugs and to vaccines [12] [13] [14] [15] [16] [17] The Tribunal accepted that Mr May was (and became shortly after joining the RAAF) "significantly disabled" by his condition [18] The Tribunal "loosely described" Mr May's "condition" as "vertigo" [19] [20] [21] What then were the findings of fact made by the Tribunal? First, there was a temporal relationship between the vaccinations and the symptoms described by Mr May (swelling of the tongue, dizziness, nausea and diarrhoea) but there was no medical explanation for his "illness" in the period following the vaccinations, where the "illness" was what Dr Loblay described as a "subjective description of a collection of symptoms" [22] Second, there was no objective evidence of Mr May's swollen tongue or dizziness, or pathology to support his account of his symptoms, apart from diarrhoea and upper respiratory tract infections, which were treated and subsequently resolved. Nor was there any objective evidence connecting those conditions with the vaccinations [23] Third, there was no biological mechanism consistent with a vaccine generating an immune response. Although doctors diagnosed Mr May at various times as suffering from gastroenteritis and bacterial infections, there was no objective evidence connecting these conditions (which did not appear to be the current cause of his incapacity) with the vaccinations he received [24] Fourth, there was no objective evidence of Mr May suffering what the Tribunal had "loosely described as ... vertigo" in the period following his vaccinations; nor was there any substantial pathology to explain his symptoms [25] Fifth, although symptoms first emerged a short time after the vaccinations, the medical evidence (for example, of Dr Halmagyi and Dr Loblay) "discount[ed] the possibility" of any connection between the vaccinations given to Mr May and a physical injury that Mr May suffered [26] Sixth, although Mr May was "significantly disabled" by "vertigo", the medical evidence indicated a lack of any pathology consistent with his symptoms, which meant that no diagnosis could be made [27] These findings are important. It will be necessary to return to them. The Tribunal concluded that Mr May had failed to establish his case: he had not demonstrated that he had suffered a physical injury amounting to a "sudden or identifiable physiological change" [28] [29] s 4(1) of the Act. The Tribunal also held that he had not suffered a "disease" within par (a) of the definition of "injury" in s 4(1) of the Act [30] Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the decision under review was affirmed.

Primary judge

Mr May then appealed to the Federal Court of Australia under s 44 of the AAT Act. Buchanan J concluded that the Tribunal had given careful consideration to Mr May's "thesis" for his ongoing difficulties but found that the thesis had "very little support in the medical evidence" and in fact was contradicted by the Tribunal's evaluation of that medical evidence [31]

Full Court of the Federal Court

Contentions

On appeal to this Court, the appellant contended that the Full Court applied an incorrect concept of "injury (other than a disease)" and did not recognise that the Act treats "disease" and "injury (other than a disease)" as separate but related bases of liability. In particular, the appellant contended that the Full Court was wrong to hold that "injury (other than a disease)" did not require a "sudden or identifiable physiological change". Mr May contended that there was nothing in the context, structure or purpose of the Act to require a "sudden or identifiable physiological change" and that the basic notion of "physical injury" is "something which involves a harmful effect on the body" or "a disturbance of the normal physiological state which may produce physical incapacity and suffering or death".

Meaning of "injury" under s 4(1) of the Act

As seen earlier, subject to an exception for disciplinary action and other matters not now relevant, "injury" was defined in s 4(1) of the Act to mean:

"(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;



..." (emphasis added)

The set of conditions answering the definition of "injury" in the Act relevantly comprises two sub-sets, "disease" [42] [43] [44] As appears from the definition of "disease", a "disease" for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee's employment by the Commonwealth. An "injury (other than a disease)" covers the other sub-set of "injury" [45] a physical or mental injury arising out of, or in the course of, the employee's employment" [46] "Injury" in par (b) is used in its "primary" sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if "something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word" [47] That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee [48] [49] [50] [51] [52] [53] However, as the Full Court correctly held [54] necessary for there to be an "injury" in the primary sense [55] [56] [57] [58] [59] Zickar v MGH Plastic Industries Pty Ltd [60] Kennedy Cleaning [61] physiological change – the nature and incidents of that change – that remains central. That an "injury" in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning [62]

"[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word." (emphasis added)

It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis, ... accepted at trial" [63] First, does the evidence amount, relevantly, to something that can be described as an "ailment" [64] If the answer to both those questions is "Yes", there is a "disease" within par (a) of the definition of "injury". Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is "No". If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state [65] Act [66] If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal. It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of "ailment" (and therefore result in a positive answer to the first question) but the second question is answered "No". But if that is the position on the evidence, there will not be any relevant overlap between a "disease" and an "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act. It reflects the fact that there are marked differences between arising "out of" or "in the course of" (in par (b)) and "contributed to in a material degree" (for par (a)) in the definition of "injury". And it simply means that the employee was unable to satisfy the different level of employment connection required under par (a) of the definition of "injury" under the Act. This construction of the definition of "injury" in s 4(1) of the Act does not "rob" [67] [68] The proper construction of the Act reflects the importance of the distinction drawn by the Act between "disease" and "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme.

Not sufficient for an employee merely to feel unwell

The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" [69] That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury". Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions. Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change" [70] Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged. The "nature and incidents of the physiological [or psychiatric] change" [71] [72]

Application to Mr May's circumstances

What then is Mr May's position? It is not in dispute that Mr May suffered a departure from a state of good health whilst he was employed with the RAAF. The Tribunal accepted that as a fact and made a finding to that effect [73] s 4(1) of the Act. In the present case, the Tribunal held that Mr May did not have a "disease" within par (a) of the definition of "injury" in s 4(1) of the Act. That conclusion was unchallenged in this Court. Rather, Mr May contended that he has an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. The Tribunal was not satisfied on the evidence (lay and medical) that Mr May had suffered an "injury". Some of the findings of the Tribunal are worth restating. There was no medical explanation for Mr May's "illness", which had been described as a "subjective description of a collection of symptoms" [74] [75] [76] Mr May asserted that he felt unwell. The Tribunal accepted that he felt unwell. But the "nature and incidents of the physiological [or psychiatric] change" suffered by Mr May were not established. There was no "injury" in the primary sense of that word. It followed that it was not established that Mr May suffered an "injury (other than a disease)". As he suffered neither from a "disease" nor from an "injury (other than a disease)", neither of the two separate bases of liability for which the Act provided was made out. Contrary to the conclusion of the Full Court [77]

Orders

The appeal should be allowed. Paragraphs 2, 3(a) and 3(b) of the Order made by the Full Court of the Federal Court on 30 June 2015 should be set aside and, in their place, there should be an order that the appeal to the Full Court be dismissed. Consistent with the condition attaching to the grant of special leave, the appellant is to pay Mr May's costs of this appeal.

GAGELER J. The content of, and relationship between, pars (a) and (b) of the definition of "injury" in the Act were considered by the Full Court of the Federal Court in Australian Postal Corporation v Burch [78] First, "disease" is used in its statutorily defined sense in each of pars (a) and (b). Second, "injury" is used in its ordinary sense in par (b). Third, the bracketed exclusion in the reference in par (b) to "an injury (other than a disease)" serves simply to clarify that the connection with employment required for an injury to meet par (b) has no application to a physical or mental condition which has the connection with employment required to meet the statutory definition of a disease. Fourth, the questions posed by pars (a) and (b) need not be asked in their statutory sequence. There is no need to ask whether a physical or mental condition is a disease in the statutorily defined sense used in par (a), if that physical or mental condition meets the description in par (b). To meet the description in par (b), it is enough that the condition is an injury in the ordinary sense which arises out of or in the course of employment. That brings us to the central question in the present appeal: what exactly is the ordinary sense in which injury is used in the context of the Act? Plainly, injury "is not used in a global sense to describe the general condition of the employee following an incident" [79] More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to "getting hurt" (an injury might be constituted by nothing more than "something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel" [80] [81] [82] [83] [84] The Full Court of the Federal Court referred in the decision under appeal to an injury as "a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" [85] Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. Indeed every manifestation of an ailment or of the worsening of an ailment might potentially be so described. Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction. The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries [86] [87] [88] [89] [90] [91] The need to identify some underlying physiological occurrence to justify the finding of a physical injury is perhaps best illustrated by the reasoning of the majority in Zickar v MGH Plastic Industries Pty Ltd [92] [93] [94] [95] The Full Court was right to point out in the decision under appeal that the Act and the case law do not "preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion" and to observe that "[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal's satisfaction on the evidence in each particular case" [96] [97] The Tribunal demonstrated that it understood the ultimate question which it needed to answer to determine Mr May's claim when it stated its conclusion in terms that it was "not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs" [98] The Tribunal, in my opinion, displayed no legal error in answering that question when (on the one hand) it accepted that Mr May experienced debilitating dizziness, which could "loosely" be described as "vertigo", and yet (on the other hand) it found itself unable to be satisfied that the dizziness was enough to show that Mr May had suffered an injury "in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms" [99] For these reasons, I agree with the orders proposed in the joint reasons for judgment.





[1] Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [66].

[2] All references in these reasons are to the Act as at that date: see the compilation prepared as at 13 September 2002, taking into account amendments up to Act No 144 of 2001.

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41.

[4] May [2011] AATA 886 at [25].

[5] May [2011] AATA 886 at [25].

[6] May [2011] AATA 886 at [27].

[7] May [2011] AATA 886 at [28].

[8] May [2011] AATA 886 at [29].

[9] May [2011] AATA 886 at [30].

[10] May [2011] AATA 886 at [31].

[11] May [2011] AATA 886 at [31].

[12] May [2011] AATA 886 at [56].

[13] May [2011] AATA 886 at [56].

[14] May [2011] AATA 886 at [32].

[15] May [2011] AATA 886 at [34].

[16] May [2011] AATA 886 at [35].

[17] May [2011] AATA 886 at [35].

[18] May [2011] AATA 886 at [48].

[19] May [2011] AATA 886 at [61].

[20] May [2011] AATA 886 at [53].

[21] May [2011] AATA 886 at [55].

[22] May [2011] AATA 886 at [58].

[23] May [2011] AATA 886 at [59].

[24] May [2011] AATA 886 at [60].

[25] May [2011] AATA 886 at [61].

[26] May [2011] AATA 886 at [62].

[27] May [2011] AATA 886 at [62].

[28] See Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 298 [35]; [2000] HCA 45.

[29] May [2011] AATA 886 at [63].

[30] May [2011] AATA 886 at [64]- [65].

[31] May v Military Rehabilitation and Compensation Commission [2014] FCA 406 at [75].

[32] See Kennedy Cleaning (2000) 200 CLR 286 at 298 [35].

[33] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 233 FCR 397 at 444 [205]- [207].

[34] May [2015] FCAFC 93; (2015) 233 FCR 397 at 444-445 [209]. See also at 425 [110].

[35] May [2015] FCAFC 93; (2015) 233 FCR 397 at 444-445 [209]. See also at 445 [211], 446 [216], 447 [220].

[36] May [2015] FCAFC 93; (2015) 233 FCR 397 at 446-447 [217]- [218], [220].

[37] May [2015] FCAFC 93; (2015) 233 FCR 397 at 447-448 [222]- [224].

[38] May [2015] FCAFC 93; (2015) 233 FCR 397 at 448 [224].

[39] May [2015] FCAFC 93; (2015) 233 FCR 397 at 448 [226] quoting Kennedy Cleaning (2000) 200 CLR 286 at 296-297 [28].

[40] May [2015] FCAFC 93; (2015) 233 FCR 397 at 449 [233].

[41] May [2015] FCAFC 93; (2015) 233 FCR 397 at 449 [233].

[42] par (a) of the definition of "injury" in s 4(1).

[43] pars (b) and (c) of the definition of "injury" in s 4(1).

[44] See also ss 6 and 7 of the Act, which define certain circumstances in which the employment connections for "injury" and "disease" will be satisfied.

[45] par (b) of the definition of "injury" in s 4(1).

[46] par (b) of the definition of "injury" in s 4(1).

[47] (2000) 200 CLR 286 at 300 [39]. See also at 298-299 [35], 300-301 [40].

[48] Kennedy Cleaning (2000) 200 CLR 286 at 298-299 [34]-[35].

[49] Hume Steel Ltd v Peart [1947] HCA 34; (1947) 75 CLR 242 at 252-253; [1947] HCA 34.

[50] Hume Steel [1947] HCA 34; (1947) 75 CLR 242 at 252-253.

[51] Hume Steel [1947] HCA 34; (1947) 75 CLR 242 at 253.

[52] Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 332; [1996] HCA 31.

[53] Kennedy Cleaning (2000) 200 CLR 286 at 289 [6], [8].

[54] May [2015] FCAFC 93; (2015) 233 FCR 397 at 424-426 [109]- [114], 426-427 [118], 443-444 [204]-[206].

[55] See Kennedy Cleaning (2000) 200 CLR 286 at 298 [35], 300 [39], 301 [40].

[56] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[57] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[58] Hume Steel [1947] HCA 34; (1947) 75 CLR 242 at 253; Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[59] May [2015] FCAFC 93; (2015) 233 FCR 397 at 425 [110].

[60] (1996) 187 CLR 310 at 332.

[61] (2000) 200 CLR 286 at 288-289 [5]-[8], 300 [39].

[62] (2000) 200 CLR 286 at 300 [39].

[63] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[64] See pars (a) and (b) of the definition of "disease" in s 4(1).

[65] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39]. See also at 298 [35]. Or, in the case of mental injury, a psychiatric disorder.

[66] See Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246 at 256 [15]; [2013] HCA 41. See also at 256 [16] quoting Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 at 572.

[67] Kennedy Cleaning (2000) 200 CLR 286 at 300 [40].

[68] cf Australia, House of Representatives, Parliamentary Debates (Hansard), 27 April 1988 at 2192.

[69] May [2015] FCAFC 93; (2015) 233 FCR 397 at 444-445 [209]. See also at 425 [110].

[70] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[71] Kennedy Cleaning (2000) 200 CLR 286 at 300 [39].

[72] cf Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563-564; [1940] HCA 45. But see also at 569-570.

[73] See [19]-[20], [22]-[24] above.

[74] May [2011] AATA 886 at [58].

[75] May [2011] AATA 886 at [61].

[76] May [2011] AATA 886 at [62].

[77] May [2015] FCAFC 93; (2015) 233 FCR 397 at 449 [233].

[78] [1998] FCA 944; (1998) 85 FCR 264 at 268.

[79] Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 540 [10]; [2006] HCA 47.

[80] Clover, Clayton & Co Ltd v Hughes [1910] AC 242 at 246, cited in Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 553; [1960] HCA 25.

[81] Hume Steel Ltd v Peart [1947] HCA 34; (1947) 75 CLR 242 at 252; [1947] HCA 34.

[82] Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 at 327-328, 330, 334; [1939] HCA 36 (citing Oates v Earl Fitzwilliam's Collieries Co [1939] 2 All ER 498 at 502); The Commonwealth v Ockenden [1958] HCA 37; (1958) 99 CLR 215 at 222-224; [1958] HCA 37; The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588 at 597; [1960] HCA 27 (citing in particular James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1); Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 298-299 [35]-[36], 300 [39], 303 [50], 304 [54], 308 [67]; [2000] HCA 45.

[83] Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 at 593; [1967] HCA 30.

[84] The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588 at 608.

[85] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 233 FCR 397 at 444-445 [209].

[86] Cf The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588 at 597.

[87] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 553.

[88] Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; [1967] HCA 10.

[89] Accident Compensation Commission v McIntosh [1991] VicRp 65; [1991] 2 VR 253.

[90] Australian Postal Corporation v Burch [1998] FCA 944; (1998) 85 FCR 264 at 268.

[91] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.

[92] (1996) 187 CLR 310; [1996] HCA 31.

[93] (1996) 187 CLR 310 at 334.

[94] (1996) 187 CLR 310 at 352.

[95] (1996) 187 CLR 310 at 335.

[96] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 233 FCR 397 at 445 [212].

[97] May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 233 FCR 397 at 445 [212]- [214], 446 [216], 449 [231].

[98] Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63].

[99] Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [52], [61], [63], [65].