Comcare v Sahu-Khan [2007] FCA 15

FEDERAL COURT OF AUSTRALIA

Comcare v Sahu-Khan [2007] FCA 15 ADMINISTRATIVE LAW – whether injury was contributed to or aggravated in a material degree by employment under s4(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth)– effect of word "material" upon definition of "disease" – requirements before remitting matter to Tribunal. STATUTORY INTERPRETATION – resort to textual material – "material" intended to require something more than "a mere contributing factor". Administrative Appeals Act 1975 (Cth) s44 Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) Safety Rehabilitation and Compensation and other Legislation Amendment Bill 2006 (Cth) Sched 1 cl 11, s 5B CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 followed Comcare v Canute (2005) 148 FCR 232 referred to Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred to Repatriation Commission v Bendy (1989) 10 AAR 323 referred to Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 referred to Macquarie Dictionary Second Reading Speech, House of Representatives, Debates, 27 April 1988, p 2191 Shorter Oxford Dictionary COMCARE v SHAFFAAT ALI SAHU-KHAN No SAD 110 of 2006

FINN J

19 JANUARY 2007

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 110 OF 2006

BETWEEN: COMCARE

Applicant

AND: SHAFFAAT ALI SAHU-KHAN

Respondent

JUDGE: FINN J

DATE OF ORDER: 19 JANUARY 2007

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 110 OF 2006

BETWEEN: COMCARE

Applicant

AND: SHAFFAAT ALI SAHU-KHAN

Respondent

JUDGE: FINN J

DATE: 19 JANUARY 2007

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The short issue in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is what is meant by the phrase "in a material degree" in the definition of disease in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). That provision defines "disease" to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth".

BACKGROUND 2 Mr Sahu-Khan was employed by the Commonwealth Serum Laboratories as a medical sales representative from 1971 to his retirement in September 2000. His employment involved visiting doctors and pharmacists to advise them of new products and required him to carry a detailing case that weighed approximately 10 kg. He first experienced pain in his left shoulder in 1996/1997 and soon developed pain in the right shoulder. He sought medical assistance in 1998. He subsequently claimed he sustained his shoulder injuries as a result of the repetitive lifting of heavy weights focussing particularly on the daily lifting of the detailing case. A claim for compensation was lodged in December 1999. 3 It was common ground before the Tribunal that the injury from which the respondent suffered was a disease. What was in issue was whether the condition was contributed to or aggravated in a material degree by his employment.

Evidence before the Tribunal 4 The Tribunal received evidence both from Mr Sahu-Khan and from three medical experts. For present purposes the only relevant medical evidence was that of Dr Michael Hayes, an orthopaedic surgeon, who gave evidence on Mr Sahu-Khan's behalf. The Tribunal rejected the evidence of a medical expert called by Comcare who was of the view that the respondent's condition was not work-related. The evidence of a third medical expert who was not called by Comcare was to the effect that the respondent's activities at work may have accelerated degenerative processes already in train. He did not regard the employment as having been a significant aggravating factor. The Tribunal appears not to have given weight to this evidence. 5 Dr Hayes first saw the respondent in July 2000 and provided two reports as to his medical condition. In his first report in July 2000, Dr Hayes expressed the view that Mr Sahu-Khan's symptoms were related to his work requirements, a view confirmed in his second report in 2005. In his oral evidence to the Tribunal he considered other relevant matters to which regard should be had were the duration of the period of activities that may have caused the condition, as well as the genetic background. Dr Hayes accepted that there would be an element of natural degeneration for ageing in the respondent's case. 6 The Tribunal summarised Dr Hayes' opinion as follows: "35. Dr Hayes expressed the view that carrying a heavy briefcase throughout your working life also causes stress on the shoulder that could lead to the type of rotator cuff injury that has occurred in this case. 36. Dr Hayes was of the opinion that when people are regularly abducting their arm above a certain level they are at high risk of shoulder problems. He did not accept the position put by Dr Awerbuch [a rheumatologist called by Comcare] that a person necessarily had to work consistently above shoulder level to develop shoulder problems. 37. When asked whether the subacromial spurs that were present in this case could have developed because of repetitive use rather than being a product of long-term degenerative arthritis, his response was "I think there is a combination of both plus a genetic predisposition. So it's a multifactorial thing".

The Tribunal's reasons 7 Given the issue in this application it is necessary to set out verbatim the Tribunal's formulation of the issue before it, the approach it took and the conclusion it reached. "49. In this instance it is common ground that the injury from which the applicant suffers is a disease. The issue to determine under the 1988 Act is whether this condition was contributed to or aggravated in a material degree by his employment. 50. To establish a nexus with employment the applicant must establish that the bilateral shoulder condition from which he suffers is either an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment. There has been considerable previous discussion as to what is meant by the concept of 'contributed to in a material degree'. 51. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 ['Treloar'] in discussing the use of the word 'material' for the purposes of the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) the Full Federal Court said at 323: '… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conditions complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once a link is established, however, it matters not that the contribution be large or small.' 52. The approach in Treloar's case has been expressly adopted in subsequent cases under the 1988 Act, for instance in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 Ryan J commented: '… Although it is true that Treloar's case was expressly limited to a consideration of the 1971 Act, in which the word "material" did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it …' 53. The concept of the employment 'contributing' has also been considered. The employment need not be the sole contributing factor and can be just one of several factors contributing to the contraction of the disease, its acceleration, aggravation or occurrence (Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43). In Treloar the Full Federal Court commented at 323: '… once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. … In all cases the question is whether there has been a "contribution". …' 54. It is the Tribunal's view that by material contribution the 1988 Act looks to a contribution that is not de minimus, but the contribution need not be the sole or principle (sic) contributor to the disease or the aggravation of it. … 56. After carefully weighing all medical evidence and taking into account the duties undertaken by the applicant over 30 years, the Tribunal is satisfied, on the balance of probabilities, that the duties of his employment contributed in a material degree to the shoulder condition or to an aggravation of the shoulder condition from which the applicant now suffers. The Tribunal was particularly mindful of the explanation given by Dr Hayes of the patho-physiology and the tenuous blood supply to the supraspinatus tendon of the musculo tendon function and the tendon insertion and how this blood supply could have been compromised by the natures of the duties undertaken by the applicant. 57. The Tribunal accepts that his age and underlying genetic factors are also likely to have been contributing factors. Nevertheless, all that is required is that there is a material contribution from the employment and that is found to exist in this case."

The issue on appeal 8 It is Comcare's contention that the new definition of "disease" enacted in the SRC Act reflects a deliberate decision by the Parliament to impose a more exacting requirement of "contribution" by an employee's employment to the suffering or aggravation of an ailment before the compensation regime of the SRC Act would be attracted. The employee's employment is now required to contribute "in a material degree" to the suffering, etc of an ailment.

PRESENTLY RELEVANT Legislative history and RECENT judicial exposition 9 The ancestor of the SRC Act was the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Section 29 provided an entitlement to compensation where: "(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment": emphasis added. 10 This definition was considered in Treloar and was held to mean that whilst a causal connection must be established on the probabilities, once that link was established, "it matters not whether the contribution was of any particular size or degree": (at 323) emphasis added. 11 Recently, in Comcare v Canute (2005) 148 FCR 232, the majority of the Full Court (French and Stone JJ) considered both the utility of Treloar's case in construing the SRC Act's s 4 definition of "disease" and the legislative history of that definition. In dicta, their Honours expressed their own view of what that definition required. Though of some length, their observations need to be set out in full as they are central to this application. 12 French and Stone JJ observed: 63. … "[The SRC Act] definition differs from that considered by the Full Court in Treloar. In Treloar, the Full Court was concerned with the antecedent legislation, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which merely required the employment be 'a contributing factor' to the disease without any requirement that the contribution be 'material'. The Full Court, at 323, said that under the test laid down in the 1971 Act: once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not 'contribute'. 64. The Full Court, however, went on to comment on the use of the word, 'material' in cases concerned with the exposition of the concept of 'contributing factor' in the 1971 Act. It did so because the trial judge in Treloar had made the following comment: The test propounded by the 1971 Act, like the test propounded by the [SRC Act] requires that there be a contribution of a causal nature and therefore that the contribution be causally significant or, to use another term, material. Australian Telecommunications Commission v Treloar (1989) 11 AAR 69 at 71. Responding to this comment, the Full Court said (at 323): The use of the word 'material' in conjunction with the words 'contributing factor' in the [1971 Act], where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small. 65. In Suters v Australian Postal Corp (1992) 28 ALD 320, Ryan J, while recognising that Treloar was concerned with legislation in which the word, 'material' did not appear, commented that 'the case nonetheless contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it'. 66. Insofar as his Honour was of the view that Full Court's comments in Treloar may be helpful in ascertaining the meaning of the term generally, we agree. This does not mean, however, that the comments of the Full Court apply to the use of the term in the definition of disease in s 4 of the SRC Act. Such an approach would fail to have sufficient regard to the legislative history that led to the enactment of the present legislation. The SRC Act, known as the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) when first enacted, repealed the 1971 Act and introduced a new scheme of compensation and rehabilitation. One of the changes from the 1971 Act was the introduction of a requirement that the employee show that their employment contributed 'in a material degree' to the contraction of the disease. In the Second Reading Speech to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Cth), which (with immaterial amendments) became the SRC Act, the Minister for Social Security stated: Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged. In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee. (Emphasis added.) Second Reading Speech, Australia, House of Representatives, Debates, 27 April 1988, p 2191. 67. On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a 'but for' test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be 'more than a mere contributing factor' and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word 'material' contained in the definition of 'disease' in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of 'material' and nothing more need to said about this issue": emphasis added.

Consideration 13 The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded. 14 What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act's "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act. The legislative history of this definition makes this plain. 15 There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is – "4. In a material degree; substantially, considerably." An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary "namely, 'of substantial import or much consequence' [rather than the] legal sense of 'pertinent' or 'likely to influence'". 16 Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act; (ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); (iii) whether this will be so in a given case will be a matter of fact and degree. 17 While the Tribunal's treatment of the question of contribution in par 54 of its Reasons could be said to encompass an approach to materiality consistent with what I have said above, given the use it has made of the observations in Treloar and the lack of any obvious consideration of an evaluative threshold beyond a de minimis test, I am not satisfied that it has in fact applied the correct test in this matter. To that extent Comcare must succeed in this appeal. 18 There remains the question though, whether any useful purpose would be served in remitting this matter to the Tribunal for redetermination. The caution that should be exercised before concluding that it would be futile to remit is well understood: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562. Nonetheless, having regard to the Tribunal's findings in light of Dr Hayes' evidence, and the centrality given in that evidence to the employment's contribution to the disease suffered by the respondent, I am satisfied that had the Tribunal applied the correct test the result would not have been different. For this reason, notwithstanding the error of law, I am satisfied that the Tribunal's decision was clearly correct on the material before it having regard to its acceptance of Dr Hayes' evidence. 19 I will order that the appeal be dismissed with costs. 20 Though it is not of relevance in determining this matter, I would simply note that a Bill is currently before the Commonwealth Parliament one purpose of which, according to its Explanatory Memorandum, is to amend the definition of "disease" to strengthen the connection between the disease and the employee's employment: Safety Rehabilitation and Compensation and other Legislation Amendment Bill 2006 (Cth), Sched 1 cl 11, s 5B. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 18 January 2007

Counsel for the Applicant: P Hanks

Solicitor for the Applicant: Sparke Helmore

Counsel for the Respondent: G Britton

Solicitor for the Respondent: Condello & Co

Date of Hearing: 29 November 2006

Date of Judgment: 19 January 2007