Lim v Comcare

Federal Court of Australia|2016-06-15|Before: Flick J

The appeal is dismissed.
The Applicant is to pay the costs of the Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1 The Applicant in the present proceeding, Dr Sharon Lim, commenced working for the Australian Communications and Media Authority (the "Authority") in September 1995. 2 On 24 March 2011 she submitted a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the "Compensation Act"). That claim was rejected. The Administrative Appeals Tribunal (the "Tribunal") affirmed that decision: Re Lim and Comcare [2015] AATA 189. The Tribunal relevantly concluded that Dr Lim did suffer from a psychological condition which arose out of her employment with the Authority. But the Tribunal further found that her condition was a result of a performance appraisal which Dr Lim underwent in January 2011 and that the appraisal was "reasonable administrative action taken in a reasonable manner" and hence excluded from the definition of "injury" for the purposes of the Compensation Act. 3 A Notice of Appeal from the decision of the Tribunal was filed in this Court in April 2015. A Further Amended Notice of Appeal was filed in November 2015. On 14 April 2016 the Court granted leave further to amend that amended Notice. 4 The appeal should be dismissed with costs.

Injury & reasonable administrative action 5 It is unnecessary to canvass in any great detail either the concept of "injury" or that which constitutes "reasonable administrative action". But it is nevertheless prudent briefly to refer to the relevant statutory provisions and authorities, in order to explain the conclusion to dismiss the appeal. 6 Section 5A of the Compensation Act relevantly defines an "injury" and the exclusion from that definition of "reasonable administrative action" as follows: 5A Definition of injury (1) In this Act: injury means: (a) a disease suffered by the employee; or (b) 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; 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), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: (a) a reasonable appraisal of the employee's performance; (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; (c) a reasonable suspension action in respect of the employee's employment; (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. 7 With reference to the exclusion from the definition of "injury" of a "disease, injury or aggravation" suffered as a result of "reasonable administrative action", a finding on whether there has been "reasonable administrative action taken in a reasonable manner" is a finding based upon all the circumstances of an individual case. Thus, for example, in Comcare v Martinez (No 2) [2013] FCA 439 at [83], (2013) 212 FCR 272 at 293 Robertson J cited with approval the following observations of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47 to 48: Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer. In the decision in Keen, Bleby J had there also similarly observed: … whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented: (1998) 71 SASR at 63. 8 The correct construction and application of s 5A has presented some "difficulty". Section 5A was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) in 2007. In commenting on the current s 5A and its interpretation, Gray J in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, (2012) 199 FCR 463 at 472 ("Reeve") observed: The proper construction of the exclusion [23] Any attempt to apply to the exclusionary words in s 5A(1) of the SRC Act a construction that would promote the purpose or object underlying the legislation (in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act")) produces difficulty. The clear purpose of the SRC Act is to provide entitlements to compensation for persons injured in their employment. It is possible to invoke all of the cannons of construction about reading beneficial legislation broadly. On the other hand, the purpose of the Act that amended the exclusion was clearly to narrow entitlements to compensation by broadening the exclusion. The way in which the exclusion is now drafted gives rise to a difficulty in determining how far Parliament intended the broadening of the exclusion to go. [24] In this respect, it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare (2005) 145 FCR 29 at [21] - [23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee's employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury. It follows that the more broadly the exclusion is construed, the more destructive it becomes of the right to compensation afforded by the SRC Act. For instance, if the exclusion were to be construed so that any action that could be described as falling within the ordinary meaning of "administrative action", taken by an employer, and commencing a chain of causation that resulted in injury to an employee of that employer, it is difficult to see that any employee would have any entitlement to compensation … Examples of the potential difficulties in the construction of s 5A were then pursued. In respect to that which is excluded from the definition of "injury", Gray J concluded: [33] In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to "legitimate human resource management actions". Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of "injury", unless the action taken was not reasonable, or was not reasonably taken. In reaching much the same conclusion, Rares and Tracey JJ also concluded that it was sufficient if the "reasonable administrative action" was "a cause" of the injury, concluding: [65] The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, commonsense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee's employment. Their Honours expressed their own views as to what was intended by the legislative amendment to be included within the exclusion, concluding as follows: [73] Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of "injury" so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee's employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1). [74] However, the Explanatory Memorandum did not suggest that "administrative action" was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action" in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action". 9 Subsequently, in Drenth v Comcare [2012] FCAFC 86, (2012) 128 ALD 1 at 7, Rares, McKerracher and Murphy JJ referred to the observations of Rares and Tracey JJ in Reeve and continued: [29] The significance of identifying whether "reasonable administration action" was "a cause" of the compensation complainant's condition follows from the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29. The court held that if any factor that had been excluded as a cause of an injury or aggravation for which compensation was payable under the SRC Act, then even though there may have been one or several other operative causes at work, no compensation was payable at all. Thus, if any "reasonable administrative action" were found to be an operative cause of the aggravation of Ms Drenth's pre-existing condition, she was not entitled to compensation as explained in Reeve 199 FCR at 481-482 [54]-[56]. 10 More recently, in Martin v Comcare [2015] FCAFC 169, (2015) 148 ALD 1 at 23 to 24 Murphy J (with whom Siopis J agreed) again reviewed the authorities and concluded: [107] First, the task of construing s 5A must begin with a consideration of the text itself as those words are the surest guide to the intention of the legislature. The expression "suffered as a result of" requires that, for the exclusion to apply, a causal relationship must be established between the relevant administrative action and the claimed injury, disease or aggravation. [108] Second, it is important to keep in mind that in cases such as this causation is a matter of common sense … … [110] The Tribunal's task was to decide, by the application of common sense to the facts as it found them, whether Ms Martin's adjustment disorder was suffered as a result of the failure to promote her to the permanent cross media reporter position.

The injury suffered and the action taken 11 Dr Lim submitted a claim for compensation in March 2011. She claimed compensation for "adjustment reaction with depressant anxiety". 12 The condition seems to have its origins in a disagreement between Dr Lim and her immediate supervisor, Ms Richardson. They both worked in a particular section of the Authority dealing with complaints or inquiries made by members of the public. Ms Richardson was of the view that many of the "complaints" received by the Authority were not matters which could properly be dealt with under the Telecommunications Act 1997 (Cth) and proposed the use of "template letters" when responding to "complainants"; Dr Lim was of the contrary view. The Tribunal was of the view that "Dr Lim strongly and honestly believed that what Ms Richardson was asking her to do was wrong, and Dr Lim felt bullied because Ms Richardson refused to change her mind": [2015] AATA 189 at [22]. 13 It matters not for present purposes who was right or who was wrong. What does matter is that Dr Lim maintained that she had been "subjected to a sustained campaign of bullying and harassment by [Ms Richardson] over a period of about 6 months". 14 Given the degree of scrutiny to which the Tribunal's reasons were exposed it is, regrettably, necessary to set forth those reasons in some detail. 15 The reasons and findings relevant to the question as to when the injury was suffered were as follows: [27] I find that Dr Lim suffered a psychological condition arising out of Ms Richardson's dealings with Dr Lim about the use of the template letters, and about ACMA's response to enquiries under the Telecommunications Act more generally. The date the condition was suffered [28] The date that Dr Lim first suffered her psychological condition now becomes crucial. Obviously, the exclusion in s 5A cannot apply to an administrative action that occurred after the condition was suffered. [29] Dr Lim says that her condition was suffered in September or October 2010. Comcare says that Dr Lim's condition was suffered on 18 March 2011, though Comcare concedes that it could have been suffered as early as 10 December 2010. [30] In her evidence at the hearing, Dr Lim had difficulty recalling detail of events, including events that occurred in late 2010. I am sure that this lack of recall was mostly due to her psychological condition. In a statement that she made on 10 April 2014, Dr Lim said that on 15 September 2010 she first experienced "overwhelming feelings of anxiety and fearfulness" and felt as if she was suffocating. She said that she was sure about that date, because she sent herself an email on the following day. The subject heading of that email was "Important records of what was said to me on Wednesdat [sic] Sep 15 2010". In the email, Dr Lim described two discussions that she had had with Ms Richardson. She then said "I found the two meetings with her a little intimidating" and noted that she was worried about one of the matters that she and Ms Richardson had discussed. Dr Lim's email of 16 September 2010 does not mention any of the symptoms that she later said that she experienced on 15 September. [31] At the hearing, Dr Lim said that she was not feeling quite right in October 2010. She did not see a doctor until 8 December 2010, when she was diagnosed with sinusitis. On 10 December 2010, she saw her general practitioner, Dr Maria McPhail. Dr McPhail's notes from that day indicate that Dr Lim had been unwell, since 6 December, with a runny nose, a cough, sore ears and related symptoms, and had a viral illness. Dr McPhail noted that Dr Lim was stressed and anxious about her work for various reasons: some of those reasons relate to the issue of the template letters and ACMA's response to enquiries; some of those reasons are discussed below. Dr McPhail also noted that Dr Lim would return to discuss her stress at work "next week when feeling better". Dr McPhail gave Dr Lim a medical certificate for the period 10-17 December. Dr McPhail's notes indicate that, on 15 December, Dr Lim left a message saying that she had returned to work and asking that the certificate be changed to cover the period 10-13 December. Dr McPhail issued a revised certificate. [32] There is no evidence that Dr Lim sought any other medical or psychological assistance until she returned to Dr McPhail on 18 March 2011. Dr McPhail's notes indicate that they discussed Dr Lim's stress at work. Dr McPhail diagnosed Dr Lim as suffering "adjustment reaction with depression/anxiety". Dr Lim saw Dr McPhail again on 22 March. On 27 March 2011, Dr McPhail issued a medical certificate for workers' compensation "in relation to the injury stated as occurring" on approximately 15 October 2010. [33] I am sure that Dr Lim was not completely well in September and October 2010, but I do not think that she was then suffering from the psychological condition that she later developed. She told her doctor, on 10 December 2010, that she was stressed and anxious about her work. But she returned to work after only a few days, and even arranged to have a medical certificate reduced in its period of operation. At the hearing, Dr Lim said that she did this because the Christmas break was coming up, and because Ms Richardson would be away on leave. I am sure that this is true, but I think that it demonstrates that Dr Lim was not then operating outside the boundaries of normal mental functioning and behaviour. The medical certificate that Dr McPhail issued on 27 March 2011 said that Dr Lim suffered her condition around 15 October 2010. But, as Dr Lim confirmed at the hearing, Dr McPhail included that date based on what Dr Lim had told her. In doing so, Dr McPhail was not attesting that Dr Lim suffered the condition in October 2010; she was providing the date on which "the injury [was] stated as occurring". [34] I find that Dr Lim's psychological condition was suffered on, or a few days before, 18 March 2011, when she discussed her work stress with Dr McPhail and Dr McPhail diagnosed her as suffering an adjustment reaction with depression and anxiety … These reasons of the Tribunal expose the competing positions of the parties: Dr Lim maintained she suffered her condition in September/October 2010; Comcare maintained that the condition was suffered on 18 March 2011, although it conceded that the condition "could have been suffered as early as 10 December 2010" (at para [29]). 16 The Tribunal thereafter went on to set forth its reasons in respect to the question of whether the injury suffered was excluded by the concluding words to s 5A(1), namely the exclusion in respect to whether the injury was "suffered as a result of reasonable administrative action taken in a reasonable manner…". 17 One issue agitated before the Tribunal was whether the "performance appraisal" was undertaken in a "reasonable manner". Immediately before the "performance appraisal", Dr Lim had forwarded to Ms Richardson a number of e-mails opposing a proposed restructure of the Section in which she worked and again raised concerns relating to the manner in which "standard template" responses were used to respond to "complaints". Dr Lim maintained that the "performance appraisal" was not conducted in a "reasonable manner" because the concerns raised in the e-mails had not been addressed prior to the "performance appraisal". She also maintained that the appraisal process was "contaminated" by "apprehended bias". The Tribunal dealt with each of the concerns, relevantly concluding that: even if Ms Richardson was required to address Dr Lim's concerns prior to undertaking the appraisal, "her failure to do so before the performance appraisal [could not] have contaminated that appraisal" ([2015] AATA 189 at [38]); and there was nothing "unreasonable" in Ms Richardson undertaking the appraisal "having already formed views about a possible restructure of the Section" ([2015] AATA 189 at [40]). No question arises in the present appeal directed to these findings. 18 But a challenge was made to the Tribunal's conclusion that Dr Lim's psychological condition was suffered "as a result of" the performance appraisal for the purposes of s 5A(1). Again the Tribunal's reasons for this exclusion were exposed to considerable scrutiny and need to be set forth. Those reasons were relevantly as follows: [41] It is clear that the performance appraisal contributed to the development of Dr Lim's psychological condition. On 10 December 2010, Dr Lim told Dr McPhail that the upcoming performance appraisal was one of the reasons that she was feeling stressed and anxious at work. Ms Richardson says that the performance appraisal was "an uncomfortable conversation". She gave Dr Lim a rating of "requires development". Dr Lim says that she should have been given a higher rating than that: maybe not a rating of "superior", but a rating that reflected that she had met the requirements of her job ("effective" or "fully effective"). Ms Richardson says that Dr Lim told her that she would challenge the rating. Dr McPhail's notes from seeing Dr Lim on 18 March 2011 include "she is stressed and was given a poor review a month ago". [42] For the reasons above, I find that the performance appraisal on 31 January 2011 was conducted in a reasonable manner. Because it was a reasonable appraisal of Dr Lim's performance, it was a reasonable administrative action (s 5A(2)(a) of the SRC Act). I also find that the performance appraisal contributed to the development of Dr Lim's psychological condition. It was not the only cause. It may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim's position being declared excess. But Dr Lim suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A. … Conclusion [44] Dr Lim suffered a psychological condition which arose out of her employment with ACMA. The condition was suffered (on, or a few days before, 18 March 2011) as a result of - among other causes - the performance appraisal (on 31 January 2011). The performance appraisal was reasonable administrative action taken in a reasonable manner in respect of Dr Lim's employment. It follows that Dr Lim's psychological condition is not an injury for the purposes of s 5A of the SRC Act. Comcare is not liable to pay compensation in respect of her psychological condition.

A question of law -v- findings of fact 19 Although expressed as an "appeal", by virtue of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "Administrative Appeals Tribunal Act") the proceeding is brought as an application in the original jurisdiction of the Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J. 20 The jurisdiction vested in the Court is confined by s 44(1) to a "question of law". "The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it": Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. 21 Absent legal error in the manner in which the Tribunal has made findings of fact, such findings are excluded from the jurisdiction of the Court. The Court "is not at liberty to find for itself the relevant facts from which the question of law might emerge": Copperart Pty Ltd v Commissioner of Taxation (Cth) (1993) 30 ALD 377 at 377. Hill J there went on to conclude that "[t]hat task is entrusted to the tribunal and the tribunal alone". 22 According to the submission of Comcare, the Tribunal's conclusions in the present proceeding are (in summary form) founded upon its findings that: Dr Lim "suffered a psychological condition" (at para [27]); the "psychological condition was suffered on, or a few days before, 18 March 2011" (at para [34]); the "performance appraisal contributed to the development of Dr Lim's psychological condition" and that Dr Lim's condition was suffered "as a result of the performance appraisal" (at para [42]); and the appraisal of Dr Lim's performance was "reasonable administrative action (s 5A(2)(a)…" (at para [42]). Each of these findings was a finding of fact. 23 The attempt by Dr Lim to identify a "question of law" which would successfully undermine one or other of these findings of fact has not proved to be easy. The appeal from the decision of the Tribunal commenced before this Court on 15 October 2015. An adjournment was then sought (and granted) to amend the Grounds of Appeal.

The original challenge 24 Presumably in recognition of the constraints imposed upon this Court by s 44(1) of the Administrative Appeals Tribunal Act, Dr Lim in October 2015 placed at the forefront of her submissions - albeit in a variety of ways - the proposition that it was not open to the Tribunal to place the reliance it did upon the "performance appraisal" in January 2011 as a cause of her condition in circumstances where Comcare conceded that her condition "could have been suffered as early as 10 December 2010". 25 One difficulty in the path of Dr Lim was that the Tribunal did not make any finding that she then suffered her condition; indeed, the finding that was made by the Tribunal was that in December 2010 she was "not then operating outside the boundaries of normal mental functioning and behaviour": [2015] AATA 189 at [33]. 26 A second difficulty for Dr Lim as the appeal was previously advanced was the finding of the Tribunal that Dr Lim's condition was "suffered (on or a few days before 18 March 2011) as a result of - amongst other causes - the performance appraisal (on 31 January 2011)…". 27 An aide memoire produced during the course of the hearing in October 2015 sought to cast the net of legal error more widely. It was that aide memoire which occasioned the adjournment and the need - or at the least, the desirability - of an Amended Notice of Appeal.

The reformulated challenge 28 The Counsel who previously appeared for Dr Lim withdrew; Dr Lim retained new Counsel. 29 After the hearing adjourned on 15 October 2015 there was thereafter filed in this Court: a Further Amended Notice of Appeal on 24 November 2015; and a Second Further Amended Notice of Appeal on 15 April 2016. 30 On the very morning of the resumed hearing of the appeal on 14 April 2016 the Court was provided with an Outline of Oral Submissions. That Outline identified five "Errors" expressed in the form of questions. Upon an undertaking being given to file a further amendment to the existing Further Amended Notice of Appeal incorporating the five "Errors" into the form of "Questions of law", Counsel for the Respondent consented to leave being granted to further amend the Notice of Appeal and for the hearing of the appeal to proceed. 31 Even though Dr Lim had foreshadowed a submission that two earlier decisions of the Full Federal Court should not be followed, it was concluded that the Court should not be reconstituted as a bench of three Judges to resolve the present appeal. 32 As reformulated, the five Questions of Law which were advanced for resolution on 14 April 2016 were the following (without alteration): ERROR 1: Whether the Tribunal was operating under a misconception that needed to be satisfied of an appropriate clinical diagnosis of the psychological disturbances the applicant reported before it could find she had suffered an "injury" within s 5A(1) of the SRC Act? ERROR 2: Whether the Tribunal misunderstood its statutory task and approached the determination of whether the applicant had suffered an injury for the purposes of s 5A by the application of a formula purportedly derived from an expression of Drummond J in Comcare v Mooi [1996] FCA 508, (1996) 69 FCR 439 (said to be at 444)? ERROR 3: Whether the Tribunal misunderstood its statutory task and misconstrued the expression "suffered as a result of" in s 5A of the SRC Act? ERROR 4: Whether the Tribunal failed to provide reasons in breach of its obligation under s 43(2B) of the AAT Act in respect of its finding that the performance appraisal having "contributed to [the applicant's] psychological condition at [42] of its Reasons? ERROR 5: Whether the Tribunal misunderstood its statutory task and unnecessarily confined the ambit and operation of s 7(4) of the SRC Act? 33 Expressed in this way, Dr Lim's forensic objective was now to: focus attention on the error allegedly made by the Tribunal in not properly addressing the question of whether Dr Lim had suffered the "injury" in September/October 2010 (Questions 1 and 2) - thereby marginalising any relevance of "reasonable administrative action"; and, in the event that the former line of attack failed, to challenge: the manner in which the Tribunal concluded that any administrative action "contributed to" the "injury" which had been suffered (on this approach) in mid-March 2011 (Questions 3 and 4). These Questions, obviously enough, had some hallmarks of the arguments previously advanced. But, as redrafted, the Questions more clearly focussed attention upon the errors into which the Tribunal allegedly fell. 34 Notwithstanding the skill with which each of these reformulated challenges was advanced, none of these Questions of Law should be answered favourably to Dr Lim. Question 5, Counsel for Dr Lim quite frankly and properly conceded, did not arise for resolution. It was accepted that s 7(4) assumed no relevance to the Tribunal's reasoning. Accordingly, no further consideration need be given to this last Question.

The need for a clinical diagnosis - the decision in May's case 35 Of fundamental importance to the submissions advanced on appeal by Dr Lim, was her assertion that she had suffered an "injury" and that the date upon which she had suffered that "injury" preceded the performance appraisal. 36 Between the hearing of the appeal and judgment being delivered in the present case, the High Court of Australia published its reasons for decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19. That decision focussed attention (inter alia) upon the need for a claimant to establish the fact of "injury", and what was necessary to prove an "injury". 37 Given the importance of this decision, the parties were given an opportunity to file such further written submissions as each considered appropriate. 38 Mr May's claim has taken some years to resolve. In November 2002 he lodged a claim for compensation in respect of "low immunity, fatigue, illnesses, dizziness" which he claimed was caused by vaccinations received in the course of his employment with the Royal Australian Air Force. A delegate of the Commission rejected the claim. The Administrative Appeals Tribunal also rejected the claim for compensation: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886. A single Judge of this Court dismissed Mr May's appeal: May v Military Rehabilitation and Compensation Commission [2014] FCA 406. On appeal, the Full Court allowed the appeal: May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93, (2015) 233 FCR 397. The High Court, in turn, allowed an appeal from the decision of the Full Court: Military Rehabilitation and Compensation Commission v May [2016] HCA 19. Mr May's claim for compensation failed. 39 Before the Full Court, Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ concluded: [110] ... An injury involves "physiological change or disturbance of the normal physiological state" as an alteration to a person's physical or mental state, and one that can be said to be an alteration from the functioning of a healthy body or mind. It is antithetical to the use of a word like "injury" in this legal context to load it up with qualifications having the effect of narrowing or constraining the circumstances to which it might be applied, unless those qualifications or constraints are drawn from the text or structure of the statute. Any relevant constraints on meaning are to be found expressed by Parliament in the legislation. The degree to which an injury may reflect an identifiable event will depend on the circumstances ... Their Honours went on to conclude: [209] … As part of the statutory question, one asks 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. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause. … [212] … neither the terms of s 4 of the SRC Act, nor the authorities, 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. Whether 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. The error in the Tribunal's reasoning process at [52] was to proceed on the basis that a claimant's account could never suffice to establish an injury. [213] The error in seeing objective medical evidence as necessary before an "injury" within s 4(1) could be found was perpetuated by the Tribunal's statement at [59] of its reasons that: The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change … However there is no objective evidence of Mr May's swollen tongue or dizziness or pathology to support his account of his symptoms. [214] This passage does not indicate that the Tribunal did not believe the appellant. Reading its decision as a whole, it is clear it accepted him as an honest witness, and an accurate historian of the changes he experienced in his own physiological functions. Nor do these passages suggest, contrary to the respondent's submissions, simply a weighing of evidence by the Tribunal. The Tribunal is, we consider, instructing itself that it cannot find an "injury" for the purposes of s 4 without corroborating understood pathology or medical opinion. 40 When the case reached the High Court, French CJ, Kiefel, Nettle and Gordon JJ concluded in relevant part as follows: Not sufficient for an employee merely to feel unwell [57] 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" (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected. The two passages in the decision of the Full Court to which their Honours referred to are those at paras [110] and [209] of the Full Court's reasons. French CJ, Kiefel, Nettle and Gordon JJ continued: [58] 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". [59] 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. [60] 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". [61] 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. [62] The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. Their Honours applied this approach to the facts in that case and disagreed with the conclusions drawn by the Full Court of this Court in part as follows: [66] 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". There was no objective evidence of Mr May suffering "vertigo" in the period following his vaccinations, nor was there any substantial pathology to explain Mr May's symptoms. For example, there was no objective evidence of Mr May's swollen tongue or dizziness, or pathology to support his account of those symptoms, apart from diarrhoea and upper respiratory tract infections, which were treated and subsequently resolved. The medical evidence indicated a lack of any pathology consistent with Mr May's symptoms, which meant that no diagnosis could be made. Mr May did not suffer from a diagnosable psychiatric disorder and no psychiatric disturbance could better account for his symptoms. [67] 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. [68] 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. In a separate judgment reaching the same conclusion, Gageler J said: [80] 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". But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.. [81] 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". [82] 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" … The passages of the Full Court's reasons to which Gageler J referred were those set forth in para [212]. 41 Notwithstanding the complexity of the legal and factual issues involved in the May litigation, it is respectfully considered that the following conclusions may be drawn for the purposes of the present case, namely: medical evidence or opinion is relevant to a finding of whether an "injury" has been suffered but is not determinative; and an "injury" may thus be found to have been suffered even in the absence of a clinical diagnosis of an "injury", and in advance of any clinical diagnosis having been made. The observations of French CJ, Kiefel, Nettle and Gordon JJ (at paras [57] and [66] in particular) are not to be understood as requiring a clinical diagnosis before an "injury" can be made out); but that: more is needed than a mere assertion that a claimant "feels unwell". The fact of "injury" must be made out. The ultimate conclusion in the May case, it is respectfully considered, largely depended upon the conclusions to be drawn from the findings of the Administrative Appeals Tribunal.

The need for a clinical diagnosis & the facts of the present case 42 With reference to the facts of the present case, Questions 1 and 2 as formulated by Counsel for Dr Lim can conveniently be dealt with together. 43 Both Questions are directed to the manner in which the Tribunal resolved Dr Lim's claim that she had suffered her injury in about September/October 2010 - and not a "a few days before" 18 March 2011. If this were correct, it would follow that the Tribunal's conclusion that the "performance appraisal" in January 2011 "contributed to the development of Dr Lim's psychological condition" would no longer be a reason for rejecting Dr Lim's claim for compensation. 44 Counsel for Dr Lim contended that the Tribunal's analysis of the evidence relating to Dr Lim's condition in September/October 2010 was flawed either because the Tribunal: impermissibly required a clinical diagnosis of Dr Lim's condition before it could conclude that she had suffered an injury at that time (Question 1); and/or impermissibly applied a "formula" to the facts rather than discharging the factual task of analysis demanded by s 5A (Question 2). 45 Both Questions require an analysis of the findings made by the Tribunal and its reasons, understood in light of the decision of the High Court in May. When reviewing the Tribunal's findings and reasons, it may thus be accepted that Dr Lim's claim might be made out even in advance of any clinical diagnosis of an "injury". For the Tribunal to require a clinical diagnosis before being prepared to make a finding of an "injury" would be contrary to both the decisions of the Full Court and of the High Court in May. But an analysis of the Tribunal's findings and reasons does not expose any impermissible search for a clinical diagnosis before it could reach a finding of "injury". On the facts of the present case, the Tribunal evaluated Dr Lim's own evidence of her symptoms and weighed this against other evidence including her discussions with Dr McPhail and Dr McPhail's ultimate diagnosis of her condition. 46 The alternative challenge raised in Question 2 questioned the Tribunal's reliance on the fact that in mid-December 2010 Dr Lim was "not then operating outside the boundaries of normal mental functioning and behaviour". The origins of that expression, it was said on Dr Lim's behalf, were to be found in Comcare v Mooi (1996) 69 FCR 439. In that case, the Tribunal had concluded that Mr Mooi was entitled to compensation for work-related stress, notwithstanding that at no stage was he mentally ill or mentally disturbed or suffering from a psychological condition. The Federal Court allowed Comcare's appeal. In the course of his reasons Drummond J observed: It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant behaviour, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1): (1996) 69 FCR at 443 to 444. It may readily be accepted that resolving a claim to compensation requires the Tribunal to determine whether an "injury" as defined by s 5A is made out on the facts; the statutory requirement could not be subverted by the Tribunal applying a "formula" - such as "the boundaries of normal mental functioning" - as to how that very question should be resolved. 47 In seeking to make good the submission that the Tribunal was erroneously looking for a clinical diagnosis, rather than applying the facts to the statutory definition of an injury, Counsel for Dr Lim seized upon the finding at para [27] of the Tribunal's reasons that Dr Lim suffered a "psychological condition arising out of Ms Richardson's dealings with Dr Lim about the use of the template letters…". That difference of opinion, according to the Tribunal arose in April 2010 (at para [20]). Given the finding at para [27] and the concession (at para [29]) that the condition "could have been suffered as early as 10 December 2010", Dr Lim then submitted that she should have been found to have suffered her injury in September/October 2010, as supported by: her "overwhelming feelings of anxiety and fearfulness" in September 2010 (at para [30]); the fact that in October 2010 Dr Lim had told Dr McPhail that "she was not feeling quite right" and the fact that Dr McPhail's notes record that "Dr Lim was stressed and anxious about her work for various reasons: some of those reasons relate to the issue of the template letters…" (at para [31]); the fact that a medical certificate had been issued "'in relation to the injury as occurring' on approximately 15 October 2010" (at para [32]); and the fact that Dr Lim told Dr McPhail on 10 December 2010 that she was "stressed and anxious about her work" but nevertheless "returned to work after only a few days…" (at para [33]). Counsel for Dr Lim recognised that it was not necessary to pitch the submission at the level of the facts dictating the finding that should have been made by the Tribunal. It was sufficient for her purposes to demonstrate that the Tribunal did not properly approach its analysis of the above facts. 48 The absence of a finding that the injury was not suffered during September/October 2010 was said to be only explicable if the Tribunal was impermissibly seeking out a clinical diagnosis of Dr Lim's accepted condition. The error, in very summary form, was that the Tribunal did not look at the facts and apply the statutory definition of an "injury"; it erroneously side-lined these facts in search of a clinical diagnosis. The error, it was said, was only reinforced by the manner in which the Tribunal went on to make its finding of when the injury was suffered. In resolving that question, the Tribunal took into consideration Dr McPhail's diagnosis on 18 March 2011 that Dr Lim was suffering "adjustment reaction with depression/anxiety". 49 Counsel for Dr Lim also submitted that the Tribunal's erroneous approach to the condition Dr Lim described in September/October 2010 was only compounded by the Tribunal's conclusion that in mid-December 2010 Dr Lim "was not then operating outside the boundaries of normal mental functioning and behaviour" (at para [33]). 50 These submissions on behalf of Dr Lim which skilfully analysed the Tribunal's reasons are nevertheless rejected. It is concluded that: paragraph [27] of the Tribunal's reasons does no more than state the cause of Dr Lim's psychological condition - it does not state that Dr Lim suffered an injury from the date the difference of opinion emerged in April 2010 over the template letters, and does not attempt to answer any question of when the injury was suffered; paragraphs [30] to [33] of the Tribunal's reasons do no more than attempt to set out the chronology of Dr Lim's condition - those paragraphs do not attempt any analysis of when the injury was suffered; and the use of the "formula" in para [33] is no more than a tool the Tribunal used to assess Dr Lim's condition. Moreover: relying on Comcare's concession that the injury "could have been suffered as early as 10 December 2010" takes the analysis no further. That was the date upon which Dr Lim told Dr McPhail that "she was stressed and anxious about her work" and a "few days" before she returned to work. The Tribunal thereafter concluded that she "was not then operating outside the boundaries of normal mental functioning and behaviour" (at para [33]). The Tribunal took the concession and the chronology of those events into account. These conclusions, with respect, are only reinforced by the Tribunal expressly directing its attention in para [34] to the ultimate question of when the injury was suffered. That conclusion as to when the injury was suffered follows the account of the evidence previously set forth, including the concession (at para [29]) and the account of what Dr Lim told Dr McPhail on 10 December 2010 (at para [33]). The account of the events from paras [28] to [34] is all preceded by the introduction: "The date the condition was suffered". 51 There is no express analysis on the part of the Tribunal stating that it was looking for a clinical diagnosis. An express reference to the need for a clinical diagnosis, of course, need not be demonstrated. An implicit search for a clinical diagnosis may be sufficient. But there is no express or implicit search for a clinical diagnosis by the Tribunal on the facts of the present case. The Tribunal remained cognisant of the parties' competing submissions on when the injury was suffered. It resolved that dispute. Paragraphs [30] to [33] should not be construed as an analysis of the evidence by a Tribunal looking for a clinical diagnosis before it could make a finding as to the time an injury was suffered. The Tribunal was simply setting forth the chronological evolution of the condition. Indeed, the reference to the "formula" in para [33] is only consistent with testing evidence of an injury at a point when no clinical diagnosis had been provided. Certainly its ultimate conclusion may well be sourced in the diagnosis on 18 March 2011. But that says nothing as to why it did not make a finding of injury as at September/October 2010. 52 The first two Questions raised on appeal are thus to be answered: No.

Suffered as a result of - s 5A & the reasons given 53 The third Question assumes that the first two Questions are resolved adversely to Dr Lim. The third Question assumes that no error is exposed in the finding by the Tribunal that Dr Lim's injury was "suffered on, or a few days before, 18 March 2011…". This third Question seeks to impugn the finding of the Tribunal that Dr Lim "suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A" (at para [42]). 54 The submission advanced on behalf of Dr Lim was that s 5A required a "common sense" causal connection between the injury and the performance appraisal. Counsel for Dr Lim submitted that the Tribunal either: erroneously reasoned that any cause was sufficient to establish the causal connection (Question 3); and/or failed to explain why the facts of the present case satisfied the requirement that the condition be suffered "as a result of" the performance appraisal (Question 4). Both of these Questions can be resolved together. 55 It should be recalled that the concluding words of s 5A(1), which exclude from the definition of an injury reasonable administrative action taken in a reasonable manner, relevantly require that the injury be suffered "as a result of" such action. 56 The ambit of the exclusion from liability in s 5A, and the correct construction of the phrase "as a result of", have each attracted judicial attention. 57 The wider the reach of the exclusion in s 5A, the greater the constraint on any entitlement to compensation: Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, (2012) 199 FCR 463. Gray J there outlined this tension as follows: The proper construction of the exclusion [23] Any attempt to apply to the exclusionary words in s 5A(1) of the SRC Act a construction that would promote the purpose or object underlying the legislation (in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act")) produces difficulty. The clear purpose of the SRC Act is to provide entitlements to compensation for persons injured in their employment. It is possible to invoke all of the cannons of construction about reading beneficial legislation broadly. On the other hand, the purpose of the Act that amended the exclusion was clearly to narrow entitlements to compensation by broadening the exclusion. The way in which the exclusion is now drafted gives rise to a difficulty in determining how far Parliament intended the broadening of the exclusion to go. 58 The exclusion, clearly enough, operates where there may be multiple causes of a claimant's injury. The exclusion is not confined to those circumstances where the reasonable administrative action was the "only" cause of injury: Hart v Comcare [2005] FCAFC 16, (2005) 145 FCR 29 at 33. Branson, Conti and Allsop JJ there observed: [22] … The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction … 59 There nevertheless remains the need to give content to the statutory exception "as a result of…". Where an injury is not the "result of" reasonable administrative action, the exclusion in s 5A does not apply. And it is a mistake, or at least a dangerous invitation to error, to define the circumstances in which liability is excluded using words or phrases other than those used by the Legislature. The expression "as a result of" requires some causal connection between the reasonable administrative action and the injury. Whether there is a causal connection in any given case obviously depends upon the facts. The requirement is respectfully considered to be primarily a factual question. To assist in the resolution of that factual question, Judges have attempted to describe those circumstances where that causal connection may be found. One expression is that there must be a "material" connection: Hart v Comcare [2005] FCAFC 16 at [23], (2005) 145 FCR 29 at 33. Branson, Conti and Allsop JJ there further observed: [23] It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion. In the subsequent decision in Reeve, Rares and Tracey JJ proposed the touchstone of "common sense" to determine whether an injury is the consequence of what is identified as reasonable administrative action: [2012] FCAFC 21 at [65], (2012) 199 FCR at 484. 60 The difficulty confronting Dr Lim in respect to Questions 3 and 4 is that the Tribunal did in fact require there to be a causal connection between the injury and the administrative action and did not proceed upon the basis that "any connection" would suffice. And it explained its reasons for so concluding. 61 In concluding that the performance appraisal "contributed to the development of Dr Lim's psychological condition" and its finding that Dr Lim suffered "the psychological condition as a result of the performance appraisal" (at para [42]), the Tribunal proceeded by reference to the following facts: Dr Lim had told Dr McPhail on 10 December 2010 that the "upcoming performance appraisal was one of the reasons she was feeling stressed and anxious at work"; the assessment made - albeit by Ms Richardson - that the performance appraisal was "an uncomfortable conversation"; Dr Lim was not satisfied with the rating given to her as a result of that performance appraisal and "would challenge the rating"; and Dr McPhail's notes from seeing Dr Lim on 18 March 2011 included a note that Dr Lim was "stressed and was given a poor review a month ago". All these matters are set forth in para [41] of the Tribunal's reasons. Paragraph [42] records its conclusions as to the connection between the appraisal and the injury and is introduced by the phrase "For the reasons above", namely for reasons including those in para [41]. Paragraph [42] expressly recognises that the performance appraisal may not have been the only "cause" of Dr Lim's injury and indeed recognises that "[it] may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim's position being declared excesses…". And that evaluation of competing potential "causes" of Dr Lim's injury is the very task of fact-finding entrusted to the Tribunal. Others may possibly disagree with the finding made - but the responsibility for making findings of fact is entrusted to the Tribunal. 62 Such reasoning adequately explains the basis upon which the Tribunal proceeded. It demonstrates that the Tribunal was certainly not proceeding on the basis that "any connection" (no matter how tenuous) would satisfy the test in s 5A(1), namely "as a result of…". There has been no failure of the Tribunal to comply with the obligation to explain its decision as required by s 43(2B) of the Administrative Appeals Tribunal Act and no "question of law" arises for the purposes of s 44 of the Administrative Appeals Tribunal Act. 63 The finding of the Tribunal that the injury was the "result of" the performance appraisal involved no error of law. As such, it is a finding with which this Court cannot disturb. 64 Questions 3 and 4 should also be answered: No.

CONCLUSIONS 65 The Tribunal has made findings of fact regarding the cause and timing of Dr Lim's condition, and found that her condition was a result of her performance appraisal. In making those findings the Tribunal did not fail properly to apply the terms of s 5A to the facts. 66 Each of the Questions posed for resolution in this appeal should be answered in the negative. 67 The appeal should be dismissed. 68 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

The appeal is dismissed.
The Applicant is to pay the costs of the Respondent. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007(Cth)

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