Did the applicant suffer an injury?
83 The submissions of the parties to this appeal require close attention to the reasons in the joint judgment of French CJ, Kiefel, Nettle and Gordon JJ, and the separate reasons of Gageler J in MRCC v May. Before considering those reasons for judgment, I will briefly highlight some of the features of workers' compensation legislation, and the SRC Act in particular, the relevant provisions of which I have already set out.
84 The definition of "injury" in s 4(1) of the SRC Act has two distinct sub-sets -
(a) a disease [as defined]; and
(b) an injury (other than a disease).
85 The word "injury" in paragraph (b) is used in its primary sense, and part of the legislative context is a body of High Court authority that over the years has considered the meaning of the term "injury" in different workers' compensation statutes. For the purposes of s 4(1) of the SRC Act, the court's decision in MRCC v May is the relevant binding authority on the meaning of the word "injury" in its primary sense.
86 The word "disease" is defined, and where used in paragraphs (a) and (b) of the definition of "injury" carries its defined meaning: Australian Postal Corporation v Burch (1998) 85 FCR 264 (Burch) at 267-268 (Heerey, Sundberg and North JJ); MRCC v May at [54] (French CJ, Kiefel, Nettle and Gordon JJ), and [72] (Gageler J). It is an important element of the defined meaning of "disease" that there be an ailment or aggravation of an ailment that "was contributed to in a material degree" by the employee's employment. What is required is that employment be a material contributing factor, and not merely a temporal nexus: see, Comcare v Canute [2005] FCAFC 262; 148 FCR 232 at [67] (French and Stone JJ). This may be compared to the reference to "injury" in its primary sense in paragraph (b) of the definition of "injury" in s 4(1), which requires that the injury be "a physical or mental injury arising out of or in the course of" the employee's employment. This requires either a causal or a temporal nexus to employment.
87 The different degrees of connection between employment and disease, and employment and injury (other than a disease), render the difference between them important. The fact that they are different, albeit overlapping, concepts is embedded in the SRC Act. As a generalisation, and subject to the following qualifications, for a long time workers' compensation legislation in Australia has required that a distinction be drawn between an injury and a disease because of the different tests connecting them to employment as a condition of liability to pay compensation. However, one must be cautious to generalise, because over the years workers' compensation legislation in the States, Territories, and the Commonwealth of Australia has been frequently amended and re-enacted, and the legislation has not been uniform. For the reasons given by Lord Upjohn in Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127, and by McHugh, Gummow and Heydon JJ in McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [40], it is necessary to pay attention to the terms of the legislation and the facts under consideration in each case so that judicial formulations apt to explain the proper construction of one particular form of the legislation are not uplifted and employed to take the place of the text of differently framed provisions: see also, Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Kennedy Cleaning) at [22] (Gleeson CJ and Kirby J) and [59] (McHugh, Gummow and Hayne JJ). Subject to that qualification, I will now refer briefly to some of the issues considered by the High Court in cases that preceded the decision MRCC v May.
88 A recurring issue that arose over the years was whether a change in physiology as the outcome of an underlying disease, such as heart disease, qualified as an "injury" in its primary meaning. As I have alluded to, the issue arose because of the different degrees of connection required by the legislation between "injury" and employment, and "disease" and employment. There have been a number of cases where an employee suffered from underlying degenerative heart disease and where it was held the rupture of a blood vessel caused by exertion in the course of employment was an "injury by accident". It was in one such case that Clauson LJ stated that, "a physiological injury or change occurring in the course of a [person's] employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly, or even mainly, by the progress or development of an existing disease…": Oates v Earl Fitzwilliam's Collieries Co [1939] 2 All ER 498 at 502, cited in Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 at 328 (Latham CJ) and 334 (Dixon J). The requirement of a "sudden physiological change" was referred to in some of the authorities to establish an "injury by accident" in the course of employment: see, James Patrick & Co Pty Ltd v Sharpe [1955] AC 1 at 15 (Lord Reid); Commonwealth v Hornsby (1960) 103 CLR 588 at 592-594 (Dixon CJ). In these contexts, a physiological change that occurred in the course of employment as a result of some specific act of exertion that was an incident of employment was capable of being regarded as an injury by accident, and distinguished the event from the natural progression of a pre-existing disease unrelated to employment and which therefore was not compensable.
89 In Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252, Latham CJ drew a distinction according to common use of language between "getting hurt" and "becoming sick", stating that "[t]he former would be described as an injury and the latter would generally not be so described". While this formulation might be useful in seeking to conceptualise the difference between an injury and something that is not an injury, it cannot take the place of the statutory language. For one thing, an injury in its primary sense is not confined to "getting hurt". In seeking to identify the characteristics of a disease, in Favelle Mort Ltd v Murray (1976) 133 CLR 580 (Favelle Mort) Barwick CJ stated at 587-588 -
The word "disease" is itself a word of some difficulty in this context, particularly in the expression "contraction of a disease". Properly used, disease denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous. Quite clearly, when such a condition is idiopathic or autogenous, it will not qualify as an injury in the normal use of language.
90 The above passage, save for the last sentence, was cited in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar) at 334 (Toohey, McHugh and Gummow JJ), adding that "the word [disease] must be seen in the context in which it appears and be related to the circumstances of the case". Both Favelle Mort and Zickar concerned New South Wales workers' compensation legislation. For the purposes of the SRC Act, attention must be given to the definition of "disease", and in turn the definition of "ailment" in s 4(1), however the passage from Favelle Mort is helpful in identifying what is not an "injury" in its primary sense.
91 The High Court's decision in Kennedy Cleaning concerned a claim made under the Workers' Compensation Act 1951 (ACT). The worker suffered a stroke while at work that resulted in incapacity for work. Prior to the occurrence of the stroke, the worker had been diagnosed with an underlying heart condition that was liable to lead to an embolism. The question in issue was whether the worker had suffered "personal injury" arising out of or in the course of her employment, in which case the worker was entitled to compensation under s 7(1) of the Act; or whether the worker suffered only a "disease" which attracted s 9(1) of the Act, which it was accepted could not be engaged because the medical evidence did not support a conclusion that the employment was a "contributing factor" to the contraction of the disease. The court by majority upheld the entitlement to compensation. In their joint reasons, Gleeson CJ and Kirby J stated -
35. … a long line of decisions in Australia had recognised that an "injury", being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers' compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of "injury" in s 6(1) of the Act of "mental injury" makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.
[Footnote omitted.]
36. Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying "disease" process does not, of itself, prevent the classification of such a change as an "injury" within the primary statutory provisions that apply to such a case. …
92 Later, Gleeson CJ and Kirby J referred to the approach in three earlier cases, Accident Compensation Commission v McIntosh [1991] 2 VR 253, Zickar, and Burch, and stated of them -
39. … All of those cases require that consideration 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. …
93 It is necessary to identify the facts in MRCC v May, and the issue to which they gave rise. Mr May had become significantly disabled by dizziness, or vertigo, and had been discharged from the Royal Australian Air Force (RAAF). Mr May claimed that he had been required to undergo vaccinations to which he had experienced adverse reactions. However, specialists who had examined Mr May had been unable to diagnose any specific condition, or determine a cause for his symptoms. One of the specialists described Mr May's symptoms as a "functional somatic disorder": MRCC v May at [18]. Mr May applied for compensation under the SRC Act. Like the present case, the relevant terms of the SRC Act applicable to Mr May's claim were those prior to the 2007 amendments. Significantly, the claim was not advanced on the ground that Mr May suffered a "disease" as defined by the SRC Act. If it had been, compensation would have been payable only if Mr May had suffered an ailment, or the aggravation of an ailment, that was contributed to in a material degree by his employment. Instead, Mr May advanced his claim on the ground that he had suffered an "injury (other than a disease)" within paragraph (b) of the definition of "injury" in s 4(1) of the Act, which required that Mr May establish that the injury was "a physical or mental injury arising out of, or in the course of" his employment.
94 Mr May's claim was initially refused. That decision was affirmed upon review by the Tribunal: May and Military Rehabilitation and Compensation Commission [2011] AATA 886. The Tribunal made a number of findings that were summarised in the joint judgment in MRCC v May at [16]-[29] and [66]-[67]. The Tribunal concluded that Mr May had failed to establish his case, holding that there was no medical evidence to establish a connection between Mr May's vertigo and the vaccinations that he received while in the RAAF. Nor in the Tribunal's view was there objective evidence connecting some of Mr May's other claimed symptoms with the vaccinations. Although Mr May did not claim compensation on the ground that he suffered a "disease" as defined by s 4(1) of the SRC Act, the Tribunal addressed this question also, concluding that it was not satisfied that Mr May's vertigo was contributed to in a material degree by his employment in the RAAF.
95 Mr May appealed to the court on a question of law. The appeal was dismissed at first instance, but was allowed on appeal to the Full Court: May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 233 FCR 397. Amongst other things, the Full Court held at [207] that the Tribunal had been in error in substituting for the statutory concept of "injury" in s 4(1) of the Act a requirement that there be a "sudden or identifiable physiological change", a phrase used in a number of the authorities that sought to differentiate between an injury and an underlying disease, as identified in the reasons for judgment of Gleeson CJ and Kirby J in Kennedy Cleaning at [35] to which I referred above. The Full Court then stated at [209], [211] and [212] (inter alia) -
209 … [O]n the authorities to which we have referred, and the proper construction of "injury" in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls "symptoms" and the need for a "diagnosis". 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.
…
211 … [T]he question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.
212 … [N]either 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. …
96 In the High Court, the joint judgment at [3] framed the issue as being whether Mr May's dizziness was an "injury" for the purposes of the SRC Act, and therefore compensable under s 14 of the Act. The appellant, the MRCC, submitted that the concept of "injury (other than a disease)" in paragraph (b) of the definition of "injury" in s 4(1) of the SRC Act required that there be a "sudden or identifiable physiological change": see the joint judgment at [39]-[40].
97 The joint judgment at [42] identified that the definition of "injury" in s 4(1) of the Act comprises two separate but related sub-sets, having a different meaning in the statutory scheme: (a) "disease"; and (b) "injury (other than a disease)". In relation to the definition of "disease" the joint judgment stated at [43] -
43 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.
98 Their Honours stated at [45] that "injury" in paragraph (b) of the definition is used in its primary sense, citing the passage from the reasons of Gleeson CJ and Kirby J in Kennedy Cleaning at [39] which I set out earlier. Their Honours held at [46]-[47] that a physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee, however, "suddenness" is not necessary for there to be an "injury" in the primary sense, although suddenness is often useful to distinguish a physiological change from the natural progress of an underlying disease. In that respect their Honours stated at [47] (inter alia) -
47. …"suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. …
[Footnotes omitted.]
99 The joint judgment at [50]-[53] identified that the definition of "injury" in s 4(1) of the SRC Act requires a structured enquiry involving a series of questions, which I will set out, omitting footnotes -
50 First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51 If the answer to both those questions is "Yes", there is a "disease" within para (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".
52 If there is not a "disease" within para (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within para (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. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.
53 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 para (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.
100 The next three paragraphs of the joint judgment are important because they identify that a physiological change, or a disturbance of the normal physiological state, or a psychiatric disorder, may satisfy the definition of "ailment", and that the "disease" limb remains an additional basis of liability -
54 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 para (b)) and "contributed to in a material degree" (for para (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 para (a) of the definition of "injury" under the Act.
55 This construction of the definition of "injury" in s 4(1) of the Act does not "rob" the "disease" limb of utility. The "disease" limb of the definition remains an additional basis of liability.
56 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.
[Footnotes omitted.]
101 As I stated earlier, [57] of the joint judgment was relied upon by counsel for Comcare to support a submission that a physiological or psychiatric change is necessary in order for there to be an "ailment" for the purposes of the "disease" limb of the defined term "injury" in s 4(1) -
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.
102 The "first question" referred to in the last sentence of the above passage is the first question posed in [50] of the joint judgment, relating to whether there is a physical or mental ailment, disorder, defect or morbid condition for the purposes of the definition of "ailment". The "third question" is the question posed at [52] of the joint judgment, namely, "does the evidence demonstrate the existence of a physical or mental injury (in the primary sense of that word)?". The relevant paragraphs of the joint judgment are set out under [99] above.
103 Their Honours went on to hold at [67] that while the Tribunal had accepted that Mr May felt unwell, the "nature and incidents of the physiological [or psychiatric] change" suffered by Mr May were not established, with the result that there was no "injury" in the primary sense of the word.
104 It is reasonably clear from the joint judgment in MRCC v May that the requirement that there be a physiological change is applicable only to "injury (other than a disease)", and is not applicable to an "ailment". The main indications are, first, that the court was not concerned with a claim by Mr May to have suffered a "disease" that was contributed to in a material way by his employment, but a claim for an "injury (other than a disease)", and that it was a claim of the latter type that was the subject matter of the reasons in the joint judgment. This is reflected in the attention that is given in the reasons to the fact that "disease" and "injury (other than a disease)" are separate bases of liability, and that the Act "draws an important distinction between 'disease' and 'injury (other than a disease)'", and that "[e]ach limb deals with a separate basis for something being an 'injury'": see [59].
105 The second indication is that in posing the first and second questions at [50], there is no reference to any requirement that there be a physiological change in order for there to be an "ailment". Rather, the second question that is posed is whether the employee's "state" was contributed to in a material degree by the employee's employment by the Commonwealth. This is consistent with the definition of "ailment" in s 4(1) of the Act, which includes a "disorder, defect or morbid condition". Those conditions are effects on an employee's body or mind which, if employment contributed in a material degree, would constitute injuries in respect of which there is a liability to pay compensation: see, Canute v Comcare [2006] HCA 47; 226 CLR 535 at [10] (Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ).
106 The third indication is that the main focus of the judgment was to identify the characteristics of an "injury" in the primary sense. On that question, [52] is central. Their Honours expressly refrained from laying down an exhaustive judicial formulation, but gave the guidance that, generally, the question whether there was an injury 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". I do not consider that Gageler J described an "injury" in materially different terms at [75] in stating -
An injury, it has long been repeatedly explained, is some definite or distinct "physiological change" or "physiological disturbance" for the worse which, if not "sudden", is at least "identifiable".
[Footnote omitted.]
107 At [76], Gageler J distinguished an "injury" involving a definite or distinct physiological change in the above sense from "any alteration from the functioning of a healthy mind or body".
108 The fourth indication is [54], which states that there may be 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". This picks up some of the language of [52], but shorn of "sudden and ascertainable or dramatic", which were held at [47] not to be necessary conditions of "injury" in its primary sense, but which were nonetheless relevant. I would therefore not understand [54] to venture into any sort of considered explanation of the defined term "ailment". Instead, I would understand [54] merely to make the point that a condition that is a candidate to be an "injury" in the primary sense may qualify as an "ailment", but would not constitute a "disease" if the relevant connecting condition is not satisfied, namely that the ailment or an aggravation was contributed to in a material degree by the employment.
109 The court's reasons at [54] form an important part of the context in which [57] is to be understood. Other contextual features are the facts that were found by the Tribunal and which were summarised in the joint judgment; the heading above [57]; and the immediately succeeding paragraphs. On the facts found by the Tribunal, Mr May had subjectively experienced symptoms that were unaccompanied by physiological or psychiatric change, where no diagnosis could be made, and which the joint judgment characterised by the heading above [57], and in [67], as a state where Mr May felt "unwell". All that the joint judgment is relevantly saying at [57] is that Mr May's condition of feeling unwell, where there had been no diagnosis, would not have resulted in an affirmative answer to the first question that was posed at [50]. Otherwise, the succeeding paragraphs of the joint judgment, and in particular [61]-[62], focus on "injury" in its primary sense as a component of the phrase "injury (other than a disease)". There was no discussion of the ambit of the defined term "ailment", or of any necessary characteristics of its components, as Mr May had made no such claim.
110 The statutory definition of "ailment" in s 4(1) of the SRC Act should be "approached on the basis that Parliament said what it meant and meant what it said": Owners of the ship "Sin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420. The definition of "ailment" refers to "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". These are words of ordinary meaning. A requirement that an ailment be "physical or mental" corresponds to the elaboration of "injury (other than a disease)" in s 4(1) as being "a physical or mental injury" and should not be regarded as words of limitation. The key point which I would understand their Honours to identify by [57] of the joint judgment in MRCC v May is that even with an ailment, "there must be more than an assertion by an employee that he or she feels unwell": at [62]. Even then, I would say that in relation to "ailment" this statement would fall into the category of general guidance, and that the text of the Act has to be applied to the circumstances of individual cases as presented by the evidence, which will vary immensely. In the case of the onset of migraines or chronic headaches, it might readily be accepted by a trier of fact in a particular case that such an ailment is not the product of "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state": cf, MRCC v May at [52]. Whether that is so will depend upon the evidence. However, there is nothing in the definition of "ailment" that invites the application of these criteria, which have been developed to assist triers of fact in borderline cases to identify whether or not a condition is an "injury" in the primary sense. Further, to require that there be an "identifiable physiological change" as an element of an "ailment" would distort the defined term "ailment" by importing a characteristic that is the hallmark of an "injury" in the primary sense, thereby narrowing the distinction between them.
111 It follows that in deciding that the applicant had not suffered an ailment on the ground that no physiological change could be identified, the Tribunal misdirected itself. The errors commenced with the Tribunal's statement that it was common ground between the parties that no physiological change could be identified, when the applicant had made no such concession. Further, reading the Tribunal's reasons as a whole I am left with the impression that the Tribunal equated the identification of physiological change as requiring evidence in the form of objective pathology or test results. I referred at [52]-[54] above to the evidence given to the Tribunal by A/Prof Darveniza. The tenor of that evidence was that there was a physiological change, but there was no test such as an MRI scan which could detect the change, which was the usual position in relation to migraines, and that medical science could not explain the change. But as A/Prof Darveniza stated, "because someone can't describe it doesn't mean to say it doesn't exist". In evaluating whether there was a physiological change, which Comcare had argued was a necessary requirement, the Tribunal did not deal with this aspect of the evidence. On the assumption that demonstration of a physiological change was required, there was no exploration by the Tribunal of issues such as the "disordered neurotransmission" to which A/Prof Garrick had referred, the fact that (unlike MRCC v May) there were medical diagnoses of the applicant's condition and of its cause before the Tribunal, and of the evidence of A/Prof Darveniza about a new treatment that was potentially effective and appropriate in the case of the applicant to treat her migraines, namely monoclonal antibodies. However, to be clear, I do not consider that the identification of a physiological change in the applicant was required in order to engage the definition of "ailment" in the Act.
112 There will be many cases where a physical or mental ailment can be diagnosed by a medical practitioner based upon the employee's history, and upon studied instances of cause and effect without recourse to pathology or other diagnostic aids. That did not occur in MRCC v May, where the medical evidence that the Tribunal accepted was that there was a lack of any pathology consistent with Mr May's symptoms, and otherwise the absence of any medical diagnosis other than a "functional somatic disorder" which did not amount to an "injury" in its primary sense: see the joint judgment at [18] and [27]. The present case is different. As I have mentioned, the Tribunal made a finding at [66] of its reasons, based on its acceptance of the applicant's own evidence and the medical evidence that it accepted, that the applicant continued to suffer chronic daily headaches to which, on the balance of probabilities, her former employment still contributed to a material degree. As I have mentioned, it also found that there was an available new treatment that the applicant had not attempted. Paradoxically, it was the applicant's failure to attempt this treatment that led the Tribunal to find, on an alternative basis, that the applicant's impairment was not permanent. The Tribunal's finding of contribution to a material degree by the applicant's former employment is important, because it demonstrates that this was not a case of the applicant merely feeling unwell. On the evidence that the Tribunal accepted, the applicant suffered a condition that was the subject of a specialist medical diagnosis and to which her employment was a contributing cause. What the Tribunal should then have done was to consider whether, on the basis of those findings, the applicant had an "ailment", which amounted to a "disease", thereby amounting to an "injury" (as defined). By the application of the words of ordinary meaning within the definition of "ailment" in s 4(1) of the SRC Act to the Tribunal's primary findings at [66], there was only one conclusion that was reasonably and therefore lawfully open to the Tribunal, namely that the applicant had suffered an injury for the purposes of s 14 of the SRC Act, and that Comcare was therefore liable to pay her compensation under the Act in respect of that injury.