Case: Commonwealth of Australia v Beattie (1981) 35 ALR 369
Outcome: considered
was pointed out by the Full Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369 , the definitions in issue in Federal Broom were different from those in Beattie (as they are from the definitions in s 4 of the SRC Act). The Full Court said at 377-378 that, notwithstanding differences, Federal Broom establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case. For present purposes, the relevant part of the definition of "injury" is the reference to "disease", which, in turn, is defined as an ailment or an aggravation of an ailment to which the employee's employment contributes in a material degree. On the Tribunal's findings, Mr Mellor's employment did not affect the underlying pathology of his back conditions but, in causing pain, it rendered the back conditions temporarily symptomatic, or irritated them ( Macquarie Dictionary , definition of "aggravate"). Pain may constitute an aggravation of an ailment or injury ( Beattie ). The Tribunal's conclusions on aggravation and materiality In the case of each of Mr Mellor's thoracic kyphoscoliosis and lumbar spine, the Tribunal concluded that the requirement of materiality was not satisfied. This was because the Tribunal did not accept that a temporary increase in symptoms represented an aggravation of the thoracic spine condition in a material degree and found that the temporary aggravation of the lumbar spine condition meant that the contribution to the lower back condition was not sufficiently significant to meet the threshold of "in a material degree". Further, Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 , which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ' it is enough to say that pain brought on by work activity may constitute an aggravation ' (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor's thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments. Australia Post submits that I should draw the conclusion that, had the Tribunal been aware of the correct statement in Beattie , it would have concluded that no aggravation had occurred and that Mr Mellor was not suffering from work-aggravated diseases in his thoracic and lumbar spines. It follows, in Australia Post's submission, that I should come to that conclusion and not remit the matter to the Tribunal. I see the force of the submission but I do not accept that the conclusions that the Tribunal would make in applying Beattie are so clear from its reasons. The Tribunal expressed its conclusions in terms of a requirement that the aggravation be material. The Tribunal did not correctly address the question whether or not the pain that Mr Mellor felt, being only temporary but experienced when he returned to work, constituted an aggravation of an ailment to which his employment contributed in a material degree and which, in turn, constituted a disease and thereby an injury for the purposes of the Act. It may be that the Tribunal will conclude that the symptoms suffered by Mr Mellor do not amount to an aggravation but that is not conclusive from the reasons. The matter should be remitted to the Tribunal to enable it to make findings in accordance with law.