Case: Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536
Outcome: considered
requirement of materiality is, by reason of the definition of "disease" in s 4, a requirement that the employee's employment contribute materially to the suffering of the ailment in question ( Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536 at [16] per Finn J) or to the aggravation of the ailment, that is, '[i] n a material degree; substantially, considerably ' (the Shorter Oxford English Dictionary cited by Finn J in Sahu-Khan at [15]). Mr Mellor submits that, in his case, the correct question is not whether the underlying pathology of a disease or frank injury had been materially contributed to but whether the aggravation of symptoms, being an injury, had been materially contributed to. The worsening of symptoms of an injury can, he submits, be sufficient to ground liability without any change in the underlying pathology. That is, the Tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? "Disease" means an ailment or aggravation of an ailment ' that was contributed to in a material degree by the employee's employment '. "Injury" means, relevantly, a disease or an aggravation of an injury other than a disease. In Sahu-Khan , Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232. In Canute at [67], French and Stone JJ said that the term "material" ' imposes an evaluative threshold below which a causal connection may be disregarded '. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material ( Sahu-Khan at [15]). The Tribunal correctly summarised the principles in Sahu-Khan at [227]. It appreciated that there was a requirement of materiality for a causal connection to be found. However, at [286]-[287], in considering the lumbar spine, it said that because there was no lasting effect of the aggravation and no underlying change in the condition, the contribution by the employment to the lower back conditions was not material. With respect to the thoracic spine, the Tribunal stated at [260] that it did not accept that the temporary increase in Mr Mellor's symptoms represented an aggravation of his condition in a material degree. This was to confuse the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material. The confusion on this point is also evident from [225] of the Tribunal's decision, where the following statement is made: Mr Mellor claims that his employment contributed to or aggravated all of these ailments, and that the contribution or aggravation was to a material degree so that these ailments constituted an injury within the meaning of the [SRC] Act, and therefore he is entitled to claim compensation pursuant to s 14 of the [SRC] Act. (emphasis added) The Tribunal may have been led to take this course because of the way in which the cased was argued by Mr Mellor. Australia Post submits that the requirement of materiality qualifies the word "ailment" in the expression ' the aggravation of any such ailment; being ... an aggravation [of any such ailment] that was contributed to in a material degree by the employee's employment '. I do not accept this to be the case. It is also inconsistent with the discussion of materiality in Canute and Sahu-Khan , although neither of those cases directly considers the issue raised in the present case. Australia Post submits that Parliament would not have intended that the Commonwealth be liable for any aggravation of disease regardless of how insignificant that aggravation might be. However, s 4 does not give effect to such an intention.