Australia: Does A Dramatic Physiological Change Or Disturbance Fall Within The Definition Of An Injury Pursuant To The Safety, Rehabilitation And Compensation Act 1988?

Decision date: 14 August 2009

Joanne A'Beckett v Comcare [2009] AATA 604

Administrative Appeals Tribunal – Melbourne Registry – No. 2006/00773¹

In Brief

• The issues to be determined in this matter were whether:
  (a) The applicant suffered an injury as defined in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act);
  (b) If the applicant suffered an injury, did it result in his death; and
  (c) Whether the applicant died leaving a dependent, as that term is defined in the SRC Act.
• The AAT determined that a pulmonary embolus suffered by the applicant amounted to a sudden and ascertainable or dramatic physiological change or disturbance of his normal physiological state and accordingly, fell within the definition of an injury within the meaning of the SRC Act. The AAT went on to find that the applicant's death was most likely caused by coronary artery disease and that there was no evidence drawing any form of link between the pulmonary embolism and coronary artery disease to find that applicant's injury resulted in his death. In view of this finding, the AAT found it unnecessary to determine the issue of dependency.

Background

The applicant, Mr Brunt, was employed by the Australian Bureau of Statistics as an executive officer. On 14 November 2000, in company with two colleagues, Mr Brunt flew to Sydney from Melbourne to conduct visits related to work. While at the airport, one of Mr Brunt's colleagues found Mr Brunt sitting on a railing looking ashen, sweating and complaining of faintness and dizziness. Mr Brunt's condition did not improve over the next few days and accordingly, he decided to return to Melbourne on 16 November 2000. Upon his return to Melbourne, Mr Brunt was taken to see his family doctor who immediately arranged for Mr Brunt to be admitted to hospital. Mr Brunt was confirmed to have a pulmonary embolus following a scan.

The following day, 17 November 2000, Mr Brunt suffered a cardiopulmonary arrest. Mr Brunt was transferred to an operating theatre where the cardiothoracic surgeon cleared the clot. During the process, it was not possible to maintain adequate oxygenation and Mr Brunt suffered a hypoxic brain injury which resulted in significant cognitive impairment. On 20 February 2001, Mr Brunt's wife, Ms A'Beckett announced that she would be separating from Mr Brunt, nevertheless, she and her daughter continued to visit Mr Brunt at the rehabilitation centre. In late March 2001 Mr Brunt was discharged from the rehabilitation centre although State trustees were appointed to administer his affairs.

In 2003 Mr Brunt returned to Perth to live with his father. It appears that Mr Brunt left Perth to fly to Hong Kong on 21 July 2005. Ms A'Beckett did not hear from him again until his body was discovered in a hotel room in Bangkok on 1 September 2005. A translated autopsy report recorded Mr Brunt's cause of death as "mild haemorrhage under the membrane(s) of the brain with acute myocardial infarction caused by coronary artery disease".

On 20 December 2005, Ms A'Beckett lodged a claim with Comcare seeking compensation on behalf of Mr Brunt's daughter for a work-related death pursuant to s 17 of the SRC Act.

The first issue to be determined was whether Mr Brunt had suffered an injury pursuant to the SRC Act. Member Fice referred to the decision of the Full Court of the Federal Court of Australia in Australian Postal Corporation v Burch (1998) 156 ALR 483 in which the court was required to determine whether a stroke was a disease or an injury as those terms were defined in the SRC Act. The court held that Mr Burch's stroke was an injury as it was a disturbance of the normal physiological state or an ascertainable lesion or dramatic physiological change.

The evidence given by Mr Brunt's colleague was that he found Mr Brunt sitting on a railing looking ashen, sweating and complaining of faintness/dizziness shortly after their arrival at Sydney Airport on 14 November 2000. All of the medical practitioners agreed that these symptoms were consistent with a pulmonary embolism. Although this condition was described as a disease process, it was agreed that Mr Brunt suffered a sudden and identifiable pathological change at that point in time. Accordingly, Member Fice found that Mr Brunt suffered a sudden and ascertainable or dramatic physiological change or disturbance of his normal physiological state and which was distinct from the underlying disease, deep venous thrombosis. Member Fice therefore held that Mr Brunt suffered an injury shortly after his arrival at Sydney Airport on 14 November 2000.

In order to satisfy the definition of an injury pursuant to the SRC Act, Mr Brunt's injury must also have arisen out of or in the course of his employment.

Member Fice referred to the High Court's decision in Kavanagh v The Commonwealth (1959) 103 CLR 547 in which Justice Taylor concluded that in order to fall within the expression "in the course of", it would have to be shown that an applicant sustained an injury in the course of performing the work which he was employed to do or in the course of doing something incidental to that work. Member Fice considered that the analysis of the expression "arising out of" and "in the course of" in Kavanagh was applicable to this case.

Member Fice opined that although it could not properly be said that Mr Brunt's injury occurred while he was engaged in his employment and therefore it could not be said to have arisen out of his employment, Mr Brunt's travel to Sydney was clearly an activity incidental to his employment. There was no contradictory evidence regarding the purpose of the travel and accordingly Member Fice found that the injury sustained by Mr Brunt as a result of the pulmonary embolism on 14 November 2000 was an injury for the purposes of the SRC Act.

The next question to be determined was whether Mr Brunt's injury resulted in his death as required by s 17 of the SRC Act. Member Fice considered that there was no doubt that the expression "results in" imported a notion of causation as was explained by the New South Wales Court of Appeal in Migge v Wormald Bros. Industries Limited (1972) 2 NSWLR 29. Further, Member Fice stated that it had also long been accepted that the cause of a work injury or death resulting from an injury sustained in the course of employment need not be direct but that the connection must not, as a matter of common sense, be too remote (Deeble v Nott (1941) 65 CLR 104).

The autopsy report obtained described the cause of death as "mild haemorrhage under the membrane(s) of the brain with acute myocardial infarction caused by coronary artery disease". Member Fice noted that the dispute arose as to whether Mr Brunt's pulmonary embolism set in train a chain of events which ultimately resulted in him suffering a myocardial infarction in Thailand on 1 September 2005.

On the balance of probabilities, Member Fice found that Mr Brunt's pulmonary embolism did not result in his death on 1 September 2005. The degree of heart damage found on post-mortem indicated that, if the damage was attributable to Mr Brunt's pulmonary embolism in 2000, he would have been unwell during that time with persisting shortness of breath, requiring cardiac medication and further therapy. However there was no evidence to that effect. Member Fice found that there was no evidence drawing any form of link between pulmonary embolism and coronary artery disease. Accordingly, despite the fact that the link between Mr Brunt's pulmonary embolism and his subsequent death did not need to be a direct or natural or even probable consequence, Member Fice considered that he was unable to find that the pulmonary embolism caused, contributed to or accelerated Mr Brunt's death.

In summation, Member Fice held that Mr Brunt suffered an injury in the course of his employment on 14 November 2000 but that it did not result in his death some five years after that event and that Mr Brunt's death most likely resulted from coronary artery disease. Accordingly, the decision made by Comcare's reviewing officer to decline liability was affirmed.

Given his findings in relation to the above, Member Fice found it unnecessary to determine the issue relating to dependency.

Implications

This case confirms the decision in Australian Postal Corporation v Burch that an injury for the purpose of the SRC Act may be described as a disturbance of the normal physiological state or an ascertainable lesion or a dramatic physiological change regardless of any underlying disease or condition.

Footnote

1 Mr Egon Fice, Member

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