ADMINISTRATIVE APPEALS TRIBUNAL
“Significant”
contribution ComCare claims
By David Richards.
David Richards is a Barrister practicing from Henry
Parkes Chambers in Sydney and Canberra and a Part
Time Lecturer in the Graduate Studies Law Program at the
Australian National University.
On 19 January 2007 the Federal Court handed
down the decision of Comcare vSahu-Khan (2007)
FCA 15 which has changed the law relating to
material contribution under the Safety Reha­
bilitation and Compensation Act 1988 (the SRC
Act).
As a result of this decision, employees suffering
from a disease will have to prove that, having regard
to all relevant contributing factors, their employ­
ment significantly contributed to the disease.
From 1990 until 2005 the leading authority as to
what constituted "material'' contribution was the
Full Court decision of Treloar v Australian Tele­
communications Commission (1990) 26 FCR 316.
The test in Treloar only required a link between the
employment and the disease.
In December 2005 material contribution was consid­
ered by the Federal Court in Comcare v Canute
(2005) FCAFC 262. The Federal Court held that
the employment contribution to the disease must be
"more than a mere contributing factor”.
The Federal Court in Canute referred to the Second
Reading Speech of Parliament on the introduction
of the SRC Act. French and Stone JJ in Canute
noted that the Minister for Social Security stated in
the Second Reading Speech:
It is intended that the test will require an employee
to demonstrate that his or her employment was
more than a mere contributing factor in the
contraction of the disease. Accordingly, it will
be necessary for an employee to show that there
is a close connection between the disease and the
employment in which he or she was engaged.
(Second Reading Speech. Australia. House
of Representatives, Debates, 27 April 1988,
p2191)
Although obiter dictum, it was clear that the majority
in Canute intended to "tighten'’ the test set out in
Treloar to require that the contribution be more than
a mere contributing factor.
On 19 January 2007 Finn J in the decision of
Comcare v Sahu-Khan (2007) FCA 15 went further
than Canute and in ratio decidendi set out certain
principles relating to the interpretation of "mate­
rial” contribution under the SRC Act. As with the
reasons in Canute, Finn J in Sahu-Khan referred to
the Second Reading Speech made by parliament
relating to changes to employee entitlements under
the then new SRC Act.
At paragraph of 15 in Sahu-Khan Finn J referred to
the definition of "materially” in the Shorter Oxford
Dictionary' and found that the definition: "In a Mate­
rial degree; substantially, considerably”; probably
captured the essence of what the legislature was
conveying in the SRC Act.
Finn J in Sahu-Khan at paragraph 16 found the
following principles as the best that could ultimately
said of the definition of "materially” under s.4 of the
SRC Act:
(i) (Material Contribution) requires a stronger
causal relationship between the employment
and the ailment, etc suffered than that exacted
by the 1971 Act;
(ii) "in a material degree” requires an evaluation of
all relevant contributing factors for the purpose
of asking whether the employee's employ­
ment did or did not contribute materially to the
suffering of the ailment, etc, in question ("the
threshold evaluation”);
(iii) whether this will be so in a given case will be a
matter of fact and degree.
Following the Canute and Sahu-Khan decisions,
a summary of the requirements for establishing”
material” contribution under the SRC Act may be
summarised as follows:
1. There must be a link between the disease and the
employment (Treloar);
continued page 22...
1/2007 — Page 31
Disciplinary
Matters 2006-2007
cont...
3. a total fine be imposed of 30 penalty units
(total $3,300).
LEGAL PROFESSION ACT 2006
Practitioners should note that under the Legal
Profession Act 2006, due in effect from 31
March 2007, the Law Society is required to keep
a Register of Disciplinary Action taken against
practitioners which must be made available to
the public via its website: s. 541.
The Register applies to disciplinary action
taken after 31 March 2007 but may include
details of past disciplinary action. Disciplinary
action is defined as an order made by a court or
tribunal for professional misconduct or where
the following applies: removal of the practi­
tioner's name from the Roll, the suspension or
cancellation of a practising certificate, refusal
to grant or renew a practising certificate or the
appointment of a manager or receiver.
“Significant”
contribution ComCare claims cont...
2. The contribution must be more than a mere
contributing factor (Canute);
3. The definition of substantially or considerably in
the Shorter Oxford Dictionary probably captured
the essence of what the legislature was conveying
in the SRC Act (Sahu-Khan);
4. The 1988 SRC Act requires a stronger relation­
ship between the employment and the disease
than the earlier 1971 Act (Sahu-Khan);
5. Material degree requires consideration of all
relevant contributing factors when determining
whether the employment contribution "materi­
ally” contributed to the disease (Sahu-Khan);
6. Material contribution will be a matter of fact and
degree (Sahu-Khan).
Notwithstanding the summary of the authorities set
out above, a practical application of law as it now
stands under the SRC Act relating to "material’
contribution, is that an employee will be required
to prove that his or her employment contributed
substantially or considerably to his or her disease in
order to be entitled to compensation.
1/2007 — Page 32
This convention
has it all
Australian Federal Police Commissioner Mick
Keelty, NSW Supreme Court Chief Justice
James Spigelman and Chief Counsel for Telstra
Will Irving headline an impressive gathering of
guest speakers set to take the stage at the up­
coming 35th Australian Legal Convention.
Name a topic relevant to lawyers and there is a good
chance it will be covered during the convention,
set to take place in Sydney in March.
The convention will provide a forum where leaders
of the legal profession from Australia and overseas
can hold their dedicated meetings and then join
each other in plenary and social events.
The business program promises to be stimulating
and rewarding, with leading legal figures involved
in presentations and debates of the highest
order.
Criminal law, international law, human rights,
legal professional privilege and tort law reform are
just some of the issues that will be discussed.
Commissioner Keelty’s address during major
plenary session on Friday, 23 March will be one
of the conference highlights.
The sessions featuring Chief Justice Spigelman
and Mr Irving will also be drawcards.
Other speakers include well-known Melbourne
silk Lex Lasry QC and the Chief Justice of the
Supreme Court of Delaware, Myron Steele.
High Court Chief Justice Murray Gleeson’s
address on the State of the Judicature, Federal
Attorney-General Philip Ruddock’s speech on
the Law and Government, and an entertaining
hypothetical moderated by media personality Julie
McCrossin also promise to entertain and inform.
During the convention, the inaugural Law Council
Award will be presented to an Australian lawyer
who has made an outstanding contribution to the
legal profession.
And, for the first time, the NSW Bar Association
media awards will be hosted by the Australian
Legal Convention. These awards recognise
excellence in journalism in the law and justice
fields.
All of these activities will take place in the heart of
thriving Sydney, with the jewel in the city’s crown
- the harbour - providing the ultimate backdrop.
continued page 33...