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54
Injury, Disease and Incapacity
Bruce Topperwien
Executive Officer
Abstract: The definitions of ‘injury’ and ‘disease’ in the VE Act are similar
to those in workers’ compensation legislation but contain significant
differences. Aggravation of an injury is not an injury in its own right.
Recurrence of a disease is a disease in its own right.
Surgical treatment intended to benefit a person is not an ‘injury’ and will not
be pensionable unless it unintentionally results in an ‘injury’ or ‘disease’, if
so, it is that disease that must be claimed and accepted as war-caused.
In general terms, a ‘disease’ is a condition involving a disturbance of the
normal functions of body or mind. Some temporary departures from
normality are not diseases.
While a claimant is not required to identify an injury or disease precisely,
the claimant is required to provide sufficient information regarding signs
and symptoms of injury or disease to enable the Secretary to investigate the
matters being claimed.
The identification of the ‘injury’ or ‘disease’ currently suffered by the
claimant is a necessary preliminary step in deciding a claim for pension for
‘incapacity’. Care must be taken to identify the relevant ‘injury’ or ‘disease’
rather than merely an incapacity or impairment resulting from it.
Injury, Disease, and Incapacity
Definitions
The terms ‘injury’, ‘disease’, and ‘incapacity’ are defined in section 5D of
the Veterans’ Entitlements Act 1986 (the VE Act):
5D (1) In this Act, unless the contrary intention appears:
…
‘disease’ means:
(a) any physical or mental ailment, disorder, defect or morbid condition
(whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid
condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid
condition; or
(d) a temporary departure from:
(i)
the normal physiological state; or
(ii)
the accepted ranges of physiological or biochemical
measures;
that results from normal physiological stress (for example, the effect
of exercise on blood pressure) or the temporary effect of
extraneous agents (for example, alcohol on blood cholesterol
levels).
‘incapacity from a defence-caused injury’ or ‘incapacity from a
defence-caused disease’ has the meaning given by subsection (2).
‘incapacity from a war-caused injury’ or ‘incapacity from a war-caused
disease’ has the meaning given by subsection (2).
‘injury’ means any physical or mental injury (including the recurrence of a
physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
(2) In this Act, unless the contrary intention appears:
(a) a reference to the ‘incapacity’ of a veteran ‘from a war-caused
injury’ or ‘a war-caused disease’; or
(b) a reference to the ‘incapacity’ of a person who is a member of the
Forces, or a member of a Peacekeeping Force (as defined by
subsection 68(1)), ‘from a defence-caused injury’ or ‘a defencecaused disease’;
is a reference to the effects of that injury or disease and not a reference to
the injury or disease itself.
Note: for ‘war-caused injury’ and ‘war-caused disease’ see
section 9.
2
Injury, Disease, and Incapacity
Legislative history of ‘injury’, ‘disease’ and ‘incapacity’
Under the Repatriation Act 1920, the Commonwealth was liable to pay
pension for service-related ‘incapacity’ . Unlike the liability provisions in the
VE Act, it was ‘incapacity’ rather than an ‘injury’ or ‘disease’ that had to
have arisen out of service or resulted from an occurrence, etc.1 Nevertheless,
‘incapacity’ was defined by reference to ‘disease’ as follows:2
‘Incapacity’ includes incapacity of a member of the Forces that arose
from disease, not due to the serious default of the member, contracted by
him while employed on war service
This open definition was probably inserted to indicate the broad scope of
‘incapacity’ under the Act and to show that it was not restricted to incapacity
from an ‘injury’ as used in workers’ compensation legislation3 and certain
British war pension legislation,4 but could also include incapacity from a
‘disease’ .
While neither ‘injury’ nor ‘disease’ were used in the sense of ‘war-caused
injury’ , the concept of being injured or contracting a disease was included in
the definition of ‘active service’ as an extension of eligibility to those
persons within Australia during World War 2 who suffered an injury or
contracted a disease as a result of enemy action. It was also included in the
‘but for’ liability provision, which deemed an incapacity to have arisen out
of war service:5
… if it was the result of an accident that happened to him while travelling
directly to or from his place of employment on war service or was, in the
opinion of the Commission, due to an accident that occurred or to a
disease or an infection that was contracted, and that would not have
occurred or been contracted but for his being on war service or but for
changes in his environment consequent upon his being on war service.
Upon the enacting of the VE Act in 1986, the liability provisions changed
such that it was injury or disease that had to be war-caused,6 and pension was
payable for incapacity from war-caused injury or war-caused disease, or
1
Repatriation Act 1920, ss 24 and 101.
2
Repatriation Act 1920, s 23.
3
See for example the commentary on early workers’ compensation legislation by Fullagar J in
Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 497-8.
4
Legislation establishing disability pensions for civilian service during war time (eg service in the
merchant marine) were based on disablement from a ‘war injury’ or ‘war risk injury’ , whereas
generally those for military service in wartime were based on ‘disablement from wound, injury or
disease’ .
5
Repatriation Act 1920, s 101 (1A).
6
Veterans’ Entitlements Act 1986, s 9 (1).
3
Injury, Disease, and Incapacity
both.7 The Veterans’ Entitlements (Transitional
Consequential Amendments Act) 1986 provided:8
Provisions
and
(2) Where a person who was a member of the Forces was, immediately
before the commencing date, in receipt of a pension under a repealed Act
in respect of incapacity from an injury suffered, or disease contracted, by
the person, the Veterans’ Entitlements Act applies to and in relation to the
person as if–
…
(c) that injury had been determined, under the Veterans’ Entitlements
Act, to be a war-caused injury, or that disease had been so
determined to be a war-caused disease, as the case may be.
This legislation assumed that service-related incapacity always arose from an
injury or disease. This assumption was supported by Federal Court case law
in the early 1980s. The nature of ‘incapacity’ under the Repatriation Act
1920 was discussed in detail by the Full Federal Court in Moss’ s case.9 This
case was decided on the basis that incapacity had to have resulted from an
existing physical or mental disability. Fox J said:10
The fact is that the Acts in question provide for pensions. They are not
analogous to workers’ compensation, or employees’ compensation
legislation, where the central emphasis is on employment-related loss of
earnings, temporary or permanent. The fact that provision is made for lump
sum payments and limits are placed on amounts of compensation does not
affect the general nature of that type of legislation. The central question
there is the effect of injuries or diseases on economic capacity. In the
Repatriation Acts, pension payments are, so far as relevant, related to warcaused incapacities or disabilities. The latter lead directly to prescribed
entitlements. The fact that ‘incapacity’ relates primarily and principally to
physical or mental incapacity is apparent from a number of provisions of
the 1920 Act. Section 24 refers to incapacity resulting from an occurrence,
but provides that to be pensionable it should not arise from ‘intentionally
self-inflicted injuries’. Section 27 refers to incapacity resulting from an
occurrence during war service, or contributed to, or aggravated by,
conditions of war service. Section 48(1)(b) requires a medical practitioner
reporting on a claim to set out his opinion on, among other matters, ‘extent
of the incapacity’. There is no need to pursue this point; it has already been
emphasised in decisions of this Court (see, for example, Repatriation
Commission v Bowman, (1981) 54 FLR 8, 38 ALR 650).
This is not to say that in some cases, at least, such as those of partial
incapacity, an assessment must be confined to a consideration of the
nature or extent of physical or mental injuries. On the contrary, the very
notion of incapacity involves consideration of capacity for something; some
external frame of reference is necessary. Although, strictly speaking, the
7
Veterans’ Entitlements Act 1986, s 13 (1).
8
Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986,
s 4 (2).
9
10
Repatriation Commission v Moss (1982) 59 FLR 226, 40 ALR 553, 1 RPD 243
Repatriation Commission v Moss (1982) 59 FLR 226, 40 ALR 553, 1 RPD 243 per Fox J.
4
Injury, Disease, and Incapacity
question does not arise in this case, my present view is that incapacity
should to some extent, even if only in a general way, take account of what
the physical or mental disability or disabilities mean to the capacity of the
particular individual to earn and to enjoy life. Such an approach may or
may not operate in his favour. I understand from a document in the appeal
book that the Commission has long followed a practice along these lines.
What is of importance for present purposes is that the Act requires that a
relevant physical or mental condition must exist as the basis for an
assessment. This means a condition existing at the time of assessment.
The amounts of the prescribed pensions, being fixed, do not accommodate
to economic loss in fact suffered. In the present case the Tribunal
assessed loss of earnings at 25 per cent, and then translated this into 30
per cent of the General Rate, as being roughly the equivalent. A similar
approach obviously could not be followed in many cases. If economic loss
were to be regarded as a matter of primary or direct concern, it would
seem to follow that pensions would not be payable at all, or would be
payable only at a very low rate, if no economic loss could be established.
What is done in the Act is to marshall types of incapacity and disability and
degrees of effect on earning ability into particular schedules, and parts
thereof, and to provide, somewhat arbitrarily, for the pensions payable. So,
while paragraphs 3 and 6 of Schedule 1, and Schedule 2, deal with earning
ability, they do so by way of providing classification and indicating
entitlement. To take one example, paragraph 6 of Schedule 1 is instructive;
it points to ‘the incapacity’ and the consequence. The consequence
postulated being inability to earn a living, the result is nevertheless a fixed
rate of pension. In a sense, the paragraph provides one meaning of ‘total
incapacity’. Schedule 2, in its first paragraph, provides a definition of ‘totally
and permanently incapacitated’.
Table C of Schedule 3 provides for a pension to be payable, in cases of
partial incapacity, at such rate as is assessed having regard to the nature
and probable duration of the incapacity. In both places ‘incapacity’ requires
the existence of a physical or mental incapacity, the ‘nature’ of which is
determinable. If there is no incapacity there is no provision for payment of a
pension. Economic consequences flowing from a physical or mental
condition from which there has been complete recovery, or where complete
restoration has been effected, are not provided for.
Deane and Fitzgerald JJ, in a concurring judgment, said: 11
… the word ‘incapacity’, as used in the Act generally and s.101 and
Schedule 3 Table C in particular, refers to a physical or mental disability or
impairment rather than inability to work or earn. The consistent references
to a person ‘suffering’ an incapacity, the references to an incapacity ‘from
which’ a person ‘has died’, the consistent link, as alternatives, between
‘incapacity’ and ‘death’, the terms of the partial definition of incapacity in
s.23 as including ‘incapacity that arose from disease’ and the policy
underlying the Schedules of paying an increased pension over that payable
in respect of ‘total incapacity’ in the event that the incapacitated person is
unable to earn other than a negligible percentage of a living wage all point
to that conclusion. That conclusion conforms with what was said by the Full
Court of this Court (Bowen CJ, Deane and Lockhart JJ) in Repatriation
11
Repatriation Commission v Moss (1982) 59 FLR 226, 40 ALR 553 at 565, 1 RPD 243 per Deane
and Fitzgerald JJ.
5
Injury, Disease, and Incapacity
Commission v. Bowman (1981) 54 FLR 8, 38 ALR 650. It also accords with
the reasoning of Ellicott J at first instance in Bowman v Repatriation
Commission ((1981) 51 FLR 374, 34 ALR 556) and of Fisher J in Collins v.
Repatriation Commission ((1980) 48 FLR 198, 32 ALR 581 at 583).
Whether the ‘physical or mental disability’ or ‘physical or mental
impairment’ identified in Moss’ s case equates to ‘injury’ or ‘disease’ as
defined in the VE Act is debatable, and to the extent that an incapacity might
have been accepted as service-related under the Repatriation Act 1920 did
not arise from an injury or disease as defined in the VE Act, it could be
argued that section 8 of the Acts Interpretation Act 1901 would operate to
preserve the right to pension from that incapacity under the repealed
Repatriation Act. On the other hand, and I think the preferable view, the
detailed nature of the transitional provisions and the new method of
assessment of pension provided for by the Act, indicated sufficient contrary
intention to negate such right. Thus, I think that only such incapacity that
arose from an ‘injury’ or ‘disease’ as defined in the VE Act at 22 May 1986
was pensionable following the introduction of that legislation. Certainly that
is the case in relation to any grant of pension since then.
Comparison with Injury, disease and incapacity in workers’
compensation law
Workers’ compensation legislation is concerned primarily with compensating
for incapacity for work that has resulted from a work-related injury, and the
rate of compensation is directly related to loss of salary or wages. Generally,
if there is no incapacity for work, there is no right to compensation
notwithstanding that the worker has suffered a work-related injury or
disease.12 However, some schemes provide for lump sum payments of
compensation for significant permanent impairment from a work-related
injury or disease, whether there is a residual incapacity for work or not.13
In Commonwealth v Pisani,14 the Federal Court pointed out that the use of
different terminology to define injury and disease in various jurisdictions
means that care must be taken when comparing case law and that different
results are usually intended. In particular, the Court noted that differences
existed between some State and Commonwealth legislation concerning
whether a disease or an aggravation of a disease was included or excluded
from the definition of ‘injury’ . This is of particular relevance when
comparing the VE Act with the Commonwealth’ s workers’ compensation
legislation, the Safety, Rehabilitation and Compensation Act 1988 (the SRC
Act).
12
For example, Safety, Rehabilitation and Compensation Act 1988, s 14 (1).
13
For example, Safety, Rehabilitation and Compensation Act 1988, s 14 (1), s 24.
14
Commonwealth v Pisani (1987) 12 ALD 299 at 301-302.
6
Injury, Disease, and Incapacity
While it generally makes little difference under the VE Act, the difference
between ‘injury’ and ‘disease’ in the SRC Act can have a significant effect
on the right to compensation. An injury is compensable if it arose out of, or
in the course of, employment.15 These are separate tests, the first is causal,
the second is merely temporal with the employee undertaking activities
associated with his or her employment. However, a disease is only
compensable if it was contributed to in a material degree by the employment,
ie, a causal test.16 As the work connection for disease is more restrictive than
that for injury, there has been a tendency to stretch the meaning of injury to
cover such conditions as: the rupture of blood vessels due to arteriosclerosis
or high blood pressure causing cerebral haemorrhage;17 coronary
occlusion;18 and infection by virus.19 Thus, a cerebral haemorrhage (an
injury) is compensable if it happens while at work whether work contributed
to it or not, but hypertension (a disease) is only compensable if it was
materially contributed to by employment.
Under the SRC Act, injury and disease are defined as follows:
4 (1) In this Act, unless the contrary intention appears:
‘ailment’ means any physical or mental ailment, disorder, defect or morbid
condition (whether of sudden onset or gradual development);
…
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material
degree by the employee’s employment by the Commonwealth or a
licensed corporation;
…
‘injury’ means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a
physical or mental injury arising out of, or in the course of, the
employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease)
suffered by an employee (whether or not that injury arose out of, or
in the course of, the employee’s employment), being an
aggravation that arose out of, or in the course of, that employment;
15
Safety, Rehabilitation and Compensation Act 1988, s 4 (1), definition of ‘injury’ , s 6 (1).
16
Safety, Rehabilitation and Compensation Act 1988, s 4 (1), definition of ‘disease’ .
17
Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156.
18
Re Lott and Comcare (1996).
19
Favelle Mort v Murray (1976) 8 ALR 649.
7
Injury, Disease, and Incapacity
but does not include any such disease, injury or aggravation suffered by an
employee as a result of reasonable disciplinary action taken against the
employee or failure by the employee to obtain a promotion, transfer or
benefit in connection with his or her employment;
Aggravation as a separate injury or disease
It can be seen that an aggravation of an injury or disease is a separate injury
or disease in its own right under the SRC Act, whereas, it is not an injury or
disease in its own right under the VE Act. One effect of this distinction is
that it is only the incapacity for work caused by the aggravation that is
compensable under the SRC Act, whereas aggravation of an injury or disease
gives rise to a right to a pension in respect of incapacity from the entire
injury or disease under the VE Act. Thus, once the effects of an aggravation
on a work-related injury have ceased, no compensation is payable, whereas
once the injury has been accepted as war-caused under the VE Act, it matters
not that the effects of the aggravation might reduce over time, the injury or
disease remains pensionable while ever that injury or disease (and not
merely the aggravation) results in incapacity. It is partly because of this
distinction that the Federal Court has held that for aggravation to give rise to
liability under the VE Act, there must be more than a temporary worsening
of symptoms.20
Recurrence as a separate injury or disease
The VE Act provides that the recurrence of an injury or disease is an injury
or disease in its own right. This is also the case under the SRC Act, where it
is included in an extended definition of ‘aggravation’ in s 4(1) of that Act. It
was also situation under previous Commonwealth workers’ compensation
legislation.
If an injury or disease recurs from time to time, a particular recurrence of
that disease can be determined to be war-caused if that occurrence of the
disease was relevantly connected to eligible service. However, if a disease
has a continuing existence but is characterised by periods of quiescence and
flare-ups (such as asthma) rather than being a disease that recurs from time
to time (such as might happen with some infections), then it is not a question
of each episode being a recurrence but merely separate expressions of the
symptoms of the underlying disease. A disease in the first category (eg,
asthma) does not need to be the subject of a new claim every time it
expresses itself, whereas a disease of the second type (eg, influenza or
pneumonia) must be the subject of a new claim, and remains pensionable
only for the period of the particular recurrence.
20
Repatriation Commission v Yates (1995) 38 ALD 80.
8
Injury, Disease, and Incapacity
Definition of ‘injury’ in the VE Act
Repatriation Commission v Brown21 concerned a veteran who, prior to
eligible service, suffered an injury to his teeth. During defence service he
underwent dental treatment involving the grinding down of healthy teeth
adjacent to the place where his injured teeth had been in order to fit a dental
bridge. The Administrative Appeals Tribunal had held that the grinding
down of the healthy teeth constituted an ‘injury’ that was pensionable under
the VE Act. On appeal to the Federal Court, Hill J decided otherwise.
The Court held that ‘injury’ bore its ordinary English meaning and
considered dictionary definitions. Hill J then said:22
What is, however, inherent in the concept of ‘injury’ as the above dictionary
definitions and discussion reveals, is that there be suffered by the person
claiming to be injured, some harm. If one concentrates in the present case
only upon the two teeth that have been ground down, it can be said that
they have been injured in that there remain of the two healthy teeth but two
stumps. However, the real issue is whether the [claimant] has suffered an
injury: that issue is not in my view resolved in the present case by asking
whether the two teeth have been injured. The present is an unusual case
because when one focuses, as one must, on the [claimant], it can be seen
that the grinding down of the teeth to provide a foundation for a bridge was
a benefit to the [claimant] rather than a harm suffered by him. In these
special circumstances, which are quite different from those encountered by
the Tribunal in Felton’s case, it would be a strange use of language to refer
to the respondent as having been injured by the grinding down of his teeth.
It is for this reason that I am of the view that the respondent has not
suffered an injury and that the Tribunal erred in law in finding that he had.
This conclusion is, moreover, consistent with the policy of the present
legislation. A purpose of the Act is to ensure that medical treatment is
provided at Commonwealth expense to persons who have suffered harm
whilst on defence service. It is not to ensure that persons who have
benefited from medical or dental treatment properly administered while in
the service become entitled to be provided thereafter with free medical
treatment where they suffered no overall harm but to the contrary a benefit
from that initial treatment.
In that passage, Hill J contrasted Brown’ s situation with the circumstances in
Re Felton and Commonwealth.23 In that case a soldier suffered bowel and
bladder dysfunction, paralysis and anaesthesia of certain body parts, which
were held to constitute compensable injuries because they resulted from an
operation performed at Army expense for non-service-related condition.
Thus, while the surgical treatment was intended to be beneficial, there was
an unintended harmful outcome—an injury. In Felton’ s case the Tribunal
dismissed a suggestion that there should be a distinction for the purposes of
21
Repatriation Commission v Brown (1990) 12 AAR 253.
22
Repatriation Commission v Brown (1990) 12 AAR 253 at 259.
23
Re Felton and Commonwealth (1984) 1 AAR 322.
9
Injury, Disease, and Incapacity
an ‘injury’ between expected and unexpected consequences,24 whereas Hill J
indicated that there was a distinction between intended and unintended
consequences: an intended consequence that was to have a beneficial effect
is not to be regarded as an ‘injury’ .
Definition of ‘disease’ in the VE Act
In considering the phrase, ‘any physical or mental ailment, disorder, defect
or morbid condition (whether of sudden onset or gradual development)’
contained within the definition of ‘disease’ in the SRC Act, Drummond J
said in Comcare v Mooi:25
Only conditions involving a disturbance of the normal functions of body or
mind are within the term “disease”.
This phrase is identical to that used in the VE Act in paragraph (a) of the
definition of disease, thus this interpretation of the meaning of that part of
the definition of ‘disease’ should also apply to the VE Act.
In Re Fowler and Repatriation Commission,26 the applicant claimed pension
in respect of incapacity from hypertension. Medical specialists agreed that he
was not suffering from primary hypertension, but that he had ‘borderline’ or
‘pre’ hypertension because he did not have a sustained elevated blood
pressure, but had elevated blood pressure at times. The tribunal found that he
had a disease on the basis that:
If the applicant has albeit not at all times an elevated blood pressure then it
can be said that the adaptive mechanisms of … his body are failing to
counteract adequately the stimuli to which it is subject.27
Following that decision, the definition of ‘disease’ was amended. The VE
Act now contains additional restrictions on the scope of ‘disease’ from that
in the SRC Act, namely, that a temporary departure from the normal
physiological state that results from normal physiological stress or the
temporary effect of extraneous agents is not within the meaning of a
‘disease’ . The Explanatory Memorandum to the Bill that introduced this
restriction to the definition said:
This amendment is in response to the Administrative Appeals Tribunal
decision in Fowler. The amended definition is intended to prevent
conditions which are not medically defined as a disease being regarded as
such for the purposes of the Act.28
24
Re Felton and Commonwealth (1984) 1 AAR 322 at 331.
25
Comcare v Mooi (1996) 137 ALR 690 at 696.
26
Re C R Fowler and Repatriation Commission (unreported, N88/107, 15 June 1990, Senior
Member Allen).
27
Re C R Fowler and Repatriation Commission, (unreported, N88/107, 15 June 1990, Senior
Member Allen) at p 5.
28
Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment Bill 1991, pp 14-15.
10
Injury, Disease, and Incapacity
It is interesting to note that, in discussing mental disease, Mason CJ,
Brennan and McHugh JJ said:29
[A] malfunction which is transient and not prone to recur and to which the
mind of an ordinary person would be subject if exposed to the same
psychological trauma is neither a mental disease nor a natural mental
infirmity.
A claim for pension must point to an identifiable injury or
disease
In Re Clough and Repatriation Commission,30 Deputy President McMahon
said that a basic requirement of a valid claim is the identification of the
injury or disease being claimed. He said:31
It is true that s 25C of the Acts Interpretation Act 1901 provides that where
an Act prescribes a form then, unless the contrary intention appears, strict
compliance with the form is not required and substantial compliance is
sufficient. Notwithstanding that provision and notwithstanding the
provisions of s 119, it seems to me that what transpired prior to June 1994
could not be called substantial compliance. One of the important
requirements of the approved form is the provision of basic medical
information in relation to the relevant condition by the applicant’s medical
advisers. Without that information, there can be no further investigation of
the claim nor any decision made in relation to the claim. In my view, the
correspondence to which I have referred could not be said to contain basic
and essential elements of a claim, the absence of which could be justified
by a beneficial interpretation of the Act’s requirements.
Claimants are not required to be specific in naming the injuries or diseases
claimed but they must provide sufficient medical information or specific
symptoms such that a proper investigation can be conducted that is not a
mere fishing expedition delving into vague feelings or symptoms. To
conduct a proper investigation into a claim, there must be a specific focus for
that investigation rather than a general inquiry into the claimant’ s general
state of health. Until sufficient specificity has been provided, a valid claim
has not been made.
Identification of the injury or disease
In Mooi’ s case, Drummond J said:32
A reading of the Act, including the relevant definitions, in my opinion,
shows that before an employee can have any entitlement to compensation
under s 14, one of the things he must show is that he has suffered
29
R v Falconer (1990) 171 CLR 30. This was said in the context of discussing the defences of
insanity and non-insane automatism.
30
Re Clough and Repatriation Commission (1997) 44 ALD 457.
31
Re Clough and Repatriation Commission (1997) 44 ALD 457 at 461.
32
Comcare v Mooi (1996) 137 ALR 690 at 693.
11
Injury, Disease, and Incapacity
something that can be regarded as an injury or something that can be
regarded as a disease.
While that was said in relation to the SRC Act, it is equally applicable to the
VE Act. Indeed, under the VE Act, it is strongly arguable that there is a
stricter requirement. Not only must an injury or disease be identified, it must
be diagnosed. Cooke’ s case33 says that the identification of the injury or
disease is a jurisdictional fact that must be decided on the balance of
probabilities. It is a jurisdictional fact in two senses. The first sense concerns
the requirement in the Act that there must be a war-caused injury or disease
before pension can be paid (that is no different to the requirement under the
SRC Act stated above), and the second and more fundamental sense is that it
is only by identifying the kind of injury or disease involved that a decisionmaker can know what law, in terms of a particular Statement of Principles,
must be considered and applied. This jurisdictional requirement means that
the decision maker must be satisfied on the balance of probabilities of the
diagnosis of the injury or disease at least in terms of whether it is the subject
of an existing Statement of Principles.
Describing the injury or disease
Medical practitioners do not usually attach diagnostic labels in accordance
with a legal definition of ‘injury’ and ‘disease’ such as applies under the
VE Act. They sometimes attach names to conditions that are descriptive of a
dysfunction or even the supposed cause rather than of the underlying injury
or disease. This might be because they consider it unnecessary for their
purposes to identify any disease or injury at all, or because the injury or
disease is obvious and is implied in the name of the dysfunction or supposed
cause, or because it is uncertain or unknown.
Given this inconsistency in labelling, care should be taken to identify the
‘injury’ or ‘disease’ in precise terms rather than describe it by reference to an
‘incapacity’ suffered by the claimant. By so doing, the decision-maker is less
likely to accept a symptom or a cause rather than the relevant injury or
disease, and will ensure that the proper issues are decided when considering
both the connection to service and, once accepted as war-caused, the full
extent of the incapacity that has arisen from that injury or disease.
The danger of using a label that merely describes the current dysfunction is
that, as the underlying injury or disease progresses or degenerates, further
dysfunction might not get included in a later pension assessment. However,
if the underlying injury or disease has been clearly identified and accepted as
war-caused, the pension-assessor is bound to investigate and have regard to
all incapacity arising from that injury or disease.
33
Repatriation Commission v Cooke (1998) 160 ALR 17.
12