Dear Colleagues;

The decision of the High Court of Australia in Comcare v Martin [2016] HCA 43 (9 November 2016) http://eresources.hcourt.gov.au/showCase/2016/HCA/43 deals with causation, not directly as a matter of the law of torts, but in the context of a statute. But the approach is worth noting.

The issue in the case arose in the context of a worker’s claim for statutory workers’ compensation under the scheme applying to Commonwealth public servants, in the Safety, Rehabilitation and Compensation Act 1988 (Cth). Such statutes in Australia these days usually contain an exclusion from employer liability for compensation for psychological injury where such results from “reasonable action” taken by way of an employment decision. Here the worker suffered a serious condition following her failing to obtain a promotion. The exclusion of liability would apply if her condition was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment” (s 5A(1)).

In the circumstances it was conceded that there were two factors which led to her condition. One was the refusal of appointment; the second was her perception, following that refusal, that she would then be returned to work under a supervisor who she perceived as a workplace bully. She claimed that the second factor was in effect the “operative cause” of her condition, and hence that it could not be said that her condition had been “as a result of” the administrative action. The majority of the Full Court of the Federal Court had applied what they described as a “common sense” causation test and held that she was correct, and hence her claim was not excluded by this provisions.

The High Court unanimously disagreed and held that her perception of the possible consequences was a factor “but for” which the condition would not have resulted, and hence the statutory causation test was established. A couple of quotes:

[45]… an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment….

[48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.

While the discussion takes place in a statutory rather than common law context, it is worth noting that the court as a whole seems very reluctant to call causation in whatever context a matter of “common sense”, which it will be recalled was the way that the majority in the decision in March v Stramare described it. March is not directly addressed, but it seems likely that the phrase “common sense” causation is no longer popular. See:

[42] Causation in a legal context is always purposive (Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 530 [137]; [2013] HCA 35.) The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose (Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 639 [28]; [2005] HCA 69. See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221) CLR 568 at 582 [42]; [2005] HCA 26.) It has been said more than once in this Court that it is doubtful whether there is any "common sense" approach to causation which can provide a useful, still less universal, legal norm (Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 642 [45], citing Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at 596-597

[96]-[97].)

Regards

Neil