Having established the date of the disease, the Delegate should look to apply the criteria used by the SRCA and its predecessors for determining liability to pay compensation for a disease.
All of the Acts take account of the nature of diseases, i.e. in that they may have multiple or complex causes. Thus the legislation requires only a contribution from employment for the whole matter to be compensable. However, the degree and nature of the contribution varies between the Acts.
The SRCOLA 2007 amendments changed the definition of disease from 'material contribution' to 'contribution to a significant degree'. This amendment came into effect on 13 April 2007 and impacts any SRCA claimants where the date of onset of a disease is on or after this date (see discussion on date of onset at 21.2 [3]).
The purpose of the change was to give proper effect to the higher test which was originally intended under the SRCA in 1988 with the inclusion of the word “material” as the definition of material has, since that time, been eroded by the Courts.
To a significant degree is defined by the Act in s5B as 'a degree that is substantially more than material.' The employment must have contributed to the disease to a significant degree. S5B(2) outlines what factors may be taken into account in determining whether the employment contributed to a significant degree:
This subsection does not limit the matters that may be taken into account.
It is clear from the wording of s5B that the contribution of employment must be significant, however this does not require employment to be the only contributing factor. In weighing up whether the disease is contributed by the employee's employment a Delegate should have regard to any relevant aspects listed above to ensure that they are satisfied, on the balance of probabilities, that ADF employment is:
The material contribution “test” still applies for any diseases where the date of onset is prior to 13 April 2007.
The definition of 'disease' at S4(1) of the SRCA requires that for a disease to be considered compensable, it must have been 'contributed to in a material degree by the employer's employment'.
The addition of the adjective 'material' was used by this Act to restrict the very open criterion current under its immediate predecessor. It is believed that the intent of those drafting the Act was to require a higher degree of contribution than was required under the 1971 Act. This initially, had mixed success at judicial review which found that the dictionary meaning of 'material' added little to the meaning of the definition.
However, the policy of RCG and its jurisdictional partners is now that the direct contribution of employment must represent at least 10% of the overall causation (or aggravation) of the disease for there to be liability. This policy has been upheld by the AAT.
Whether employment has contributed at least 10% of the causation of disease, may be self evident on known circumstances and the basis of the service medical documents. Failing that, it is a medical judgement. The standard letter of request for a Specialist Medical Review (SMR) of such a case includes an appropriate question on percentage contribution.
The disease provisions of the 1971 Act are the least stringent of the three Acts. Section 29(1) of that Act requires only that '...any employment of the employee by the Commonwealth was a contributing factor to he contraction of the disease...'. As no minimum degree of contribution by employment is specified by that Act, this appears to be a very broad criterion.
Under the 1971 Act, the medical issue 'would the employee have contracted/ aggravated the disease had it not been for the influence of employment?' may very well be answered 'Yes!', without that answer necessarily extinguishing liability. The 1971 Act requires that employment contribute to the disease, but does not require it be a critical or principle cause.
Nevertheless it is an accepted principle that the degree of contribution must be more than trivial, and must be capable of influencing the advent and/or course of the disease.
While SRCA and its predecessor Act require a finding that military employment contributed to the disease, the 1930 Act requires a different consideration.
Relevant legislation: section 10, Commonwealth Employees’ Compensation Act 1930 (‘1930 Act’)
10.(1) Where–
(a) an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
The legislative provision extracted above requires a finding that the disease was ‘due to the nature of the [military] employment’. The High Court case of Connair Pty Ltd v Frederiksen [7] (in considering legislation identical to s10 of the 1930 Act) found that the appropriate enquiry is concerned with the nature of military employment and its tendency to cause, aggravate or accelerate the disease, rather than with how the disease was, in the particular case, contracted or accelerated. In addition, the High Court also commented that:
In the case of Commonwealth v Rutledge [1964] HCA 63, liability was accepted where there was a latent condition, and the nature of the work given to the employee caused that condition to become active.
Policy:
Where it is found that the onset or aggravation of a disease is due to the nature of military employment, and that disease has caused death or incapacity for work, then it would be open to a delegate to accept liability. This approach, while not one which requires total cause or contribution, still requires the nexus between the employment and the claimed condition to be demonstrated. Historically, liability has been accepted for known occupational diseases, or known hazards of particular industries- such as the relationship of silicosis or 'black lung' to underground mining.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20102%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20269%23comment-form
[3] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-21-diseases-nexus-work/212-date-disease
[4] https://clik.dva.gov.au/user/login?destination=node/20404%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20329%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20450%23comment-form
[7] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1979/25.html