Psychological Injuries - Developments in "Reasonable Administrative Action"

There have been two recent decisions which have shed light on when the ‘reasonable administrative action’ exclusion will operate. The first of these decisions is Comcare v Martin ([2016] HCA 43) which was handed down by the High Court in 2016. The latest decision, in April 2017, is that of Lim v Comcare. But what do these decisions mean?

Martin

In the case of Martin a claim was made for a psychological condition arising out of an employee’s failure to get a promotion. The applicant, Ms. Martin, claimed that she had been bullied and harassed by her supervisor at her place of work, the ABC. As a result of the bullying she sought and obtained a temporary transfer to a higher position. When she applied to be made permanent in that new position she was unsuccessful and “broke down uncontrollably” as a result. She was diagnosed with an adjustment disorder. The Tribunal supported Comcare’s decision that Ms. Martin had suffered the injury “as a result of reasonable administrative action”. The case was appealed through the Federal Court, and then to the Full Court of the Federal Court, which found that the Tribunal had made the wrong finding regarding the cause of the disorder. The High Court however rejected the decision of the Full Court of the Federal Court, in particular with respect to how the Court interpreted “as a result of” as importing a “common sense” test. At the heart of it, the Court held that the appropriate test was whether without the taking of the administrative action, the applicant would have suffered the injury.

Lim

In the subsequent decision of Lim, ([2017] FCAFC 64) handed down by the Full Court of the Federal Court, the Court agreed with the Tribunal that the relevant adjustment disorder was contributed to, to a significant degree, by her employment. This case also involved a psychological condition arising out of Dr. Lim’s employment. However, unlike Martin, there were numerous other employment related factors which contributed to the injury. The Full Court of the Federal Court ruled that the matter be sent back the Tribunal. The reason for this, they stated, was that on the face of it, there was no evidence that she would not have suffered the ailment had the relevant administrative action been taken.

What does this all mean?

In essence what the decisions in Martin and Lim mean is that although there may have been reasonable administrative action undertaken in a reasonable manner, that in and of itself will not trigger the exclusion. What must be shown is that there were no other employment related factors which contributed “to a significant degree” to the injury. In other words, if there are multiple employment related factors which have significantly contributed to the injury, the fact that one or more might be considered reasonable administrative action, is not sufficient to trigger the exclusion. The Tribunal must weigh up all the factors and determine whether, had it not been for the reasonable administrative action, would the injury still have occurred?

This is a helpful departure for injured workers from the previous interpretations of how the RAA exclusionary provision operated which from the time of the decision in Hart v Comcare [2005] FCAFC 16] was regarded as applying if any one “reasonable administrative action” contributed to an injury. In other words, on the basis of Hart, even if there were numerous employment related factors which contributed to a psychological injury but only one “reasonable administrative action” which did so, the whole claim would fail. 

Having said that, psychological injury cases are still difficult for workers to win with the legislation, and the way it is generally applied, stacked up against them.