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Limelight Articles

Limelight 06/16

Meaning of “injury”

Authors, Jason Newman , Scott Shelly

Military Rehabilitation and Compensation Commission v May [2016] HCA 19


On 11 May 2016, the High Court of Australia clarified the meaning of “injury”: Military Rehabilitation and Compensation v May [2016] HCA 19.

The Court [1]determined that an injury occurs when an “…employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.


Benjamin May was required to have a series of vaccinations during his employment with the RAAF. He claimed to have suffered “low immunity, fatigue, illnesses, dizziness” as a result of the vaccinations.

Mr May claimed Commonwealth workers compensation [2]for his adverse reaction. A delegate for the Military Rehabilitation and Compensation Commission (MRCC) denied Mr May’s claim because of his inability to link his claimed condition with his RAAF service.

Administrative Appeals Tribunal

Mr May applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision. The AAT received medical evidence including the opinions of 6 ENT surgeons, a neurophysiologist, an occupational physician and a physician experienced in immune reactions to vaccines.

The AAT determined there was a temporal link between Mr May’s condition and his RAAF service, but that there was no objective evidence to support the symptoms relevant to his claim and no medical explanation for his symptoms.  As such, affirming the MRCC’s decision, the AAT concluded that Mr May had not suffered an “injury” because he had not demonstrated a “sudden or identifiable physiological change”. The AAT also considered Mr May had not suffered a “disease.”


Mr May appealed to the Federal Court of Australia. That appeal was dismissed.  He then appealed to the Full Court of the Federal Court.

The Full Court determined that the AAT had made a number of errors in its decision, including that it was wrong in concluding that “injury” required a “sudden or identifiable physiological change” in every case, and for concluding that for there to be an “injury” there must be a “diagnosis or medically ascertained cause.”

The Full Court concluded that “injury” can include subjectively experienced symptoms such as those experienced by Mr May and allowed his appeal.

The MRCC appealed to the High Court.

High Court

 The High Court[3]:

  • rejected the Full Court’s conclusion that “injury” includes subjectively experienced symptoms, without any physiological or psychiatric change; and
  • held that, although Mr May said he had felt unwell, which the AAT accepted, Mr May had not established that he had an “injury” because an assertion of feeling unwell without more, is not enough to satisfy the definition of “injury”.

As Mr May did not challenge the AAT’s conclusion that he had not suffered a “disease”, the High Court allowed the MRCC’s appeal.


The High Court’s decision clarifies the meaning of “injury” which has been an area of uncertainty in workers compensation for some time. That uncertainty was particularly pronounced when considering whether internal physiological change has occurred to a relevant employee, for example, when considering whether a disc herniation was an “injury” or a “disease” for the purposes of workers compensation.

The High Court’s decision is only binding on the meaning of “injury” for Commonwealth workers compensation; however, it is likely to be persuasive for Courts and tribunals considering   the   meaning   of   “injury”   in   other   workers compensation schemes, personal accident and sickness policies and other policies of insurance where the meaning of “injury” is important, but not clearly defined.

Date: 6 June 2016

[1] The joint reasons of French CJ, Keifel, Nettle and Cordon JJ. Gageler J gave separate reasons for agreeing with the orders in the joint reasons.
[2] Under the Safety Rehabilitation and Compensation Act 1988 (Cth)
[3] In the joint reasons. We do not discuss Gageler J’s separate reasons in this Limelight.


This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.