Johnston, Peggy Iris v Commonwealth of Australia [1979] FCA 44

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IN_THE FEDERAL COURT OF AUSTRALIA

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AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

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No. 1 of 1978

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__ GENERAL, DIVISION

IN THE MATTER OF ANDREW SCOTT JOHNSTON

(DECEASED) BETWEEN : THE COMMONWEALTH OF AUSTRALIA — AND : PEGGY IRIS JOHNSTON ORDER JUDGE MAKING ORDER : DAVIES J. DATE OF ORDER : 10 May 1979 WHERE MADE : Canberra

THE COURT ORDERS THAT the appeal be dismissed and that the

appellant pay the respondent's taxed

costs of the appeal.

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IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

No. 1 of 1978

nee Ne ee ee a

IN THE MATTER OF ANDREW SCOTT JOHNSTON

(DECEASED ) BETWEEN : THE COMMONWEALTH OF AUSTRALIA AND : PEGGY IRIS JOHNSTON 10 MAY 1979 DAVIES, J.

REASONS FOR JUDGUENT

This is an appeal from a decision of the Commonwealth Employees' Compensation Tribunal which determined that the claimant for Commonwealth employees' compensation, Peggy Iris Johnston, mother of the deceased, Andrew Scott Johnston, was partially dependent upon her son at his death, that the employment of the deceased

by the Commonwealth had contributed to the aggravation of a cancerous condition from which he had suf{Cered and that his

death had resulted therefrom.

The deceased had been a member of the Royal Australian Navy. In

1970, while on duty with HMAS Jeparit, he sought attention from

cere ee 2 me re ns - . wee

the Vung Tau Military Base Hospital in Vietnam, was advised that he suffered from haemorrhoids and was given suppositories. No medical record presently exists of that examination but there was adequate evidence before the Tribunal to support its finding that such examination took place and of the advice and treatment given. Thereafter, until August 1974 when it was ascertained that Mr. Johnston was suffering from carcinoma of the bowel, he believed that he had a haemorrhoidal condition. His mother gave evidence that when Mr. Johnston was on leave in 1971 he used suppositories and a cream, that thereafter Mr. Johnston carried the suppositories in his toilet bag when on leave and that she had noticed him taking the tube of cream from the toilet bag when he went to the bathroon. The Tribunal acted on the view that the suppositories were obtained from Navy sources. The Tribunal records that, "It is not in question that HMAS Ardent carried no medical officer, did carry medical supplies and that suppositories can be obtained without a prescription.". Mrs. Johnston said in evidence that on two occasions her son told her that the haemorrhoids were sore and bleeding badly. She said, "He always had trouble with them.". Mrs. Johnston gave evidence that her son informed her early in 1974 that he had seen his insurance agent, that he was going to take out a superannuation policy with an insurance company and had been advised to obtain a medical certificate. She said that, subsequently, he telephoned her fron HMAS Cerberus to tell her that a doctor had advised him to have a haemorrhoid operation. Subsequently, he came home on leave and took his mother and his brothers and sisters on a camping trip.