an, . r) 7 (a5 Mae aye a eueth a CF C . rt b <7TQ3LiA -- PRHoot ow %& ' RY sna se IN_THE FEDERAL COURT OF AUSTRALIA eS AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY seek No. 1 of 1978 SS we Ne ee er __ 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. rere pee ieare 6 nee gee 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. On his return from leave, he again telephoned his mother and COS RARER TI SN ETE TEP Ee > medgpeata san + An A Ha PEt pie informed her he was not yet going into hospital but was going to Tasmania with HMAS Ardent and that when he came back from that trip he would have the haemorrhoid operation. The facts concerning the doctor's advice, mentioned in the telephone conversation, are not clear. It seems unlikely that Mr. Johnston saw a civilian doctor at that time. His service records show that on 3 July 1974 he saw Dr. Moffit. Tue daily medical record signed by Dr. Moffit records a diagnosis of haemorrhoids. The treatment given was suppositories and ointment and there was to be a review on 7 July. Dr. Moffit gave evidence before the Tribunal but, in that evidence, made no reference to and was asked no questions concerning his examination on 3 July. Having regard to subsequent events and to Dr. Moffit's unquestioned medical skill, it seems unlikely that Dr. Moff1it made an examination on 3 July or that on that day he reached a conclude diagnosis that Mr. Johnston was suffering from haemorrhoids. It seems more likely that Dr. Moffit was the doctor to whom Mr. Johnston referred in his telephone conversation with his mother, that there was a tentative diagnosis of haemorrhoids on the basis of what Mr. Johnston said to Dr. Moffit and that Mr. Johnston was asked to return on 7 July for a full examination, probably with a view to then arranging for an operation should that prove to be necessary. No doubt, Mr. Johnston did not return on 7 July because of the arrangement that was made for him to go to Tasmania with IIMAS Ardent. The examination of 3 July 1974 is not mentioned in the reasons of the Tribunal and was not specifically adverted to in the oral evidence given. I have referred to it to indicate that, in ny view, it would not be safe to conclude that on 3 July there was a diagnosis made on that day that Mr. Johnston suffered from haenmorrhoids. I have indicated my view of the likely way in which the daily medical record of 3 July correlates with the other evidence. My view may not be correct. Nevertheless, the Tribunal did not take into account either that there was a diagnosis of haemorrhoids made on that day or that in 1974 4 doctor seen for insurance purposes made such a diagnosis. For the reasons I have given, I also am of the view that no such conclusions should be drawn. On arrival in Hobart, when serving with HMAS Ardent, Mr. Johnston attended casualty at the Royal Hobart Hospital. A report from the co-ordinator of the casualty services at that hospital records that Mr. Johnston was seen on 27 July 1974 and, "He was suffering from internal piles, which were tender and not bleeding at this time. An operation was pending, according to the history given by hin. He was given cream and suppositories and was going for further treatment in Melbourne.". However, because of subsequent events, it seems likely that no proper examination of Mr. Johnston was then made. Mr. Johnston saw Dr. Stewart, a general practitioner on Flinders Island, on 4 Ausust 1974. Dr. Stevart mad2 an examination of Mr. Johnston, formed the view that Mr. Johnston was suffering from cancer of the bowel and referred him for further examination by a surgeon as soon as possible. Subsequently, Dr. Stewart's diagnosis was confirmed. An operation was performed but the d t H ' ' {! | ¢ : { t : } i ti: ee Oe eT a opeee ee - SR gg eT TET RETA 8 | AC BPP CRMC ER Ce 1 2 eee ee EERR Tre carcinoma had reached such an advanced stage that surgery could not prevent death. Mr. Johnston died on 3 January 1975. Carcinoma of the bowel is a rare but possible condition in a person of the age of 23 years, Mr. Johnston's age when he died. However, it is more common in persons of a family which has a history of the disease. Mr. Johnston's father also died of cancer of the bowel. Current theory accepts the view that the cancer develops from a benign polyp or wart in the bowel region and that the time span between the polyp becoming malignant or cancerous and death is three or five to ten years. Dr. Goulston 1t said in evidence to the Tribunal that, "...the best authorities say that the sequence from the recognition of a polyp to the development of cancer and death is in the realm of five to 10 years..." and that the period was not likely to be less. He said that, "Anything is possible, but current teaching is that there is a long delay period.". Dr. Pembrey put the length of time between the onset of cancer and death as three to ten years. He said that current knowledge did not suggest that there would be a shorter period. He said, "In all biological material, we tend to accept that there are 2 per cent who are shorter and 2% per cent who could be longer, but it seems unlikely that this occurs in cancer.". The evidence to the Tribunal was that, if the cancer is treated at an early stage, particularly by surgery, the probabilities are that the life of the patient will be extended. Dr. Whitehead said that, provided the treatment is early cnough, the patient can anticipate a normal life expectancy. t a ee ee ee eee] eee lee A patient suffering from the cancer feels discomfort in the bowel and anal region and may also suffer some pain and bleeding. These symptoms are consistent also with haemorrhoids. However, a doctor can often feel or see the difference between the polyp - or cancer and the haemorrhoid. The haemorrhoid feels and looks more like a varicose vein whereas a polyp feels and looks somewhat like a wart and the cancerous mass behind the polyp has a hard feel about it. The medical evidence was in general agreement that, if a doctor has doubt as to whether or not the condition is a haemorrhoidal condition, he should make an examination to exclude other causes such as a benign polyp or malignant carcinoma. Dr. Whitehead said that it was standard practice for a doctor both to make an investigation with his finger and to use a proctoscope which enabled him to see into the rectum. The evidence was that, in a case of doubt, these examinations should be made, even in the case of a person of Mr. Johnston's age. The Tribunal accepted Dr. Goulston's evidence that, because the carcinoma had been conclusively shown to exist in Mr. Johnston in July 1974, and because the haemorrhoidal condition had not been clearly demonstrated, then it was probable that it was the ",..same abnormality or possibly a pre-cancerous condition..." which was the cause of the problem for which Mr. Johnston sought treatment at the Vung Tau Hospital in 1970. Dr. Goulston based this conclusion upon the view that Ilr. Johnston's symptom. were consistent with the development and growth of the cancerous condition and that there was no evidence to indicate that Mr. Johnston was suffering from haemorrhoids between March 7970 and the date of his death. Dr. Goulston said that the medical records which he had inspected did not show the existence of haemorrhoids. It is not clear from the evidence what were the records which Dr. Goulston had seen. Dr. Goulston said in cross—examination, ",..there is no objective evidence put before me that he had haemorrhoids. That is say-so. I do know that he had a cancer but I do not know that he had haemorrhoids. There is no objective evidence of haemorrhoids.". He said, "I have said that the symptoms are compatible, and I have been told that he continued to complain of these symptoms over three or four years, and the question was put to me was it probable they (the cancerous condition) were the reasons, and I said yes.", In cross-examination, it was not put to Dr. Goulston that Dr. Moffit had examined Mr. Johnston and had diagnosed haemorrhoids. The daily medical record of 3 July 1974 was not put to Dr. Goulston. Nor in cross-examination was he asked his view of the significance of a daily medical record completed by Dr. Moffit on 7 August 1974 that on examination he had found 5° to 2° haemorrhoids. In his evidence in chief, Dr. Goulston was asked by counsel for the applicant to look at documents numbered 43, 44 and 45, Document 45 was the daily medical record of 7 August 1974. Whether Dr. Goulston then looked at the report or whether he had previously seen it 1s not clear. No specific question was asked about it. The conclusion must be drawn that either he did not see the record of 7 August 1974 or he regarded the reference in it to haemorrnoids as insignificant. In my view, 1t was open to the Tribunal to accept Dr. Goulston's evidence. Dr. Stewart examined Mr. Johnston on 4 August 1974. cee ees ev te eee ee wee ote nee He took a history of weight loss and of bleeding for a few weeks prior to his examination. He made an examination with his finger and felt lumps encircling the rectal wall. He said in evidence that the lumps were within easy reach of his finger which is not long. He had no trouble actually feeling them. He said that in detecting the lumps he formed an instant and tentative diagnosis that there was a malignancy of some kind. He said that his experience was that of the average competent general practitioner. He said that, if he had been called upon to examine a young man who had been complaining of haemorrhoids or something wrong in the anal region, he would carry out an examination of the rectum as a matter of course and would do so to exclude the possibility of other than haemorrhoids unless there were special factors which night stop a full examination. He said he did the rectal examination with his finger and probably also a proctoscopic examination. In his subsequent written report, he said that the patient had complained he had been troubled by "haemorrhoids" and, on examination, he (Dr. Stewart) had found, "Lumps encircling rectal wall piable looking, bleeding small posterior anal fissure.". He recommended treatment by a surgeon as soon as possible. The report does not suggest that Dr. Stewart found haemorrhoids. It mentions haemorrhoids only as the matter of complaint. The report was of a cancerous condition and was subsequently confirmed. Dr. Stewart was not asked in cross—-exanination lo say and did not say that, in addition to the cancer, Mr. Johnston also had haemorrhoids. wet Subsequently, on 8 August 1974, Mr. Johnston was examined by a consulting surgeon, Mr. I. McInness. The record of that examination shows that, on examination per rectum, there was found, "Large fixed mass ant rectal wall ~- Feels like Ca.", Thereafter, Mr. Johnston was operated on for the carcinoma. There was no mention of haemorrhoids in any of the subsequent medical records. There was no mention of haemorrhoids in the autopsy report. The evidence supporting the presence of the haemorrhoids is contained in the evidence and records of Dr. Moffit and the report from the Royal Hobart Hospital. As mentioned above, the significance to be given to the dally medical record of 3 guly 1974 was not explained and it would I think be unsafe to place any reliance upon it. In his oral evidence, Dr. Moffit said that, on examination on 7 August 1974, "...superficially he did have haemorrhoids present." and that a reference in his written report of that day to haemorrhoids 5° to 2° was a reference to ",..primary and secondary haemorrhoids." When asked to tell the Tribunal what he meant by that, he said, "Haemorrhoids are varicose veins of the anal canal, and depending on how far the varicosities are enlarged, we divide them up into primary, secondary or tertiary hacmorrhoids. I think also he had very small haemorrhoids which were giving him at that stage apparently little problem.". He said that the haemorrhoids were comparatively minor in appearance. On 7 August 1974, Dr. Moffit referred Mr. Johnston to a surgeon for opinion and treatment. In his notes to the surgeon he said, "Recent haemorrhoids. P.R mass. Please examine and investigate Se ee ee ee Se ile 10. and treat as you see fit.". In his evidence, Dr. Moffit said that, "I was under the impression that he was being treated for haemorrhoids elsewhere.". I find this evidence of Dr. Moffit as to the haemorrhoids rather confusing. However, I would not accept that it shows that Mr. Johnston had significant haemorrhoids in August 1974 and I would not take the evidence as destroying Dr. Goulston's evidence that it probably was the cancerous condition or a pre-cancerous condition which caused the symptoms for which Mr. Johnston sought treatment in March 1970. The report from the Royal Hobart Hospital records that Mr. Johnston was seen on 27 July 1974 and it was found that he was suffering from "...internal piles, which were tender and not bleeding at this time.". From the fact that Dr. Stewart easily found the cancerous condition it is clear that no proper examination was made at the Royal Hobart Hospital. The report records that, "An operation was pending, according to the history given by him.". No doubt the medical officer thought he was not called upon to do other than provide a temporary relief end he did this by supplying suppositories and crean. I have dealt with the above evidence at some length for I think it establishes the point that was most crucial to the success of the application, There was responsible evidence before the Tribunal which the Tribunal properly could and did accept that from March 1970, when he went to Vung Tau Hospital for treatment of the condition which he believed to be haemorrhoids, until the time of his death, Mr. Johnston was suffering from a carcinoma 11. of the bowel or possibly the pre-cancerous condition which led up to that carcinoma. The findings of fact which then connected Mr. Johnston's employment with his ultimate death were a finding by the Tribunal that probably the cancer could have been detected if an adequate medical examination had taken place when Mr. Johnston presented himself to the Vung Tau Military Hospital in 1970 and a finding that, if it had then been detected, the cancer could have been treated. There was, I think, evidence on which the Tribunal could rely to make these findings. Dr. Goulston gave evidence that the cancerous or pre-cancerous condition which existed in 1970 should on the probabilities have been detected then as well as at any other time subsequent to it by the exercise of ordinary medical competence. That evidence was not seriously disputed. Drs. Stewart and Whitehead said that ordinarily it would be proper to make a full examination of the rectum including the use of a proctoscope. Dr. Moffit expressed tne same view. Dr. Pembrey threw some doubt on it when he said, "I think if I saw a young man and I did a rectal examination and there was nothing I could feel which was abnormal, I would be unlikely to do a proctoscopic examination.". However, on the whole, his evidence was to the effect that the condition could have been detected. He was ' asked whether, assuming there were symptoms of haemorrhoids and there was bleeding about which the patient co7plained early in 1971, the condition (cancer) should have been detectable using the ordinary proper medical procedures at that time. Dr. Pembrey said, "It is probable that it could have been detected at that 12. stage.". Accordingly, there was evidence which the Tribunal properly could accept that the condition probably would have been detected had a proper examination been made at Vung Tau Hospital in March of 1970. It was not in dispute that, had the condition then been detected, Mr. Johnston's life would have been prolonged and, on Dr. Whitehead's evidence, that he could have expected a normal life expectancy. The case accepted by the Tribunal was, therefore, that Mr. Johnston's employment contributed to his death because his employment led him to attend the Vung Tau Hospital and, at that hospital, there was an inadequate examination of his then condition which failed to detect a condition which, on the probabilities, would have been detected had a proper examination been made. That finding is sufficient justification for the decision of the Tribunal. However, there was additional evidence which provided a basis for the conclusion that the employment was connected with the failure to arrest a cancerous condition, Mr. Johnston's employment in the Navy resulted in his obtaining medical advice from doctors and medical officers engaged by the Armed Services. The Navy imposed upon him a duty to keep himself fit and to report for treatment should he have any medical problems. He was not required to obtain treatment merely from the doctors who were made available by the Armed Services but, understandably, 1t vas convenient and economic for him to attend them. There was no acceptable evidence that he attended any other doctor. Over the period from March 1970 until the time when the cancer was diagnosed, Mr. Johnston constantly used suppositories and creams which he obtained from Navy sources and, because he had seen the doctor at Vung Tau Hospital and FO TR SE TR eR Re Ee ATEN Se eB = 13. because he was obtaining treatment of suppositories and cream out of Navy stores, it is probable that he did not seek the medical advice which a civilian probably would have sought. Therefore, his employment contributed to his failure to obtain proper medical advice in relation to the condition from which he suffered. This provides an additional basis upon which the Tribunal could have found, as it did find, that Mr. Johnston's employment contributed to his death. For these reasons I am of the view that the grounds of appeal which submit that there was an insufficiency of evidence to justify the findings of the Tribunal are rot well based. . I turn now to other points of law raised in the appeal. The relevant provisions of the Compensation (Australian Government Employees) Act 1971 are as follows : "29.(1) Where - (a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and {b) any employment of the employee by the Commonvealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect. (2) If - (a) the death of the employee; results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the nn 14. disease, or the aggravation, acceleration or recurrence or the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -— (f) (g) the contraction of the*disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; an the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the ingury.". "43.(1) Where an injury to an employee results in the death of the employee, the succeeding provisions of this section have effect. (2) Subject to this section and to sections 37 and 44 of ' this Act, if the employee dies without leaving dependants, compensation is not payable in respect of the injury. eeerenees (4) If the employee dies without leaving dependants who were, at the date of the death of the employee, wholly dependent upon him but leaving dependants who were, at that date, partly dependent upon him, then - (a) (b) subject to this section and to sections 37 and 44 of this Act, the compensation payable in respect of the injury is such amount, not exceeding Fourteen thousand five hundred dollars, as the Commissioner determines should be paid, taking into account any losses suffered by those dependants as a result of the cessation of the earnings of the employee; and that compensation is payable to, or in accordance with the directions of, the Commissioner for the benefit of those dependants.", It was submitted by Mr. Burchett, Q.C., who appeared for the appellant, that, even if the facts found by the Tribunal be accepted, nevertheless the employment was not "...a contributing factor to the contraction of the disease or to the aggravation, 15. acceleration or recurrence..." thereof. See paragraph (a) of ss.29(1). It was conceded by Mr. Kelly, Q.C., counsel for Mrs. Johnston, that the cancer was an autogenous disease and that the employment of Mr. Johnston did not contribute to its contraction or re-occurrence and that it was not accelerated. Mr. Kelly submitted, and the Tribunal found, that the employment contributed to the "aggravation" of the disease because it contributed to the failure to detect and to treat the disease at an early stage of its development. Mr. Burchett submitted that a failure to prevent the growth or development or spread of a disease does not constitute an aggravation of a disease. He relied upon dicta in Ogden Industries Pty. Limited v. Lucas 116 CLR 537, and in particular the statement by Windeyer J at p-593 that, " "Aggravation' means, I think, that an existing disease has been made worse, not that that it has simply become worse.". Mr. Burchett also relied upon the remarks of Barwick CJ at p.558 that, "I£ the employment must contribute to disease for it to be an injury, quite clearly autogenous changes in the course of a disease cannot in themselves be injuries, whether or not the disease is itself a compensable injury. In that case, Their Honours were, however, concerned with a situation where the employment did not contribute to the worsening of the worker's condition. In the present appeal, the Tribunal took the view that the employment did contribute to the death and that the failure to take remedial steps aggravated or contributed to the aggravation of the disease. I agree with that view. If a maintenance worker, having a duty to maintain a machine, sees or negligently neglects to see a bearing become "ame mancnche Taare 6A ic AER the -~ylies eRe as lye — Aber AM TOIT WORN WU OE NY | et, eee alee elie La OS een eenen engine een Sie Ta 16. hot because of lack of oil and fails to rectify that lack, he, contributes to the situation whereby the bearing increasingly becomes hot and damage occurs. His failure to take remedial action aggravates or contributes to the aggravation of the problem. Similarly, the failure of the doctor at Vung Tau Hospital to detect the condition and to take remedial steps aggravated or contributed to the aggravation of the disease from which Mr. Johnston suffered. Likewise, Mr. Johnston's employment contributed to the aggravation. In my opinion, the words "contraction", "aggravation" "acceleration" and "recurrence" cover the field of the circumstances in which employment may contribute to death or impairment from a disease. The Tribunal has found facts which establish that Mr. Johnston's death from the disease was contributed to by his employment. In my view, the words used in s.29 comprehend that situation. It was next submitted by Mr.Burchett that the death was not compensable under the Compensation (Australian Government Employees) Act 1971 because the aggravation of the disease occurred before the proclaimed date, 1 September 1971, and because, it was said, the aggravation was not compensable under the preceding Act, the Commonwealth Employees' Compensation Act 1930. That Act was repealed by the 1971 Act and ss(1) of s.104 of the 1971 Act provides : "104.(1) Subject to this Part, this Act other than section 120 applies in relation to an injury sustained, a disease . contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee before the proclaimed date as it applies in relation to an injury sustained, a discase contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee on or after that date.". 17. However, ss(2) of s.104 limits the right to compensation as follows : "104.(2) The last preceding sub-section does not entitle a person to receive compensation under this Act in respect of an injury sustained before the proclaimed date, or in respect of a disease, or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent before that date, if compensation was not payable in respect of that injury, that disease or that aggravation, acceleration or recurrence, as the case may be — (a) in the case of an injury sustained, or a disease or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent, before the commencement of the Commonwealth Employees' Compensation Act 1930 - under the Commonwealth Workmen's Compensation Act 1912; or (b) in any other case - under the Commonwealth Employees' Compensation Act 1930, or that Act as amended, as in force at the time when the injury was sustained or symptoms of the disease, or of the aggravation, acceleration or recurrence, first became apparent.". If the claim is made "in respect of an injury" within the meaning of those words in ss(2) then the injury occurred prior to the proclaimed date. It is to be recalled that s.29(2) provides that, if the death of the employee results from the aggravation of the disease, the aggravation is deemed to be a personal injury to the employee and the date of the injury is deemed to be '"(g) the date of the death....or the date on which the medical treatment was first obtained, whichever is the earlier...." The term "the medical treatment" refers back to the expression ".,.the employee obtained medical treatment in relation to the disease...". Certainly, death occurred after the proclaimed date. Hovever, in 1970, Mr. Johnston sought medical treatment in relation to the disease. The Tribunal accepted "...that the deceased did seek medical treatment for pain in his bowel region at Vung Tau in 1970...". The Tribunal also accepted Dr. Goulston': 18. evidence to which I have earlier referred that, probably, it was the cancerous or pre-cancerous condition which gave rise to the symptoms for which Mr. Johnston sought treatment. Thus, Mr. Johnston first sought medical treatment in relation to the disease in 1970. It may be noted that s.37 uses a similar expression when it makes the Commonwealth liable to make payment ",...im respect of the cost of medical treatment obtained in relation to the injury....". The word "treatment" is not defined though s.5(1) defines "therapeutic treatment" as including an examination, test or analysis for the purpose of diagnosing an injury and "' medical treatment" as including an examination, test or analysis carried out on or in relation to an employee at the request or direction of a legally qualified medical practitioner. However, the context in which the word "treatment" appears and its use in s.37 as well as in s.29 leads me to the view that the word has a wide denotation and comprehends a consultation for the purpose of diagnosis. I take the fact to be that, in 1970, there was a consultation at Vung Tau Hospital for the purpose of diagnosis. It is on that footing that the conclusion is reached that the doctor at Vung Tau Hospital should have diagnosed and treated the cancerous or pre-cancerous condition. Accordingly, I take the fact to be that in 1970 Mr. Johnston obtained "medical treatment" and, as the complaint out of which it arose was the cancerous or pre-cancerous condition, I take it that Mr. Johnston then obtained medical treatnent in relation to that disease. It follows that the date of the injury is deemed to be the date of the examination in 1970. This precedes the proclaimed date. ae ae more ee aw 19. However, argument before me proceeded on the footing and I am of the view that, for the purposes of ss(2), the claim was not made in respect of "an injury" but in respect of "an aggravation.... of a disease". I am of the view that, in ss(2), the word "injury" carries its ordinary meaning rather than the deemed meaning attributed by s.29. Thus, attention must be given to the expression in ss(2) "...at the time when symptoms...of the aggravation...first became apparent...". The Tribunal took the view that the relevant symptoms became apparent when diagnosed by Dr. Stewart on 4 August 1974. A symptom as defined in the Oxford English Dictionary is : "Path.: A (bodily or mental) phenomenon, circumstance, or , change of condition arising from and accompanying a disease or affection and constituting an indication or evidence of it; a characteristic sign of some particular disease. gen.: A phenomenon or circumstance accompanying some condition, process, feeling, etc. and serving as evidence of it (orig. a property of something evil); a sign or indication of something." The symptoms which were apparent to Mr. Johnston and for which he sought treatment in 1970 were symptoms of the cancerous or pre-cancerous condition. Specifically, Dr. Goulston said, ""l have said that the symptoms are compatible, and I have been told that he continued to complain of these symptoms over three or four years, and the question was put to me was it probable they (the cancerous condition) were the reasons and [{ said yes.". On this evidenee, the symptoms of the disease were apparent in 1970, before the proclaimed date, though the presence of the disease itself was not perceived by either the examining doctor or Mr. Johnston. However, the claim is made not "in respect of a disease" but "in respect of...an aggravation". Therefore, Sonnler en ey aeliulhit: saepelete ace beanlone yeaa' vga repent a0 ve senemepare sony Cn) qt e mece te ne "RES M gC oom < 20. the relevant date is the date when symptoms of the aggravation first became apparent. This was not at the time of the examination in 1970 for it was the failure to detect the disease at that examination and subsequently which constituted the aggravation. On the probabilities of the case, symptoms of the aggravation of the disease would not have been and were not apparent until after the proclaimed date of the Compensation (Australian Government Employees) Act 1971. Therefore, ss(2) of s.104 does not preclude the grant of compensation. For these reasons, I would dismiss the appeal. I certify that this and the 19 pre «ug pa es are a true copy of the Re... s for Judgment herein of his Honour Me. Justice DQVicys h fl /L lc | Associate Dated: | () (May 1974 O42 Nee ets meet te Rae OL OTR TORT EE a enema merieh ree see ems verre veremeee —— T me ee ete Coe Se Re me ete re ne eeweme toe noe