is Compensation - Death of naval serviceman during service CATCHWORDS due to cancer - Autogenous disease not diagnosed during service until malignant and fatal - Compensation payable where aggravation of disease contributed to by employment - Meaning of "aggravation" - Appearance of symptoms - Nexus between aggravation of disease and death - Partially dependent mother. Compensation (Australian Government Employees) Act 1971 (Cth.) ss. 5, 29, 31, 43, 104. The Commonwealth of Australia v. Peggy Iris Johnston No. F.C.16 of 1979 Coram Evatt, Brennan and Keely JJ. Date 21 August 1980, Canberra, IN THE FEDERAL COURT ) ) OF AUSTRALIA ) ) No. F.C.16 of 1979 CANBERRA REGISTRY ) GENERAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA AT CANBERRA IN THE MATTER OF ANDREW SCOTT JOHNSTON (DECEASED) BETWEEN : THE COMMONWEALTH OF AUSTRALIA Appellant AND : PEGGY IRIS JOHNSTON Respondent ORDER JUDGES MAKING ORDER Evatt, Brennan and Keely JJ. DATE OF ORDER 21 August 1980, WHERE MADE : Canberra. THE COURT ORDERS THAT l. The appeal be allowed. 2. The judgment of the Honourable Mr. Justice Davies be set aside and in lieu thereof it be ordered that - (a) the decision of the Commonwealth Employees Compensation Tribunal be set aside; (b) the determination of the Commissioner for Employees' Compensation be affirmed. (c) the respondent pay to the appellant its costs. 3. The respondent pay to the appellant its costs of this appeal. IN THE FEDERAL COURT OF AUSTRALIA ) ) CANBERRA REGISTRY ) No. F.C. 16 of 1979 ) ) GENERAL DIVISION ON APPEAL from a single Judge of the Federal Court of Australia IN THE MATTER OF ANDREW SCOTT JOHNSTON (DECEASED ) BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant AND: PEGGY IRIS JOHNSTON Respondent 21 August 1980 CORAM: Evatt, Brennan and Keely JJ. REASONS FOR JUDGMENT EVATT J.: In June 1968 Andrew Scott Johnston (the deceased) voluntarily enlisted as a seaman in the Royal Australian Navy for a period of twelve years. He had then just attained the age of seventeen years and was the eldest of six children living with their widowed mother, Peggy Iris Johnston, the respondent to this appeal. Whilst serving in H.M.A.S. Jeparit in the period between March and August 1970 his ship visited Vietnam. There he had cause to seek medical treatment for pain in the bowel region. As his ship carried no medical officer he attended at a military hospital at Vung Tau where he was told he was -/2.. suffering from haemorrhoids and was given suppositories and cream to use. Between 1970 and July 1974 he apparently suffered symptoms and signs of haemorrhoids causing him to use cream and suppositories which he obtained from naval sources. In August 1974, while seeking further treatment for his complaint, he was examined by a medical officer attached to the Royal Australlan Navy at Melbourne. It was then discovered that he was suffering from an inoperable cancerous condition of the bowel. On 3 January 1975 at the age of 23 he died of abdominal carcinoma located primarily in the upper rectal canal with secondary deposits in the liver. The respondent claimed compensation under s.43 of the Compensation (Australian Government Employees') Act 1971 (the Act)(the 1971 Act) claiming that she was partially dependent upon the deceased at the date of his death and that the death of her son was the result of aggravation or acceleration of a disease and that his service in the Royal Australian Navy was a contributing factor to the aggravation or acceleration within the meaning of s.29 of the Act. Such application was determined against her in the first instance by the Commissioner for Employees' Compensation appointed under the Act (s.9) (the Commissioner). --/3.. On reference of the matter in accordance with the provisions of Division 3 of Part V of the Act to the Commonwealth Employees' Compensation Tribunal established under the Act (s.64)(the Tribunal) for reconsideration, the Tribunal, on 3 April 1978, set aside the determination of the Commissioner and, pursuant to s.84(1)(c)(i) of the Act, determined that (a) the employment of the deceased by the Commonwealth contributed to the aggravation of his cancerous condition and the death of the deceased resulted therefrom; and (b) at the date of the death of the deceased the claimant was partially dependent on him. and ordered that the Commonwealth pay the respondent's costs of the reference. By notice of appeal dated 21 April 1978 the Commonwealth of Australia appealed from the decision of the Tribunal to the Federal Court of Australia pursuant to s.95 of the Act on the following grounds:- (1) The Tribunal was in error in holding that the symptoms of the disease first became apparent after the commencement of the Compensation Commonwealth Government Employees) Act 1971. (2) The Tribunal was in error in failing to hold that the symptoms of the aggravation first became apparent before the commencement of the Compensation (Commonwealth Government Employees) Act 1971. (3) The Tribunal was in error in holding that the deceased's employment by the Commonwealth was a contributory factor to the aggravation of his disease. «f4ee Section 95 of the Act provides that such appeal is "on a question of law only". Consequently where there was evidence to support the findings of the Tribunal of primary facts and if the Tribunal had not misdirected itself in law in making such findings then such primary facts are binding on the Federal Court of Australia. By letter dated 23 October 1978 the Deputy Crown Solicitor for the Commonwealth informed the solicitors for the respondent that at the hearing of the appeal before a single Judge of the Federal Court of Australia it was intended to seek leave to add the following grounds of appeal: That there was no evidence upon which the Tribunal could find: (a) that the condition from which the deceased employee ultimately died could have been detected in 1970; (b) that the said condition would with the exercise of reasonable care have been @etected in 1970 or at any time which would have enabled him to be cured or have had his life expectancy lengthened: ({c) that the said condition was contributed to by the deceased's employment; (ad) that the deceased suffered any aggravation or acceleration in 1970 or at any time within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 or the Common- wealth Employees Compensation Act 1930;(sic) {e) that if any such aggravation or acceleration was suffered, 1t was contributed to by the deceased's employment by the Commonwealth; (f) that the symptoms of the said condition or of any aggravation or acceleration thereof first became apparent after the commencement of the Compensation (Commonwealth Government Employees) Act 1971. «-/5.. On 10 May 1979 Davies J. ordered that the appeal of the Commonwealth of Australia be dismissed and that the GPPRzllant pay the respondent's taxed costs of the appeal. By notice of appeal dated 31 May 1979 the Commonwealth of Australia appealed against the decision of Davies J. to the Full Court of the Federal Court of Australia pursuant to s.24 of the Federal Court of Australia Act, 1976, the grounds of appeal being :- (a) that the Federal Court of Australia was in error in holding that the employment of Andrew Scott Johnston, deceased, by the Commonwealth of Australia was a contributing factor to the aggravation of his disease; (b) that the Federal Court of Australia was in error in holding that employment by the Commonwealth of Australia did contribute to the death of Andrew Scott Johnston; (c) that the Federal Court of Australia was in error in holding that the failure by the Commonwealth of Australia to take remedial steps aggravated or contributed to the aggravation of the disease of Andrew Scott Johnston; (d) that the Federal Court of Australia was in error in holding that the death of Andrew Scott Johnston was compensible (sic) under the Compensation (Commonwealth Government Employees) Act 1971; {e) that the Federal Court of Australia was in error in ordering that the Appellant pay the Respondent's taxed costs of the appeal. An appeal from a single Judge of the Court to the Full Court of the Federal Court of Australia such as the present case is an appeal on a question of law only. The question for determination by the Full Court 1s whether Davies J. erred in law in determining that the Tribunal .-/6.. did not err in law in arriving at its determination. Putting it another way, do the primary facts as found by the Tribunal together with any proper inferences that may be drawn therefrom by the Court (Warren -v~- Coombes & Anor. 53 A.L.J.R. 293) support the Tribunal's determination that: (1) the deceased suffered an aggravation or acceleration of a disease within the meaning of s.29 of the Act and(2) the employment of the deceased by the Commonwealth was a contributing factor to the aggravation or acceleration within the meaning of that section. The relevant findings of the Tribunal were expressed as follows: "12. In 1970 the deceased was serving on HMAS Jeparit, a vessel which carried no medical officer and was operating to Vietnam. Between March and August of that year it is claimed that he went to an Army Hospital at Vung Tau in Vietnam seeking treatment for a condition which he believed was haemorrhoids. ... On all the evidence, ... I am satisfied, on the balance of probabilities, that the deceased did seek medical treatment for pain in his bowel region at Vung Tau in 1970 for what he was told were haemorrhoids. ... 15. Dr. Stewart a general practitioner at Flinders Island, diagnosed the cancer on 4th August 1974 during HMAS Ardent's Tasmanian cruise. ... 18. Dr. Goulston believes the cancer could have been detected if an adequate medical examination had taken place when the deceased presented himself to Vung Tau military hospital in 1970. ... The medical witnesses are in agreement to the fact that the proper practice when examining a person suspected of haemorrhoids 1s to use an instrument to look around to see if there is anything else in the rectal area. It 1s not in issue that a maglignant cancer can be treated if this 1s done sufficiently early or that 1970 would have been sufficiently early." --/7.. Dr. Goulston is a consulting specialist attached to the Woden Valley Hospital in Canberra specialising as a gastroenterologist, his particular area of interest being cancer of the bowel. "24. The deceased's father died of the same diseas. It 18 a rare form of cancer which is much more common among those who have a family history of it. The employment by the Commonwealth was not a contributing factor to its contraction. It was not a contributing factor to its recurrence. The question is whether it was a contributing factor to its aggravation or acceleration. 25. In 1970 servicemen were expected to obtain their medical treatment from service doctors. The employment put him 1n Vietnam when pain in the bowel caused him to seek medical advice. He would have been in breach of naval regulations had he not done this. He followed the advice given for the succeeding years it seems until presenting for haemorrhoids again in August 1974. While the claimant was 1n Vietnam no other advice was available. 26. A normal medical examination should have revealed the developing cancerous condition in 1970. This could have been operated upon and, on the balance of probabilities, prevented the aggravation which took place in the absence of such treatment. Looked at in this light had the claimant not been in the employment the aggravation of his cancerous condition which took place subsequent to his visit to the medical officer 1n 1970 would not have taken place. If that 1s so it seems to follow that the employment contributed to the aggravation." Although there 1s a finding by the Tribunal that, on the probabilities, if the deceased had received proper medical attention in 1970 the disease would have been discovered, there 1s no specific finding by at that operative treatment would then have cured the disease and thus arrest its normal and natural progression. Davies J. in his reasons for judgment stated that "it was not in dispute that, had the condition then (that is 1970) 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 appellant took no objection to such statement. Indeed at the very conclusion of his submissions-in-reply, Counsel for the Commonwealth was asked by a member of the Court in relation to para. 26 set out above: "Is there any statement in that paragraph being a statement of fact which 1s open to challenge? I am not asking you to, as it were, to accept the legal implications of it, but simply as a statement of fact". The transcript then reads: "MR BURCHETT: I follow, your Honour. Your Honour, I challenged the basic facts ... before Mr Justice Davies but I think I expressly said when I opened this appeal that I was not going to invite your Honours to go through all the evidence on that. I am content for the purposes of this appeal to act on the assumption that the purely factual matters can be founded in the evidence. BRENNAN J.: If I could take you to the third sentence: That sentence I take it may mean that 1f the doctor at Vung Tau had operated or had taken steps to institute a positive course of treatment the disease may have been cured or arrested, or it may mean that by reason of the advice given the employee did not take any steps himself from then until 1974 to take action. MR BURCHETT: I was looking at it in the former sense when I said what I said, your Honour. That 1s the only basis on which the tribunal proceeded as I read their reasons. I would not concede the latter sense as being open or available. BRENNAN J.: Avazlable - in the latter sense there was no evidence to support it. " At the commencement of the hearing of the appeal before this Court Mr Burchett Q.C., who, with Mr Purnell, appeared for the Commonwealth of Australia, when asked whether he would be submitting that there was no evidence to support a certain finding of fact, replied: "MR BURCHETT: May I put it this way; When your Honours go to Mr Justice Davies' judgment, your Honours will see that there was a question of fact which looms quite large in his reasons as to whether or not, on the evidence, it was possible to reason that the condition from which the deceased ultimately died was a condition which was already in evidence, either in itself or in a pre-cancerous form, back in 1970 when the event occurred which as relied on in the reasons. And the proposition was that at that time it was at least equally open, on the evidence, that the condition then apparent was simply a condition of haemorrhoids. Now, I do not propose to take your Honours through all the evidence and seek to re-agitate that question of fact, but what we will be sayung in the appeal was that there was no evidence upon which it could be found that there was an aggravation to which the employment was a contributing factor. That is really the basic question which arises out of grounds (a), (b) an@ (c). There is a subsidiary question under ground (d) whether the 1971 act applies and that has regard to questions which arise under section 104, but perhaps I could leave that till later. It is a quite separate point and quite a short one." Mr Burchett's reply is taken to mean that there was no dispute that the findings of primary fact by the Tribunal were supported by evidence which the Tribunal could have accepted. If this was not the intended effect of Mr Burchett's statement then I am of the view that such findings by the Tribunal were supported by acceptable evidence. It must be remembered that the respondent's application for compensation 1s brought under the 1971 Act, 2/10, - 10 - s.29 of which is in a different form to s.10 of the Commonwealth Employees' Compensation Act, 1930 (the 1930 Act) under which decisions such as The Commonwealth -v- Bourne, (1950) 104 C.L.R. 32, The Commonwealth -v- Thompson, (1960) 104 C.L.R. 48 and The Commonwealth -v- Rutledge (1964) 111 C.L.R. 1 were decided. "Injury" is defined in s.5 of the 1971 Act as meaning any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of the Act, does not include a disease or the aggravation, acceleration or recurrence of a disease. "Disease" is defined as including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development. Section 29 of the Act sets out the conditions under which the contraction of a disease or its aggravation, acceleration or recurrence is deemed to be a personal injury to the employee arising out of his employment by the Commonwealth. "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 Commonwealth 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; --/ll.. ~1ll- or (e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, ... then, for the purposes of this Act, unless the contrary intention appears - (f£) 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; " Parts of s.5(1l) and s.31(3) of the Act are relevant. Section 5(11) provides: For the purposes of this Act - (a) the death ... of an employee ... shall be taken to have resulted from ... an aggravation of a disease ... suffered by the employee if ... the aggravation ... contributed to the death ... Whilst s.31(3) provides: The death of an employee shall be taken for the purposes of this Act to have been contributed to ... by an aggravation ... of a disease, if, but for ... that aggravation -.. the death of the employee would have occurred at a significantly later time. As mentioned in para.24 above no claim was made that the disease in question was contracted or recurred during the deceased's employment by the Commonwealth. It is not clear in my view that the findings an para.26 set out above are not simply a statement of "the ultamate fact in issue" as distinct from findings of mixed fact and law. In the recent decision of Lombardo -v- Federal Commissioner of Taxation (1979) 28 A.L.R. 574 Bowen C.J. @ p.575-576 stated: ~-/12, -12- "The decision making process of the Board anvolves the ascertaining of primary facts - the facta probantia, which are then used to adduce the ultimate fact in issue - the factum probandum (Hayes v. Federal Commissioner of Taxation (1956) 96 C.L.R. 47 at p.51 per Fullagar J.). The ultimate fact depends upon the application of the Act to the primary facts but except where a question of construction 1s involved, the conclusion from the primary facts will generally be a question of fact. In Edwards v. Bairstow (1956) A.c. 14 at p.33, Lord Radcliffe in the House of Lords approved what had been said by Lord Sterndale in the Court of Appeal in Currie -v- Inland Revenue Commissioners (1921) 2 K.B. 332 where the question was whether a person was carrying on a "profession" within the meaning of s.39(c) of the Pinance (No.2) Act 1915. There Lord Sterndale made it clear that in cases where a statute is involved its application need not be a question of law. His Lordship (at p.336) said : "There may be circumstances in which nobody could arrive at any other conclusion than that what the man was doing was carrying on a profession; and therefore looking at the matter from the point of view of a judge directing a jury, the judge would be bound to direct them that on the facts they could only find that he was carrying on a profession. That reduces it to a question of law. On the other hand, there may be facts on which the direction would have to be given the other way. But between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly in my opinion, one of fact: and if the Commissioners came to a conclussion of fact without having applied any wrong principle then their decision is final upon the matter." The position where a statute uses words which are not technical was elaborated by Jordan C.J. in The Australian Gas Light Co. v. The Valuer General (1940) 40 S.R.N.S.W. 126 as follows (at p.137): --/13.. ~13- "(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law ... This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence ..., although evidence is receivable as to the meaning of technical terms ..., and the meaning of a technical legal term is a question of law ... (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact ..." (See also Federal Commissioner of Taxation v. Broken Hill South Limited (1941) 65 C.L.R. 150 at p.160; and Brutus v. Cozens (1973) A.c. 854 at p.861). No reliance was made by Counsel for either party on the principles referred to an the passages cited from Lombardo's Case (supra.) or in cases such as Life Insurance Company of Australia Limited -v- Phillips (1925) 36 C.L.R. 60 @ 78 referred to in Neal -v- Secretary, Department of Transport (1980) 29 A.L.R. 350 @ 361. Accordingly, in these reasons for judgment the findings set out in para.26 above are regarded as findings of mixed fact and law and the construction of s.29 of the Act has to be considered. In my view the Act is a remedial Act. Like all such Acts it should be construed beneficially. The function of the Court 1s, in my view, to construe it in the spirit of its manifest purpose. In any event, construction of the section requires consideration of the meaning of the word "aggravation" as used therein. ~-/14.. -14- The Commonwealth of Australia in its submissions as to its meaning relied particularly upon the statement of Windeyer J. in Ogden Industries Pty. Limited -v- Lucas (1967) 116 C.L.R. 537. There the words "aggravation" or "acceleration" as used in the Victorian Workers Compensation Act 1958 as amended by the Workers Compensation (Amendment) Act 1965 were under consideration. At p.593 Windeyer J. stated: "Was it the aggravation or acceleration of a pre-existing disease? It seems to me that it cannot be said that it was. 'Aggravation' means, I think, that an existing disease has been made worse, not that it has simply become worse. 'Acceleration' I have previously said and venture to repeat 'probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli': Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 C.L.R. 626, at pp.639,640). To this view I adhere. ... The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in 1ts progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury." The meaning of the word "aggravation" there adopted by Windeyer J. was an interpretation of that word in that particular Act. He was not attempting to state an interpretation of that word as used in all similar Workers' or Employees' Compensation Acts and, in my view, I am not constrained to such an interpretation in the present case. The appellant further submitted that such interpretation as adopted by Windeyer J. in Oqden's Case was supported by a Meaning of the word as set out in the Shorter Oxford Dictionary -./15. -15 - (3rd ed.) namely, "making worse", Counsel for the respondent on the other hand submitted that "aggravation" includes a meaning as found an the Oxford English Dictionary, Vol.1 (1933) as follows: "A making heavier, graver, or more heinous; the fact of being increased in gravity or seriousness." The question of the meaning of aggravation of a disease was considered in judgments delivered between 1947 and 1949 by Denning J. (as he then was) in claims for war service injuries. Those claims were made under the Royal Warrant (Statutory Instruments 1964 Part III Section 2 page 5257) concerning pensions and other grants in respect of disablement or death due to service in the military forces after 2 September 1939. "Injury" is defined therein as including disease whilst "service" is defined to mean service as a member of the military forces ..... for any period after 2nd September 1939. Part II of the Warrant sets out the general principles of awards. Article 3 provides: "3.Under this Our Warrant awards may be made where the disablement or death of a member of the military forces 1s due to service." Article 4 provides: "4.(1) Where, .... the death occurs of a member (of the military forces) and a claim is made in respect of that death, such .... death, .... shall be accepted as due to service for the purposes of this Our Warrant provided that it 1s certified that - (a) ....eeee (b) ees death was due to or hastened by - ../16... -16- (11) the aggravation by service of an injury which existed before or arose during service. The most detailed judgment is in Lee -v- The Minister of Pensions (No.2) (1948) 3 War Pensions Appeals Reports 1901 delivered 31 May 1948, At p.1913-13 his Lordship stated: "This case raises directly for consideration the question of aggravation of cancer by delay in diagnosis or treatment. Cancer has been proved to be not attributable to or aggravated by war service except in special circumstances. This question of delay is a special circumstance. In many cases of course, the question does not arise. For instance, it often happens that no symptoms occur until an acute attack when the man reports sick, the disease 1s diagnosed at once, and despite all possible treatment, he dies. In other cases it often happens that a man has symptoms for which he reports sick, but, despite reasonable care and skill, the disease is not diagnosed until a late stage when treatment is unavailing, maybe not until after the post-mortem. In any such cases, so long aS reasonable care and skill have been used in diagnosis and treatment, the disease is not aggravated by war service; for no more could have been done for the man than if he had remained in civil life. The cases where aggravation by delay does occur, however, fall into two categories: 1. Cases where the man himself is so conscientious that he remains at his post rather than report sick or undergo treatment. In such cases the delay in diagnosis or treatment is no fault of the medical men, but it is also no fault of the man himself so long as he was not acting unreasonably. The aggravation by the delay is, therefore, due to war service. (See Jones's Case 1 W.P.A.R. 79; (1946 1 A.E.R. 312) 2. Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as 1t should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It 1s to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and 1f, owing to war service he 1s not so treated, any ensuing aggravation 1s due to --/17.. - V7 - war service. (See Gillibrand's Case 1 WP.A.R. 1039). In some cases, of course, the symptoms appear so late that nothing whatever could be done for the man in any event, and then there is no aggravation: but there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service." It is clear that Denning J. was expressing an opinion that a failure to diagnose or treat a disease (including an autogenous disease) could in certain circumstances amount to an aggravation of such disease for the purpose of Art. 4 of the Warrant. In other words an aggravation of a disease could result from an omission to diagnose or treat the disease and that external stimulus was not always required to bring about such an aggravation. Other members of the High Court of Justice (Kings Bench Division) hearing appeals from determinations of Tribunals under the Royal Warrant in accordance with the provisions of s.6(2) of the Pensions Appeal Tribunals Act 1943 have applied the cited principles as laid down by Denning J. (see for example, Jones -v- The Minister of Pensions (1946) 1 A.E.R. 312, 1 W.P.A.R. 79); Hobbs -v- The Minister (1948) 3 W.P.A.R. 1309; Ratcliffe -v- The Minister (1948) 3 W.P.A.R. 1665; Hubbard -v- The Minister (1948) 3 W.P.A.R. 1677; Carman -v- The Minister (1948) 3 WP.A.R. 2081; Lyle -v- The Minister (1949) 4 W.P.A.R. 307 and Agnew & Hubbard -v- The Minister (1950) 4 W.P.A.R. 909. In my view, where there is acceptable evidence that the failure to diagnose and treat an autogenous disease by operative treatment which, on the probabilities, would have --/18.. -18- cured the disease and prevented the normal or natural progression of the disease then it is open to a tribunal of fact to find that there has been aggravation of that disease within the meaning of s.29 of the Act. If this is accepted then in my view it was open to the Tribunal to find that the cause of such failure to diagnose and treat in the present case was brought about by the circumstances that, at the time when such diagnosis and consequential treatment should have occurred, the deceased found himself at a place where proper and reasonable medical attention was not available to him. His presence in Vietnam at that time was brought about by his employment by the Commonwealth. The facts and circumstances of the particular case are such that, in my view, it was open to the Tribunal to determine that such employment by the Commonwealth was a contributing factor to such aggravation. In this regard reference is made to Favelle Mort Limited -v- Murray (1974-5) 133 C.L.R. 180 where Barwick C.J. stated @ 585-6 : "Although the former statutory requirement that an injury should arise out of the employment as well as in its course is, an my opinion, more stringent in relation to the causation of the injury than the requirement that in the case of disease the employment should contribute to its contraction, the several expressions of their Lordships in Thom -v- Sinclair (1917) A.c. 127 are, in my opinion, quite apposite in resolving the present situation. I would respectfully agree with the views of Lord Haldane and Lord Shaw to which I now refer. Lord Haldane posed for himself the question "Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment ...." (1917) A.c., at p.135. It 1s apparent from earlier passages an his Lordship's speech that it was the _./19. ~19 - obligation of the employment to be at the particular place where the injury was received which brought the case within the scope of the formula "arising out of the employment" (1917) A.c., at pp.133-134. The mere chance that the employee was at that place in the course of his employment may be insufficient. Lord Shaw thought that if the nature, condition, obligations or incidents of the employment brought the workman within a zone of special danger, the words of the statute "arising out of the employment" would be satisfied (1917) A.C. at p.142. Here, the area of special danger in the sense used by Lord Shaw was the place or area where the virus in fact entered the respondent's system. As I have said, 1t is nothing to the point that many others, members of the public, were there exposed to the risk of viral attack. Further, the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid. If, therefore, the only basis upon which the respondent could succeed in an application for compensation 1s proof that his employment contributed to the contraction of menzngo-encephal- itis, I am prepared to dismiss this appeal upon the ground that, upon the findings of the learned Chairman, the respondent did receive an injury by contraction of a disease to which the employment was a contributing factor. Accordingly, the order made by the Supreme Court was, in my opinion, correct." Further, to adopt the words of Barwick C.J. cited above the several expressions of their Lordships in Dover Navigation Company Limited -v- Isabella Craig (1940) A.c. 190 are, in my opinion, apposite in resolving the present situation. There a seaman, while serving on board the appellants' steamship, which called at West African ports, where he was specially exposed to the risk of infection from disease-bearing bacteria, contracted yellow fever and died. It was held that his death was due to an "accident arising out of his employment" and in respect of which his dependant was entitled to compensation under the Workmen's Compensation Act, 1925. I would respectfully agree with the .-/20.. - 20 - views of Viscount Maugham and Lord Atkin to which I now refer. At (1940) A.C. 194-5 Viscount Maugham stated: "In the case now before us it is, I think, an irrelevant circumstance that the risk in question was a danger to which all persons in the same area were also subjected. For me it is sufficient that the unfortunate man Craig was especially exposed by reason of his employment to the risk of yellow fever. That is, I think, evidence of a sufficient causal relation to show that the fatal illness was an accident which arose out of his employment; and it is not ad rem to show that other persons, voluntarily or otherwise, ran the same risk.". Again at p.196-7 Lord Atkin stated: "In my opinion, this particular risk of injury by accident was inherent in the nature of the employment; it was necessarily incident to the performance of the sailor's work, phrases which are to be found in the judgment of Lord Finlay un Dennis v. A.J. White & Co. (1917) A.c. 479. I do not think that the case can be distinguished from the street risk cases of which that just cited is the leading case. As in those cases, 1t seems irrelevant that other persons are exposed to the same risk. As was said by Lord Parmoor in Thom v. Sinclair (1917) A.c. 127,145, cited by Lord Finlay in Dennis v. White & Co.:"The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment." For my part I find 1t difficult to conceive a risk more truly arising out of the employment than the risk incurred by the seaman who 1s sent to work in a fever-infested place abroad. Once establish the risk 1s one of "accident" and the connection between the employment and the accident seems to be clearly established. It seems as irrelevant that all other residents in the locality are subject -21- to the same risk of accident as it is that all persons using the street are subject to the same risk as the servant employed to work in the street. In this particular case, however, the servant would never be exposed to the common risks of the locality but for his employment." Again, in Favelle Mort's Case (supra.) Mason J., with whom Stephen J. agreed.@ 597 stated: "The appellant's submission that the second limb of par.(a) of the statutory definition (of "anjury"")1s virtuall synonymous with the concept of causation expressed by the words "arising out of the employment" was founded on observations made in Smith v. Australian Woollen Mills Ltd.(1933) 50 C.L.R. 504, at p.516, where the applicant fell against guard rails in the course of a fainting fit. Gavan Duffy C.J., Rich, Dixon, Evatt and McTiernan JJ. said: "We think ... the conclusion"(is required) "that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it." These observations were taken to suggest some degree of correspondence between an injury to which the employment contributes and an injury which arises out of the employment and to reflect an approach similar to that taken by the House of Lords to the concept of injury "by accident ar1zsing out of his employment" - an expression appearing in similar legislation in the United Kingdom and elsewhere- in such cases as Thom v. Sinclair (1917) A.c. 127; Dennis v. A.J. White and Co. (1917) A.c. 479; Brooker v. Thomas Borthwick & Sons(Australasia) Ltd.(1933) A.C. 669, and Dover Navigation Co. Ltd. v. Craig (1940) A.c. 190. In these cases a distinction has been drawn between injury occasioned by contact physically with some part of the place where the worker works, when no further causal connexion with the employment need be shown, and injury occassi1oned by natural forces (with which the contraction of disease ../22.. - 22 - has been equated) in respect of which the worker cannot recover "unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury" (Brooker's Case per Lord Atkin (1933) A.c. at p.677). The line of distinction hereby suggested is narrow, as Lord Atkin himself admitted (1933) A.c. at p.678. It is a distinction which flows from the necessity of attributing to the words "arising out of" a requirement additional to that signified by the words "in the course of", and one which, as is later indicated, signifies an association of the employment with the accident which "may be even closer than that of proximate cause"(1933) A.c. at p.679. Although par.(a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words "in the course of ", the requirement suggested by the words "to which the employment was a contributing factor" is not as stringent as that suggested by the concept "arising out of" the employment which, as I have said, has been understood to identify something perhaps closer 1n association than the proximate cause of the injury. The language of the second lamb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it 1s the real, the effective or the proximate cause of the injury. This construction of the definition is to be preferred to the appellant's suggestion that the language in par.(a) should be given a meaning identical with, or similar to the concept expressed by the words "arising out of". There is every reason for giving the statutory definition a different meaning, had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used." Accordingly, consideration has to be given to grounds (1) and (2) of the grounds of appeal dated 21 April 1978; ground (f) of the grounds of appeal referred to in the Deputy Crown Solicitor's letter of 23 October 1978 and ground (d) of the grounds of appeal relied upon in the grounds of the present appeal. .-/23.. -~ 23- The effect of such grounds, as I understand them, 1s that it 1s claimed by the Commonwealth that the respondent's application for compensation should have been dealt with under the 1930 Act because the determination of the Tribunal, being dependent upon the finding that there was aggravation of a disease as a result of the failure of the doctor at Vung Tau to carry out an internal examination of the deceased by instruments or other means together with its finding that any reasonably competent doctor would have carried out such an examination, presupposes that the symptoms of pain in and bleeding from the bowel were then "apparent" within the meaning of s.104({1) and (2) of the 1971 Act and that such symptoms would have continued to be apparent as the progressive worsening of the disease occurred in the latter part of 1970 and the first half of 1971. Relevant parts of s.104 of the Act which was proclaimed to commence on 1 September 1971 (Gazette 1971 p.5496) read: (1)subject to this part, this Act ... applies in relation to an aggravation ... of a disease suffered by an employee before the proclaimed date as it applies in relation to ... an aggravation ... of a disease suffered by an employee on or after that date. (2)the last preceding sub-section does not entitle a person to receive compensation under this Act .... in respect of an aggravation ... of a disease, symptoms of which first became apparent before (the proclaimed date) 1f£ compensation was not payable in respect of that aggravation as the case may be - (a) 1n the case of ... an aggravation of a disease, symptoms of which first became apparent, before the commencement ~-/24.. - 24 - 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' Compen- sation Act 1930, or that Act as amended, as in force .... when ... symptoms ... of the aggravation ... first became apparent. In this regard the Tribunal stated at para.27 of its fandings that "27. (the Commonwealth's) argument that the 1930 Act applies is based on the premise that any aggravation or acceleration took place in 1970 at the time of the deceased's visit to the Army hospital at Vung Tau. I doubt whether this is the correct view. The cancerous condition continued to get worse from then until it was diagnosed by Dr.Stewart and operated upon in Melbourne. Thus the aggravation continued because it was not arrested in 1970 until 1974" Again in para. 28 after referring to s.104 of the Act the Tribunal stated: "It 1s therefore necessary to determine when the symptoms became apparent. The symptoms became apparent when diagnosed by Dr. Stewart on 4th August 1974, On my findings the symptoms were present but not apparent in 1970. They were not, 1t appears, apparent when the deceased was examined on 3rd July 1974. Clearly the symptoms farst became apparent after the commencement of this Act. It follows that the claim falls to be determined under section 29 of this Act. Davies J. after referring to submissions made in relation to this ground of appeal stated: "However, argument before me proceeded on the footing and I am of the view that, for the purposes of ss.(2) of s.104 the claim was not made in respect of "an anjury" but in respect of "an aggravation ... of a disease". I am of the view that, in ss(2), the word "injury" ~./Z5. ~ 25 — 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. 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, "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 1t probable they (the cancerous condition) were the reasons and I said yes". On this evidence, 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, the relevant date 1s 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." I agree with these observations of Davies J. Section 104 of the 1971 Act 1s the first section of Part VII of that Act, the heading to which is "Transitional". Here again the section should, in my opinion, be construed beneficially. Irrespective of whether the word "apparent", where used in the expression "aggravation of a disease , symptoms of which first became apparent" is to be read objectively or subjectively, it should, in my view, be read to convey its ordinary meaning of being manifest; that 1s symptoms obvious not only to the eye but to the mind and understanding, suggesting the likelihood, in - 26 - the present case, of an aggravation of the particular disease. In 1970 the deceased as a result of symptoms of pain in and bleeding from the bowel sought medical advice. He was told he was suffering from haemorrhoids and given suppositories and ointment to use. Thereafter, and certainly up until after 1 September 1971, he continued to believe that he was suffering only from haemorroids and carried on with the recommended treatment. From the Tribunal's findings of primary facts it is a proper inference, and I so infer, that the symptoms of which the deceased complained in 1970 in Vietnam persisted thereafter and up until 1 September 1971. He did not understand such symptoms to be symptoms of either the cancerous disease or the aggravation of that disease. Further, there was no evidence that, the deceased attended for medical examination by any doctor or otherwise between his visit to the military hospital in Vietnam in 1970 and lst September 1971 which would permit an inference to be drawn that symptoms of the disease or any aggravation thereof should have become apparent, within the meaning of s.104 of the Act, to doctors, nurses, sick-bay attendants or medical orderlies during that period. Accordingly I am of the opinion that Davies J. did not err in law in holding that the Tribunal had correctly dealt with the claim under the 1971 Act. Consequently, in all the circumstances, the appeal should be dismissed with costs. 2 *ho | Powe yt . Pocrtme Loreto 2 las horeur }J IN THE FEDERAL COURT OF AUSTRALIA CANBERRA REGISTRY No, F.C.16 of 1979 we ew GENERAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA AT CANBERRA IN THE MATTER OF ANDREW SCOTT JOHNSTON (DECEASED ) BETWEEN : THE COMMONWEALTH OF AUSTRALIA Appellant AND : PEGGY IRIS JOHNSTON Respondent CORAM : Evatt, Brennan and Keely JJ. 21 August 1980 BRENNAN J . Andrew Scott Johnston died of cancer on 3 January 1975. He had been a leading seaman 1n the Royal Australian Navy for some years before his death. After his death, his mother (the respondent to this appeal) claimed compensation under s,43 of the Compensation (Australian Government Employees) Act 1971 (the Act). She was found to be partially dependent upon her son, and she was thus entitled to payment of compensation if his death resulted from an "injury" as defined by the Act. The respondent's claim was determined against her in the first instance, but when her claim was referred to the Commonwealth Employees Compensation Tribunal for reconsideration, the Tribunal set aside the determination and, pursuant to s,84(1)(c)(i) of the Act, made a determination in substitution for the determination so set aside. The Tribunal determined that: "Ca) the employment of the deceased by the Commonwealth contributed to the aggravation of his cancerous condition and the death of the deceased resulted therefrom; and (b) at the date of the death of the deceased the claimant was partially dependent on hin, " From this decision of the Tribunal, the Commonwealth instituted an appeal to the Federal Court of Australia pursuant to s.95. The appeal came on for hearing before Davies J. An appeal to the Federal Court from a Tribunal decision is not by way of rehearing: it is "on a question of law only", and the consequence of this limitation is that the facts of a case are to be taken on appeal to be the facts found by the Tribunal where the Tribunal has evidence to support its findings and has not misdirected itself in law in making those findings. The appeal for which the Act now provides is not an appeal upon fact as well as law, and it is to be distinguished from the appeal for which the Commonwealth Employees Compensation Act 1930-1971 provided (see s,20 and The Commonwealth v. Bourne (1960) 104 C.L.R.32 at p.38). Davies J. dismissed the appeal from the Tribunal's decision and this appeal to the Full Court is brought against his Honour's judgment. No objection was taken to the grounds of the appeal from the Tribunal or to the grounds of appeal from the judgment of Davies J. In each instance, the grounds merely assigned error in holding in favour of the respondent on the several elements of statutory entitlement to compensation -— elements which involve questions of mixed fact and law, The appeal from the Tribunal's decision was instituted prior to 1 August 1979 when the provisions of 0.57 r,4(1) came into force, That sub-rule now provides: " In an appeal under this Order, the notice of appeal shall state the question or questions of law raised on the appeal." The utility of that sub-rule was illustrated in the present case when it emerged at the very end of the argument that, 1f the Court adopted a particular construction of the Act and a particular construction of the Tribunal's findings on an issue, the appellant would contend that there was no evidence to support the findings on that issue - a question of law to which scant attention had hitherto been paid in the course of the proceedings. The relevant questions of law must be identified according to the findings of fact which the Tribunal made. The principal findings were expressed as follows: " In 1970 the deceased was serving on HMAS Jeparit, a vessel which carried no medical officer and was operating to Vietnam. Between March and August of that year it is claimed that he went to an Army Hospital at Vung Tau in Vietnam seeking treatment for a condition which he believed was haemorrhoids. ...On all the evidence,...1 am satisfied, on the balance of probabilities, that the deceased did seek medical treatment for pain in his bowel region at Vung Tau in 1970 for what he was toid were haemorrhoids. ... Dr. Stewart a general practitioner at Flinders Island, diagnosed the cancer on 4th August 1974 during HMAS Ardent's Tasmanian cruise. ... The medical witnesses are in agreement to the fact that the proper practice when examning a person suspected of haemorrhoids 1s to use an instrument to look around to see if there is anything else in the rectal area. It 1s not in issue that a malignant cancer can be treated if this is done sufficiently early or that 1970 would have been sufficiently early. When the deceased was examined by Dr. Moffitt in 1974 superficial haemorrhoids were found, Dr. Stewart makes no mention of haemorrhoids. The deceased complained of pain in the bowel region continuously since 1970, It seems reasonable to relate that to the developing cancerous condition which in fact was found rather than to a superficial condition of haemorrhoids and that as pain was present the cause of that pain would have been detectable. With this background I accept the evidence of Dr. Goulston that the condition could have been detected in 1970 and I so find. eas The deceased's father died of the same disease. It is a rare form of cancer which is much more common among those who have a family history of it. The employment by the Commonwealth was not a contributing factor to its contraction. It was not a contributing factor to its recurrence. The question is whether it was a contributing factor to its aggravation or acceleration. In 1970 servicemen were expected to obtain their medical treatment from service doctors. The employment put him in Vietnam when pain in the bowel caused him to seek medical advice. He would have been in breach of naval regulations had he not done this. He followed the advice given for the succeeding years it seems until presenting for haemorrhoids again in August 1974. While the claimant was in Vietnam no other advice was available. A normal medical examination should have revealed the developing cancerous condition in 1970, This could have been operated upon and, on the balance of probabilities, prevented the aggravation which took place in the absence of such treatment. Looked at in this light had the claimant not been in the employment the aggravation of his cancerous condition which took place subsequent to his visit to the medical officer in 1970 would not have taken place. If that 1s so it seems to follow that the employment contributed to the aggravation." The findings 1n the concluding paragraph are not mere findings of fact. They are findings of mixed fact and law echoing the terms in which the statute expresses the conditions upon which an entitlement to compensation depends. The conditions of entitlement under the Act are different from the conditions expressed in some earlier and other Workers Compensation Acts, and cases which have been decided on earlier and other Acts must be applied to the present statute with caution. Statutory formulae of entitlement have varied from time to time and from place to place, and the effect of variations in statutory language cannot be diminished by assuming that the variations are moulded to reproduce or to approximate to a principle judicially established with reference to a different statutory provision. (cf. Darling Island Stevedoring and Lighterage Co.Ltd. v. Hussey (1959) 102 C.L.R.482 at pp.496,517). Under s.43 of the Act, compensation is payable 'where an injury to an employee results in the death of the employee". By the definition of "injury" in s.5(1), however, neither a disease nor an aggravation of a disease is within the meaning of that term. The exclusion of disease and aggravation of disease from the definition of injury in s.5(1) 1s subject, however, to s.29. That section specifies the conditions under which the contraction of a disease or 1ts aggravation, acceleration or recurrence is deemed to be a personal injury to the employee arising out of his employment by the Commonwealth: "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 Commonwealth 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; enaee or (e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, ...then, for the purposes of this Act, unless the contrary intention appears - (f) 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; " In this case, it was conceded that the contraction of the cancerous disease was unrelated to the deceased's employment, and that s.29 did not deem the contraction of the disease to be an injury for the purposes of s.,43. But it was contended ~ and the contention was upheld first by the Tribunal and then by Davies J. - that there had been an aggravation of the cancerous disease which fell within s.29 and which was accordingly deemed to be an "injury" for the purposes of s.43. Both ss.29 and 43 require that the death of the employee be the "result" of the morbid condition which 1s said to constitute the relevant "aggravation" or "anjury". The required nexus between a morbid condition and death is defined by s.5(11) of the Act. It provides, inter alia, that where an employee has suffered from a disease or an aggravation, acceleration or recurrence of a disease, his death shall be taken to have resulted from the disease, aggravation, acceleration or recurrence if the disease, aggravation, acceleration or recurrence "contributed to the death''. And s.31(3) provides that if the death of an employee would have taken place at a significantly later time but for the disease, aggravation, acceleration or recurrence, the relevant morbid condition is to be taken to have contributed to the employee's death, Accordingly, where the aggravation of a disease 1s shown to have contributed to the death of an employee, or where the progress of a fatal disease is shown to have been accelerated so that the time of his death 1s significantly advanced, the required nexus between a relevant morbid condition (1.e. between an aggravation or acceleration of a disease) and the death is established. In the present case, it 1S common ground that the death of the deceased was caused by the cancer, an autogenous disease, taking 1ts natural and fatal course, unimpeded by timely treatment. There was no external stimulus which exacerbated the disease or which accelerated 1ts progress to its fatal conclusion, There . nothing which aggravated the disease, in the sense of making the disease graver than 1ts natural progress ordained, and nothing which accelerated the disease, The appellant accordingly submits that there is nothing which can be identified as a morbid condition supervening upon the disease itself and contributing to the death of the deceased. But counsel for the respondent submitted that "aggravation" includes a simple worsening of the disease,and he relied upon a meaning of the term, to be found in the Oxford Dictionary: " A making heavier, graver, or more heinous, the fact of being increased 1n gravity or seriousness. " It was submitted that the second of these meanings made it unnecessary for a claimant, seeking to rely upon an "aggravation" of a disease, to establish that the disease had been made worse by some external cause: 1t was sufficient merely to show an aggravation in the sense that the disease had grown worse, that is, it had progressed to a worsened stage. The growing worse of the disease contributed to the employee's death, so the argument ran, and as the disease grew worse because the service doctor in Vung Tau failed to diagnose and eradicate the cancer in its early stages, it 1S right to attribute the "aggravation"! to that failure and hence to the employment of the deceased. 10. The "aggravation" upon which this argument fastens occurs at a stage in the progress of the disease after the visit to the doctor in Vung Tau. If these proceedings were an action at law for damages for medical negligence, there would be no difficulty in causally relating the growing worse of the disease to any negligent failure to detect and eradicate it which the evidence might reveal. And causation in workers' compensation cases 1s not different from causation in tort: Baker v. Willoughby [1970] A.C.467 at p.492 per Lord Reid; Bushby v. Morris (1980) 28 ALR 611 at p.616. There is authority also for the proposition that a medical practitioner's negligent omission to treat can be identified as the cause of incapacity suffered by an injured workman: Rothwell v. Caverswall Stone Co.Ltd. [1944] 2 All E.R.350. In that case the question was whether an incapacity was to be attributed to the original compensable injury suftered by a workman or solely to the subsequent negligent omission by a medical practitioner to treat the injured workman. Du Pareq L.J. attributed the incapacity of the workman to the negligent omission of the medical practitioner. His Lordship said (at p.365) ll. " In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity 'results from' the original injury 1f it follows, and is caused by, that injury, and may properly be held so to result even 1f some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circumstances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from the original injury. This 1s so even if the negligence or inefficient treatment consists of an error of omission whereby the original incapacity 1s prolonged. In such a case, if the arbitrator is satisfied that the incapacity would have wholly ceased but for the omission, a finding of fact that the existing incapacity results from the new cause, and not from the injury, will be justified. " This passage did not escape criticism when it was published: see 61 L.Q.R.7. Nevertheless, it was approved by several of the speeches in the House of Lords in Hogan v. Bentinck West Hartley Collieries (Owners) Ltd. [1949] 1 All E.R, 588, although Lord Morton of Henryton (at p.598) expressly reserved the case of mere omission to treat as a possible cause of incapacity. The passage was cited with approval in Migge v. Wormald Brothers Industries Ltd. (1972) 12, 2 N.S.W.L.R.29 by Mason J.A., as he then was (at p.44) with whose judgment the members of the High Court agreed (47 A.L.J.R. 236). These cases were concerned with a break in the chain of causation which would otherwise link a compensable injury to a workman's incapacity (Garner v. Burns Philp & Co.Ltd. 49 S.R.(N.S.W.)270). They were not concerned with the question whether the progress of an autogenic disease after an omission to treat the disease could itself be characterized as an aggravation of the disease. That question was unlikely to arise under the 1930 Act, which adopted a different criterion for compensation for incapacity or death resulting from an aggravation of a disease. Under the 1930 Act, where death resulted from the aggravation of a disease, compensation was not payable unless the aggravation was contributed to by the nature of the deceased's employment by the Commonwealth (1930 Act, s.10(1); The Commonwealth v. Bourne, supra, The Commonwealth v. Thompson (1960) 104 C.L.R,48; The Commonwealth v. Rutledge (1964) 111 C.L.R.1). Although evidence that the disease was caused by the employment might be evidence that 1t was in the nature of that employment to cause it (Connair Pty.Ltd. v. Frederiksen (1979) 25 ALR 155 at p.162), the Act was held not to cover the case where the employment "has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate 1t 13, and no incident, adjunct or quality of which involves those employed therein 1n any particular liability to the contraction of the disease or to the aggravation or acceleration of lits course." (per Dixon C.J. in Bourne's case, supra, at p.38). It may be that under the 1930 Act, a claimant, relying on circumstances similar to those found in the present case, would have had to prove nothing less than that the deceased's employment in the Navy was of such a nature that there was a particular tendency on the part of naval doctors negligently to fail to detect and treat autogenous diseases from which their patients might be suffering. But s.29 directs attention to the actual employment of an employee by the Commonwealth, not to the nature of that employment, And so it is argued, and it may be assumed for present purposes, that the failure of the doctor in Vung Tau to detect and eradicate the cancer should be regarded as contributing to its progress. Is the progress of the disease an "aggravation of the disease" falling within s.29? It 1s clear enough from the structure of the section that ''disease" and "aggravation of disease"' are separate though overlapping concepts which, according to circumstances, are apt to denote different morbid conditions or different aspects of a morbid condition. The operation of s.29 is attracted only when a particular morbid 14, condition or aspect of a morbid condition exhibits the relevant connection with both the employment and the death: when it is contributed to by the employment of an employee and contributes to his death, Where a disease and a supervening aggravation of the disease in combination result in an employee's death, it is sufficient that the aggravation alone should be found to be contributed to by the employment (cf. Darling Island Stevedoring and Lighterage Co.Ltd. v. Hankinson (1967) 117 C.L.R.19 at p.31). All that is required is that, of a plurality of contributing morbid conditions, one of them should exhibit the relevant connection with the deceased's employment. Of course, it may be artificial to divide the condition of an employee who suffers an aggravated disease into a "disease" and an "aggravation of a disease", but where a division is possible, the section may operate to deem an aggravation of an autogenous disease to be an injury. If it is not possible to characterize some part of the condition aS an aggravation of the autogenous disease as distinct from the disease itself, however, there 1s no room for the section to operate, It 1s impossible to predicate of the same morbid condition that 1t is at once a disease not contributed to, and an aggravation contributed to, by the deceased's employment. If the selected morbid condition is a stage 1n an unaffected and natural progress of an autogenous fatal disease and 1f the 15, disease 1s the cause of the death, the death has not been contributed to by an aggravation of the disease. An aggravation of a disease can be regarded as a contributing factor to a death only if 1t has an effect which the disease itself does not have. In a judgment which, in the respect now material, is as applicable to s.29 of the Act as it was to s.10 of the 1930 Act, Menzies J. said in Bourne's case (Supra, at p.43): ",,.if suffering from a disease causes the incapacity of or a disease causes the death of a worker, it is the disease at the stage of development that it has reached and not its aggravation, acceleration or recurrence that brings about incapacity or death," And in Hankinson's case, supra, decided on legislation similar in material respects to the provisions of s.29 with which we are here concerned, Barwick C.J. cited(at p.24) a passage from the judgment of Windeyer J. in McLaughlin & Co.Pty.Ltd. v. Brinnand (noted 39 A.L.J.R.77: reported (1965) W.C.R.112 at p.118) which contains the following: "If, without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering, then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease, his incapacity cannot be said to result from aggravation, acceleration or exacerbation," 16. The Chief Justice disagreed with a later passage of that judgment but not, I think, with the passage set out. It 1s difficult to conceive of an aggravation of an incapacitating disease which would not add some degree of incapacity. An "aggravation of a disease'' which contributes to incapacity or death connotes, in the context of s.29, something graver than the "disease" itself. Although it may be possible to attribute a meaning of growing worse to the term "aggravation" in the abstract, it is not possible to construe aggravation of a disease in s.29 as meaning a growing worse of a disease to which nothing but the natural progress of the disease has contributed. Something else must contribute an increased gravity to the employee's disease, a gravity over and beyond what the natural progress of the disease produces. For the purposes of s.29, employment must be a contributing factor to the aggravation and the contribution to the aggravation 1s a matter of fact. Whether employment has contributed to an aggravation of a disease is ascertained as a matter of medical aetiology, not of law. It is not a question of attributing a particular consequence to a cause in order to establish a legal connection between the two; it is merely a matter of ascertaining whether the employment has made the autogenous disease worse. 17. And thus, though common law principles of causation are applicable to determine legal relationships between cause and effect 1n workers compensation claims, they have no relevance to an enquiry as to the effect which employment in fact has on a disease. Whether or not the later stages of the cancer and the death may be attributable in tort to some antecedent negligent omission to detect and eradicate the disease, for the purposes of s.29 the later stages of the disease can be described only as the disease itself, and not aS an aggravation to which the employment has contributed, Windeyer J. in Ogden Industries Pty.Ltd. v. Lucas (1967) 116 C.L.R.537 at pp.593-4) 1n reference to a statute in terms Similar to the terms used in s.29 said: "Was 1t the aggravation or acceleration of a pre-existing disease? It seems to me that it cannot be said that it was. 'Aggravation' means, I think, that an existing disease has been made worse, not that 1t has simply become worse, 'Acceleration' I have previously said and venture to repeat 'probably presupposes a progressive disease, one that, running its ordinary course, increases 1n gravity until a climax, such as death or total invalidism, 1s reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by externa] stimull': Federal Broom Co.Pty.Ltd. v. Semlitch ((1964) 110 C.L.R.626, at pp.639,640). To this view I adhere, ...The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress, It 1s the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury." 18, It follows that, as there was nothing which made worse the natural progress of the deceased's cancer, the death which it caused cannot be said to have been contributed to by an aggravation of that disease for the purposes of s,29, Since writing the above, my brother Evatt has referred me to a line of cases decided by Denning J. (as he then was) where claims for war service injuries were allowed in respect of delays in the diagnosis and treatment of cancer. Those claims were made under the Royal Warrant concerning pensions and other grants in respect of disablement or death due to service in the military forces. The Warrant defined "injury" as including "disease'' and conferred an entitlement when death was due to or hastened by "the aggravation by service of an injury which existed before or arose during service" (C1.4(1) (b)(ii)). The most detailed judgment 1s in Lee v. Minister of Pensions (No.2) (1948) War Pensions Appeals Reports 1901. The material passage from his Lordship's judgment 1s set out by Evatt J., and I need not repeat it. Although there 1s a similarity between the concepts in the Royal Warrant and those in s.29 of the Act, I do not think that this Court should apply his Lordship's reasoning, which was expressed in a different statutory context, The first lank in the chain of his Lordship's reasoning 1S an assumption that in civil life the claimant would be treated with reasonable care and skill, and any aggravation due to a lesser standard of treatment 1s 19. then regarded as due to war service, That reasoning 1s, of course, at the heart of the respondent's argument here. But the next link in the chain is that the natural progression of the disease is to be characterized as an aggravation, and that reasoning appears to be inconsistent with Australian workers' compensation judgments where the natural progress of a disease has not been characterized as an aggravation. A surer guide to this Court 1s the quoted dictum of Windeyer J. which 1s drawn from a judgment upon a statute similar to the present Act, and which appears consonant with the terms of s.29. I would allow the appeal with costs. The judgment of Davies J. should be set aside and in lieu thereof an order be made that the decision of the Commonwealth Employees Compensation Tribunal be set aside with costs, and that in lieu of the Tribunal's order there be substituted an order that the determination of the Commissioner be affirmed. I certify that this and the % preceding pa.es are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice "tenes s > ' Vo baat, Associate TU dae FREER -F CoGrt Lo Am ce ) CAPPFPRA PECTTIPY ) a ae ee GPULPAGL CIVI' Tb ) map a as os Trp Tee (npr BriTuUrFeEDs THR Cope my ap ote moan rate Anoc bj one er Procy TrTs Poros Pwsre7 ral Cerct: Evatt, Erennan cn? Verly Ti. BRAC WIM Pop turers 21] *utust 1°°( sorry oy. In thie gepesnbkh FoRaws set bh eee be epe 88 pee are Er racsons for jumonent ef Ty Prete op te ee nn aby ahs boa bt histery of the cess wpe eth ro or-try at caece ebences, 1 yeor thet the acger] shoul te eble ew edt cag bla arte yp arre ee Fh bam. It y°3 Teague 7 by fy Tete EE TUL, ote sore veo Purne]? for the apret:s rr, the tere TER ef eae hy Tae base th. olan. ] Court ere grooL tt a ' aa the docisier of the Cre rene Tor brats i ee Re {the ''rymin Z) that "hos - Ty orere . - 7 oe tes ie Sect ND hb contricet ;2 to thr sqeariwlt em off onze ne the death ef the Freraneet plevlte i th-eype& yom 27(7) of tO Corpertetic (Coimon.ece lib Co fet 197} qthe ret) rrovilee th-t: "27. (1) Ir cirtenal isqery arising ooh af ar ois the cevree of thr covpleyrirt at rr oc ley ty the Corpoweesz] rh ve ernest to bra ceatner | oft Commonuwccitk is, ctubject to thic , lictkle te CLy en oir resrach of bat oad an aACCor "ree eorp ne7ty A? ef the "ect rrevites Fnst: fT) thera - an ocmolecye* contrects tr dic acl oer ef res an oegrarrtian, xecelercrier Jy. af - arsezs.- tad eng emeoleynmcent of thre cartoyro Fy 185 Cormmonwe7trh wos 7 contributira fretsr +, the certreetion of thea Vareere- or te bh pggravatior, ecceleraticr ,,. wbrtner oar not tee daresetec agaraveotion, cecec gn the ceurss cf t succeoedina Erovicit ra effect. (a) the reste of the emrlcys2; eee resvlte from bhe Viernes, cr Prep ory aggrevarion, recelcration 2... ef rhy Frere, eee Chon, fo) wo purroagcs of Flag fot, waist the contrery antertion cenecores - (£) the conterezion ef the Presto r, er + Garavetien, coenlorrtiar ee eH m3 moy ke, orcll be arama to be 5 terre jury to th: eyrloves erieena ent ef 4-- errloyrert of the empl ye by pros Cemnon o7tt sand we Tle cf tac arckp yy. eho Tt be career tn Bb. tho frit: cf the inqury. feferre the Jeaibur oon | eerad to <w 2° Vir shraGy yoamocr, tad Vur7 fou yr vietacr in VO70 ert ris je th oor 7 Gowurye, IMT, ory Hoonmerr ts] to coxear ate ocr roceder-te br: fisesse an the eens > cf vauting tar sets t te rpm 2 cosrc cam cay way Giftcrcnt Frop ite ortirsey cours. Teer curb sc ay Mr Burchett that acces ingly tesrt pat heen ne satay orier ey fon joeese, acceleration cf the The Terbansl found th-t the smoloor-et ty fhe Tammares-1¢ vo net a countricvtirg factor ce the "ceniroctiern™ ef the cyte uen mor te dts "reourr reo", Tt een omrecgerse? te sere "ee bee guesticn whether the omployment Evy the Cormorvactth Mars = cortribobtirg factor Le its cqersvebticr or coe Tergtran", Tr ters corncection the Yribune) cert: "25. Tn 1670 crorvicemenr were cxmrcti: fe or bern theirre wodictl treatment From eirvic, The crrloytent cut hor yn Voetnm saetn rcir 7 the bowel ceuc.d hit ta cemk metoces? 2 eles, woula have keen, In proach of moet to reealetscn had he not cone this. we Fobleye 7 ber weyers given for the esuccectine yacre wt orwar Lat. preserting fcr acmworrro1ts 74earm in Audet 1074, White cha eloarmont wee an VYyoeern roe ether advice wes availekl>. ca Fnstore x 26. A normt) weticrl cxrrin-taen eho vas reverleat the Aevelorine cancerones cenciticr in Ww7e, this covrd havo boon er ert at uren oc. 7, on the btel-nce ef reekebilitree, cro ouere-F the aqgrrveticon thaen tagh oisnrd oir ork heepor of such tre ctrcent. Looks. ar in thie treht wcrc rhe clrirant mer beer ir fhe cpr cymept ft ogertt.tror of Kit conesrans conertiar ec hvess took rl-c: cuhteduert te tr vacit ta the medic Lo oefficer an 177 yout nec autre flor bloc... Th pabo wg ca rt eectr|e fe. rxtte book the cuployt.no: centribuote be bes star cyt. 27.0 Jie Bsr be ch! oe tryatent tact tat itt tet eeelirys ag Frs Foon tre re ure Pl sp oosmy eharcovelion or ecetigertian tele ori fe ae Ie Ag the tar ef TG. Feet re Phe ree vm bee tr eee weupire} of Vere sau, T Ferttoor on Tee oserriel wviow. TR a eordlrens er chien cor linus diaqnes:a Melbourn:. tea because it wrs My Eorchctt er c by fF Whe then urtel ana creratcs rT mraw bran + Co areest 2 oan W970 or iyt 4 Fase 1+ wro4 ru yea OF the vworeerinci a such : i cordition was not an " yaorevriden" of 7 Aarecers ysich the bed suttcrcd within to masnina ot Ss,20(1) to} cf tho ocr, comnection bre relicd usen the following estreets Fre ths Cnforc Dictienary (Ire Can): "Suffer ... TO undereo, ctneure, Leo orrorz. have (somethiiac peinful, Ayetr esiris, or injurious) aintlict-3 Gr amroeced ursar orc; te submit to with cocsin, distrigs, or weciot., 7 7. ae or press tFecush, be cubjeeecs te, uriey ne, experience (met osu. rorething evit or ceirft Ww "Aagrevato ... 7. Te 2IE wejabt ro = 1G°°+ cen, to mtke wors. (things evil, offorccr, Er.) TS96. 22. Cf. "Oo TAG wosaht uneyely: to cece srl is (c£. 2) i575 ..." "Agarcvetion ... 4. @ aineretzeind, cr. cine unerscescs, ir ercyity or seorieusne rt tet lL ee 7. An cwtripers circecuretburte chien apeyo oc. s , guilt or misery cf 3 colvraity or cram: WFC, hr burercrt tJso relict uron reettecs in tte ote Judarirt of fhe Tags Court ip vearimusg o7 77 tne Paceiculer, Ctien 'novetiicc five Ter ov. feces (3% 71 1 wndetver GF. fel mp tte yp care: \ "a Shorter re Gye wn Wes it ths aecagrevstion or accclerctien cf = gpre-cxictina disease? Tt seems to mr chet ic crnrot be salt that wt vas. "roanrveticrt moens; YT think, trict en existing dise-te tf 7t been me) yorse, rot that it BxS cimrly meter worse. 'Tecel_rciien' I hays rrevionsly s*7 7 Pno verroure to roreat 'prohably presuprnoas-s o Brocressive dis-cet, ene thot, rurayne at orciary course, neresses iM qravity until - clin', soDtr or tatch anveliciem, je sochla - qcess foe this one recutr net pelina erairarily suscentibl of being reryrsnently rareccecd, but ruseectible ef heya hastene: by extern-] etimulia': Fodder. 1 Proamr oc. pty. Ltt. ve Samliter (3944) "TT9 ChE 4ir TF pe.ao-678, Te tare view To athere. «6. "he Act looks rot to tre censacurne>? of zceol-retion Fut e that by seme eztornel ¢ctimulve fh- { ge beon @ceciirete" ain ite rrogress. Te 1s foe Lrot of the vorkeor's crrioymipkt hay7 4: ecerlrreted tre peocrcese of the Ciseusc ehrer ettracts the definition of injury." Mr Coomkc Q.C., wno enresrad with dr Villaome for che espondent, submitted that the emrloyects @rath reevlted from an "aggrévaticn" of the sisecse which corsist7d of "A worseninz in the sericusness or gqrevity of the decaasad's cendition weiena occurrra 7S part of the ordinary course of the "ies c.se without a treatment curina the perio* Fotween the examination wt the areyv hospite} in Vietnam in J970 «nd his @coth on 2? Irnurry 39758. in this connectien ®e Coorkts submitted that the "normal rreqress af ct Sisess," mecent "the nrorm:l proqress of the aresise urdor trestment" as distinct from tre "nature)]" rrocressicn af the Giseanse without medical trloetmert. He sunrrkted thar fee werd @ggraveticon™ ra £.29 of thea Act anclracs beth os cesc where €' "> Gictets nes been acce worce tnd alee 2 vors ring o conmdibtior 23 orbs daiscese Feiles~d ats arcirary ceurit watmet followina etapitres. From fs) a bp a ha + +~ . wv ~ > me be tal uu S Ba a a fa ax "4. A makire heavier, Yeo vit, OF Wore * the fa cer1o0us c r t of beairne ineresesct Gro ere = " ees. Iam unable to reech the corvlercic i L 1 . t if ' i sue ry xe oe - "sggravetion" ain g.2?9(1) of the Fer rs patendae dt ors Pare - neening contended for by Mr Cocare. rr . os parate erovision in recrect of dTrotre-s. conferring rights t% compensetion whetro fre Commenwoalth has beron a centributina Sector ta of a discesce, the tet confers riants te courers employee has suffercd am engrevaticn of - kine nwt -- sl7* Le Fund ft employment by the Catmontesith hag been 2 ocontrthyrins footer the "aggravation" of a diseas:, Tn the former confers righte to cerieenscetion + P4yea bia disease running its ortinary course. Tho othe Usttep realm tet tet provides - consist:nt]ly witn its arproacth ¢-¢ fhe css er employment was @¢ contributina fector to the contreactisp of tte Aisecse - for compensation where feat) vonttt-, fren ot aggravyetion of the disease. The contrection af te Tree ce yrie one cas2 cnd the aggrevetion af the Giscacc tr gyn atte dy "ere gt ce-med to ke e@ fersonal injtrty to the ereclsyer crisspa cut of t emcloynert of tne emelcyze by the Commonwelith™ rest iayfivy, In my vioaw where tre omeloveet<) bestth teeaycs corce reason of the disease runri:a itS ordinmery cours, Thx canlov has not sufrered en "sagrravtzticn' of ~ discal, ctr nt Tera of s.25 cf the "et - seo the cyesste in Cote tree tye ote. Fe, ve. Luces (supra) cer vinetyer J, set mak eeryr tp we hae ea corp In the seme cass Parwick C.J. s2id fob ee. cts-77 } "Tt as sti that the Aecoaecd suttire! 2 ney physicel inqury, novels, the nulsorciv ov tac, after the cermencetent of tre Amperage bh wets on, that et this irqury bo diced. eee TQ Senerga, 97 T shall woint cub, Beth thoes cubmiceiens reales spe? the prcepocitian what che emmlovuort ocsfri tro the ortema, roacvrter aither FE ke olr 4 se7gse 2S agelinea, or cre on Star. ctbyer or T am unsakle to ac ertber ot trace submiccions. 3°07 orcad rare fore, tie oedens waco but aio phese tpe oonapewate? oor accelerite. carfiice siserss FRrL 1g fe fy, 1t was a manifestrotien of rriury rcoa37sF aia Februery i9GE, "nt anteed marr of th, ce min es thet the Ce usrtron of derth by tnavbr arivery are The oidemr was na injury within th adcfanition of ain Wes, 2£ the cares t, in Py ortnien, 7 mhAyv1¢7} 2 oerning worts of oF ' ury prorerlyvy censtra 7. it re facte requir t us fo cesems, 7 Pp hysioleqicel chant and urcxeceted char for we ore on for tne worse?. pee Sutton ter 1g of neo sigrificenc ore 7eoreerne yrth of y oof cn anjyurv cri ft cefinitior cof fisesas> enrlics courlly ro arc as to sudden dev-torment, Tt wre cutegensus gm tre sense trrzt rotnina bet tre tte ler cde, Jicezse of which at wae a arnifestotren crecty 1b to cecuc, 2irker at the ime at it ar ou all: as I hove s274, 1h we in thet rcerlrreted direc employtent suet contribute to Tiectt fer ir ta be cn injury, crite clearly Fuborvenens ob syace in the course of a 4 be injuries, vwh-trker or net tho Pyr7arse ic itself 2 compinswatl. inzury." morte. cantor ir th sgqeeldice The Act confers rights te compencrbror wht. 7 CFE elther from tre digeaso or frem thr cagr-yarinn mt tye provitsd tnat the employyent Fy the Cecrsres lbh conrrikuting fretor fa the centrostion af ths Fre a7c-7 tn case Or to its rygrtvetion air crs atkher, Tro otr ros thero wit mo owitence thet thea omrltoynort cy tls Cemcran - @ contributing fecter co th: canicectiaen of + o R tiene vacence tert at w-f - contrisetin agiures-tien or sere 'rration cf the Jisetec2 in t ordinary coucss cf thr irernst Pad beon tage cee As to ths «rcisions of Prnning 3, fn ' a8 3 morineres yustes ch the Vist Court is ric: Wises, who hea errloaecd for cens1ers weer rhe agrees vith wy Frote or Teennmer thot thir Court ef Lerdshig's roc-coning, context. which wos cxpresce Mae SIME he OES A yo ' T 1 ' Ha Pg yee ' , ty . eid . a 4 - ' aff pat ut oo j- _ | B Wau te cy protle , seront, 7 only Cie