Commonwealth of Australia v. Whillock, R.B. [1983] FCA 183
Federal Court of Australia
Full text
Select any passage to save a personal note with optional tags.
CATCHWORDS
Workers' Compensation - compensation of Commonwealth
Government employee - death due to heart failure - Workman
suffering from coronary artery disease - whether thrombosis
or myocardial necrosis supervening on coronary artery disease
as an "injury" within s.27 of Compensation (Commonwealth
Government Employees) Act 1971 - whether thrombosis or
myocardial necrosis if an aggravation of the disease is an
injury within s.27 when occurring in circumstances referred
to in s.29 of the Act.
Compensation (Commonwealth Government Employees) Act 1971
ss.27 and 29.
COMMONWEALTH OF AUSTRALIA v. REGINA BETON WHILLOCK
No. G94 of 1982
Smithers, St. John and Northrop JJ.
24 June 1983
Sydney.
: Lb OF
40374 La
PUP tay
BrGistey
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
)
)
) No. G.94 of 1982
)
)
ON APPEAL FROM THE WORKERS
COMPENSATION COMMISSION OF
NEW SOUTH WALES
Between: THE COMMONWEALTH OF
AUSTRALIA
(Applicant)
And: REGINA BETON WHILLOCK
(Respondent)
Judges: Smithers, St. John and Northrop JJ.
Date of Order: 24 June 1983.
Where Made: Sydney.
ORDER
THE COURT ORDERS :
(a) In respect of the appeal herein,
(i) That the appeal be allowed.
(ii) That the
decision of the
Workers'
2.
Compensation Commission of New South Wales
of 7 May 1982 be set aside.
(iii) That the matter be remitted to the Workers'
Compensation Commission of New South Wales
for re-determination in accordance with the
directions of the Federal Court of Australia
to consider the matter in relation to s.29
of the Compensation (Commonwealth Government
Employees) Act 1971 and the applicability of
that section to the provisions of s.27(1)
thereof.
(iv) That the question of costs be reserved.
(b) In respect of the cross appeal herein,
the Court reserves the costs thereof but
having regard to the nature of the orders in
the appeal herein it otherwise makes no
order.
IN THE FEDERAL COURT OF AUSTRALIA
)
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G.94 of 1982
)
)
GENERAL DIVISION
ON APPEAL FROM THE WORKERS
COMPENSATION COMMISSION OF
NEW SOUTH WALES
Between: THE COMMONWEALTH OF
AUSTRALIA :
(Applicant)
And: REGINA BETON WHILLOCK
(Respondent)
Coram: Smithers, St. John and Northrop JJ.
24 June 1983
REASONS FOR JUDGMENT
SMITHERS J.: Chief Petty Officer Robert John Whillock, an
employee- of the Commonwealth died on 8 May 1977. His widow,
Regina Beton Whillock claimed compensation under the
Compensation (Commonwealth Government Employees) Act 1971 (the
Act) in respect of his death. The claim was rejected by the
delegate of the Commissioner for Employees' Compensation who
made a determination that the death was not the result of
personal injury arising out of or in the course of the
ry
2.
employment of the deceased, and also, was not the result of
the contraction of a disease or the aggravation, acceleration
or recurrence of a pre-existing or underlying disease to which
his employment contributed.
Upon appeal to the Workers' Compensation Commission
of New South Wales, a prescribed Court pursuant to s.94 of the
Act, the learned Commissioner made a finding that the death
was the result of injury arising out of or in the course of
the employment of the deceased by the Commonwealth. He set
aside the determination of the Delegate and remitted the
matter to him with that expression of ""opinion" that the
deceased had died as the result of personal injury and that
the injury caused to him arose out of or in the course of his
employment.
The circumstances of the death of Chief Petty
Officer Whillock were set out by the learned Commissioner as
follows: -—
"The deceased was at the time of his death a Chief
Petty Officer in the Royal Australian Navy. He
was at that time serving upon Her Majesty's
Australian ship, "Stalwart" and living in
accommodation provided by the Navy at East Hills.
His appointment to "Stalwart" was as a Chief Petty
Officer Medical and that appointment required him
to man the sick bay on the ship. In May 1977
"Stalwart" was in dry dock at Cockatoo Island
Dockyard.
On Sunday, 8 May 1977 whilst at his home, the
deceased complained of low back pain which was of
3.
sufficient intensity to cause him to contact the
Naval Hospital at Balmoral and, in due course, to
present himself there for examination and such
treatment as may have been prescribed. He was
taken from East Hills to Balmoral in a Naval
ambulance and was examined by Dr. Virant who
prescribed an anti-inflammatory drug and suggested
to him that he absent himself from work at least,
in the first instance, for a period of a couple of
days or so.
The deceased was, for whatever reason, reluctant
to accept the advice of Dr. Virant and instead was
transported from Balmoral to Cockatoo Island,
initially by road and then by boat. He boarded
his ship by means of a gang plank which probably
was on a level plane and then ascended one flight
of stairs in order to get to the Petty Officer's
mess. It would seem that whilst in the Petty
Officer's mess he was still suffering pain and
discomfort in his low back which was not relieved
by the medication which had been prescribed nor by
his changing posture. As a consequence, he
attended the sick bay on board the ship which
necessitated his ascending a further flight of
steps. The two flights of steps were probably not
more than eleven each in number. From the sick
bay the course of events which then occurred was
that the deceased began the process of
disembarking, in fact disembarked, was placed in a
launch for the purpose of being removed to
hospital but whilst in the launch he died.
A post-mortem examination was conducted and there
seems to be no dispute that the cause of his death
was a myocardial infarction caused by an occlusion
of his right coronary artery by a thrombus which
the examiner thought to be of recent origin."
The precise terms of the coronial finding as to the cause of
death was as follows:-
"4. In my opinion death
had taken place about
hours and the cause of
death was:-
I DIRECT CAUSE - )
)
Disease or condition ») (a) MYOCARDIAL FIBROSIS
directly leading to death ) wee
ANTECEDENT CAUSES ) (b) SEVERE CORONARY ARTERY
) ATHEROMA"
The learned Commissioner continued:-
«+. The post-mortem examination revealed the
presence of a recent thrombus which occluded his
right coronary artery. That occlusion prevented
the flow of blood to his heart muscle and caused
its necrosis. There was a pathological change
brought about to a vital organ of his body. That
event, in my view, constituted an injury. It may
well be said that the thrombus was caused by a
reaction on his blood passing through degenerate
blood vessels which were diseased. That that is
so, in my view, is probably correct. That is to
say, he suffered from cardio-vascular disease but
nevertheless the effect of the thrombus forming
and causing an occlusion brought about physical
consequences to his myocardium and damaged it.
That, as I have said, in my view constitutes an
injury."
This finding is challenged by the appellant. It is argued
that within the meaning of the Act neither the thrombus nor
the necrosis of the heart muscle was an injury from which the
death resulted. It is said that the death resulted from a
disease. It is added, but not for decision by this Court,
that neither that disease nor any aggravation, acceleration or
recurrence thereof was a happening to which any employment of
the deceased by the Commonwealth contributed.
5.
Under s.27(1) of the Act the Commonwealth is liable
to pay compensation in respect of an injury "arising out of or
in the course of" his employment as an employee of the
Commonwealth. The extent of that liability is to pay
compensation "in accordance with this Act".
Under various provisions, including ss.39, 43, 45
and 46, provision is made for compensation to be paid to
employees who suffer bodily or mental incapacity of various
specified kinds, including death, as a result of injury. In
each case the relevant provision is introduced by a phrase
such as "where the injury results in" the particular
incapacity. Thus, it is provided by s.43(1) "Where an injury
to an employee results in the death of the employee ...";
s.45(1) "Where an injury to an employee results in the
employee being totally incapacitated for work ...".
The liability of the Commonwealth under s.27 is
imposed only in respect of personal injury which "is caused"
to the employee. It was pointed out by Menzies J. in
Kavanagh v. The Commonwealth (1959) 103 C.L.R. 547 that the
notion that the words "is caused" as used in the Act import a
causal connection was rejected in James Patrick & Co. Pty.
Ltd. v. Sharpe (1955) A.c. 1. He pointed out also that the
word "arising" means no more than "happening". At p.572 of
Kavanagh's Case (supra) Menzies J. said "if a worker is
injured while doing something incidental to what he is
6.
employed to do, that is sufficient and no other association
between the injury and the work is necessary."
The expression "injury" is defined in s.5 of the Act
to mean "any physical or mental injury and includes the
aggravation, acceleration or recurrence of any physical or
mental injury, but subject to s.29 does not include a disease
or the aggravation, acceleration or recurrence of a disease."
Section 29 provides that in cases where "an employee contracts
a disease or suffers an aggravation, acceleration or
recurrence of a disease; and any employment of the employee by
the Commonwealth was a contributing factor to the contraction,
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", then the provisions of sub-section 2 of s.29
apply. By para (f) of that sub-section it is provided, inter
alia, that if the death of the employee "results from the
disease, or from the aggravation, acceleration or recurrence
thereof, then, for the purpose of the Act unless the contrary
intention appears the contraction of the disease, or the
aggravation 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." Accordingly,
in circumstances where death of a Commonwealth employee
results from the contraction of a disease or from the
aggravation of such a disease and his employment by the
7.
Commonwealth was a contributing factor thereto, that
contraction or aggravation shall be deemed to be not only a
personal injury but a personal injury arising out of the
employment.
Accordingly, in respect of death of an employee and
certain other disabilities suffered by him as the result of
an injury as defined in s.5 of the Act the Commonwealth is
liable to pay compensation provided the injury was one arising
out of or in the course of the employment. Also, if the
employee's claim is made on the basis that he died as a result
of a disease or the aggravation of a disease the Commonwealth
is liable to pay compensation as though he had suffered an
injury, provided that it is established that "any employment"
by the Commonwealth of the employee was a contributing factor
to the contraction or aggravation of the disease. Herein I
use the expression "aggravation" as importing aggravation,
acceleration or recurrence of a disease.
In Mr. Whillock's case the respondent's main
submission is that the injury from which his death resulted
was the thrombus in the relevant artery. Secondly, reliance
is placed upon the necrosis of the heart muscle. As a result
of each of these happenings, it is said, the bodily processes
necessary to sustain life, in particular, the life of the
brain, came to a standstill and he died.
8.
It is said the critical injury was the coagulation
of blood forming itself into a clot and blocking the passage
of blood through the coronary artery so that the heart muscle
suffered necrosis by reason merely of the reduction of the
blood supply or such reduction combined with some exertion of
the heart muscle. It is conceded that the thickening and
roughening of the walls of the artery occurred as part of the
progression of a disease known as atheroma of the coronary
artery and that it had preceded the formation of the clot and
was a pre-condition of that happening. Also the Commissioner
so found.
It is to be observed that the deceased had been
suffering for some time from a disease of the arteries, in the
course of which it, became thickened and somewhat roughened on
the interior surface. Had that not been the case it is
improbable that the blood would have formed a clot and thereby
impeded that passage of blood through the artery. The
probabilities are that there would have been a sufficiently
large and free opening through the artery to permit the
passage of adequate blood to enable the cardiac muscle to do
the work it was required to do.
It is apparent therefore that the finding of the
Commissioner that the deceased died from injury will support
his conclusion that the respondent was entitled to
compensation if it is understood as referring to an injury
9.
which was not a disease. The Commissioner said that in view
of his finding the applicant was entitled to compensation
pursuant to s.27(1). That sub-section creates an entitlement,
in certain conditions, where personal injury is caused to an
employee. But if the injury be a disease it is an injury
within the meaning of s.27(1) only if some employment by the
Commonwealth contributed to its contraction or aggravation.
The 'learned Commissioner did not consider whether the
employment by the Commonwealth contributed to the thrombus or
myocardial infarction or any other aspect of the condition of
the deceased. He made no finding with respect to that
subject. He did not need to because if the relevant event was
as he found it to be, an injury not being a disease, and
occurred whilst the deceased was in the course of his
employment, that was enough. Clearly, he regarded the injury
which he identified as the cause of death, namely the thrombus
or the myocardial necrosis as something other than a disease.
The respondent supports this.
But of course the deceased was at all material times
a sufferer from a disease with progressive tendencies and
which was relevant to the occurrence of the thrombus and
occlusion and the myocardial necrosis and the subsequent
events causing death of the brain and thus the death of the
deceased. In fact the disease was the cause of these events
whether or not they be classified as a disease or part of the
disease. The real question before the Commissioner was
10.
whether the death resulted from the disease or from a physical
injury, considered as not part of the disease. Of course the
thrombus, the occlusion and the myocardial necrosis were
injuries in the sense that they caused harm. Also each was an
incident of physical degeneration precedent to the myocardial
necrosis which led to the ultimate death. So in a sense was
the narrowing of the artery itself. To say that each of these
was an injury does not assist. To support the reasoning of
the Commissioner the injury or injuries he regarded as
critical is not significant until it is decided that they were
not the result of disease.
Whether they were diseases or not may be a difficult
question because the definition of disease in s.5 of the Act
embraces a wide collection of ailments. The Commissioner said
that the injuries which he identified were not incidents of a
disease but no reasons for so deciding were given. If the
matter is at this stage approached on the basis that they were
not, there is a serious question whether in relation to the
enquiry posed in s.43(1) of the Act, namely, "from what was it
that the death of the deceased resulted" the answer should not
be the atheroma which narrowed the artery. The meaning of that
question itself depends on the sense in which, in the context
of the Act, it is posed. And this particular aspect of the
problem is discussed in the observations of Kitto J. in
Ogden's Case hereafter referred to.
ll.
In Hume Steel Ltd. v. Peart (1947) 75 C.L.R. 242 at
p-256 Dixon J. (as he then was) said,
",.. it has never been doubted that disease may
amount to an injury. Thus in Innes or Grant v. G.
& G. Kynoch (1919) A.C. 765, at p.797 Lord
Wrenbury said, 'The man suffered personal injury,
for he contracted a disease and it resulted in his
death.' He had said the same in the Court of
Appeal in Martin v. Manchester Corporation (1912)
106 L.T. 741, at p.742. 'Contraction of a disease
is an injury; that injury may or may not be by
accident.' Again, in Walker v. Bairds and
Dalmellington Ltd. (1935) 153 L.T. 322, at p.326
Lord Tomlin, speaking of a chill to a workman
involving bronchopneumonia, said, 'the disease
which was the injury was in these circumstances
the result of accident.'"
And of course the definition of "injury" in s.5.of the Act
reflects these expressions. It proceeds on the basis that
disease may, in the ordinary meaning of the word be an injury,
but for the purposes of definition, it excludes from the
meaning of injury, an injury which is a disease. Accordingly,
if the thrombus be a disease it is excluded from references in
the Act to "injury" unless the contrary intention appears. A
contrary intention does appear in s.29, but only where the
employment contributes to the contraction or aggravation of
the disease.
It is necessary to enquire therefore as to whether
the thrombus, or perhaps the necrosis of the heart muscle was
a disease. If it were, the conclusion of the Commissioner
cannot be sustained. It was said by Latham C.J. in Peart's
Case (supra) at pp.252 - 253:-
12.
"Thus in England it has been held that if the
death of a workman is attributable solely to
disease, then it cannot be said to be due to
accident. In such a case there is nothing
unexpected. But the exclusion of such cases from
the category of accidental injury does not show
that they are to be excluded from the category of
injury.
There is a distinction, according to the common
use of language, between getting hurt and becoming
sick. The former would be described as an injury
and the latter would generally not be so
described. But it requires little analysis to
show that an injury may be either external or
internal. It appears to me to be difficult to
draw any satisfactory distinction between the
breaking of a limb and the breaking of an artery
or of the lining of an artery. One is as much an
injury to the body, that is, something which
involves a harmful effect on the body, as the
other. Each is a disturbance of the normal
physiological state which may produce physical
incapacity and suffering or death. Accordingly,
in my opinion the detachment of a piece of the
lining of the artery in the present case should be
held to be an injury. The death of the worker
resulted from that injury."
But it would seem that such "injuries" may be considered to be
diseases. Thus in Ogden Industries Pty. Ltd. v. Lucas (1967)
116 C.L.R. 537 the issue concerned an employee who suffered a
pulmonary oedema supervening upon an earlier coronary
occlusion. The relevant statutory definition of injury
Workers' Compensation (Amendment) Act 1965 (Victoria) was
mental or physical injury .-. including "(a) a disease
contracted ... in the course of employment ... and (b) the
recurrence, aggravation or acceleration" thereof. Barwick
c.J. said (p.557) "It is said that the deceased suffered a new
physical injury, namely the pulmonary oedema after the
13.
commencement of the amendment Act and of this injury he died
-.» As I read the agreed facts, the oedema was but a phase of
the aggravated or accelerated cardiac disease; that that is to
say it was the manifestation of the injury received in
February 1965, and indeed part of it, so much so that the
causation of death by that injury was an unbroken chain." In
the same case Windeyer J. said at p.592-593:-
"It is I consider a false idea of cause and
consequence - false that is for present purposes
- to isolate a particular pathological condition
or episode occurring in the course of the progress
of a disease; and then, because it is the
condition existing at the point of death, or is an
episode which immediately precedes death, to say
that from it death results. I have at other times
stated my views on this topic. As I have seen no
reason to change them I shall not enlarge upon the
matter here, merely refer to what I wrote in The
Commonwealth v. Butler (1958) 102 C.L.R. 465 at
pp.479, 480. Turning to the reference to "a
sudden physiological change for the worse": this
seems to have become an almost hallowed phrase in
workers' compensation law. But neither its
meaning nor its proper application has been made
clear by the manner of its use here. When the
words "injury by accident" were in the Act it
served a purpose for the interpretation of that
composite expression. But the word "accident"
does not appear now. As the Act now stands two
things at least can be said. One is that the
words "physiological change for the worse" do not
appear in the Act. The other is that they are not
a synonym for injury. A physiological change for
the worse means, I suppose, the occurrence of some
pathological condition, or the appearance of some
symptom or manifestion of a pathological
condition. It is not, I take it, a description
aptly applicable to anatomical injuries, such as
broken bones and cut fingers, and I imagine it
would not be aptly applied in functional disorders
of the mind - at all events according to the
present use of words and the present knowledge of
metabolism as affecting mental processes.
Whatever application it has must therefore be in
relation to the inclusion of diseases in the
14.
definition of injury. I have on other occasions
discussed some of the difficulties inherent in
these words "sudden physiological change" and I
shall not go over the same ground again : see
Darling Island Stevedoring and Lighterage Co. Ltd.
v. Hussey (1959) 102 C.L.R. 482, at p.520; The
Commonwealth v. Hornsby (1960) 103 C.L.R. 588, at
p.608.
The proposition that the oedema was an injury,
depends not on any descriptive phrase derived from
judgments in other cases, but on the definition of
injury in the amending Act, which had come into
operation on Ist July 1965, some days before the
oedema occurred. It seems to me that it is
impossible to bring this occurrence within that
definition. It was not in itself a disease
contracted in the course of employment. 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."
In Darling Island Stevedoring and Lighterage Co. Ltd. v.
Hussey (supra) at p.500 Fullagar J. spoke in accordance with
these views. In particular he disagreed with the view
expressed by Jordan C.J. in Kellaway v. Broken Hill South Ltd.
(1944) 44 S.R. (N.S.W.) 210 at p.216 concerning the situation
where there is an acceleration of a disease. In that case the
learned Chief Justice said:-
"If, however, whilst [the workman] is in the
course of his employment, the progress of the
disease is accelerated or its severity
accentuated, by the conditions of the employment,
and disability results, he is entitled to receive
compensation ... In [this] type of case the
disabling stage of the disease is contracted in
the course of the employment and its occurrence is
contributed to by the employment."
The statutory provision in Kellaway's Case did not define
s}
15.
injury or disease as including aggravation or acceleration
thereof. But the significance of what was said is that the
learned Chief Justice treated "the disabling stage of the
disease" as a new disease. In the Darling Island Case (supra)
pp-505 and 506 Pullagar J. said:-
"... it is established that cases of the death of
a worker from disease fall within that part of the
statutory definition of "injury" which deals with
diseases, and compensation is not recoverable
unless the disease possesses the characteristics
prescribed by that definition. It follows that
the dependants of a worker who has died from a
disease are not entitled to compensation unless
the disease was contracted in the course of his
employment or of a periodic journey, and the
employment or the journey was a contributing
factor to the contracting of it ...
If it were permissible to ignore that part of the
definition of "injury" which deals with diseases,
it would be permissible to say that the
physiological event of the blocking of an artery,
if some exertion on the part of the worker had
contributed to it, was within an artificial but
established meaning of the term "injury". This
was done in Peart's Case (1947) 47 S.R. (N.S.W.)
384. But since Slazengers' Case [1951] A.c. 13;
(1950) 51 S.R. (N.S.W.) 1 it ais no longer
permissible to reason in this way, and Peart's
Case must, in my opinion, be regarded as
overruled. A case where the immediate cause of
death is a coronary occlusion is unquestionably a
death from disease.
Cases of coronary occlusion may perhaps be
regarded as possessing peculiar features. But in
those cases it is wrong, in my opinion, to regard
the coronary occlusion as itself the relevant
"disease". The disease is the atheroma or
sclerosis or other morbid cardiac or vascular
condition which culminated in the occlusion. The
view expressed in the second proposition of Jordan
C.J. can only be reached by saying that there is a
"contracting" of a disease within the meaning of
the definition if the work (or the journey) has
16.
accelerated, or contributed to, the reaching of
the final stage of a pre-existing "non-employment"
disease. This involves much more than the
adoption of a somewhat artifical extension of the
ordinary conception of "contracting" in relation
to a disease. It seems to me to involve an actual
misuse of language. One normally speaks of a
patient as contracting a particular disease - not
of his contracting an infinite series of stages of
a particular disease. The extension involved is
very much more drastic than that which is involved
in saying that to suffer the blocking of an artery
is to suffer an injury, and to my mind it is
inadmissible."
It may be that in respect of each stage of a disease it is
possible to say that from it, subsequent stages thereof, and
ultimately death itself, resulted. In such cases there is no
more logic in choosing any one or any combination of those
sequelae in preference to the atheroma itself. And the
respondent cannot show that death was a result of injury
excluding the atheroma. If death was the result of all that
occurred including the atheroma it is difficult to find a
reason for excluding the atheroma as an event from which death
resulted. All this suggests that the attempt to link the
death exclusively with any one of the events or combination of
events following the atheroma, is unsound. And it is in this
connection that the foregoing judicial comments are
significant. They indicate that an event which is but a step
in the progress of a disease is a disease. It is also an
injury in the ordinary sense of that word but if it is an
injury which is a disease then it is only an injury for the
purposes of s.27(1) of the Act if the employment contributed
to it. Of course under the present definition of disease a
om
17.
work contributed aggravation or acceleration of a disease is
an injury within the meaning of s.27(1). This conclusion
would seem to be supported by the decision in The Commonwealth
v. Butler (1958) 102 C.L.R. 465 at p.479 where it was pointed
out that to give an affirmative answer to the question whether
a disability "resulted from" a particular event it is not
sufficient that that event may have "contributed to" the
disability Windeyer J. said:-
"In the search for some grounds for isolating a
particular event from the totality of
circumstances preceding a later event, various
adjectives such as "direct", "proximate",
"decisive", "immediate", "effective" and "real,"
have been pressed into service to qualify "cause".
From these there is an easy drift to such term as
"material contributing factor". But such formulae
do not really dispel the difficulty; and they
become especially unsatisfying when death is the
alleged consequential event. As death sooner or
later is inevitable for every man, it is
impossible to ask the question - which in relation
to other matters may be helpful, although not
decisive - namely, whether the alleged consequence
would necessarily occur at all without the
happening of the earlier event to which it is
sought to attribute it. Moreover, in relation to
death, words such as "proximate" and "direct", as
tests for choosing some one link in a chain of
causation, introduce a special difficulty. For at
the point of death ultimate cause and consequence
tend to become indistinguishable. It is, for
example, easy to say that a man's death resulted
from a gunshot wound. In such a case a criminal
jury might properly say that death was the result
of a felonious act; yet a physician would equaily
properly say that the wound caused loss of blood,
and that the death resulted from loss of blood.
And the inquiry could be pushed a stage further by
saying that the loss of blood operated to produce
a fatal syncope. It is for this reason that the
manner or method by which some particular injury
actually operates in relation to the circulatory,
respiratory or nervous system may for a physician
constitute the proximate cause of death. For
18.
example, in Taylor on Medical Jurisprudence
asphyxia is spoken of as the "actual disease" of
death by strangulation; and there are in that work
many other illustrations of physiological
mechanisms, which brought into operation by
various events, end in death, being treated as its
cause.
A coronary occlusion results in death when it
causes such a degree of infarction that the heart
ceases to function. Is the occlusion, the
infarction or the cessation of the heart-beat the
proximate cause of death? In the last analysis it
is death itself that slits the thin-spun life.
Yet the application of the statute to the facts of
this or any other case does not depend upon
metaphysical speculation or the actual
physiological circumstances accompanying death.
It depends upon asking only whether death resulted
from the injury (in this case from the occlusion
of September 1955) in the ordinary acceptance of
those words. The question obviously involves an
. idea of causal sequence. But it tends to
misconception if the question that the Act
postulates, namely "did death result from the
occlusion", be inverted to be "was the occlusion
the cause of death". The inversion is merely
Linguistic; yet in its inverted form the question
somehow seems more prone to attract to its answer
expressions such as "contributing factor", which
are, it seems to me, only attempts to define or
explain an abstract idea by phrases in which the
same idea lurks. The words of the statute are
more easily applied without exegetical glosses."
Finally it is necessary to consider the observations of Kitto
J. in Ogden's Case (supra) at pp.569, 570, namely:-
"These considerations seem to me to entitle the
respondent to succeed, provided that the crucial
step be taken of holding that the Act intends a
physical disorder which comes into existence
merely as a stage in the development of a larger
disorder to be considered separately for the
purpose of applying the definition of "disease"
and the provision of ss.5(1) and 9({1). For my
part, though I confess to having wavered on the
point, I think that to take that step would be to
introduce into the scheme of the Act a conception
19.
so artificial and so removed from the common sense
of the matter that compelling words should be
required before accepting it. I find no such
compelling words. In the present case the mutual
admissions are not fairly susceptible, I think, of
any other meaning than that what was caused to the
worker in his employment was an aggravation and
acceleration of the single disorder of coronary
artery disease and myocardial degeneration. That
was a progressive disorder, and of course the
aggravation or acceleration of it was an
aggravation or acceleration of every successive
manifestation of it; but there was no aggravation
or acceleration of oedema save as part of the
progressive condition; and the operation of the
Act, according to what I think is the sounder
construction, is exhausted when its provisions
have been applied in respect of the disease
consisting of the progressive disorder as a
whole."
I would respectfully accept what his Honour said as quite
critical in this case. I would link these observations with
those of Windeyer J. quoted above. The enquiry posed by s.41
and other sections of the Act relates to disabilities
resulting from injuries or diseases in the context of a
health-employment relationship between parties. When, with
respect to an event for example death, the question is posed
whether that event resulted from a particular bodily
occurrence, the question is not really answered by isolating
one event in a chain of causation, albeit itself constituting
an injury, and to say the event resulted from that injury.
Really, it did not, if that injury was itself the result of a
previous injury or the progress of an existing disease. In
the sense relevant to the context in which the question is
asked the only injury which resulted in the disability was
that which transformed the employee's body from a healthy body
20.
able to work to one in which by reason of development of that
initial injury or disease the ultimate disability would or did
result. The intermediate bodily "injuries" were not those
from which the break in employment resulted. The health-
employment nexus which is the subject matter of the Act sets
the environment in which the questions posed in ss.43, 45 and
other similar sections speak. In that environment the answer,
to the relevant question, cannot as a matter of logic exclude
his atheroma.
Of course once identified as aggravations of a
previously existing disease each of the thrombus, the
occlusion and the myociardial necrosis, operates as an injury
in its own right, so to speak, but only if the aqqravation was
contributed to by the employment. The same is true of the
disease itself. It is my view that had the Commissioner
approached the problem on the basis that the thrombus, the
occlusion or the myocardial necrosis, were incidents of
aggravation of a pre-existing coronary artery disease and that
death resulted from such aagravation of the disease such
approach would have been supported by the evidence. On that
basis the question would have arisen as to whether any
employment of the deceased by the Commonwealth was a
contributing factor to the aggravation of the disease. The
Commissioner did not deal with this question. It is for him
to decide on reconsideration pursuant to the order of the
Court. If he had dealt with the question at the hearing and
21.
had answered it in the affirmative there was evidence before
him on which such a finding might have been made. Upon such a
finding the aggravation of the disease would constitute an
injury arising out of the employment of the deceased within
the meaning of s.27{1) of the Act.
Accordingly the appeal should be allowed and in
accordance with s.95 of the Act the matter should be remitted
to the Workers' Compensation Commission of New South Wales for
reconsideration of the matter on the basis that the thrombus,
the occlusion and the necrosis constituted part of a disease,
namely coronary artery disease and require consideration in
the context of s.29 of the Act. I would reserve the question
of costs.
Having regard to the nature of the order in this
appeal which requires reconsideration of the issues with
particular reference to s.29 of the Act it is unnecessary to
make any order on the cross-appeals.
The Court should therefore order:
1. That the appeal be upheld and the decision of the
Workers' Compensation Commission of New South Wales
of 7 May 1982 be set aside.
2. That the application be remitted to the learned
22.
Commissioner for decision of the respondent's claim
based upon s.29 of the Act.
That there be no order on cross-appeal.
That costs be reserved.
AC ra BOO
1D June (9£5
IN THE FEDERAL COURT OF AUS'TRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
No. G. 94 of 1982
ON APPEAT FROM THE WORKERS
COMPENSATION COMMISSION OF
NEW SOUTH WALES
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
Applicant
AND:
REGINA BETON WHILLOCK
Respondent
CORAM: SMITHERS, ST. JOHN AND NORTHROP, JJ.
DATE: Friday 24 June 1983
REASONS FOR JUDGMENT
ST. JOHN, J.:
I have had the advantage of reading the judgment
prepared by Smithers, J. I agree with the conclusions
therein and the orders proposed to be made.
22/2
mmeernqeene Ae
My approach to decided cases in the field of
workers' compensation is that decisions on the
interpretation of Acts other than the one under
scrutiny in this appeal are instructive as to the
reasoning process but, where the wording differs,
are not decisive in the resolution of the particular
problem of interpretation being faced here.
The facts and the relevant parts of the Act
are fully set out in the judgment of my brother
Smithers. Except for section 29, the definition of
"injury" draws a clear distinction between "injury"
within the meaning of the Act,and the harm or detriment
to the body or mind caused by disease. In its ordinary
meaning, "injury" is harm or detriment however caused.
When the learned Commissioner described the
formation of, and the consequences of, the thrombus
as a "pathological injury", he was expressing a
contradiction in terms, having regard to the definition
of "injury" in the Act. "Pathological" means pertaining
to disease.
The matter should be remitted for consideration
by the Commissioner of the respondent's claim based
++2/3
RE ET EG PEER FE PRT A REE TARR TP ATP AN RO ET ERR NE nt We RR
ant
ey
:
i
upon section 29 of the Act. The matters raised
in support of the cross-appeal are adequately dealt
with by such remission.
The orders I would make are:-
1. Appeal upheld
2. Application remitted to the learned Commissioner
for decision on the respondent's claim based
upon section 29 of the Act.
3. No order on cross-appeal.
4, Costs reserved.
his and the Two 'e®)
pie ere a true copy of thse
Reasons for Judosent kercin of his Honour
'
+ ort
Q
oO
K
co
re
My
;
fay
yy
a
wok
Associate
neat tener aren
parte ares nt Neer SF me renee:
a a
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSW No. G.94 of 1982
a ed
GENERAL DIVISION
ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION OF NEW
SOUTH WALES
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA Appellant
and
REGINA BETON WHILLOCK Respondent
NORTHROP J. REASONS FOR JUDGMENT 24JUNE 1983
The appellant, the Commonwealth of Australia,
appeals from an order of the Workers' Compensation Commission
of New South Wales, "the Commission", constituted by a judqe
of a prescribed court under the Compensation 'Commonwealth
Government Employees) Act 1971, "the 197] Act". By its
order, the Commission set aside a determination dated 7 May
1980 of a delegate of the Commissioner for Employees'
Compensation and remitted the matter to a deleaate with the
expression of opinion contained in its reasons for judament.
By the determination dated 7 May 19°07, the celeqate had
disallowed a claim by the resnondent, Reqina Beton Whillock,
for compensation in respect of the death of her husband,
Robert John Whillock, "the deceased". The appeal is brouaht
on a question of law under s.95 of the 1971 Act. Under
sub-section 24(1) of the Federal Court of Australia Act 1976,
the appeal is within the avpellate jurisdiction of the
Federal Court and thus is heard by a Full Court; s.25.
The deceased was a Chief Petty Officer, Medical, in
the Royal Australian Navy and thus was an employee under the
1971 Act. He died on 3 May 1977. The respondent's claim for
compensation under the Act was disallowed by the deleqate who
determined that the death of the deceased was not the result
of personal injury arising out of or in the course of his
employment, nor was it the result of the contraction of
disease or the aggravation, acceleration or recurrence of a
pre-existing or underlying disease to which his employment
was a contributing factor.
The Commission, in its reasons for judqment,
expressed the opinion that personal injury arising in the
course of his employment by the Commonwealth was caused to
the deceased and that that injury resulted in the death of
the deceased; sub-sections 27/1) and 43/1.) of the 1971 Act.
On that opinion, the respondent was entitled to receive
compensation under the Act. Accordinaly, the Commission did
not consider whether s.29 of the Act had any application to
the facts of the case.
The appeal to this Court is brought
"on a question
of law only"; sub-section °5(1) of the 1971 Act. The
questions of law as stated in the notice of appeal, but
altered to comply with the terminology used in these reasons,
are set out:
"1. On the Commission's findings of fact did
the Commission err in law in finding that
the deceased suffered 'personal injury'
within the meaning of sub-section
of the 1971 Act?
27(1)
2. Was the Commission bound by the decisions
in Slazengers (Australia' Pty. Limited v.
Burnett !]951! AC 13 and The Commonwealth
v. Ockenden (1958) 99 CER 215 to find
that the deceased's death did not result
from personal injury in the course of his
employment?
3. For the purposes of finding whether the
deceased suffered 'personal
injury'
within the meaning of sub-section 27/(1'
of the 1971 Act was it sufficient for the
Respondent to establish merely a temporal
connection between the employment of the
deceased and his death?
4. Where the death of an employee results
from a disease which was not contracted
aggravated accelerated or a recurrence of
a disease to which any employment of the
employee was a contributina factor can
death ve an 'injqury' within sub-section
27(1) of the 1971 Act?"
Question 2 should be read as if the word
after the word "injury".
"arising"
apneared
The appellant has not challenged the findinas of
fact made by the Commission. Senior counsel for the
appellant relied upon two main submissions, namely:
l. that the deceased did not suffer personal injury within
the meaning of s.27(1) of the 1971 Act; and
2. that the deceased's death did not result from personal
injury arising in the course of his employment.
The second submission was based on the second question of law
set out in the notice of appeal. That question and the
second submission appear to confuse the provisions of
sub-section 27(1) and sub-section 43(1) of the 1971 Act.
Those two sub-sections are set out:
"27.(1) If personal injury arising out of or
in the course of the employment of an employee
by the Commonwealth is caused to the employee,
the Commonwealth is, subject to this Act,
liable to pay compensation in respect of that
injury in accordance with this Act."
"43. (1) Where an initury to an employee
results in the death of the employee, the
succeeding provisions of this section have
effect."
During the hearina of the appeal, the second
question of law and the second submission were treated as
raising a third issue, namely whether, assumina pyersonal
injury had been caused to the deceased, it was personal
injury arising out of or in the course of the employment of
the deceased: sub-section 27(1). The third question of law
set out in the notice of appeal appears to be directed to the
third issue. The Commission had expressed the opinion that
personal injury arising out of the employment of the deceased
was not caused to the deceased. Accordingly, the third issue
before this Court as raised by the notice of appeal is
whether, if the first question is answered in the
affirmative, the personal injury so caused to the deceased
arose in the course of his employment by the Commonwealth.
At the time of his death, the deceased was serving
in H.M.A.S. "Stalwart". For a number of years he had been
suffering from arterio-sclerosis, a disease of the coronary
arteries resulting in a roudhening and thickeninq of the
interior lining of the arteries and a loss of elasticity of
the arteries. Some years before his death, the deceased had
suffered a coronary infarct. Thereafter the deceased was
suffering from necrosis or death of some part of his heart
muscle. The reasons of the Commission contained the
following passages relevant to the first question:
"A post-mortem examination was conducted and
there seems to be no dispute that the cause of
his death was a myocardial infarction caused
by an occlusion of his richt cororary artery
by a thrombus which the examiner thoudht to he
of recent oriqin.
The post-mortem examination revealed the
presence of a recent thrombus which occluded
his right coronary artery. That occlusion
prevented the flow of blood to his heart
muscle and caused its necrosis. There was a
pathological change brought about to a vital
organ of his body. That event, in my view,
constituted an injury. It may well be said
that the thrombus was caused hy a reaction on
his blood passing throuqh deqenerate blood
vessels which were diseased. That that is so,
in my view, is probably correct. That is to
say, he suffered from cardio-vascular disease
but nevertheless the effect of the thrombus
forming and causing an occlusion brought about
physical consequences to his myocardium and
damaged it. That, as I have said, in my view
constitutes an injury."
The appellant does not dispute that there was
evidence before the Commission from which the Commission
could make those findings, but contends that as a matter of
law those findings cannot be used to support an opinion that
personal injury was caused to the deceased, in this case the
necrosis or death of heart muscle.
In the 1971 Act, by s.5, unless the contrary
intention appears, the word "injury" means:
jury
"... any physical or mental injury and
includes the aagravation, acceleration or
recurrence of any physical or mental] injury
but, subject to section 29, does not include a
disease or the aagravation, acceleration or
recurrence of a disease:"
and the word "disease":
",.e. uncludes any physical or mental ailment,
disorder, defect or morbid condition, whether
of sudden onset or gradual development:"
To aive effect to those provisions, the extended meaning to
be given to the word "injury" is:
",e any physical or mental injury and
includes the aggravation, acceleration or
recurrence of any physical or mental injury
but, subject to s.?9, does not include a
disease, including any physical or mental
ailment, disorder, defect or morbid condition,
whether of sudden onset or qradual
development, or the aqaqravation, acceleration
or recurrence of a disease, including any
physical or mental ailment, disorder, defect
er morbid condition, whether of sudden onset
or qradual development ..."
These definitions are not helpful. The word
"injury" is defined by reference to the word "injury" while
the word "disease" 1s given an extended meanina, there being
no definitive meaning. In both cases it is necessary to
determine what meaning is to be aiven to the words "injury"
and "disease" appearing in the 1971 Act.
Great care must be exercised when considering
authorities based upon defined statutory provisions. In
other legislation, relevant definitions of those words have
from time to time been varied and in any case are defined
in terms different from those contained in the 1°71] Act.
Where the word "injurv" has heen definedA to include a
disease, the word "disease" normally has been defined to mean
an employment-related disease only and thus has had a
restrictive effect on the meaning to be qiven to the word
"injury". Authorities based on other leqislation therefore
may be misleading. A reference to the Commonwealth
Employees' Compensation Act 1930, "the 1930 Act", Illustrates
the problem. In the 1930 Act the word "disease" was defined
to include:
",.. any physical or mental ailment, disorder,
defect or morbid condition, whether of sudden
or gradual development, and also includes the
aggravation, acceleration or recurrence of a
pre-existing disease;"
The word "injury" was defined to mean:
«es any physical or mental iniury and
includes the aagravation, acceleration or
recurrence of a pre-existing injury:"
It is noted that disease was not excluded from the meaning
to be given to the word "injury". This was unnecessary
because of the nature of the liability to pay compensation
imposed upon the Commonwealth by the 1930 Act. Section 9 of
the 1930 Act imposed a liability on the Commonwealth to pay
compensation if personal injury by accident arisina out of or
in the course of his employment by the Commonwealth was
caused to an employee. Section 19 of the 193M Act imposed a
liability on the Commonwealth to pay compensation where the
employee was sufferina from a disease, or the death of an
- Oo =
employee was caused by a disease, and the disease was due to
the nature of the employment in which the employee was
engaged by the Commonwealth.
The 1971 Act came into operation in September 1971
and replaced the 1930 Act. The 1971 Act altered
substantially the nature of the liability previously imposed
on the Commonwealth by s.10 of the 1930 Act. Under the 1971
Act the liability to pay compensation for an injury is
imposed by sub-section 27(1). This has been set out. The
former separate liability to pay compensation for death or
incapacity resulting from a disease as imposed by s.10 of the
1930 Act has not been continued. Under the 1971 Act, where
the conditions prescribed by s.29 are satisfied, the
contraction of the disease or the aggravation, acceleration
or recurrence of the disease "shall be deemed to be a
personal injury to the employee arising out of the employment
of the employee by the Commonwealth"; paragraph 29/2)(f).
Similarly, great care must be taken in considering
earlier authorities based on the 1939 Act. Many of them were
directed to issues of whether an injury to an employee
resulted in the death of the employee 'see now s.43/1\ of the
1971 Act) or total or partial siuncapacity {see now
sub-sections 451) and 46/1) of the 1971 Act) or were in
reality a non work-related disease resultina in the death or
incapacity of the emplovee. [In some respects, the provisions
of the 1971 Act are less stringent than those of the 1930
Act; see Johnston v. Commonwealth of Australia (1982) 43
A.L.R. 559.
In its normal meaning the word "injury" is apt to
describe a discrete event occurring in the course of the
progression of a disease. This view is supported by
reference to authority. In Hume Steel Ltd. v. Peart (1947)
75 C.L.R. 242, the High Court had to consider this type of
question. That was a journey case under New South Wales'
legislation. While journeying to work, the respondent's
husband suffered a coronary occlusion as a result of which he
died on the same day. The extended definition of "injury" as
contained in the relevant legislation to include a
work-related disease had no application where the word
"injury" was used in a journey case. Post-mortem examination
had disclosed that the diseased aorta and coronary arteries
of the deceased were in an advanced state of atheroma
farterio-sclerosis) and the coronary artery was brittle. One
occlusion was found in the coronary artery. The occlusion
was due to a small piece of lining of the artery having
loosened and blocked the artery. The Court held that the
occlusion constituted an injury within the ordinary meaning
of that word.
In the New South Wales' legislation, as in the 1930
Act and the 1971 Act, death was not treated as being an
injury, but as something which may result from an injury.
After discussing the meaning attributed to the phrase
"personal injury by accident", Latham C.J. said at pp.252-3:
"The cases in which the question was whether
the contraction or aggravation of a disease
amounted to a personal injury by accident or
whether a disease arose out of 'or in the
course of the employment ail assume that a
disease is an injury. What are described as
idiopathic diseases are outside the Enalish
Act (Brintons Ltd. v. Turvey (1905) A.C. 230).
The plaintiff's atheromatous condition,
according to the findings of the Commission,
was such a disease - it was a morbid condition
of which the cause was unknown. But these
diseases are excluded from the English Act,
not because they are not injuries, but because
the onset and development of such a disease
cannot be brought within the conception of the
word 'accident' as defined in Fenton v. Jd.
Thorley & Co. Ltd. (1903) A.c.> at p.448.
Thus in England it has heen held that if the
death of a workman is attributable solely to
disease, then it cannot be said to be due to
accident. In such a case there is nothing
unexpected. But the exclusion of such cases
from the category of accidental injury does
not show that they are to be excluded from the
category of injury.
There is a distinction, according to the
common use of language, between getting hurt
and becoming sick. The former would be
described as an injury and the latter would
generally not be so described. But it
requires little analysis to show that an
injury may be either external or internal. It
appears to me to ve difficult to draw any
satisfactory distinction between the breaking
of a limb and the bvreakina of an artery or of
the lining of an artery. One is as much an
injury to the body, that 1s, somethina which
involves a harmful effect on the body, as the
other. Each is a disturbance of the normal
physiological state which may oroeuce ohysical
incapacity and suffering or death.
Accordingly, in my opinion the detachment of a
piece of the lining of the artery in the
present case should be held to be an injury.
The death of the worker resulted from that
injury."
At p.256-7 Dixon J. said:
"What kinds of physical harm amount to injury
or an injury is a matter with which the
definition does not deal, except to include a
disease contracted in the course of the
employment, if the employment is a
contributing factor.
The question here is whether the coronary
ecclusion can amount to such an injury as is
contemplated by the words of par. (b).
In jurisdictions where the expression is
'personal injury by accident' the qualifying
force of the words 'by accident' has formed
the chief consideration in the discussion of
the place of disease in the legislation. But
it has never been doubted that disease may
amount to an injury. Thus in Innes or Grant
ve G. & G. Kynoch (1919) A.C. 765, at p.797
Lord Wrenbury said, 'The man suffered personal
injury, for he contracted a disease and it
resulted in his death.' He had said the same
in the Court of Appeal in Martin v. Manchester
Corporation (1912! 106 L.T. 741, at 0.742,
"Contraction of a disease is an injury; that
injury may or may not be by accident.' Aqain,
in Walker v. Bairds and Dalmellinaton Ltd.
(1935) 153 L.T. 322, at p.%?26 Lord Tomlin,
speaking of a chill to a workman involving
pronchopneumonia, said, 'the disease which was
the injury was in these circumstances the
result of accident.'
In Fife Coal Co. Ltd. v. Youna /1940. A.C.
479, at pp.488, 489 Lord Atkin Said:- 'Tt 1s
necessary to emphasize the distinction between
'accident' and 'injury', which in some cases
tend to be confused ... A man suffers from
rupture, an aneurism bursts, the muscular
action of the heart fails, while the man 1s
doing bis ordinary work, turning 43 wheel or 4
§
screw, or lifting his hand. In such cases it
is hardly possible to distinguish in time
between 'accident' and 'injury':; the rupture
which is accident is at the same time injury
from which follows at once or after a lapse of
time death or incapacity. But the distinction
between the two must be observed."
In the 1971 Act, the word ""injury", subject to
s.29, is to be read as not including a disease or the
aggravation, acceleration or recurrence of a disease. In its
ordinary meaning the word "disease" includes a condition of
the body or some part or orqan of the body in which its
functions are disturbed or damaged. A person suffering from
a disease is said to be ill or sick. A disease can be
described as a physical or mental ailment or a morbid
condition. A disease may progress becoming more severe over
a period of time. In the present case, the deceased's
arterio-sclerosis of his coronary arteries was a disease. It
was a progressive disease. An occlusion of a coronary artery
resulting from that disease is not unexpected, although an
occlusion does not necessarily occur in every case. A person
suffering from arterio-sclerosis may suffer symptoms without
an occlusion occurring, for example the symptom of chest pain
on exertion, commonly called angina. The necrosis or death
of heart muscle following the occlusion 1s not itself a
disease, but may result from an occlusion which itself may
result from the disease. Similarly, neither the occlusion
nor the death need be an agaravation, acceleration or
recurrence of the disease, hut each may constitute a discrete
event occurring in the course of the disease, but
nevertheless is separate and distinct from the disease. The
occlusion followed by the necrosis or death of heart muscle
ean each in truth be described as an injury. In the present
case the fundamental issue raised by the first question in
the notice of appeal can be answered adequately only when
considering the issue raised by the second question, but in
answer to the first question, it cannot be said that on the
Commission's finding of fact, the Commission erred in law in
finding that the deceased suffered personal injury, namely
necrosis or death of heart muscle, within the meaning of
sub-section 27(1) of the 1971 Act.
The expressions of opinion in Ogden Industries Pty.
Ltd. v.- Lucas (1967) 116 C.L.R. 537 do not constrain me to
change my views as expressed above. In Lucas' case the High
Court considered the application of the Victorian leqislation
as it had been amended in 1965 by Act No. 7292. One of the
issues considered was whether, on a statement of agreed
x
facts, pulmonary oedema was an "injury". Following the 1965
amendment, the word "injury" was defined to mean:
eee any physical or mental injury, and
without limitina the qenerality of the
foregoing, includes - (a' a Aisease contracted
by a worker in the course of his employment
whether at or away from 41s ovolace of
employment and to which the employment was a
contributing factor; and (hm) the recurrence
agaravation or acceleration of any
pre-existing injury or disease where the
employment was a contributing factor to such
recurrence aggravation or acceleration ..."
The matter had been determined by the the Workers'
Compensation Board on a statement of agreed facts. The facts
stated were obscure and aqave rise to difficulties of
construction. At p.569, Kitto J. described the relevant part
of the statement of facts as a "somewhat murky piece of
jargon". At p.567 His Honour said:
"The question in the case stated is whether it
was open to the Workers Compensation Board on
the material before it to award the present
respondent the sum which is appropriate if the
amendment by Act No. 7292 of cl. lI(a){i) of
the clauses appended to s.9 applies in this
case. Consequently what we have to decide is
not whether the pulmonary oedema was an
'injury', but whether the Board, on the
material before it, could properly find that
it was. The material, unhappily, consists
only of an agreed statement of facts. I say
unhappily because the Board was presented with
the artificial and highly unsatisfactory task
of endeavouring to construe a written document
instead of getting at the facts for itself,
and that in a case which was eminently one for
careful investigation with the direct
assistance of medical witnesses."
At pp.591-2 Windeyer J. said:
"The question then becomes, Was the pulmonary
oedema an 'injury' within the meaning of the
Act; and if so did the death result from, or
was it materially contributed to by this
'injury'? All that we have to qo on is what
appears in the 'statement of aareed facts',
where it is stated that: 'Death resulted from
the agaravated and accelerated coronary artery
disease, the aggravated and accelerated
myocardial degeneration and the coronary
occlusions and myocardial infarctions and
pulmonary oedema and each of them taken
separately ...'. This is an unhappily
indefinite way of stating cause and
consequence. Doubtless the philosopher, the
physician, and the lawyer look at and speak of
cause and consequence in very different ways.
But, allowing for that, I find great
difficulty in arriving at any conclusion
satisfying to my mind from language such as
this; and it was what the Board had before
it. I can only say that the statement of
facts read as a whole, and that sentence in
particular, lead me to the conclusion that the
worker suffered from a pathological condition
of the heart, which got progressively worse,
that its worsening was in the ordinary course
ef the disase, for him, that he did not
recover but died from the disease, that the
pathological condition which was a product of
the progress of the disease and the immediate
cause of death was a pulmonary oedema."
The High Court held that the pulmonary oedema was not an
injury under the Victorian legislation.
In the present case, the Commission had the benefit
of the direct assistance of medical witnesses. From the
evidence given by those witnesses and from what was found on
post-mortem examination, the Commission found the facts set
out in its reasons. There was evidence to support those
findings. In these circumstances it is not for this Court to
apply what it considers to be appropriate medical theories
and in substance to find facts not based upon evidence before
the Commission. In light of the difficulties in interpreting
the statement of aareed? facts in Lucas' case, it is not for
this Court to draw an analogy between the facts in that case
and the facts in this case.
The second question raises the issue of whether, on
the facts found by the Commission, the injury caused to the
deceased resulted in his death. To understand this issue, it
is important to remember the structure of the 1971 Act.
Sub-section 27{1) imposes a liability on the Commonwealth to
pay compensation in accordance with the 1971 Act where
"personal injury arising out of or in the course of the
employment of an employee by the Commonwealth is caused to
the employee". Where such an injury occurs, the nature and
amount of compensation to be paid by the Commonwealth is
determined by reference to other sections of the 1971 Act.
For present purposes, s.43 is relevant. In sub-section
43(1), the word "injury" cannot mean any injury as defined in
sub-section 5(1) of the 1971 Act caused to an employee of the
Commonwealth. On its proper construction, the word "injury"
must mean personal injury caused to the employee and arising
out of or in the course of his employment by the Commonwealth
including a deemed injury under s.29. This follows because
sub-section 27({1) imposes the liability on the Commonwealth,
while for present purposes sub-section 43(1) quantifies the
amount of compensation to be paid where death of the employee
results from an injury arising out of or in the course of his
employment by the Commonwealth. Accordingly, in considering
the issue raised by Question 2, it will be assumed that the
injury caused to the deceased was an injury which arose out
of or in the course of his employment by the Commonwealth.
Question 2 raises a question of causation. Can it
be said that in truth the necrosis or death of heart muscle
caused to the deceased resulted in his death? Or should it
be said that in truth the disease of arterio-sclerosis from
which the deceased was suffering resulted in his death?
Question 2 refers to two authorities. In
Slazengers (Australia) Pty. Ltd. v. Burnett, the Privy
Council had to consider the New South Wales legislation. The
facts of that case were remarkably similar to those in Hume
Steel Pty. Ltd. v. Peart, supra. The Privy Council held that
in the relevant section of the New South Wales Act the word
"injury" should be given the defined meaning as including an
employment-related disease but excluding a non
employment-related disease. To that extent, the Privy
Council disagreed with some of the opinions expressed in
Peart's case and as a result the Privy Council did not need
to consider the opinions of Latham C.J. and Dixon J. set out
earlier in these reasons in relation to the meaning of the
word "injury". In Burnett's case a fact found was that the
coronary occlusion was solely due to autogenous * uses and
had no causal connection whatsoever with the journey. At
p-19, Lord Simonds, in deliverina the advice of the Privy
Council, said:
"The facts in Peart's case in most respects
bore a remarkable resemblance to those of the
case under appeal, the points of difference
being, first, that in Peart's case the actual
cause of the coronary occlusion was detected,
namely, the fact that a small piece of the
lining of the artery had been loosened and had
blocked the artery, and, secondly, that this
physiological change had taken place as the
result of a physical effort made durina the
journey, namely, that of pedalling a bicycle
uphill. These points of difference, which at
least established a causal connexion between
the injury and the journey, were regarded as
material by some at least of the learned
judges of the High Court who took part in the
decision of Peart''s case. But it will in any
case be necessary to examine the reasoning
which led to that decision. Before doing so,
their Lordships must once more turn to the Act
itself."
The Privy Council considered the wording of the Act
and came to a conclusion different from that of the High
Court. The Privy Council did not need to consider the
opinions of the High Court Justices relating to the meaning
of the word "injury" apart from the extended definition. In
my opinion, Peart's case is authority for the propositions
stated earlier in these reasons. In my opinion the op2nions
expressed in Burnett's case do not assist in the resolution
of Question 2.
In Commonwealth v. Ockenden (19528) 99 C.L.R. 215,
the High Court had under consideration s.9 of the 1930 Act
and in particular the words "personal injury by accident
arising out of or in the course of his employment" (emobasis
added). Ockenden's case involved a claim for compensation in
which Ockenden claimed that he was suffering a "rheumatic
heart", a condition which he claimed had developed during his
term of service in the Royal Australian Navy. It was not
contended in the High Court that a claim could be brought
under s.10 of the 1930 Act based on a work-related disease.
The claimant was not incapacitated by his condition but
claimed medical expenses only. A County Court Judge held
that the facts established that Ockenden had sustained
personal injury by accident arising out of or in the course
of his employment by the Commonwealth and that an order be
made that the Commonwealth pay his medical expenses. The
question before the High Court was whether, upon the
evidence, such a conclusion could or should have been
reached. In a joint judgment, the Court, Dixon C.J.,
Fullagar and Taylor JJ. considered at lenath a number of
relevant authorities commencing with James Patrick & Co. Pty.
Ltd. v. Sharpe "19551 A.C. 1, a decision relating to the
Victorian legislation, and concluding with Burnett's case,
supra. At pp.223-4 Their Honours said:
"The acceptance in Sharpe's Case of the view
that in Victoria 1t 1s now no lonaer necessary
to find an external event of some kind
associated with a sudden physiological chance
rested, essentially, of course, upon the
special provisions of the amendment introduced
in the Workers' Compensation Acts of that
State by the amending Act of 1944. But the
decision does not justify accentance of the
same view in cases where 1% must he
established that the so-calle? injury by
accident arose in the course of the worker's
- 21 -
employment. In such cases the traditional
view must still prevail that a physiological
change, sudden or otherwise, 1s not an injury
by accident arising in the course of the
employment unless it is associated with some
incident of the employment. Indeed to hold
otherwise would be to strip the word
'accident' of all meaning by treating as such
any distinct physiological change which is
nothing more than the sole and inevitable
result of the ravages of a disease. Such
changes, even if they can be called accidents,
occur not in the course of the employment,
but, it may, perhaps be said, in the course of
the disease. Accordingly, for the purposes of
the Commonwealth Employees' Compensation Act
it is Still true that a worker does not suffer
personal injury by accident arising in the
course of his employment where he suffers, at
his place of employment, a sudden and distinct
physiological change as the product of the
inevitable development of a progressive
disease from which he is suffering and where
such change can in no way be attributable to
or associated with some incident of his
employment."
Three things must be said about Ockenden's case.
First, the Commonwealth Employees' Compensation Act referred
to in the passage quoted is the 1930 Act. Secondly, the
special provisions of the amendment introduced into the
Workers' Compensation Act of the State of Victoria by the
amending Act of 1946 deleted the word "accident" from the
relevant sections so that thereafter the relevant provision
referred to personal injury only as in the 1971 Act and not
"personal injury by accident" as appeared in the 1930 Act.
Thirdly, at p.224 the Court expressed the view that there was
a grave doubt whether Ockenden had suffered at any time any
sudden and distinct physiological change. In my opinion,
Ockenden's case does not detract from the opinions expressed
in Peart's case.
In my opinion, Ouestion 2 is to be answered by
applying the principles expressed in Commonwealth v. Butler
(1958) 102 C.L.R. 465. That case concerned a claim under s.9
of the 1930 Act. It was a death case. The deceased, a
Commonwealth employee, suffered four coronary occlusions in
April 1952, September 1955, December 1955 and July 1957
respectively. The last occlusion proved fatal. His widow
claimed compensation and the claim was conducted on the
assumption that his occlusion in September 1955 constituted
an injury by accident arising in the course of his
employment. In view of Ockenden's case, that assumption may
have been misplaced. In Butler's case the issue was whether
Butler's death in July 1957 resulted from the assumed injury
in September 1955. There was evidence that a non-fatal
occlusion, although it does not render a further occlusion
more likely, does make it more likely that a further
occlusion, if it does occur, will prove fatal. The Court,
Dixon C.d., Fullagar, Kitto, Taylor and Windeyer JJ. were
unanimous in holding that the claim must fail as it coul7 not
be said that Butler's death resulted from the occlusion 1
September 1955.
Butler's case turned upon a matter of causation.
Section 9 of the 1930 Act imposed liahility upon the
Commonwealth to pay compensation. The relevant part of that
section has been set out earlier. The amount of the
compensation was determined under Clause 1 of the First
Schedule to the 1930 Act, the relevant parts of which
provided for the amount of compensation to be paid "where the
death of the employee results from the injury". The relevant
words in the 1971 Act are "where an injury to the employee
results in the death of the employee"; see sub~section
43(1).
The Court unanimously rejected the widow's claim.
At pp.471-2 Fullagar J. said:
"In order to answer the question, it 1s
necessary to see just what the evidence
amounts to. It appears from it that a
coronary occlusion is a total or partial
obstruction of a coronary artery, which is
caused or accompanied by arterial atheroma or
sclerosis. The atheroma or sclerosis 1s
normally progressive, and was progressive in
this case. It had in fact commenced in this
case some years before the first attack, which
took place in 1952. A coronary occlusion may
or may not be fatal. A first occlusion is
fatal in rather less than twenty-five ver cent
of cases. An occlusion which is not fatal
will aqenerally, if not always, cause jamage to
the heart muscle, and this damage is not
repaired in the course of nature. This fact
does not make it more likely that a first
non-fatal occlusion will he followed sooner or
later by another occlusion or other
ecclusions, but it does make it more likely
that, if a later occlusion 4oes occur, it will
prove fatal. In other words a vatient may
recover from a series of occlusions, but each
In the
one of the series will normally have effects
on the heart muscle which increase the degree
of probability that the next will cause his
death.
The above does not represent the views of Dr.
Rothstadt. But it does, I think, fairly
summarize the effect of the expert evidence
which must be taken to have been accepted by
the learned judge. On that expert evidence
and on the facts of the case, it would, I
think, be a misuse of language to say that Mr.
Butler's death 'resulted from' the coronary
occlusion which he suffered in September
1955."
same case Windeyer J. at pp.478-81 developed
interesting exegesis on the concept of causation
connection with the 1930 Act and the concept of death.
pp.480-81 His Honour said:
"A coronary occlusion results in death when it
causes such a degree of infarction that the
heart ceases to function. Is the occlusion,
the infarction or the cessation of the
heart-beat the proximate cause of death? In
the last analysis it is death itself that
slits the thin-spun life.
Yet the application of the statute to the
facts of this or any other case does not
depend upon metaphysical speculation or the
actual physiological circumstances
accompanying death. It depends upon askina
only whether death resulted from the injury
(in this case from the occlusion of September,
1955) in the ordinary acceptance of those
words. The question obviously involves an
idea of causal sequence. But it tends to
misconception if the question that the Act
postulates, namely 'did death result from the
oeeclusion', be inverted to ve 'was the
occlusion the cause of death'. The inversion
is merely linguistic; yet in its inverted
form the question somehow seems more prone to
attract to its answer expressions such as
'contributing factor', which are, it seems to
an
in
At
me, only attempts to define or explain an
abstract idea by phrases in which the same
idea lurks. The words of the statute are more
easily applied without exegetical glosses.
The evidence, I think shows that the deceased
Aied from the effects upon his heart of the
occlusion of June 1957; that this was a
separate and distinct event from the
occlusions he suffered in 1955; that each of
the earlier occlusions may well have made it
more likely that a later occlusion would be
fatal, because each probably left some area of
heart muscle impaired; but that the occlusion
of Septmeber 1955 and that of July 1957 were
none the less separate and distinct events.
An impaired heart resulted from the former.
Death resulted from the latter. In my view
there was no evidence on which the judge's
finding can, properly applying the words of
the Act, be sustained, and the appeal should
be allowed."
The facts in Butier's case were very different from
the facts in this case. Here the occlusion occurred on the
day the deceased died. The occlusion was constituted by a
coagulation of blood which occluded or blocked the coronary
artery. Necrosis or death of heart muscle resulted from the
absence of blood, the supply of which had been blocked by the
occlusion. The death of the deceased resulted from that
necrosis or death of heart muscle. On those facts in my
opinion it was open to the Commission in fact and in law to
find that the necrosis or death of heart muscle constituted
an injury under the 1971 Act and that the death of the
deceased resulted from that injury. The underlying disease
may have been a contributing cause of the death but that does
not detract from the view that in ordinary languace it is
true to say that death resulted from the necrosis or death of
heart muscle.
Question 3 remains to be considered. The answer to
this question depends upon the application of the principles
stated in Kavanagh v. The Commonwealth (1960) 103 C.L.R. 457.
That was a death case involving s.9% of the 1939 Act.
Kavanagh, an employee of the Commonwealth, died in hospital
on 20 January 1958 of broncho-pneumonia and heart failure
supervening upon a rupture of the oesophagus which he had
suffered during the hours of work at his place of employment
on 14 January 1958. The rupture was caused by sudden
vomiting, the cause of which could not be explained. It was
not disputed that the death resulted from the rupture of the
oesophagus within the meaning of the word "result" as used in
the First Schedule to the 1930 Act. The question in contest
was whether the rupture of the oesophagus was a personal
injury by accident arising in the course of Kavanagh's
employment. Dixon C.J., Fullagar and Menzies JJ., with
Taylor and Windeyer JJ. dissenting, held that personal injury
by accident arising in the course of his employment by the
Commonwealth was caused to Kavanagh on 14 July 1958 and that
his death resulted from that injury. At pp.553-4, Dixon C.J.
said:
"The first question 1s whether the rupture of
the gullet in these circumstances is to be
considered an injury by accident. In my
opinion it must be so considered. It 1s a
-27 -
sudden destruction of tissue by force or
pressure. It is true that the force or
pressure was not exerted from without the
body, but that I think makes no difference nor
does it make any difference if it occurred, as
it may have done, as a consequence of another
organ of the body, namely the stomach,
responding to a virus infection: Clover
Clayton & Co. Ltd. v. Hughes (1910) A.C. 242,
per Lord Loreburn L.C. tat p-246), per Lord
Macnaghten (at p.249), per Lord Collins (at
pp-255-6); McArdle v. Swansea Harbour Trust
(1915) 113 L.T. 677; Flanagan v. Ackers
Whitby & Co. (1926) 19 B.W.C.Cc. 399.
But this is not the real difficulty in the
case. The real difficulty lies in the
question whether the accident consisting in
the rupture of the gullet arose in the course
of the employment. Clearly it occurred during
hours of work and at a point of time when
Kavanagh, having desisted from his actual task
to qo to the convenience, had returned and was
apparently undecided whether he could resume
the performance of his work or was unfit to do
so. The expression 'course of the employment'
in the law of workmen's compensation covers an
incident such as that of the employee's
retiring in obedience to a call of nature and
of momentarily standing by considering his
capacity to resume his duties. In one sense
of the word ''in' therefore the injury by
accident occurred 'in the course of the
employment'. But there was no connexion, or
at all events no known connexion, between the
employment and the fit of vomiting or the
failure of the gullet to relax or expand to
discharge the vomitus. It might have occurred
just as well at any other time, at any other
place and in any other immediate external
conditions."
In reaching their conclusions, the majority laid
particular stress on the amendment made in 1948 to s.9 of the
1930 Act. As originally worded, s.° imposed a liability on
the Commonwealth to pay compensation only in respect of
injuries which "arose out of and in the course of the
employment" (emphasis added). In 1948 the legislature
substituted the conjunction "or" for the conjunction "and" so
that the two conditions which had been cumulative became
alternative. In those circumstances, the majority held that
after 1948 there need not be any causal connection between
the injury and the employment or some accident to the
employee. The majority considered a number of relevant
authorities including Ockenden's case, Sharpe's case and
Burnett's case. At pp.554-5 Dixon C.J. distinguished
Ockenden's case. At p.555 His Honour said:
"I do not think that it is consistent with
s.9(1) as it now stands to deny that an event
or state of affairs which in truth amounts to
an injury by accident did not arise in the
course of the employment because its
occurrence cannot be attributed to or
associated with the 'employment', including in
that word the nature of the employment, its
incidents and all that the employee may do or
refrain from doing in pursuance or in
consequence thereof."
At pp.559-60, Fullaqar J. considered Ockenden's case and at
p-560 said:
"The Court was dealing in Ockenden's Case with
a special class of case ~ the case where death
or incapacity results from a 'physiological
change' such as a coronary occlusion, wh'rh
was a development or culmination of an
antecedent morbid condition in the body of the
worker. The true position in such cases is
that compensation cannot, in the absence of
some special provisions such as_ those
considered in Sharpe's Case be recovered
unless the 'physiological change' was
associated with some episode or incident in
- 29 -
the worker's employment - such as lifting a
heavy weight or hurrying up a steep slope. It
is therefore literally true to say that, in
the absence of any such episode or incident,
the worker fails to establish 'personal injury
by accident arising in the course of his
employment'. But the real truth in such a
case is expressed not by saying that the
worker has suffered personal injury by
accident outside the course of his employment,
but by saying that the worker has not suffered
personal injury by accident at all. It is not
incorrect to say, in the absence of any
material episode or incident of the
employment, that the 'physiological change'
occurred outside the course of the employment,
but it is incorrect to say that what happened
is placed outside the course of employment by
the absence of any causal connexion between
what happened and the employment. I do not
think that any real support for this latter
proposition is to be found in Ockenden's Case.
In other words, Ockenden's Case is to be
regarded as a decision on the words 'personal
injury by accident', and not as a decision on
the words 'arising in the course of his
employment'."
It will be remembered that in the 1971 Act the words "hy
accident" do not appear and that is of vital importance to
the present case.
In a long passage commencing at p.%69 Menzies J.
considered the earlier relevant authorities. At p.576 His
Honour said:
"It is unnecessary to multiply instances, for
it is abundantly clear that in the composite
phrase the words 'in the course of' were
regarded as signifying no more than that the
worker must be doing something that was part
of or incidental to his service. ™his being
so, it seems to me that when the conjunctive
was dropped for the disjunctive, the result
was to entitle the worker to compensation if
no more is shown than that the personal injury
by accident arose while he was doing something
that was part of or incidental to his service.
These various considerations have led me to
the conclusion that, unless Ockenden's Case
binds me to decide differently, the facts
established here do show personal injury by
accident arising in the course of his
employment, caused to the deceased worker, and
would entitle the appellant to compensation."
The general principle has been stated by Walsh J.
in Bill Williams Pty. Ltd. v. Williams (1972) 126 C.L.R. 146
at 154:
"In judgments of this Court it has been laid
down that an injury, which occurs to an
employee whilst he is performing the duties of
his employment or is doing something which is
incidental to the performance of his duties,
constitutes an injury 'arising in the course
of his employment', although there is no
causal relation between the injury and the
employment or its incidents."
In the present case the deceased was not required
to attend for duty in "Stalwart" until the morning of 9% May
1977. On the day of his death he had attended at a Naval
hospital for treatment for an injury unconnected with his
arterio-sclerosis disease or with the injury that resulted in
his death. After receiving that treatment he travelled to
"Stalwart". The Commission made findings as follows:
"It was necessary for the deceased to carry
out his employment that he be present on board
'Stalwart'. In the ordinary course of events,
until the day following, he was authorised to
remain on board so that he might more easily
present himself for duty on the day following.
He was motivated, so it would seem, to return
to 'Stalwart' rather than go home for the
reasons I have mentioned and also hecause the
sick bay was short-staffed and he thought his
presence might assist in its efficient
conduct.
A number of reported cases has been cited but
it seems to me that in the ultimate what is
reasonably incidental to employment is a
question of fact and degree. It seems to me
that in the circumstances of this case the
deceased's presence on board 'Stalwart' at the
time he suffered his infarct was reasonably
incidental to his employment. In saying that,
it will be apparent that I am of the view that
the infarct occurred whilst he was on
*Stalwart' and not before he arrived upon her.
It seems to me that the terms of section 27(1)
entitle the applicant to compensation if she
satisfied me that a temporal connection exists
between the employment and the injury to her
husband which caused heart necrosis. She has
so satisfied me."
It was not disputed that there was evidence to
support those findings. In addition, the Commission relied
upon the sub-sections of s.&(3) of the 1971 Act the relevant
parts of which provide:
"For the purposes of this Act other than
section 32, the employment of an employee by
the Commonwealth includes the attendance of
the employee at his place of employment ... at
any time during a period when he is not
required to engage in his employment, where
the attendance is reasonably incidental to his
employment."
Applying the principles expressed in Kavanagh's
case to the facts of this case, it was sufficient for the
respondent to establish that injury was caused to the
deceased whilst he was performing the duties of his
employment or was doing something which was incidental to the
performance of his duties. The respondent has done that.
Subject to the qualifications stated, Question 3 shouid be
answered in the affirmative.
The Commission found that the death of the deceased
was not caused by a disease. Accordingly, Question 4 does
not need to be answered.
The respondent, by cross notice of appeal, raised
issues relating to s.29 of the 1971 Act. In view of the
answers given to Questions 1, 2 and 3 in the notice of
appeal, it is not necessary for me to consider the cross
appeal.
The questions in the notice of appeal should be
answered as follows:
1. No.
2. No.
3. It was sufficient for the resvondent to establish that
injury was caused to the deceased whilst he was
performing the duties of his employment or was doing
something which was incidenta) to the performance of
his duties.
4. Not necessary to answer.
I would dismiss the appeal and cross appeal, affirm
the decision of the Commission and order that the appellant
pay the costs of the respondent of the appeal and cross
appeal.
—— Honsuralle
24 /o/#3