CATCHWORDS Workers' Compensation - Commonwealth employees ~- Employee on temporary transfer from his usual place of employment - Recurrence of herpetic keratitis of the left eye - Whether employment a contributing factor to recurrence of disease. Compensation (Commonwealth Government Employees) Act 1971, s.29 THE COMMONWEALTH OF AUSTRALIA v. CHRISTOPHER JOHN O'GRADY Neaves J. 23 May 1986 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G 3 of 1985 ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: CHRISTOPHER JOHN 0' GRADY Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 23 May 1986 WHERE MADE Canberra THE COURT ORDERS THAT: l. 2. 3. The decision of the Administrative Appeals Tribunal given on 24 December 1984 be set aside. The determination of the delegate of the Commissioner for Employees' Compensation made on 8 February 1983 be restored. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 3 of 1985 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: CHRISTOPHER JOHN 0'GRADY Respondent CORAM: Neaves J. DATE: 23 May 1986 REASONS F'OR JUDGMENT The Commonwealth of Australia ("the applicant") has appealed to the Court from a decision of the Administrative Appeals Tribunal, constituted by a senior member, given on 24 December 1984 setting aside a determination made by a delegate of the Commissioner for Employees' Compensation on 8 February 1983 and, in lieu thereof, determining that Christopher John O'Grady ("the respondent") had suffered a recurrence of an eye disease (herpetic keratitis) to which his employment by the applicant was a contributing factor and that the respondent was entitled to compensation for incapacity for work during certain specified periods and in respect of the cost of certain medical treatment. The appeal is brought pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 which permits a party to a proceeding before the Tribunal to appeal to the Court from a decision of the Tribunal but only on a question of law. At all relevant times the respondent was a Commonwealth public servant employed in the Auditor-General's Office. Prior to April 1981 he worked in Canberra. He applied for a temporary transfer to Darwin and early in April 1981 he went to Darwin, it being intended he should stay for a period of six months. As will appear, he returned to Canberra on 2 October 1981. On 24 January 1982 the respondent made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") specifying the nature of the injury or disease in respect of which the claim was made as - "Unknown infection of digestive tract and infection of eye resulting in ulcers of eye and associated problems," He stated on the claim form that he had previously suffered the eye infection in 1972. In support of the claim he stated that at about 9.00 a.m. on 8 September 1981 he reported to his supervisor at his place of employment in Darwin that he was feeling too sick to remain at work. He was permitted to return to the motel where he was then living. He was experiencing stomach cramps and diarrhoea. As the symptoms continued, he consulted a local doctor (later identified as Dr K.5. Tai of the Parap Medical Clinic) who prescribed medication. He continued the medication and remained absent from work until 13 September 1981. On that day, his left eye began to hurt severely. He consulted the same doctor who diagnosed ulcers on the left eye and prescribed treatment. On 14 September 1981 the stomach cramps and diarrhoea became so severe that he was admitted to the Royal Darwin Hospital where he remained until 29 September 1981. By that date the diarrhoea had stopped but he still had some stomach discomfort and a painful left eye. Following his discharge from hospital he travelled by air to Canberra on 2 October 1981. He consulted Dr L.P. Robinson, an ophthalmic surgeon, in Sydney on 6 October 1981 in relation to his left eye. A determination was made on 8 February 1983 by a delegate of the Commissioner for Employees' Compensation rejecting the claim in its entirety. The respondent then sought a review by the Administrative Appeals Tribunal of so much of the determination as rejected the claim based upon the infection in the left eye. He did not pursue further the claim based upon the infection of the digestive tract. The relevant provision of the Act is 3.29 which, so far as material, provides - "(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 - (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, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, 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; and (g) .... the date of commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury. (3) ..." 5. Section 29 must be read with s.27 of the Act which provides, so far as material, that, if personal injury arising out of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to the Act, liable to pay compensation in respect of that injury in accordance with the Act. The respondent gave evidence before the Tribunal that while in Darwin he had a number of minor medical complaints which he described as tropical ear (which required treatment on a number of occasions), skin infections and urethral discharge. He said that none of these was particularly serious, though the ear infection was particularly painful and the most difficult to treat. He said he consulted Dr K.S. Tai and was given various medications including an extended course of antibiotics for the urethral discharge. In August 1981 he suffered from reaction to antibiotic treatment and was on that account certified by Dr Tai as unfit for work for the period 12-14 August 1981 inclusive. He also gave evidence as to the events of 8-13 September 1981 and his hospitalization in Darwin from 14-29 September 1981 in terms similar to the statements made in support of his claim for compensation to which reference has already been made. The respondent also said that in 1972, while on a school excursion to the Northern Territory, he contracted keratitis of the left eye, that he was' then treated by a number of specialists at the Sydney Eye Hospital including Dr L.P. Robinson, and that he underwent a corneal 6. graft in 1975. He said that after the operation he had no recurrence of the disease until he was in Darwin in 1981. Evidence was given to the Tribunal by telephone by Dr Aileen Joy Plant, the Acting Deputy Medical Superintendent of the Royal Darwin Hospital. The hospital records were not produced to the Tribunal but Dr Plant gave evidence from then. The evidence is not entirely satisfactory as it does not state precisely what is contained in the records but' summarises information in then. Dr Plant said that the records, which covered the period from April 1981 to 1 October 1981, showed that the respondent was first referred to the hospital by Dr Tai of the Parap Medical Centre with a history of penile rash which had occurred since February 1981, that is to say, prior to the respondent going to Darwin. He had been treated witha variety of medications, including hydrocortisone and canesten and he had seen the skin specialist. On 7 July 1981 he developed a urethral discharge and this grew a staph aureus which was sensitive to a wide range of antibiotics. He was then treated with several antibiotics, including erythromycin, clindamycin and amoxil but he still had a persistent discharge. He was subsequently given dalacin C and, when the problem persisted, kanamycin injections for about ten days. On 8 September 1981 he developed diarrhoea, associated with colic. He was given steroids, prednisolone tablets and an injection of hydrocortisone. He was admitted to hospital on 14 September 1981 with diarrhoea and a dendritic ulcer of the left eye. Dr Robinson also gave evidence by telephone. He holds the degrees of Bachelor of Medicine and Bachelor of Surgery and a Diploma of Ophthalmology within the University of Sydney and is a Fellow of the Royal Australian College of Ophthalmologists and a Fellow of the Royal Australian College of Surgeons. He stated that the information he had concerning the respondent's health problems in Darwin was derived solely from the respondent anda letter he had received from the treating doctor. This was a reference to a letter dated 30 September 1981 addressed to Dr Robinson by Dr T. Haymet in which Dr Haymet said that the respondent presented at the Eye Clinic at the Royal Darwin Hospital on 14 September 1981 with a recurrence of ulceration involving both the donor cornea and the recipient cornea, but more particularly the recipient cornea near the limbus. Dr Haymet expressed the view that the outbreak - "might have been precipitated by an iliness which began in 7.81 with a urethral discharge which had been treated with a number of synthetic antibiotics, including Clindamycin on 24.8.81. Soon after this antibiotic, he developed moderately severe colitis, treated with oral prednisolone ...." Dr Haymet then gave some details of the diagnosis made in respect of the eye infection and the treatment prescribed. 8. The material before the Tribunal also contained two statements made by Dr Robinson dated respectively 4 February 1982 and 15 March 1983 and a letter dated 7 November 1984 which he had addressed to the Department of Social Security. The first of those statements was in the following terms - "Mr Christopher O'GRADY had a left full thickness corneal graft in August, 1975, for a herpetic keratitis. The eye settled down well and he had no problems or recurrence of the problems since that time until September this year [Esicl. In July and August this year Csicl, while working in Darwin Mr 0'Grady required antibiotics for an infection and developed a colitis as a complication of the anti-biotics. This necessitated the use of large doses of cortisone and it was during this time that his left eye became sore again with corneal ulceration due to herpetic keratitis. This keratitis proved difficult to settle and he was referred back to Sydney where he once again came under my care on 6/10/81. The keratitis has fluctuated somewhat since that time and has not yet completely settled down. The 6-year history of complete freedom from any eye problem would indicate that the recent severe infection in Darwin with its subsequent complications and the necessity for using steroids, has been the precipitating factor if not the cause of his recurrent keratitis." Asked about par.2 of that statement, Dr Robinson said - "The way I understand it, he had an infection with vomiting and diarrhoea .... for which he was put on to antibiotics to try and settle down that infection and the antibiotic, itself, produced another problem, another bowel problem that later needed to have the cortisone so that he had in fact 9. two lots of courses for his bowel problems. One was the original infection and the other one was the problems with the antibiotics." On 15 March 1983 Dr Robinson wrote - "Mr Chris O'Grady developed a recurrent herpetic keratitis in his left eye while working in Darwin towards the end of 1981. In Canberra he had almost six years free of any problems since having a corneal graft for this eye in August, 1975. There can be little doubt that his working in Darwin contributed significantly to the recurrence of herpetic keratitis in this eye. He has not had any recurrences in Canberra and it is highiy unlikely that the circumstances which developed causing the recurrence of the herpetic keratitis would have occurred had he continued to work in Canberra." In relation to the final paragraph, Dr Robinson gave the following evidence - "Q. Could you tell the Tribunal what you mean by 'the circumstances which developed'? A. Well, I mean, he had: obtained some infection which occurred or started while he was at work and necessitated antibiotics. That infection, itself, would have been enough to stimulate a recurrence of infection, but then he was given antibiotics. Sq he was given antibiotics for that infection which caused a further bowel problem necessitating the cortisone so that both the infection and the cortisone themselves, you know, either or both would have been enough to, you' know, precipitate a cornea infection or a recurrence of his herpetic keratitis. Q. So, it is your evidence that the cause of herpetic keratitis could have been the cortisone? Questioned by the respondent's representative, Robinson confirmed that his little doubt that the respondent's working in Darwin contributed significantly to the recurrence of the disease was based solely on the absence of any problem in that regard in 10. Well, I mean, from his history, that the eye became sore before he had the cortisone, that the eye became sore when he started on the antibiotics. So in fact the herpetic keratitis may have been caused by the antibiotics? Yes, well - perhaps - well, I do not know, perhaps by the infection itself. This would be the gastric diarrhoea problem, would it, that you are referring to as causing the herpetic keratitis, possibly? Yes, that is right. The - you know - he got an infection and at the same time the eye became sore not long after that and that was the beginning of his recurrent herpetic keratitis." Canberra and gave this evidence - "OQ. You have indicated .... that the actual cause or the precipitating factor which gave rise to the eye infection may have been a gastric infection or something like that, the actual cause. Now, would the fact that he was in Darwin be a contributing factor as well? Well, I mean, he could have - one does not know if he had the same infection in Canberra whether he would have got the same problems or not. You know, I have not canvassed this with him and may be he has had similar problems in Canberra with no problems with the eye." statement that there could be 11. On 7 November 1984 Dr Robinson had written to the Department of Social Security in response to a request for his comments. He wrote - "Thank you for asking me to comment on the compensation claim for Mr 0O'Grady. You have asked a difficult question as to whether there is a higher incidence of herpetic infection in Darwin than in Canberra. You would have access to the Health Department and they may well be able to answer this question for you. There is a general medical concept that infectious disease is more common in warmer areas than cooler areas and this may apply to herpetic infection as well as other infections including gastro-intestinal infections. More importantly, Mr O'Grady's herpetic keratitis first occurred when he was visiting the Northern Territory and this occurrence commenced, as you know, in Darwin. He had been quite free of any herpetic keratitis since his corneal graft in 1975, until this episode in Darwin, but for Mr 0O'Grady, however, herpetic keratitis has been a greater problem in the Northern Territory, and whether this is supported or not by an overall different incidence of herpetic disease, it has certainly been the pattern for Mr 0O'Grady. In the documents headed 'Attachment to claim form for compensation, labelled T4', Mr O'Grady states that on Tuesday, 8th September 'I reported to my supervisor that I was feeling too sick to remain at work' and in the same paragraph 'at this stage I felt stomach cramps and started to experience diarrhoea'. He states further 'that by Sunday, 13th September, the two earlier symptoms continued and my left eye began to hurt severely and I consulted the same doctor. He diagnosed ulcers in my left eye and duly prescribed treatment'. There is no doubt that this gastro-intestinal illness which developed at work was the trigger factor for the episode of recurrent herpetic keratitis. The steroids needed later to treat complication of his treatment would, of themselves, have been enough to precipitate an episode of 12. herpetic keratitis and would be responsible for the continuing herpetic infection which proved difficult to treat and precipitated his referral to Sydney. I would feel quite strongly that there is a high probability that his working in Darwin was a very significant factor in the recurrence of this herpetic disease for two reasons: Firstly his first herpetic keratitis occurred in the Northern Territory and following a successful corneal graft, he was free of any problems until he returned to Darwin in 1981. Secondly, the gastro-intestinal infection occurring at work was a precipitating factor in the recurrence of his herpetic disease. The later use of steroids to treat complications of the initial treatment of this gastro-intestinal disease would of itself have been sufficient to precipitate further herpetic keratitis as I mention above, was almost certainly the reason for this prolonged episode. You asked if I had any further observations concerning Mr O'Grady's condition. I have always found Mr O'Grady to be a genuine person who has not wanted to make any untrue claims about his illness or operation and I feel his claims are quite genuine. To me, it would seem to be a travesty of justice if he were denied acceptance of his claims." Dr Robinson explained that herpetic keratitis is an infectious disease of the cornea which is caused by the herpes simplex virus, in common parlance the cold sore virus. He said - e+e. Once you have had an attack of herpetic keratitis you are always prone to another attack e+». at any time during the rest of your life and »ee.- it can occur spontaneously or it can occur with a trigger infection .... Often we do not know what the trigger mechanism is but once you have had it there is always a potential to get a further infection. I think, on this occasion, that you Creferring to the respondent] certainly had more than enough of a change to, you know, to be without doubt a trigger factor: precipitating the infection that you had in Darwin." also 13. Later, he said - "The herpes virus is an interesting virus in that one of the precipitating factors and one of the things that can make the virus much worse is the use of steroids. If you look at all the literature with the anti-viral for the use of herpes, there isa contrary indication, do not use steroids with this because it is a well-known fact that steroids can precipitate or make a herpes viral infection or viral keratitis much worse." It may be noted that there are references in Dr Robinson's evidence which suggest that he was under a misapprehension that there was a connection between the respondent's employment by the applicant and the gastro-intestinal infection which the respondent contracted while in Darwin. For example, in his letter dated 7 November 1984 Dr Robinson refers to the gastro-intestinal infection as having "developed at work" and as "occurring at work" and in his oral evidence he stated that the infection "occurred or started while he was at work". Dr Robinson seems to have placed some reliance on this in expressing in his letter dated 7 November 1984 his feeling that - "there is a high probability that his working in Darwin was a significant factor in the recurrence of his herpetic disease". As will hereafter appear, the Tribunal did not accept that the gastro-intestinal infection was work related - only that the symptoms became manifest while the applicant was at work. 14, After Dr Robinson had completed his evidence, the respondent gave further evidence that he had had a course of cortisone injections in Canberra in 1979 without having any effect on his eye. He was not, however, able to say what was the nature of the cortisone with which he was injected in 1979 nor whether it was the same substance as was prescribed for him in Darwin. ' It was not in dispute before the Tribunal that in September 1981 the respondent suffered a recurrence of herpetic keratitis in the left eye which he originally contracted in the Northern Territory in 1972. Nor was it in dispute that the respondent, prior to going to Darwin in April 1981, had had no recurrence of the disease since the corneal graft in August 1975. What was in dispute was whether the employment of the respondent by the applicant was a contributing factor, within the meaning of that expression in s.29 of the Act, to the recurrence of the disease. The senior member constituting the Tribunal, in his reasons for decision, said: "I have no doubt that it is proper in this matter to find the facts in accordance with the evidence of Dr Robinson and I do so." 15. The facts so found are not then set out in the reasons for decision though part of Dr Robinson's oral evidence is referred to as are parts of his statement dated 15 March 1983 and of his letter to the Department of Social Security dated 7 November 1984. There follows in the Tribunal's reasons a reference to the decision of the High Court in Favelle Mort Ltd. v. Murray (1976) 133 C.L.R. 580. The reasons then proceed - "15. In his evidence Dr Robinson was not sure whether it was the infection or the medication used for the treatment of that infection which precipitated a cornea infection or a recurrence of the herpetic keratitis but on his evidence it is Clear that one or the other did have this consequence. I have accepted Dr Robinson's evidence and find these to be facts. It does not seem to me material that the evidence does not establish the nature of the intermediate infection. Nor does it seem to me material in seeking to apply Favelle Mort''s case to these facts that the worker in that case had proceeded from his home in Australia to New York while this applicant had proceeded from his home in Canberra to Darwin. 16. It seems to me that this case must be treated as a disease case under section 29 of the Act and not as an injury case under section 27 of the Act (Commonwealth of Australia v. Whillock, 48 ALR 433). The fact therefore that the symptoms of the infection commenced when the applicant was at work is not enough to establish his ciaim. It must be shown that the employment was a contributing factor. In seeking to distinguish these facts from those of Favelle Mort''s case the representative of the respondent placed much emphasis on the fact that the worker in that case was on duty 24 hours a day. It does not seem to me that much significance can be read into that. It is idle to think that the applicant could return to his home in Canberra, or go to any other temperate part of Australia, in the intervals between the periods he was required to be at his desk in Darwin. This Csicld sole purpose for being in Darwin was for the purposes of his employment. Dr Robinson was of the view that it was 'highly unlikely that the circumstances which developed causing the recurrence of the herpetic 16. keratitis would have occurred had he continued to work in Canberra'. Dr Robinson's evidence has been accepted by the Tribunal. 17. For my own part I am unable to distinguish these facts from those in Favelle Mort's case. In the circumstances of this case I am of the opinion that had it not been for the employment the probabilities are that the applicant would not have had the recurrence of his eye disease. The employment exposed him to the risk of contracting an infection the result of which was the recurrence of his eye disease. It is unlikely that the applicant would have had the recurrence had he remained in Canberra." The ground of the appeal to this Court is that, upon the material before the Tribunal, it was not reasonably open to it to reach the conclusion that the respondent's employment by the applicant was a contributing factor to the recurrence of the herpetic keratitis. For the applicant reference was made to the following undisputed chain of events - (1) The respondent's relevant medical history began with the contraction of penile rash in February 1981, that is to say, before he travelled to Darwin. (2) In Darwin, from April 1981, he received treatment for the penile rash with a variety of medications including hydrocortisone and canesten. He also suffered from other complaints and on 7 July 1981 he developed a urethral discharge. This was treated with an extended course of various antibiotics. {3) In August 1981 he suffered a reaction to the treatment with antibiotics and this was followed on 8 September 1981 by stomach pains and diarrhoea for which he 17. was treated with steroids and prednisolone tablets and had an injection of hydrocortisone. (4) On 13 September 1981 he consulted Dr Tai about his eye infection which was diagnosed as eye ulcers but which was, in fact, a recurrence of herpetic keratitis. The next day he was admitted to hospital. It was submitted that, on the uncontradicted evidence of Dr Robinson, the only factors which might have precipitated the recurrence of the herpetic keratitis were the taking of steroids, the taking of antibiotics or the gastro-intestinal infection itself. Counsel for the applicant submitted that there was no evidence to show that the respondent worked other than the ordinary public service hours of work. Further, there was nothing to show that any of the medical conditions from which the respondent suffered was sustained at work or during working hours or was otherwise work related. Nor could it be said on the evidence that Darwin had any particular significance in relation to any of the complaints from which the respondent suffered except that in 1972 the respondent first contracted herpetic keratitis while in the Northern Territory. The respondent had made no claim for compensation in respect of incapacity for work arising from any of his medical conditions apart from the claims made in respect of the gastro-intestinal infection and the keratitis, and the claim in respect of the gastro-intestinal infection had not been pursued before the Tribunal. 18. It was further submitted that the mere fact that the respondent was in Darwin when he suffered the gastro-intestinal infection and the subsequent recurrence of herpetic keratitis was not sufficient to establish a relevant causal connection between the recurrence and the employment in which he was engaged while in Darwin. Reference was made to Dr Robinson's evidence which, it was submitted, was to the effect that there was nothing special about Darwin in relation to the recurrence of the keratitis as Dr Robinson was unable to say that the respondent would not have had such a recurrence in Canberra if he had suffered there the same digestive tract problems that he encountered in Darwin. Counsel for the respondent contended that it was sufficient to entitle the respondent to an award of compensation in respect of the herpetic keratitis that the respondent was in Darwin at the time of the recurrence of the disease, that he was in Darwin as an incident of his employment and that Darwin, with its tropical environment, was a zone of special danger to the respondent so far as the recurrence of the disease was concerned. That the material before the Tribunal established that factors other than the respondent's presence in Darwin contributed to the recurrence of the eye condition was, so it was submitted, of no moment. That those other factors were present did not detract from the conclusion that the respondent's mere presence in Darwin was, itself, a 19. factor, or a significant factor, in the recurrence. Counsel relied particularly upon the evidence of the contracting of the disease in 1972 while the respondent was inthe Northern Territory and the absence of any recurrence while the respondent was in Canberra following the corneal graft in 1975 until he went to Darwin in 1981. He submitted that, on that evidence, the Tribunal was entitied to find, and did find, that there was a sufficient causal connection between the respondent's presence in Darwin and the recurrence of the keratitis. The Tribunal clearly regarded the decision of the High Court in Favelle Mort Ltd. v. Murray (supra) as decisive of the present case, the facts in the two cases being, in its view, not relevantly distinguishable. In that case Mr Murray, in the course of his employment with Favelle Mort Ltd., was required in September 1968 to go to New York to supervise the maintenance of cranes supplied by the company which were being used in a very large construction project in that city. The circumstances of his employment in the United States of America were peculiar in that he was required to be on call virtually twenty-four hours a day throughout his stay of approximately 15 months in that country. Prior to his return to Australia on 13 December 1969, Mr Murray contracted the disease viral meningo-encephalitis, a disease affecting the brain. The expert medical evidence did not establish with certainty how Mr Murray contracted the disease. It was, however, established 20. that he became infected with the virus by means of the bite of a& mosquito, rodent or other animal or by means of his consuming food or drink contaminated with the virus. Mr Murray's entitlement to workers' compensation depended on whether he had suffered an "injury" within the meaning of that expression as defined in s.6 of the Workers' Compensation Act, 1926 (N.S.W.). So far as relevant, "injury" was defined to mean personal injury arising out of or in the course of employment, and to include - "(a) a disease which is contracted by the worker in the course of his employment «ee. and to which the employment was a contributing factor." An award in the company's favour was made by the chairman of the New South Wales Workers' Compensation Commission. The chairman found that Mr Murray had contracted the disease in the course of his employment - a finding not subsequently challenged either in the Supreme Court of New South Wales or the High Court - but that his employment was not a contributing factor. The Supreme Court overturned the latter finding and awarded compensation. An appeal to the High Court was dismissed on the ground that the requirement that the employment be a contributing factor to the contraction of the disease had, on the facts found by the chairman of the Commission, been satisfied. 21. Having observed that the findings of the chairman of the Commission involved the conclusion that the virus had entered Mr Murray's body not only during his employment but, because of the width of the temporal range and of the geographical area of his employment, at a place where he was bound by his employment at that time to be, Barwick C.J. said, at pp.584-5: "Cleariy, it cannot be said that the nature of anything the respondent was required to do by his employment contributed to cause his morbid physical condition. But it is also quite clear that it is not necessary that this should be so in order that it may be concluded that the employment contributed to the contraction of that condition. There was quite clearly a moment, though not discernible or capable of precise or even approximate identification, when the virus attacked the respondent and entered his body. That, rather than the first manifestation of the meningo~encephalitis, must be regarded as the relevant contraction of the disease, if the case is to be treated as within the extension of the definition of 'injury'. Not only was he at that time in the course of his employment, but he was at the place where he was endangered by the virus because his employment required: him to be there. It is clearly guite immaterial that any member of the public, if at that same place at the same time or for that matter anywhere in the vicinity, might have been similarly attacked by the virus with comparable results. It is sufficient, in my opinion, that the virus attacked the respondent at that place and time. For him, it was for that reason a place of danger or, if you will, of special danger; a place at which he must be in fulfilment of his employment. It is to my mind only the correspondence of the place of his employment with the totality of the area in which he lived that appears to raise a problem in this case. Had he been required by his employment to be at some particular place in a confined area, such as a building and he was there attacked by a virus with the consequences experienced by him in this case, there would not seem to me to have been the same difficulty in accepting that he received the 23. Jacobs J. at pp.601-2 said: "The nature of the work done in the employment need not be a factor contributing to the onset of the disease. It need only be the employment which is the contributing factor. The employment, if the particular nature of the work done therein be irrelevant, is simply the carrying out by the worker of his duties as directed by the employer at a particular place and at a particular time. The respondent was required by the appellant to be at his work at the particular place and at the particular time. At the place and time he suffered the exposure and infection which led to the disease. It must follow that the exposure and infection which led to the disease were the result of him being engaged in his employment at' that particular place and at that particular time. This is to say much more than that he contracted the disease in the course of his employment in a temporal sense. In addition to this temporal factor there was the factor of location, not a casual or chance location but a location imposed upon him by his employment which was' the actual source of the disease. I find it irrelevant that he might just as well have contracted the disease at another time or place when he was not in the course of his employment, even if this be assumed to be so. Though it is not sufficient that the disease be contracted in the course of the employment, it is sufficient if the disease invades his body as a result of its presence in his place of employment during the time of his employment; then the employment is a contributing factor. The result is that any disease proved to have been contracted by a worker at the place and during the time of his employment, not being a disease of autogenous origin within his body but being a disease contracted as a result of the presence at the place of employment of the organism or other substance which invades or attacks his previously healthy body falls within the conditions prescribed in the definition in 3!6(1)." It is clear that, to succeed in his claim for compensation, it was necessary, and sufficient, for the 24. respondent to show that his employment by the applicant was a factor contributing to the recurrence of the herpetic keratitis. The Tribunal concluded that it was. The question is whether that conclusion was reasonably open to the Tribunal on the material before it. Although Dr Robinson's evidence was somewhat equivocal on the point, the Tribunal found, as it was entitled to do, that the recurrence of the herpetic keratitis would have been unlikely had the respondent remained in Canberra and that the respondent's presence in Darwin was a contributing factor. The Tribunal also found that the sole purpose for the respondent being in Darwin was for the purpose of his employment. Having made those findings, the Tribunal equated the causal connection thus shown between the recurrence of the herpetic keratitis and the respondent's presence in Darwin for the purposes of his employment with a causal connection between the recurrence of the disease and the respondent's employment by the applicant. The Tribunal regarded as decisive for this purpose that the respondent had, as a matter of practical necessity, to live in or in the vicinity of Darwin in order to be in a_ position to perform his duties at his place of employment. Was this approach justifiable and was it dictated 25. by the decision of the High Court in Favelie Mort Ltd. v. Murray (supra) as the Tribunal thought it was? In my opinion the Tribunal fell into error in regarding the decision of the High Court in Favelle Mort Ltd. v. Murray (supra) as decisive of the claim made by the present respondent. A consideration of the judgments in that case provides guidance as to the criteria to be applied in determining whether there is a sufficient causal connection between the relevant employment and the contraction or recurrence of a disease for the purposes of sub-s.29(1) of the Act but the decision in that case turned on its own peculiar facts - facts which were described by Mason J. as presenting some distinctive features. In my opinion Favelle Mort Ltd. v. Murray (supra) provides no support for the respondent's claim. The extracts from the judgments in that case set out above show that, in determining that the employment contributed to the contraction of the disease, emphasis was placed upon the circumstance that the disease had been contracted by Mr Murray at his place of employment, a place that corresponded geographically with the totality of the area in which he lived. That is not to say that it is only where that circumstance is present that the necessary causal connection between the contraction (or recurrence) of a disease and the employment will be 26. established. But, absent that feature, the employee must show other circumstances demonstrating the necessary connection. This aspect of the matter was adverted to by Hutley J.A. when Mr Murray's claim was before the New South Wales Court of Appeal (see C1974] 2 N.S.W.L.R. 211) where his Honour said (at pp. 229-230): "The risk of meningo-encephalitis being caught anywhere is an evidentiary problem facing an applicant. It will be rare that the time and place of the acquisition of the infection could be sufficiently established. If, for example, his Honour had held that the appellant was not in the course of his employment when on leave in the United States, a finding of fact well open to hin, the appellant must have failed. Once, however, it was held that the appellant was in the course of his employment during the whole of the time he was absent from Sydney, the appellant must succeed in the contention that his employment contributed to his injury, unless a factor beyond mere employment is required. Though two factors are specified, 'in the course of' and 'contributing to' it does not necessarily follow that one set of facts cannot establish both factors." Apart from the circumstance that the respondent suffered the recurrence of the herpetic keratitis while he was in Darwin, there was no evidence before the Tribunal of any connection between the recurrence of the disease and the respondent's employment by the applicant and, in truth, no other basis for such connection was suggested. I am, therefore, of opinion that the conclusion reached by the Tribunal was not reasonably open on the material 27. before it. The Tribunal's decision given on 24 December 1984 should be set aside and the determination of the delegate of the Commissioner for Employees' Compensation made on 8 February 1983 be restored. As the applicant did not' seek an order for costs I make no order in that regard. I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Kcdgebiel Dated: 23 May 1986