/ *, -4 a" 42) CATCHWORDS WORKERS' COMPENSATION - Commonwealth employees - member of Defence Forces - Death from myocardial infarction - Necessity to consider if employment a-contributing factor 1n aggravation or acceleration of disease - Right of Appeal from prescribed Court - Error of Law -~ Failure of prescribed Court to address proper question - Failure to discuss evidence relative to the question. Compensation (Commonwealth Government Employees) Act 1971, ss. 5, 8, 27, 29, 95 Anisminic v Foreign Compensation Commission £19693 2 AC 147 Sinclair v_ Mining Warden at Maryborough (1975) 132 CLR 473 Commonwealth of Australia .v Whillock (1983) 48 ALR 433 G115 of 1984 REGINA BETON WHILLOCK v THE COMMONWEALTH OF AUSTRALIA Evatt, Beaumont and Pincus JJ 3 October 1986 Sydney Pa eGy y RECENmD = 3 OCT 1986 FEDERAL COURT OF AUSTRALIA PAO RERSIAY Ii THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G115 of 1984 GENERAL DIVISION ) ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION OF NEW SOUTH WALES BETWEEN: REGINA BETON WHILLOCK Appellant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM Evatt, Beaumont and Pincus JJ DATED 3 October 1986 PLACE Sydney MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. ty That the matter be remitted to the Commissioner for Employees' Compensation for re-determination. 3. All questions of costs are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. UL THE FEDERAL COURT OF AUSTRALIA , NEW SOUTH WALES DISTRICT REGISTRY ! No. G115 of 1984 GENERAL DIVISION ' ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION OF NEW SOUTH WALES BETWEEN: REGINA BETON WHILLOCK Appellant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM Evatt, Beaumont and Pincus JJ DATED 3 October 1986 REASONS FOR JUDGMENT EVATT J: The appellant, Regina Beton Whillock, is the widow of Robert John Whillock (the deceased) formerly a Chief Petty Officer, Medical, Royal Australian Navy who died on 8 May 1977 as a result of a "heart attack" suffered in circumstances referred to later herein. The deceased was born on 4 October 1929 so that at the date of his death he was aged 47. The appellant was born on 23 May 1926 and at all relevant times was partially dependent on the earnings of the deceased. A son of the deceased, born on 3 November 1964, was then totally dependent. ts On 26 March 1979 the appellant lodged a claim for compensation in respect of the death of Compensation Act). (Commonwealth Government Employees) Act the deceased under the provisions of the 1971 (the Some of the questions and answers set out in that claim form are: If death of employee resulted from an injury - what was the nature of the injury? When did you first become aware of the injury? Describe briefly how the injury occurred? If death of employee resulted from a disease - what was the nature of the disease? How was the disease caused? When did you first become aware that the employee was suffering from the disease? When was the disease caused? . For what period was employee engaged in his employment? When was the employee first incapacitated by the disease? If employee ever previously suffered from the disease state the approximate date on which the disease first manifested itself? A. Heart attack. 8 May 1977. Ascending steps to sick bay. Strain and exertion on heart. Heart disease. Stress of employment and exertion. 1973. 1972/1977. 1972/1977. 1973. 1973. It 15 clear that under provisions of 5.711) and (2) of the Act the deceased, as amember of the Defence Force, was for the purposes of the Act deemed to be employed by the Commonwealth and his employment was for those purposes deemed to be constituted by his performance of his duties as a member of the Defence Force. Relevant sections of the Act are: 5(1) In this Act unless the contrary intention appears - "injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease; "disease" aincludes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development; "prescribed Court" means (a) the Workers' Compensation Commission of New South Wales; {(b) to (e) ... 5(11) For the purposes of this Act: (a) the death ... of an employee... shall be taken to have resulted from ... the aggravation (or) acceleration ... of a disease suffered by the employee if ... the aggravation (or) acceleration ». contributed to the death ... 8(3) For the purposes of this Act ... 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. 27(1) If personal intury arising out of or in the course of the employment of an employee by the Commonwealth 1s caused to the employee, the Commonwealth 15, subject to this Act, liable to pay compensation in respect of that injury 1n accordance with this Act. 29(1) Where - (a) an employee... suffers an aggravation (or) acceleration of a disease; and {b) any employment of the employee by the Commonwealth was a contributing factor ... to the aggravation (or) acceleration ... whether or not oe the aggravation (or) acceleration was suffered in the course of that employment; the succeeding provisions of this section have effect. (2) If - (a) the death of the employee; (b), (c), (d) (e) ... results from the ... aggravation (or) acceleration of the disease ... then, for the purposes of this Act unless the contrary intention appears - (f) the ... aggravation (or) acceleration shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. On 7 May 1980 a Delegate of the Commissioner for Employees Compensation rejected the claim, determining that the death was not the result of personal injury arising out of or in the course of the 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 was a contributing factor. un 24 Novemse. 1950 tle appellant, pursuant t2 3. 30 cf the Act, made appli.catarn tt: the then appropriate prescribed Caurt, nameliv the Workers' Campensation Commissisn of New South Wales, fora qudic2al review of the said determination. That review came on for hearing before His Honour Judae O'Meally on 5 and 7 May 19282, on which later day His Honour gave ex tempore reasons for judgment. As such reasons are not fully reported 1t 15 necessary that the same be set out. Those reasons read: This 13 an application for judicial review of the determination of the Commissioner for Employees Compensation of ? May 1980 that the death of Robert John Whillock on 8 May 1977 was not the result of personal injury arising out of or in the course of his employment nor the result of the rontraction of a disease or to the aggravation, acceleration oy recurrence cf a pre-existing or underlying disease to which his employment was a contributing factor. The Commissioner disallowed a claim for compensation made by his widow, Regina Beton Whillock, in respect of the death of her husband, Phe 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. H1i5 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 aindry dock at Cockatoo Island dockyard. On Sunday, 8 May 1977 whilst at his home, the deceased complained of low back pain which was of 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 trom East Hills to Balmoral ina 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 Stalrs 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 daspute 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. It 15 appropriate to observe at this stage that on Sunday, 8 May 1977 the deceased was not on duty on "Stalwart" but in the ordinary course of events would have been on duty on her on the day following. It is in these circumstances that the deceased's widow brings her claim for compensation, alleging that the deceased suffered an injury arising out of or in the course of his employment with the respondent. Section 27(1) of the Compensation (Commonwealth Government Employees) Act 1971 provides: 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 1s, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act. Subject to the provisions of s.29 of the Act injury is defined so as to exclude a disease. For reasons which I shall later give, I am of the view that the death of the deceased was not caused by a disease. Sub-section 3 of section 8 of the Act provides: 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 15 not required to engage in his employment, where the attendance 1s reasonably incidental to his employment. The respondent resists the applicant's claim for compensation on the basis that his death was caused by a disease and by reason of the operation of section 29 of the Act no claim can be validly maintained. It also resists the applicant's claim on the basis that at the time of the event which caused his death, his attendance at his place of employment was not reasonably incidental to his employment. I have said that 1t 1s my view that his death was not caused by a disease. 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 this 15 so, 1n my view, 18 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. It seems to me that there are two bases upon which the applicant can properly rest her claim for compensation. The first is under the provisions of section 27(1) and the second under the provisions of section 8(3). The applicant will be entitled to compensation if she establishes to my satisfaction that her husband received an injury, arising out of or ain the course of his employment. The former concept connotes a causal connection whereas the latter connotes a temporal one. I am not satisfied on the evidence that his injury arose out of his employment, so it remains to consider whether he suffered injury in the course of his employment. That concept would seem to be simple enough though like many simple concepts 1t has been the subject of analyses and unterpretation by courts at all levels of the judicial hierarchy. His Honour then cites extracts from Humphrey Earl Limited v Speechley 84 CLR 126 at p 134 and Henderson v The Commissioner of Railways (WA) 58 CLR 281 at p 294 before continuing: wel Thus 1t¢ appears that what 1s incidental must be related to the carrying out of an employee's employment. 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 1t would seem, to return to "Stalwart" rather than go home for the reasons I have mentioned and also because 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 1s 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, 1t will be apparent that I am of the view that the aunfarct occurred whilst he was on "Stalwart". and not before he arrived upon her. (Emphasis added). 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 50 satisfied me. The consequence is that I set aside the determination of the Commissioner and remit the matter to him with this expression of opinion. The respondent, the Commonwealth of Australia, pursuant to s.95 of the Act, appealed from the judgment of Judge O'Meally to the Federal Court of Australia by Notice of Appeal dated 26 May 1982. Section 95 provided that the appeal be "on a question of law only". The grounds of appeal as filed were: 1. That the Commissioner misdirected itself (sic) at law in finding that the deceased whilst in the course of his employment suffered 'personal injury' within the meaning of section 27(1) of the Act; 2. That the Commissioner was. in error in holding that the deceased sustained an injury in the course of his employment within the meaning of section 27(1) of the Act; 3. That the Commissioner should have found that the death of the deceased on 8 May 1977 was not the result of personal injury arising 1n the course of his employment; and sought an order (inter alia) that the determination of the Delegate of the Commissioner for Employees' Compensation dated 7 May 1980 be affirmed. Under s.24(1) of the Federal Court of Australia Act 1976 the appeal was within the appellate jurisdiction of the Federal Court and pursuant to s.25 was heard by a Full Court. The appeal first came on for hearing before a Full Court of the Federal Court on 28 October 1982 when the present appellant, Mrs Whillock, then the respondent to that appeal, sought leave to file a cross-appeal out of time as follows: A. The respondent cross appeals from that part of the decision of Judge O'Meally of the Workers' Compensation Commission of New South Wales (the Commissioner) given on 7 May 1982 at Sydney pursuant to Section 95 of the Compensation (Commonwealth Government Employees) Act 1971. B. Questions of law to be raised on the appeal: 1. Did the Commissioner err in law in finding that the death of Robert John Whillock (the deceased) was not caused by a disease? 2. Was the Commissioner in error in not finding that the employment of the deceased was a contributing factor to the death of the deceased by way of aggravation, acceleration or recurrence of a disease? 10. GROUNDS: Oo lL. That the Commissioner misdirected itself at law in not finding that the travelling undertaken by the deceased on Bth May 1977 accelerated and/or aggravated a coronial arterial disease thereby causing death. ty That the Commissioner erred in finding that the death of the deceased was not caused by a disease. 3. That the Commissioner should have found that the travelling on 8th May 1977 was a contributing factor to the aggravation and/or acceleration of a coronial arterial disease thereby causing death. The Court then granted such leave to file the said cross-appeal and adjourned the matter by consent. Thereafter, the appeal and cross-appeal came on for hearing before a Full Court of the Federal Court (Smithers, St John and Northrop JJ) on 18 February 1983 and 15 April 1983 when the Court reserved its decision. Judqment of that Court was given on 24 June 1983 (48 ALR 433) when the Court ordered that: (a) In respect of the appeal herein, (1) that the appeal be allowed. (1i) that the decision of the Workers' 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 3.27(1) thereof. (iv) that the question of costs be reserved. ll. (b>) In respect of the cross-appéal 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. The effect of the reasons for judgment of the majority of the Full Court of the Federal Court was that H1s Honour Judge O'Meally erred in law in finding that the deceased had died from a direct "injury" suffered in the course of his employment by the Commonwealth on 8 May 1977. That 1s to say the learned Judge had erred in considering the matter as a claim for personal injury directly under s.27 of the Act and not asa deemed personal injury claim as a consequence of an aggravation or acceleration of a disease contributed to by the employment of the deceased by the Commonwealth (that 18. as a claim pursuant to s.2 of the Act). This is clear from the observations of Smithers J who after making reference to Slazengers' Case (1951) A.C. 13, Butler's case (1958) 102 CLR 465, Hussey's case (1959) 102 CLR 482, Commonwealth v Hornsby (1960) 103 CLR 588, and Oqden's case (1967) 116 CLR at 569, 570 said at 48 ALR 443: Of course, once identified as aggravations of a previously existing disease, each of the thrombus, the occlusion and the myocardial necrosis, operates as an injury in its own right, 30 to speak, but only if the aggravation was contributed to by the employment. The same 1s 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 aggravation of the disease, such approach would ' have been supported by the evidence. Un 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 had answered it in the affirmative there was evidence before him on which zguch 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 3.27(1) of the Act. 'Emphasis added). 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. 3t John J ina separate judgment agreed with the conclusions of Smithers J and the consequential orders proposed by him. The matter again came on before His Honour Judge O'Meally on 7 November 1983. No further evidence was then presented to the Commission. After hearing submissions from Counsel for the respective parties, His Honour gave the following ex tempore judgment. O'Meally, J: This matter comes before me at the direction of the Federal Court of Australia to which an appeal was made against my findings and order of 7 May 1982. I then determined that the deceased, who died of a myocardial infarction, had suffered an injury in the course of his employment with the respondent. However, the Federal Court, by majority, expressed the view that I was wrong in that conclusion and that the matter ought to be remitted to me for consideration whether or not the deceased's employment was responsible for the aggravation, acceleration or recurrence of the deceased's coronary artery disease. (Emphasis added). 13. I suppose it is not a matter of profound significance but St John J. seems to have been moved, in coming to his conclusion, by use of the phrase "pathological injury" attributed to me. However, that phrase does not appear in the judgment, nor anywhere in the evidence. Nevertheless the matter has been remitted to me by order of the Court to consider some aspects which their Honours apparently thought I had not considered when I gave my extempore reasons on 7 May 1982. I did say at page 4 of my judgment that I was not satisfied on the evidence that the injury to the deceased arose out of his employment. That remains my view, although it has been urged upon me by counsel for the applicant that I ought to reconsider it in the light of the evidence which was before me. It 18 conceded by counsel for the respondent that I am entitled to reconsider the matter anew, even though I had expressed a concluded view when I gave my judgment initially. Having analysed the evidence and argument, i1t 1s put by counsel for the applicant that the applicant is entitled to succeed if I am satisfied that the deceased engaged in exertion or exerted effort which was responsirble for the occlusion of his coronary artery and subsequent infarction. The facts were not exhaustively recited in my reasons of 7 May 1982 but so far as the submission made by counsel for the applicant 1s concerned, the following facts are relevant. The deceased boarded "Stalwart" by a gang plank which was probably ona level plane of thirty feet in length. To arrive at it he traversed a distance something less than forty yards and had, as I previously mentioned, ascended eleven stairs to arrive at the mess. Whilst at the mess, he was still experiencing back pain. It 15 said that I ought to find that whilst in the mess he began to experience chest pain and anfer that as a consequence he attended the sick bay, which involved his ascending a further eleven steps; that the effort of ascending eleven stairs accelerated the occluding process and consequentially the infarct and that being on "Stalwart" was an incident of employment, the disease process was accelerated by his employment. I am unable, on the evidence, to find when it was that he suffered the onset of chest pain. That is critical to the submission made by counsel for the applicant, because accepting as I do the evidence of Dr Shiller that the infarct began at the time chest pain was experienced, it becomes impossible to say when the infarct began; so that one cannot determine whether 1ts onset or even its acceleration was affected by any effort. It is, of course another question whether the effort that would have been involved in ascending eleven stairs would have been sufficient to accelerate the disease process; but in the light of the conclusion which I have announced, it 15 unnecessary to express an opinion on that matter. The conclusion therefore to which JI am regrettably caused to come 13 that the determination of the Commissioner is correct and it 15 confirmed. I make no order as to costs. The appellant appealed to the Federal Court from that decision on 2 December 1983. Thereafter the appeal was listed before a single Judge of the Court for directions on at least three occasions before the matter was directed to be included amongst matters in a call-over list for the Sydney Full Court sittings of the Court. An amended Notice of Appeal filed herein on 20 February 1986 shows the questions of law raised on the appeal as follows: 1. Was the Commissioner in error in not finding that the employment of the deceased was a contributing factor to the death of the deceased by way of aggravation, acceleration or recurrence of a disease? 2. Was the Commissioner in error in not finding that the deceased died as a result of the aggravation or acceleration of a disease to which his employment was a contributing factor? whilst the grounds of appeal are shown as: lL. That the Commissioner was in error in not considering whether or not pursuant to Section 31(3) of the Act that the death of the deceased had been contributed to by an aggravation and acceleration of a disease? ta That the Commissioner should have found that the employment of the deceased was a contributing factor to the aggravation and/or acceleration of a coronial arterial disease, thereby causing death? it. > That the Commissioner Shruld have found that the travelling on the 8th Mav, 1977 was a contributing factor to the aqaravation and/or acceleration of a coronial arterial disease, tnersby causing death? 4. That the Commisslonez was in error in finding that he could not determine whether the onset of chest pain or even 1ts acceleration was affected by any effort? ani sought srders that: lL. That the arpeal be allowed. ts That the decision of the Ccmmissioner Jiven on 7th November 1383 be set aside and in lieu thereof that an award be made in favour of the applicant. The sections of the Compensation (Commonwealth Government Employees) Act 1971 dealing with appeals from prescribed Courts to the Federal Court of Australia, namely Division 5, which included 5.95 of the Act, were repealed by the Commonwealth Functions (Statutes Review) Act 1981, Part VI and Schedule 2. Section 95(3) read: 35(3) The Federal Court of Australia shall hear and determine the appeal and - (a) may affirm, vary or set aside the decision of the Compensation Tribunal or the judgment or order of the prescribed Court; 'b) may give such judgment, or make such order, as 1n all the circumstances it thinks fit; and (c) may remit the case for re-hearing and re-determination, either with or without the hearing of further evidence, by the Compensation Tribunal or prescribed Court, Or for re-determination by the Commissioner, in accordance with the directions of the Federal Court of Australia. 16. Section 151 of the amending Act makes provision for the saving of -95 of the principal Act in respect of determinations by the Ww Commissioner for Employees Compensation made before the date of the amendments, namely 1 July 1981. Here it will be recalled that the Commissioner's determination was made onan earlier date, namely 7 May 1980. I respectfully agree with the observations of Smithers J at 48 ALR 433 at 443/4 which 18 emphasised in the extract from his reasons for judgment set out above that the question for consideration by the trial Judge on his first determination and again on re-determination was whether any employment of the deceased by the Commonwealth was a contributing factor to the aggravation or acceleration of his pre-existing coronary artery disease. A perusal of the two separate reasons for judgment of O'Meally J dated 7 May 1982 and 7 November 1983 leaves me with the belief that at no stage has the learned Judge properly addressed this question. In particular on his re-determination of the matter following the Full Court of the Federal Court's decision in June 1983 wherein the proper question for consideration is clearly raised in the judgment of Smithers J, His Honour does not set out the question as posed by Smithers J at all but states that he has been directed to consider whether the deceased's employment was responsible for the aggravation, acceleration or recurrence of the deceased's coronary artery disease. It 12 clear, in my view, that the learned Judge then addressed his mind to a wrong question in circumstances which have resulted an an error of law being committed. tAnisminic v Foreign Compensation Commission £1969] 2 AC 147 @ 171 (Lord Reid) and 195 (Lord Pearce)). I have had the opportunity of reading a copy of the draft reasons for judgment of Beaumont J's herein and agree with his expressed view that O'Meally J "took an unduly restricted view of the inquiry committed to him". A detailed study of all the evidence before the learned trial Judge as set out in the Appeal Book indicates that a tribunal of fact may have concluded, on the balance of probabilities, that the deceased's employment was a contributing factor to the aggravation of the deceased's disease. Such evidence should, 1n my view, have been dealt with by His Honour and would, I feel sure, have been referred to by him 1f he had addressed his mind to the proper question. It was of course open to His Honour having considered any evidence supporting such a finding to have rejected it or portions of it so as to conclude that he was not satisfied that the deceased's employment was such a contributing factor. But owing to the absence of reasons in this regard, I cannot, in all the circumstances, feel the degree of confidence required to be satisfied that His Honour did in fact address the appropriate question. 18. In my view the appeal should be allowed and the decision of the Workers' Compensation Commission given on 7 November 1983 be set aside. Under the provisions of 3.95 of the Commonwealth Act before the 1981 amendments referred to above the Court would have remitted the matter back to then prescribed Court, the Workers' Compensation Commission of New South Wales. But the New South Wales Workers Compensation Commission was effectively abolished an June 1984, (see NSW Acts 89, 90 and 93 of 1984). It appears that the saving provisions of the amending NSW Acts (see Act 93 of 1984, s. 6 Sch 2 Cl 8) make no provision in respect of the present matter should the appeal be allowed. This question has been raised with Counsel for the respective parties. It was agreed between the parties that should the Court allow the appeal then the proper course would be for the matter to be remitted back to the Commissioner for Employees' Compensation for reconsideration. In all the circumstances therefore, I am of the view that the matter should be remitted to the Commissioner for Employees' Compensation established under s.9 of the Compensation (Commonwealth Government Employees) Act 1971 for re-determination as a matter of urgency. I would reserve the question of costs. It is noted that the Full Court of this Court reserve costs of the first appeal. certify tnat thos and the erghtees 0) preceding pages are a true ccpy of the Reasons for Judgment herein of his Honour Ms Justice Evatt Associate Dated: So erogée , 7PEC IiL THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G115 of 1984 ) GENERAL DIVISION ) ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION OF NEW SOUTH WALES BETWEEN : REGINA BETON WHILLOCK Appellant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Evatt, Beaumont and Pincus JJ. DATED: 3 October 1986 REASONS FOR JUDGMENT BEAUMONT J. Having had the benefit of reading the judgment of Pincus J., I need not repeat what his Honour has said. In the earlier appeal (Commonwealth of Australia v. Whillock (1983) 48 A.L.R. 433), the matter was remitted for reconsideration 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" - per Smithers J. at p.444. So far as presently relevant, s.29 provides: ty "29. (1) Where - (a) an employee ... suffers an aggravation, acceleration or recurrence of a disease; C"disease" 1s defined in s.5(1) to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development"; and (b) any employment of the employee by the Commonwealth was a contributing factor to the....aggravation, acceleration or recurrence....whether or not....the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect. (2) If - (a) the death of the employee; wm ee results from the aggravation, acceleration or recurrence of the disease,....then, for the purposes of this Act, unless the contrary intention appears - (f£) ...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; and (g) the date or death....shall be deemed to be the date of the injury." (By s.5(11), the death of an employee shall be taken to have resulted from an aggravation, acceleration or recurrence of a disease suffered by the employee if the aggravation, acceleration or recurrence contributed to the death.) In his first judgment, O'Meally J. made the following findings :- "The deceased....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 ina 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 learned Judge elaborated these findings in his second judgment as follows:- ",..-it is put by counsel for the Edeceased] that the [Edeceased] engaged in exertion or exerted effort which was responsible for the occlusion of his coronary artery and subsequent infarction....The deceased boarded 'Stalwart' by a gang plank which was probably on a level plane of thirty feet in length. To arrive at it he traversed a distance something less than forty yards and had....ascended eleven stairs to arrive at the mess. Whilst at the mess, he was still experiencing back pain. It is said that I ought to find that whilst in the mess he began to experience chest pain and infer that asa consequence he attended the sick bay, which involved his ascending a further eleven steps; that the effort of ascending eleven stairs accelerated the occluding process and consequentially the infarct and that being on 'Stalwart' was an incident of employment, the disease process was accelerated by his employment. Iam unable, on the evidence, to find when it was that he suffered the onset of chest pain. That is critical to the submission made by counsel for the applicant because, accepting as Ido the evidence of Dr. Shiller that the infarct began at the time chest pain was experienced, it becomes impossible to say when the infarct began; so that one cannot determine whether its onset or even its acceleration was affected by an effort. It is, of course, another question whether the effort that would have been involved in ascending eleven stairs would have been sufficient to accelerate the disease process; but in the light of the conclusion which I have announced, it is unnecessary to express an opinion on that matter. (Emphasis added) The conclusion therefore to which I am regrettably caused to come 1s that the Determination of the Commissioner is correct and it is confirmed." I agree with Pincus J. that the sole question for the learned Judge was whether the deceased's employment was a "contributing factor" to the aggravation of his disease and that it was open to his Honour to hold that the death was caused by a sequence of events, including a partial blockage of the artery followed by exertion, thus justifying a finding that the exertion on the ship contributed to the death. I also agree that the learned Judge's approach may be criticised because his Honour did not even begin the process of attempting to determine to what extent, if at all, exertion on the "Stalwart" contributed to the death; and that the real issue here is whether his Honour was entitled in law to arrest the inquiry simply by declining to make a finding as to the time of onset of the infarct. 5. In my respectful opinion, O'Meally J. took an unduly restricted view of the inquiry committed to him. True it is that the appellant bore the onus of proof to establish, on the balance of probabilities, that the exertion on the ship contributed to the aggravation of the disease. But this issue was to be determined in all the relevant circumstances of the case, regard being had, in particular, to the fact that the primary source of information on the point, the deceased, could not give evidence (cf. Cross on Evidence, 2nd Aust. ed. at p.474). With all respect, the learned Judge should have approached the matter in the broader context of the whole of the circumstances rather than confining his inquiry to endeavouring to ascertain the precise moment at which the infarct began. No doubt, such an inquiry, if fruitful, could well throw light on the ultimate question to be determined in the proceedings. However, the learned Judge's inability, on the evidence, to pin-point that exact moment with scientific precision did not necessarily resolve the matter adversely to the appellant. In other words, when the whole of the circumstances of the case were considered, it could still be open to a court to find that, on the balance of probabilities, the exertion on the ship contributed to the aggravation of the disease. It follows, I think, that the learned Judge addressed his mind to the wrong question and, to this extent, an error of law occurred (see Anisminic v. Foreign Compensation Commission £1969] 2 A.C. 147, per Lord Reid at p.171 and per Lord Pearce at p.195; Sinclair v. Mining Warden at Maryborough (1975) 132 C.L.R. 473, per Barwick C.J. at p.480 and per Gibbs J. at p.483. I would propose that the appeal be allowed, that the decision of the Workers' Compensation Commission given on 7 November 1983 be set aside and that the case be remitted to the Commissioner for Employees' Compensation for re-hearing and re-determination without the hearing of further evidence. It is hardly necessary to say that the matter deserves an expeditious resolution. I certify that, this and the preceding Pv Cs) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. yi Beayno nt. Mile Fis Associate Dated: x fctber Wide IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW G115 of 1984 GENERAL DIVISTON ) BETWEEN: REGINA BETON WHILLOCK Appellant AND: THE COMMONWEALTH OF AUSTRALIA Respondent PINCUS J. REASONS FOR JUDGMENT This is an appeal, said to be on questions of law, from a decision of O'Meally J. in the Workers' Compensation Commission of New South Wales, given on 7 November 1983. That Commission then had the function, pursuant to s.94 of the Compensation (Commonwealth Government Employees) Act 1971 of hearing an appeal as a "prescribed court" from a determination of the delegate of the Commissioner for Employees' Compensation. The case concerned the death on 8 May 1977 of a member of the Royal Australian Navy, Chief Petty Officer Whillock, from a heart attack while being transported by boat from a vessel called the "Stalwart", then in drydock. O'Meally J. first considered the matter in 1982, when he decided, in favour of the applicant widow, that Mr. Whillock had suffered an injury arising out of, or in the course of, his employment; a decision of the delegate was thus reversed. That was on the basis that the process of formation of a clot in the deceased's right coronary artery, which blocked that artery, causing an infarct, constituted an "injury" within the meaning of the relevant provisions of the Act. His Honour's conclusion was successfully challenged on a first appeal to this Court, in which judgment was delivered on 24 June 1983; the case is reported at 48 A.L.R. 433. This Court, then constituted by Smithers, St. John and Northrop JJ., decided by a majority that the first decision of O'Meally J. should be set aside and the matter be remitted for redetermination; the Court held that the relevant event did not constitute an "injury". The reason for remission of the matter was that the Court wished it to be reconsidered on the basis that death was due to a disease, and either the death or disease, or both, might be sufficiently connected with the deceased's work to enable compensation to be recoverable. The relevant provisions of the Act were discussed in the reasons given in the first appeal to this Court, but since that concerned a different question, it is desirable briefly to mention the parts of the Act which are directly material. Section 27(1) creates an obligation to pay compensation for "personal injury arising out of or in the course of the employment" of a Commonwealth employee. The word "injury" is defined by s.5(1), and the definition concludes by saying that the word "subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease". Since the expression "aggravation, acceleration or recurrence" recurs in these provisions, I will, for simplicity, use the single word "aggravation" to stand for the whole phrase. The effect of s.29, so far as relevant here, is to deem the aggravation of a disease to be personal injury arising out of employment if death "results from" that aggravation and the employment was a_ contributing factor to that aggravation. It will be noticed that there are two causal connections required by s.29, one between the aggravation and the employment, and the other between the aggravation and the death. The appellant, on the facts of this case, plainly has no problem with the second; the question 1s whether the employment by the Commonwealth was a "contributing factor" to the aggravation. It should be mentioned, however, that the expression "results from" is so defined in the relevant context by s.5(11) that death is taken to result from an aggravation if the aggravation "contributed to" the death. Then s.31(3) has the effect that the death is taken to have been "contributed to" by the aggravation if, but for the aggravation, "the death of the employee would have occurred at a significantly later time". But the test of occurrence at a significantly later time, derived from s.31(3), is not material here, where there is no doubt that there was an aggravation which caused the death; the sole question is whether the employment was a "contributing factor" to the aggravation. The evidence was that Mr. Whillock, who had had a previous heart attack, suffered a blockage in his right coronary artery which caused his death. The blockage was caused by a blood clot, but there was no suggestion that the clot formed because of anything to do with Mr. Whillock's employment. The case put forward was that exertion in which Mr. Whillock engaged in the course of his employment shortly before his death contributed to the onset, or progress, of an infarct - a death of heart tissue - which was the immediate cause of Mr. Whillock's death. The exertion relied on included moving up the gang-plank of the Stalwart, ascending stairs to the mess and, later, ascending stairs to the sick-bay. When the matter came back before O'Meally J., he reconsidered 1t as directed, but this time confirmed the determination of the delegate. O'Meally J. held himself to be unable to say whether effort in which the deceased engaged shortly before his death was connected with the occurrence of the infarct because he said he could not determine when the infarct began; he could not determine that because the infarct began when chest pain began and the evidence was not such as to enable him to determine when chest pain began. In one sense, the reasons of O'Meally J. were unsatisfactory; his Honour found himself unable to determine the facts on which a positive conclusion as to the entitlement to compensation could have been founded; but, as it seems to me, the failure of O'Meally J. to reach a conclusion on that question was, on the facts, defensible. More to the point, it did not constitute a legal error. Facts relating to the matter are set out in the reasons of Smithers J., who formed one of the majority in the previous decision of the matter by this Court. However, 1t is desirable to deal with the evidence in some further detail, for present purposes. As O'Meally J. found, there was evidence that the infarct began at the time chest pain was experienced, but the evidence as to that time was conflicting. According to N.S. Esson, who spoke to the deceased in the mess on two occasions after 2 p.m. on the day of his death, the deceased then complained of back pain, but not of chest pain. He then left Mr. Esson, and about 3.15 p.m. went to see R.J. Greenwood who was on duty in the sick-bay on H.M.S. Stalwart at the time. From the sick-bay he went to the boat, to be taken to hospital, but died on the boat. Mr. Greenwood said the deceased complained of the same feelings as four years before when he had a heart attack - i.e. of severe chest pain, and said he had had it for about two or three hours. That would fix the onset of the chest pain at a time well before the deceased spoke to Mr. Esson. There was other evidence mentioned in the judgment of Smithers J., referred to above, which suggested that Mr. Esson was right in saying that it was back pain of which the deceased complained; it is unnecessary to set that evidence out. There was also evidence from doctors as to the possibility of various sorts of exertion in which the deceased engaged shortly before his death being connected with the infarct. It has to be kept in mind that the appellant's case was not that the underlying disease was caused by the deceased's employment. Her contention was that exertion shortly before the death, at a time when there was a clot partly closing off what was left of the passage through the right coronary artery, made his heart work harder, creating an increased need for flow of blood through that artery and accelerating his death. Of the medical specialists who were called, all conceded this possibility, but they did not all use language according it the same degree of likelihood. Dr. W.L. Calov thought the emotional stress of the back pain was aggravated by the boat journey and that probably the pain and journey were enough to precipitate death. Dr. Eric Schiller said that if the pain started only in the mess, where the deceased was talking to Mr. Esson, then walking to the sick bay and up a flight of steps, then from the sick bay to the boat "could well have aggravated or exacerbated the cause of his heart condition". Dr. Schiller also thought that, if the chest pain was already present from about 1 p.m. (which would be so if the account given by the deceased to Mr. Greenwood was correct), then the walk from the boat to the ship up a gangway and up steps on the ship "could have aggravated the heart condition in the same way". As to the former possibility, Dr. Schiller said in cross-examination that he thought it was highly probable that the deceased would have died whether he had stayed in the sick bay or moved from it. Dr. David Brender, while generally speaking opposed to the theory that exertion had something to do with the deceased's death, conceded the possibility that if there was a thrombus present within two or three hours before the death, the exertion the deceased engaged in could have aggravated his condition. On this evidence, as it seems to me, it was open to O'Meally J. to hold the death was caused by a sequence of events, including a partial blockage of the artery followed by exertion, justifying a finding that exertion on the day in question contributed to the death; it seems clear, however, that O'Meally J. was not obliged so to find. To my mind, the most substantial criticism of his approach was that he did not even begin the process of attempting to determine to what extent, if at all, exertion on the ship contributed to the death. He failed to do so because, as he thought, he could not determine when the chest pain began and therefore could not determine when the infarct began. One could say, in opposition to the learned judge's opinion, that whenever the infarct began its onset was likely to have been contributed to, or its progress promoted, by exertion; but I do not think his Honour was obliged to take so broada view. The assumption underlying his reasoning was that, without a finding as to the stage at which the infarct began, there was no rational foundation for postulating a particular course of events including exertion as a contributing factor. For example, if the infarct began and progressed substantially during a time when the deceased was, as Mr. Esson said, sitting and lying about before ascending to the sick bay, it would seem difficult to reach a conclusion favourable to the appellant. One contention which was urged upon us by counsel for the appellant was that it was likely that the deceased's having moved from the mess to the sick bay contributed to the onset or progress of the infarct - or, at the least, that the possibility of its having done so should have been expressly examined by the learned judqe. It does not appear to me, however, that 1f his basic approach was defensible, 1t would have been consistent with that approach to treat that phase of the deceased's activity before his death as being of special significance. It is noteworthy that Dr. Calov who, of the three physicians who gave evidence, had the view most favourable to the appellant, did not place emphasis on the ascent to the sick bay. But that is not the principal point; in my view, the real issue is whether his Honour was entitled in law to arrest the enquiry at the threshold, so to speak, by declining to make a finding as to the time of onset of the infarct. I think that mode of treatment of the facts was well within the range of permissible outcomes. Being entrusted with the task of finding the facts, the learned judge found himself unable to reach a conclusion as to the time of onset of the infarct. The onus lay upon the appellant to prove a set of facts leading to a conclusion favourable to her case, and she failed to do so. Since his Honour was not able to be satisfied as to when the infarct began, it would have been largely a matter of speculation as to what any particular phase of the exertion engaged in, or that exertion considered as a whole, had to do with the onset or progress of the infarct. I have read the reasons prepared by Evatt J. and have noted his Honour's view that O'Meally J. did not properly address the question whether the deceased's employment was a contributing factor to the aggravation or acceleration of the disease. While it might, in my respectful opinion, have been better if O'Meally J. had set out, in his second judgment, the relevant words of the statute rather than paraphrases, I cannot accept that it is at all likely that O'Meally J. decided the matter in ignorance of the precise wording of the causal test posed by the legislature - "contributing factor". The first sentence of the first set of reasons includes an express reference to that test, and there are two further references to s.29 in which it is set out. For reasons which it is unnecessary to recapitulate, when the matter first came to this Court 1t was remitted to O'Meally J., specifically for reconsideration of the question whether employment was a contributing factor to the aggravation of the disease. I would be loath to draw the inference that O'Meally J. simply failed to notice what the task was which was explicitly set him, and do not think the matter should be remitted for a second reconsideration of the same point. It is my view that the conclusion at which 0'Meally J. arrived is not shown to have been affected by any legal error and that the appeal should be dismissed. i certify that this andthe @ — precoding pages are a tra ccoy of the reasons 1. r judgment herein of His Honour Mr Justice Pincus Ge heel Koen 7 'Associate Dated 3 Crtelen i926 |