CATCHWORODS ADMINISTRATIVE .LAW - Compensation (Commonwealth Government Employees) Act 1971 - proper construction of s.30 - meaning of disease "of a kind" specified in the Regulations - whether cancer of the tongue a pathological condition of the kind of pathological condition caused by exposure to radiation. Compensation (Commonwealth Government Employees) Act 1971, ss.27, 29, 30. Compensation (Commonwealth Government Employees) Requlations Commonwealth Employees' Compensation Act 1930, s.10. THE COMMONWEALTH OF AUSTRALIA V. F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) & ANOR. QLD. NO. G25 OF 1987 SPENDER J. BRISBANE 23 JUNE 1987. e t ' ep ae ra PP a ee oe at - 3 : oe aay —— oti aaiedent ated vets ok - IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD. G25 of 1987 ) GENERAL DIVISION ) BETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) First Respondent AND: COLIN IRVINE BIRD Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 23 JUNE 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application be dismissed, with costs, including reserved costs. NOTE: Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules. a om A a Vee > —~— IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISTON BETWEEN : QLD. G25 of 1987 THE COMMONWEALTH OF AUSTRALTA Applicant F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) COLIN IRVINE BIRD DATE OF HEARING: DATE JUDGMENT DELIVERED: COUNSEL : for the applicant for the first respondent for the second respondent First Respondent Second Respondent ll JUNE 1987 23 JUNE 1987. Mr. G.L. Davies 9.C. and Mr. J.A. Logan, instructed by Australian Government Solicitor Mr. P.L. O'Shea instructed by Morris Fletcher & Cross Mr. T.R. Hartigan 9.C. and Mr. W.T. McMillan, instructed by Hawthorn Cuppaidge & Badgery T. MACDERMOTT ASSOCIATE TO SPENDER J. oerrenneypemensyayenny aya + t A . IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QLD. G25 of 1987 weveuw GENERAL DIVISTON BETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) First Respondent AND: COLIN IPVINE BIRD Second Respondent SPENDER J. BRISBANE 223 JUNE 1987. REASONS FOR_JUDGMENT This 1s an application to review the decision of Mr. F.R Spaul, a delegate of the Commissioner for Employees' Compensation, of 14 November 1986, by which decision Mr. Spaul made a determination that the Commonwealth of Australia, through the Department of Defence, was liable to pay compensation to Mr. Bird, the second respondent, under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). we tee eee ee ee er PTR rere aye - ' maw' . The first respondent appeared as a submitting party. The Commonwealth of Australia alleges that the decision by the delegate involved two errors of law. It says that, pursuant to s.30 of the Act, the delegate was obliged to decide whether or not Mr. Bird's condition was caused by radium, another radioactive substance, or x-rays, and was also obliged, pursuant to the same section, to decide whether it had been established that the employment in which Mr. Bird was engaged by the Commonwealth of Australia was not a contributing factor to his contraction of that disease. This application by the Commonwealth to the Federal Court is not concerned with the merits of the claim to compensation by Mr. Bird, but with the question of whether error of law in the determination by the delegate has peen demonstrated. The determination of the delegate of the Commissioner for Employees' Compensation of 14 November 1986 was:- 1. The said Colin Irvine Bird contracted a disease, namely right cervical node metastasis from carcinoma of the tongue, and by virtue of section 30, his employment was a contributing factor to the contraction of that disease. 2. The said Colin Irvine Bird first obtained medical treatment in relation to the disease on 15 April 1980. 3. The disease is deemed to be a personal injury to the said Colin Irvine Bird arising out of the employment and 15 April 1980 1s deemed to be the date of injury (sub-section 29(2)). 4, In accordance with the provisions of section 27 of the said Act, the Department of Defence is liable to pay compensation in respect of the said personal injury. By s.29 of the Act, where an employee contracts a disease and any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease, and total or partial incapacity for work of the employee results from the disease, then for the purposes of the Act the contraction of the disease 1s deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth, and s.27 imposes liability on the Commonwealth to pay compensation in respect of that injury in accordance with the Act. It is to be noted that an essential element under 5.29 1s that employment by the Commonwealth be a contributing factor to the centraction of the disease. This application 1s concerned with the true construction ef s.30 of the Act. Section 30 provides:- " Without limiting by implication the operation of Section 29, where - fa) anemployee has suffered or is suffering from a disease or the death of an employee results from a disease; (b) the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and (c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind, then, for the purposes of this Act, unless' the contrary is established, the employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease." le TUT nee er nr eee cr Ep pie ome ene cern ce cont ws . yg rr 2 nn oe . ar oe ee yee " - Section 30, therefore, deems a causal connexion between particular kinds of disease and particular kinds of employment. Regulation 12 of the Compensation (Commonwealth Government Employees) Requlations provides:- "For the purposes of section 30 of the Act, a disease of a kind specified in the first column of the First Schedule to these Regulations is related to employment of a kind column of that Schedule specified in the second opposite tc the reference to that disease in the first column." Item 4 in the First Schedule has, in the first column under the word 'Disease' :- "Pathological condition caused by - (a) radium or another (b) x-rays." radioactive substance; or And in the second column, under the word 'Employment', - "Employment involving exposure to or contact with radium, other radioactive substances, or x-rays." It is helpful if reference is made also to other items in the Schedule. For instance, - "5, Pneumoconiosis Poisoning by antimony or a compound of antimony; any of the sequelae of such a poisoning Employment involving inhalation of matter capable of causing pneumoconiosis. Employment involving exposure to or contact with antimony, a compound of antimony or a preparation containing antimony or such a compound. ar eels <a pee: a ee ne oe Py > wry as re mene 24. Primary epitheliomatous Employment involving cancer of the skin exposure to or contact with tar, pitch, bitumen, mineral oil, paraffin or a compound, product, or residue of any of those substances." The employment specified in each of Items 4, 6 and 24 is descriptive, in terms of exposure to the named substances; the employment in Item 5 is more general, involving a consideration of whether the employment has the capacity of causing pneumoconiosis. This involves an inquiry into whether matter inhaled in the employment is capable of causing pneumonconiosis. As to s.30(a), it 1s not in dispute that Mr. Bird is suffering from a disease, namely right cervical node metastasis from carcinoma of the tongue, and as to s.30(c), it 1s not in dispute that Mr. Bird was, before symptoms of that disease first became apparent, engaged by the Commonwealth in employment involving exposure to or contact with radium, other radioactive subtances, or x-rays. Tt appears from the reasons of the delegate for his determination made on 14 November 1986, which reasons are annexed to a letter dated 12 January 1987, Mr. Bird was in the R.A.A.F. from June 1943 to November 1965. For about five weeks in September~-October 1952, he was deployed to Broome in Western Australia with 82 Wing as part of the ground-crew (engine maintenance) for Lincoln bombers. These bombers were used to collect radioactive air and dust samples after the Hurricane blast at Monte Bello Island on 3 October 1952. Mr. Bird and other R.A.A.F. personnel removed the cannisters attached to the SO re ec ee pepe ep eee ne sen ee ? . '" . wre ——-, yo re en rey watts . we ane - underside of the wings of the Lincoln bombers which collected samples of radioactive air and dust. No protective clothing was worn by Mr. Bird. Mr. Bird was also involved in later servicing of those Lincoln bombers as part of regular maintenance and repairs, including the most radioactive areas of the Lincolns, the engines, batteries and oily areas. He was also involved in the 'cleaning' of the contaminated Lincolns with steam hoses, which cleaning extended over several months. In his reasons, the delegate specifically noted the finding of the Royal Commission at para. 16.0.5:- "The Royal Commission has accepted that in the present state of knot7ledge 1t must be assumed that any exposure to ionising radiation, however small the dose, gives rise to an increased risk of cancer or heritable defects." On 29 July, 1982, the Queensland Radium Institute reported that Mr. Bird had presented himself in June 1980. There was a diagnosis of right cervical node metastasis from carcinoma of the tongue and right tonsillar region made by the Head and Neck Clinic of the Princess Alexandra Hospital. The delegate specifically found that:- "The carcinoma which Bird has can be caused by exposure to radiation." <r a An ear, nose and throat surgeon, Dr. Russell Bird, advised the delegate that he was not aware of any tests which could determine whether Bird's cancer was caused by exposure to radiation, but that such exposure 15 a possible cause. The delegate, in paragraphs 23 and 24 of his' reasons, dealt with the matters that are the subject of this application. He said:- "23. It was concluded that the condition suffered by Me. Bird was a condition of a kind caused by exposure to radiation and to that extent section 30 was satisfied. 24. The delegate also noted that other possible causal factors, namely smoking and the heavy use of alcohol existed in this case, however 1t was considered that the presence of those factors and the funquantified) probability of either or both being a more likely cause of the condition does not necessarily eliminate exposure to radiation as e1ther a possible or probable contributing factor and therefore does not 'establish the contrary' for the purposes of section 30." The submissions for the Commonwealth, shortly put, are that the delegate was in error in that he construed a pathological condition caused by radium or another radioactive substance, Or x-rays", as "a pathological condition capable of being caused by radium or another radioactive substance, or x-rays". The Commonwealth asserts that it was necessary for the delegate to conclude that the pathological condition of Mr. Bird was caused by radium or another radioactive substance, or x-rays and his determination therefore involved error. It was said also that the reasons expressed in para. 24 involved error in that the possibility that exposure to radiation was a contributing factor to Mr. Bird's disease is not relevant to the enquiry whether the employment by the Commonwealth was not a contributing factor to the contraction of the disease: it 15s only if the matters referred to in (a), (b) and (c) are each established, that it is necessary to turn to whether "the contrary" of the connexion 1s established and, in turn, (b) requires that the disease be actually caused by radium or another radioactive substance, or x-rays. The mere possibility of exposure to radiation being a contributing factor to that disease 1s therefore not ainvolved in the question of whether "the contrary be proved". That question is directed to whether it is established on the balance of probabilities that the disease from which the employee is suffering (which, on the submission of the Commonwealth, must be one actually caused by exposure to radium or other radioactive substance or x-rays) was not caused or contributed to by his employment by the Commonwealth. Counsel for Mr. Bird submitted that the specification in the First Schedule to the Regulations, "Pathological condition caused by radium or another radioactive substance, or x-rays" is descriptive. It does not import a requirement that it be proved that the cancer from which Mr. Bird suffers was caused by exposure to radiation in the sense of proving that exposure to radiation was a contributing factor to his contraction of that disease. —— sa "ah The Act is bencficial in purpose and is therefore to he construed as amply as the provisions will properly permit. The sections with which I am presently dealing have as their predecessor, s.10 of the Commonwealth Employees' Compensation Act 1930. Section 10 of the 1930 Act visited liability on the Commonwealth to pay compensation if, inter alia, the disease from which the employee suffered was "due to the nature of the employment in which the employee was engaged by the Commonwealth". In Connair Pty.Ltd. v. Frederiksen (1979) 142 C.L.R. 485, the High Court was concerned with the provisions of s.9 of the Workmen's Compensation Ordinance 1949 (N.T.}. Gibbs J., as he then was, said at 493:- "The provisions of s.9(1) of the Ordinance, in their original form, were in substance identical with those of s.10(1) of the Commonwealth Employees' Compensation Act 1930-1956 (Cth) ('the Act') whose meaning has been considered in three decisions of this Court - The Commonwealth v. Bourne (1960) 104 C.L.R. 32; The Commonwealth v. Thompson (1960) 104 C.L.R. 48, and The Commonwealth v. Rutledge (1964) 111 C.L.R. 1. Gibbs J. continued at p. 494, "The source of the relevant words of s.9(1) appears to have been s.8 of the Workmen's Compensation Act 1906 (U.K.) although the words that appeared in that section were "the disease is due to the nature of any employment in which the workman was employed". It was held by the House of Lords in Blatchford v. Staddon & Founds £1927] A.C. 461 that those words are not synonymous with the words 'due to the employment', and that under 5.8 a workman was entitled to compensation if the disease was 'incidental to that class of employment so that it' Ecouldd 'be attributed to service therein' (192717 A.C., at p.470. = pe ee sere ager epee as t . Penne a Tee en ee nee: pes apap 10. In other words, once the workman proved that the employment was 'of a nature to cause the particular disease' from which he was suffering, he was not required to prove that the disease in fact resulted from his employment with any particular employer: Hopwood v. Textile Paper Tube Co.Ltd. £19461 1 All E.R. 618, at p.620. The workman was thus relieved of the necessity of showing that the actual employment with any particular employer caused or aggravated the disease." In The Commonwealth v. Bourne (1960) 104 C.L.R. 32, Dixon C.J. said at p. 39:- "The word 'nature' is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the 'disease' in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics." In Blatchford v. Staddon and Founds £19271 A.C. 461, a painter claimed compensation from the respondents in respect of disablement caused by lead poisoning. He had first contracted lead poisoning in 1918 and had last worked as a painter with the respondents in late 1924, when he left owing to illness. The arbitrator found there was nothing in the nature of the appellant's employment with the respondents to justify the conclusion that the disablement was due to that employment. The House of Lords held that, to entitle workmen to compensation under s.8 of the Workmen's Compensation Act (1906), it was sufficient for him to prove that his work with his last employer during the 12 months previous to the date of disablement was of the same nature as the work to which the disease was due and that | consequently Mr. Blatchford was entitled to compensation. wee ere nec ee . - . on que ow 4 eto — ll. As to the reasons for the introduction of s.8 of that Act, Viscount Sumner spoke, at p. 467, of the diseases which attack workmen: "They come on gradually; their first steps may not be perceptible for some time; their rate of progress may vary widely; they have their ups and downs. The patient sometimes makes a complete recovery and sometimes only an apparent one, and the periods, during which they may be quiescent and latent, may vary greatly. In the case of such diseases an applicant, who had not been long in the employment of the respondent, would naturally be met with the suggestion that his disease had been previously contracted and therefore did not arise out of it, and in meeting this defence by proof that it actually arose during and out of his employment by the respondent he might well find the difficulty insuperable. It appears to be common ground, and rightly so as far as I know, that this fatal disadvantage may often occur and that the Legislature must have been aware of it." And at p. 470 said: "In construing the Act effect must be given to the words 'to the nature of'. Their meaning cannot be the same as if the section had simply said 'is due to' any employment. I think they are inserted because this part of the section 1s not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment in which the workman has served several employers." The factual circumstances are, of course, different from the present: the problem there addressed was the difficulty of causation between several similar employments, each of which might have, either itself or in conjunction, have caused the disease. Nonetheless, I have found the observations to which I have referred of assistance. a+ Ld ae ea ee Ti . oe . Sh teal —— 12. If it were necessary to establish that the cancer of Mr. Bird had been caused or contributed to by exposure to radiation, he would face very substantial difficulties. While exposure to radiation is a possible cause of his cancer, there are other and more likely causes, namely smoking and the consumption of alcohol. In my opinion, the answer to the present question is to be found in the words of s.30(b)}, that the disease be a disease 'of a kind' specified in the regulations. The words "of a kind" have a purpose to serve. The contention of the Commonwealth is that it is necessary that the cancer be caused by exposure to radiation and s.30 would, on that being done, supply the required linking between the exposure to radiation which caused the cancer and the exposure to radiation in the course of Mr. Buird's employment with the Commonwealth. On that argument, it seems to me that the disease suffered by Mr. Bird would be "a disease specified in the first column of the First Schedule", and the words "of a kind" would be otiose. The relevant question is "Is the pathological condition from which Mr. Bird suffers a kind of pathological condition that is caused by radium, another radioactive substance, or x-rays?" If "yes", then the requirements of the section are satisfied and the deeming provision applies, unless it be established that his employment as ground crew by the Commonwealth was not, on the balance of probabilities, a contributing factor to his contraction of the disease. ST a SE tg rt en ep rte pe ere ee ye 13. "Kind", in its ordinary meaning, means "class, variety or sort." In my opinion, whatever be the cause or causes of Mr. Bird's cancer, it is correct to say that his cancer is of a kind of cancer caused by radium, another radioactive substance or x-rays. It is of the same class, sort or variety of pathological condition as a pathological condition caused by exposure to radiation. This conclusion, in my view, is consistent with the approach adopted in the authorities to which I have referred. It recognises the practical realities of the difficulty of proof of causation, to which the Courts and Legislatures have been sensitive, as Viscount Sumner noted. It 1s consonant with a philosophy that, if aworker's disease might well have been caused by the circumstances of his employment, although other causes be possible, it is right that the worker be compensated. In my opinion, the delegate was not in error in concluding as he did in paragraph 23 of his reasons. It 1s clear that the words "unless the contrary is established" are directed to the question of connexion between the employment of the employee by the Commonwealth and the factors contributing to the employee's contraction of the disease. The effect of the section is simply that, where the requirements set out in (a), (b) and (c) of the section are satisfied, the employment is deemed to be a contributing factor — ry ere ay 14. to his contraction of the disease, unless it is established on the balance of probabilities that his employment by the Commonwealth was not a contributing factor to his contraction of the disease. So understood, in my view, para. 24 in the delegate's reasons amounts to no more than a finding by the delegate, somewhat difficultly expressed, that neither smoking nor the heavy use of alcohol, or a combination of them, had been shown on the balance of probabilities to be the sole cause or causes of his contraction of the disease so as to enable the conclusion to be reached that the employment of the employee by the Commonwealth (involving as it did exposure to radiation) was not a contributing factor to the contraction of the disease. The application is dismissed, with costs. | certify that this anc the !3 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Spender GQ Mab 24 |e / QF Associate - oe yoy err po ere een re Ae ee re ge ert er ee ern = 7 or 7 a ------ "