Pethick v Commonwealth [1960] HCA 75

High Court of Australia Dixon C.J. McTiernan and Menzies JJ. Pethick v Commonwealth [1960] HCA 75

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 18 Dixon C.J.

This is an appeal from an order of a Local Court made in the exercise of the federal jurisdiction conferred on it by s. 20 of the Commonwealth Employees' Compensation Act 1930-1959. By the order appealed from the Local Court dismissed an appeal from a determination of the Delegate of the Commissioner for Employees' Compensation revoking certain earlier determinations and declaring that the appellant had not sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth and did not suffer a disease attributable to the nature of his employment by the Commonwealth. The so-called employment by the Commonwealth consisted in National Military Service. The appellant, being then eighteen years of age and serving an apprenticeship to a butcher, was called up for National Service training in 1956. On 15th August 1956 he entered Woodside Camp, South Australia, and was there assigned to the Engineer Corps. On 23rd October 1956 he was one of a party who made a long march, during which he began to run a temperature. On his return to camp he was put in hospital. The diagnosis seems to have been bronchitis although an ex post facto account of the symptoms may be thought to throw doubt on that diagnosis. He was treated with penicillin and kept in hospital for some days. After his discharge from hospital he resumed his military training. According to his evidence he could not execute his duties as easily as before and he became breathless after much running; but otherwise he was fit to undergo training. He was discharged from camp on 22nd November 1956 and returned to his civil occupation. On 31st December 1956 he suffered another attack of illness similar in its onset to that encountered at the camp. He was treated again with penicillin and after a fortnight was allowed to leave bed, but on 18th January 1957 he suffered a relapse and then for the first time a murmur from the aortic valve of his heart was discovered or became apparent. He was placed in hospital and treated by a specialist in cardiology. His diagnosis was sub-acute endocarditis. After a considerable period of treatment the appellant was discharged from hospital. His condition of health, however, was much impaired and on 30th May 1957 he made an application for compensation under the Commonwealth Employees' Compensation Act. A medical board reported that he suffered from an aortic regurgitation and a healed sub-acute bacterial endocarditis, a condition resulting from an infection of a pre-existing damaged valve. Upon this report compensation was allowed to the appellant but on 23rd September 1959 the determinations by which it was awarded to him were revoked, in consequence, it was said, of applying to his case the decision of this Court in The Commonwealth v. Ockenden [1] (decided 14th August 1958). Hence the appeal to the Local Court. It is from the order of the Local Court dismissing the appeal that the present appeal comes to this Court. From the expert and other evidence and the analysis of the evidence made by the learned special magistrate the following conclusions may be drawn.