Commonwealth v Hornsby [1960] HCA 27

High Court of Australia Dixon C.J. Fullagar, Taylor, Menzies and Windeyer JJ. Commonwealth v Hornsby [1960] HCA 27

ORDER Whereas at the hearing of the appeal from the order of the County Court at Melbourne by the Commonwealth of Australia it was ordered that special leave to appeal against such order be granted to the Commonwealth Bank of Australia and that the name of the said Commonwealth Bank be added to the appeal as a party appellant, Order that the appeal be allowed with costs and the order of the County Court be discharged. In lieu thereof order that the appeal to the County Court from the determination of the Delegate of the Commissioner for Employees' Compensation be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1960, May 19 Dixon C.J.

Stanley Hornsby, the respondent, was employed by the Commonwealth Bank in the note printing branch. He lived at Newport and his place of work was in Victoria Parade, Fitzroy. He made daily journeys between his home and his work in part on foot, in part by train and in part by tram. On 15th April 1958, as he approached the tram stop at which he would alight he felt sensations in his right hand and foot and as he got out of the tram he tumbled. He had in fact suffered a cerebral stroke resulting in right-sided partial paralysis. It was not a cerebral haemorrhage. In his evidence the physician who acts as medical officer of the Commonwealth Bank said that his findings indicated that Hornsby had a right-sided paralysis of the arm and leg due to a cerebral vascular accident—that is a stroke in common parlance—and this was due to a thrombosis which occurred in an atheromatous blood vessel in a hypertensive obese man. The witness said that by the thrombosis of the blood vessel in his brain a certain part of the brain that would normally receive blood from that vessel was thrown out of function; there was a part of the territory that received no nourishment and died. He went on to say that with that kind of stroke it was common that the part affected would be the motor area of the brain which has to do with gross muscular movements. And that was so in Hornsby's case. From this evidence I take it that the thrombus in the atheromatous and sclerotic but doubtless small blood vessel, perhaps building up rapidly, caused an ischaemia resulting in a necrosis of brain cells and the consequent paralysis. In this there can be seen a physiological change definite and specific, destructive alike of cellular matter and of function, occurring not gradually but with sufficient suddenness to make the phrase "dramatic event" justly applicable, one resulting immediately in some degree of bodily disablement. The question in the case appears to me to be whether it should be regarded as "injury by accident". Section 9A (1) of the Commonwealth Employees' Compensation Act 1930-1956 provides that where personal injury by accident is caused to an employee while he is travelling to or from his employment by the Commonwealth the Commonwealth shall, subject to the Act, be liable to pay compensation as if the accident were an accident arising out of or in the course of his employment. It may for the moment be assumed that as a result of s. 22 this applies mutatis mutandis to employment by the Commonwealth Bank. Hornsby claimed compensation from the Bank but his claim was rejected by the Delegate of the Commissioner. On appeal under s. 20 to the County Court at Melbourne Judge Moore held that the appellant is entitled to compensation. His Honour clearly enough was of opinion that the stroke suffered by the appellant amounted to an injury by accident but his finding was criticized because he applied the word accident to the thrombus. However, as it seems to me, the finding or conclusion must be shown to be wrong before the appeal can succeed. I say this in spite of two views put forward either of which if well founded would for other reasons defeat the respondent's claim. In the first place it is contended that notwithstanding the use in s. 9A (1) of the word "while" in the expression "while he is travelling" the provision means that in some sense the injury must be occasioned by the journey or its incidents. It is said that otherwise s. 9A would be out of harmony with s. 9 (1) which, so it was argued, means or implies that an injury by accident cannot arise in the course of the employment unless but for the employment it would not have occurred. I do not think that s. 9 (1) has this meaning or implication but I would remark that it would be more natural to treat the use of the word "while" in s. 9A (1) as a reason for rejecting such an interpretation of the words "arising in the course of the employment" than to mould the plain word "while" in s. 9A (1) to conform with the meaning ascribed to s. 9.