Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 5 McTiernan J.

This appeal concerns an award of the Workers' Compensation Commission of New South Wales (Judge Wall). The award was made under the Workers' Compensation Act, 1926-1960 N.S.W.. The Supreme Court of New South Wales dismissed an appeal under s. 37 of the Act by the employer against the award. The Court was divided. The majority were Sugerman and Moffitt JJ. Else-Mitchell J. dissented.

By the award the appellant was ordered to pay compensation to the respondent in respect of an "injury" on the basis that it came within par. (b) of the definition of injury in s. 6 (1) of the Act. The nature of such injury is the deterioration of a mental disease—schizophrenia. The principal question is whether from the facts proved the Commission could find that there was a "deterioration" and that the respondent's employment was a contributing factor to it.

There was evidence of these facts. The respondent suffered from chronic schizophrenia. Her employment with the appellant began on 19th September 1959. While at work in a factory of the appellant she sustained an injury in lifting a box which was too heavy for her to hold; she had to drop it. The effort of lifting the box caused the straining of her muscles. She felt the injury most in the lower part of her right side. She was much distressed by the experience. The accident occurred on 1st December 1960. The injury, in so far as it affected her physically, resulted in incapacity only until about the beginning of 1961. The appellant discharged its liability under the Act to pay workers' compensation in respect of the injury. The mental disease became acute after the accident and remained in that condition up to the hearing in February 1962. The disease was rather latent for some years before the accident. Afterwards the respondent's mind was so deranged that she had delusions of suffering great pain in her lower right side and was utterly unable to work. There was no rational basis for these beliefs. Devlin J. (as he then was) said in R. v. Kemp [1] : "It would probably be recognized that there are diseases functional in origin about which it is not possible to point to any physical cause, but simply to say that there has been a derangement of the functioning of the mind, such as melancholia, schizophrenia and many other of those diseases which are primarily handled by psychiatrists " [1] . It was argued for the appellant that in the case of a disease of the mind such as schizophrenia which is diagnosed by the patient's symptoms that the disease and the symptoms must be distinguished; it is said that the disease is the constant factor and although delusions vary or increase that would not be evidence that a change in the disease which comes within any of the categories mentioned in par. (b) has taken place.