Bird v Commonwealth [1988] HCA 23

High Court of Australia Mason C.J. Brennan, Deane, Toohey and Gaudron JJ. Bird v Commonwealth [1988] HCA 23

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Mason C.J., Brennan and Toohey JJ.

A delegate of the Commissioner for Employees' Compensation made a determination pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 Cth ("the Act") with respect to a claim by the appellant for compensation by reason of carcinoma of the posterior third of the tongue which had undergone metastasis to a lymph node on the right side of the neck. The delegate found that the appellant contracted a disease, namely, right cervical node metastasis from carcinoma of the tongue. He found that the appellant's employment by the Department of Defence was a contributing factor to the contraction of that disease "by virtue of s. 30" of the Act. The delegate therefore held the Department liable to pay compensation.

An application for review by the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 Cth was dismissed by Spender J., but an appeal to the Full Court of the Federal Court (Davies, Lockhart and Neaves JJ.) resulted in an order allowing the appeal, setting aside the orders of Spender J. and the delegate, and remitting the matter to the Commissioner for Employees' Compensation for reconsideration according to law.

Before the delegate the appellant had relied upon the fact that when he was a member of the Royal Australian Air Force he had fitted and removed canisters from aircraft which had collected radioactive air and dust samples after a nuclear test which took place on 3 October 1952, and had subsequently serviced the aircraft when they were contaminated and had taken part in their cleansing. The fitting and removal of canisters occurred during a seven-day period. The delegate did not make a finding that the appellant's exposure to any radioactive substance was a cause of the appellant's pathological condition. He found simply that the condition existed and that s. 30 was sufficient to establish for the purposes of the Act that the employment was a contributing factor to the condition.