Accident Compensation Commission v McIntosh

[1990] HCATrans 281

_lJi,r -!,i AUSTRALIA & -'->>;->)~~««,<.(~ ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M28 of 1990

B e t w e e n -

THE ACCIDENT COMPENSATION

COMMISSION

Applicant

and

HELEN McINTOSH

Respondent

Application for special

leave to appeal

MASON CJ
GAUDRON J

MCHUGH J

McIntosh 1 16/11/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 NOVEMBER 1990, AT 2.43 PM

Copyright in the High Court of Australia

MR A.G. UREN, QC: If the Court pleases, I appear with my

learned friend, MR P.J. COISH, for the applicant.

(instructed by Cornwall Stodart)

MR J.E. BARNARD, QC:  May it please the Court, I appear with

my learned friend, MR V.F. ELLIS, for the

respondent. (instructed by Price Brent)

MASON CJ: Yes, Mr Uren.

MR UREN:  If the Court pleases, what was argued in the court

below was that the matters that were complained of

by the respondent fell within the definition of
"disease" which appears set out at page 50 of the

application book and because they fell within that

definition they were, on accepted authority,

matters which were then excluded from the meaning

of "injury", the definition of which is set out at

pages 50 and 51.

What the Full Court did was to say that the events which the worker had suffered, namely the rupture and the haemorrhage, could be distinguished

or separated from the condition, defect or disorder

from which they proceeded, and that being so

separated could then be regarded as in isolation and then treated as an injury, not as a disease.

So the court said that basically a manifestation or a part of a disorder or defect in a person could be

separated from that disorder or defect and that

being so separated, it was not a disease.

The Court also said, we think, with respect to

the meaning of the word "injury" that that meaning
was not affected by the inclusion in it of
references only to certain sorts of diseases,

namely those referred to in paragraphs (b) and (c), namely work related or work contributed to diseases

and that all that one had to do when deciding

whether something was an injury or not was to look

at the words in their natural and ordinary meaning

,and if they were an injury, then in their natural

and ordinary meaning they would then be an injury

even though they were also a disease with a work

contribution. So saying, the court then made the

orders which it did.

In doing so, in our submission, the court in

each of those steps has departed from a line of

authority which has been established, not only with

respect to the Victorian Workers Compensation Act

which preceded the present one, but also a line of

authority which is applicable to the Workers

Compensation statutes of the greater number of

States and Territories. In doing so, in each case,

it has basically taken the law in Victoria back to

McIntosh 2 16/11/90

what it was prior to the amendments which currently

appear in the Accident Compensation Act, they

having been introduced in 1956. So what the court

has done is to have ignored the developments in the

law since then and to have basically ignored a

large number of authorities of this Court and of

the Full Court and also of the Privy Council which

GAUDRON J: But is that really correct in light of what

happened at first instance because at first

instance the finding was that there was nothing

that could be described as a disease.

MR UREN:  Yes, that is true, but that was a finding of law.

The facts had been fully found by the

tribunal - - -

GAUDRON J:  The facts were fully found to some extent, but

it was found it was not a disease. That might be a

mixed finding of fact and law. Then the tribunal

says, "We are not going to consider this question"

that you are asking, at page 18, they say that may

be a more complex question.

MR UREN:  No, I think not, Your Honour. That is not the way

the matter was dealt with by the tribunal. At the

tribunal stage, the basis of argument and the basis

that was accepted by the tribunal and all parties

as accurate was that the task of the court was one

of classification. The event itself either fell

within the description of a disease, in which case

it needed to be work related, or it would fall

within the definition of an injury simpliciter.

The tribunal found the relevant facts and said, on

those facts, this is not a disease within the

meaning of the definition.

Now, when we appealed to the Full Court, our

point was, that is not right.	On the facts that
were found the tribunal ought	to have decided that
there was a disease, applying	the definition in the
statute to what had occurred.

GAUDRON J:  You have to say that the tribunal could only

have found that there was a disease, which really

is tantamount to saying "must have found that we

discharged the onus of proof".

MR UREN:  The applicant there at the tribunal bore the onus

of proof; the worker bore the onus of proof. But

there is no difficulty in accepting the proposition

that Your Honour has just advanced, that we must

show that we must have won, because what one has

is, if one has a situation of fact finding where

the facts are fully found, as they were by the

tribunal, then they either do or do not satisfy the

McIntosh 16/11/90

statutory description. That is a matter of

necessity. There is no - - -

GAUDRON J: For example, did they find that there was a

congenital abnormality?

MR UREN:  Yes.

GAUDRON J: Specifically, or just found, as I have read it,

that even if there was, it is not a disease.

MR UREN:  The Full Court accepted, at the bottom of page 25

and the top of page 26, that the finding which was

made was that:

The cerebral haemorrhage caused to the respondent was the consequence of a rupture

and bleeding on the right hand side of the

brain due probably to a congenital

malformation of the blood vessels, though the

rupture could have occurred without any

arteriovenous malformation.

So the Full Court interpreted the findings as being

that the probabilities were that what had occurred

was due to a congenital malformation of the blood

vessels. That, in our submission, is the correct

interpretation of what the tribunal found. Of

course, if the tribunal had not found anything

relating to that, then all one would have had was a

finding that there had been a rupture and a

bleeding and it may then have been difficult for

the worker to have established that what was

suffered was an injury as defined.

GAUDRON J: Where·is the finding in the tribunal's decision

that marries up with what the Full Court said it

found?

MR UREN:  I have to get it partly, I think, from the

evidence that the tribunal referred to. The

tribunal was not entirely clear as to its actual

conclusions, but going to page 5 of the application

book, Dr Michael Tong gave evidence, he being the

admitting officer.	A little bit above 15 the
tribunal said:

In his opinion the bleed was due to a congenital malformation which he described as

an arterial venous malformation. This opinion
is not able to be confirmed as the haemorrhage

destroyed the area.

At the bottom of the page:

McIntosh 16/11/90

Dr. Tong described the malformation as an

unhealthy network of blood vessels not

normally present.

MASON CJ:  Above that there is the comment:

C.T. scan did not reveal any other probable cause for the haemorrhage, nor was nay disease process found upon investigation.

MR UREN:	Yes, depending upon one's meaning of the word
"disease", but the word "disease" is defined in the
Act and it may bear a different meaning in the Act
than it does in the views of doctors. To take up the point that Your Honour the Chief Justice just mentioned, the scan revealed no other cause, and
that may have assisted the doctor in his view that that was in fact the cause. Then going on to
page 6:

Dr. Wilma Bestwick, treating

specialist ..... provided similar evidence to

that of Dr. Tong. That is she believed that

on the balance of probabilities, the most

likely cause of the bleed was due to a

congenital malformation which had destroyed

itself when the haemorrhage took place. Her

evidence was to the effect this in all

probabilities this condition had been present

at birth -

On page 7 Dr Bestwick's evidence goes on referring

to the malformation and to there not necessarily

being a deterioration of the blood vessels over the

lifetime- but a structural disorder in the nature of a rearrangement of those vessels. At the bottom of

page 7 Dr Robert Hjorth, the neurologist, in

essence agreed with the evidence of the previous

two doctors

GAUDRON J: Except?

MR UREN: Pardon, Your Honour?

GAUDRON J: Except that he said "the site can rupture without

A.V. malformation."

MR UREN:  Oh yes, that is true, it can, but none the less

he, in essence, agreed. In other words, his view

as a specialist was that what they said was right.

Now, of course, anything can happen without

anything happening; it is a matter of one's expert

view as to probabilities and they were giving their

view. On page 8 the cross-examination is referred

to in which there is cross-examination about the

malformation and its nature and how it can proceed.

That being the medical evidence, one can clearly

McIntosh 16/11/90

see why it would be said that the probability was

that the defect or disorder was probably due to a

congenital malformation of the blood vessels, that

being, in the view of the experts, the most

probable cause.

GAUDRON J: That is not quite the same thing as excluding a

finding that it was not a disease, that the

applicant did not have a disease.

MR UREN:  Your Honour, with respect that does not seem, to

us, to be the - if I could go back a square and go

to the bottom of page 17 where the judge at the

commission gave his reasons for his view that what

had occurred was not a disease. His view was that:

there is no evidence of any progressive
condition or of any real condition that could

be described, in general terms, as a disease.

I take it he was not there referring to the

statutory definition because he did not refer to

it.

GAUDRON J: It is the next paragraph, though, that seems to

carry with it a finding that is contrary to what

you are putting. If it was a disease process -

they.deal with this argument that if there was a

disease process there could still be an injury and

say that is a more complex consideration which it

is not necessary to answer.

MR UREN:  Yes, I think what he was doing was making his

decision on the basis of a particular view as to

what is required for there to be a disease, namely

that it be something of a progressive condition,

and if what you have got is a structural weakness

in the vein, then if that gives way suddenly, that

cannot be a disease because disease is something of

a progressive nature. That is the view that we

think the tribunal took and we are reinforced in

that submission by the fact that it seems to be the

view which the Full Court took as. well of the view

which the tribunal took.

The judge hearing the case never said, "I

don't think there was the sort of thing which the

medical expert evidence has referred to, namely a

congenital malformation." He did not reject that

evidence. In fact it would probably have been

improper of him to have done so, bearing in mind the extent of uncontradicted medical evidence to

that effect. The probabilities are that he did

accept that but said that even so, there is no

evidence that anything was progressive; all the

evidence I have is that something happened suddenly

and therefore what occurred is not a disease

McIntosh 6 16/11/90

because you need to be progressive. That then is
why the Full Court came to the view which it did
about the tribunal's reasons, namely that there was
a rupture and bleeding on the right-hand side of
the brain due probably to a congenital malformation

of the blood vessels.

But even if we are wrong about that - and we

submit strongly that we are not - what I have just

read out is in fact the factual basis upon which

the Full Court proceeded and therefore it is the

basis upon which this case will stand as authority

in the future. Therefore, that finding or the view

about what the tribunal had found is what will form

the basis for the authority of this case in the

future. That is the importance of it for present

purposes; the Full Court having come to a

conclusion about what the tribunal had meant, then

gave a decision based on that view.

If the decision which the Full Court came to

is wrong, and in our submission it is wrong because

it contradicts the views expressed in a number of

cases in this Court, the Full Court and the Privy

Council, then this case -

GAUDRON J: Is that really right? If there is nothing

progressive - the finding against you is at least

that there was nothing progressive. Now, Hocking v

Yelland seems to talk in terms of something which

is a culmination, which in terms suggests that you
are looking at something progressive rather than

merely an egg-shell skull. You see, if you find

that it is not progressive, your real analogy is

the egg-shell skull, is it not?

MR UREN:  The difficulty with looking at other cases is one

has to bear in mind some of subtle differences that

there are between some of the things which are said

and other cases, bearing in mind the statutory

differences. Now, in Queensland and also in New

South Wales there is no definition of ttdisease'' and

that may explain what Your Honour has just referred

to, why in some cases the view has been taken, or

may have been taken, that there needs to be a

progression before you can have a disease. In New disease and that may explain the result in O'Neill v Lumbey. In Queensland there is no definition of disease and that may or may not explain the

references to progression. But in Victoria, the

definition of disease includes the things referred

to, whether of gradual or sudden development, and
that would seem to deal, in our submission, with

the temporal aspect, if there is one, of disease.

That is a feature which is not present in the case

that Your Honour had referred me to just then. So

McIntosh 16/11/90

it is not a matter, in our submission, which is

effective against success by the applicant in this

case in the event that special leave is granted.

MASON CJ: Notwithstanding the absence of definition of

disease in the New South Wales legislation, is not
the word customarily understood in the sense of the

Victorian definition?

MR UREN:  I hesitate to say that any word is customarily

understood in the sense of a statutory definition

because the statutory definition is presumably

there in order to - if not necessarily to make

clear, to make provision for what the legislature

actually intended to refer to. One must only find

a disorder or defect, whether it is sudden or

gradual development. I think we would agree, with

respect, certainly with what Your Honour the

Chief Justice has said in that diseases are

commonly taken to be things which are the - I will

go back a square. It may be that the diseases

referred to here are those which are really
misfunctions of the body itself as opposed to some

outside event giving rise to a misfunction.

In any event, I do not want to take up the -

no, Your Honour, I think we would not agree with

what Your Honour has said, the reason being in, for

instance, O'Neill's case, whether that be right or

wrong, the view was taken there, I think, that

something which in Victoria would be regarded as a

disease was not a disease. I think what the

disorder was in O'Neill's case would have been

regarded as a disease under the Victorian

legislation but the reason why the result in

O'Neill's case was the way it was was that it was

found that what had occurred there was in fact not

a disease and therefore could fall within the

definition of injury. So we would think that there

is no basis for considering that the word "disease"

requires any progression for the thing the words

refer to to be regarded as a disease.

That, I think, did not appear to be the basis

upon which the Full Court proceeded either. They proceeded on the basis to which we have referred,

that it is possible to hive off the end result, as

it were, from the things of which it is part, and having hived them off, to examine them separately

to see if they are a disease and without taking

into account, in doing so, whether the meaning of

the word "injury" is affected by the references to

particular sorts of disease in paragraphs (a) and

( b) •

The way that arose is, I think, this: the proposition which had been put was that this was

McIntosh	16/11/90 something which was merely a phase or manifestation
of the disease and therefore it was not an injury.
The Full Court said, that is not right, we can
split the end result off and look at the end
instead of what preceded it. The argument was then put, that separated part is itself a disease within
the meaning of the Victorian statute. In other
words, the rupture or the haemorrhage, even viewed
apart from the disorder of the veins of which it
formed a part, was itself within the definition of
disease and the court seems to have thought that
you do not have to decide whether that matter is a disease or not; you only have to decide whether it
is an injury within the ordinary meaning of the word "injury", and if you do that, then there is no
need to inquire as to whether it is a disease or a
work related disease.
We think that it is beyond argument that the court said both of those things which we have said
it said. Now, if it said, as we think it clearly
did, both of those things which we have said it said, then there are a number of reasons why special leave should be granted which we could
state compendiously. The first is that each of
those reasons is contrary to accepted and binding
authority which we will refer the Court to if
necessary, and contrary to in fact what had been
thought to be the law and was the basis upon which
the case had been conducted in the court below.
What, in fact, the court has done is to go back to 1956 and resurrect cases which had been laid to rest by the amendments to the Victorian Act which
took place then and if not laid to rest by the
amendments to the Act, it has certainly been laid to rest by the decision of the High Court in Ogdem
Industries in which Judges of this Court expressly
dealt with each of those two propositions and said that they were wrong.

The Full Court, in a ..... reasoning which we

must say, with the greatest of respect, defies

comprehension - if I may say that with the very

greatest of respect - referred to the fact that	Ogden Industries had gone on to the Privy
Council - - -

MASON CJ: Page?

MR UREN:  Would Your Honour excuse me for a moment. I have

taken myself slightly out of order. Page 31, after

referring to Ogden Industries and the fact that:

The High Court considered that the pulmonary

oedema which caused death in hospital ..... was

"no more than a terminal phase of the illness

which he had earlier incurred, and that the

McIntosh 16/11/90

injury for the purposes of the Workers

Compensation Acts had been caused before 30

June 1965tt -

in other words this is basically our proposition,

that what had occurred was no more than the end

phase of the illness which had previously

occurred - went on to deal with something which had

been said by the Privy Council when the matter went there on appeal and cited a little passage which is

set out there and then said:

It is clear that this decision ..... has

nothing to do with the present issue.

In the very portion of the judgment of the Privy Council which preceded that passage which is

referred to there, there is a portion which I will

read out to the Court, although I regret not having

got separate copies of it. But immediately
preceding the passage referred to appears the

following, after dealing with what is called the

second point. They started off at the top of

page 43 of 118 CLR saying that:

Although the second point does not arise their

Lordships propose to say a few words upon it.

And what the Privy Council did on that page was to

agree with everything which the High Court had said

on the point of whether the event which had

occurred after the date on which the Act had come

into force was an injury or not; in other words,

agreed with everything which the Full Court had set

out on page 31. The Privy Council said:

But on the decision that there was a post 30th

June 1965 injury, in the High Court of

Australia all of their Honours except Owen J.

(who having decided the matter in favour of

the respondent on the main point quite

reasonably did not feel it necessary to deal

with this point) reached the conclusion that the final pulmonary oedema which caused the	workman's death on 7th July was no more than a
terminal phase of the illness which he had earlier incurred and that the injury for the
purposes of the Workers' Compensation Acts had
been caused before 30th June 1965. The
position was stated succinctly by the
Chief Justice in these terms: -

And then what His Honour said is set out.

Their Lordships entirely agree with this view

of the position and only desire to add that

McIntosh 10 16/11/90

though it is not necessary finally to decide

the point, as at present advised -

and they then went on with the passage which was

referred to on page 31. Now, so far from what the

Privy Council said having nothing to do with the issue which was before the Full Court, what the

Privy Council said was to agree entirely with what

the Chief Justice had said in Ogden Industries

which was one of the bases upon which it was

submitted on behalf of the present applicant that

there was conclusive authority for the proposition

that if what you are talking about is just the end

process of what had always been there, then that

cannot be viewed separately but is to be regarded

as having the same categorization as the thing of

which it forms part.

Now, how it is possible, with the greatest of

respect, for the Full Court to have ignored that

passage, whilst referring to a passage which refers

to a different thing and using that to say that in

actual fact the decision has got nothing to do with the point relevantly at issue is, with the greatest of respect, not entirely clear. There are other

areas in the judgment where, with the greatest of
respect to those who decided it, errors of similar
magnitude occur. References are made to Victorian
cases which have been clearly expressed to be

overruled by the Full Court or by the High Court.

Reference is made to a decision of the High Court

which is said by the High Court to have been

superseded. One can go through almost every page

of the judgment and show, in our submission, where
it goes back to a state of events which preceded

1976 and restores the law as it was in those days

without regard to the fact that it has been said

time and time again, with reference to the

legislation in its current form, that it achieved a

significant amendment of the law as it previously
stood.

Now, if we are right in the proposition that in actual fact each of the matters that we have

referred to have been decided as matters of law by

the Full Court and that they were contrary to

accepted and binding authority it must, in our

respectful submission, be the case that this is a

matter which is sufficiently important for the

grant of special leave because not only have

matters relating to - I will go back a step -

because the matters which this application relates

to are in fact basal to the workers compensation

scheme. The definition of "injury" and "disease"

is the foundation of entitlement or lack of

entitlement and any case which involves

interpretations of those words is, in fact,

McIntosh 11 16/11/90

involving itself in a matter which is basic to an

extremely important piece of social legislation,

especially in these days when heart attacks and

strokes and other -

MASON CJ:  I do not think you need to make that point,

Mr Uren.

MR UREN:  Your Honour, I was not suggesting that it need be

laboured to Your Honours but the fact is that the

substantial effect on the operation of the Act is what I was referring to would be achieved if this

decision was to stand in its current form. Heaven

only knows what tribunals are supposed to do when

confronted with decisions of this Court, the Privy

Council and the Full Court and putting them

together with this case.

Now, one could also say that there are

analogous statutory structures in a number of other

States which would render this decision of persuasive authority on them. There are, I think,

in the Commonwealth, New South Wales, Queensland

and Western Australia, statutes in which injury or

its relevant concept are defined in terms of

including diseases with a work related component,

even though they do not all themselves give a

definition of disease. If the decision here

stands, then it will set the cat among a number of

pigeons in those jurisdictions as well, although I

dare say in New South Wales it may not be felt

necessary to follow the Victorian decision if the

Full Court has already spoken. But none the less,

it is unsatisfactory to have a situation where
there are analogous statutes interpreted

differently in different States.

GAUDRON J: Mr Uren, is it correct that the question before

the Full Court was whether or not it was open to

the tribunal to find that this was not a disease?

MR UREN:  Your Honour, the answer to that is both yes and

no. The reason why it is yes and no is this.

GAUDRON J: Let me put it another way. There is only an

appeal on a question of law.

MR UREN: Yes.

GAUDRON J: What is the question of law that comes up from

the tribunal?

MR UREN:  The question of law that comes up from the

tribunal is whether on the facts found by the

tribunal as referred to by the Full Court in the

passage we have just read there is - - -

McIntosh 12 16/11/90

GAUDRON J: As interpreted by the Full Court, because it is

not exactly clear that the tribunal made those

findings that the Full Court said it did. Nor is

it entirely clear that the Full Court adopted them

because if you look to page 32, after the reference

to Ogden, the Full Court says:

The respondent ..... was not suffering from any disease in the ordinary sense - - -

MR UREN:  Yes, that was another of our complaints because,

with respect, that is either a throw-away line of

no relevance or, alternatively, the court has
forgotten that there was a statutory definition of
disease. Now it may be true that the respondent
was not suffering from a disease in the ordinary
sense. It may be that if you went and asked the
man in the street, is this a disease, he may say

no, but in the present case, one is dealing with a

statutory definition and it is, in our submission,

clear, sufficiently clear and we would say

perfectly clear, but none the less sufficiently

clear, that the Full Court must have been deciding

the case which it did on the basis of the factual

situation which it referred to at the bottom of

page 25 and the top of page 26, namely that there

was probably a congenital malformation of the blood

vessels.

There was no evidence of any other cause or

anything of that sort; no evidence of any work

related matter; all that one had was a - - -

GAUDRON J: But all of that was only relevant if you

categorized it as a disease, is that not right?

MR UREN: Yes, that is certainly right.

GAUDRON J: And you have got to say, to establish some error,

that this could only be classified that a

structural weakness present from birth - because

that is all that congenital means, does it not,

present at birth - is a disease.	So that it would
make almost as much sense, I should have thought,

to say: having fair skin, which will make you

prone to skin cancer, is a disease.

MR UREN: Fair skin may be a defect. If one was an albino,

it would; if one was an ordinary person, it would

not. Your Honour, what one has to show is that

those facts fitted within the description of

disorder or defect. Now, it must be able to be

said, and it must be able to be said of necessity,

that a congenital malformation of the blood vessels

is a disorder or defect. That is why we said both

yes and no to what Your Honour had just said,

because there are cases in which the question which

McIntosh 13 16/11/90

is postulated is, "Was it open to have come to a

particular conclusion?", but as in Hockey's case,

for instance - that was a case where there were no

findings of fact - there was just a "No" from the

relevant authority.

GAUDRON J: But the problem is the development in that

definition, Mr Uren. It has to be a disorder

whether of sudden or gradual development.	Now,
that really does bring in some element of progression, does it not, development.

MR UREN: Everything must progress because nothing happens

instantaneously. The temporal aspects of a

development just means bring forth or come forth.

Things can develop quickly overnight, in a minute,

in a second. The timeframe is dealt with by the

temporal words "of gradual or sudden development",

but development only means coming forth and

obviously the rupture did not exist forever; it

came forth at a particular time on the basis of the

defect which is the congenital malformation.

Now, the other thing we would say is that the

words "whether of sudden or gradual development"

are not meant to limit "disorder, defect or morbid
condition". If one went to "mental ailment", for

instance, what on earth would be the reason for

saying that a person who had a mental ailment from

birth was not considered to have a disease because
his mental ailment had not developed but he would be considered to have had a disease if his mental

ailment started when he was one year old. And

similarly with the other events referred to there.

There is no reason in logic why it would be

considered that if it had happened a minute after

birth they are considered to be of development, but

if they had always been there, they are not.	So
the words "whether of sudden or gradual
development" are not intended to be words of

limitation but intended to be words of extension or

words of caution which are put there in order to

avoid the sort of argument which may be otherwise

put, nc;Unely that the disease has to be something

which progresses over a long period of time. But,

in any event, if one had an ailment from birth, one

cannot see why in logic that would be considered
not to be a disease when, if the ailment had

developed after birth, it would be. So, in our submission, there is nothing particular in that

point which makes the case one where it cannot be

said that there is in fact a disease in this case.

But to get back to the question of whether something has to be found or has not to be found,

once the facts are fully found then one only has to

apply the law to the facts and an error in result

McIntosh 14 16/11/90

then is an error of law. It is, in this case, one

would say that if on the facts which have been

found which we say are those at page 25 to page 26,

it is of necessity a case where there is a disorder

or defect which those facts constitute. If that is

the case, then that must be so 100 per cent. If it

is not the case, it is not the case 100 per cent.

There is no room for the exercise of judgment or

discretion of anything of that sort; one is either

right or wrong on that aspect, and so the answer

must of necessity be yes or it must of necessity be

no. There is no middle ground.

It is not open to say, in our submission, that

there is not a disorder or defect if you find that there was a rupture and bleeding due probably to a congenital malformation of blood vessels which had

always been there. So there is nothing to be made,

in our submission, of the argument that there is

some factual difficulty here. Our whole point is

that these facts establish a disease and if these

facts establish a disease, then you cannot hive off

the last portion and regard it separately as an

injury and also you must in looking at the word

"injury" regard its definition in the light of the

individual diseases referred to in (b) and (c) and

as excluding those diseases.

I will give the Court a list of cases which,

in our submission, establish both points 1 and 2

and which the Full Court either ignored or

distinguished on inadequate grounds. With respect

to point 1, which was the separation point, Ogden

Industries v Lucas, 116 CLR 537 at 569 to 570 and

592.

MASON CJ:  I do not think we need go through all this in

detail, Mr Uren.

MR UREN:  If the Court pleases. One does not often know

whether sometimes the Court does agree or does not

agree with particular propositions and I was only

meaning to indicate that there is ample and high

authority for each of those propositions if they

are, in fact, the basis upon which the Court -	I
will go back a square. There is ample and high
authority for the propositions.

MASON CJ:  It all comes back to the question whether this

case is a suitable vehicle for the determination of

the points of principle you want to raise, having

regard to the finding that was made by the

tribunal.

MR UREN:  Your Honour, the reason why it is a suitable

vehicle is, firstly, the Full Court said what it

McIntosh 15 16/11/90

did on the basis of those facts.	In other words,
the Full Court - - -

MASON CJ:  We follow that. We follow the interpretation

that the Full Court placed on the tribunal's

finding.

MR UREN:  The case then is a suitable vehicle on the basis

of the Full Court's view of what the facts were

because there could not, in our submission, be any

proposition advanced that there is some - - -

MASON CJ: But the problem is that the end result of the

case may be that the appeal would be dismissed when

attention is given to that finding.

MR UREN:  That would only be on the basis that there was

some notice given by the other side that in fact

the Full Court had got it wrong when it said that

this was in fact the finding which the tribunal had

made.

MASON CJ:  It would be surprising if the respondent did not

take that view.

MR UREN:  Your Honour, it then would be surprising if he did

not fail on that point because of the reasons that

we have referred to. The evidence before the

tribunal was all one way; it did not reject any of
that evidence; and the Full Court was perfectly

entitled to take the view which it did of the facts

as found. Now, if that is the case, then the case

is a suitable vehicle, but we would also submit

that the applicant should not be denied special

leave on the basis that there was an arguable

proposition that the Full Court's view of the facts

was wrong.

If there is an arguable proposition that the

Full Court's view of the facts were right, in other words that the case does not represent a non-viable vehicle merely because there is an argument

available that the facts viewed one way might turn

out to be what the Full Court thought they were
not, in our submission it is strongly arguable and

in fact strongly probable that the facts which the tribunal found were the facts which the Full Court said they found. And if that is the case, then in

our submission there can be very little said

against the grant of special leave. If the Court

pleases.

MASON CJ:  Thank you, Mr Uren. The Court need not trouble

you, Mr Barnard.

Having regard to the finding of the tribunal

which is set out on pages 17 to 18 of the

McIntosh 16 16/11/90

application book and the evidence on which that
finding is based, we are not persuaded that this
case is a suitable vehicle to ventilate the

questions of general principle which the applicant

seeks to raise for determination by this Court.

The application is therefore refused.

You apply for costs, Mr Barnard?

MR BARNARD:	I apply for costs, Your Honour.
MASON CJ:	You do not resist that, Mr Uren?
MR UREN:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 3.30 PM THE MATTER WAS ADJOURNED SINE DIE

McIntosh 17 16/11/90