Ansett Transport Industries (Operations) Pty Ltd v Srdic

[1982] FCA 241

Re: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED
And: MILAN SRDIC (1983) 66 FLR 41
No. ACT G12 of 1982
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Gallop(2) and Fitzgerald(3) JJ.

CATCHWORDS

Workmen's Compensation - Appeal - Meaning of injury by accident - Antecedent morbid condition.

Workers' Compensation - Internal physical injury - Not caused by external event - Pre-disposing physical condition - Haemorrhage of cerebral vessel - Whether accident - Whether causal connexion needed between injury and employment - Workmen's Compensation Ordinance 1951 (A.C.T.), s. 7(1).

HEADNOTE

The respondent was employed by the appellant and engaged in cleaning the appellant's buses. Whilst so engaged the respondent felt unwell; he was taken by ambulance to a hospital and, on examination, it was diagnosed that the respondent had suffered a spontaneous haemorrhage of a cerebral vessel. As a result of the haemorrhage he has been totally incapacitated for work ever since. When the respondent claimed compensation under the Workmen's Compensation Ordinance 1951 the magistrate acting as arbitrator awarded compensation in favour of the respondent. Blackburn C.J. having upheld the award on appeal, the appellant appealed to the Full Court of the Federal Court of Australia.

Held: Per curiam, dismissing the appeal - (1) The rupture of the blood vessel was a personal injury by accident suffered by the respondent.

(2) The injury arose in the course of the respondent's employment by the appellant.

(3) There was a pre-disposing physical condition of the respondent, namely weakened blood vessels, which his employer must accept when accepting the worker.

(4) There was no evidence that what happened within the respondent's brain was the development, culmination or sole and inevitable result of the progression of a pre-existing morbid condition.

Kavanagh v. Commonwealth (1960) 103 CLR 547; James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1; Commonwealth v. Ockenden (1958) 99 CLR 215; Public Trustee (W.A.) v. State Energy Commission (1979) 142 CLR 211; Weston v. Great Boulder Gold Mines Ltd. (1964) 112 CLR 30; Clover, Clayton & Co. Ltd. v. Hughes (1910) AC 242, considered.

Commonwealth v. Hornsby (1960) 103 CLR 588, distinguished.

HEARING

Canberra, 1982, September 7, 22. #DATE 22:9:1982

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory upholding a decision of the Court of Petty Sessions of that Territory to the Full Court of the Federal Court of Australia in a worker's compensation case.

K.J. Carruthers Q.C. and L.I. Thompson, for the appellant.

P.L.R. Sheils, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Colquhourn Murphy Constance Phillips.

Solicitors for the respondent: Gillespie-Jones & Associates.

E.F. FROHLICH

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal to be taxed. Appeal dismissed with costs.

JUDGE1

The appellant seeks to set aside an award of compensation made in favour of the respondent by Mr Dainer S.M. as Arbitrator under the Workmen's Compensation Ordinance 1951 of the Australian Capital Territory, an award which was upheld on appeal by Blackburn C.J.

In 1978 the respondent was employed by the appellant and on 14 November 1978 he was engaged in cleaning the appellant's buses. Sometime during the morning he felt unwell. His head was buzzing and he found that he could not pour tea from a thermos into a cup without pouring it all over the floor. An ambulance was called and he was taken to Canberra Hospital. In the ambulance he vomited and he thinks that he passed out as his next recollection is being in hospital, with his wife telling him of an operation he had just had. Some more detailed reference to the respondent's medical condition is necessary but for the moment it is enough to say that he developed a left hemiparesis and has been totally incapacitated for work since. The diagnosis was that he suffered a spontaneous right intracerebral haemorrhage.

The case as presented to the learned Arbitrator was that during the morning of 14 November the respondent got under the seat of a bus in order to remove rubbish and that as he was straightening up from that activity he hit his head on the bottom frame of the seat. Thereafter he began to feel unwell. The appellant challenged the happening of the incident and any relation between any injury the respondent might then have suffered and his subsequent condition. Although Mr Dainer S.M. accepted the respondent's account of the incident of cleaning under the bus seat, he was not satisfied on the probabilities that the blow to the head caused the haemorrhage. He reached that conclusion after a consideration of the medical evidence. His conclusion was not challenged before the learned Chief Justice nor was any attempt made to challenge it before this Court. We must therefore approach the matter on the basis that on 14 November 1978 while at work the respondent suffered a spontaneous haemorrhage of a cerebral vessel.

Before this Court the question was whether, in terms of section 7(1) of the Workmen's Compensation Ordinance, personal injury by accident arising in the course of his employment by the appellant had been caused to the respondent. There was no claim of personal injury by accident arising out of that employment.

An unchallenged opinion as to what happened physiologically on 14 November 1978 was given by Dr Freeman. In his view the respondent suffered a severe stroke as a result of haemorrhage, which is usually due to the rupture of a weakened blook vessel deep in the substance of the brain. With such a weakness a rupture can occur quite spontaneously without any preceding event. As a result of the rupture, blook then builds up pressure on the brain and, in Dr. Freeman's words,
"slowly ploughs up the brain material until it leaks into the cerebro-spinal fluid and slowly the patient develops symptoms. If there is very high blood pressure the symptoms come on quickly, if there is normal blood pressure it takes half an hour to an hour for the symptoms to appear."

After a consideration of a number of decisions, Blackburn C.J. concluded his reasons in this way.
"But perhaps the rupture of the tissues in itself answers to the description of an injury; the critical fact thus being physical lesion caused by force or pressure. There may be other kinds of injury by accident; but in the case before me I order, on this tenuous ground, that the appeal be dismissed and the award upheld".

Counsel for the parties submitted to a detailed analysis a number of authorities concerned with the operation of provisions, in some cases comparable to s.7(1) of the Ordinance, in other cases sufficiently removed to be of little assistance. Rather than refer at length to individual judgments, I propose, with some diffidence, to state the principles emerging from them.

1. The question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct. The Commonwealth v. Hornsby (1959-1960) 103 C.L.R. 588 per Fullagar J. at p.597.

2. The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident. Fenton v. Thorley & Co. Ltd (1903) A.C. 443, Hetherington v. Amalgamated Collieries of W.A. Ltd (1939) 62 C.L.R. 317 per Latham C.J. at p.325. The use of the term "accident" points up the unexpected nature of the event constituting the injury. Clover, Clayton & Co. Ltd v. Hughes (1910) A.C. 242, Weston v. Great Boulder Gold Mines Ltd (1964) 112 C.L.R. 30 per Windeyer J. at p.40

3. It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did. That necessity arose from the requirement to establish that injury by accident had arisen out of and in the course of the employment. James Patrick & Co. Pty Ltd v. Sharpe (1955) A.C. 1, The Commonwealth v. Ockenden (1958) 99 C.L.R. 215 at p.222.

4. Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesphagus, not attributable to any external injury but resulting from some force or pressure exerted within the body. Clove, Clayton & Co. Ltd v. Hughes, Kavanagh v. The Commonwealth (1959-1960) 103 C.L.R. 547.

5. Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre-disposing physical condition. The employer must take the worker as he finds him. The Commonwealth v. Hornsby per Fullagar J. at p.597.

6. A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment. The Commonwealth v. Ockenden at p.224.

7. Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident. The Commonwealth v. Hornsby per Fullagar J. at p.597

8. Personal injury by accident arises in the course of employment so long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or, put another way, where he is engaged in his employment. There need be no casual connection between the injury and the employment. Kavanagh v. The Commonwealth, Weston v. Great Boulder Gold Mine Ltd.

9. The traditional view that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease. Kavanagh v. The Commonwealth per Dixon C.J. at p.555.

Applying these principles to the case in hand, I am of the opinion that the respondent suffered personal injury by accident in the course of his employment by the appellant. In this regard the respondent identifies as the injury, primarily the rupture of the blood vessel, but alternatively the damage caused to the brain by the infusion of blood. I shall deal with the matter initially as if the injury relied upon were only the rupture of the blood vessel. In that event there was an occurence, unexpected by the respondent, in which there was a sudden physiological change. That physiological change constituted an actual internal physical injury. Despite frequent references by the appellant's counsel to a morbid and progressive condition in the respondent, the evidence does not support such a finding. It supports no conclusion other than that the respondent had, in all probability, weakened blood vessels, one of which burst. That says no more than that there was a pre-disposing physical condition, which the employer must accept when accepting the worker. I am satisfied that that injury arose in the course of the respondent's employment. The symptoms complained of at work by the respondent namely headache and inability to control his hand when pouring tea, associated with the vomiting on his way to hospital and the early diagnosis of hemiparesis, establish that the injury occurred on 14 November 1978 while the respondent was at work and while he was carrying out duties associated with that work. The incapacity from which he now suffers is a direct consequence of that injury.

This conclusion makes it unnecessary to consider whether the infusion of blood into the brain was itself an injury. But I see no reason why it should not be so regarded. The damage to the brain was caused by, in Dr. Freeman's words, the blood ploughing up the brain. That was a sudden physiological change constituting an actual internal physical injury while the respondent was engaged in his employment. Again the respondent's incapacity may be traced directly to that injury.

The appeal should be dismissed with costs.

JUDGE2

On 14 November 1978 the respondent was employed by the appellant as a bus cleaner. During the course of his work he bumped his head on a bus seat while cleaning underneath the seat. A short time later he felt strange and dizzy and was eventually taken to hospital where he underwent surgery for haemorrhage within the brain in the right parietal area. He had suffered a rupture of a brain blood vessel, commonly called a stroke. As a result of the condition he is now totally incapacitated for work.

He made application for compensation pursuant to section 7(1) of the Workmen's Compensation Ordinance 1951. The application was heard before Mr J.J. Dainer S.M., sitting as the Court of Petty Sessions, Canberra. On 26 September 1980 the Court found that the respondent had suffered personal injury by accident arising out of or in the course of his employment, and accordingly was entitled to compensation on the basis of total incapacity (inappropriately expressed in the Court's reasons for judgment as permanent disability) and awarded compensation at total incapacity rates from 14 November 1978.

An appeal to the Supreme Court of the Australian Capital Territory pursuant to s.26 of the Ordinance was dismissed on 27 May 1982. The employer now appeals to this Court from the decision of the Supreme Court of the Australian Capital Territory. The grounds of appeal set out in the Notice of Appeal are:

- That His Honour erred in dismissing the Appeal and upholding the award of the Arbitrator.

- That His Honour erred in holding that on the 14th November, 1978 the Respondent sustained personal injury by accident when the extravasated blood in his brain built up sufficient pressure to damage brain tissue.

- That His Honour erred in holding that on the 14th November, 1978 the Respondent sustained personal injury by accident arising out of or in the course of his employment with the Appellant.
- That His Honour's decision was against the evidence and the weight of the evidence.

- That there was no evidence upon which it could be held that the Respondent sustained personal injury by accident on the 14th November, 1978 arising out of or in the course of his employment with the Appellant.

- That His Honour should have upheld the Appeal and set aside the award of the Arbitrator. The magistrate, in the course of his findings, found

that there was no causal connection between the bump on the head which the respondent suffered while cleaning the bus and the haemorrhage to the brain found at operation. It is not open to the respondent to seek to have us review that finding on the hearing of this appeal.

The question in this appeal, therefore, is whether personal injury by accident arising out of or in the course of his employment by the appellant was caused to the respondent so as to entitle the respondent to compensation under section 7(1) of the Workmen's Compensation Ordinance.

By definition (section 6(1)) "injury" means any physical or mental injury and includes aggravation, acceleration or recurrence of a pre-existing injury. Section 7(1) is in the following terms:
"7.(1) If personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to this Ordinance, be liable to pay compensation in accordance with the First Schedule to this Ordinance."

It appears from his reasons for judgment that the Chief Justice applied the reasoning in Kavanagh v. The Commonwealth 103 C.L.R. 549, which was a case involving a ruptured oesophagus. He could see no distinction between injury by accident arising out of or in the course of employment of that type and the injury by accident sustained by the respondent in the instant case.

The principal submission on behalf of the appellant was that the Chief Justice overlooked the uncontradicted evidence of an antecedent morbid condition in the respondent and that the rupture of the blood vessels of the brain was a natural progression of that condition.

It was submitted that those facts clearly distinguish the present case from the principles laid down in Kavanagh's Case.

It is necessary to examine the evidence. There was no dispute on the hearing that the respondent did suffer a stroke of the haemorrhagic type. Dr R.L.G. Newcombe, consultant neruo-surgeon, gave evidence of having examined the respondent at hospital on 14 November 1978. He found that there was an area of haemorrhage within the brain in the right temple parietal area of the brain. The haematoma within the brain was removed by operation on 27 November. He said that the haemorrhage was clearly due to a rupture of a brain blood vessel within the brain substance and that the bleeding had obviously come from the blood vessels that had ruptured.

He did not think that the respondent had had blood pressure and that as the respondent was not hypertensive, the rupture was unlikely to be due to high blood pressure. He further said that the blood which came out of the vessel in cases of this nature "destroys brain fibres and separates them, stretches them beyond repair". He said that is what happened to the respondent. In his report of 28 June 1979, which was in evidence, he said:
"In my opinion this man suffered a spontaneous right intracerebral haemorrhage. The particular vessel which had ruptured was not demonstrated. Such haemorrhages commonly occur after the result of rupture of tiny (cryptic) arteriovenous malformations. When this occurs such malformations are destroyed leaving no detectable trace. There is no evidence of any association between this haemorrhage and his work activity."

In cross-examination he said that haemorrhages of this type can occur spontaneously without trauma and there were no physical signs of trauma in the respondent's case.

Later in cross-examination he said that the onset of such a stroke is usually a good deal quicker than the onset of a weakness or a paralysis due to the progressive clotting of the blood vessels or diminishing blood supply, so called thrombosis. In answer to the following question he gave the following answer:
"How quickly then would this haemorrhage occur? --- That does depend on the size of the vessel. There was no, you know, large vessel as far as I could ascertain. It would probably be relatively slow, perhaps over the course of half an hour or an hour rather than a matter of minutes. But you could not say that symptoms would not start to appear within a matter of minutes. But certainly you could not expect it to be longer than half a day."

Dr Zelman Freeman, specialist physician, gave evidence on behalf of the appellant. He said that a stroke due to haemorrhage is usually due to the rupture of a weakened blood vessel deep in the substance of the brain. It slowly ploughs up the brain material until it leaks into the cerebro-spinal fluid and slowly the patient develops symptoms. If there is very high blood pressure the symptoms come on quickly. If there is normal blood pressure it takes half an hour to an hour for the symptoms to appear.

He said that haemorrhages of the type found in the respondent occur spontaneously and are usually due to a weakness in the wall of the deep vessel that can rupture at any time in a person's life quite spontaneously without any preceding event. In cross-examination he confirmed that the escaping blood ploughs up the brain tissue causing an injury to the brain. Nobody seems to know what actually precipitates the event, except that the blood vessel bursts. He said that a rise in blood pressure or anything of that sort could cause it.

Dr Francis Long, specialist physician, also gave evidence on behalf of the appellant. He also expressed the view that strokes occur spontaneously and that the blood from the broken vessel causes damage to the surrounding tissue of the brain. In his report of 8 February 1980, which was in evidence, he said:
"However, there could not be the slightest reason to believe that the bump on the head was the cause of his symptoms. My own reconstruction of the events is that it was the onset of the stroke which caused him to bump his head as he had been doing the same kind of work for some period and therefore would normally be expected not to bump his head."

It is clear from a reading of the transcript of the proceedings before the magistrate that the respondent presented his case with a view to establishing that it was the bump on the head at work which caused the rupture of the blood vessel in the brain and the damage to the brain cells. Alternatively the respondent's case was that the spontaneous rupture of the blood vessel was nevertheless an injury by accident arising in the course of the respondent's employment by the appellant and Kavanagh's Case was relied upon as authority for his entitlement to compensation. As indicated earlier the learned magistrate rejected the respondent's case presented upon the incident at work as a causative factor of his uncontradicted medical condition. However, he upheld the respondent's entitlement to compensation on the alternative basis.

In dismissing the appeal, the Chief Justice reviewed the authorities, and, as I set out earlier, applying the reasoning in Kavanagh's Case, found it applicable to the respondent.

In James Patrick and Co. Pty Limited v. Sharpe (1955) A.C. 1, the Privy Council had to consider the meaning of section 5 of the Workers' Compensation Act 1928 of the State of Victoria in its amended form, which was in similar terms to section 7 of the Workmen's Compensation Ordinance. In that case the facts, as they appear from the headnote, were that a workman, while travelling between his place of residence and his place of employment, suffered an auricular fibrillation as a direct result of which he died at his home on the same day. The post mortem disclosed microscopic evidence of degenerative changes in the heart muscle not specific of any disease. No other abnormality was observed. The onset of the auricular fibrillation was a sudden physiological change unexpected and not designed by the worker. The cause of auricular fibrillation appeared not to be known but it was known to occur with certain types of heart disease. The Privy Council held:

(1) that there being no finding that any external event or any action of the deceased played any part in causing the fibrillation to happen when it did, the case must be dealt with on the footing that the fibrillation was due solely to the onset or progress of some disease within the man's body; and

(2) that while in all cases in Victoria before 1946 it was necessary, in order to establish that the death was due to injury by accident, to provide that some external event or some action of the deceased had caused the sudden physiological change to happen when it did, the effect of the definitions of "disease" and "injury" incorporated by the amending Act of 1946 was to make it no longer necessary to associate the sudden physiological change with any external event or action by the deceased. Accordingly the worker had died as the result of injury by accident arising out of or in the course of his employment.

In delivering the judgment of their Lordships, Lord Reid examined whether the effect of the amendment was to make it no longer necessary to associate the sudden physiological change with any external event or any action by the deceased, and alluded to the reason why a causal connection had previously to be shown. Previously it could only be done by associating the injury with something which the man did or something which befell him in connection with his employment because the injury byaccident had always to arise out the employment. By substituting the word "or" for the word "and" in the previous provision, the scope of the statutory right to compensation was widened.

In The Commonwealth v. Ockenden (1955-1958) 99 C.L.R. 215, the High Court had to consider a claim for compensation under the Commonwealth Employees' Compensation Act 1930, since repealed, which was in identical terms to section 7(1) of the Workmen's Compensation Ordinance. In that case the worker claimed compensation for incapacity due to a "rheumatic heart". Upon the medical evidence there was no doubt that the worker's condition was the result of cardiac damage initially sustained in the course of an attack of rheumatic fever during his childhood or early adolescence. The evidence established that the worker suffered from a progressive weakening of the aortic valve, and as the disease progressed the valve operated with diminishing efficiency.

In its judgment the High Court distinguished the type of condition from that which arose in Sharpe's Case. It went on to say about the decision in Sharpe's Case:
"But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker's employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment."

In the present case the appellant relied upon that passage as authority to support its submission that the cerebral haemorrhage suffered by the respondent was nothing more than the inevitable result of the natural progression of a pre-existing condition, which pre-existing condition had not been adverted to by the Chief Justice.

It is clear from what was said later in Kavanagh's Case the above dicta must be read in the context of the facts in Ockenden's Case and must be confined to the set of circumstances where a worker suffers personal injury by accident arising in the course of his employment and suffers at his place of employment a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering.

It is convenient-now to refer to Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547. Likewise, this was a case dealing with the construction of the provisions of the Commonwealth Employees' Compensation Act 1930. The worker at his place of employment suddenly vomitted and later was found to have suffered a ruptured oesophagus. The cause of the vomitting could not be explained. He died in hospital some 6 days later from bronchopneumonia and heart failure supervening upon the rupture. The High Court held by majority that he had suffered personal injury by accident arising in the course of his employment.

Dixon C.J. referred to the above passage in Ockenden's Case and said that the passage cannot with legal correctness be pressed beyond a physiological change which is produced by the development of a progressive disease. He went on to say that in such a case if the physiological change can be attributed to an incident of the employment or can be associated therewith, that is as having some casual relation, then it may be possible to regard it as an injury by accident, where otherwise it could be treated as nothing more than the sole and inevitable result of the ravages of a disease. He said it would not be correct to apply the passage in the case of Kavanagh, who had suffered what was clearly enough an injury by accident, though not occasioned by any external force or agency.

He referred to the language of the section and the contrast repeatedly made between the effect of the words "out of" and the effect of the words "in the course of". The first expression was treated as requiring a causal connection between the employment or its incidents, and the second as requiring that the pursuit of the employment should be an accompanying condition. There was nothing in the second expression requiring a causal connection. He said that the words "arising in the course of the employment" do not connote a causal connection.

Fullagar J. said the same thing and concluded that the main object of changing the conjunction from "and" to "or" was to eliminate the necessity of finding a causal connection. Fullagar J. referred to Ockenden's Case and said:
"The Court was dealing in Ockenden's Case with a special class of case - the case where death or incapacity results from a 'physiological change' such as a coronary occlusion, which was a development or culmination of an antecedent morbid condition in the body of the worker. The true position in such cases is that compensation cannot, in the absence of some special provisions such as those considered in Sharpe's Case be recovered unless the 'physiological change' was associated with some episode or incident in the worker's employment - such as lifting a heavy weight or hurrying up a steep slope. It is therefore literally true to say that, in the absence of any such episode or incident, the worker fails to establish 'personal injury by accident arising in the course of his employment'. But the real truth in such a case is expressed not by saying that the worker has suffered personal injury by accident outside the course of his employment, but by saying that the worker has not suffered personal injury by accident at all. It is not incorrect to say, in the absence of any material episode or incident of the employment, that the 'physiological change' occurred outside the course of the employment, but it is incorrect to say that what happened is placed outside the course of employment by the absence of any causal connexion between what happened and the employment. I do not think that any real support for this latter proposition is to be found in Ockenden's Case. In other words, Ockenden's Case is to be regarded as a decision on the words 'personal injury by accident', and not as a decision on the words 'arising in the course of his employment'."

The language of the legislation next came to be considered in The Commonwealth v. Hornsby 103 C.L.R. 588. In that case the worker suffered a stroke while travelling from his home to his place of employment. He had not experienced any previous symptoms of arterial degeneration. It was found that the stroke was due to a thrombus which had formed in an atheromatous cerebral vessel. There was medical evidence that the cerebral vessels had been affected by artheroma for some time and that the concurrent existence of artheroma in those vessels and hypertension was a cogent pre-disposing influence in the formation and development of the thrombus.

The High Court held that the stroke was a result solely of the natural progression of a pre-existing morbid condition and did not constitute "injury by accident" within the meaning of the Act. The nature of the stroke suffered by the worker in Hornsby's Case is to be distinguished from the nature of the stroke suffered by the present respondent. It was in Hornsby's Case a stroke of the ischaemic type, whereas in the present case it was a stroke of the haemorrhagic type - a distinction adverted to by the Chief Justice in his reasons for judgment.

In Hornsby's Case Dixon C.J. reached the conclusion that the processes leading to Hornsby's injury could not be regarded otherwise than "as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus". As the journey had not contributed to the ischaemic stroke, and its causation was entirely an internal matter, the worker was not entitled to compensation, applying the principles enunciated in Ockenden's Case.

Fullagar J. likewise applied the principles in Ockenden's Case and attempted to elucidate those principles in the following passage:
"The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. Examples are Brintons Ltd. v. Turvey (anthrax) and Miller v. J.W. Handley Pty. Ltd (tuberculosis), which was discussed in Nash v. Sunshine Porcelain Potteries Ltd. Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus (Clover, Clayton & Co. Ltd. v. The Commonwealth). It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurence which results in death or incapacity is commonly referred to as a 'sudden physiological change'. Examples are found in Hetherington's Case (coronary occlusion) and Sharpe's Case (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged.
. . . . . Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled.

Cases of the first and third classes are, of course, cases of disease. The present case does not fall within the first class, but does fall within the third. With regard to this class of case, and so far as statutes framed as is the Commonwealth Act are concerned, the rule to be applied is now, I think, well established. It may be stated, for present purposes, in terms limited to heart cases. If, as in Kellaway v. Broken Hill South Ltd. the arterial disease and the thrombosis or other occlusion in which it culminated were 'autogenous', and no particular incident or activity of the worker accelerated or contributed to the occlusion, it cannot be said that there was any personal injury by accident. If, on the other hand, as in Hetherington's Case (where the worker had just walked up a steep slope) it can be found, as is found, that some particular incident or activity of the worker did contribute to or accelerate the occlusion, then the worker must be held to have suffered personal injury by accident. When this position is reached, a further question may or may not arise as to whether the particular incident or activity was in the course of the worker's employment."

In my view this matter can be decided on a factual basis. If the haemorrhagic stroke suffered by the respondent was a sudden physiological change and not the sole and natural consequence of a pre-existing morbid condition, he has suffered injury by accident arising in the course of his employment. If, on the other hand, he has suffered a sudden physiological change in circumstances where there is no casual connection between his employment or the incidents thereof and the physiological change, which physiological change was a development or culmination of an antecedent morbid condition, he has not suffered injury by accident arising out of or in the course of his employment.

When the blood escaped from the large vessel into the brain there was a sudden physiological change. It may also be that when that escaping blood leaked into the cerebro spinal fluid and caused damage to the surrounding tissue of the brain, the respondent suffered a further sudden physiological change. Either event might properly be described within the authorities as an injury by accident.

I cannot find any evidence in the case of a pre-existing morbid condition or any evidence that what happened within the respondent's brain was the development, culmination or sole and inevitable result of the progression of a pre-existing morbid condition. The factual basis for the appellant's submissions before us does not appear in the evidence.

Accordingly, I think that the Chief Justice was right and I would dismiss the appeal with costs.

JUDGE3

The facts, the effect of the relevant legislative provisions, and the circumstances in which this matter comes before us on appeal, appear from the judgments of the other members of the Court and the judgment below. I agree that the appeal should be dismissed.

Not all the dicta can be reconciled and this Court is not in a position to provide a definitive ruling as to which are to be preferred. Accordingly, I propose to adopt the course of Rich J. in Hetherington v. Amalgamated Collieries of W.A. Ltd (1939) 62 C.L.R. 317. His Honour, in a characteristically brief judgment, said at p.329 that the difficulty of deciding a case under Workmen's Compensation Acts is not usually lessened by dicta in reported decisions, and added:
"I refrain from adding any dicta or formula of my own to the catalogue to be found in the chain of cases which provoke appeals and harass the mind of Counsel and Judges."

Had the decisions concluded with James Patrick and Co Pty Ltd v Sharpe (1955) A.C. 1, I would have had no doubt that there was a personal injury by accident caused to Mr Srdic within the meaning of sub-s.7(1) of the Australian Capital Territory Workmen's Compensation Ordinance 1951. If anything, this is a stronger case than Willis v Moulded Products (Australia) Ltd (1951) V.L.R. 58, which was expressly approved in Sharpe's Case. In my opinion, neither of those decisions relevantly turned on the specially extended definitions of "injury" and "disease" in the Victorian legislation there under consideration. Sharpe's Case also explained Hetherington's Case, supra, emphasising what was there pointed out by Evatt J. at p.335. The effect of the finding that Mr Hetherington's death was contributed to by an ordinary incident of his employment, the exertion of his work underground and the arduous climb which he was required to undertake to return to the surface, was that the tests laid down by the United Kingdom authorities, which had been concerned with legislation which required an injury by accident which arose out of and in the course of employment, and not merely an injury by accident which arose out of or in the course of employment, were satisfied.

The position was, however, blurred by the judgment of the High Court in The Commonwealth v. Ockenden (1958) 99 C.L.R. 215 and subsequent discussion of it in Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547 and The Commonwealth v. Hornsby (1960) 103 C.L.R. 588, both of which judgments were delivered on May 19, 1960. It is not without interest that while Ockenden's Case was a joint judgment by Dixon CJ., Fullagar and Taylor JJ., Kavanagh's Case and Hornsby's Case reveal a later divergence in their views.

In delivering the decision of the Privy Council in Sharpe's Case, supra, Lord Reid, after pointing out at p.14 that death or disability which was merely the result of a continuous process over a period, there being no particular change in the man's condition at any one time, was never held to be due to injury by accident, went on to explain why that was so, quoting with approval a passage from the speech of Viscount Caldecote LC in Fife Coal Co v. Young (1940) A.C. 479 at p.484, part of which is as follows:
"When the workman's claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuparable. But if the circumstances of any claim in respect of incapacity due to diseases such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover Clayton and Co Ltd v. Hughes (1910) A.C. 242 or heart failure as in Falmouth Docks and Engineering Co Ltd v. Treloar (1933) A.C. 481."
None of the judgments in Ockenden's Case, Kavanagh's Case or Hornsby's Case, except the dissenting judgment of Menzies J. in Hornsby's Case, contain any reference to what had been said by Viscount Caldecote LC in Young's Case. What was said by Menzies J. in Hornsby's Case at pp 603-605 seems to me closely reflected by what was later said by Gibbs J., as the present Chief Justice then was, in Public Trustee (W.A.) v. The State Energy Commission (1979) 142 C.L.R. 211 at pp. 225-227.

However that may be, and wherever the line is to be drawn, on the facts as they stand in this case there was, in my opinion, a personal injury by accident caused to Mr Srdic within the meaning of sub-s. 7(1) of the A.C.T. Workmen's Compensation Ordinance 1951. Specific and distinct physiological damage to Mr Srdic suddenly occurred at a definite and identifiable point of time whilst he was working. It was neither expected nor designed by him. It was related to a pre-existing morbid condition, but was neither inevitable nor a development in a progressive process of deterioration. It was not shown that it was, but nor was it shown that it was not, connected with the performance of his work. In my opinion, the authorities as they stand support the conclusion that Mr Srdic is entitled to compensation under the Ordinance.

I agree with the proposed order that the appeal be dismissed with costs.