Australian Telecom Commission v George Arthur Leech

[1982] FCA 256

Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION AND THE COMMONWEALTH OF AUSTRALIA
And: GEORGE ARTHUR LEECH (1982) 69 FLR 409
VG No. 31 of 1982
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Franki(2) and Lockhart(1) JJ.

CATCHWORDS

Compensation - Appellant in receipt of a pension under Repatriation Act - Whether s.98 of the Compensation (Commonwealth Government Employees) Act precludes the receipt of compensation under that Act - Nature and meaning of "injury" discussed - Factors relevant to the entitlement of compensation considered - s.98 deals with the situation when an incapacity is both compensable and pensionable.

Compensation (Commonwealth Government Employees) Act 1971 ss.5, 27, 29, 98.

Repatriation Act 1920 s.24, 101.

Workers Compensation - Commonwealth employee - Employee in receipt of pension under Repatriation Act 1920 (Cth) - Whether precluded from obtaining compensation under Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Injury - Whether employee entitled to receive a pension in respect of an incapacity resulting from that injury - Repatriation Act 1920 (Cth), ss 24, 101; Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 98.

HEADNOTE

The respondent, a serviceman in the Second World War, had been paid a pension under the Repatriation Act 1920 (Cth) for conditions which included hypertension. He had been employed by the Postmaster General's Department before being invalided out. He was also held by the delegate of the Commissioner for Employees' Compensation to have an entitlement to compensation for "aggravation of hypertension" but to be precluded by s. 98(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) to payment of compensation. The Administrative Appeals Tribunal reviewed the delegate's determination. On appeal,

Held: Per Fox and Lockhart JJ. - (1) Section 98 dealt with the situation where an incapacity can be regarded as both compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and pensionable under the Repatriation Act 1920 (Cth).

(2) No ground had been shown to disturb the finding of the Administrative Appeals Tribunal that the basis of the pension under the Repatriation Act 1920 was markedly different from the claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971.

(3) It was not correct to say that the respondent had received or was entitled to receive a pension under the Repatriation Act 1920 in respect of an incapacity resulting from the injury for which compensation was payable within the meaning of s. 98 of the Compensation (Commonwealth Government Employees) Act 1971.

(4) Per Franki J. - The onus lay upon the appellants to establish that, pursuant to a determination or assessment, the respondent was entitled to a pension in respect of an incapacity resulting from the second injury under the Repatriation Act 1920.

(5) Appeal dismissed.

HEARING

Melbourne, 1982, June 28; November 23. #DATE 23:11:1982

APPEAL.

The appellants appealed on questions of law from a decision of the Administrative Appeals Tribunal.

H. T. Nathan Q.C. and G. Moore, for the appellants.

E. F. Hill and D. J. Ashley, for the respondent.

Cur. adv. vult.

Solicitor for the appellants: B. J. O'Donovan, Commonwealth Crown Solicitor

Solicitors for the respondent: Slater & Gordon.

T.J.G.

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Orders accordingly.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by Davies J., in which he reviewed a determination of the Delegate of the Commissioner for Employees' Compensation made on 7 January 1981.

The respondent, Mr. Leech, is aged 62. He served in the A.I.F. in the 1939-1945 war. Before and after that war he was employed by the Postmaster General's Department of the Commonwealth of Australia. The firstnamed appellant has succeeded to certain functions of that Department, although it may not have direct responsibility to pay any compensation assessed in favour of the respondent.

The question of law before us arises from the fact that the respondent has been paid a pension under the Repatriation Act 1920 for conditions which include hypertension, and has also been held by the Delegate to have an entitlement to compensation for "aggravation of hypertension". The Delegate determined that payment of compensation was precluded by s.98 (1) of the Compensation (Commonwealth Government Employees) Act 1971 ("the Compensation Act") which is as follows:

"Compensation is not payable under this Act to an employee in respect of an injury if the employee has received, or is entitled to receive, in respect of an incapacity resulting from that injury, a pension (other than a service pension) in pursuance of a determination or assessment made under the Repatriation Act 1920 (other than Division 10 of Part III), the Repatriation (Far East Strategic Reserve) Act 1956, the Repatriation (Special Overseas Service) Act 1962, the Interim Forces Benefits Act 1974 or the Native Members of the Forces Benefits Act 1957."
The Tribunal took a different view of the law in relation to the facts and set aside the determination.

The facts are fully set out in the reasons of the Tribunal, and we shall endeavour to confine ourselves to what we consider to be the essentials. A brief chronology of events is necessary. At an unstated time between 1950 and 1970 the respondent received a war pension for epilepsy assessed at 30% of the general rate. He was working at the time, still for the Postmaster General's Department. In November 1972 he ceased work, but continued as an employee on sick leave. In December 1972 a Commonwealth Medical Officer recommended that he be retired on health grounds because he was suffering "from Hypertension, Depressive State and Petit Mal". Following an application made in August 1973, the respondent was, on 21 June 1974, granted an increase in his repatriation pension as from 12 April 1973, to 50% of the general rate, hypertension then being accepted (for the first time) as a pensionable disability. He was invalided out of the Commonwealth service on 13 April 1974. By claim dated 21 December 1976 the respondent made an application for compensation in which he stated under the heading "Nature of Injury or Disease (or aggravation of injury or disease)" the following:
"Aggravation - Acceleration of Hypertension."
Under the heading "At what time and on what date did injury occur, or symptoms of disease first become apparent" the particulars given were:
"Jan. 1972".

This application finally led to the determination of the Delegate to which we have referred. Dated 7 January 1981, it was as follows:
"(1) On the evidence before me, including specialist medical opinion, I find:-

(a) the employment of the said George Arthur Leech, including employment before 12 April 1973, was a contributing factor to the aggravation of hypertension;

(b) with effect from 12 April 1973 the said George Arthur Leech has received a pension under the Repatriation Act 1920, as amended, in respect of his service-related conditions, including hypertension.

(2) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sections 27 and 29 of that Act, I hereby determine:-

(a) the employment of the said George Arthur Leech, including employment before 12 April 1973, was a contributing factor to the aggravation of hypertension, and the said aggravation is deemed to be a personal injury to the said George Arthur Leech arising out of his employment;

(b) the Australian Telecommunications Commission is therefore liable to pay compensation in accordance with the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, in respect of the said personal injury;

(c) with effect from 12 April 1973 the said George Arthur Leech has received a pension under the Repatriation Act 1920, as amended, in respect of his service-related conditions, including hypertension;

(d) having regard to the provisions of sub-section 98(1) of the Compensation (Commonwealth Government Employees) Act 1971, as amended, the Australian Telecommunications Commission ceased on 12 April 1973 to be liable to pay compensation under that Act in respect of the said personal injury."

Between 1973 and 1981 there had been a number of reviews of the Repatriation pension, some due to an operation for a benign brain tumour, and its consequences. The pensions which were determined in Mr. Leech's favour continued to include an allowance for hypertension. The exact allowance which is reflected in the pension at any time is not ascertainable, as it is the Department's practice where there are multiple pensionable disabilities to arrive at a composite assessment which is not necessarily, and was not in this case, an aggregate of the percentages for each disability used in the calculation. For a period the totality of the respondent's disabilities entitled him to the rate of pension fixed for temporarily totally incapacitated (T.T.I.) pensioners (see para. (3) of Schedule 1 of the Repatriation Act).

Section 98 is one of several sections in Part VI of the Compensation Act which bears the heading "Liabilities Arising Otherwise Than Under This Act". The Act defines "injury" in s.5 as follows:
"'injury' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;"

Section 29, which deals with disease, is, so far as material, as follows:
"(1) Where -

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recrrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.

(2) If -

(a) the death of the employee;

(b) a loss to the employee of a kind referred to in section 39 or 40;

(c) facial disfigurement to the employee;

(d) a loss to the employee of the sense of taste or smell; or

(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -

(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and

(g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury."

Section 27, which is a key section relating to compensation entitlement, is, in sub-s. (1), as follows:
"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay Compensation in respect of that injury in accordance with this Act."

The argument for the appellant is, in short, that, like other sections of Part VI, s.98 is intended to prevent double compensation being paid for the same injury. It is submitted that, as the employee is entitled to receive, and at the time of the compensation determination had been receiving a pension under the Repatriation Act for conditions which included hypertension, compensation is not payable to him.

It is often said that the word "injury" in compensation legislation is ambiguous, in the sense that it can be taken to refer both to an event and the consequences of that event. One thing that is clear, both as a matter of common sense, and as a matter of construction of the present legislation, is that the aggravation of an injury is distinct from the original injury, and is to be regarded as an "injury" in itself. The definition of "injury" in s.5 and the language of s.29 make the point. The compensation application was for an aggravation, and the determination contained a finding of aggravation, and a decision in favour of the respondent on that basis. Something in the respondent's employment had aggravated his pre-existing condition of hypertension. See Johnston v. The Commonwealth of Australia, judgment of the High Court, 22 September 1982. The word "injury" where secondly appearing in s.98(1) must be construed as meaning an injury which resulted in the right to receive a pension under the Repatriation Act by reason of its having the necessary connection with war service and also having resulted in incapacity. Assuming that the section has application to diseases (a matter to which we return later) the "injury", in the sense of the occurrence, may be taken to be the contraction, the aggravation, the acceleration or the recurrence of the disease, all of which are recognised by the Compensation legislation as separate matters. In this case the repatriation pension was payable for an incapacity either resulting from something that happened on active or war service or that arose out of or was attributable to war service (ss. 24, 101 of the Repatriation Act).

Section 98 appears to us to be of limited application. It deals with the situation where an incapacity can be regarded as both compensable under the Compensation Act and pensionable under the Repatriation Act. The present case has been treated as one in which the incapacity flowing from the aggravation is compensable, but not pensionable. In the case of a disease, and particularly one like hypertension, the dividing line, as a matter of fact and opinion, may be a fine one. In the present case the Tribunal has found the situations to be distinct. The Tribunal found that the repatriation pension related to an incapacity resulting from epilepsy, tumour and hypertension, and that such pension was markedly different from the claim for compensation under the Compensation Act. No ground has been established to disturb that finding. It does not matter that the respondent's claim for a pension for hypertension was not made, or, if made, was not recognised, until the determination of 21 June 1974. The point has not been reached, if it will ever be reached during the respondent's lifetime, when the consequences of war service and of the aggravation merge.

For these reasons, it is not correct to say that the respondent has received or is entitled to receive a pension under the Repatriation Act in respect of an incapacity resulting from the injury for which compensation is payable.

We assumed earlier the application of s.98(1) to diseases, but we should note in this connection an argument addressed to us. Hypertension is a disease and s.29 provides that diseases are in certain circumstances deemed to be personal injuries arising out of employment by the Commonwealth. The section does not fit well the language of s.98(1). There are two aspects. Section 29 provides that, given certain conditions, a disease (or its aggravation, acceleration or recurrence) is deemed to be a personal injury. The definition of injury in s.5 does not say that it includes deemed injuries, or words to that effect. Section 29 is cited as qualifying the negative proposition that "injury" does not include a disease, or its aggravation, acceleration or recurrence. Then, one of the requirements to be satisfied before a disease can be deemed an injury is that there be incapacity. Section 98(1), however, refers to incapacity resulting from the injury. It was submitted to us that, having in mind these matters, the sub-section does not apply to diseases. In the circumstances, it is not necessary to reach a conclusion on this submission.

In our view the appeal should be dismissed with costs.

The Court orders that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

JUDGE2

I have read the reasons for judgment of Fox and Lockhart JJ. in which the relevant facts are set out.

The first question for consideration arises under s.98(1) of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). So far as is relevant this section denies compensation to an employee in respect of an injury if the employee has received, or is entitled to receive, in respect of an incapacity resulting from that injury a pension (other than a service pension) in pursuance of a determination or assessment made under the Repatriation Act 1920.

In my opinion if an employee is entitled to receive a pension under the Repatriation Act pursuant to a determination or assessment for an incapacity resulting from a particular injury he is not entitled to compensation under the Act.

An appeal lies from the decision of the Administrative Appeals Tribunal, ("the Tribunal") only on a question of law. The Tribunal said:
"It will be noted that the Delegate determined that Mr. Leech's employment had been a contributing factor to the aggravation of his hypertension and that such aggravation was deemed to be a personal injury arising out of his employment. Before me, that finding was not challenged and, for the purpose of dealing with the issue which was argued before me, I assume it to be correct."

Before us counsel for the appellants conceded the validity of this finding by the delegate and that the aggravation and acceleration of the respondent's hypertension "constituted a personal injury in the terms of s.29 of the Act and would, in other events, have entitled him to compensation at the date when the determination was made." Counsel also said:
"I cannot pick up the teasing medical problems because there is insufficient evidence. We accept the proposition that his work aggravated and accelerated his hypertension."

It is clear that the appellants conceded that the aggravation of hypertension due to the respondent's post war work aggravated a condition which had resulted from his war service and that there were in fact two separate injuries. I will call this later injury the "second injury".

In my opinion the critical question is whether s.98 of the Act denies the respondent's entitlement to compensation for the fresh or second injury which arose out of his employment which aggravated his pre-existing war-related hypertension. The answer to that question must depend on whether the respondent was entitled to receive compensation for the incapacity resulting from that second injury pursuant to a determination or assessment under the Repatriation Act. That is the critical factor.

The Tribunal pointed out that the compensation being paid under the Repatriation Act was in respect of incapacity resulting from epilepsy, tumour and hypertension and that it was markedly different from the claim for compensation under the Act and that it was not satisfied that the considerations prescribed by s. s.98 had been fulfilled.

The respondent had served as a member of the armed forces during the 1939-45 war and, as a result thereof, he had received a pension which took into account a war-related condition of hypertension.

Although in the case before us the respondent would appear to suffer a considerable disadvantage if he had a pension under the Repatriation Act in respect of the second injury, that might not be the position in other cases. For example, if a pre-existing condition was aggravated by employment, or during a period of self-employment, in a way which did not attract compensation under some other Act, a person may very well wish to claim compensation under the Repatriation Act for what I will call a second injury.

Since the amendments in 1979 to the Repatriation Act it has become easier to receive a pension in respect of war service. The question was examined in Law v. Repatriation Commission (1980) 29 A.L.R. 64, by Toohey J., by the Full court of this Court, (1980) 31 A.L.R. 140, and by the High Court (1981) 36 A.L.R. 411. Bowen C.J., Brennan and Lochart JJ., in a joint judgment, considered the meaning of the phrases "has arisen out of" and "is attributable to" war service in s.101(1)(b) of the Repatriation Act. In relation to the phrase "is attributable to" their Honours said at p. 151:
"Under s.101(1)(b) it is sufficient to show 'attributability' if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made."

In my opinion the onus lay upon the appellants to establish that, pursuant to a determination or assessment, the respondent was entitled to a pension in respect of incapacity resulting from the second injury under the Repatriation Act.

I consider that they did not discharge that obligation.

The Tribunal, as a finding of fact, reached the conclusion that no repatriation claim could have been made in respect of the work-related injury. This finding did not depend in any real sense upon the construction it placed upon s.98(1). The appeal to this Court is only on a question of law and the question of whether the second injury was within the pensionable provisions of the Repatriation Act was not argued before us.

The first three grounds specified in the notice of appeal related to the question whether the two injuries and incapacities arising therefrom were identical. The fourth ground alleged that ss.5, 29 and 98 of the Act had been wrongly interpreted. The notice of appeal also sought to raise a question of law in relation to s.98 of the Repatriation Act.

The respondent argued that aggravation of a disease causing incapacity which, had been deemed to be a personal injury arising out of the employment of the employee by the Commonwealth within s.29(2) did not fall within s.98. That argument was based on the word "injury" in s.98 and the definition of injury in s.5 which did not include "a disease or the aggravation, acceleration or recurrence of a disease". I do not think this argument has any substance because the obligation to pay compensation arises under s.27 of the Act which uses the word "injury". It is only if an applicant has suffered an "injury" that compensation is payable.

In the case before us the concept that there are two injuries rests upon the view that aggravation during employment caused a second injury and so attracted compensation under the Act. If this is so I see no reason why the word "injury" should be given a different meaning in s.98 to that which it would receive in s.27.

I would dismiss the appeal and order the appellants to pay the respondent's costs of the appeal.