Bird v The Commonwealth of Australia

[1988] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B79 of 1987

B e t w e e n -

COLIN IRVINE BIRD

Appellant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

Bird (2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 APRIL 1988, AT 12.06 PM

Copyright in the High Court of Australia

C2T 31 / 1 /ND 1 20/4/88

MR R.S. O'REGAN, QC:  May it please the Court, I appear

with my learned friend, MR W.T. McMILLAN, for the

appellant. (instructed by Hawthorn Cuppaidge &

Badgery)

MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MR J. LOGAN, for the respondent.

(instructed by the Australian Government Solicitor)

MASON CJ:  Yes, Mr O'Regan.

MR O'REGAN:  Thank you, Your Honour. Your Honours, we hand

up copies of our outline of submissions.

MASON CJ:	Thank you.
MR O'REGAN:	Your Honours, may we also hand up, at the outset,

a copy fo the COMPENSATION (COMMONWEALTH GOVERNMENT

EMPLOYEES) ACT together with the regulations made

under that Act in 1971 which our friends have kindly

bound up in single volumes.

MASON CJ:	Thank you.
MR O'REGAN:	Your Honours, we mention at this stage that

the appeal turns upon the construction of

section 30 of the Act which is on the first folio

after the brown leaf in the volume and also upon

the effect of regulation 12 of the regulations

and the first schedule thereto and those folios

are respectively the third folio before the orange

leaf and the first folio after that leaf.

(Continued on page 3)

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Bird(2)

:MASON CJ:	Yes.
MR O'REGAN:	Your Honours, this is an appeal from the judgment

of the Full Court of the Federal Court, given on

11 September last year, and in that judgment the

Full Court allowed an appeal from a decision of

Mr Justice Spender of the Federal Court, in which

Mr Justice Spender had confirmed a determination

of a delegate of the Commissioner for Employees'
Compensation that the Commonwealth, through the

Department of Defence, was liable to pay compensation

to the appellant under the provisions of the Act

for the disease from which he then suffered which

was right cervical node metastasis from carcinoma

of the tongue.

Now, he obtained treatment in relation to that

disease in April 1980, and it was diagnosed at that

time. Your Honours, according to the evidence, there

were various possible causes of the disease, which

were smoking, consumption of alcohol, or the

appellant's exposure to radiation many years before

in 1952. At that time, he had been in the RAAF and

he had been exposed to radiation for about five weeks

in the course of fitting and removing canisters

which had been attached to aircraft which had flown

over the hurricane blast site, and those canisters

contained radioactive air and dust samples.

He had later been involved in servicing the

same aircraft and refuelling them, and later, when

he returned to his base at Amberley in Queensland,

he was involved in cleaning the aircraft as well.

The crucial issue before the delegate and before the Federal Court, was whether this employment,

involving as it did an exposure to radiation, was,

by reason of the provisions of the Act, deemed to be

a contributing factor to the contraction of that

disease.

(Continued on page 4)

C2T32/l/VH	3
Bird(2)

MR O'RE.GAN (continuing): And that depended upon the

proper construction of section 30 of the Act,

especially 30(b), and that, Your Honours, is the

short point of this appeal.

Your Honours, section 27 creates the primary

liability to pay compensation for personal injury

arising out of or in the course of employment

and sections 29, 30 and 31 extend that liability

to diseases in certain prescribed circumstances.

By section 29:

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 Cormnonwealth was a contributing factor to
the contraction of the disease or to the aggravation. acceleration or recurrence

the succeeding provisions of this section

have effect.

And the effect of those sections, put shortly, is
to deem the disease to be a personal injury for the

purpose of section 27 and to make the disease

therefore compensable.

Now that section 29 is also supplemented by

section 30 which reads:

Without limiting by implication the operation

of -

section 29 -

where -

(a)

an employee has suffered or is suffering from from a disease,

(b) the disease is a disease of a kind specified

in the regulations as a disease that is

rAlated to employment of a kind so specified; and
(c)	the employee was, at any time before

symptoms of the disease first became

apparent, engaged by the Conunonwealth in
employment of that kind,

then, for the purposes of this Act, unless the
contrary is established, the employment in which

thha.e e~pl9yee was so engaged by the Commonwealth s 11 be deened to have been a contributing factor to his

contraction of the disease.

C2T33/l/JM

Bird(2)	4
MR 0'REGAN:	It was not in dispute below that section J0(a)

and (c) applied and the delegate an:i Mr Justice Spender

were also of the view that clause (b) applied.

When read with the Compensation (Commonwealth

Government Employees) Regulations, 1971, particularly

with regulation 12 and item 4 of the first schedule to those regulations, the disease was a compensable

one. May we take Your Honours to that regulation

and that item which, together, complete the scheme.

Regulation 12 provides:

For the purpose of section 30 of

the Act, a disease of a kind specified 1n
the first column of the First Schedule
to these Regulations is related to employment
of a kind specified in the second column

of that Schedule opposite to the reference

to that disease in the first column.

Then, if one goes to the first schedule, there

are listed various diseases, the relevant one

being item 4:

Pathological condition caused by -

(a) radium or another radioactive

substance; or

(b) x-rays

and the corresponding employment with respect

to that particular disease is:

Employment involving exposure to or
contact with radium, other radioactive

substances or x-rays.

The argument which commended itself to the delegate and

Mr Justice Spender was that the appellant's

disease, whatever its cause, was, in fact, a

disease of a	kind specified in the regulations
as a disease that is related to the employment
so specified.	The conclusion of the delegate

in that respect appears from paragraphs 19 and following, which are set out on page 12 - that

is paragraph 19 of his statement of reasons.

In paragraph 19 the delegate refers to a

medical opinion expressed by one specialist,

Dr Kynaston, to the effect that:

(Continued on page 6)

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Bird(2)
MR O'REGAN (continuing):

The carinoma which Bird has can be caused by

exposure to radiation. Dr Kynaston said

this although he qualifies his comment by

saying that a 'very significant level of

radiation would be required to induce this

tumour'.

The delegate then discussed further Dr Kynaston's

opinion and makes reference in paragraph 20 to the

evidence of another doctor, Dr Russell Bird who:

Has advised that he is not aware of any tests which could determine whether Bird's cancer was caused by exposure to radiation but that

such exposure is a possible cause. Note:

Medical comments on Bird's condition in the

1980s when he was being treated for cancer

contain phrases like 'metastases of an unusual

type'. 'Peculiar histology', - not uncommon

in our experience of these cases.

And, paragraph 21:

Other possible causes of this form of cancer

are excessive smoking and drinking of alcoholic
beverages. Bird is recorded as having been a

heavy drinker and (possibly) a smoker.

It appears, Your Honours, that that tentative

conclusion there was confirmed, in effect, by the delegate in paragraph 24, if we may go forward to

that for a moment because that paragraph begins:

The delegate also noted that other possible causal factors namely smoking and the heavy use of alcohol existed in this case -

TOOHEY J:  Mr O'Regan, we are not concerned, are we, with the

existence of possible causes unless the commissioner

seeks to invoke the contrary provision in section 30.

(Continued on page 7)

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Bird(2)

MR O'REGAN: That is so, Your Honour. If it is a pathological

condition of a kind caused by radiation, then

section 30 applies. Our primary submission is

that on a literal construction of section 30, read

together with the regulation and item 4, the disease

from which Mr Bird suffered, whatever its cause,

was a disease to which section 30 applied.

TOOHEY J:  But when the delegate embarks on the discussion

referred to in paragraphs 19 and 20 and so on,
is he doing so for the purpose of identifying whether

item 4 of the first schedule applies or is he,

in some way, anticipating that although it may

apply there may also be other causes which take

it outside the operation of section 30?

MR O'REGAN:  Your Honour, we would submit that the delegate

was doing both because the references which we have read from his reasons immediately precede

paragraph 23 in which he says:

It was concluded that the condition suffered

by Mr Bird was a condition of a kind caused by exposure to radiation and to that extent

section 30 was satisfied.

(Continued on page 8)

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Bird(2)

MR O'REGAN (continuing): But, we also submit, Your Honour,

that the delegate was probably anticipating the
argument which he disposed of in the final paragraph
of the reasons where he refers to other possible
causes in the context of establishing the contrary

for the-last part of section 30, the onus of proof

point.

TOOHEY J:  I just have some difficulty with that because

I would have thought that in identifying the application or non-application of the first schedule

what is really required is to look at the relevant

item, in this case item 4, identify whether the

condition referred to in the first column, in fact,

exists; identify then whether the employment answers

the description in the second column and whether

one has a causal relation with the other is not

particularly relevant, is it, at that point of

the inquiry?

MR O'REGAN:  No, Your Honour. Only to this extent: that

the evidence established this to be a pathological

condition which may be caused by quite disparate

factors and one of our submissions will be that

item 4 would have a negligible practical effect,

if it were construed without proper reference to

section 30, as being confined only to pathological

conditions proved, in fact, on the balance of

probabilities to have been caused in the manner

there specified.

TOOHEY J:  When you say, "in the manner there specified",

you mean the manner specified in the first column.

MR O'REGAN:  Yes, that is by radioactive substances or one

of the other materials there mentioned.

BRENNAN J:  Mr O'Regan, could I have just have your assistance

in understanding the appeal book.	We do not have
the actual reasons of the delegate, do we?	We
have reasons of the commissioner, is that right?

MR O'REGAN:	Your Honour, the statement of reasons should appear on page 7 and following.
BRENNAN J:	Yes, but that is a statement of reasons provided under ·section 28 of the ADMINISTRATIVE APPEALS
TRIBUNAL ACT.
MR O'REGAN:	Yes.

BRENNAN J: Signed, as appears at page 6, by the director.

On page 5 we have an actual determination by the
delegate. What I was going to ask you: is this

an appeal from the Administrative Appeals Tribunal,

or is it an AD(JR) application?

C2T37/l/AC	8	20/4/88
Bird(2)

MR O'REGAN:  No, it is an appeal~ Well, it went before

Mr Justice Spender on an application for review.

BRENNAN J:	Under the AD.(JR) Act?
MR O'REGAN:	Yes, and from there it went to the Full

Federal Court.

BRENNAN J: And the decision that was the subject of review

was what decision?

MR O'REGAN:	It was the determina,t:ion of the delegate.
BRENNAN J:	As appears at page 5.
MR O'REGAN:	Which appears on page 5, yes.
BRENNAN J:	Yes, I see, and then the reasons which appear

on page 6 and the following pages are - - -

MR O'REGAN:  Well, they are the reasons furnished under

section 28 of the Act as the - - -

BRENNAN J:  Of the AAT ACT?

MR O'REGAN:  Yes, it would seem so, under the ADMINISTRATIVE APPEALS TRIBUNAL ACT, under section 28. I understand

from our liarned friends that they were taken to be

the reasons of the delegate for the purpose of

argument below also. In paragraph 23 of the

statement of reasons, it was concluded that the

section 30(b)was satisfied and Mr Justice Spender

reached the same conclusion : pages 56 and 57. May we

take Your Honours to the second paragraph on page 56

where His Honour said:· ·

In my opinion, the answer to the present question is to be found in the words of

section 30(b) that the disease be a disease

"of a kind" specified in the regulations.

The words "of a kind" have a purpose to

serve. The contention of the Commonwealth

caused by exposure to radiation and s.30	is that it is necessary that the cancer be
would, that being done, supply the required
linking between the exposure to radiation
which caused the cancer and the exposure to
radiation in the course of Mr Bird's employment
with the Commonwealth. On that argument, it
seems to me that the disease suffered by
Mr Bird would be "a disease specified in the
first column of the First Schedule," and the
words "of a kind" would be otiose.

C2T38/l/VH	9	20/4/88
Bird(2)

MR O'REGAN (continuing):

The relevant question is "Is the

pathological condition from which Mr Bird

suffers a kind of pathological condition

tha~ is caused by radium, another

radioactive substance, or x-rays?" If
"yes", then the requirements of the section

are satisfied and the deeming provision

applies, unless it be established that his

employment as ground crew by the

Commonwealth was not, on the balance of

probabilities, a contributing factor to his

contraction of the disease.

And on page 57:

"Kind", in its ordinary meaning, means,

"class, variety or sort."

In my opinion, whatever be the cause

or causes of Mr Bird's cancer, it is correct

to say that his cancer is of a kind of cancer
caused by radium, another radioactive substance

or x-rays. It is of the same class, sort

or variety of pathological condition as a

pathological condition caused by exposure

to radiation.

We would submit that His Honour's construction

of the section was, with respect, entirely correct
but the Full Court of the Federal Court took a
different approach to the matter and the reasoning

of the court appears conveniently on page -

TOOHEY J: If I could just interrupt you, Mr O'Regan, before

you take us to the Full Court's reasoning, you

directed our attention to the passage at page 56

where His Honour asked the question:

"Is the pathological condition from. which

Mr Bird suffers a kind of pathological

condition that is caused by radium, another
radioactive substance or x-rays?"

If His Honour had asked himself the question, taken

literally from the schedule, is the -

Pathological condition caused by -

(a) radium or another radioactive substance;

or

(b) x-rays -

would he have reached the same conclusion?

C2T39/l/ND	10	20/4/88
Bird(2)

MR O'REGAN:	On the state of the evidence, he could not have done so, Your Honour, but we would submit that
the question which His Honour posed was the
correct question.

TOOHEY J: Yes, 1 appreciate that is the argument but you

say a different answer would have been reached

without the introduction of the words "a kind of"?

MR O'REGAN:  It would seem so. His Honour certainly, in

his judgment, conceded that if the applicant had

to establish a causal connection precisely in the
terms of item 4, without regard to the regulation,
then he would be in very serious difficulty and

we would submit that the state of the evidence

certainly leads to that conclusion.

BRENNAN J: That would mean that the order made by the

Full Court was overly generous to your client if

it was right in law. It ought not to have been

sent back to the delegate to consider whether there

was a causal relationship.

(Continued on page 12)

C2T39/2/ND	11	20/4/88
Bird(2)

MR O'REGAN:	The diflficulty, Your Honour, was that the delegate did not in terms deal with their question of causal
relationship.

BRENNAN J: And the Full Court then said it should go back to see whether or not your client's disease was caused

by radioactive substances or whether it might have been

caused by alcohol or whatever and depending upon that

conclusion either section 30 will operate or it will

not.

MR O'REGAN:	Yes.
BRENNAN J:	Do you say that there is no sense in sending it back. It could never have been established that your client 1 s
condition could have been caused or was caused by
radioactive substances?

MR O'REGAN: Well, the basis for our concession in that regard

is this: that in paragraph 18 of the statement of

reasons there is this reference after discussion of

various publications :- the reasons continue:

Dr Kynaston concluded that the degree of

hazard would have been minimal and in

answer to the questions put to him, stated

that Mr Bird's condition is one which can

be caused by radiation - "but a very significant

level of radiation would be required to induce

this tumour". On the balance of probabilities,

exposure to radiation was not a contributing

factor to the causation, aggravation or

acceleration of the condition.

That seems to be a reference to the section 29 test.

BRENNAN J: Yes.

MR O'REGAN:	But it really - the material which - - -
BRENNAN J: That is a bit ambiguous, is it not, because - - -
MR O'REGAN:	It is and the material which precedes it and which

follows it does not really develop any argument or

relate to any argument directed to that particular

issue.

BRENNAN J:  But the radiation there referred to may have been

the radiation to which he was, in fact, exposed from
the canisters et cetera. You do not have to show

that under 30 even if your argument be wrong.

MR O'REGAN:  No, that is right.

BRENNAN J: All you have to show, if your argument be wrong, is

that the condition from which your client was suffering

was a cohdition caused by some radioactive substance.

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Bird(2)

MR O'REGAN:  Yes, that is so.

BRENNAN J: Now, that is rather ambiguous, is it not, that

passage, in its context?

MR O'REGAN: Well,·it is and I have also referred Your Honour

to other evidence as to possible causes but the body
of evidence bearing upon the causal connection between

the dosage of radiation he then received and the

carcinoma would not appear,from the fashion in which

it is summarized in the statement of reasons, to lead

one to be optimistic about a positive conclusion.

(Continued on page 13)

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BRENNAN J:	Not in relation to that.
MR 0'REGAN:	No.
BRENNAN J:	The proposition, as I understand it, that 1s

put against you is that there may have been a

minimal exposure to radiation on that occasion

but if your client suffered from a cancer caused

by radiation generally, then you do not have

to worry about the causal relationship between
that minimal dose and the pathological condition.

But what you do have to worry about is that if

your client suffered from cancer caused by ingestion

of alcohol or smddng, then it does not advantage him any

under section 30 to show that he was also exposed

to radiation at one stage.

MR 0'REGAN:  Your Honour, if the disease is the same pathological

condition, whatever its origin, and in circumstances
where there is proof of exposure to radiation

the~ in our submission, section 30 literally

would apply.

BRENNAN J: Yes, I understand that.

MR 0'REGAN:  But the evidence as to causal connection is

equivocal. The Full Court considered the proper construction at least of item 4 of the schedule,

at page 71 - this is the	third paragraph,
Your Honours:

In our opinion, the approach taken

by the delegate and by the learned trial

judge imputes the words "of a kind" into

item 4 of the first column of the First

Schedule. They do not appear therein.

Item 4 does not refer to a "Pathological

condition of a kind caused by ... another radioactive substance". The genus, class or description specified is "Pathological

condition caused by ... another radioactive

substance".

If there were any doubt it would be

removed by item 5 which, in the second column,

uses the words, "matter capable of causing

pneumoconiosis". Had item 4 intended to

encompass pathological conditions capable

of being caused by radioactive substances,

the item would have said so.

Then, on page 72, point 3, in the body of that

paragraph - this is after reference to the beneficial

construction of workers compensation legislation:

However, there is no room for the application

of any such principle of interpretation

when the words of a statute have a plain

meaning according to ordinary and natural

useage. Item 4 has a plain meaning.

C2T41/l/SDL	14	20/4/88
Bird(2)

Your Honours, we would submit that it is apparent

from the approach of the Full Court that the court focused attention on the very words of item 4 and did not pay sufficient regard to the

words of section JO(b) or to the words of

regulation 12.	Both of those provisions are
extensive in the sense that they refer not just	to diseases specified in the regulations but
to diseases of a kind specified. So that the
description of the disease in the schedule was
a description which should not have been given
primary importance in determining the question
of construction and we would submit that the
Full Court erred in adopting that mode of
construction and, in effect, using the words
of item 4 to govern or alter the construction of section 30.

(Continued on page 16)

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MR O'REGAN (continuing):  We refer Your Honours to

paragraph 6 on page 2 of our outline of submissions

to the rule of construction to the effect that words
of regulations cannot be used to control or alter the

construction of an Act and we cite the decision of

the House of Lords in JACKSON V HALL where that

canon of.construction is enunciated at the references

there given. We would submit that the Full Court

paid no attention to the fact that the words

"of a kind" were used in both section 30, and that

that scheme was maintained in regulation 12.

Our primary submission on the question of

construction, Your Honours, is this, that section 30

itself is not ambiguous and it should be given its
literal meaning, unaffected by the reference to

~	causation in item 4 of the schedule. Alternatively,
if section 30 is ambiguous, then as it is a remedial
provision obviously designed to supplement section 29 with reference to occupational diseases, then the construction favourable to the worker should
be preferred, and we refer to the well-known
statement of that canon of construction by
Justice Fullagar in WILSON V WILSON TILE WORKS PTY LTD,
(1960) 104 CLR 328, at 335. Your Honours, that
statement appears at point 7 on page 335 of the
report. We say that that rule of construction is
particularly in the present context because section 30
is obviously a provision designed to extend the
range of compensable diseases, in short, to facilitate
proof of a relationship between certain diseases and certain employments in circumstances where such
proof might often be very difficult. So the section
should be given a beneficial construction.

(Continued on page 17)

C2T42/l/HS	16	20/4/88
Bird(2)

MR O'REGAN (continuing): If it is not, then we would submit

that there are certain defects in the reasoning of

the Full Court. In the first olace it gives ~o
effect at all to the words "of a kind" in section 30(b),
or indeed in regulation 12. In other words, the
Full Court paid no attention at all to the fact
that the reference there was to a genus of diseases,
not to a particular species of the disease and that

is the primary vice in the reasoning of the court,

we would submit.

BRENNAN J:  Does that instruction give any work to do for

the words following "caused by" and "regulation"

in the schedule?

MR O'REGAN:  In item 4, Your Honour?

BRENNAN J: Item 4.

MR O'REGAN: "Pathological condition caused by"?

BRENNAN J: Yes.

MR O'REGAN:  Yes, it does, we would submit, because that

is simply a description. Although the words are

words of causation they are used simply to describe

a particular disease, that is all, as is the case

with regard to the various poisoning specifications

later in the schedule, lead posoning, arsenic

poisoning and the like. In a few cases a disease

is specified by reference to its technical name, or

in item 24, by reference to its stage, it is a

primary cancer of the skin. But there are various

modes of description adopted by the draftsman. It

was, we would submit, obviously convenient to

describe these sorts of diseases by reference to
their causes, but as the evidence before the
delegate clearly established the same disease may

have various causes and the aetiology of the disease

in its particular manifestation in the appellant

may be impossible to ascertain. And if the

construction preferred by the Full Court were adopted

then it would mean that section 30(b) would have a

very narrow operation indeed with respect to

radiation induced pathological conditions because
it would only apply to cases in which the

worker could show on the balance of probabilities

that radiation actually caused the disease, where
the particular symptoms of the disease may clinically

be referable to diverse causes, or to a combination

of causes.

. (Continued on page 18)

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Bird(2)

TOOHEY J: If you take that approach, Mr O'Regan, what is

the pathological condition of which item 4 speaks?

For instance, if you read item 4 as a composite

pathological condition caused by radium or another

radioactive substance, or x-rays, then you would

say:  any pathological condition that is caused

by any of those substances anwers the description

in item 4. But if you do not read it that way,

what is the pathological condition of which item 4

speaks?

MR O'REGAN: It speaks of any pathological condition which

_is the result of the operation of any causal effect,

whether it be radiation or something else. It

is the nature of the disease which is critical

but not its cause.

TOOHEY J: Pathological condition does not, of itself, tell

you very much does it?

MR O'REGAN:  No, it does not. We would submit that the

draftsman left that phrase deliberately very wide

because it covers a range of maladies from radiation

sickness or nausea through to carcinomas and various

other disorders. They are all pathological conditions.

TOOHEY J:  Yes, but I understand you to be saying that item 4

refers to a pathological condition of a sort that

may be caused by exposure to radioactivity or may

be caused by something else.

MR O'REGAN:  Or of a sort caused by, we would submit - not

may be, Your Honour. In other words, it is that

pathological condition described by reference to

one of its possible causes.

TOOHEY J: Yes. Well, I am not sure how then you would identify

in a particular case whether a condition answered

the description or not if, in fact, it is a condition

of the sort that all you can say about it is that

it is capable of being caused by radioactivity

but it is also capable of being caused by smoking.

MR O'REGAN: Quite so, Your Honour. That difficulty is

overcome by reference to the words "of a kind"

in regulation 12 and in section 30 because if it

is shown that this is the sort of disease that

may visit a worker following exposure to radiation

or if it is shown, rather, that it is the sort

of disease that can be caused by radiation and

if it is the same disease pathologically as a disease

caused by alcohol or smoking or anything else then,

literally, the conditions of the legislation have

been satisfied.

C2T44/l/AC	18	20/4/88
Bird(2)

MR O'REGAN (continuing):  The difficulty is one of

aetiology, Your Honour, it is not a difficulty of

law, in our submission.

TOOHEY J: No, I think I understand that.

MASON CJ:	Mr O'R~gan, it may be convenient now to adjourn.
MR O'REGAN:	Thank you, Your Honour.

T45	AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
MASON CJ:  Yes, Mr O'Regan.
MR O'REGAN:  Thank you, Your Honour. Your Honours,

section 30 sets up a presumption of the occupational

origin of the kinds of diseases schedule. That

presumption is a rebuttable one because the final

part of section 30 provides that the contrary may

be established. That is, it may be shown that

the employment was not a contributing factor to
the contraction of the disease. That matter was

dealt with in the statement of reasons in

paragraph 24 which is on page 13, which reads:

The delegate also noted that other

possible causal factors, namely smoking and

the heavy use of alcohol existed in this

case, however it was considered that the

presence of those factors and the

(unquantified) probability of either or both

being a more likely cause of the condition does not necessarily eliminate exposure to

contributing factor and therefore does not	radiation as either a possible or probable
"establish the contrary" for the purposes of section 30.

(Continued on page 20)

C2T46/l/ND	19	20/4/88
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MR O'REGAN (continuing): That conclusion was impugned before

Mr Justice Spender, but His Honour reached the same

conclusion and expressed the view that, although there

were difficulties in the expression of the matter in

paragraph 24, the test had been correctly applied.

What His Honour said about it appears at the foot of

page 57, and on page 58.

TOOHEY J:  Mr O' Kegan, there is no argument before us, though,

is there, that the concluding words of section 30

should have been held to exclude your client's claim?

MR O'REGAN:  No, it was not considered by the Full Court,

Your Honour. The order we are seeking, however, is

that the judgment of the Full Court be set aside and
that the decision of the delegate be restored, and
it is only for that reason that we make a submission

about this part of the delegate's reasons.

Mr Justice Spender said:

It is clear that the words "unless the

contrary is established" are directed to the question of connexion between the employment of the employee by the Commonwealth and the

factors contributing to the employee's

contraction of the disease. The effect of

the section is simply that, where the requirements

set out in (a), (b) and (c) of the section are

satisfied, the employment is deemed to be a

contributing factor to his contraction of the

disease, unless it is established on the

balance of probabilities that his employment

by the Commonwealth was not a contributing

factor to his contraction of the disease.

So understood, in my view, paragraph 24 of

the delegate's reasons amounts to no more than

a finding by the delegate, somewhat difficultly

expressed, that neither smoking nor the heavy

use of alcohol, or a combination of them,
had been shown on the balance of probabilities

to be sole cause or causes of his contraction of the disease so as to enable the conclusion

to be reached that the employment of the employee

by the Commonwealth (involving as it did
exposure to radiation) was not a contributing

factor to the contraction of the disease.

(Continued on page 21)

C2T47/l/VH	20	20/4/88
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MR O'REGAN (continuing):  We would submit that that conclusion

is in the state of the evidence as it was before the
delegate completay correct. The presence of other

possible causal factors such ~s smoking, or ehe

heavy use of alcohol without evidence of the

likely extent of their causal significance precluded,

in our submission, a finding that the contrary had

been established, that is that the employment was

a contributing factor to the contraction of the

disease.

We make one further submission in this context,

which is as follows, that although section 30 read in

the manner which we have commended to Your Honours

might appear to operate very favourably to a worker

in some circumstances, one instance might be where,

for instance, there is evidence that the employee was a very heavy smoker and evidence further that he was

for a short time only exposed to a very limited degree
of radiation, then in those circumstances literally
section 30(a), (b) and (c) would apply, but, of course,

if that were the state of the evidence then the

Commonwealth might well be able to establish on the

balance of probabilities that the relative weighting

of possible causal factors was such that the contrary

could be said to have been established. So that

when regard is had to the possibility of rebuttal

of the presumption the literal interpretation of

section 30 does not operate too favourably, in our

submission.

DEANE J:	In one sense when you look at 30(b) and 12 there
are two of a kinds to be accommodated in that - - -
MR O'REGAN:	Yes, Your Honour.

DEANE J: - - - section 30 says it suffices if it is a disease

disease of a kind specified;	12 says a disease of
a kind specified in the first column.	So, you have

got it suffices if it is a disease of a kind

specified in the regulations and the regulations

specify a disease of	a kind in the first column,
which means you can look at one or other of those

of a kinds.

(Continued on page 22)

C2T48/l/JM	21	20/4/88
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MR O'REGAN:	Yes, Your Honour.	That is so, but the scheme

~nitiated by section 30, by the use of the words

"of a kind" is perfected in regulation 12, and

item 4, in our submission, should be read with due

regard to the overall symmetry of those interlocking

provisions. For those reasons, Your Honours, we

submit that the judgment of the Full Court should

be set aside and that the determination of the delegate

should be restored.	Those are our submissions,
thank you, Your Honour.

MASON CJ:  Yes, thank you, Mr O'Regan. Mr Davies.

MR DAVIES:  I hand up some outlines of our submissions.

MASON CJ:  Yes, thank you. Yes.

MR DAVIES:  Your Honours, in paragraph 2 of our outline

we have set out what, in our respectful submission,

are the three requirements in paragraphs (a), (b) and

(c) of section 30 of the Act. We have not set them

out precisely in the way in which (a), (b) and (c)

have set them out in the sense that our 1, 2, and 3

do not match (a), (b) and (c), but we have - in the

sense that 1, for example, occupies the whole of (a)

and part of (b), but we have followed the wording in

that section. We have done it because, in our

respectful submission, setting it out in the way in

which we have set it out shows how the regulation

and the schedule implement the provisions of section 30.

The question under our paragraph 1 is, "Was the applicant suffering from a disease of a kind

specified in the schedule?", and, in our respectful

submission, when one goes then to the schedule, the

first column of the schedule specifies kinds of diseases which matches the phrase "disease of a kind specified" in section 3Q{b), and the second colurrm

of the schedule specifies kinds of employment which
matches the phrase "employment of a kind so specified",

which also appears in paragraph (b), and we accept really what His Honour Mr Justice Spender said in

the court below when really concluding against us,

that the phrase "of a kind" really means of a class

or of a type.

(Continued on page 23)

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MR DAVIES (continuing):  Your Honours, the only specified

kind of disease which the applicant asserts is

relevant here is that which is contained in item 4

of the schedule and Your Honours have been taken to

it before and I will not specifically take

Your Honours back to it. What it says is:

Pathological condition caused by -

(a) radium or another radioactive substance;

or

(b) x-rays.

It really seems to have been conceded, although perhaps I am putting that a little too highly, and

His Honour Mr Justice Spender at least found that

the evidence did not show that the applicant was

suffering from a pathological condition caused by

radium or another radioactive substance. His

finding in that respect is at the top of page 56

and Your Honours have already been referred to the

findings of the delegate in that respect at the top
of page 12, ,paragraph 18. I do not want to take that

any further in the sense that we do not wish to press

the point, though it may. be open to us, whichYour Honour

Justice Brennan raised with our learned friend this

morning, that is as to whether the conclusion of

the Full Court of the Federal Court was too favourable

to the appellant. For our part, we are content upon

the conclusions of law which we submit arise that the matter

go back to the delegate in case there is, perhaps,

some other· evidence which may show the actual

connection which we say is necessary.

Your Honours, in our respectful submission the

judge at first instance and the delegate did construe item 4 of the first schedule and I think we have said

in our outline and I will, perhaps, qualify that now.

I think we said'but apparently no other item'and I will come to that in a moment but did construe that phrase

at least in item 4 of the first schedule as if in item 4 -

and perhaps I should ask Your Honours to turn to it -

the phrase "capable of being" or "which can be" were

inserted between "pathological condition" and "caused".

Now, the appellant in the appellant's outline and

our learned friend in his oral submissions today said,

"No, that is not so. We do not contend for that. What

we submit" - and this is paragraph 4 of our learned

friend's outline - "What we submit is simply that:

The words in the first column of item 4 -

as he puts it in the last sentence on page 1 of his

outline, going over to page 2 -

merely describes the disease by reference to

one of its possible causes.

C2T50/l/SH	23	20/4/88
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MR DAVIES (continuing): But that is saying in different

words the same as what we are saying. If one

is describing it by reference to one of its

possible causes one is saying no more than

it is capable of being caused by.

There can be no doubt, in our respectful submission, that to reach the conclusion for

which our learned friend contend~ and which

Justice Spender reached, you must insert those

words or similar words between "Pathological

con 1t1on an d . · " d " cause d b " y . I n our respect u f 1

submission there is no justification for that
implication either from the context to the schedule
or from the wider context of the Act which includes

section 30; those before and after it and, indeed, even in the historical context of the

Act and I will take Your Honours to that shortly.

DEANE J:  Mr Davies, if you go to regulation 12, what do

you say is the relevant question? Is this the

kind of disease or is this the disease?

MR DAVIES:  Your Honour, there is a difficulty, as Your Honour

pointed out during our learned friend's submissions,

by reasons of the fact that the phrase "kind

of" appears in both section 30 and in regulation 12.

In our respectful submission, really nothing very much can be taken from that in the end

in the sense that what it really is, in effect,

doing is saying that the kinds of diseases which

are referred to in section 30 are specified,
in effect, in the regulations by being specified

in the schedule.

DEANE J:  But the fact that section 30 requires the regulations

to specify kinds of disease must be relevant

in construing regulation 12. What I ask you

is:	when you come to regulation 12, do you
say the relevant question is, "Is the disease

or is it the kind of disease?"

MR DAVIES: No. Is it a disease.

DEANE J: Is it a disease specified?

MR DAVIES:  Yes.

DEANE J: Why is it not what the regulation says, and that

1s, is it a kind of disease specified in the

first column? That is, is it the kind of pathological

condition caused by (a) or (b)?

MR DAVIES:  We would put it another way: is it a disease

of a kind specified in the schedule? And we
say that is an appropriate way of making sense

of the schedule and, indeed, making sense of

C2T51/l/SDL	24	20/4/88
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these other provisions because, indeed, if one

goes to the schedule it would be unreal, in

our respectful submission, to construe poisoning
by antimony to mean the sort of poisoning that
could be caued by antimony but could also be
caused by many, many other factors having absolutely

nothing to do with antimony when, indeed, when

one looks at the correlation it must be employment

involving exposure to that kind.

(Continued on page 26)

C2T51/2/SDL	25	20/4/88
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MR DAVIES (continuing): In our respectful submission, really

a rather good example of that can be seen if one

looks at - and this appears in a number of paragraphs

in the first column of the first schedule - if

you look at paragraph 3:

Chrome ulceration of skin or mucous membrane; any of the sequelae of such an ulceration.

So that that, again, involves a causation question.

Now, that cannot really mean anything which could

be the kind of sequelae which could result from

chrome ulceration though it could result from many

other causes as well. So, we say that "kind" is

simply a phrase being used to describe categories

and the categories are set out of both disease

and employment in the first and second columns,

because the same phrase is used for both - and

we emphasize that, of course - that the phrase

"kind of disease" and "kind of employment" must,

of course, have the same meaning.

Your Honours, in our respectful submission

when one goes to the kinds of diseases and the

kinds of employment one can see a pattern in kinds

of diseases and the first column really specifies

two ways of naming the kind of disease; one is
by medical term or description - and I think we

have set them our in our outline, and I will not

take Your Honours through them - and the second

is by stating both a consequence and a cause and,

again, I think we have set out the numbers of

paragraphs in which they appear. And, in our

respectful submission, those in the second category

require proof of causation and, as we have said,

it is not sufficient in the example we gave to show that it is the kind of sequelae, or it is

the kind of poisoning, or whatever, and we would

add it is not sufficient to show it is the kind

of pathological condition or the pathological

condition - to put it more correctly - capable

of being caused by one or other of those causes. The other matter to which we should refer

in that respect in the context of the first schedule,

and which was referred to by the Full Court of

the Federal Cour~ is that in item 5 in the second
column the phrase "capable of causing" is actually

used and, as the Full Court of the Federal Court

said, and we would adopt that as our submission,

the fact that that appears specifically in that

provision makes it very much less likely that the

legislature intended that it should be implied

in any of the items in the first column.

C2T52/l/AC	26	20/4/88
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GUADRON J: If you follow that and say there is therefore

no capability issue involved in item 4, do you not then come to a conclusion that you must be

looking at a disease, the only cause of which is

exposure to radiation?

MR DAVIES: 

Yes.

GAUDRON J: 

And you are looking at it as a category to which

you must conform and not as a disease in fact caused
by radiation for the purposes of compensation?
Let us say, for example, that there is a disease

that is caused by exposure to radiation or one

other thing, would it be that that disease never

satisfied item 4?

MR DAVIES: 

Yes, it would.

GAUDRON J: 

And that an injured worker would not then be

able to avail himself of section 30 notwithstanding

that he could establish that the other cause had

no relevance to him, notwithstanding that he could

exclude the other cause?

MR DAVIES:  I am not sure I understand Your Honour because

I rather assume that - I take Your Honour's point, you say that it has to be a disease which can be

caused only by "in any case" and not in this case?

GAUDRON J:	Yes.
MR DAVIES:	Yes, that is correct.
GAUDRON J:	And so, even if it could be established by the

injured worker that that was the only possible

cause in his case, he still could not avail himself

of section 30 because it would not be a disease

either of the kind or a disease specified in itern4?

MR DAVIES:  One does not have to go that far, of course, for our purposes.

GAUDRON J:  No, but is that not what your argument necessarily

comprehends?

(Continued on page 28)

C2T53/l/ND	27	20/4/88
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MR DAVIES:	Well, it can comprehend that.	It does not

necessarily, I do not suppose, Your Honour, in the

sense that it can be a pathological condition

which, in the case before the Court - - -

GAUDRON J:	So we have to reads words into the category.
MR DAVIES:	Oh no, not at all.  You just have to say, "In this

case, looking at item 4, is this a:

Pathological condition caused by -

(a) radium or another radioactive substance.

And if the answer to that is yes - - -

GAUDRON J: But that is a different question from the question

which you said we must ask - "Is this a disease

being a disease which is caused only by - - -?"

MR DAVIES:  Well, I put that as our first proposition but,

I mean, in any event, it is sufficient for our

purposes, perhaps not to go as far as that. Maybe

I am overstating it for the purposes of our argument,

Your Honour. But, indeed, in each case one must

look at the category of disease which is said to

arise, and if, in the individual, it is a disease

you can say, in this case, which is caused by
radium or other radioactive substance, then in

our respectful submission, it comes within that

category of disease, and then one takes the next

step, and so on.

GAUDRON J:	The only purpose, then, of the proviso, in the case of such a disease- if I can call it the proviso
in section 30- would be to exclude that other
occasions of exposure did not cause the disease.
It is a very strange consequence in relation to
exposure to radioactive substances.

MR EAVIES: Well, the proviso - Your Honour is talking about,

of course, the last paragraph of section 30.

GAUDRON J:	Yes.
MR DAVIES:	But the proviso, of course- and indeed, the

whole purpose of the facilitation or elimination

of proof in section 30 is to make it easy to

corre1ate employment by the Commonwealth with the

contraction of the disease, and section 30 is really

only intended - the last paragraph of section 30 -

is really only intended to deal with that aspect;

that is, to prove that the employment in which the

employee was engaged by the Commonwealth was not

a contributing factor.

C2T54/l/VH	28
Bird(2)
GAUDRON J:	But in the present case, for example, it would never

be relevant to inquire whether smoking had caused

the condition - - -

MR DAVIES:  No, but it might be relevant to inquire whether

in fact the person had been exposed to radiation
to a great extent elsewhere and only to a small

extent - - -

GAUDRON J:	Yes.
MR DAVIES:	- - - in the employment by the Commonwealth

in determining thP. provi~o. So it certainly has

an area in which to operare in a case such as this.

GAUDRON J: It is still a very strange operation, is it not,

in relation to radioactive substances?

MR DAVIES: Well, in our respectful submission, the last

paragraph of section 30 has the same operation in

every case, as indeed section 30 has the same

operation in every case. The paragraphs of (a),

(b) and (c) in section 30 are intended to eliminate

the necessity of actually .proving that the actual

employment by the Commonwealth caused the kind of

disease specified in the schedule, or a disease of

which the worker complains. And having eliminated

that for most purposes on a presumptive basis, the

section then leaves it open to the employer to show

that in a particular case that was not the case,

notwithstanding that (a), (b) and (c) are complied
with. And, in our respectful submission, (a), (b)

and (c) and indeed,and in particular, the last

paragraph, can only be understood when seen in

that light, that is, that they are intended only

to deal with the correlation between actual employment

by the Commonwealth and the contraction of a

disease, however one defines "disease".

DEANE J: But if you look at section 30, on your construction

of the regulations, they really frustrate what

section 30 is all about.	I mean, section 30
reads:

Without limiting by implication ..... where -

(a) an employee has suffered or is suffering

from a disease -

and that means a physical condition in terms of

the definition of disease -

(b) the disease is a disease of a kind

specified in the regulations as a

disease that is related to employment of

a kind -

C2TSS/l/JM	29	20/4/88
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DEANE J (continuing):  Now, what you say the regulations do is

instead of saying pneumonia related to mining, they

say disease caused by radiation related to employment

involving exposure to radiation.

MR DAVIES:  In that case they do. In some cases they do say

pneumonia in relation to employment likely to -

DEANE J:	Very rarely - all your poisonings
MR DAVIES:	Yes, all the poisonings do.
DEANE J:	- - - the diseases poisoning caused by conduct,

or an employment involving exposure to poisoning.

MR DAVIES:  But there is also a large number which are defined

simply, as I indicated before, in terms of simply
a medical term - item 1, 2, the first part of item 3,

5, 24 and 25.

DEANE J:	But when you come to 4 - the point I am suggesting to you is that section 30 is intended as empowering
regulations tying kinds of diseases to types of
employment.  Now, in that context the obvious thing
is to look for the specification of a kind of disease,
and the specification of a kind of employment, not a
statement of disease caused by radiation and employment
involving exposure to radiation. It just deprives the
section of its whole purpose.
MR DAVIES:	I can really only go, in answer to Your Honour's

question or statement, submit that the purpose of the

section, when really seen in the context of the Act,

is to eliminate the need to prove causation and

when it is seen in that context - and, indeed, I want

to take Your Honours fairly briefly to the historical

context and the way in which the legislature has sought

to achieve this in the previous legislation and finally

in this legislation with its various amendments,
but what it seems to be doing in section 10 and its

predecessors is attempting to avoid the need of the

worker employee when he comes along with a disease,	whether it is defined in terms of a medical description
or cause of disease, to require him to prove that that
disease as so defined was caused by his actual
employment by the Commonweealth.

DEANE J:  I will just delay you one moment longer.

What would be the most obvious pathological condition which is caused by radiation?

(Continued on page 31)

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MR DAVIES:  I do not know, Your Honour.

DEANE J: Well, presume it is "X".

MR DAVIES:	Yes.
DEANE J:	The employee comes along and establishes, ·"I have
the most obvious kind of disease that is caused by
radiation.  My employment involves exposure to
radiation". It does not go very far if it says,
"Oh, no, it has nothing to say about that". It
does not show that your condition was caused by
radiation or does not even provide a presumption unless you go further and he has to actually
establish that his most obvious condition caused
by radiation was, in fact, caused by radiation but
then it says, "Well, that being so, we will take the
giant step of saying well, we will presume that, if
your employment involved exposure to radiation, it
was caused by your employment".
MR DAVIES:	Yes.

DEANE J: Well, really, you do not take that step at all, I would

have thought.

MR DAVIES: Well, you probably do, you probably do in many cases

in the sense that it may be that an employee has had

exposure to radiation on other occasions.

DEANE J: Well, on your approach, he comes along and has to

prove he was poisoned by antimony and he then gets

the great advantage that it can be assumed that if

his employment involved exposure to antimony he

was poisoned by antimony.

MR DAVIES:  Twenty five years before, Your Honour, or 50

years before. The slightest exposure to antimony,

50 years before, would be sufficient to get him home and that is, really, what it does, in our

respectful submission, in that case. It eliminates

caused the symptoms which he may have incurred a long	the need for him to show that the actual employment
while afterwards and that may indeed be a giant step,
in fact, Your Honour,to make that proof.

DEANE J: Yes, I see the force of that.

MR DAVIES:  Your Honours, in our respectful submission, and I

really made this submission in answer to some questions

that have been addressed to me, the evident purpose of

section 30 is to remove that necessity of proving a

relationship between employment by the Connnonwealth -

not employment generally - employment by the Connnonwealth

on the one hand and the contraction of the disease on

the other by deeming it to exist when those three

C2T57/l/SH	31	20/4/88
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requirements in section 30 are present. Your Honours,

could I hand up to you some copies of the legislation
which preceded the subject legislation to illustrate
the point that that seems to have been the progressive

purpose of the legislature in this and the preceding

Act.

Your Honours, the first Commonwealth Act, relevant

Act, was the COMMONWEALTH WORKMEN'S COMPENSATION ACT,

section 4 of which, as Your Honours will see, provided

for compensation only in the case where there was

personal injury, not disease,and only where it was

caused -actually caused - in the service of the

Commonwealth. So that, really, seems to be the starting

point. Then one comes to the 1930 Act and, as first enacted, that Act had two relevant provisions. They

are both in section 10. The first is subsection (1)

which, as Your Honours will see, requires, first of

all in (a) an identifiable disease-and I will come to

the schedule in that Act in a moment if I may. First,

an identifiable disease - Your Honours may assume it

is identified in the schedule - causing an incapacity.

Secondly - this is in (b) - that it was caused by his employment with the Commonwealth. It is proof of

actual causation and, thirdly, that it was caused by

employment with the Commonwealth:. ·'

Within twelve months prior to the date of incapacity -

And then, the other relevant subsection is subsection (5)

and it really does two things. First - and this is not

really so relevant here, but it indicates the general

intent of the legislation - it facilitates the proof

of the identified disease simply by allowing the

certificate of a practitioner to do that.

(Continued onpage 33)

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MR DAVIES (continuing):  And the second thing it does

is, for the first time ,it presumes proof of causation

if two requisites are met. The first is

that he is employed in a process mentioned in the

second column of the schedule and if he was so

employed at the time, or immediately before the

incapacity. So, although it allows, for the first

time, the sort of schedule that we now have in
the Act it allows this presumption, eliminating

the need of proving actual causation, only where

you can show you were employed at the time or

immediately before the time of your incapacity.

Now, if Your Honours then turn to the second schedule which is at page 6, Your Honours will

see that it is a much shorter schedule than presently

exists. Similarly to this case it has a number

of kinds of diseases described by medical description

and others, such as the poisoning ones, and indeed

the second last one on the first of those pages,
?n page 6, is rather similar to this one, that
1s:

Dermatitis produced by dust or caustic or corrosive liquids or ulceration of the mucous

membranes of the nose or mouth produced by

dust.

And then, Your Honours, that Act was amended

in 1944 as you will see on the second column on

page 8 of the document before you. Section 6 of

the amending Act amended section 10 to extend the

period of time for the specific diseases mentioned

in that provision on that condition.	So there
is an extension of time for those.	And then in

1948 that Act is amended again - again progressively
to make it easier - as indicated on page 11 of

the documents before you; the second column, section 5

of the amending Act. Your Honours will see in

paragraph (c) subsection (5) and, consequently, the schedule correlation is omitted but instead

the test is that you only have to prove that:

the disease is due to the nature of the

employment in which the employee was engaged
by the Commonwealth.

And, for the first time, there is no time limit.

So it reintroduces causation as a test but only

as to the nature of the employment and it removes

the time limit entirely. And it is from that

provision that one goes to the current provision.

What that really illustrates, in our respectful

submission, is, as two members of this Court said

in CONNAIR, that what the purpose appears to be

C2T58/l/AC	33	20/4/88
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is to relieve the employee - the worker - of the

necessity of showing that actual employment caused

any actual disease or any actual aggravation of

any disease.

(Continued on page 35)

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MR DAVIES (continuing):  Could I take Your Honours briefly

to that case, CONNAIR PTY LTD V FREDERIKSEN,

(1979) 142 CLR 485. This concerned a provision

of a Northern Territory ordinance which was in

the same terms as the 1930 Act as last amended.

His Honour Justice Gibbs, as he then was, at page 494, said:

The source of the relevant words of

s.9(1) appears to have been s.8 of the WORKMEN'S

COMPENSATION ACT, 1906 (UK) although the

words that appeared in that section were

"the disease is due to the nature of any

employment in which the workman was employed".

It was held by the House of Lords in

BLATCHFORD V STADDON & FOUNDS that those

words are not synonymous with the words

"due to the employment", and that under

s.8 a workman was entitled to compensation

if the disease was "incidental to that

class of employment so that it" [could]

"be attributed to service therein". The

"employment" referred to in the section

meant the work or process in which the

workman was engaged, rather than his relationship

with a particular employer. The purpose

of using the words "was to provide for

ready recourse by the employee to the latest

employer who employed him in work to the

nature of which his complaint was due
independently of the question whether working

for that particular employer contributed

at all to his condition ... ". The COMMONWEALTH

V BOURNE, per Dixon C.J. In other words,

once the workman proved that the employment
was "of a nature to cause the particular

disease" from which he was suffering was

not required to prove that the disease

in fact resulted from his employment with

any particular employer ...... The workman

was thus relieved of the necessity of showing

that the actual employment with any particular

employer caused or aggravated the disease. (Continued on page 36)

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MR DAVIES	(continuing):	And Your Honour the present

Chief Justice in the same case, at the bottom of page 501 said - the second-last sentence

there:

It is and always has been extremely

difficult to prove that a disease was

contracted i~ or caused b½ a particular

employment. It was to meet this difficulty

that provisions such ass. 43(1) of the

WORKER'S COMPENSATION ACT, 1925 (UK) and

s. 9(1) of the Ordinance were enacted, their

purpose being to enable an employee to

recover if he could show that the employment

in which he was engaged involved a

particular liability to, or a special risk

of, contracting the disease from which he

suffered, although he could not prove that

he contracted the disease in the employment

of the defendant employer.

And, Your Honours, coming back to the present Act,

section 31 is really in the same category in that

respect as section 30. Your Honours can see

from reading section 31 that it makes the

Commonwealth liable where the contraction or

aggravation of a particular disease is significantly

higher in a pkrticular Commonwealth employment

than its incidence in other employments and that,

in our respectful submission, is again intended

to bridge that gap of causation between "a kind

of employment" and "a kind of disease".

And what section 30 does by progression from

the previous section 10, in our respectful

submission, is to take a further step by relieving

the workmen of the necessity even of showing that

it was caused by the nature of the employment

provided there is the necessary correlation in

the schedule to the Act. And, indeed, there was

a similar provision in the Northern Territory

leg is lat ion considered in CONNAIR and perhaps I

should just mention that to Your Honours because

it appears at page 493. It is section 9A which

seems to have some similarity to the provisions

of section 30.

(Continued on page 37)

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MR DAVIES (continuing):  So what we really say is that the

construction which is contended for by the appellant
here really gives section 30 and regulation 12 and

the first schedule a double deeming effect. It does not simply deem what we say it deems. It also deems a pathological condition which may be caused by

radium or other radioactive substance to have been

so caused. In our respectful submission, there is

not any basis for construing it so as to have

that double deeming effect, which the contention

necessarily involves.

So, for those reasons, in our respectful

submission, there is no need to imply the words

which we say must be implied in item 4 to give it

a sensible meaning, or to give effect to the apparent

intention of section 30.

GAUDRON J: Well, perhaps at this stage, Mr Davies, you could

tell me what you say is meant by the word "caused"

in item 4. I think you have retreated from

"caused only by".

MR DAVIES: "Caused only · in this case by'.'

GAUDRON J:  So it is"caused only· in this case'.'

MR DAVIES:  Well, yes. I would simply say that one looks

at the case before the tribunal and one asks the
question, "Is this pathological condition caused by
radium or other radioactive substance?" and if

the medical evidence is - - -

GAUDRON J: Caused in this case.

MR DAVIES:  Yes. Well, is this pathological condition which

you can see here caused by radium or radioactive

substance? And if the evidence in the case is that

the pathological condition is caused by radium or

other radioactive substance, then	one proceeds
to the next step.

GAUDRO	~ And that is, I presume, a process which, in
rbrdinary circumstances, involves the elimination of

every other possible cause?

MR DAVIES:  No.

(Continued on page 38)

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MR DAVIES:	No.	A doctor could obviously say that this

condition is caused by radium or other radioactive

substances, so there may be other contributing

factors, but if he can arrive at a positive conclusion

that it is so causedF then that is sufficient.

GAUDRON J:  Yes, well I wonder how you can arrive at such a

conclusion without eliminating other possible causes.

MR DAVIES:	Your Honour, that is a question of proof.
GAUDRON J:	Yes.
MR DAVIES:	That is a medical question.  I really do not know

the answer to that, but one really cannot use
difficulties of proof, if there are any, in our

respectful submission, in order to construe the

statute.	In the end it may in fact be a very easy
question.	Doctors might be able to say that,

"I can say this clearly is a sole cause", or "I can

say this clearly is a cause". I just do not know.

DEANE J:	What if it was only a contributing factor?
MR DAVIES:	I suppose then, Your Honour, one comes to the question of what "caused by" means, and one has
exactly the same question arising if one implies the
words "capable of being caused by".
DEANE J:	But the argument against you is not capable.

The argument is that regulation 12 requires you to look

at the kind of pathological condition which is caused

by radiation.

MR DAVIES:	Well, the submission we really made before is that that ends.· up being the same thing, Your Honour, because
if one is saying is it the kind of pathological
condition of which radium is a possible cause, then
one is saying the same - - -

DEANE J:  No, on the question you would put - there

would really be two, would not there? The first would

be, "Is this the kind of pathological condition which

is caused by radiation?", the second would be,

"Was it so caused?"	Both would have to be answered,
"Yes", on your approach.

(Continued on page 39)

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MR. DAVIES:  We would perhaps ask the question differently.

We would say, first of all, one simply asks: does

this person suffer from a disease of the kind
specified in the first schedule? One then looks

at the first schedule to see the kind of disease

which is there specified and one sees it is

"pathological condition caused by". So, in the end

one simply asks that one question.

DEANE J: Except one looks at the first schedule and sees

specified in the first schedule?"

the heading as "disease", not kind of disease. kind of disease

is: "Is this the kind of pathological condition

caused by radiation?".

MR. DAVIES: Well, we accept that the first schedule does

not have ''kind of disease" in its heading, but

I would submit, with respect, that one would not

expect to see that there, even if one was talking

about kinds of diseases in the section, and that

what our submission is, is that it is the section
which specifies kinds of diseases. They are set

out in two columns; those kinds of diseases

and employments respectively are set out in two
columns, one opposite the other.

Your Honours, can I pass to the other question

which the Full Court of the Federal Court did not

find necessary to answer because it found in our

favour, a question which o-ur learned friend dealt

with in his last paragraph of his outline, paragraph 11,

but which His Honour in the first instance found

against us and which Your Honours would need to

deal with only if Your Honours were against us on

the first point. It deals with the last paragraph

of section 30 and it is clear enough, in our

respectful submission, that the delegate was required

by the last paragraph of section 30 to decide on the

balance of probabilities whether it had been established

that the employment in which the appellant was engaged

by the Commonwealth was. not a contributing factor to

his contraction of the disease, and that onlv, if

he was first satisfied of (a) , (b) · a!).d · -

(c). Having been satisified of (a), (b) and (c),

in our respectful submission, he failed to do this

and that he failed to do this is illustrated by what

he did in paragraph 24 of his reasons, which appear

at page 13 of the appeal book.

(Continued on page 40)

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MR DAVIES (continuing): Our learned friends read them to

Your Honours and I will not read them again but instead of doing what we have just submitted he

should have done in respect to the last

paragraph of section 30, we submit, with respect,

he committed two errors in that paragraph: the

first is that he seemed to think that the phrase

"establish the contrary" and consequently the onus
of proof was relevant to the question whether
within the first column of item 4 of the First
Schedule the pathological condition was caused

by radiation whereas, in our respectful submission,

it is clear enough that that paragraph and that

phrase "established the contrary" is only
relevant to the question whether when each of the
requirements in (a) ,(b) and (c) has been established

the employment can be shown not to have been, in

fact, a contributing factor and thereby, in other

words, rebutting the presumption of the

relationship which section JO(b), regulation 12

in the First Schedule, presumes to exist.

So that the last paragraph is really only

concerned with rebuttal of that relationship whereas
the delegate, in our respectful submission, seemed

to think it was relevant to the relationship between
the pathological condition and radiation and that,

the degree of proof, he seemed to think, we would

in our respectful submission, was his first error.

submit, it is clear from paragraph 24, that the

possibility of exposure to radiation was a

contributing factor had to be excluded and that,

of course, cannot be right. They are our

submissions, may it please the Court.

MASON CJ:	Thank you, Mr Davies.	Mr O'Regan.
MR O'REGAN:	Thank you, Your Honour.	Your Honours, our

learned friends referred to the words "capable

of" which appear in the employment column for

item 5 and submitted, as we understand it, that

that indicates that the draftsman would have been

well aware that if it were intended to widen the
category of diseases in item 4 then like words

could have been included there.

(Continued on page 41)

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MR O'REGAN (continuing):  We would submit that a more likely

explanation for the inclusion of the words "capable of" in item 5 is simply to give a

compendious, convenient description of a great

variety of dusts which may induce this condition:

silica, coal, asbestos and the like. So it

was a convenient way of summarizing those possible

causal factors.

We submit that the construction of section 30 and of the regulations for which we contend,

does not involve a double-deeming effect, as

our friends called it. There is only one deeming

effect and that is the deemed association of

kinds of diseases and kinds of employment.

The second alleged "deeming" is not, in

our submission, a deeming at all. It is merely

giving effect to the words "of a kind" as they

appear in section 30 and in regulation 12.

Our learned friends referred to the history

of the legislation. We submit with regard

to that that clearly that history shows a progressive

liberalization of the disease provisions and

we ask the Court also to note with respect

to the original section 10 in the 1930 Act

that the reference there is to diseases specified

in the schedule and not to kinds of diseases

or kinds of employment.

Your Honours, those are our submissions,

thank you.

MASON CJ:  Thank you, Mr O'Regan. The Court will consider

its decision in this matter and adjourn until

10.15 am tomorrow.

THE MATTER ADJOURNED SINE DIE

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