Canberra College of Advanced Education v Culpin, A.E

[1986] FCA 20

CATTCHWORDS

Adminlstrative Appeals Tribunal Act - Appeal from Tribunal

afflrmatlon of determmation of delegate of Commissioner for

Employees Cornpensation - Aggravatlon of disease of hypertenslon -

Definition of injury in 5.5 of Compensation (Commonwealth

Government Employees) Act 1971 - Meaning and application of 5 . 8 .

Adminlstrative Appeals Trlbunal Act 1975, 5.44

Compensation (Commonwealth Government Emplovees) Act 1971,

ss.5,8,27,29.

Commonwealth of Australia v. Whillock (1983) 48 ALR 433

Reitano v. The Commonwealth, unreported, Full Court, Evatt,

Northrop and Burchett JJ., 13/12/85.

CANBERRA COLLEGE	OF ADVANCED EOUCATION	-V- ALBERT EDbLQD CULPIN
ACT '3.11 of 1985
Burchett J. Sydney 10 February 1986

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IN THE FEDERAL COURT OF AUSTRALIA ) )

9rVEENSLIND DISTRICT	REGISTRY	)	No. 11 of 1985
)
GENEFGL EIVISION	)

BETWEEN :

CANBERRA COLLEGE OF

ADVANCED EDUCATION

Applicant

FLBERT EDI4ARD CULPIN

Respondent

MINrJTE OF ORDERS

Judue Makinq Order:	Burchett J.
Pate of Order:	10 February 1986

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[There Made :	Sydney
THE CCIUF.T OFOERS THAT:

(1) The appeal is allowed and the decision of the

Administratlve Appeals Tribunal aff irming the

determinations of the delegate of the Commissioner for

Employees Compensation of 9 March 1983, 5 April 1983 and

6 April 1983 is set aside.

( 2 ) The matter be remitted to the Administrative Appeals

Trlbunal for decision of the respondent's claim based on

5.29 of the Compensatlon (Commonwealth Government

Emplovees) Act 1971.

( 3 )	The applicant Canberra College	of	Advanced Education pay
the respondent's costs.

NOTE:

Settlement and entry of orders is dealt with by Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	) )
FUEENSLEND DISTPICT REGISTRY	! No. 11 of 1985
GENERAL DIVISION
BETWEEN :

CANBERRA COLLEGE OF ADVANCED EDUCATION

Applicant

ALBERT EDWERD CULPIN

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is an appeal brouglit under 5.44 of the

Administrative Appeals Tribunal Act 1975 m respect of a decision

of the Administrative Appeals Tribunal constituted by Mr. J.O.

Ballard, Senior Member. The appeal is,	of	course, limited to
questions of law.

Thp matter arises out of a claim for compensatlon

pursuant to the Compensation (Commonwealth Government Employees!

1971 made by the respondent, Mr. Culpin. Mr. Culpin, who was

born on 5 January 1921, was employed as an Assistant Bursar by the applicant, Canberra College of Advanced Education. On	12
August 1980, during his lunch. break, he enjoyed, as was his

custom, a game of squash with a friend at the Canberra College of

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Advanced Education Sports Centre, which was sltuated within the

College grounds some 300 metres from Mr. Culpin's crffice and was

under the control of the Sports Union, though the building was

maintained by the College. During the game Mr. Culpin suddenly

collapsed, losing consciousness for about ten seconds. He was

taken to Royal Canberra Hospital at Acton by ambulance and

remained off work from 1 2 August to 12 September 1980. His

resumption of work on 12 September 1980 was unfortunately

short-lived, and he went on sick leave on 10 November 1980. He

did not again return to work, ultimately retiring on the ground

of invalidity on 10 September 1981.

The respondent's claim dld not identify any particular

injury, disease or aggravation, though it did clearly enough make

a clam In respect of the incapacity for work which commenced on

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12 Auqust 1980. It was disallowed on 3 2 P-prll 1981, upon the

basis of the view held by the delegate of the Commissioner for

Employees' Compensatlon that there was no nexus between the squash game and Mr. Culpin's employment.

There was no step taken by Mr. Culpin to have the

disallowance of his claim reviewed.

The next event in the story was the allowance by the

Commissioner for Employees' Compensation of a totally unrelated claim by another employee of Canberra College of Advanced Education in respect of a leg injury suffered playing squash at

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the same squash courts. This event Initiated a review, within

the Office of the Commissioner for Employees' Compensation, of

Mr. Culpin's claim also. As a result, Mr. Culpin was advlsed

that his claim had been reconsidered, and a determination made in

his favour. That determination was dated 9 March 1983. By it

the earlier determinatlon, disallowmg the claim, was revoked and

it was determmed as follows:

"The said Albert Edward Culpin sustained

personal injury namely aggravation of

hypertension resulting in cardlac arrythmia

on 12 August l980 during his attendance at

his place of employment.

This attendance of the said Albert Edward

Culpin was an attendance within the meaning of sub-section 8 ( 4 ) of the said Act and, by

virtue of sub-section 8(3) thereof, his

employment included attendance; that

therefore in accordance with sectlon 27 of the said Act, the sald personal injury arose out of or in the course of his employment.

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In accordance with the provisions of the said

Act The Canberra College of Advanced

Education is therefore liable to pay

compensatlon in respect of the said personal

in jury. "

Further determinations followed, determining the

consequences, as regards payment, of the determination of 9 March

1983. Those determlnatlons were made on.5 and 6 April 1984.

Canberra College of Advanced Education applied, under

5-63 of the Compensation (Commonwealth Government Emplovees) Act,

for a review of all three determinations by the Administrative

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Appeal3 Tribunal. S.63(1). 30 far as material, provides:

"Where a determination by the Commissioner 1s

made under this Act, an application may be made to the Administrative Appeals Tribunal for a review of the determinatlon by or on behalf of a party to the determination...".

Upon the hearing of the application the by

Administrative Appeals Tribunal, medical reports were tendered dealing with the treatment of Mr. Culpin following the incident at the squash courts, and in addition, reports were tendered of

two consultant physicians, Dr. A.D. Dick and Dr. R.F. O'Shea,

both of whom also gave oral evidence.

The Tribunal affirmed the determination5 of the

delegate. It considered that s . 8 ( 4 ) of the Compensation

!Commonwealth Government Employees) Acl applied on the basis that

Mr. Culpin had suffered an injury "st his place of employment", and his attendance there was deemed by the statutory provision to

be "reasonably Incidental to his employment" since "the

attendance occurred during an ordinary recess in his employment".

No reference whatever was made to the provisions of 5 - 2 9

of the Act.

Upon the appeal I heard some argument as to whether

there was any evidence to support the finding that the squash courts were part of Mr. Culpin's place of employment. Provided

there was some evidence, as I think there was, the question is

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one of fact: The Commonwealth v. Duncan (1982) 44 ALR 249 at

256, 265. But both counsel were agreed that the issue was really

a false one. Counsel for the applicant pointed out that the

Tribunal had not specified the injury it found to have been

sustained on 12 August 1980, and contended that there was no

evidence either of an injury, or of any incapacity lasting for a

period of longer than 24 hours, as a result of the episode, even

if that eplsode could have been held to have involved an injury.

The evidence, he submitted, did not leave room for any conclusion

but that the problem whlch caused Mr. Culpin's incapacity was a condition of hypertension or an aggravation of a condition of hypertension.

The reasons of the Tribunal proceed upon the basis that

what was Involved was an injury. Indeed, the reasons Include a -

paragraph in the following terms:

"Two issues arlse In this matter. The flrst

is whether the injury which the respondent

suffered while playing squash in August	1980
-occurred In compensable circumstances. The

second is whether if it did, the applicant is

totally incapacitated as a result."

Although this statement of the issues assumes as an

unquestioned fact that the matter concerned what was described as

"the injury", the reasons nowhere explicitly state what the

injury was, or precisely how it came about. Early in the reasons

there is a brief statement of the events of 12 August 1980, as

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follows :

"In August 1980 the applicant was playing a

regular game of squash at the College during

a lunch time break. Durlng the game he

suffered a 'syncopal episode' which proved to

be associated with an attack of atrial

fibrillation. The respondent was then sent

to the Royal Canberra Hospital. The heart

reverted to normal heart action. After a

perlod in hospltal the respondent was allowed

to go back to work on or about the 5th

September 1980."

Later in the reasons it is stated:

"There is no doubt that the applicant suffered

an attack of atrial fibrillatlon while he was

playlng squash at the Sports Centre during an

ordinary recess in his employment."

It seems to me that the Tribunal's reasons must be

understood on the basis that It viewed the "attack of atrial

fibrlllation" as constituting an in~ury within the meaning of the

Compensation (Commonwealth Government Emplovees) Act. (Atrial

fibrillation is a condition of irregular and rapid contractions

of the atria, the upper chambers of the heart, working

independently of the ventricles, the lower chambers of the

heart. )

The Tribunal further considered that, in the appropriate

statutory sense !see s.5(11)), incapacity had resulted from this

injury and was still continuing.

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In the reasons of the Tribunal, considerable weight is

placed upon s.8(3) and ( 4 ) of the Compensation (Commonwealth

Government Employees) Act, and the oplnion is expressed that "s.8

does provide compensation for injuries which occur at the place

of employment whether or not they also arise out of or in the

course of the respondent's employment". It is, of course,

implicit in thls statement that the Tribunal thought what was

involved was an injury which occurred on a particular occasion,

at the place of employment.

Unfortunately I think these reasons disclose errors of

law. Indeed, counsel for the respondent, Commonwealth of

Australia v. Whillock (1983) 48 ALR 433 having been cited in the

applicant's argument, conceded that Mr. Culpin's case should have

been consldered, not as a case of injury, but under - 5.29 of the

Compensation {Commonwealth Government Employees) Act. It was

accepted s . 8 was irrelevant in the circumstances of this case. (One can, of course, imagine circumstances where 5.8 could have relevance to a 5 . 2 9 case, as for instance if at the place of

employment there was something - perhaps an allergen - which was

a contributing factor to the contraction or aggravation of a disease.) Furthermore, counsel also conceded that, if the atrlal

flbrillation could be regarded as an injury, it abated within

twenty-four hours and had no lasting consequences.

Counsel's concessions appear to me well justified. In

Commonwealth of Aclstralia v. Whillock (supra), the Full Court, by

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majority (Smithers and St. John JJ . , Northrop J . dissenting)

held, in a case of a death claim arising out of a coronary

occlusion, that the definition of "injury" in 5.5 of the Act

prevented reliance upon the thrombus, the occlusion, or the

myocardia1 necrosis, (each of which had occurred) as injuries,

since each "constituted part of a disease, namely coronary

arterial disease and (required) consideration in the context of 5.29 of the Act" (per Smithers J. ) , or was a "harm or

detriment ... caused by disease" (per St. John J.1.

Whillock's Case is authority for the proposition that

if an injury is within the meaning of the Act a disease, by

virtue of the definltlon of injury in s.5(1) which excludes "a

disease or the aggravation, acceleration or recurrence of a

disease", it can only attract compensation under ~ s.27(1) if the

employment contributed to its contractlon or aggravation etc.

within 5.29. It is not permisslble, to adopt language which

Kitto J. applied to an analogous problem in Oqden Industrles Ptv.

Ltd. v. Lucas ( 1 9 6 7 ) 116 CLR 537 at 569-70, and which Smithers J.

cited in Whillock's Case at p.443, to treat as a separate injury

a physical dlsorder which came Into exlstence merely as a stage

in the development of a larger disorder: the operation of the

Act is exhausted when its provisions have been applied in respect

of the disease consisting of the progressive disorder as a whole.

In the present case it was not suggested that the atrial

fibrillation in question was other than a manifestation, upon the

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respondent engagmg in moderate and accustomed exercise, of the

untreated and advancing condition of hypertension from which he

was suffering (though unknown to him). Park Roval Motor Hotels

' Pty. Ltd. v. Sullivan (1985) 61 ACTR 15 (overruled by the Full

Court, Gallop, Davies & Neaves JJ., unreported 27/9/05. but not

as to the prmciples stated in the judgment) is distinguishable, on the terms of the ordinance there involved, in which "injury" was defined quite differently.

The real question, as both counsel agreed,. was whether

the employee had suffered, over a period or periods of time, an

aggravation of the condltion of hypertension, to which the

employment had been a contributing factor within the meaning of

5.29 of the Act. As to that question, if the Tribunal had held

that a relevant aggravation had occurred, it was not in dispute

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there was evidence to justify such a finding. But I cannot

accede to the respondent's argument that I should make the

finding. It is a matter of fact, to be decided by the Tribunal on the evidence, as is the duration and extent of any Incapacity

which has resulted, in the statutory sense, from any aggravatlon

of the respondent's hypertension (see ss.29(2), 5(11) and 31(4),

and Reitano v. The Com;:mwealth, unreported, Full Court, Evatt,

Northrop and Burchett JJ., 13/12/85). I think the original

claim, read broadly, as such claims should be read, and not

restrictively, is wide enough to cover an aggravation, and the

determination the subject of review by the Tribunal was a

determination in respect of that claim. Accordingly, it was open

to the Tribunal-to decide the question of aggravation.

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A separate argument was advanced, for the applicant,

that error of law was also demonstrated by the manner In which

the Tribunal reached the conclusion that the incapacity found was

a total incapacity for work. It was suggested there was some

lack of clarity in the expression of the basis of this

conclusion. As the matter will in any event have to be

reconsidered, and possibly upon further evidence, and as I am

clearly of opinion it would be open to the Tribunal, If the

evidence remained the same, to make a finding treating any

compensable incapacity as total rather than partial, I do not

consider it is necessary to go into this argument.

Before parting with the matter, I think I should refer

briefly to s.8(3) and ( 4 ) , which loomed large in the Tribunal's I

reasons. It 1 s plain that 5.8 1 s concerned with the scope of the

employment. But s . 8 does not amend s . 2 7 or s . 2 9 - It merely

provides that the employment includes certain attendances which,

but for its provlsions, may or may not have fallen within the

scope of the employment (cf. Maunder v. Commonwealth of Australia

( 1 9 8 3 ) 51 ILLR 44). To sustain a claim in respect of an injury,

it remains necessary to apply the provisions of s . 2 7 ( 1 ) , but

understanding the reference to employment in those provisions in

the light of 5 . 8 . Similarly, in the case of a disease, s . 8 does

not avoid the provisions of s.29(1), but those provisions must be

read bearing in mind that the reference In them to employment may

have an expanded operation by virtue of s . 8 .

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In the result, the appeal is allowed and the decision of

the Admlnlstrative Appeals Tribunal affirming the determination5

of the delegate of the Commissioner for Employees Compensation set aside. The Court further orders that the matter be remitted 1 s

to the Administrative Appeals Tribunal f o r decislon of the

respondent's claim based upon 5 . 2 9 of the Act. In accordance

with the applicant's undertaking, it 1s ordered that the

applicant pay the respondent's costs.

I certify that this and the

preceding ten (10) pages are a

true copy of the Reasons for

Judgment hereln of his Honour

Mr. Justice Burchett.

p L. -,hiolst.U;

Associate

Dated: 10 February, 1986.