Canberra College of Advanced Education v Culpin, A.E

CATTCHWORDS

Adminlstrative

Appeals

Tribunal

Act

- Appeal

from

Tribunal

afflrmatlon of

determmation

delegate of Commissioner for

Employees Cornpensation - Aggravatlon of disease of hypertenslon -

Definition

injury

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

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

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

(1)

The

appeal

allowed

and

the

decision

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

remitted

the

Administrative

Appeals

Trlbunal for decision

of the respondent's claim based

5.29

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

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

- - .

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

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

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

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

3 .

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.

the earlier determinatlon,

disallowmg the claim, was revoked and

it was determmed as follows:

"The said

Albert

Edward

Culpin

sustained

personal

injury

namely

aggravation

hypertension resulting in cardlac arrythmia

on 12 August

l980 during his attendance at

his place of employment.

This attendance

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.

In accordance with the provisions of the said

Act The Canberra

College

Advanced

Education

therefore

liable

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

4 .

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

"Where a determination by the Commissioner

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

the

application

the

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

the

delegate.

It considered

that

s . 8 ( 4 )

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

"reasonably

Incidental

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

- .

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

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

the

issues

assumes

unquestioned fact that the matter concerned what was described

"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,

follows :

"In August 1980 the applicant was playing

regular game of squash at the College during

a lunch time break. Durlng the game he

suffered a 'syncopal episode' which proved to

associated

with

an attack

atrial

fibrillation.

The

respondent was then sent

to the Royal Canberra Hospital. The heart

reverted to normal heart action. After

perlod in hospltal the respondent was allowed

to go back

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

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

the

heart,

working

independently

the

ventricles,

the

lower

chambers

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.

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".

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

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.

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

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

.. -

- .

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

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

disease or the aggravation, acceleration or recurrence of

disease", it can only attract compensation under

s.27(1) if the

employment contributed

to its contractlon or aggravation etc.

within 5.29.

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

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

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

hypertension,

which

the

employment had been a contributing factor within the meaning of

5.29 of the Act.

to that question, if the Tribunal had held

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

there was

evidence to justify such

a finding. But I cannot

accede to the respondent's argument that

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

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

to the Tribunal-to decide the question of aggravation.

. .

c .

10.

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

clarity

the expression

the

basis

this

conclusion. As the

matter

will

any

event

have

reconsidered, and possibly upon further evidence, and as

clearly of opinion

would be open to the

Tribunal, If the

evidence remained the same, to make

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

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

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).

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

s . 8 .

11.

In the result, the appeal

is allowed and the decision

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

the

respondent's claim based upon

5 . 2 9

of the Act. In accordance

with

the

applicant's

undertaking,

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.

[1986] FCA 20

2 Oct 1986