Commission for the Safety, Rehabilitation & Compensation of Commonwealth Employees v Hall, J.A

[1993] FCA 207

Re: COMMISSION FOR THE SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES
And: JUNE ANNE HALL
No. QG57 of 1992
FED No. 207
Number of pages - 10
Workers' Compensation
(1993) 17 AAR 198
(1993) 41 FCR 508

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CATCHWORDS

Workers' Compensation - Commonwealth employee - death from glioma - aggravation or acceleration of symptoms of glioma from injury sustained during the course of employment - appeal by employee's widow - Commonwealth obligation to dependant where 'an injury to an employee results in death' - acceleration of symptoms of glioma did not 'result in' the employee's death.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss. 17, 124, 128

Compensation (Commonwealth Government Employees) Act 1971 ss. 27, 29, 31

Johnston v. The Commonwealth (1982) 150 CLR 331

Australian Industry Development Corporation v. Boyd (1990) 95 ALR 149

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

Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235

Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173

McLaughlin and Co Pty Ltd v. Brinnand (1965) WCR 112

HEARING

BRISBANE, 11 March 1993

#DATE 30:3:1993

Counsel for the applicant: Mr D. J. McGill instructed by

Australian Government Solicitor

Counsel for the respondent: Mr P. Munro instructed by

Welfare Rights Centre

ORDER

THE COURT DECLARES THAT:

While the employment of Mr Hall by the Commonwealth was a contributing factor to the acceleration of the disease glioma, the death of Mr Hall did not result from the acceleration of that disease.

THE COURT ORDERS THAT:

1. The orders made by the Administrative Appeals Tribunal on 31 March 1992 be set aside.

2. There be no order as to costs of this application or as to the costs before the Administrative Appeals Tribunal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SPENDER J The applicant, the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, appeals to this Court from the decision of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe, Dr G. S. Urquhart and Captain T. E. Keane made on 31 March 1992, whereby the Tribunal set aside a decision made by a delegate of the Commission on 22 April 1991, which decision affirmed a determination made on 23 August 1990 by a delegate of the Commission that the Commission was not required to pay to the respondent's husband compensation for personal injury pursuant to the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988.

1. This application raises a short point as to the proper interpretation of s. 29(2) of the Compensation (Commonwealth Government Employees) Act 1971.

2. The parties have been content to proceed in a somewhat unsatisfactory way, having regard to the statutory provisions, in respect of the determination of the central question between the Commission and Mrs Hall, which I will detail shortly.

3. The respondent to this application is the widow of a deceased serviceman, Roy Hall. Mr Hall was born on 5 July 1947, enlisted in the Royal Australian Air Force in 1981 and was discharged in 1990, being medically unfit for further service. On 20 June 1990 Mr Hall lodged a claim for compensation for tumour of the brain stem, glioma, which he attributed to hitting his head on the roof of a military vehicle in which he was a passenger during field training exercises in November 1987.

4. On 23 August 1990, a delegate of the Commission said that he was unable to find that the personal injury sustained by Mr Hall was the result of (a) a personal injury arising out of and in the course of his employment and (b) the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment contributed in a material degree; and (c) a journey which constituted part of his employment by the Department of Defence. The delegate determined that the Department of Defence was not liable to pay compensation in respect of Mr Hall's claim.

5. On 7 January 1991, Mr Hall sought a reconsideration of that decision.

6. Mr Hall died on 20 March 1991 as a direct result of the glioma.

7. On 22 April 1991, a delegate of the Commission wrote to Mrs Hall, and said:
   " I refer to your husband's letter dated 7 January 1991
   

requesting reconsideration of the determination dated 23 August 1990 in respect of his claim for brain stem glioma and our telephone conversation today. DECISION.

As discussed, I have decided to affirm the decision dated 23 August 1990. The Department of Defence is not liable to pay compensation for the condition. "

Under the heading 'REASONS' he said:

" I have examined all the evidence available to me and I

have taken note of the reasons put forward in his request for reconsideration, namely that the bump on his head accelerated the condition.

For compensation to be payable you must establish that, on the balance of probabilities (as distinct from possibilities), there is a connection between the condition from which Mr Hall suffered and his service. "

The letter later said:

" If you are dissatisfied with this decision, you can ask

the Administrative Appeals Tribunal (A.A.T.) to review the decision. "

1. In an application for review of decision received by the Administrative Appeals Tribunal on 31 May 1991, Mrs Hall as executor of the estate of Roy Hall sought review of the decision made on 22 April 1991, affirming on reconsideration the decision of 23 August 1990, that:
   " The Department of Defence is not liable to pay
   

compensation in respect of the claim of Roy HALL. "

1. Before the Tribunal the parties proceeded on the basis that the point at issue was the entitlement in Mrs Hall, in respect of which the Tribunal, after giving its reasons, said:
   " The Tribunal has therefore set aside the decision under
   

review and substituted a decision that the Commonwealth is liable under sub-section 17(3) of the Commonwealth Employees Rehabilitation and Compensation Act 1988 by virtue of the operation of s. 128 of that Act (the 1988 Act). "

1. Section 17(1) provides:
   " This section applies where an injury to an employee
   

results in death. "

1. Section 17(3) provides:
   " Subject to this section and to sections 16 and 18, if
   

the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants. "

1. The obligation to a dependent under s. 17(3) arises where "an injury to an employee results in death".

2. 'Injury' in s. 4 is defined as follows:
   " 'injury' means:
   

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment; "

1. 'Disease' is defined as:
   " 'disease' means:
   

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth; "

1. 'Ailment' is defined as:
   " 'ailment' means any physical or mental ailment,
   

disorder, defect or morbid condition (whether of sudden onset or gradual development); "

1. It is accepted by both parties that the 'injury' of Mr Hall occurred in December 1987, which is a date prior to the commencing date of the 1988 Act, the commencing date for which was 1 December 1988. Section 124(2) relevantly provides:
   " A person is not entitled to compensation under this Act
   

in respect of any injury, loss or damage suffered before the commencing date if compensation was not payable in respect of that injury, loss or damage: ...

(c) in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered. "

1. Section 128 of the 1988 Act provides:
   " Any liability of the Commonwealth, or of a Commonwealth
   

authority, to pay compensation or make any other payment to a person under any provision of the 1912 Act, the 1930 Act or the 1971 Act shall, to the extent that it had not been discharged before the commencing day, be taken to have been incurred by the relevant authority on that day under the corresponding provision of this Act. "

1. Section 124(2) makes it necessary to look at the provisions under the 1971 Act.

2. Section 27(1) of the 1971 Act provided:
   " If personal injury arising out of or in the course of
   

the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act. "

1. Section 29(1) and (2) are crucial in this appeal and the principal point in the application is whether the provisions of s. 29(2) of the 1971 Act are to be read disjunctively or not. Section 29 relevantly provided:
   "(1) Where -
   

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

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

(2) If -

(a) the death of the employee;

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

(c) facial disfigurement to the employee;

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

(e) the total or partial incapacity for work of the employee,

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

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

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

1. Section 5(11) relevantly provided:
   " For the purposes of this Act -
   

(a) the death, or a disfigurement, incapacity or disablement, of an employee, or a loss suffered by an employee, shall be taken to have resulted from an injury to the employee, from a disease contracted by the employee or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the injury, the disease or the aggravation, acceleration or recurrence, as the case may be, contributed to the death, disfigurement, incapacity, disablement or loss; and ..."

1. Section 31 of the 1971 Act made provisions relating to diseases and in sub-section 3 provided:
   " (3) The death of an employee shall be taken for the
   

purposes of this Act to have been contributed to by a disease or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be, the death of the employee would have occurred at a significantly later time. "

1. Section 31(5) provided:
   " This section shall not be construed as limiting by
   

implication the generality of the provisions of section 29. "

1. The material facts seem not to be in dispute.

2. In November 1987 Mr Hall hit his head on the roof of a military vehicle in which he was a passenger during field training exercises. At that time he suffered no symptoms of head injury. Approximately four weeks after the incident Mr Hall commenced to suffer dizziness, giddiness and vertigo, as well as nausea. The medical evidence before the Tribunal included a report from a neurosurgeon, Dr Michael Weidmann, to the effect that Mr Hall's tumour can in no way be related to his head injury. Dr Weidmann also said:
   " The injury may well have caused some swelling or oedema
   

within or surrounding the tumour, thus resulting in his symptoms.

It is therefore possible that the minor head injury may have caused symptoms to appear some weeks before they otherwise would have. However, the subsequent events would have been the same with or without the head injury. "

1. In oral evidence before the Tribunal, Dr Vivian Edwards, a neurophysician, agreed that a haemorrhage such as might have occurred in Mr Hall can result in a non-symptomatic glioma becoming symptomatic sooner than it otherwise would have done.

2. The Tribunal stated its crucial reasons very tersely as follows:
   " 18. The Tribunal is satisfied that there was an
   

incident in November 1987, in which the deceased, Mr Hall, suffered trauma as a result of an accident in the truck being driven by Sergeant Farrington. The Tribunal accepts the written evidence of Sergeant Farrington that the incident occurred which corroborates the written evidence of Mr Hall to that effect.

19. At the time the applicant formed the view that her husband was ill and that he must be suffering from a blood clot or something of that nature. Eventually in March 1988, Mr Hall was diagnosed as having vertigo, nausea and related complaints. The Tribunal is satisfied that the diagnoses of March 1988 recognises a temporal connection between the symptoms and the incident in November 1987.

20. The Tribunal has come to the conclusion, on the evidence, that the diagnosed conditions were symptoms of the brain stem glioma which symptoms were aggravated and accelerated by the November 1987 incident and that the Commonwealth is therefore liable under section 27 of the 1971 Act. "

1. It seems to me that the provisions of s. 29(1) (a) and (b) are met, with the consequence that the succeeding provisions of s. 29 have effect. The position was that Mr Hall, an employee of the Commonwealth, suffered an acceleration of a disease (it being accepted that the rendering symptomatic of what was previously an asymptomatic glioma constitutes an acceleration of that disease) and the employment of Mr Hall by the Commonwealth was a contributing factor to the acceleration of that disease.

2. There is no doubt that death was a direct result of the disease glioma. It is clear on the medical evidence that the acceleration of that disease by the head injury suffered by Mr Hall did not bring forward his death: that is to say that the bringing on of symptoms of his glioma did not affect the time at which Mr Hall died.

3. It is in these circumstances that the Commission appeals, saying that the clear inference from paragraph 20 of the Tribunal's reasons is that the Tribunal adopted the view that it was not necessary that the death of Mr Hall result from the acceleration of his disease; it is sufficient if death results from the disease. The Commission contends that this approach by the Tribunal was in error and that it is necessary to read s. 29(2) disjunctively.

4. In my opinion, notwithstanding that the section does have serious difficulties, the repetition of the words "as the case may be" where it appears between paragraphs (e) and (f) of sub-section 2 and where it appears in paragraph (f) is a linguistic signpost requiring the section to be read disjunctively. The repetition of the words "as the case may be" in subsection (2) echoes the same words in subsection (1).

5. In the view I take of the matter, where employment by the Commonwealth has been a contributing factor to acceleration of a disease but the acceleration is spent, in the sense that the disease has reached a stage that it would have reached without any contributing factor from the employment, then the fact that there was an earlier acceleration, now spent, of a disease and death resulting from the disease does not mean that the contraction of the disease is deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. To attach liability to the Commonwealth, the acceleration of the disease to which the employment was a contributing factor, has to result in the death of the employee. That is to say, in my opinion, there has to be a nexus between the contributing factor of the Commonwealth employment and the death.

6. Such a conclusion, in my view, is consistent with the provisions of s. 5(11)(a). In the absence of any contribution by the acceleration of the disease to the death, the death has not resulted from the acceleration of the disease. This conclusion, in my respectful view is in conformity with the broad principle of the legislation referred to by the joint judgment of Gibbs CJ, Mason and Wilson JJ in Johnston v. The Commonwealth (1982) 150 CLR 331 at 339, where their Honours said:
   " The object of the statute is to provide for the payment
   

of compensation to employees who suffer injury or disease occurring in circumstances connected with their employment by the Commonwealth. Section 29 makes specific provision for the payment of compensation in cases of incapacity in which an employee contracts a disease or 'suffers an aggravation, acceleration or recurrence of a disease', when employment by the Commonwealth is a contributing factor, by deeming the contraction of the disease or the aggravation, acceleration or recurrence to be a personal injury to the employee arising out of his employment by the Commonwealth. In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease. It would scarce conform to the broad policy underlying the statutory provisions to confer an entitlement to compensation in the first case but not in the second. "

1. The argument for Mrs Hall is that notwithstanding that there is no contributing factor from her husband's employment to his death, the fact that there was an acceleration of symptoms by some weeks in 1987 is sufficient to ground her entitlement under the 1971 Act. It seems to me that this is contrary to the policy of the 1971 Act. Mr Hall would have been entitled to compensation if the acceleration for a few weeks of the symptoms of his glioma resulted in incapacity: by s. 29(2)(f), the acceleration of a disease is deemed to be an injury in respect of which by s. 27 there is a liability to pay compensation. My present view is that such compensable incapacity exists only during the period of acceleration. That question however is not the one that I have now to consider.

2. That the terms of s. 29(2) are to be read disjunctively, seems to have been implicitly accepted by Smithers J in Commonwealth of Australia v. Whillock (1983) 48 ALR 433 where his Honour, after reciting the provisions of s. 29(2)(f), said at 436:
   " Accordingly, in circumstances where death of a
   

Commonwealth employee results from the contraction of a disease or from the aggravation of such a disease, and his employment by the Commonwealth was a contributing factor thereto, that contraction or aggravation shall be deemed to be not only a personal injury but a personal injury arising out of the employment. Accordingly, in respect of death of an employee and certain other disabilities suffered by him as the result of an injury as defined in s 5 of the Act the Commonwealth is liable to pay compensation, provided the injury was one arising out of or in the course of the employment. Also, if the employee's claim is made on the basis that he died as a result of a disease, or the aggravation of a disease, the Commonwealth is liable to pay compensation as though he had suffered an injury, provided that it is established that 'any employment' by the Commonwealth of the employee was a contributing factor to the contraction or aggravation of the disease. Herein I use the expression 'aggravation' as importing aggravation, acceleration or recurrence of a disease. "

His Honour said at 444:

" It is my view that had the Commissioner approached the

problem on the basis that the thrombus, the occlusion or the myocardial necrosis, were incidents of aggravation of a pre-existing coronary artery disease, and that death resulted from such aggravation of the disease, such approach would have been supported on the evidence. On that basis the question would have arisen as to whether any employment of the deceased by the Commonwealth was a contributing factor to the aggravation of the disease. "

1. In Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173, a case concerned with s. 29(2)(e) of the 1971 Act and not a case of death, Smithers J at 182 referred to the provisions of s. 5(11) and said:
   " ...s 5(11) plays a part. It provides that if an
   

aggravation of a disease contributes to incapacity to work, the incapacity shall be taken to have resulted from the aggravation. Thus, if the aggravation by the sequelae contributed to the illness (see s 29(1)), the incapacity must be taken to have resulted from the aggravation of the disease. It would follow that for the purposes of s 29(2) the incapacity resulted from the aggravation. Then s 29(2)(f) applies with the result that the aggravation of the disease is deemed to be an injury in respect of which by s 27 there is a liability to pay compensation. "

Smithers J referred to the observations of Windeyer J in McLaughlin and Co. Pty Ltd v. Brinnand (1965) WCR 112 where his Honour said:

" If, however, the employment by aggravating his disease

or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it. "

Smithers J said at 183:

" This last sentence touches the present case in a most

significant way. "

and later he said:

" If one considers the case of a progressive disease which

will ultimately produce incapacity but which is aggravated by some event, it may be that the aggravation merely hastens the incapacity and it is reasonable to say the only incapacity caused by the event was that during the period of acceleration. "

1. In Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235, Davies J said at 244:
   " It is desirable that I should mention that it is
   

necessary for an applicant to prove not merely that his disease, its aggravation or acceleration has been contributed to by his employment but also that his total or partial incapacity for work results from that disease, aggravation or acceleration. In this respect, it will be necessary for the Tribunal, in its reconsideration, if it finds that the applicant suffers from an endogenous disease and not merely from a reactive depression, to go on to consider whether there was an aggravation or acceleration thereof to which the employment contributed, whether incapacity for work resulted from that aggravation or acceleration and whether such incapacity was of a temporary or continuing nature. "

1. His Honour also set out the passage of Windeyer J in McLaughlin and Co. Pty Ltd v. Brinnand (supra), referred to by Smithers J in Australian Telecommunications Commission v. Tzikas (supra).

2. Finally, in Australian Industry Development Corporation v. Boyd (1990) 95 ALR 149 Neaves J said at 161:
   " It is implicit in the decision that the tribunal gave an
   

affirmative answer to each of the following questions:

(a) Was the respondent suffering from a disease, being a stress-related psychiatric illness referred to as reactive depression?

(b) Did the respondent suffer an aggravation of that disease?

(c) Was there a causal relationship between the events of 5 January 1987 following the respondent's return to work on that day and the aggravation of the disease such that those events 'contributed to' the aggravation?

(d) Did it follow that the respondent's employment contributed to the aggravation?

(e) Was the respondent partially incapacitated for work as a result of the aggravation of the disease? "

1. In the view I take of the matter the relevant question for the Tribunal to ask, and which it failed to do, was "Was the death of Mr Hall a result of the acceleration of the disease glioma?", the Tribunal having found that his employment by the Commonwealth had contributed to that acceleration. The medical evidence makes clear that only a negative answer can be given to that question.

2. For the above reasons the appeal should be allowed. The orders made by the Administrative Appeals Tribunal on 31 March 1992 should be set aside. In the unusual circumstances of the change in the nature of the application and indeed the change in the questions for decision, I think it appropriate that the Court declare that while the employment of Mr Hall by the Commonwealth was a contributing factor to the acceleration of the disease glioma, the death of Mr Hall did not result from the acceleration of that disease.

3. As to costs, after hearing from Mr McGill as to the applicant's attitude to costs, I order that there be no order as to costs of this application or as to the costs before the Administrative Appeals Tribunal.