Commonwealth of Australia v Beattie, Kathleen

[1981] FCA 89

Re: THE COMMONWEALTH OF AUSTRALIA
And: KATHLEEN BEATTIE (1981) 53 FLR 191
No. 11 of 1980
Workers' Compensation - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Evatt(1), Sheppard(1) and Kelly(2) JJ.

CATCHWORDS

Workers' Compensation - Compensation (Commonwealth Government Employees) Act 1971 - Tribunal established under s.64 - Appeal from Tribunal to Federal Court of Australia on question of law only (s.95(1)) - Federal Court of Australia Act 1976 - Court on such an appeal exercising original jurisdiction through single Judge (ss.19 & 20) - Reference by Judge at first instance to Full Court (s.25(6)) - Pre-existing injury (non-compensable) - incapacitating pain arising therefrom and caused by conditions of employment - Whether injury within meaning of Compensation (Commonwealth Government Employees) Act 1971 (s.5) - Aggravation of pre-existing injury - meaning of.

Workers' Compensation - Commonwealth Government employee - Pre-existing non-compensable injury - Incapacitating pain but no pathological change caused by conditions of employment - Whether compensable injury - "Aggravation of . . . injury" - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 5.

Statutes - Interpretation - Workers' compensation - "Aggravation of . . . injury" - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 5.

HEADNOTE

The notice of appeal against a decision of the Commonwealth Employees' Compensation Tribunal raised, inter alia, the following question of law: "Does pain doing no pathological harm constitute an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the Act (Compensation (Commonwealth Government Employees) Act 1971)?" That question was reserved for decision of a Full Court of the Federal Court of Australia.

Held, per curiam, that pain brought on by work activity may constitute an aggravation of a pre-existing non-compensable injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 even though no pathological change takes place. Whether it does or does not is a question of fact.

Federal Broom Co. Pty. Ltd. v. Semlitch (1964), 110 CLR 626, followed.

Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959), 102 CLR 482; Commissioner for Railways v. Harradine (1961), 106 CLR 71, referred to.

HEARING

Sydney, 1981, April 6-7; July 3. #DATE 3:7:1981

APPEAL.

Questions of law were referred for decision to a Full Court of the Federal Court of Australia by a single judge of the court (Sheppard J.). The facts of the case are set out in the judgments which follow.

J.R.T. Wood Q.C. and P. Flemming, for the appellant.

J.C.S. Burchett Q.C. and V. Hartstein, for the respondent.

Cur.adv.vult.

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

Solicitors for the respondent: Grant Crook & Granleese.

E.F. FROHLICH

ORDER

1. The questions referred be answered as follows: -

(1) Unnecessary to answer.

(2) Such pain may do so. Whether it does or not will usually be a question of fact to be decided by the Tribunal or Prescribed Court whose decisions on questions of fact are not the subject of appeal.

2. The matter be remitted to the Judge at first instance with this expression of opinion.

3. Costs of the reference to the Full Court be reserved for the Judge disposing of the appeal.

JUDGE1

To be determined are two questions of law reserved for a Full Court by a single judge of this Court (Sheppard J.) pursuant to the provisions of s.25(6) of the Federal Court of Australia Act 1976. The questions are those raised in the applicant's notice of appeal against a decision of the Commonwealth Employees' Compensation Tribunal made on 11 April 1980. The provisions of Order 57 Rule 4(1) oblige an applicant to state in its notice of appeal the questions of law raised on the appeal. The appeal is limited by s.95 of the Compensation (Commonwealth Government Employees) Act 1971, to an appeal on a question of law only. The two questions of law which are raised are as follows:

1. Does pain doing no pathological harm constitute an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971?

1. Does pain doing no pathological harm constitute an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the Act?

In order that these questions may be understood it is necessary to refer to the relevant findings of the Tribunal and to some of the evidence which was led before it. Before that is done it will be convenient to refer to the legislation which is in question. This will enable the significance of the findings of the Tribunal and the evidence led before it the better to be understood.

The provision pursuant to which the respondent claimed compensation was s.27(1) which is as follows:
"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."
The word "injury" is defined in s.5 of the Act to mean:
"any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease"

For completeness we refer to s.29(1) of the Act which is as follows:
"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." We do not set out the succeeding sub-sections of s.29 but they provide, inter alia, that a disease or the aggravation, acceleration or recurrence of a disease may, in the circumstances there provided for, constitute an injury for the purposes of the Act.

The Tribunal held that the respondent suffered an injury arising out of her employment with the Commonwealth between July and 3 November, 1978. It also held that she had been totally incapacitated for her work from 3 November, 1978, and would remain so incapacitated until 18 September, 1980. The relevant findings of the Tribunal were:
"(a) the respondent suffered a traction injury to the nerves in the groin region in July 1978 in circumstances which were not compensable;

(b) her work in the Plumbing Inspector's Office and on the courier run brought on pain at the time but did no pathological harm;

(c) similarly, her work on 2nd November brought on pain at the time but did not aggravate the underlying pathology resulting from her injury in July 1978;

(d) since 3rd November 1978 she has not worked under the certificates of total incapacity from legally qualified medical practitioners and has been totally incapacitated from work;

(e) this total incapacity will cease six months after the date on which Dr. Roebuck gave evidence, i.e. 18th March 1980;

(f) she will then again be able to do the work of her former position but not, on the balance of probabilities, including working in the Plumbing Inspector's Office."

The evidence of the respondent which was accepted by the Tribunal was that in July 1978 she was helping her husband to lift a trunk of kitchen utensils in her home. She bent down to pick it up and felt "some extremely tearing pain down in my groin area and in the stomach area". The respondent immediately sought medical attention.

At the time of the injury she was on leave and had intended to return to work a day or two afterwards. Not-withstanding the injury she did return to work although she was suffering pain.

The respondent was employed as a clerical assistant in the Department of Housing and Construction. At about the time she suffered the injury she was being trained to take up a position in the plumbing inspector's office. Her duties involved what she described as counter duties. She would assist plumbers when they came in with their inquiries or wished to register plans. She would show them various maps and provide them with other information about sewerage and drainage work and the requirements therefor. Her duties involved her sitting at a desk, going to the counter, going to various drawers for information and going to a set of cabinets in order to withdraw plans which were required for inspection.

It was to this work that the respondent returned after her injury and the conclusion of her leave. A difficulty which she, and the evidence would indicate other people as well, experienced was in relation to pulling out the drawers from the cabinets. The respondent said that the cabinets were very old. Her evidence continued:
"Some of the drawers would come sailing out at you so you would have to take the weight - as they came at you you would have to stop them so that they would not come any further and drop on your foot or do something equally silly. Others would just get stuck and you would have to give them a really good yank to get them out.

So there were occasions when you had to take the weight of the drawer on you when you pulled it out? --- Yes. And, as well as having to sometimes "take the weight of the drawer, to try and get the plans out of those drawers you would have to be taking the weight of the plans in these plastic folders which were slippery, which meant that as soon as you moved them they started sliding down underneath and if you were trying to get them out you were taking the weight of the plans and trying to stop the others from going underneath and withdrawing the plan that you were after."

The respondent found difficulty doing her work because of the pain which she suffered. The evidence is not clear as to whether she stayed at work for any length of time or not. About the end of July or early in August she was given a certificate by her doctor which led to her being away on sick leave, for a fortnight because of the injury and for a further week because of some virus not connected therewith.

After her return to work she spent two days in the plumbing inspector's office. She then complained of pain and the difficulty she was having performing her duties. She was given another job firstly in a different office and then as a courier. This involved her in handling correspondence and delivering computer print-outs to the C.S.I.R.O. She was required to lift suitcases of documents which she said were very heavy. She carried them at times up and down stairs. She carried them over distances up to 100 yards. She said she could not perform these duties confortably. She suffered pain and her condition did not improve. She said it began to get worse. She described the pain and also a burning sensation which she said became more pronounced.

She complained to her superior who asked her to remain as courier for two days more. She was then placed in a clerical position. This also involved her in difficulty although not as great as that involved in her work in the plumbing inspector's office and as a courier. Furthermore, she was required to relieve from time to time in the plumbing inspector's office. She said she managed her duties, although with difficulty, until 2 November, 1978. She was asked to relieve in the plumbing inspector's office. She said it was a particularly busy day. She was given only 10 minutes for lunch. She had to obtain plans from the cabinets earlier mentioned. She said she suffered pain throughout the day. She had been to the physiotherapist in the morning. After her visits to the physiotherapist she preferred a sedentary type of day but instead she "was rushing around and handling all these inquiries and queries". She said the burning sensation was greater and added, "I felt something was coming on me as though I was being stretched to the limits". She felt what she described as a type of tearing sensation. She said that she suffered pain of a more severe kind with each step that she took.

That evening she had a lot of pain after going home. She was up for most of the night. She saw the doctor the next morning.

He gave her a certificate dated 3 November, 1978, which said that the respondent was under investigation for an injury caused by lifting. In the meantime the respondent was said not to be capable of lifting or being involved in excessive physical effort which included moving heavy cabinets.

The respondent gave the certificate to her superior. She did not return to work. At first she was on sick leave and she then sought compensation.

The following year the respondent had an operation which is described in the medical evidence.

The doctor whose evidence the Tribunal accepted was Dr. Roebuck. He is an orthopaedic surgeon. A report dated 10 March, 1980, referred to the fact that the original injury was in July 1978. Dr. Roebuck then said, "and she then returned to work and further injured the inguinal region four months later". He said that he had recently performed an operation in which he removed tissue from the right inguinal region. He thought that the respondent had sustained a strain of the nerves in this region in the original accident. He added, "I think it is further very likely that she suffered an aggravation of the condition by returning to work at four months and further straining the area". He then went on to deal with her future, which he viewed optimistically.

Dr. Roebuck gave oral evidence. He explained some of the statements he had made in his report. The essential part of his evidence is as follows:
"You said in your report, doctor, that it is probable that she sustained a strain of the nerves in this inguinal region in the accident of July 1978. And then you go on to say that you consider that by returning to work for four months she sustained further straining in the area. Are you able to say what kind of straining - extra straining that would - how would that have occurred?--- How would it have occurred? By muscle tension. When you strain, the muscles of your groin tighten. The nerves run through the muscles and therefore they pull on the nerves.

In an organic sense, would there have been any deterioration in her condition as a result of what you have referred to as the aggravation?--- It is very hard to say. I think it would probably be fairest to say no, I do not think the condition would have deteriorated. I think it would have been aggravated but I think - - -

At the time?--- At the time, I think it would have been aggravated by the extra work but the damage was caused by the initial injury.

By stating that - the words used were further straining the area - how would that further strain be manifested in a physical sense?--- More pain.

Would it be manifested in any other way?--- A weakness perhaps. May have been pins and needles, things like that.

Would the nerves be further stretched or further torn or in any way affected?--- I see what you are getting at. I do not think so. I think that the maximum damage occurred on 13 July, that the nerves were stretched then. It takes quite a fair degree of force to stretch them in the first place and it is hard to see how anything short of an actual further injury would have stretched them any more."

It was that evidence of the doctor which the Tribunal accepted and it is its findings in that respect which lead the applicant here to say that there was an error of law, on the part of the Tribunal, in then finding the applicant liable to pay compensation. In essence what the applicant says is that the pain and discomfort which the respondent suffered when she endeavoured to do her work in the period from August to November 1978 were but normal manifestations and consequences of the non-compensable injury which she had suffered at home in July 1978. A later answer by Dr. Roebuck brings this out. He said, referring to what he had said in his report, "by aggravation of the condition I mean aggravation of the symptoms arising from the condition more than the condition itself, and that aggravation occurred by straining which made her pain worse". He went on to agree that by aggravation he was speaking of the symptoms not the pathology of the respondent's condition.

It is now relevant to say something of the form of the questions which were reserved to us. The attack which the applicant makes upon the Tribunal's decision is that there was not any injury nor the aggravation of any injury which befell the respondent in the course of her employment. That is because the pain and other disability experienced by the respondent during the period she was at work after July were, in the applicant's submission, but the normal and expected consequences of the injury which she had suffered at home; cf. Darling Island Stevedoring & Lighterage Co. Limited v. Hussey (1959) 102 C.L.R. 482 and Commissioner for Railways v. Harradine (1961) 106 C.L.R. 71 per Windeyer J. at p.80. In its submission there could not be an injury nor an aggravation of an injury unless there were some physical or pathological change brought about by what occurred in the course of the employment. It is that submission which the applicant wishes to test by the questions it has raised in the notice of appeal and which are reserved to us.

In our opinion the words, "Does pain doing no pathological harm", are not particularly appropriate to raise the question which is at issue. That is because the notion of pain itself being the cause of pathological harm is not one which can be readily comprehended. More relevantly this is not what this case is about. It is a case where there was an injury which produced pain. Increased pain and disability were later produced by activity in the course of the employment. But that activity did not itself cause any pathological change. The pain arose because of the pre-existing condition and the effect of the work activity upon it. We would have thought that a more appropriate question would have been, "Can incapacitating pain brought on by activity undertaken in the course of employment constitute an aggravation of a physical injury, not-withstanding that such pain is not brought about by any further pathological change".

The problem of the form of the questions was raised with counsel during argument. There was some discussion about amending them but counsel for the applicant eventually said that he did not wish to make any amendment. The point at issue between the parties is clear. So long as the questions are read and understood as raising that point there is no problem. We propose to proceed on that basis.

The respondent's submissions were based principally, if not entirely, upon there being an aggravation of a pre-existing injury. For that reason it would seem that the first question does not bring out clearly enough the point which arises for decision. It is true that it refers to an injury within the meaning of the Act. But we think the second question which refers in terms to aggravation is the more appropriate one. Really what is in question is the meaning of the word "aggravation" in the definition of "injury" in s.5 of the Act.

The respondent submitted that the argument was concluded against the applicant by the decision of the High Court in Federal Broom Co. Pty. Limited v. Semlitch (1964) 110 C.L.R. 626. That was a case concerning the definition of the word "injury" in the Workers Compensation Act 1926 (N.S.W.). By definition the word "injury" included the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration. The applicant in the Federal Broom Co. case was a worker with a history of functional mental illness predisposing her to delusions. In the course of her work she sustained a muscular strain. She sought worker's compensation in respect of continuing incapacity resulting from a delusional condition following upon the physical injury. The delusion from which the applicant suffered was a delusion that she continued to be seriously affected in a way which made it impossible for her to work by reason of abdominal pain.

A preliminary question which the court had to consider was whether a mental illness could be a disease for the purposes of the definition. The court held that it could. The court went on to consider the question of exacerbation or aggravation. Kitto J. referred to the four words which were used and said that they were not synonymous with each other. In his view they were not all given their true force by asking simply whether the disease had been made worse. He continued (p.634):
"Moffit J. placed at least some of his emphasis upon the word 'exacerbation', and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself in a more serious stage of its development. 'A temporary increase in the violence of the symptoms of a disease' is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffit J. was right, I think, in saying: 'There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism'. Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder."
Moffitt J. (as he was) had written the majority judgment in the Full Court ((1963) 80 W.N. 1603 at pp.1607-1611).

In the High Court Taylor J. (p.635) agreed with Kitto J. The same conclusion was reached by McTiernan J. (p.629) and Windeyer J. Windeyer J. said (p.637):
"The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it."
Later he referred to the four words used in the definition of "injury" and said that their several meanings were not exclusive of one another. He continued (pp.639-640):
"The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word 'acceleration' probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is "reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. If the word 'accelerated' stood alone, I would be inclined to agree with the view that Else-Mitchell J. took in his judgment in this case, and think that it was only to such progressive diseases that the relevant part of the definition of 'injury' in the Act could apply. But the word does not stand alone; and I think, with respect, that the application of par. (b) of the definition cannot be confined as he suggested. Schizophrenia is according to the evidence progressive in that it produces delusions which may tend to become chronic. But in the present case the words 'aggravation' or 'exacerbation' are more apt than 'acceleration' to describe the matters on which the case for the applicant depends."

The applicant here sought to distinguish the Federal Broom case from the present because it was a case involving disease as distinct from physical injury and also because the word relied upon at least by Kitto and Taylor JJ. was "exacerbation" rather than "aggravation", the former word not appearing in the legislation in question here.

If this case had arisen under the New South Wales legislation there may have been more substance in the first point of distinction relied upon. That is because the words "aggravation", "acceleration", "exacerbation" and "deterioration" are used in New South Wales legislation only in relation to disease; they are not used in relation to injury, in the sense of physical injury. We do not wish to express views upon whether that circumstances would lead to a result different in New South Wales where physical injury is involved from that which would prevail in the case of a disease. It is unnecessary and undesirable that any view on that question should be expressed by this Court. It is sufficient to point out that the words of the legislation here are different in that the word "injury" is defined expressly to include the aggravation, acceleration or recurrence of any physical injury. Subject to what needs to be said about the absence from the legislation in question of the word "exacerbation", it would seem to us that the position in relation to physical injury under the legislation in question must be the same as it is in relation to disease. The Federal Broom case is therefore, subject to the differences in the legislation, an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact.

We do not consider that the absence of the word "exacerbation" from the legislation in question is of significance. The primary meaning of "aggravate", derived as it is from the latin root, is, according to the Shorter Oxford English Dictionary, to put weight upon. The primary meaning of the word "exacerbate", again arising from its latin root, is to increase the smart or bitterness of; to embitter. But a synomyn for "exacerbate" is to aggravate and amongst the meanings of "exacerbation" is increase in severity of disease or suffering. The secondary meaning of "aggravation" is an increasing, or being increased, in gravity or seriousness. It also means the action of irritating. Roget's Thesaurus says that the two words are synonymous.

It may be one thing to accord different shades of meaning to the two words when they are used in juxtaposition in the same statutory provision. It is another thing to regard them as having different meanings when considering a provision which includes one of them but not the other. In our opinion all that was said about the word "exacerbate" in the Federal Broom case applies with equal force in relation to the word "aggravate" in the context in which it is used in the legislation here.

Notwithstanding what was said by Windeyer J. in the Federal Broom case it may be true, as Kitto J. said, that more is involved than the notion of a condition being made worse in the sense of it producing more serious symptoms. On the other hand we have difficulty ourselves in perceiving why what Windeyer J. said was not an accurate statement of the position. But if one accepts the view of Kitto J. it is nevertheless true to say, when one considers the whole of his judgment, that there can be cases where there will be an exacerbation - and thus in our view an aggravation - of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J., is but an instance of this.

It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.

We would answer the second question by saying that such pain may do so. We do not find it necessary to answer the first question.

The answer to the second question which we have proposed would in theory leave open the further question of whether upon the evidence which it accepted the Tribunal was entitled to reach its ultimate conclusion that there was in fact an aggravation causing incapacity. That is not a matter which is before this Court but it is a matter which would have had to be considered by the trial judge if it were not for the concession made by counsel for the applicant that, if the questions were answered as we have proposed they should be, it would concede that the Tribunal was entitled to come to the ultimate conclusion which it reached. Clearly, upon the basis of the evidence in this case the concession was rightly made.

Before concluding we should say that a great many authorities were referred to us in the course of argument. Most of these were decided in relation to legislation other than that in question here. We do not regard any as bearing as directly upon the problem as the Federal Broom case and we have not thought it necessary to refer to them.

In the result we would propose that the questions be answered as follows:

1. Unnecessary to answer.

2. Such pain may do so. Whether it does or not will usually be a question of fact to be decided by the Tribunal or Prescribed Court whose decisions on questions of fact are not the subject of appeal.

JUDGE2

This matter comes before the Court on reference from a single Judge (Sheppard, J.) of the Court pursuant to the provisions of s.25(6) of the Federal Court of Australia Act 1976 which provides that -

"The Court constituted by a single Judge sitting in either Division may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court has jurisdiction that Division and the Full Court has jurisdiction to hear and determine the case or question."

The reference was made on an appeal by the Commonwealth of Australia against a decision of a Commonwealth Employees' Compensation Tribunal (the "Tribunal") constituted under s.64 of the Compensation (Commonwealth Government Employees) Act 1971 (the "Act"). As was pointed out by Northrop, J. in Commonwealth of Australia v. Goodfellow, (1980) 31 A.L.R. 533, the Federal Court hearing such an appeal is exercising original jurisdiction under the Federal Court of Australia Act 1976, a jurisdiction which is to be exercised by a single Judge (ss.19 and 20).

Section 95(1) of the Act provides that -
"A party to a proceeding under the foregoing provisions of this Part before a Compensation Tribunal or a prescribed Court may, in such manner and within such time as is prescribed, appeal, on a question of law only, to the Federal Court of Australia from any decision of the Compensation Tribunal, or any judgment or order of the prescribed Court, as the case may be, in that proceeding." (Emphasis mine).
On the reference, therefore, the Court can deal only with the question of law and, no decision having been given by Sheppard, J., becomes effectively the court of appeal from the decision of the Tribunal.

The point of law arises from the following findings of fact made by the Tribunal,
"(a) the respondent suffered a traction injury to the nerves in the groin region in July 1978 in circumstances which were not compensable;

(b) her work in the Plumbing Inspector's Office and on the courier run brought on pain at the time but did no pathological harm;

(c) similarly, her work on 2nd November brought on pain at the time but did not aggravate the underlying pathology resulting from her injury in July 1978;

(d) since 3rd November 1978 she has not worked under the certificates of total incapacity from legally qualified medical practitioners and has been totally incapacitated from work;"
The Tribunal made further findings of fact but these do not appear to be relevant to the questions of law posed.

The questions of law referred to the Court (in substance those raised in the Notice of Appeal because of the requirement in O.57, r.4(1)) were -
"1. Does pain doing no pathological harm constitute an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971?

2. Does pain doing no pathological harm constitute an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the Act?"

The form of the questions seems to me to have been dictated by the findings made by the Tribunal. Subject to what I propose to say hereafter, I understand the second question at least to ask whether incapacitating pain which arose out of or in the course of the Respondent's employment by the Commonwealth, which followed and was basically due to a non-compensable injury and which had no effect on the basic pathological condition brought about by that injury constituted an injury (in its extended sense) within the meaning of the Act.

The Respondent gave evidence accepted by the Tribunal that on a day in July 1978 (it was probably 13 July) while she was on a week's leave from her employment she was helping her husband lift a trunk when she felt a tearing pain in the groin and stomach area. When her leave ended she returned to work although she was still suffering pain as a result of the injury. She consulted a doctor who on 7 August 1978 certified that he was treating her for torn ligaments in the lower abdomen and upper thigh and that it was imperative that she should not be lifting heavy weights and walking significant distances. The same doctor, Dr. Armstrong, certified on 9 August 1978 that the Respondent was suffering from "musculo ligamentous injuries" and would be unable to attend her normal occupation from 10 August 1978 to 25 August 1978. She took a fortnight's sick leave on that account followed by a further week's leave for an unrelated condition. She returned to work but it was found on adequate evidence that her duties caused her pain. Specifically her duties as a courier which required her to walk up and down stairs and carry fairly heavy suitcases caused her pain in the injured area. Additionally, the other principal duty in which she was engaged until she ceased work caused her pain. That duty required her on at least several occasions during each day to leave her seated position, go to filing cabinets after taking inquiries and pull out and push back heavy drawers containing files and plans. The drawers were awkward to handle and handling them led to strain.

There was much medical evidence before the Tribunal. The Tribunal did not accept the diagnosis of Dr. Mann, an experienced surgeon, but of his evidence he said,
"Dr. Mann, who formed the view that the respondent was a very honest person, asked her how she felt the morning after having worked and had pain and whether the respondent felt that she was any worse off on Tuesday morning than she was on the Monday morning; she said that she was not. His view was that the work brought on pain but no permanent change to the respondent's physical condition. --- Dr. Mann is not in disagreement with Dr. Roebuck as to the effects of the work on the pre-existing injury."

The Tribunal found the medical facts in accordance with the evidence of Dr. Roebuck, an orthopaedic surgeon. Dr. Roebuck thought that the Respondent sustained a traction injury of the nerves in the groin region. Asked what effect the Respondent's walking considerable distances, lifting heavy objects and pushing heavy cabinets would have on her, he replied that he thought it would probably make the traction injury worse. He explained this by saying that, when one strains, the muscles of the groin tighten so that the muscles pull on the nerves which run through them. This, he said, would result in more pain and perhaps in weakness or "pins and needles". He did not think that the Respondent's activities described above would cause a deterioration in the condition but thought that "it would have been aggravated". He did not think those activities would cause further damage to the nerves, believing that the maximum damage was done them on 13 July 1978. He said that it took a fair degree of force to stretch them in the first place and it was hard to see how anything short of an actual further injury would have stretched them any more. He did not believe the activities described would do that but agreed that if a drawer were being pulled out, stuck and required a sudden extra tug such a tug could conceivably cause additional injury.

Dr. Roebuck's evidence was summarised in the following passage:-
"Would continual strain on that area cause continual irritation? --- No, what I am trying to say is that, first of all, when she injured it, she obviously tore some tissues, had some bleeding into the area and that all became scarred up and that is what caused the trouble. Now, if further injuries caused further bleeding and further scarring, then it would have caused deterioration, but that would have to be sufficient of an injury to cause something to bleed, and that is a fairly severe injury which is why I said voluntary actions would not have made it worse, although it could have aggravated it. It would have to be something that caused bleeding to cause further scarring.

So in summary you are saying that her work would have aggravated the symptoms? --- Yes, but not the condition.

But not the condition? --- Yes.

I think you said it was - correct me if I am wrong - that it was possible in a situation where a drawer stuck that --- ? --- Yes, it would have to be a sudden fairly severe strain, not one caused by voluntary lifting and things like that. It would have to be sudden and a heavy drawer sticking could do that sort of thing.

I know this is going to be difficult too, but are you able to say whether it is possible or probable that that --- ? --- I would say possible.

Did you notice anything at all to indicate that there was further scarring in the area at a time different from --- ? --- Whether there had been more than one episode of scarring?

Yes? --- No, that is impossible to say."

---

"By aggravation of the condition I mean aggravation of the symptoms arising from the condition more than the condition itself, and that aggravation occurred by straining which made her pain worse.

So when you are mentioning aggravation, you are talking about the symptoms not the pathology of the thing? --- Yes.

If an aggravation did occur at work on, say, the last day she worked, 2 November, from pulling a drawer out, if an aggravation occurred, would she have been aware of the aggravation at that stage? --- I would imagine so, yes.

I think you said it had to be quite a severe incident? --- Yes, it would have to be - by severe, I did not mean necessarily falling off a building - sufficient violence - involved in the instrument - sufficient violence for it to cause bleeding in her groin, and that is something that one notices.

So she would have been immediately aware? --- Not necessarily immediately but pretty soon afterwards.

Pretty soon afterwards. Would she have been able to work the rest of the day? --- Oh, yes, that is conceivable. Yes, she could have done that. She may have started off some bleeding which then continued over the next 24, 48 hours until it became sufficient tension to make it too painful for her to continue. Bleeding does not always necessarily occur suddenly.

So she may not have been aware by the end of that day that she had suffered ---? --- No, she may not have been aware of it, but I would think that she would be aware that something was wrong by the end of that day, but I do not think that she would necessarily be seriously incapacitated until necessarily the day after or the day after that.

You say that this could conceivably have caused an aggravation, an event such as this, pulling a drawer? --- Yes.

Presumably something unforeseen has got to happen as well? --- Yes, that is right."

It is instructive to compare the evidence of Dr. Roebuck concerning a possible further injury with the evidence given by the Respondent concerning the events of 2 November 1978, when her incapacity evidently commenced. She detailed the events of a busy day involving a good deal of physical effort. Her evidence went on:-
"Did you suffer the burning sensation that you referred to before? --- Yes, I did.

Was that to the same or lesser or greater degree? --- It was greater.

And did you notice any tearing sensation at all? --- I felt something was giving on me, as though I was being stretched to the limits.

Did you feel anything tear? --- I would have to say it was a type of tearing sensation.

And you felt that specifically? --- Over a period of about half an hour, possibly it was a particularly busy half hour and because I was constantly going, I just sort of felt everything was collapsing on me.

Whereabouts did you feel that tearing sensation? --- In the area of the original injury, down in the groin area.

And can you recall whether that tearing was in the late afternoon, mid-afternoon or any specific time? --- No specific time, I suspect - I think it was an aggravation, no, it was an irritation that possibly started from when I started there in the morning after being to the physiotherapist, and as the workload increased over the day, so did this sensation of this giving, tearing type of effect increase.

Did that limit your movement at all? --- Yes.

In what manner did it interfere with your movement? --- It slowed me down, and I was very careful, I was walking slower, and when I was pulling the drawers and things out I was just watching precisely what I was doing in case something else sort of went on me.

When you walked did you find that you suffered pain? --- Yes.

With each step that you took? --- With each step that I took.

And this was a greater pain than you had sustained initially? --- Yes.

By initially I mean in July 1978? --- It would have been at the same extent. The original injury was a very painful injury.

Did you notice any other difficulty in movement after 2 November? --- Yes, it took a long while for that to ease off again."

"You mentioned that you had to sit up half the night, or you were kept awake most of the night? --- Yes.

Did you have to sit up in bed? --- I was sitting up and laying down and sitting up and laying down, trying to get some relief.

Were you able to get any relief? --- No.

And was this unusual? --- Yes.

Was that the first time it had happened? --- To any great extent. A couple of times previously after I had had a busy day in the office I had uncomfortable nights.

But was this exceptional? --- This was exceptional.

It had not in effect happened before? --- No, not to that extent.

You saw your general practitioner on the next day, 3 November? --- That is right."

In the light of the evidence, the Tribunal's second finding set out above must be taken to mean, in my opinion, that the work carried out by the Respondent in the Plumbing Inspector's Office and on the courier run so operated upon the physical condition resulting from the injury which occurred in July 1978 as to cause pain. That pain did not cause her any incapacity disabling her from work except, perhaps, for the first two weeks of the three referred to above in respect of which no claim for compensation seems to have been made. It seems to me, therefore, that the relevant part of the determination by the Tribunal is paragraph (a) which states that
"The Respondent suffered an injury arising out of her employment with the Commonwealth between July and 3 November 1978."

"Injury" is defined in s.5 of the Act to mean "any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury". The remainder of the definition is irrelevant for the purposes of this case. It is provided by s.27(1) of the Act that 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 the Act, liable to pay compensation in respect of that injury in accordance with the Act. The injury must result in partial or total incapacity (ss.45 and 45 of the Act). It is to be noted that the definition of "injury" in s.4(1) of the Commonwealth Employees' Compensation Act 1930 is relevantly very much the same as the definition of "injury" being considered in this case, the phrase "any physical or mental injury" having been substituted for the phrase "a pre-existing injury" in the earlier enactment.

It was contended on behalf of the Appellant that neither the pain suffered between the Respondent's return to work in July 1978 and 1 November 1978 nor the pain suffered by her on 2 November 1978 was an aggravation of any physical or mental injury, being simply the incapacitating consequences of the injury which had occurred at home and not a consequence due in any way to the Respondent's employment. In effect the contention adopted what Windeyer, J., said in Commissioner for Railways v. Harradine, (1961) 106 C.L.R. 71, at p.80,
". . . when a man who is in fact suffering from an ailment finds upon trying to work that he is unable to do so, he does not suffer an injury arising out of his employment: an incapacity for work arising from his ailment has merely become manifest."

In respect of the pain prior to 2 November 1978 there seems to have been no incapacity except, perhaps, for the period from 10 August 1978 to 25 August 1978 in respect of which, as indicated earlier, no claim for compensation seems to have been made. There was, therefore, no effective issue before the Tribunal concerning that pain. Following well-established principle, the Court should not answer what amounts to a hypothetical question. What happened on 2 November 1978, resulting as it did in incapacity, is in different case. In the light of the definition of "injury" coupled with the fact that, as the evidence shows, conditions of employment gave rise to the incapacitating pain, there is, I think, no warrant for saying that there was no aggravation of the existing physical injury.

The primary concern is with the word "aggravation". In my opinion the proper meaning to be attributed to that word in the context of the Act is to be found with the guidance of what Kitto, J., said, Taylor and Owen, JJ., concurring, in Federal Broom Co. Pty. Ltd. v. Semlitch, (1964) 110 C.L.R. 626 at p.634. He was referring to different legislation, the Workers' Compensation Act, 1926-1960 (N.S.W.) which in s.6(1) used the four words "aggravation, acceleration, exacerbation or deterioration" with reference to disease. His Honour found that in the circumstances he was considering the word "exacerbation" was the critical word.

In the Concise Oxford Dictionary, 6th Edn. (1976), the principal meaning of the word "exacerbate" is "(to) aggravate (pain, disease, anger)", while the principal meaning of the word "aggravate" is given as "(to) increase gravity of (illness, offence, etc.)". Webster's New 20th Century Dictionary 2nd Edn., gives as the meaning of "exacerbate" "to make more intense or sharp, to aggravate (disease, pain, annoyance, etc.)" while it defines "aggravate" as "to make heavy, to make worse, more severe or less tolerable". The Oxford English Dictionary defines the word "aggravate" used "of things evil" as "to increase the gravity of, to make more grievous or burdensome; to make worse, intensify, exacerbate". It defines "exacerbate" as meaning "to increase the smart of (a pain), the virulence of (disease); to embitter, aggravate".

It is clear, therefore, in my opinion, that in the context being considered, one may use the word "aggravate" as a synonym for the word "exacerbate", and this in accordance with normal English usage. Due consideration has to be given, I think, to the fact that the word "aggravate" is more comprehensive in its meanings than is the word "exacerbate". Reference to their basic Latin roots, "gravis" and "acer" and their primary meanings of "heavy or weighty" and "sharp", helps to point up accurately the difference between the two words.

The ordinary usage of the word "aggravate" is, in my opinion, well illustrated in the evidence given in this case. When the Respondent was asked what she said to her superior officer, she replied, "that I was finding that the work was aggravating my injury". That was the first use of the word in the evidence and it seems to me to have been used perfectly normally and naturally. Dr. Mann seems to have taken the view that in the medical sense aggravation represented a permanent change in a patient's condition but Dr. Roebuck used the word in its ordinary sense as, for example, when he said,
"I said voluntary actions would not have made it worse, although it could have aggravated it"
and, again,
"By aggravation of the condition I mean aggravation of the symptoms arising from the condition more than the condition itself, and that aggravation occurred by straining which made her pain worse."

In Federal Broom Co. Pty. Ltd. v. Semlitch, (supra), at p.634, Kitto, J., said,
"The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse. Moffitt J. placed at least some of his emphasis upon the word "exacerbation", and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J. was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound."

Using the ordinary meaning of the word "aggravation", it seems to me to be entirely proper and accurate to say, adapting the words of Moffitt, J., (as he then was) quoted with approval by Kitto, J.,
"There is an (aggravation) of an (injury) where experience of the (injury) by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the (injury) upon him rather than being concerned with the underlying mechanism."
On that view, it is therefore proper to say that when the Respondent suffered incapacitating pain there was an aggravation of her pre-existing injury.

I turn again to the questions posed. Extending their terms with the assistance of the definition of "injury" under s.6 of the Act and the provisions of ss.27, 45 and 46 of the Act, they can be put in the following form:
1. Does pain doing no pathological harm but causing incapacity constitute personal injury arising out of or in the course of employment within the meaning of the Act?

2. Does pain, incapacitating but doing no pathological harm, caused by aggravation arising out of or in the course of the employment of an employee by the Commonwealth of a pre-existing injury caused in non-compensable circumstances constitute personal injury arising out of or in the course of employment within the meaning of the Act?
When that is done it is difficult to attribute in the context any relevant meaning to the first question. There was no suggestion that any pain from which the Respondent suffered was the direct result of work-caused injury. It might be described neutrally as the manifestation of symptoms brought on by the conditions of employment acting upon a pre-existing injury but there was no claim that the pain suffered could have arisen other than in relation to that injury. Accordingly, the question deals with a non-existent problem and it is unnecessary to answer it.

I would answer the second question, understood in the extended way just set out or, preferably, in the extended form set out earlier in this judgment, in the affirmative.

As to the period of incapacity commencing on 2 November 1978, I think that there is a strong likelihood that a false issue has been raised by the findings made by the Tribunal. When one looks closely at all the medical evidence and in particular that of Dr. Roebuck quoted at length above together with the evidence of the Respondent concerning what happened on 2 November 1978, it is, in my opinion, hard to escape from the conclusion that on the balance of probabilities the Respondent suffered on that day an aggravation of the pre-existing injury such that the pathology of that injury was worsened.

But this Court, I think, is bound by the facts found by the Tribunal and, limited as it is to consideration of the questions of law only, should not substitute its own view of the facts for that of the Tribunal.

I would remit the questions asked to the learned Judge at first instance with this expression of opinion and reserve the costs of the reference to this Court for that learned Judge.