Commonwealth of Australia v Johnston, P.I

[1980] FCA 116

Re: THE COMMONWEALTH OF AUSTRALIA
And: PEGGY IRIS JOHNSTON (1980) 43 FLR 345
No. 16 of 1979
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

CANBERRA REGISTRY
GENERAL DIVISION
Evatt(1), Brennan(2) and Keely(3) JJ.

CATCHWORDS

Compensation - Death of naval serviceman during service due to cancer - Autogenous disease not diagnosed during service until malignant and fatal - Compensation payable where aggravation of disease contributed to by employment - Meaning of "aggravation" - Appearance of symptoms - Nexus between aggravation of disease and death - Partially dependent mother.

Compensation (Australian Government Employees) Act 1971 (Cth.) ss. 5, 29, 31, 43, 104.

Workers' Compensation - Death of naval serviceman due to cancer - Disease not diagnosed during service until fatal - Aggravation contributed to by employment - "Aggravation" - Compensation (Australian Government Employees) Act 1971 (Cth), ss. 5, 29, 31, 43, 104.

Statutes - Interpretation - "Aggravation" - Meaning of "aggravation" of a disease - Whether failure to retard or arrest normal course of disease "aggravated" it - Compensation (Australian Government Employees) Act 1971 (Cth), s. 29.

HEADNOTE

The respondent was the mother of a man who had been employed in the Royal Australian Navy for some years before his death from cancer in 1975. In 1970, while so employed, he sought medical treatment in an Army hospital for pain in his lower bowel and was told he had haemorrhoids and treated accordingly. In 1974 his condition was diagnosed as a rare form of cancer the contraction of which had not been contributed to by his employment. At the date of his death the respondent was partially dependent on him. The respondent's claim for compensation was determined against her in the first instance. This determination was later set aside by the Commonwealth Employees' Compensation Tribunal and from this decision the Commonwealth appealed to the Federal Court of Australia and then to the Full Court of that court. The main issue was whether the deceased's employment had contributed to an "aggravation" of his disease within the meaning of s. 29 of the Compensation (Australian Government Employees) Act 1971.

Held, per Brennan and Keely JJ., Evatt J. dissenting - that the appeal should be allowed because the ordinary course of the disease, which caused the employee's death, was not made worse by his employment and therefore his death could not be said to have been contributed to by an "aggravation" of the disease for the purpose of s. 29 of the Compensation (Australian Government Employees) Act 1971.

HEARING

Canberra, 1980, March 27-28; August 21. #DATE 21:8:1980

APPEAL.

Appeal from a judgment of a single judge of the Federal Court (Davies J.).

J. C. S. Burchett Q.C. and F. J. Purnell, for the appellant.

J. S. Coombs Q.C. and R. E. Williams, for the respondent.

Cur. adv. vult.

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

Solicitors for the respondent: Macphillamy, Cummins & Gibson.

E. F. FROHLICH

ORDER

1. The appeal be allowed.

2. The judgment of the Honourable Mr. Justice Davies be set aside and in lieu thereof it be ordered that -

(a) the decision of the Commonwealth Employees Compensation Tribunal be set aside;

(b) the determination of the Commissioner for Employees' Compensation be affirmed.

(c) the respondent pay to the appellant its costs.

3. The respondent pay to the appellant its costs of this appeal.

Appeal allowed.

JUDGE1

In June 1968 Andrew Scott Johnston (the deceased) voluntarily enlisted as a seaman in the Royal Australian Navy for a period of twelve years. He had then just attained the age of seventeen years and was the eldest of six children living with their widowed mother, Peggy Iris Johnston, the respondent to this appeal.

Whilst serving in H.M.A.S. Jeparit in the period between March and August 1970 his ship visited Vietnam. There he had cause to seek medical treatment for pain in the bowel region. As his ship carried no medical officer he attended at a military hospital at Vung Tau where he was told he was suffering from haemorrhoids and was given suppositories and cream to use.

Between 1970 and July 1974 he apparently suffered symptoms and signs of haemorrhoids causing him to use cream and suppositories which he obtained from naval sources.

In August 1974, while seeking further treatment for his complaint, he was examined by a medical officer attached to the Royal Australian Navy at Melbourne. It was then discovered that he was suffering from an inoperable cancerous condition of the bowel.

On 3 January 1975 at the age of 23 he died of abdominal carcinoma located primarily in the upper rectal canal with secondary deposits in the liver.

The respondent claimed compensation under s.43 of the Compensation (Australian Government Employees') Act 1971 (the Act) (the 1971 Act) claiming that she was partially dependent upon the deceased at the date of his death and that the death of her son was the result of aggravation or acceleration of a disease and that his service in the Royal Australian Navy was a contributing factor to the aggravation or acceleration within the meaning of s.29 of the Act. Such application was determined against her in the first instance by the Commissioner for Employees' Compensation appointed under the Act (s.9) (the Commissioner).

On reference of the matter in accordance with the provisions of Division 3 of Part V of the Act to the Commonwealth Employees' Compensation Tribunal established under the Act (s.64) (the Tribunal) for reconsideration, the Tribunal, on 3 April 1978, set aside the determination of the Commissioner and, pursuant to s.84(1)(c)(i) of the Act, determined that

(a) the employment of the deceased by the Commonwealth contributed to the aggravation of his cancerous condition and the death of the deceased resulted therefrom; and

(b) at the date of the death of the deceased the claimant was partially dependent on him.

and ordered that the Commonwealth pay the respondent's costs of the reference.

By notice of appeal dated 21 April 1978 the Commonwealth of Australia appealed from the decision of the Tribunal to the Federal Court of Australia pursuant to s.95 of the Act on the following grounds: -

(1) The Tribunal was in error in holding that the symptoms of the disease first became apparent after the commencement of the Compensation Commonwealth Government Employees) Act 1971.

(2) The Tribunal was in error in failing to hold that the symptoms of the aggravation first became apparent before the commencement of the Compensation (Commonwealth Government Employees) Act 1971.

(3) The Tribunal was in error in holding that the deceased's employment by the Commonwealth was a contributory factor to the aggravation of his disease.

Section 95 of the Act provides that such appeal is "on a question of law only". Consequently where there was evidence to support the findings of the Tribunal of primary facts and if the Tribunal had not misdirected itself in law in making such findings then such primary facts are binding on the Federal Court of Australia.

By letter dated 23 October 1978 the Deputy Crown Solicitor for the Commonwealth informed the solicitors for the respondent that at the hearing of the appeal before a single Judge of the Federal Court of Australia it was intended to seek leave to add the following grounds of appeal:

That there was no evidence upon which the Tribunal could find:

(a) that the condition from which the deceased employee ultimately died could have been detected in 1970;

(b) that the said condition would with the exercise of reasonable care have been detected in 1970 or at any time which would have enabled him to be cured or have had his life expectancy lengthened;

(c) that the said condition was contributed to by the deceased's employment;

(d) that the deceased suffered any aggravation or acceleration in 1970 or at any time within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 or the Commonwealth Employees Compensation Act 1930; (sic)

(e) that if any such aggravation or acceleration was suffered, it was contributed to by the deceased's employment by the Commonwealth;

(f) that the symptoms of the said condition or of any aggravation or acceleration thereof first became apparent after the commencement of the Compensation (Commonwealth Government Employees) Act 1971.

On 10 May 1979 Davies J. ordered that the appeal of the Commonwealth of Australia be dismissed and that the appellant pay the respondent's taxed costs of the appeal.

By notice of appeal dated 31 May 1979 the Commonwealth of Australia appealed against the decision of Davies J. to the Full Court of the Federal Court of Australia pursuant to s.24 of the Federal Court of Australia Act, 1976, the grounds of appeal being: -

(a) that the Federal Court of Australia was in error in holding that the employment of Andrew Scott Johnston, deceased, by the Commonwealth of Australia was a contributing factor to the aggravation of his disease;

(b) that the Federal Court of Australia was in error in holding that employment by the Commonwealth of Australia did contribute to the death of Andrew Scott Johnston;

(c) that the Federal Court of Australia was in error in holding that the failure by the Commonwealth of Australia to take remedial steps aggravated or contributed to the aggravation of the disease of Andrew Scott Johnston;

(d) that the Federal Court of Australia was in error in holding that the death of Andrew Scott Johnston was compensible (sic) under the Compensation (Commonwealth Government Employees) Act 1971;

(e) that the Federal Court of Australia was in error in ordering that the Appellant pay the Respondent's taxed costs of the appeal.

An appeal from a single Judge of the Court to the Full Court of the Federal Court of Australia such as the present case is an appeal on a question of law only. The question for determination by the Full Court is whether Davies J. erred in law in determining that the Tribunal did not err in law in arriving at its determination. Putting it another way, do the primary facts as found by the Tribunal together with any proper inferences that may be drawn therefrom by the Court (Warren -v- Coombes & Anor. 53 A.L.J.R. 293) support the Tribunal's determination that:

(1) the deceased suffered an aggravation or acceleration of a disease within the meaning of s.29 of the Act

and(2) the employment of the deceased by the Commonwealth was a contributing factor to the aggravation or acceleration within the meaning of that section.

The relevant findings of the Tribunal were expressed as follows:

"12. In 1970 the deceased was serving on HMAS Jeparit, a vessel which carried no medical officer and was operating to Vietnam. Between March and August of that year it is claimed that he went to an Army Hospital at Vung Tau in Vietnam seeking treatment for a condition which he believed was haemorrhoids. . . . On all the evidence, . . . I am satisfied, on the balance of probabilities, that the deceased did seek medical treatment for pain in his bowel region at Vung Tau in 1970 for what he was told were haemorrhoids. . . .

. . .

15. Dr. Stewart a general practitioner at Flinders Island, diagnosed the cancer on 4th August 1974 during HMAS Ardent's Tasmanian cruise. . . .

18. Dr. Goulston believes the cancer could have been detected if an adequate medical examination had taken place when the deceased presented himself to Vung Tau military hospital in 1970. . . .

The medical witnesses are in agreement to the fact that the proper practice when examining a person suspected of haemorrhoids is to use an instrument to look around to see if there is anything else in the rectal area. It is not in issue that a maglignant cancer can be treated if this is done sufficiently early or that 1970 would have been sufficiently early."

Dr. Goulston is a consulting specialist attached to the Woden Valley Hospital in Canberra specialising as a gastroenterologist, his particular area of interest being cancer of the bowel.

"24. The deceased's father died of the same disease. It is a rare form of cancer which is much more common among those who have a family history of it. The employment by the Commonwealth was not a contributing factor to its contraction. It was not a contributing factor to its recurrence. The question is whether it was a contributing factor to its aggravation or acceleration.

25. In 1970 servicemen were expected to obtain their medical treatment from service doctors. The employment put him in Vietnam when pain in the bowel caused him to seek medical advice. He would have been in breach of naval regulations had he not done this. He followed the advice given for the succeeding years it seems until presenting for haemorrhoids again in August 1974. While the claimant was in Vietnam no other advice was available.

26. A normal medical examination should have revealed the developing cancerous condition in 1970. This could have been operated upon and, on the balance of probabilities, prevented the aggravation which took place in the absence of such treatment. Looked at in this light had the claimant not been in the employment the aggravation of his cancerous condition which took place subsequent to his visit to the medical officer in 1970 would not have taken place. If that is so it seems to follow that the employment contributed to the aggravation."

Although there is a finding by the Tribunal that, on the probabilities, if the deceased had received proper medical attention in 1970 the disease would have been discovered, there is no specific finding by it that operative treatment would then have cured the disease and thus arrest its normal and natural progression. Davies J. in his reasons for judgment stated that "it was not in dispute that, had the condition then (that is 1970) been detected Mr Johnston's life would have been prolonged and, on Dr Whitehead's evidence that he could have expected a normal life expectancy." The appellant took no objection to such statement. Indeed at the very conclusion of his submissions-in-reply, Counsel for the Commonwealth was asked by a member of the Court in relation to para. 26 set out above: "Is there any statement in that paragraph being a statement of fact which is open to challenge? I am not asking you to, as it were, to accept the legal implications of it, but simply as a statement of fact". The transcript then reads:

"MR BURCHETT: I follow, your Honour. Your Honour, I challenged the basic facts . . . before mr Justice Davies but I think I expressly said when I opened this appeal that I was not going to invite your Honours to go through all the evidence on that. I am content for the purposes of this appeal to act on the assumption that the purely factual matters can be founded in the evidence.

BRENNAN J.: If I could take you to the third sentence: That sentence I take it may mean that if the doctor at Vung Tau hap operated or had taken steps to institute a psoitive course of treatment the disease may hav been cured or arrested, or it may mean that by reason of the advice given the employee did not take any steps himself from then until 1974 to take action.

MR BURCHETT: I was looking at it in the former sense when I said what I said, your Honour. That is the only basis on which the tribunal proceeded as I read their reasons. I would not concede the latter sense as being open or available.

BRENNAN J.: Available - in the latter sense there was no evidence to support it."

At the commencement of the hearing of the appeal before this Court Mr Burchett Q.C., who, with Mr Purnell, appeared for the Commonwealth of Australia, when asked whether he would be submitting that there was no evidence to support a certain finding of fact, replied:

"MR BURCHETT: May I put it this way; When your Honours go to Mr Justice Davies' judgment, your Honours will see that there was a question of fact which looms quite large in his reasons as to whether or not, on the evidence, it was possible to reason that the condition from which the deceased ultimately died was a condition which was already in evidence, either in itself or in a pre-cancerous form, back in 1970 when the event occurred which is relied on in the reasons.

And the proposition was that at that time it was at least equally open, on the evidence, that the condition then apparent was simply a condition of haemorrhoids.

Now, I do not propose to take your Honours through all the evidence and seek to re-agitate that question of fact, but what we will be saying in the appeal was that there was no evidence upon which it could be found that there was an aggravation to which the employment was a contributing factor. That is really the basic question which arises out of grounds (a), (b) and (c). There is a subsidiary question under ground (d) whether the 1971 act applies and that has regard to questions which arise under section 104, but perhaps I could leave that till later. It is a quite separate point and quite a short one."

Mr Burchett's reply is taken to mean that there was no dispute that the findings of primary fact by the Tribunal were supported by evidence which the Tribunal could have accepted. If this was not the intended effect of Mr Burchett's statement then I am of the view that such findings by the Tribunal were supported by acceptable evidence.

It must be remembered that the respondent's application for compensation is brought under the 1971 Act, s.29 of which is in a different form to s.10 of the Commonwealth Employees' Compensation Act, 1930 (the 1930 Act) under which decisions such as The Commonwealth -v- Bourne, (1960) 104 C.L.R. 32, The Commonwealth -v- Thompson, (1960) 104 C.L.R. 48 and The Commonwealth -v- Rutledge (1964) 111 C.L.R. 1 were decided. "Injury" is defined in s.5 of the 1971 Act as meaning any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of the Act, does not include a disease or the aggravation, acceleration or recurrence of a disease. "Disease" is defined as including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.

Section 29 of the Act sets out the conditions under which the contraction of a disease or its aggravation, acceleration or recurrence is deemed to be a personal injury to the employee arising out of his employment by the Commonwealth.

"29. (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;
. . . . . .

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, . . . 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;"

Parts of s.5(11) and s.31(3) of the Act are relevant. Section 5(11) provides:

For the purposes of this Act -

(a) the death . . . of an employee . . . shall be taken to have resulted from . . . an aggravation of a disease . . . suffered by the employee if . . . the aggravation . . . contributed to the death . . .

Whilst s.31(3) provides:

The death of an employee shall be taken for the purposes of this Act to have been contributed to . . . by an aggravation . . . of a disease, if, but for . . . that aggravation . . . the death of the employee would have occurred at a significantly later time.

As mentioned in para.24 above no claim was made that the disease in question was contracted or recurred during the deceased's employment by the Commonwealth.

It is not clear in my view that the findings in para.26 set out above are not simply a statement of "the ultimate fact in issue" as distinct from findings of mixed fact and law.

In the recent decision of Lombardo -v- Federal Commissioner of Taxation (1979) 28 A.L.R. 574 Bowen C.J. @ p.575-576 stated:

"The decision making process of the Board involves the ascertaining of primary facts - the facta probantia, which are then used to adduce the ultimate fact in issue - the factum probandum (Hayes v. Federal Commissioner of Taxation (1956) 96 C.L.R. 47 at p.51 per Fullagar J.). The ultimate fact depends upon the application of the Act to the primary facts but except where a question of construction is involved, the conclusion from the primary facts will generally be a question of fact.

In Edwards v. Bairstow (1956) A.C. 14 at p.33, Lord Radcliffe in the House of Lords approved what had been said by Lord Sterndale in the Court of Appeal in Currie -v- Inland Revenue Commissioners (1921) 2 K.B. 332 where the question was whether a person was carrying on a "profession" within the meaning of s.39(c) of the Finance (No.2) Act 1915. There Lord Sterndale made it clear that in cases where a statute is involved its application need not be a question of law.

His Lordship (at p.336) said:

"There may be circumstances in which nobody could arrive at any other conclusion than that what the man was doing was carrying on a profession; and therefore looking at the matter from the point of view of a judge directing a jury, the judge would be bound to direct them that on the facts they could only find that he was carrying on a profession. That reduces it to a question of law. On the other hand, there may be facts on which the direction would have to be given the other way. But between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly in my opinion, one of fact; and if the Commissioners came to a conclussion of fact without having applied any wrong principle then their decision is final upon the matter."

The position where a statute uses words which are not technical was elaborated by Jordan C.J. in The Australian Gas Light Co. v. The Valuer General (1940) 40 S.R.N.S.W. 126 as follows (at p.137):

"(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law . . . This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence . . ., although evidence is receivable as to the meaning of technical terms . . ., and the meaning of a technical legal term is a question of law . . .

(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact . . ."

(See also Federal Commissioner of Taxation v. Broken Hill South Limited (1941) 65 C.L.R. 150 at p.160; and Brutus v. Cozens (1973) A.C. 854 at p.861).

No reliance was made by Counsel for either party on the principles referred to in the passages cited from Lombardo's Case (supra.) or in cases such as Life Insurance Company of Australia Limited -v- Phillips (1925) 36 C.L.R. 60 @ 78 referred to in Neal -v- Secretary, Department of Transport (1980) 29 A.L.R. 350 @ 361. Accordingly, in these reasons for judgment the findings set out in para.26 above are regarded as findings of mixed fact and law and the construction of s.29 of the Act has to be considered.

In my view the Act is a remedial Act. Like all such Acts it should be construed beneficially. The function of the Court is, in my view, to construe it in the spirit of its manifest purpose.

In any event, construction of the section requires consideration of the meaning of the word "aggravation" as used therein.

The Commonwealth of Australia in its submissions as to its meaning relied particularly upon the statement of Windeyer J. in Ogden Industries Pty. Limited -v- Lucas (1967) 116 C.L.R. 537. There the words "aggravation" or "acceleration" as used in the Victorian Workers Compensation Act 1958 as amended by the Workers Compensation (Amendment) Act 1965 were under consideration. At p.593 Windeyer J. stated:

"Was it the aggravation or acceleration of a pre-existing disease? It seems to me that it cannot be said that it was. 'Aggravation' means, I think, that an existing disease has been made worse, not that it has simply become worse. 'Acceleration' I have previously said and venture to repeat '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': Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 C.L.R. 626, at pp.639,640). To this view I adhere. . . . The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury."

The meaning of the word "aggravation" there adopted by Windeyer J. was an interpretation of that word in that particular Act. He was not attempting to state an interpretation of that word as used in all similar Workers' or Employees' Compensation Acts and, in my view, I am not constrained to such an interpretation in the present case.

The appellant further submitted that such interpretation as adopted by Windeyer J. in Ogden's Case was supported by a meaning of the word as set out in the Shorter Oxford Dictionary (3rd ed.) namely, "making worse".

Counsel for the respondent on the other hand submitted that "aggravation" includes a meaning as found in the Oxford English Dictionary, Vol.1 (1933) as follows:

"A making heavier, graver, or more heinous; the fact of being increased in gravity or seriousness."

The question of the meaning of aggravation of a disease was considered in judgments delivered between 1947 and 1949 by Denning J. (as he then was) in claims for war service injuries. Those claims were made under the Royal Warrant (Statutory Instruments 1964 Part III Section 2 page 5257) concerning pensions and other grants in respect of disablement or death due to service in the military forces after 2 September 1939. "Injury" is defined therein as including disease whilst "service" is defined to mean service as a member of the military forces . . . . . for any period after 2nd September 1939. Part II of the Warrant sets out the general principles of awards.

Article 3 provides:

"3. Under this Our Warrant awards may be made where the disablement or death of a member of the military forces is due to service."

Article 4 provides:

"4.(1) Where, . . . . the death occurs of a member (of the military forces) and a claim is made in respect of that death, such . . . . death, . . . . shall be accepted as due to service for the purposes of this Our Warrant provided that it is certified that -

(a) . . . . . . . .
(b) the death was due to or hastened by - (i) . . . .

(ii) the aggravation by service of an injury which existed before or arose during service.

The most detailed judgment is in Lee -v- The Minister of Pensions (No.2) (1948) 3 War Pensions Appeals Reports 1901 delivered 31 May 1948. At p.1913-13 his Lordship stated:

"This case raises directly for consideration the question of aggravation of cancer by delay in diagnosis or treatment. Cancer has been proved to be not attributable to or aggravated by war service except in special circumstances. This question of delay is a special circumstance. In many cases of course, the question does not arise. For instance, it often happens that no symptoms occur until an acute attack when the man reports sick, the disease is diagnosed at once, and despite all possible treatment, he dies.

In other cases it often happens that a man has symptoms for which he reports sick, but, despite reasonable care and skill, the disease is not diagnosed until a late stage when treatment is unavailing, maybe not until after the post-mortem. In any such cases, so long as reasonable care and skill have been used in diagnosis and treatment, the disease is not aggravated by war service; for no more could have been done for the man than if he had remained in civil life.

The cases where aggravation by delay does occur, however, fall into two categories: 1. Cases where the man himself is so conscientious that he remains at his post rather than report sick or undergo treatment. In such cases the delay in diagnosis or treatment is no fault of the medical men, but it is also no fault of the man himself so long as he was not acting unreasonably. The aggravation by the delay is, therefore, due to war service. (See Jones's Case 1 W.P.A.R. 79; (1946 1 A.E.R. 312) 2. Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service. (See Gillibrand's Case 1 W.P.A.R. 1039). In some cases, of course, the symptoms appear so late that nothing whatever could be done for the man in any event, and then there is no aggravation: but there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service."

It is clear that Denning J. was expressing an opinion that a failure to diagnose or treat a disease (including an autogenous disease) could in certain circumstances amount to an aggravation of such disease for the purpose of Art. 4 of the Warrant. In other words an aggravation of a disease could result from an omission to diagnose or treat the disease and that external stimulus was not always required to bring about such an aggravation. Other members of the High Court of Justice (Kings Bench Division) hearing appeals from determinations of Tribunals under the Royal Warrant in accordance with the provisions of s.6(2) of the Pensions Appeal Tribunals Act 1943 have applied the cited principles as laid down by Denning J. (see for example, Jones -v- The Minister of Pensions (1946) 1 A.E.R. 312, 1 W.P.A.R. 79); Hobbs -v- The Minister (1948) 3 W.P.A.R. 1309; Ratcliffe -v- The Minister (1948) 3 W.P.A.R. 1665; Hubbard -v- The Minister (1948) 3 W.P.A.R. 1677; Carman -v- The Minister (1948) 3 W.P.A.R. 2081; Lyle -v- The Minister (1949) 4 W.P.A.R. 307 and Agnew & Hubbard -v- The Minister (1950) 4 W.P.A.R. 909.

In my view, where there is acceptable evidence that the failure to diagnose and treat an autogenous disease by operative treatment which, on the probabilities, would have cured the disease and prevented the normal or natural progression of the disease then it is open to a tribunal of fact to find that there has been aggravation of that disease within the meaning of s.29 of the Act.

If this is accepted then in my view it was open to the Tribunal to find that the cause of such failure to diagnose and treat in the present case was brought about by the circumstances that, at the time when such diagnosis and consequential treatment should have occurred, the deceased found himself at a place where proper and reasonable medical attention was not available to him. His presence in Vietnam at that time was brought about by his employment by the Commonwealth. The facts and circumstances of the particular case are such that, in my view, it was open to the Tribunal to determine that such employment by the Commonwealth was a contributing factor to such aggravation.

In this regard reference is made to Favelle Mort Limited -v- Murray (1974-5) 133 C.L.R. 180 where Barwick C.J. stated & 585-6 :

"Although the former statutory requirement that an injury should arise out of the employment as well as in its course is, in my opinion, more stringent in relation to the causation of the injury than the requirement that in the case of disease the employment should contribute to its contraction, the several expressions of their Lordships in Thom -v- Sinclair (1917) A.C. 127 are, in my opinion, quite apposite in resolving the present situation. I would respectfully agree with the views of Lord Haldane and Lord Shaw to which I now refer. Lord Haldane posed for himself the question "Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment . . . " (1917) A.C., at p.135. It is apparent from earlier passages in his Lordship's speech that it was the obligation of the employment to be at the particular place where the injury was received which brought the case within the scope of the formula "arising out of the employment" (1917) A.C., at pp.133-134. The mere chance that the employee was at that place in the course of his employment may be insufficient. Lord Shaw thought that if the nature, condition, obligations or incidents of the employment brought the workman within a zone of special danger, the words of the staute "arising out of the employment" would be satisfied (1917) A.C. at p.142.

Here, the area of special danger in the sense used by Lord Shaw was the place or area where the virus in fact entered the respondent's system. As I have said, it is nothing to the point that many others, members of the public, were there exposed to the risk of viral attack. Further, the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid.

If, therefore, the only basis upon which the respondent could succeed in an application for compensation is proof that his employment contributed to the contraction of meningo-encephalitis, I am prepared to dismiss this appeal upon the ground that, upon the findings of the learned Chairman, the respondent did receive an injury by contraction of a disease to which the employment was a contributing factor. Accordingly, the order made by the Supreme Court was, in my opinion, correct."

Further, to adopt the words of Barwick C.J. cited above the several expressions of their Lordships in Dover Navigation Company Limited -v- Isabella Craig (1940) A.C. 190 are, in my opinion, apposite in resolving the present situation. There a seaman, while serving on board the appellant's steamship, which called at West African ports, where he was specially exposed to the risk of infection from disease-bearing bacteria, contracted yellow fever and died. It was held that his death was due to an "accident arising out of his employment" and in respect of which his dependant was entitled to compensation under the Workmen's Compensation Act, 1925. I would respectfully agree with the views of Viscount Maugham and Lord Atkin to which I now refer. At (1940) A.C. 194-5 Viscount Maugham stated: "In the case now before us it is, I think, an irrelevant circumstance that the risk in question was a danger to which all persons in the same area were also subjected. For me it is sufficient that the unfortunate man Craig was especially exposed by reason of his employment to the risk of yellow fever. That is, I think, evidence of a sufficient causal relation to show that the fatal illness was an accident which arose out of his employment; and it is not ad rem to show that other persons, voluntarily or otherwise, ran the same risk.". Again at p.196-7 Lord Atkin stated: "In my opinion, this particular risk of injury by accident was inherent in the nature of the employment; it was necessarily incident to the performance of the sailor's work, phrases which are to be found in the judgment of Lord Finlay in Dennis v. A.J. White & Co. (1917) A.C. 479. I do not think that the case can be distinguished from the street risk cases of which that just cited is the leading case. As in those cases, it seems irrelevant that other persons are exposed to the same risk. As was said by Lord Parmoor in Thom v. Sinclair (1917) A.C. 127,145, cited by Lord Finlay in Dennis v. White & Co.:"The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment." For my part I find it difficult to conceive a risk more truly arising out of the employment than the risk incurred by the seaman who is sent to work in a fever-infested place abroad. Once establish the risk is one of "accident" and the connection between the employment and the accident seems to be clearly established. It seems as irrelevant that all other residents in the locality are subject to the same risk of accident as it is that all persons using the street are subject to the same risk as the servant employed to work in the street. In this particular case, however, the servant would never be exposed to the common risks of the locality but for his employment."

Again, in Favelle Mort's Case (supra.) Mason J., with whom Stephen J. agreed, & 597 stated:

"The appellant's submission that the second limb of par.(a) of the statutory definition (of "injury") is virtually synonymous with the concept of causation expressed by the words "arising out of the employment" was founded on observations made in Smith v. Australian Woollen Mills Ltd. (1933) 50 C.L.R. 504, at p.516, where the applicant fell against guard rails in the course of a fainting fit. Gavan Duffy C.J., Rich, Dixon, Evatt and McTiernan JJ. said:

"We think . . . the conclusion" (is required) "that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it."

These observations were taken to suggest some degree of correspondence between an injury to which the employment contributes and an injury which arises out of the employment and to reflect an approach similar to that taken by the House of Lords to the concept of injury "by accident arising out of his employment" - an expression appearing in similar legislation in the United Kingdom and elsewhere - in such cases as Thom v. Sinclair (1917) A.C. 127; Dennis v. A.J. White and Co. (1917) A.C. 479; Brooker v. Thomas Borthwick & Sons (Australasia) Ltd. (1933) A.C. 669, and Dover Navigation Co. Ltd. v. Craig (1940) A.C. 190. In these cases a distinction has been drawn between injury occasioned by contact physically with some part of the place where the worker works, when no further causal connexion with the employment need be shown, and injury occassioned by natural forces (with which the contraction of disease has been equated) in respect of which the worker cannot recover "unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury" (Brooker's Case per Lord Atkin (1933) A.C. at p.677).

The line of distinction hereby suggested is narrow, as Lord Atkin himself admitted (1933) A.C. at p.678. It is a distinction which flows from the necessity of attributing to the words "arising out of" a requirement additional to that signified by the words "in the course of", and one which, as is later indicated, signifies an association of the employment with the accident which "may be even closer than that of proximate cause" (1933) A.C. at p.679.

Although par.(a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words "in the course of", the requirement suggested by the words "to which the employment was a contributing factor" is not as stringent as that suggested by the concept "arising out of" the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury.

This construction of the definition is to be preferred to the appellant's suggestion that the language in par.(a) should be given a meaning identical with, or similar to the concept expressed by the words "arising out of". There is every reason for giving the statutory definition a different meaning, had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used."

Accordingly, consideration has to be given to grounds (1) and (2) of the grounds of appeal dated 21 April 1978; ground (f) of the grounds of appeal referred to in the Deputy Crown Solicitor's letter of 23 October 1978 and ground (d) of the grounds of appeal relied upon in the grounds of the present appeal.

The effect of such grounds, as I understand them, is that it is claimed by the Commonwealth that the respondent's application for compensation should have been dealt with under the 1930 Act because the determination of the Tribunal, being dependent upon the finding that there was aggravation of a disease as a result of the failure of the doctor at Vung Tau to carry out an internal examination of the deceased by instruments or other means together with its finding that any reasonably competent doctor would have carried out such an examination, presupposes that the symptoms of pain in and bleeding from the bowel were then "apparent" within the meaning of s.104(1) and (2) of the 1971 Act and that such symptoms would have continued to be apparent as the progressive worsening of the disease occurred in the latter part of 1970 and the first half of 1971.

Relevant parts of s.104 of the Act which was proclaimed to commence on 1 September 1971 (Gazette 1971 p.5496) read:

(1) subject to this part, this Act . . . applies in relation to an aggravation . . . of a disease suffered by an employee before the proclaimed date as it applies in relation to . . . an aggravation . . . of a disease suffered by an employee on or after that date.

(2) the last preceding sub-section does not entitle a person to receive compensation under this Act . . . . in respect of an aggravation . . . of a disease, symptoms of which first became apparent before (the proclaimed date) if compensation was not payable in respect of that aggravation as the case may be -

(a) in the case of . . . an aggravation of a disease, symptoms of which first became apparent, before the commencement of the Commonwealth Employees' Compensation Act 1930 - under the Commonwealth Workmen's Compensation Act 1912; or

(b) in any other case - under the Commonwealth Employees' Compensation Act 1930, or that Act as amended, as in force . . . . when . . . symptoms . . . of the aggravation . . . first became apparent.

In this regard the Tribunal stated at para.27 of its findings that

"27. (the Commonwealth's) argument that the 1930 Act applies is based on the premise that any aggravation or acceleration took place in 1970 at the time of the deceased's visit to the Army hospital at Vung Tau. I doubt whether this is the correct view. The cancerous condition continued to get worse from then until it was diagnosed by Dr. Stewart and operated upon in Melbourne. Thus the aggravation continued because it was not arrested in 1970 until 1974."

Again in para. 28 after referring to s.104 of the Act the Tribunal stated:

"It is therefore necessary to determine when the symptoms became apparent. The symptoms became apparent when diagnosed by Dr. Stewart on 4th August 1974. On my findins the symptoms were present but not apparent in 1970. They were not, it appears, apparent when the deceased was examined on 3rd July 1974. Clearly the symptoms first became apparent after the commencement of this Act. It follows that the claim falls to be determined under section 29 of this Act.

Davies J. after referring to submissions made in relation to this ground of appeal stated:

"However, argument before me proceeded on the footing and I am of the view that, for the purposes of ss.(2) of s.104 the claim was not made in respect of "an injury" but in respect of "an aggravation . . . of a disease". I am of the view that, in ss(2), the word "injury" carries its ordinary meaning rather than the deemed meaning attributed by s.29. Thus, attention must be given to the expression in ss(2) ". . . at the time when symptoms . . . of the aggravation . . . first became apparent . . .". The Tribunal took the view that the relevant symptoms became apparent when diagnosed by Dr. Stewart on 4 August 1974.

. . . . .

The symptoms which were apparent to Mr Johnston and for which he sought treatment in 1970 were symptoms of the cancerous or pre-cancerous condition. Specifically, Dr. Goulston said, "I have said that the symptoms are compatible, and I have been told that he continued to complain of these symptoms over three or four years, and the question was put to me was it probable they (the cancerous condition) were the reasons and I said yes". On this evidence, the symptoms of the disease were apparent in 1970, before the proclaimed date, though the presence of the disease itself was not preceived by either the examining doctor or Mr Johnston. However, the claim is made not "in respect of a disease" but "in respect of . . . an aggravation". Therefore, the relevant date is the date when symptoms of the aggravation first became apparent. This was not at the time of the examination in 1970 for it was the failure to detect the disease at that examination and subsequently which constituted the aggravation."

I agree with these observations of Davies J.

Section 104 of the 1971 Act is the first section of Part VII of that Act, the heading to which is "Transitional". Here again the section should, in my opinion, be construed beneficially. Irrespective of whether the word "apparent", where used in the expression "aggravation of a disease, symptoms of which first became apparent" is to be read objectively or subjectively, it should, in my view, be read to convey its ordinary meaning of being manifest; that is symptoms obvious not only to the eye but to the mind and understanding, suggesting the likelihood, in the present case, of an aggravation of the particular disease.

In 1970 the deceased as a result of symptoms of pain in and bleeding from the bowel sought medical advice. He was told he was suffering from haemorrhoids and given suppositories and ointment to use. Thereafter, and certainly up until after 1 September 1971, he continued to believe that he was suffering only from haemorroids and carried on with the recommended treatment. From the Tribunal's findings of primary facts it is a proper inference, and I so infer, that the symptoms of which the deceased complained in 1970 in Vietnam persisted thereafter and up until 1 September 1971. He did not understand such symptoms to be symptoms of either the cancerous disease or the aggravation of that disease. Further, there was no evidence that, the deceased attended for medical examination by any doctor or otherwise between his visit to the military hospital in Vietnam in 1970 and 1st September 1971 which would permit an inference to be drawn that symptoms of the disease or any aggravation thereof should have become apparent, within the meaning of s.104 of the Act, to doctors, nurses, sick-bay attendants or medical orderlies during that period.

Accordingly I am of the opinion that Davies J. did not err in law in holding that the Tribunal had correctly dealt with the claim under the 1971 Act.

Consequently, in all the circumstances, the appeal should be dismissed with costs.

JUDGE2

Andrew Scott Johnston died of cancer on 3 January 1975. He had been a leading seaman in the Royal Australian Navy for some years before his death. After his death, his mother (the respondent to this appeal) claimed compensation under s.43 of the Compensation (Australian Government Employees) Act 1971 (the Act). She was found to be partially dependent upon her son, and she was thus entitled to payment of compensation if his death resulted from an "injury" as defined by the Act.

The respondent's claim was determined against her in the first instance, but when her claim was referred to the Commonwealth Employees compensation Tribunal for reconsideration, the Tribunal set aside the determination and, pursuant to s.84(1)(c)(i) of the Act, made a determination in substitution for the determination so set aside. The Tribunal determined that:

"(a) the employment of the deceased by the Commonwealth contributed to the aggravation of his cancerous condition and the death of the deceased resulted therefrom; and

(b) at the date of the death of the deceased the claimant was partially dependent on him."

From this decision of the Tribunal, the Commonwealth instituted an appeal to the Federal Court of Australia pursuant to s.95. The appeal came on for hearing before Davies J. An appeal to the Federal Court from a Tribunal decision is not by way of rehearing: it is "on a question of law only", and the consequence of this limitation is that the facts of a case are to be taken on appeal to be the facts found by the Tribunal where the Tribunal has evidence to support its findings and has not misdirected itself in law in making those findings. The appeal for which the Act now provides is not an appeal upon fact as well as law, and it is to be distinguished from the appeal for which the Commonwealth Employees Compensation Act 1930-1971 provided (see s.20 and The Commonwealth v. Bourne (1960) 104 C.L.R. 32 at p.38).

Davies J. dismissed the appeal from the Tribunal's decision and this appeal to the Full Court is brought against his Honour's judgment. No objection was taken to the grounds of the appeal from the Tribunal or to the grounds of appeal from the judgment of Davies J. In each instance, the grounds merely assigned error in holding in favour of the respondent on the several elements of statutory entitlement to compensation - elements which involve questions of mixed fact and law. The appeal from the Tribunal's decision was instituted prior to 1 August 1979 when the provisions of 0.57 r.4(1) came into force. That sub-rule now provides:

"In an appeal under this Order, the notice of appeal shall state the question or questions of law raised on the appeal."

The utility of that sub-rule was illustrated in the present case when it emerged at the very end of the argument that, if the Court adopted a particular construction of the Act and a particular construction of the Tribunal's findings on an issue, the appellant would contend that there was no evidence to support the findings on that issue - a question of law to which scant attention had hitherto been paid in the course of the proceedings.

The relevant questions of law must be identified according to the findings of fact which the Tribunal made. The principal findings were expressed as follows:

"In 1970 the deceased was serving on HMAS Jeparit, a vessel which carried no medical officer and was operating to Vietnam. Between March and August of that year it is claimed that he went to an Army Hospital at Vung Tau in Vietnam seeking treatment for a condition which he believed was haemorrhoids. . . . On all the evidence, . . . I am satisfied, on the balance of probabilities, that the deceased did seek medical treatment for pain in his bowel region at Vung Tau in 1970 for what he was told were haemorrhoids. . . .

. . .

Dr. Stewart a general practitioner at Flinders Island, diagnosed the cancer on 4th August 1974 during HMAS Ardent's Tasmanian cruise. . . .

. . .

The medical witnesses are in agreement to the fact that the proper practice when examining a person suspected of haemorrhoids is to use an instrument to look around to see if there is anything else in the rectal area. It is not in issue that a malignant cancer can be treated if this is done sufficiently early or that 1970 would have been sufficiently early.

When the deceased was examined by Dr. Moffitt in 1974 superficial haemorrhoids were found. Dr. Stewart makes no mention of haemorrhoids. The deceased complained of pain in the bowel region continuously since 1970. It seems reasonable to relate that to the developing cancerous condition which in fact was found rather than to a superficial condition of haemorrhoids and that as pain was present the cause of that pain would have been detectable. With this background I accept the evidence of Dr. Goulston that the condition could have been detected in 1970 and I so find.

. . .

The deceased's father died of the same disease. It is a rare form of cancer which is much more common among those who have a family history of it. The employment by the Commonwealth was not a contributing factor to its contraction. It was not a contributing factor to its recurrence. The question is whether it was a contributing factor to its aggravation or acceleration.

In 1970 servicemen were expected to obtain their medical treatment from service doctors. The employment put him in Vietnam when pain in the bowel caused him to seek medical advice. He would have been in breach of naval regulations had he not done this. He followed the advice given for the succeeding years it seems until presenting for haemorrhoids again in August 1974. While the claimant was in Vietnam no other advice was available.

A normal medical examination should have revealed the developing cancerous condition in 1970. This could have been operated upon and, on the balance of probabilities, prevented the aggravation which took place in the absence of such treatment. Looked at in this light had the claimant not been in the employment the aggravation of his cancerous condition which took place subsequent to his visit to the medical officer in 1970 would not have taken place. If that is so it seems to follow that the employment contributed to the aggravation."

The findings in the concluding paragraph are not mere findings of fact. They are findings of mixed fact and law echoing the terms in which the statute expresses the conditions upon which an entitlement to compensation depends. The conditions of entitlement under the Act are different from the conditions expressed in some earlier and other Workers Compensation Acts, and cases which have been decided on earlier and other Acts must be applied to the present statute with caution. Statutory formulae of entitlement have varied from time to time and from place to place, and the effect of variations in statutory language cannot be diminished by assuming that the variations are moulded to reproduce or to approximate to a principle judicially established with reference to a different statutory provision. (cf. Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 C.L.R. 482 at pp. 496, 517).

Under s.43 of the Act, compensation is payable "where an injury to an employee results in the death of the employee". By the definition of "injury" in s.5(1), however, neither a disease nor an aggravation of a disease is within the meaning of that term. The exclusion of disease and aggravation of disease from the definition of injury in s.5(1) is subject, however, to s.29. That section specifies the conditions under which the contraction of a disease or its aggravation, acceleration or recurrence is deemed to be a personal injury to the employee arising out of his employment by the Commonwealth:

"29. (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;

. . . . .

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, . . . 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;"

In this case, it was conceded that the contraction of the cancerous disease was unrelated to the deceased's employment, and that s.29 did not deem the contraction of the disease to be an injury for the purposes of s.43. But it was contended - and the contention was upheld first by the Tribunal and then by Davies J. - that there had been an aggravation of the cancerous disease which fell within s.29 and which was accordingly deemed to be an "injury" for the purposes of s.43. Both ss.29 and 43 require that the death of the employee be the "result" of the morbid condition which is said to constitute the relevant "aggravation" or "injury".

The required nexus between a morbid condition and death is defined by s.5(11) of the Act. It provides, inter alia, that where an employee has suffered from a disease or an aggravation, acceleration or recurrence of a disease, his death shall be taken to have resulted from the disease, aggravation, acceleration or recurrence if the disease, aggravation, acceleration or recurrence "contributed to the death". And s.31(3) provides that if the death of an employee would have taken place at a significantly later time but for the disease, aggravation, acceleration or recurrence, the relevant morbid condition is to be taken to have contributed to the employee's death.

Accordingly, where the aggravation of a disease is shown to have contributed to the death of an employee, or where the progress of a fatal disease is shown to have been accelerated so that the time of his death is significantly advanced, the required nexus between a relevant morbid condition (i.e. between an aggravation or acceleration of a disease) and the death is established.

In the present case, it is common ground that the death of the deceased was caused by the cancer, an autogenous disease, taking its natural and fatal course, unimpeded by timely treatment. There was no external stimulus which exacerbated the disease or which accelerated its progress to its fatal conclusion. There was nothing which aggravated the disease, in the sense of making the disease graver than its natural progress ordained, and nothing which accelerated the disease. The appellant accordingly submits that there is nothing which can be identified as a morbid condition supervening upon the disease itself and contributing to the death of the deceased.

But counsel for the respondent submitted that "aggravation" includes a simple worsening of the disease, and he relied upon a meaning of the term, to be found in the Oxford Dictionary:

"A making heavier, graver, or more heinous; the fact of being increased in gravity or seriousness."

It was submitted that the second of these meanings made it unnecessary for a claimant, seeking to rely upon an "aggravation" of a disease, to establish that the disease had been made worse by some external cause: it was sufficient merely to show an aggravation in the sense that the disease had grown worse, that is, it had progressed to a worsened stage. The growing worse of the disease contributed to the employee's death, so the argument ran, and as the disease grew worse because the service doctor in Vung Tau failed to diagnose and eradicate the cancer in its early stages, it is right to attribute the "aggravation" to that failure and hence to the employment of the deceased.

Was it the aggravation or acceleration of a pre-existing disease? It seems to me that it cannot be said that it was. 'Aggravation' means, I think, that an existing disease has been made worse, not that it has simply become worse. 'Acceleration' I have previously said and venture to repeat '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': Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 CLR 626 at pp.639-640. To this view I adhere. . . . The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury."

Mr Coombs Q.C., who appeared with Mr Williams for the respondent, submitted that the employee's death resulted from an "aggravation" of the disease which consisted of "a worsening in the seriousness or gravity of the deceased's condition" which occurred as part of the ordinary course of the disease without treatment during the period between the examination at the army hospital in Vietnam in 1970 and his death on 3 January 1975. In this connection Mr Coombs submitted that the "normal progress of a disease" meant "the normal progress of the disease under treatment" as distinct from the "natural" progression of the disease without medical treatment. He submitted that the word "aggravation" in s.29 of the Act includes both a case where the disease has been made worse and also a worsening of the employee's condition as the disease followed its ordinary course without medical treatment. He relied upon the following definition from the Oxford Dictionary:

"It is said that the deceased suffered a new physical injury, namely, the pulmonary oedema, after the commencement of the Amendment Act; and that of this injury he died. . . . In truth, as I shall point out, both these submissions involve the proposition that the employment contributed to the oedema, regarded either as itself a disease as defined, or as an aggravation or acceleration of such a disease.

I am unable to accept either of these submissions. As I read the agreed facts, the oedema was but a phase of the aggravated or accelerated cardiac disease: that is to say, it was a manifestation of the injury received in February 1965, and indeed part of it, so much so that the causation of death by that injury was an unbroken chain.

The oedema was not, in my opinion, a physical injury within the opening words of the new definition of injury properly construed. It was, as the agreed facts require us to assume, a physiological change for the worse. Its sudden and unexpected character is of no significance, for we are not here concerned with the accidental quality of an injury and the definition of disease applies equally to gradual as to sudden development. It was autogenous in the sense that nothing but the accelerated disease of which it was a manifestation caused it to occur, either at the time it did or at all: as I have said, it was no more than a phase in that accelerated disease. . . . If the employment must contribute to disease for it to be an injury, quite clearly autogenous changes in the course of a disease cannot in themselves be injuries, whether or not the disease is itself a compensable injury."

The Act confers rights to compensation where death results either from the disease or from the aggravation of the disease - provided that the employment by the Commonwealth was a contributing factor to the contraction of the disease in the one case or to its aggravation in the other. In the present case there was no evidence that the employment by the Commonwealth was a contributing factor to the contraction of the disease; nor was there evidence that it was a contributing factor to the aggravation or acceleration of the disease in the sense that the ordinary course of the disease had been aggravated or accelerated.

As to the decisions of Denning J. (as he then was) sitting as a nominated judge of the High Court in respect of appeals by widows, who had applied for pensions under the Royal Warrant, I agree with my brother Brennan that this Court should not apply his Lordship's reasoning, which was expressed in a different statutory context.