Commonwealth of Australia v Whillock
[1983] FCA 183
•24 JUNE 1983
And: REGINA BETON WHILLOCK (1983) 70 FLR 292
No. G94 of 1982
Workers' Compensation
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), St. John(2) and Northrop(3) JJ.
Workers' Compensation - compensation of Commonwealth Government employee - death due to heart failure - Workman suffering from coronary artery disease - whether thrombosis or myocardial necrosis supervening on coronary artery disease is an "injury" within s.27 of Compensation (Commonwealth Government Employees) Act 1971 - whether thrombosis or myocardial necrosis if an aggravation of the disease is an injury within s.27 when occurring in circumstances referred to in s.29 of the Act.
Compensation (Commonwealth Government Employees) Act 1971 ss.27 and 29.
Workers Compensation - Compensation of Commonwealth employee - Death due to heart failure - Employees suffering from coronary artery disease - Whether thrombosis or myocardial necrosis supervening on coronary artery disease is an "injury" within s. 27 of the Compensation (Commonwealth Government Employees) Act 1971 - Whether thrombosis or myocardial necrosis if an aggravation of the disease is an injury within s. 27 when occurring in circumstances referred to in s. 29 of the Act - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 43(1).
W., a Chief Petty Officer in the Royal Australian Navy, died from a myocardial infarction caused by an occlusion of his right coronary artery by a thrombus of recent origin. The occlusion prevented the flow of blood to his heart muscle and caused its necrosis. The thrombus was caused by a reaction on his blood passing through degenerate blood vessels which were diseased by atheroma. Upon a claim by his widow for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), the Workers' Compensation Commission of New South Wales (the Commission) found that W's death was the result of injury arising out of or in the course of the employment of W. by the Commonwealth within s. 27(1) of the Act and set aside the determination of the delegate of the Commissioner for Employees' Compensation refusing compensation. On appeal:
Held, per Smithers and St John JJ. - (1) An event which is but a step in the progress of a disease is a disease, but is only an injury for the purposes of s. 27(1) of the Act if the employment of the employee contributed to it. Ogden Industries Pty Ltd v. Lucas (1967) 116 C.L.R. 537; Darling Island Stevedoring and Lighterage Co. Ltd v. Hussey (1959) 102 C.L.R. 482; Commonwealth v. Butler (1958) 102 C.L.R. 465, referred to.
(2) The thrombus, the occlusion and the myocardial necrosis were part of an incidence of aggravation of a pre-existing coronary artery disease.
(3) The Commission had not, but should have, decided whether the employment of W. was a contributing factor to the aggravation of that disease within s. 27(1) of the Compensation (Commonwealth Government Employees) Act 1971.
(4) Appeal allowed; matter remitted to the Commission for reconsideration.
Per Northrop J., dissenting, - (5) In its normal meaning, the word "injury" is apt to describe a discrete event occurring in the course of the progression of a disease and the occlusion followed by the necrosis or death of the heart muscle of W. could each be described as an injury within the meaning of s. 27(1) of the Compensation (Commonwealth Government Employees) Act 1971 and it was open to the Commission in fact and law to find that the death of W. resulted from those injuries.
Hume Steel Ltd v. Peart (1947) 75 C.L.R. 242, applied.
(6) It had been established that the injury was caused to the deceased while he was performing the duties of his employment or was doing something which was incidental to the performance of his duties.
Kavanagh v. Commonwealth (1960) 103 C.L.R. 547, applied.
Sydney, 1983, February 18; April 15; June 24. #DATE 24:6:1983
APPEAL.
Appeal pursuant to s. 95(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) from a decision of the Workers' Compensation Commission of New South Wales.
R. Burbidge Q.C. and P. E. Blackett, for the applicant.
J. Burchett Q.C. and A. F. Puckeridge, for the respondent.
Cur. adv. vult.
Solicitors for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.
Solicitors for the respondent: T. D. Kelly & Co.
T.J.G.
(a) In respect of the appeal herein,
(i) That the appeal be allowed.
(ii) That the decision of the Workers' Compensation Commission of New South Wales of 7 May 1982 be set aside.
(iii) That the matter be remitted to the Workers' Compensation Commission of New South Wales for re-determination in accordance with the directions of the Federal Court of Australia to consider the matter in relation to s.29 of the Compensation (Commonwealth Government Employees) Act 1971 and the applicability of that section to the provisions of s.27(1) thereof.
(iv) That the question of costs be reserved.
(b) In respect of the cross appeal herein,
the Court reserves the costs thereof but having regard to the nature of the orders in the appeal herein it otherwise makes no order.
Orders accordingly.
Chief Petty Officer Robert John Whillock, an employee of the Commonwealth died on 8 May 1977. His widow, Regina Beton Whillock claimed compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the Act) in respect of his death. The claim was rejected by the delegate of the Commissioner for Employees' Compensation who made a determination that the death was not the result of personal injury arising out of or in the course of the employment of the deceased, and also, was not the result of the contraction of a disease or the aggravation, acceleration or recurrence of a pre-existing or underlying disease to which his employment contributed.
Upon appeal to the Workers' Compensation Commission of New South Wales, a prescribed Court pursuant to s.94 of the Act, the learned Commissioner made a finding that the death was the result of injury arising out of or in the course of the employment of the deceased by the Commonwealth. He set aside the determination of the Delegate and remitted the matter to him with that expression of "opinion" that the deceased had died as the result of personal injury and that the injury caused to him arose out of or in the course of his employment.
The circumstances of the death of Chief Petty Officer Whillock were set out by the learned Commissioner as follows:-
"The deceased was at the time of his death a Chief Petty Officer in the Royal Australian Navy. He was at that time serving upon Her Majesty's Australian ship, "Stalwart" and living in accommodation provided by the Navy at East Hills.
His appointment to "Stalwart" was as a Chief Petty Officer Medical and that appointment required him to man the sick bay on the ship. In May 1977 "Stalwart" was in dry dock at Cockatoo Island Dockyard.
On Sunday, 8 May 1977 whilst at his home, the deceased complained of low back pain which was of sufficient intensity to cause him to contact the Naval Hospital at Balmoral and, in due course, to present himself there for examination and such treatment as may have been prescribed. He was taken from East Hills to Balmoral in a Naval ambulance and was examined by Dr. Virant who prescribed an anti-inflammatory drug and suggested to him that he absent himself from work at least, in the first instance, for a period of a couple of days or so.
The deceased was, for whatever reason, reluctant to accept the advice of Dr. Virant and instead was transported from Balmoral to Cockatoo Island, initially by road and then by boat. He boarded his ship by means of a gang plank which probably was on a level plane and then ascended one flight of stairs in order to get to the Petty Officer's mess. It would seem that whilst in the Petty Officer's mess he was still suffering pain and discomfort in his low back which was not relieved by the medication which had been prescribed nor by his changing posture. As a consequence, he attended the sick bay on board the ship which necessitated his ascending a further flight of steps. The two flights of steps were probably not more than eleven each in number. From the sick bay the course of events which then occurred was that the deceased began the process of disembarking, in fact disembarked, was placed in a launch for the purpose of being removed to hospital but whilst in the launch he died.
A post-mortem examination was conducted and there seems to be no dispute that the cause of his death was a myocardial infarction caused by an occlusion of his right coronary artery by a thrombus which the examiner thought to be of recent origin."
The precise terms of the coronial finding as to the cause of death was as follows:-
"4. In my opinion death had taken place about hours and the cause of death was:-
I DIRECT CAUSE - )
)Disease or condition ) (a) MYOCARDIAL FIBROSIS
directly leading to death ) . . .
ANTECEDENT CAUSES ) (b) SEVERE CORONARY ARTERY
) ATHEROMA"The learned Commissioner continued:-
". . . The post-mortem examination revealed the presence of a recent thrombus which occluded his right coronary artery. That occlusion prevented the flow of blood to his heart muscle and caused its necrosis. There was a pathological change brought about to a vital organ of his body. That event, in my view, constituted an injury. It may well be said that the thrombus was caused by a reaction on his blood passing through degenerate blood vessels which were diseased. That that is so, in my view, is probably correct. That is to say, he suffered from cardio-vascular disease but nevertheless the effect of the thrombus forming and causing an occlusion brought about physical consequences to his myocardium and damaged it. That, as I have said, in my view constitutes an injury."
This finding is challenged by the appellant. It is argued that within the meaning of the Act neither the thrombus nor the necrosis of the heart muscle was an injury from which the death resulted. It is said that the death resulted from a disease. It is added, but not for decision by this Court, that neither that disease nor any aggravation, acceleration or recurrence thereof was a happening to which any employment of the deceased by the Commonwealth contributed.
Under s.27(1) of the Act the Commonwealth is liable to pay compensation in respect of an injury "arising out of or in the course of" his employment as an employee of the Commonwealth. The extent of that liability is to pay compensation "in accordance with this Act".
Under various provisions, including ss.39, 43, 45 and 46, provision is made for compensation to be paid to employees who suffer bodily or mental incapacity of various specified kinds, including death, as a result of injury. In each case the relevant provision is introduced by a phrase such as "where the injury results in" the particular incapacity. Thus, it is provided by s.43(1) "Where an injury to an employee results in the death of the employee . . . "; s.45(1) "Where an injury to an employee results in the employee being totally incapacitated for work . . . ".
The liability of the Commonwealth under s.27 is imposed only in respect of personal injury which "is caused" to the employee. It was pointed out by Menzies J. in Kavanagh v. The Commonwealth (1959) 103 C.L.R. 547 that the notion that the words "is caused" as used in the Act import a causal connection was rejected in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) A.C. 1. He pointed out also that the word "arising" means no more than "happening". At p.572 of Kavanagh's Case (supra) Menzies J. said "if a worker is injured while doing something incidental to what he is employed to do, that is sufficient and no other association between the injury and the work is necessary."
The expression "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 s.29 does not include a disease or the aggravation, acceleration or recurrence of a disease." Section 29 provides that in cases where "an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and any employment of the employee by the Commonwealth was a contributing factor to the contraction, 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", then the provisions of sub-section 2 of s.29 apply. By para (f) of that sub-section it is provided, inter alia, that if the death of the employee "results from the disease, or from the aggravation, acceleration or recurrence thereof, then, for the purpose of the Act unless the contrary intention appears the contraction of the disease, or the aggravation 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." Accordingly, in circumstances where death of a Commonwealth employee results from the contraction of a disease or from the aggravation of such a disease and his employment by the Commonwealth was a contributing factor thereto, that contraction or aggravation shall be deemed to be not only a personal injury but a personal injury arising out of the employment.
Accordingly, in respect of death of an employee and certain other disabilities suffered by him as the result of an injury as defined in s.5 of the Act the Commonwealth is liable to pay compensation provided the injury was one arising out of or in the course of the employment. Also, if the employee's claim is made on the basis that he died as a result of a disease or the aggravation of a disease the Commonwealth is liable to pay compensation as though he had suffered an injury, provided that it is established that "any employment" by the Commonwealth of the employee was a contributing factor to the contraction or aggravation of the disease. Herein I use the expression "aggravation" as importing aggravation, acceleration or recurrence of a disease.
In Mr. Whillock's case the respondent's main submission is that the injury from which his death resulted was the thrombus in the relevant artery. Secondly, reliance is placed upon the necrosis of the heart muscle. As a result of each of these happenings, it is said, the bodily processes necessary to sustain life, in particular, the life of the brain, came to a standstill and he died.
It is said the critical injury was the coagulation of blood forming itself into a clot and blocking the passage of blood through the coronary artery so that the heart muscle suffered necrosis by reason merely of the reduction of the blood supply or such reduction combined with some exertion of the heart muscle. It is conceded that the thickening and roughening of the walls of the artery occurred as part of the progression of a disease known as atheroma of the coronary artery and that it had preceded the formation of the clot and was a pre-condition of that happening. Also the Commissioner so found.
It is to be observed that the deceased had been suffering for some time from a disease of the arteries, in the course of which the coronary artery became thickened and somewhat roughened on the interior surface. Had that not been the case it is improbable that the blood would have formed a clot and thereby impeded that passage of blood through the artery. The probabilities are that there would have been a sufficiently large and free opening through the artery to permit the passage of adequate blood to enable the cardiac muscle to do the work it was required to do.
It is apparent therefore that the finding of the Commissioner that the deceased died from injury will support his conclusion that the respondent was entitled to compensation if it is understood as referring to an injury which was not a disease. The Commissioner said that in view of his finding the applicant was entitled to compensation pursuant to s.27(1). That sub-section creates an entitlement, in certain conditions, where personal injury is caused to an employee. But if the injury be a disease it is an injury within the meaning of s.27(1) only if some employment by the Commonwealth contributed to its contraction or aggravation. The learned Commissioner did not consider whether the employment by the Commonwealth contributed to the thrombus or myocardial infarction or any other aspect of the condition of the deceased. He made no finding with respect to that subject. He did not need to because if the relevant event was as he found it to be, an injury not being a disease, and occurred whilst the deceased was in the course of his employment, that was enough. Clearly, he regarded the injury which he identified as the cause of death, namely the thrombus or the myocardial necrosis as something other than a disease. The respondent supports this.
But of course the deceased was at all material times a sufferer from a disease with progressive tendencies and which was relevant to the occurrence of the thrombus and occlusion and the myocardial necrosis and the subsequent events causing death of the brain and thus the death of the deceased. In fact the disease was the cause of these events whether or not they be classified as a disease or part of the disease. The real question before the Commissioner was whether the death resulted from the disease or from a physical injury, considered as not part of the disease. Of course the thrombus, the occlusion and the myocardial necrosis were injuries in the sense that they caused harm. Also each was an incident of physical degeneration precedent to the myocardial necrosis which led to the ultimate death. So in a sense was the narrowing of the artery itself. To say that each of these was an injury does not assist. To support the reasoning of the Commissioner the injury or injuries he regarded as critical is not significant until it is decided that they were not the result of disease.
Whether they were diseases or not may be a difficult question because the definition of disease in s.5 of the Act embraces a wide collection of ailments. The Commissioner said that the injuries which he identified were not incidents of a disease but no reasons for so deciding were given. If the matter is at this stage approached on the basis that they were not, there is a serious question whether in relation to the enquiry posed in s.43(1) of the Act, namely, "from what was it that the death of the deceased resulted" the answer should not be the atheroma which narrowed the artery. The meaning of that question itself depends on the sense in which, in the context of the Act, it is posed. And this particular aspect of the problem is discussed in the observations of Kitto J. in Ogden's Case hereafter referred to.
In Hume Steel Ltd. v. Peart (1947) 75 C.L.R. 242 at p.256 Dixon J. (as he then was) said,
". . . it has never been doubted that disease may amount to an injury. Thus in Innes or Grant v. G. & G. Kynoch (1919) A.C. 765, at p.797 Lord Wrenbury said, 'The man suffered personal injury, for he contracted a disease and it resulted in his death.' He had said the same in the Court of Appeal in Martin v. Manchester Corporation (1912) 106 L.T. 741, at p.742. 'Contraction of a disease is an injury; that injury may or may not be by accident.' Again, in Walker v. Bairds and Dalmellington Ltd. (1935) 153 L.T. 322, at p.326 Lord Tomlin, speaking of a chill to a workman involving bronchopneumonia, said, 'the disease which was the injury was in these circumstances the result of accident.'"
And of course the definition of "injury" in s.5 of the Act reflects these expressions. It proceeds on the basis that disease may, in the ordinary meaning of the word be an injury, but for the purposes of definition, it excludes from the meaning of injury, an injury which is a disease. Accordingly, if the thrombus be a disease it is excluded from references in the Act to "injury" unless the contrary intention appears. A contrary intention does appear in s.29, but only where the employment contributes to the contraction or aggravation of the disease.
It is necessary to enquire therefore as to whether the thrombus, or perhaps the necrosis of the heart muscle was a disease. If it were, the conclusion of the Commissioner cannot be sustained. It was said by Latham C.J. in Peart's Case (supra) at pp.252 - 253:-
"Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury.
There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury."
But it would seem that such "injuries" may be considered to be diseases. Thus in Ogden Industries Pty. Ltd. v. Lucas (1967) 116 C.L.R. 537 the issue concerned an employee who suffered a pulmonary oedema supervening upon an earlier coronary occlusion. The relevant statutory definition of injury Workers' Compensation (Amendment) Act 1965 (Victoria) was mental or physical injury . . . including "(a) a disease contracted . . . in the course of employment . . . and (b) the recurrence, aggravation or acceleration" thereof. Barwick C.J. said (p.557) "It is said that the deceased suffered a new physical injury, namely the pulmonary oedema after the commencement of the amendment Act and of this injury he died . . . As I read the agreed facts, the oedema was but a phase of the aggravated or accelerated cardiac disease; that that is to say it was the 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." In the same case Windeyer J. said at p.592-593:-
"It is I consider a false idea of cause and consequence - false that is for present purposes - to isolate a particular pathological condition or episode occurring in the course of the progress of a disease; and then, because it is the condition existing at the point of death, or is an episode which immediately precedes death, to say that from it death results. I have at other times stated my views on this topic. As I have seen no reason to change them I shall not enlarge upon the matter here, merely refer to what I wrote in The Commonwealth v. Butler (1958) 102 C.L.R. 465 at pp.479, 480. Turning to the reference to "a sudden physiological change for the worse": this seems to have become an almost hallowed phrase in workers' compensation law. But neither its meaning nor its proper application has been made clear by the manner of its use here. When the words "injury by accident" were in the Act it served a purpose for the interpretation of that composite expression. But the word "accident" does not appear now. As the Act now stands two things at least can be said. One is that the words "physiological change for the worse" do not appear in the Act. The other is that they are not a synonym for injury. A physiological change for the worse means, I suppose, the occurrence of some pathological condition, or the appearance of some symptom or manifestion of a pathological condition. It is not, I take it, a description aptly applicable to anatomical injuries, such as broken bones and cut fingers, and I imagine it would not be aptly applied in functional disorders of the mind - at all events according to the present use of words and the present knowledge of metabolism as affecting mental processes. Whatever application it has must therefore be in relation to the inclusion of diseases in the definition of injury. I have on other occasions discussed some of the difficulties inherent in these words "sudden physiological change" and I shall not go over the same ground again : see Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 C.L.R. 482, at p.520; The Commonwealth v. Hornsby (1960) 103 C.L.R. 588, at p.608.
The proposition that the oedema was an injury, depends not on any descriptive phrase derived from judgments in other cases, but on the definition of injury in the amending Act, which had come into operation on 1st July 1965, some days before the oedema occurred. It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. 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."
In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (supra) at p.500 Fullagar J. spoke in accordance with these views. In particular he disagreed with the view expressed by Jordan C.J. in Kellaway v. Broken Hill South Ltd. (1944) 44 S.R. (N.S.W.) 210 at p.216 concerning the situation where there is an acceleration of a disease. In that case the learned Chief Justice said:-
"If, however, whilst (the workman) is in the course of his employment, the progress of the disease is accelerated or its severity accentuated, by the conditions of the employment, and disability results, he is entitled to receive compensation . . . In (this) type of case the disabling stage of the disease is contracted in the course of the employment and its occurrence is contributed to by the employment."
The statutory provision in Kellaway's Case did not define injury or disease as including aggravation or acceleration thereof. But the significance of what was said is that the learned Chief Justice treated "the disabling stage of the disease" as a new disease. In the Darling Island Case (supra) pp.505 and 506 Fullagar J. said:-
". . . it is established that cases of the death of a worker from disease fall within that part of the statutory definition of "injury" which deals with diseases, and compensation is not recoverable unless the disease possesses the characteristics prescribed by that definition. It follows that the dependants of a worker who has died from a disease are not entitled to compensation unless the disease was contracted in the course of his employment or of a periodic journey, and the employment or the journey was a contributing factor to the contracting of it . . .
If it were permissible to ignore that part of the definition of "injury" which deals with diseases, it would be permissible to say that the physiological event of the blocking of an artery, if some exertion on the part of the worker had contributed to it, was within an artificial but established meaning of the term "injury". This was done in Peart's Case (1947) 47 S.R. (N.S.W.) 384. But since Slazengers' Case (1951) A.C. 13; (1950) 51 S.R. (N.S.W.) 1 it is no longer permissible to reason in this way, and Peart's Case must, in my opinion, be regarded as overruled. A case where the immediate cause of death is a coronary occlusion is unquestionably a death from disease.
. . .
Cases of coronary occlusion may perhaps be regarded as possessing peculiar features. But in those cases it is wrong, in my opinion, to regard the coronary occlusion as itself the relevant "disease". The disease is the atheroma or sclerosis or other morbid cardiac or vascular condition which culminated in the occlusion. The view expressed in the second proposition of Jordan C.J. can only be reached by saying that there is a "contracting" of a disease within the meaning of the definition if the work (or the journey) has accelerated, or contributed to, the reaching of the final stage of a pre-existing "non-employment" disease. This involves much more than the adoption of a somewhat artifical extension of the ordinary conception of "contracting" in relation to a disease. It seems to me to involve an actual misuse of language. One normally speaks of a patient as contracting a particular disease - not of his contracting an infinite series of stages of a particular disease. The extension involved is very much more drastic than that which is involved in saying that to suffer the blocking of an artery is to suffer an injury, and to my mind it is inadmissible."
It may be that in respect of each stage of a disease it is possible to say that from it, subsequent stages thereof, and ultimatley death itself, resulted. In such cases there is no more logic in choosing any one or any combination of those sequelae in preference to the atheroma itself. And the respondent cannot show that death was a result of injury excluding the atheroma. If death was the result of all that occurred including the atheroma it is difficult to find a reason for excluding the atheroma as an event from which death resulted. All this suggests that the attempt to link the death exclusively with any one of the events or combination of events following the atheroma, is unsound. And it is in this connection that the foregoing judicial comments are significant. They indicate that an event which is but a step in the progress of a disease is a disease. It is also an injury in the ordinary sense of that word but if it is an injury which is a disease then it is only an injury for the purposes of s.27(1) of the Act if the employment contributed to it. Of course under the present definition of disease a work contributed aggravation or acceleration of a disease is an injury within the meaning of s.27(1). This conclusion would seem to be supported by the decision in The Commonwealth v. Butler (1958) 102 C.L.R. 465 at p.479 where it was pointed out that to give an affirmative answer to the question whether a disability "resulted from" a particular event it is not sufficient that that event may have "contributed to" the disability Windeyer J. said:-
"In the search for some grounds for isolating a particular event from the totality of circumstances preceding a later event, various adjectives such as "direct", "proximate", "decisive", "immediate", "effective" and "real," have been pressed into service to qualify "cause". From these there is an easy drift to such term as "material contributing factor". But such formulae do not really dispel the difficulty; and they become especially unsatisfying when death is the alleged consequential event. As death sooner or later is inevitable for every man, it is impossible to ask the question - which in relation to other matters may be helpful, although not decisive - namely, whether the alleged consequence would necessarily occur at all without the happening of the earlier event to which it is sought to attribute it. Moreover, in relation to death, words such as "proximate" and "direct", as tests for choosing some one link in a chain of causation, introduce a special difficulty, For at the point of death ultimate cause and consequence tend to become indistinguishable. It is, for example, easy to say that a man's death resulted from a gunshot wound. In such a case a criminal jury might properly say that death was the result of a felonious act; yet a physician would equally properly say that the wound caused loss of blood, and that the death resulted from loss of blood. And the inquiry could be pushed a stage further by saying that the loss of blood operated to produce a fatal syncope. It is for this reason that the manner or method by which some particular injury actually operates in relation to the circulatory, respiratory or nervous system may for a physician constitute the proximate cause of death. For example, in Taylor on Medical Jurisprudence asphyxia is spoken of as the "actual disease" of death by strangulation; and there are in that work many other illustrations of physiological mechanisms, which brought into operation by various events, end in death, being treated as its cause.
A coronary occlusion results in death when it causes such a degree of infarction that the heart ceases to function. Is the occlusion, the infarction or the cessation of the heart-beat the proximate cause of death? In the last analysis it is death itself that slits the thin-spun life.
Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely "did death result from the occlusion", be inverted to be "was the occlusion the cause of death". The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as "contributing factor", which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses."
Finally it is necessary to consider the observations of Kitto J. in Ogden's Case (supra) at pp.569, 570, namely:-
"These considerations seem to me to entitle the respondent to succeed, provided that the crucial step be taken of holding that the Act intends a physical disorder which comes into existence merely as a stage in the development of a larger disorder to be considered separately for the purpose of applying the definition of "disease" and the provision of ss.5(1) and 9(1). For my part, though I confess to having wavered on the point, I think that to take that step would be to introduce into the scheme of the Act a conception so artificial and so removed from the common sense of the matter that compelling words should be required before accepting it. I find no such compelling words. In the present case the mutual admissions are not fairly susceptible, I think, of any other meaning than that what was caused to the worker in his employment was an aggravation and acceleration of the single disorder of coronary artery disease and myocardial degeneration. That was a progressive disorder, and of course the aggravation or acceleration of it was an aggravation or acceleration of every successive manifestation of it; but there was no aggravation or acceleration of oedema save as part of the progressive condition; and the operation of the Act, according to what I think is the sounder construction, is exhausted when its provisions have been applied in respect of the disease consisting of the progressive disorder as a whole."
I would respectfully accept what his Honour said as quite critical in this case. I would link these observations with those of Windeyer J. quoted above. The enquiry posed by s.41 and other sections of the Act relates to disabilities resulting from injuries or diseases in the context of a health-employment relationship between parties. When, with respect to an event for example death, the question is posed whether that event resulted from a particular bodily occurrence, the question is not really answered by isolation one event in a chain of causation, albeit itself constituting an injury, and to say the event resulted from that injury. Really, it did not, if that injury was itself the result of a previous injury or the progress of an existing disease. In the sense relevant to the context in which the question is asked the only injury which resulted in the disability was that which transformed the employee's body from a healthy body able to work to one in which by reason of development of that initial injury or disease the ultimate disability would or did result. The intermediate bodily "injuries" were not those from which the break in employment resulted. The health employment nexus which is the subject matter of the Act sets the environment in which the questions posed in ss.43, 45 and other similar sections speak. In that environment the answer, to the relevant question, cannot as a matter of logic exclude his atheroma.
Of course once identified as aggravations of a previously existing disease each of the thrombus, the occlusion and the myociardial necrosis, operates as an injury in its own right, so to speak, but only if the aggravation was contributed to by the employment. The same is true of the disease itself. It is my view that had the Commissioner approached the problem on the basis that the thrombus, the occlusion or the myocardial necrosis, were incidents of aggravation of a pre-existing coronary artery disease and that death resulted from such aggravation of the disease such approach would have been supported by the evidence. On that basis the question would have arisen as to whether any employment of the deceased by the Commonwealth was a contributing factor to the aggravation of the disease. The Commissioner did not deal with this question. It is for him to decide on reconsideration pursuant to the order of the Court. If he had dealt with the question at the hearing and had answered it in the affirmative there was evidence before him on which such a finding might have been made. Upon such a finding the aggravation of the disease would constitute an injury arising out of the employment of the deceased within the meaning of s. 27 (1) of the Act.
Accordingly the appeal should be allowed and in accordance with s. 95 of the Act the matter should be remitted to the Workers' Compensation Commission of New South Wales for reconsideration of the matter on the basis that the thrombus, the occlusion and the necrosis constituted part of a disease, namely coronary artery disease and require consideration in the context of s. 29 of the Act. I would reserve the question of costs.
Having regard to the nature of the order in this appeal which requires reconsideration of the issues with particular reference to s. 29 of the Act it is unnecessary to make any order on the cross-appeals.
The Court should therefore order:
1. That the appeal be upheld and the decision of the Workers' Compensation Commission of New South Wales of 7 May 1982 be set aside.
2. That the application be remitted to the learned Commissioner for decision of the respondent's claim based upon s. 29 of the Act.
3. That there be no order on cross-appeal.
4. That costs be reserved.
I have had the advantage of reading the judgment prepared by Smithers, J. I agree with the conclusions therein and the orders proposed to be made.
My approach to decided cases in the field of workers' compensation is that decisions on the interpretation of Acts other than the one under scrutiny in this appeal are instructive as to the reasoning process but, where the wording differs, are not decisive in the resolution of the particular problem of interpretation being faced here.
The facts and the relevant parts of the Act are fully set out in the judgment of my brother Smithers. Except for section 29, the definition of "injury" draws a clear distinction between "injury" within the meaning of the Act, and the harm or detriment to the body or mind caused by disease. In its ordinary meaning, "injury" is harm or detriment however caused.
When the learned Commissioner described the formation of, and the consequences of, the thrombus as a "pathological injury", he was expressing a contradiction in terms, having regard to the definition of "injury" in the Act. "Pathological" means pertaining to disease.
The matter should be remitted for consideration by the Commissioner of the respondent's claim based upon section 29 of the Act. The matters raised in support of the cross-appeal are adequately dealt with by such remission.
The orders I would make are:-
1. Appeal upheld
2. Application remitted to the learned Commissioner for decision on the respondent's claim based upon section 29 of the Act.
3. No order on cross-appeal.
4. Costs reserved.
The appellant, the Commonwealth Australia, appeals from an order of the Workers' Compensation Commission of New South Wales, 'the Commission', constituted by a judge of a prescribed court under the Compensation (Commonwealth Government Employees) Act 1971, 'the 1971 Act'. By its order, the Commission set aside a determination dated 7 May l980 of a delegate of the Commissioner for Employees' Compensation and remitted the matter to a delegate with the expression of opinion contained in its reasons for judgment. By the determination dated 7 May 1980, the delegate had disallowed a claim by the respondent, Regina Beton Whillock, for compensation in respect of the death of her husband, Robert John Whillock, 'the deceased'. The appeal is brought on a question of law under s.95 of the 1971 Act. Under sub-section 24(1) of the Federal Court of Australia Act 1976, the appeal is within the appellate jurisdiction of the Federal Court and thus is heard by a Full Court; s.25.The deceased was a Chief Petty Officer, Medical, in the Royal Australian Navy and thus was an employee under the 1971 Act. He died on 8 May 1977. The respondent's claim for compensation under the Act was disallowed by the delegate who determined that the death of the deceased was not the result of personal injury arising out of or in the course of his employment, nor was it the result of the contraction of disease or the aggravation, acceleration or recurrence of a pre-existing or underlying disease to which his employment was a contributing factor.
The Commission, in its reasons for judgment, expressed the opinion that personal injury arising in the course of his employment by the Commonwealth was caused to the deceased and that that injury resulted in the death of the deceased; sub-sections 27(1) and 43(1) of the 1971 Act. On that opinion, the respondent was entitled to receive compensation under the Act. Accordingly, the Commission did not consider whether s.29 of the Act had any application to the facts of the case.
The appeal to this Court is brought 'on a question of law only'; sub-section 95(1) of the 1971 Act. The questions of law as stated in the notice of appeal, but altered to comply with the terminology used in these reasons, are set out:
'1. On the Commission's findings of fact did the Commission err in law in finding that the deceased suffered 'personal injury' within the meaning of sub-section 27(1) of the 1971 Act?
2. Was the Commission bound by the decisions in Slazengers (Australia) Pty. Limited v. Burnett (1951) AC 13 and The Commonwealth v. Ockenden (1958) 99 CLR 215 to find that the deceased's death did not result from personal injury in the course of his employment?
3. For the purposes of finding whether the deceased suffered 'personal injury' within the meaning of sub-section 27(1) of the 1971 Act was it sufficient for the Respondent to establish merely a temporal connection between the employment of the deceased and his death?
4. Where the death of an employee results from a disease which was not contracted aggravated accelerated or a recurrence of a disease to which any employment of the employee was a contributing factor can death be an 'injury' within sub-section 27(1) of the 1971 Act?'
Question 2 should be read as if the word 'arising' appeared after the word 'injury'. The appellant has not challenged the findings of fact made by the Commission. Senior counsel for the appellant relied upon two main submissions, namely:
1. that the deceased did not suffer personal injury within the meaning of s.27(1) of the 1971 Act; and
2. that the deceased's death did not result from personal injury arising in the course of his employment.
The second submission was based on the second question of law set out in th of appeal. That question and the second submission appear to confuse the provisions of sub-section
27(1) and sub-section 43(1) of the 1971 Act. Those two sub-sections are set out: '27.(1) 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.'
'43.(1) Where an injury to an employee results in the death of the employee, the succeeding provisions of this section have effect.' During the hearing of the appeal, the second question of law and the second submission were treated as raising a third issue, namely whether, assuming personal injury had been caused to the deceased, it was personal injury arising out of or in the course of the employment of the deceased; sub-section 27(1). The third question of law set out in the notice of appeal appears to be directed to the third issue. The Commission had expressed the opinion that personal injury arising out of the employment of the deceased was not caused to the deceased. Accordingly, the third issue before this Court as raised by the notice of appeal is whether, if the first question is answered in the affirmative, the personal injury so caused to the deceased arose in the course of his employment by the Commonwealth.
At the time of his death, the deceased was serving in H.M.A.S. 'Stalwart'. For a number of years he had been suffering from arterio-sclerosis, a disease of the coronary arteries resulting in a roughening and thickening of the interior lining of the arteries and a loss of elasticity of the arteries. Some years before his death, the deceased had suffered a coronary infarct. Thereafter the deceased was suffering from necrosis or death of some part of his heart muscle. The reasons of the Commission contained the following passages relevant to the first question:
'A post-mortem examination was conducted and there seems to be no dispute that the cause of his death was a myocardial infarction caused by an occlusion of his right coronary artery by a thrombus which the examiner thought to be of recent origin.
...
The post-mortem examination revealed the presence of a recent thrombus which occluded his right coronary artery. That occlusion prevented the flow of blood to his heart muscle and caused its necrosis. There was a pathological change brought about to a vital organ of his body. That event, in my view, constituted an injury. It may well be said that the thrombus was caused by a reaction on his blood passing through degenerate blood vessels which were diseased. That that is so, in my view, is probably correct. That is to say, he suffered from cardio-vascular disease but nevertheless the effect of the thrombus forming and causing an occlusion brought about physical consequences to his myocardium and damaged it. That, as I have said, in my view constitutes an injury.
' The appellant does not dispute that there was evidence before the Commission from which the Commission could make those findings, but contends that as a matter of law those findings cannot be used to support an opinion that personal injury was caused to the deceased, in this case the necrosis or death of heart muscle.
In the 1971 Act, by s.5, unless the contrary intention appears, the word 'injury' means:
'... any physical or mental injury and includes the aggravation, ac recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease:'
and the word 'disease': '... includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;'
To give effect to those provisions, the extended meaning to be given to the word 'injury' is:
'... any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to s.29, does not include a disease, including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, or the aggravation, acceleration or recurrence of a disease, including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development ...'
These definitions are not helpful. The word 'injury' is defined by reference to the word 'injury' while the word 'disease' is given an extended meaning, there being no definitive meaning. In both cases it is necessary to determine what meaning is to be given to the words 'injury' and 'disease' appearing in the 1971 Act.
Great care must be exercised when considering authorities based upon defined statutory provisions. In other legislation, relevant definitions of those words have from time to time been varied and in any case are defined in terms different from those contained in the 1971 Act. Where the word 'injury' has been defined to include a disease, the word 'disease' normally has been defined to mean an employment-related disease only and thus has had a restrictive effect on the meaning to be given to the word 'injury'. Authorities based on other legislation therefore may be misleading. A reference to the Commonwealth Employees' Compensation Act 1930, 'the 1930 Act', illustrates the problem. In the 1930 Act the word 'disease' was defined to include:
'... any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;'
The word 'injury' was defined to mean:
'... any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;'
It is noted that disease was not excluded from the meaning to be given to the word 'injury'. This was unnecessary because of the nature of the liability to pay compensation imposed upon the Commonwealth by the 1930 Act. Section 9 of the 1930 Act imposed a liability on the Commonwealth to pay compensation if personal injury by accident arising out of or in the course of his employment by the Commonwealth was caused to an employee. Section 10 of the 1930 Act imposed a liability on the Commonwealth to pay compensation where the employee was suffering from a disease, or the death of an employee was caused by a disease, and the disease was due to the nature of the employment in which the employee was engaged by the Commonwealth.
The 1971 Act came into operation in September 1971 and replaced the 1930 Act. The 1971 Act altered substantially the nature of the liability previously imposed on the Commonwealth by s.10 of the 1930 Act. Under the 1971 Act the liability to pay compensation for an injury is imposed by sub-section 27(1). This has been set out. The former separate liability to pay compensation for death or incapacity resulting from a disease as imposed by s.10 of the 1930 Act has not been continued. Under the 1971 Act, where the conditions prescribed by s.29 are satisfied, the contraction of the disease or the aggravation, acceleration or recurrence of the disease 'shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth"; paragraph 29(2)(f).
Similarly, great care must be taken in considering earlier authorities based on the 1930 Act. Many of them were directed to issues of whether an injury to an employee resulted in the death of the employee (see now s.43(1) of the 1971 Act) or total or partial incapacity (see now sub-sections 45(1) and 46(1) of the 1971 Act) or were in reality a non work-related disease resulting in the death or incapacity of the employee. In some respects, the provisions of the 1971 Act are less stringent than those of the 1930 Act; see Johnston v. Commonwealth of Australia (l982) 43 A.L.R. 559.
In its normal meaning the word 'injury' is apt to describe a discrete event occurring in the course of the progression of a disease. This view is supported by reference to authority. In Hume Steel Ltd. v. Peart (l947) 75 C.L.R. 242, the High Court had to consider this type of question. That was a journey case under New South Wales' legislation. While journeying to work, the respondent's husband suffered a coronary occlusion as a result of which he died on the same day. The extended definition of 'injury' as contained in the relevant legislation to include a work-related disease had no application where the word 'injury' was used in a journey case. Post-mortem examination had disclosed that the diseased aorta and coronary arteries of the deceased were in an advanced state of atheroma (arterio-sclerosis) and the coronary artery was brittle. One occlusion was found in the coronary artery. The occlusion was due to a small piece of lining of the artery having loosened and blocked the artery. The Court held that the occlusion constituted an injury within the ordinary meaning of that word.
In the New South Wales' legislation, as in the l930 Act and the 1971 Act, death was not treated as being an injury, but as something which may result from an injury. After discussing the meaning attributed to the phrase 'personal injury by accident', Latham C.J. said at pp.252-3:
'The cases in which the question was whether the contraction or aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employment all assume that a disease is an injury. What are described as idiopathic diseases are outside the English Act (Brintons Ltd. v. Turvey (1905) A.C. 230). The plaintiff's atheromatous condition, according to the findings of the Commission, was such a disease _ it was a morbid condition of which the cause was unknown. But these diseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word 'accident' as defined in Fenton v. J. Thorley & Co. Ltd. (1903) A.C., at p.448. Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury.
There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury."
At p.256-7 Dixon J. said:
'What kinds of physical harm amount to injury or an injury is a matter with which the definition does not deal, except to include a disease contracted in the course of the employment, if the employment is a contributing factor.
The question here is whether the coronary occlusion can amount to such an injury as is contemplated by the words of par. (b). In jurisdictions where the expression is 'personal injury by accident' the qualifying force of the words 'by accident' has formed the chief consideration in the discussion of the place of disease in the legislation. But it has never been doubted that disease may amount to an injury. Thus in Innes or Grant v. G. & G. Kynoch (1919) A.C. 765, at p.797 Lord Wrenbury said, 'The man suffered personal injury, for he contracted a disease and it resulted in his death.' He had said the same in the Court of Appeal in Martin v. Manchester Corporation (1912) 106 L.T. 741, at p.742. 'Contraction of a disease is an injury; that injury may or may not be by accident.' Again, in Walker v. Bairds and Dalmellington Ltd. (1935) 153 L.T. 322, at p.326 Lord Tomlin, speaking of a chill to a workman involving bronchopneumonia, said, 'the disease which was the injury was in these circumstances the result of accident.'
In Fife Coal Co. Ltd. v. Young (1940) A.C. 479, at pp.488, 489 Lord Atkin said:- 'It is necessary to emphasize the distinction between 'accident' and 'injury', which in some cases tend to be confused ... A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between 'accident' and 'injury'; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed.'
In the 1971 Act, the word 'injury', subject to s.29, is to be read as not including a disease or the aggravation, acceleration or recurrence of a disease. In its ordinary meaning the word 'disease' includes a condition of the body or some part or organ of the body in which its functions are disturbed or damaged. A person suffering from a disease is said to be ill or sick. A disease can be described as a physical or mental ailment or a morbid condition. A disease may progress becoming more severe over a period of time. In the present case, the deceased's arterio-sclerosis of his coronary arteries was a disease. It was a progressive disease. An occlusion of a coronary artery resulting from that disease is not unexpected, although an occlusion does not necessarily occur in every case. A person suffering from arterio-sclerosis may suffer symptoms without an occlusion occurring, for example the symptom of chest pain on exertion, commonly called angina. The necrosis or death of heart muscle following the occlusion is not itself a disease, but may result from an occlusion which itself may result from the disease. Similarly, neither the occlusion nor the death need be an aggravation, acceleration or recurrence of the disease, but each may constitute a discrete event occurring in the course of the disease, but nevertheless is separate and distinct from the disease. The occlusion followed by the necrosis or death of heart muscle can each in truth be described as an injury. In the present case the fundamental issue raised by the first question in the notice of appeal can be answered adequately only when considering the issue raised by the second question, but in answer to the first question, it cannot be said that on the Commission's finding of fact, the Commission erred in law in finding that the deceased suffered personal injury, namely necrosis or death of heart muscle, within the meaning of sub-section 27(1) of the 1971 Act.
The expressions of opinion in Ogden Industries Pty. Ltd. v. Lucas (1967) 116 C.L.R. 537 do not constrain me to change my views as expressed above. In Lucas' case the High Court considered the application of the Victorian legislation as it had been amended in 1965 by Act No. 7292. One of the issues considered was whether, on a statement of agreed facts, pulmonary oedema was an 'injury'. Following the 1965 amendment, the word 'injury' was defined to mean:
'... any physical or mental injury, and without limiting the generality of the foregoing, includes - (a) a disease contracted by a worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and (b) the recurrence aggravation or acceleration of any pre-existing injury or disease where the employment was a contributing factor to such recurrence aggravation or acceleration ...'
The matter had been determined by the the Workers' Compensation Board on a statement of agreed facts. The facts stated were obscure and gave rise to difficulties of construction. At p.569, Kitto J. described the relevant part of the statement of facts as a 'somewhat murky piece of jargon'. At p.567 His Honour said:
'The question in the case stated is whether it was open to the Workers Compensation Board on the material before it to award the present respondent the sum which is appropriate if the amendment by Act No. 7292 of cl. 1(a)(i) of the clauses appended to s.9 applies in this case. Consequently what we have to decide is not whether the pulmonary oedema was an 'injury', but whether the Board, on the material before it, could properly find that it was. The material, unhappily, consists only of an agreed statement of facts. I say unhappily because the Board was presented with the artificial and highly unsatisfactory task of endeavouring to construe a written document instead of getting at the facts for itself, and that in a case which was eminently one for careful investigation with the direct assistance of medical witnesses.'
At pp.59l-2 Windeyer J. said: 'The question then becomes, Was the pulmonary oedema an 'injury' within the meaning of the Act; and if so did the death result from, or was it materially contributed to by this 'injury'? All that we have to go on is what appears in the 'statement of agreed facts', where it is stated that: 'Death resulted from the aggravated and accelerated coronary artery disease, the aggravated and accelerated myocardial degeneration and the coronary occlusions and myocardial infarctions and pulmonary oedema and each of them taken separately ...'. This is an unhappily indefinite way of stating cause and consequence. Doubtless the philosopher, the physician, and the lawyer look at and speak of cause and consequence in very different ways. But, allowing for that, I find great difficulty in arriving at any conclusion satisfying to my mind from language such as this; and it was what the Board had before it. I can only say that the statement of facts read as a whole, and that sentence in particular, lead me to the conclusion that the worker suffered from a pathological condition of the heart, which got progressively worse, that its worsening was in the ordinary course of the disase, for him, that he did not recover but died from the disease, that the pathological condition which was a product of the progress of the disease and the immediate cause of death was a pulmonary oedema.'
The High Court held that the pulmonary oedema was not an injury under the Victorian legislation.
In the present case, the Commission had the benefit of the direct assistance of medical witnesses. From the evidence given by those witnesses and from what was found on post-mortem examination, the Commission found the facts set out in its reasons. There was evidence to support those findings. In these circumstances it is not for this Court to apply what it considers to be appropriate medical theories and in substance to find facts not based upon evidence before the Commission. In light of the difficulties in interpreting the statement of agreed facts in Lucas' case, it is not for this Court to draw an analogy between the facts in that case and the facts in this case.
The second question raises the issue of whether, on the facts found by the Commission, the injury caused to the deceased resulted in his death. To understand this issue, it is important to remember the structure of the 1971 Act. Sub-section 27(1) imposes a liability on the Commonwealth to pay compensation in accordance with the l97l Act where 'personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee'. Where such an injury occurs, the nature and amount of compensation to be paid by the Commonwealth is determined by reference to other sections of the 1971 Act. For present purposes, s.43 is relevant. In sub-section 43(1), the word 'injury' cannot mean any injury as defined in sub-section 5(1) of the 1971 Act caused to an employee of the Commonwealth. On its proper construction, the word 'injury' must mean personal injury caused to the employee and arising out of or in the course of his employment by the Commonwealth including a deemed injury under s.29. This follows because sub-section 27(1) imposes the liability on the Commonwealth, while for present purposes sub-section 43(1) quantifies the amount of compensation to be paid where death of the employee results from an injury arising out of or in the course of his employment by the Commonwealth. Accordingly, in considering the issue raised by Question 2, it will be assumed that the injury caused to the deceased was an injury which arose out of or in the course of his employment by the Commonwealth.
Question 2 raises a question of causation. Can it be said that in truth the necrosis or death of heart muscle caused to the deceased resulted in his death? Or should it be said that in truth the disease of arterio-sclerosis from which the deceased was suffering resulted in his death?
Question 2 refers to two authorities. In Slazengers (Australia) Pty. Ltd. v. Burnett, the Privy Council had to consider the New South Wales legislation. The facts of that case were remarkably similar to those in Hume Steel Pty. Ltd. v. Peart, supra. The Privy Council held that in the relevant section of the New South Wales Act the word 'injury' should be given the defined meaning as including an employment-related disease but excluding a non employment-related disease. To that extent, the Privy Council disagreed with some of the opinions expressed in Peart's case and as a result the Privy Council did not need to consider the opinions of Latham C.J. and Dixon J. set out earlier in these reasons in relation to the meaning of the word 'injury'. In Burnett's case a fact found was that the coronary occlusion was solely due to autogenous causes and had no causal connection whatsoever with the journey. At p.19, Lord Simonds, in delivering the advice of the Privy Council, said:
'The facts in Peart's case in most respects bore a remarkable resemblance to those of the case under appeal, the points of difference being, first, that in Peart's case the actual cause of the coronary occlusion was detected, namely, the fact that a small piece of the lining of the artery had been loosened and had blocked the artery, and, secondly, that this physiological change had taken place as the result of a physical effort made during the journey, namely, that of pedalling a bicycle uphill. These points of difference, which at least established a causal connexion between the injury and the journey, were regarded as material by some at least of the learned judges of the High Court who took part in the decision of Peart's case. But it will in any case be necessary to examine the reasoning which led to that decision. Before doing so, their Lordships must once more turn to the Act itself.'
The Privy Council considered the wording of the Act and came to a conclusion different from that of the High Court. The Privy Council did not need to consider the opinions of the High Court Justices relating to the meaning of the word 'injury' apart from the extended definition. In my opinion, Peart's case is authority for the propositions stated earlier in these reasons. In my opinion the opinions expressed in Burnett's case do not assist in the resolution of Question 2.
In Commonwealth v. Ockenden (1958) 99 C.L.R. 215, the High Court had under consideration s.9 of the 1930 Act and in particular the words 'personal injury by accident arising out of or in the course of his employment' (emphasis added). Ockenden's case involved a claim for compensation in which Ockenden claimed that he was suffering a 'rheumatic heart', a condition which he claimed had developed during his term of service in the Royal Australian Navy. It was not contended in the High Court that a claim could be brought under s.10 of the 1930 Act based on a work-related disease. The claimant was not incapacitated by his condition but claimed medical expenses only. A County Court Judge held that the facts established that Ockenden had sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth and that an order be made that the Commonwealth pay his medical expenses. The question before the High Court was whether, upon the evidence, such a conclusion could or should have been reached. In a joint judgment, the Court, Dixon C.J., Fullagar and Taylor JJ. considered at length a number of relevant authorities commencing with James Patrick & Co. Pty. Ltd. v. Sharpe (1955) A.C. 1, a decision relating to the Victorian legislation, and concluding with Burnett's case, supra. At pp.223-4 Their Honours said:
'The acceptance in Sharpe's Case of the view that in Victoria it is now no longer necessary to find an external event of some kind associated with a sudden physiological change rested, essentially, of course, upon the special provisions of the amendment introduced in the Workers' Compensation Acts of that State by the amending Act of 1946. But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker's employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.'
Three things must be said about Ockenden's case. First, the Commonwealth Employees' Compensation Act referred to in the passage quoted is the 1930 Act. Secondly, the special provisions of the amendment introduced into the Workers' Compensation Act of the State of Victoria by the amending Act of 1946 deleted the word 'accident' from the relevant sections so that thereafter the relevant provision referred to personal injury only as in the 1971 Act and not 'personal injury by accident' as appeared in the 1930 Act. Thirdly, at p.224 the Court expressed the view that there was a grave doubt whether Ockenden had suffered at any time any sudden and distinct physiological change. In my opinion, Ockenden's case does not detract from the opinions expressed in Peart's case.
In my opinion, Question 2 is to be answered by applying the principles expressed in Commonwealth v. Butler (1958) 102 C.L.R. 465. That case concerned a claim under s.9 of the 1930 Act. It was a death case. The deceased, a Commonwealth employee, suffered four coronary occlusions in April 1952, September 1955, December 1955 and July 1957 respectively. The last occlusion proved fatal. His widow claimed compensation and the claim was conducted on the assumption that his occlusion in September 1955 constituted an injury by accident arising in the course of his employment. In view of Ockenden's case, that assumption may have been misplaced. In Butler's case the issue was whether Butler's death in July 1957 resulted from the assumed injury in September 1955.
There was evidence that a non-fatal occlusion, although it does not render a further occlusion more likely, does make it more likely that a further occlusion, if it does occur, will prove fatal. The Court, Dixon C.J., Fullagar, Kitto, Taylor and Windeyer JJ. were unanimous in holding that the claim must fail as it could not be said that Butler's death resulted from the occlusion in September l955.
Butler's case turned upon a matter of causation. Section 9 of the l930 imposed liability upon the Commonwealth to pay compensation. The relevant part of that section has been set out earlier. The amount of the compensation was determined under Clause 1 of the First Schedule to the 1930 Act, the relevant parts of which provided for the amount of compensation to be paid 'where the death of the employee results from the injury'. The relevant words in the l97l Act are 'where an injury to the employee results in the death of the employee'; see sub-section 43(1).
The Court unanimously rejected the widow's claim. At pp.471-2 Fullagar J. said:
'In order to answer the question, it is necessary to see just what the evidence amounts to. It appears from it that a coronary occlusion is a total or partial obstruction of a coronary artery, which is caused or accompanied by arterial atheroma or sclerosis. The atheroma or sclerosis is normally progressive, and was progressive in this case. It had in fact commenced in this case some years before the first attack, which took place in 1952. A coronary occlusion may or may not be fatal. A first occlusion is fatal in rather less than twenty-five per cent of cases. An occlusion which is not fatal will generally, if not always, cause damage to the heart muscle, and this damage is not repaired in the course of nature. This fact does not make it more likely that a first non-fatal occlusion will be followed sooner or later by another occlusion or other occlusions, but it does make it more likely that, if a later occlusion does occur, it will prove fatal. In other words a patient may recover from a series of occlusions, but each one of the series will normally have effects on the heart muscle which increase the degree of probability that the next will cause his death.
The above does not represent the views of Dr. Rothstadt. But it does, I think, fairly summarize the effect of the expert evidence which must be taken to have been accepted by the learned judge. On that expert evidence and on the facts of the case, it would, I think, be a misuse of language to say that Mr. Butler's death 'resulted from' the coronary occlusion which he suffered in September 1955.'
In the same case Windeyer J. at pp.478-81 developed an interesting exegesis on the concept of causation in connection with the 1930 Act and the concept of death. At pp.480-81 His Honour said:
'A coronary occlusion results in death when it causes such a degree of infarction that the heart ceases to function. Is the occlusion, the infarction or the cessation of the heart-beat the proximate cause of death? In the last analysis it is death itself that slits the thin-spun life.
Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September, 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely 'did death result from the occlusion', be inverted to be 'was the occlusion the cause of death'. The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as 'contributing factor', which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses.
The evidence, I think shows that the deceased died from the effects upon his heart of the occlusion of June 1957; that this was a separate and distinct event from the occlusions he suffered in 1955; that each of the earlier occlusions may well have made it more likely that a later occlusion would be fatal, because each probably left some area of heart muscle impaired; but that the occlusion of Septmeber l955 and that of July 1957 were none the less separate and distinct events. An impaired heart resulted from the former. Death resulted from the latter. In my view there was no evidence on which the judge's finding can, properly applying the words of the Act, be sustained, and the appeal should be allowed."
The facts in Butler's case were very different from the facts in this case. Here the occlusion occurred on the day the deceased died. The occlusion was constituted by a coagulation of blood which occluded or blocked the coronary artery. Necrosis or death of heart muscle resulted from the absence of blood, the supply of which had been blocked by the occlusion. The death of the deceased resulted from that necrosis or death of heart muscle. On those facts in my opinion it was open to the Commission in fact and in law to find that the necrosis or death of heart muscle constituted an injury under the 1971 Act and that the death of the deceased resulted from that injury. The underlying disease may have been a contributing cause of the death but that does not detract from the view that in ordinary language it is true to say that death resulted from the necrosis or death of heart muscle.
Question 3 remains to be considered. The answer to this question depends upon the application of the principles stated in Kavanagh v. The Commonwealth (1960) 103 C.L.R. 457. That was a death case involving s.9 of the 1930 Act. Kavanagh, an employee of the Commonwealth, died in hospital on 20 January 1958 of broncho-pneumonia and heart failure supervening upon a rupture of the oesophagus which he had suffered during the hours of work at his place of employment on l4 January 1958. The rupture was caused by sudden vomiting, the cause of which could not be explained. It was not disputed that the death resulted from the rupture of the oesophagus within the meaning of the word 'result' as used in the First Schedule to the 1930 Act. The question in contest was whether the rupture of the oesophagus was a personal injury by accident arising in the course of Kavanagh's employment. Dixon C.J., Fullagar and Menzies JJ., with Taylor and Windeyer JJ. dissenting, held that personal injury by accident arising in the course of his employment by the Commonwealth was caused to Kavanagh on 14 July 1958 and that his death resulted from that injury. At pp.553-4, Dixon C.J. said:
'The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection: Clover Clayton & Co. Ltd. v. Hughes (1910) A.C. 242, per Lord Loreburn L.C. (at p.246), per Lord Macnaghten (at p.249), per Lord Collins (at pp.255-6); McArdle v. Swansea Harbour Trust (1915) 113 L.T. 677; Flanagan v. Ackers Whitby & Co. (1926)19 B.W.C.C. 399.
But this is not the real difficulty in the case. The real difficulty lies in the question whether the accident consisting in the rupture of the gullet arose in the course of the employment. Clearly it occurred during hours of work and at a point of time when Kavanagh, having desisted from his actual task to go to the convenience, had returned and was apparently undecided whether he could resume the performance of his work or was unfit to do so. The expression 'course of the employment' in the law of workmen's compensation covers an incident such as that of the employee's retiring in obedience to a call of nature and of momentarily standing by considering his capacity to resume his duties. In one sense of the word 'in' therefore the injury by accident occurred 'in the course of the employment'. But there was no connexion, or at all events no known connexion, between the employment and the fit of vomiting or the failure of the gullet to relax or expand to discharge the vomitus. It might have occurred just as well at any other time, at any other place and in any other immediate external conditions."
In reaching their conclusions, the majority laid particular stress on the amendment made in l948 to s.9 of the 1930 Act. As originally worded, s.9 imposed a liability on the Commonwealth to pay compensation only in respect of injuries which 'arose out of and in the course of the employment' (emphasis added). In 1948 the legislature substituted the conjunction 'or' for the conjunction 'and' so that the two conditions which had been cumulative became alternative. In those circumstances, the majority held that after 1948 there need not be any causal connection between the injury and the employment or some accident to the employee. The majority considered a number of relevant authorities including Ockenden's case, Sharpe's case and Burnett's case. At pp.554-5 Dixon C.J. distinguished Ockenden's case. At p.555 His Honour said:
'I do not think that it is consistent with s.9(l) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the 'employment', including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof.'
At pp.559-60, Fullagar J. considered Ockenden's case and at p.560 said:
'The Court was dealing in Ockenden's Case with a special class of case _ the case where death or incapacity results from a 'physiological change' such as a coronary occlusion, which was a development or culmination of an antecedent morbid condition in the body of the worker. The true position in such cases is that compensation cannot, in the absence of some special provisions such as those considered in Sharpe's Case be recovered unless the 'physiological change' was associated with some episode or incident in the worker's employment _ such as lifting a heavy weight or hurrying up a steep slope. It is therefore literally true to say that, in the absence of any such episode or incident, the worker fails to establish 'personal injury by accident arising in the course of his employment'. But the real truth in such a case is expressed not by saying that the worker has suffered personal injury by accident outside the course of his employment, but by saying that the worker has not suffered personal injury by accident at all. It is not incorrect to say, in the absence of any material episode or incident of the employment, that the 'physiological change' occurred outside the course of the employment, but it is incorrect to say that what happened is placed outside the course of employment by the absence of any causal connexion between what happened and the employment. I do not think that any real support for this latter proposition is to be found in Ockenden's Case. In other words, Ockenden's Case is to be regarded as a decision on the words 'personal injury by accident', and not as a decision on the words 'arising in the course of his employment'."
It will be remembered that in the 1971 Act the words 'by accident' do not appear and that is of vital importance to the present case.
In a long passage commencing at p.569 Menzies J. considered the earlier relevant authorities. At p.576 His Honour said:
'It is unnecessary to multiply instances, for it is abundantly clear that in the comp osite ph words 'in the course of' were regarded as signifying no more than that the worker must be doing something that was part of or incidental to his service. This being so, it seems to me that when the conjunctive was dropped for the disjunctive, the result was to entitle the worker to compensation if no more is shown than that the personal injury by accident arose while he was doing something that was part of or incidental to his service. These various considerations have led me to the conclusion that, unless Ockenden's Case binds me to decide differently, the facts established here do show personal injury by accident arising in the course of his employment, caused to the deceased worker, and would entitle the appellant to compensation.'
The general principle has been stated by Walsh J. in Bill Williams Pty. Ltd. v. Williams 1972 ) l26 C.L.R. 146 at 154:
'In judgments of this Court it has been laid down that an injury, which occurs to an employee whilst he is performing the duties of his employment or is doing something which is incidental to the performance of his duties, constitutes an injury 'arising in the course of his employment', although there is no causal relation between the injury and the employment or its incidents.'
In the present case the deceased was not required to attend for duty in 'Stalwart' until the morning of 9 May l977. On the day of his death he had attended at a Naval hospital for treatment for an injury unconnected with his arterio-sclerosis disease or with the injury that resulted in his death. After receiving that treatment he travelled to 'Stalwart'. The Commission made findings as follows:
'It was necessary for the deceased to carry out his employment that he be present on board 'Stalwart'. In the ordinary course of events, until the day following, he was authorised to remain on board so that he might more easily present himself for duty on the day following. He was motivated, so it would seem, to return to 'Stalwart' rather than go home for the reasons I have mentioned and also because the sick bay was short-staffed and he thought his presence might assist in its efficient conduct.
A number of reported cases has been cited but it seems to me that in the ultimate what is reasonably incidental to employment is a question of fact and degree. It seems to me that in the circumstances of this case the deceased's presence on board 'Stalwart' at the time he suffered his infarct was reasonably incidental to his employment. In saying that, it will be apparent that I am of the view that the infarct occurred whilst he was on 'Stalwart' and not before he arrived upon her.
It seems to me that the terms of section 27(1) entitle the applicant to compensation if she satisfied me that a temporal connection exists between the employment and the injury to her husband which caused heart necrosis. She has so satisfied me."
It was not disputed that there was evidence to support those findings. In addition, the Commission relied upon the sub-sections of s.8(3) of the 1971 Act the relevant parts of which provide:
'For the purposes of this Act other than section 32, the employment of employee by the Commonwealth includes the attendance of the employee at his place of employment ... at any time during a period when he is not required to engage in his employment, where the attendance is reasonably incidental to his employment.'
Applying the principles expressed in Kavanagh's case to the facts of this case, it was sufficient for the respondent to establish that injury was caused to the deceased whilst he was performing the duties of his employment or was doing something which was incidental to the performance of his duties. The respondent has done that. Subject to the qualifications stated, Question 3 should be answered in the affirmative.
The Commission found that the death of the deceased was not caused by a disease. Accordingly, Question 4 does not need to be answered.
The respondent, by cross notice of appeal, raised issues relating to s.29 of the 1971 Act. In view of the answers given to Questions l, 2 and 3 in the notice of appeal, it is not necessary for me to consider the cross appeal.
The questions in the notice of appeal should be answered as follows:
1. No.
2. No.
3. It was sufficient for the respondent to establish that injury was caused to the deceased whilst he was performing the duties of his employment or was doing something which was incidental to the performance of his duties.
4. Not necessary to answer.
I would dismiss the appeal and cross appeal, affirm the decision of the Commission and order that the appellant pay the costs of the respondent of the appeal and cross appeal.
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