Connair Pty Ltd v Frederiksen, David Anthony

[1978] FCA 69

CATCHWORDS

Workers' Compensation - Disease - ?leaning of the words "due to the nature of the employment" - Predisposition to phobic condition - Workmen's Compensation Ordinance 1949 (N.T.)

ss.9 and 26.

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CONNAIR PTY. LTD. V. DAVID ANTHONY FREDERIKSEN

No. NTG 10 of 1977

Coram: Bowen C.J., St.John and Gallop JJ.

Sydney, 18 August,1978.

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i	'	.	*	I N THE FEDERAL COURT OF AUSTRALIA	1
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NORTHERN TERRITORY DISTRICT REGIS'l'RY) N o . NTG 1 0 of 1 9 7 7

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GENERAL DIVISION 1

ON APPEAL from t h e Supreme C o u r t

of the Northern T e r r i t o r y

BETImEN :

CONNAIR PTY. LTD.

A p p e l l a n t

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AND : __

DAVID ANTHONY FREDERIKSEN

R e s p o n d e n t

O R D E R

JUDGES MAKING ORDER: BOWEN C . J . , ST.JOHN and GALLOP JJ.

DATE OF ORDER: 1 8 A u g u s t , 1 9 7 8

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WHERE MADE: Sydney

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I	THE COURT ORDERS THAT:
T h e appeal be dismissed wlth costs.

IN THE FEDERAL COURT OF AUSTRALIA 1 1

NORTHERN TERRITORY DISTRICT REGISTRY	) NO. NTG 10 Of 1977
)

DIVISION GENERAL 1

ON APPEAL from the Supreme Court of the Northern Territory.

BETPEEN : CONNAIR PTY. LIMITED

Appellant (Appellant)

- AND : DAVID ANTHONY FREDERIKSEN

Respondent (Respondent)

corn1 : BOWEN C.J., St. John and Gallop JJ.

I gth Auqds? - 1978.

J U D G M E N T

BONEN C. J. : This is an appeal from a decision of the

Supreme Court of the Northern Territory. That Court

dismissed an appeal from the Workmen's Compensation Tribunal,

which is a tribunal established under s.6A of the Workmen's I .

Compensation Ordinance 1949 (N.T.) ("the Ordinance") .

Proceedings were commenced before the Tribunal by compensation from his last employer, Connair Pty. Limited

("Connair") pursuant to	s . 9 (1) of the Ordinance. That
sub-section provides :

Ir9. (1) Vhere -

( a ) a workman i s s u f f e r i n g f r o m a d i s e a s e

and i s t h e r e b y i n c a p a c i t a t e d for work; or

( b ) t h e d e a t h of a workman i s caused by a

d i s e a s e ,

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"and t h e d i s e a s e i s d u e t o t h e n a t u r e of the employment

i n wh ich t he workman was employed, h i s e m p l o y e r s h a l l ,

s u b j e c t t o t h i s O r d i n a n c e , b Ordinance e l i a b l e t o p a y c o m p e n s a t i o n

i n accordance wi th th i s as i f t h e d i s e a s e

were a p e r s o n a l i n j u r y b y a c c i d e n t a r i s i n g o u t of or

i n t h e c o w s e of his employment . 'I

"Disease" i s de f ined i n S . 6 (1) of the Ordinance as

follows :

l' ' d i s e a s e ' i n c l u d e s a n y p h y s i c a l or menta l a i lmen t ,

d i s o r d e r , d e f e c t or morbid condi t ion , whether of

sudden O P gradual development , and a l s o i n c l u d e s

t h e a g g r a v a t i o n , a c c e l e r a t i o n o r r ecurrence of a

p r e - e x i s t i n g d i s e a s e ; "

I sha l l t u rn t o cons ide r t he p rov i s ions o f t he

Ordinance i n more d e t a i l l a t e r .

Evidence was taken before the Tribunal which held

t h a t :

"1 . The appl icant i s i n f a c t s u f f e r i n g f r o m a

d i s e a s e a s d e f i n e d i n s e c t i o n 6 ( 2 ) ( s i c )

and	i s t h e r e b y	t o t a l l y	i n c a p a c i t a t e d	f r o m
work.

2 . T h a t t h e d i s e a s e s u f f e r e d b y t h e a p p l i c a n t

i s a t t r i b u t a b l e a s b e i n g d u e t o t h e n a t x r e

of his employment . I'

N o reasons were given by the T r ibuna l t o suppor t t he f i nd lngs .

When Supreme Court no fur ther evidence t h e matter came on for hear ing before the

was adduced, and the

evldence re l ied on by both par t ies was t h a t adduced before

the Tribunal . I n hearing an appeal f r o m ~ e Tribunal the

Supreme Court regarded i t s e l f , c o r r e c t l y i n my opinion, as

being selzed of the mat ter afresh. It was open t o any

pa r tv - t o l ead fu r the r o r d i f f e ren t ev idence . The Supreme

Court i s e n t i t l e d t o come t o i t s own conclusions on questions

o f f a c t and is not res t r ic ted to de te rmining whether there

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was sufficient evidence before the Tribunal to support the

Tribunal's findings. Where the only evidence tendered is the

transcript of evidence before the Tribunal, and where as here,

there are no reasons given by the Tribunal which might show

what evidence was regarded by it as acceptable or

unsatisfactory or what its opinion was of the credibility

of the witnesses before it, the Supreme Court is somewhat

restricted in the manner in which it can evaluate that

evidence. Its task remams that of assessing the evidence

itself, but it must be cautlous in regarding any witness

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as unsatisfactory or lacking in credibility. Fortunately

no issue of credibility arises here.

Although at one stage in his judgment the learned

trial judge did regard his task as determining whether there

was sufficient evidence before the Tribunal to justify its

findings, on the whole I am satisfied that he did evaluate

the evidence for himself and arrived at his own conclusions

of fact. That evidence is not in dispute.

It appears from the evidence of the expert medical i

witness Dr. Litt who treated Mr. Frederiksen, that obsessive compulsive. By that Dr. Litt meant what in lay

terms is called a perfectionist: "everything has to be in

its place and hepts worried if it is not so". In summary

the material effect of the evidence appears to me to be this.

In or about 1964 Mr. Frederiksen then not long out of school,

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decided to make his career that of a commercial pilot, his

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ambition being "to go right to the top". He took flying

lessons and received his private and then his commercial

licence. After working for a year as a flying instructor

he took employment with Connair, commencing work with the

company in January 1970. He was then 25, and regarded

this employment as an important step on the road to reallsing

his ambition to be a pilot In a large commercial airline,

either TAA or Ansett or Qantas.

Connair is a licensed commercial airline that operates

within the Northern Territory. It is described by one

witness as a "third-level carrier". During the period of

the respondent's employment, he flew single and twin engine

aircraft, Twin Bonanzas, Queenairs, Herons and DC3s. These

were all the aircraft used by Connair. That is, the airline

at the relevant times used light passenger aircraft with one

to four engines, but not jet engines.

Mr. Frederiksen told of a series of incidents which

occurred while he was employed with Connair when the

aircraft malfunctioned. Many of these he regarded as

serious. It is not necessary to deal with these incidents

individually, but they included engine failures, blocking up of fuel systems, and the break down of electrical systems. He complained of the maintenance standards of the airline

and said that repairs were not always properly performed.

He also said that insufficient attention was given to his

complaints. It would also appear that hls relations with

the management of the airline were not of the happiest kind,

especially when he failed to gain promotion on one occasion.

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He also complained that the airline allowed aeroplanes to take off

when the temperature was higher than that permitted by

safety regulations.

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Mr. R. D. Connellan, Assistant General Manager of

Connair and himself a pilot gave evidence. He himself had been engaged in various incidents when malfunctioning occurred when he was piloting planes of Connair. However,

his evidence was that Connair's serviceability record had

been better than comparable operations elsewhere. For

present purposes it is relevant that Mr. Frederiksen made

complaints which he believed to be justified. The Court

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is not called on in these proceedings to determine whether

the complaints were well founded in fact.

Mr. Frederiksen was upset by the cyclone that struck

Darwin in December 1974. In the month succeeding the

cyclone he worked heavp hours assisting in the evacuation

of Darwin. Because of the extraordinary situation he had

to fly in abnormally difficult weather and with excessive

loads. This increased the tenslon he felt.

In about May 1975 Mr. Frederiksen began to feel

upset and to feel pains in his head. On one occasion he

broke down. Recalling his condition Dr. Litt said :

"Re had headaches , he f eZ t up t igh t , a t i n g Z i n g

f e e Z i n g in h i s h a n d s ; t h e r e was no d i s t u r b a n c e

of s l e e p ; h e was Zosing weight and he was t r e a t e d

w i t h v a l i u m b y Dr. Cox and he f e l t a l r i g h t . He

f e Z t a l r i g h t when he was not fZying but when he got

back t o f l y i n g he hated the pZane and was u p t i g h t

and apprehens i ve because o f t hese f eeZ ings o f

p r e s s u r e in h i s head . "

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In July 1975 Mr. Frederiksen broke dovm while on a

flight from Darwm to Alice Springs, and had to leave the

cabin of the aircraft. He saw Dr. Litt in Adelaide and in

August was able to recommence his duties. However, shortly

thereafter he agam broke down and was unable to complete a

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flight. He has not flown an aeroplane since.

The evidence of Dr. Litt was that Mr. Frederiksen

developed a phobia about flying. A phobia he said was an

unconsciously determined fear which was related to a conscious

object. In this case the conscious object was flying and

aeroplanes, and he had developed a fear of flying. Dr. Litt

opined that unconsciously he was afraid of his own anger and this '

became manifested as a fear of flying. Dr. Litt considered !

that Mr. Frederiksen's obsessive compulsive personality

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predisposed him to this phobia.

Dr. Litt consldered that Mr. Frederiksen

at Connair, as he considered their maintenance standards

were inadequate, and he was angry that heed was not paid to

was angry

his complaints. He was under a great deal of stress

during the cyclone and in the next succeeding month when

the pressures of flying were intense.

Dr. Litt regarded Mr. Frederiksen's phobx condition

as a new condition to which his personality made him

predisposed.

' IQ. I s it p o s s i b 2 e t o s e p a r a t e t h e p h o b i d c o n d i t i o n s

from h i s g e n e r a 2 p e r s o n a 2 i t y so t h a t t h i s is I -

someth ing separate and new or is it a22 p a r t of

h i s o v e r a t 2 p s y c h e ?

A . No, he is p r e d i s p o s e d w i t h t h i s , b u t t h i s is a

new separa te th ing which has deve2oped. Up u n t i t ,

I t h i n k , May or June of 1 9 7 5 , a f t e r t h e cyczone

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"he had been coping adequately . He had been

f l y i n g ; he had n o t s o u g h t t o a v o i d t h e f l y i n g

s i t u a t i o n and f r o m t a l k i n g t o him and from what

I have heard i n cour t here he had been a competent

p i l o t . I t is s i n c e May o r J u n e t h a t h e s t a r t e d

to deve lop symptoms. This is why I t h i n k t h i s is

a new t h i n g d e v e l o p i n g in a pred i sposed

p e r s o n a l i t y .

Q. Can it be regarded as a c o m p l e t e l y new

c o n d i t i o n ?

A . Y e s .

H i s obsessive compulsive personality would be qu i te

acceptab le for a p i l o t . I t ensured that he was very par t lcular in his concern for the proper maintenance of the

a i r c r a f t and in h i s adhe rence t o s a fe ty r egu la t ions and

procedures. However, according t o D r . L i t t , th i s p red isposed

him to f ee l ing angry a t Connair when h i s expec ta t ions were

no t met, and the bu i ld up of h i s ange r and h i s i n a b l l i t y t o

do anything about it, toge ther wi th the stress of the cyclone

and i t s af te rmath , l ed to h i s phobic condi t ion .

There can be no doubt that the phobic condi t ion i s a

d isease as def ined by s . 6 ( 1 ) of the Ordinance, being "a

mental a i lment , d isorder , defect or morbid condition". I also

c o n s i d e r t h a t t h e d i s e a s e was a t l e a s t due t o t h e p a r t i c u l a r

i nc lden t s and c h a r a c t e r i s t i c s of the respondent 's employment

with Connair and his relationship with his employer.

The phobia was a new disorder and evidence of D r . L i t t t ha t t he r e sponden t ' s

a new condi t ion seems to

preclude a f i n d i n g t h a t t h e d i s e a s e was an 'hggravat ion,

acce lera t ion or recur rence o f a pre-existing disease". True

it is tha t h i s obsess ive compuls ive personal l ty may have

I pre-disposed him t o t h e s u f f e r a n c e of the phobic condition,

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but there is no evidence that his personality was a

"pre-existing disease" which was aggravated into a phobia.

Dr. Litt did not suggest that his obsessive compulsive

personality in itself became morbid either before or after

the cyclone. It would appear that Mr. Frederiksen's

particular kind of personality was an aid in the proper

discharge of his duties as a pilot rather than inimical to it.

The only issue before this Court is whether the

disease suffered by the respondent was due to the nature of

his employment. The appellant relied on the decision in

Commonwealth v. Bourne (1959) 104 C.L.R. 32 for the

proposition that it was not sufficient that the respondent

suffer his disease because of the particular incidents of

his actual employment with Connair, but that he had to show

that the nature of his employment had a tendency to cause

such a disease. Before examinlng the authorities in the High Court,

it is useful to examine those on the English legislation

before its repeal in 1948, for that leglslation was the

progenitor of the Ordinance under conslderation. The

Workmen's Compensation Act 1906 (U.K.) S . 8, (which provisions

were re-enacted without any material difference in the

Workmen's Compensation Act 1925 s s . 43 and 44), was discussed

by the House of Lords in Blatchford v. Staddon and Founds

(1927) A.C. 461. The section provided that where -

(i) the workman obtained an appropriate medical

certiflcate that he suffered a disease which was

specified in a schedule to the Act and which disabled

hlm from earning full wages at the work at which he

M ~ S employed: or

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(ii) he was suspended pursuant to certam o t h e r l e g i s l a t i o n

from h l s u s u a l employment on account of having

contracted such a d i sease ; o r

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(iii) h i s d e a t h was caused by such a d isease

“and t h e d i s e a s e is due t o t h e n a t u r e of any employment in

wli ich the workman was employed a t a n y t i m e w i t h i n t h e t w e l v e

m o n t h s p r e v i o u s t o t h e d a t e of t h e d i s a b l e m e n t or suspens ion ,

whether under one or more empZoyers . . . l ’ he w a s , sub jec t

t o c e r t a i n m o d i f i c a t i o n s , e n t i t l e d t o compensation a s i f

the d i sease were a personal in jury by acc ident a r i s ing ou t o f

and i n t h e c o u r s e o f t h a t employment.

The provis ions for the last employer obtaining

contribution from o r sh i f t i ng l i ab i l i t y t o p rev ious employe r s

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“8. ( c ) the compensat ion shal l

be mon ths recoverabZe from

the employer who l a s t employed the workman

dur ing t he sa id twe lve i n the employment

t o t h e n a t x r e	of	which	t he	d i sease	was	due.
P r o v i d e d t h a t	-

l i l	. . .
( i i l	if t h a t e m p l o y e r a l l e g e s t h a t t h e
d i s e a s e was in f a c t c o n t r a c t e d w h i l s t
t h e workman was i n the employment of
some other empZoyer, and n o t w h i l s t i n h i s
employment, he may jo in such o ther employer
a s a p a r t y t o t h e a r b i t r a t i o n , and if t h e
a l l e g a t i o n is proved t ha t o ther employer
s h a l l b e t h e employer from whom t h e
compensat ion is t o b e r e c o v e r u b l e ; and
l i i i l	if t h e d i s e a s e is of such a n a t u r e a s t o
be contrac ted by a gpadual process,. any
o ther employers , who d u r i n g t h e s a d
twelve months employed the workman i n t h e
employment t o t h e n a t u r e of which t he
d i s e a s e was d u e , s h a l l b e l i a b l e t o make
t o t h e e m p l o y e r from whom cornpensation is
r e c o v e r a b l e s u c h c o n t r i b u t i o n s a s , i n

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d e f a u Z t o f a g r e e m e n t , may be de termined

in t h e a r b i t r a t i o n u n d e r t h i s A c t for

s e t t 2 i n g t h e amount of the compensat ion ."

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In Blatchford v. Staddon and Founds the House of

Lords overruled the decis ion of the Court of Appeal i n

Dean v. Rubian A r t Pottery Limited (1914) 2 X.B. 313

which required the workman t o prove that he had contracted

h i s d i s e a s e i n t h e employment o f h i s last employer. The

House of Lords by laying emphasis on the words "nature of"

i n t he ph rase " the d i sease is due t o t h e n a t u r e o f any

employment" held t h a t it was s u f f i c i e n t f o r t h e workman t o

show t h a t t h e d i s e a s e was due t o t h e k i n d o r c l a s s o f

employment i n which t h e workman was engaged. Lord Sumner

s a i d ( a t p. 4 7 0 ) -

"In c o n s t r u i n g t h e A c t e f f e c t m u s t b e g i v e n t o t h e

words ' t o t h e n a t u r e of l . Their meaning cannot

b e t h e same as if t h e s e c t i o n had simply said 'is

due t o ' any empZoyment. I t h i n k t h e y a r e i n s e r t e d

because t h i s p a r t o f t h e s e c t i o n is n o t cozcerned

d i r e c t Z y w i t h s o m e t h i n g arising o u t of t h e p a r t i c u Z a r

s e r v i c e of t he par t i cuZar employer s xed , bu t w i th

r e s u l t s w h i c h a r e i n c i d e n t a Z t o t h e c2ass of emptoyment,

in which t h e workman has served severa2 empZoyers.

If t h e d i s e a s e is i n c i d e n t a Z t o t h a t c l a s s of

empZoyment so t h a t it can b e a t t r i b u t e d t o s e r v i c e

t h e r e i n , t h e n h e is t o be compensa ted" .

P r i o r t o t h i s d e c i s i o n t h e view was t a k e n t h a t it

was both necessary and sufficient for the workman to recover

compensation,that he show h i s d i s e a s e was caused by the

spec i f i c tasks h e d i d f o r h i s las t employer. That is,

by showing t h a t t h e d i s e a s e was caused by the i nc iden t s of

h i s l a s t p a r t i c u l a r employment.

Only occupat ional diseases were compensable, as

compensation was only payable in respec t of the d i seases

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l i s t e d i n t h e s c h e d u l e a g a i n s t t h e p r o c e s s e s by which

typ ica l ly they were caused. The dec is ion of+he House of

Lords in Blatchford v. Staddon and Founds was t h a t it was

not necessary for the workman t o prove causation by his

las t employment. A s a d i sease was necessar i ly o f the k ind

known as an occupat iona l o r indus t r ia l d i sease , p roof tha t it

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w a s contracted because of the tasks performed i n t h e las t

employment would automatical ly show t h a t it was due t o t h e

nature of the workman's employment, provided those tasks were

par t o f the re levant p rocess descr ibed in the schedule (see

genera l ly Willis's Workmen's Compensation A c t s 37th Edn p. 6 1 7 ) .

I t would not be p roper to re ly on the language used i n

English cases to suppor t a p ropos i t l on i n t h i$ ca se t ha t p roo f

of the par t icu lar inc idents of t h e employment w i l l s u f f i c e t o

prove the nature of the employment. Such language would be

j u s t i f i e d i n t h e E n g l i s h cases simply because the compensable

d i seases were r e s t r i c t e d i n t h e s c h e d u l e t o o c c u p a t i o n a l o r

i n d u s t r i a l d i s e a s e s .

In Smith v. 9 (1932) 47 C.L.R. 426 , t h e High Court

considered the provisions of the Workers' Compensation A c t 1 9 2 6

(N.S.W.) . The A c t provided for the payment of compensation

where a worker received a pe r sona l i n ju ry i n t he cou r se o f

h i s employment. "Injury" w a s def ined m S. 6 t o i nc lude

" . . . a d i sease which i s contracted by t h e worker i n t h e

course of his employment . . . and t o which the employment

was a which was of such con t r ibu t ing f ac to r " . Where t h e i n j u r y was a d isease

a na tu re as t o be contracted by a gradual

process, compensation was t o be recovered from t he las t

employer, who could recover contr ibut ion from previous

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employers who had within the relevant twelve month per iod

employed the workman I n t h e employment "to the nature of

which the d i sease was due". Section 7 ( 4 ) .

The High Court by majority applied Blatchford v.

Staddon and Founds and held t h a t it was not necessary to

prove t h a t t h e d i s e a s e w a s caused by the employment of the

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l a s t employer. S t a rke 3. held that while the language

and scheme of the N e w South Wales A c t d i f f e r e d from t h e

English Workmen's Compensation A c t 1 9 0 6 , it should recelve

t h e same i n t e r p r e t a t i o n i n t h i s r e g a r d as t h e l a t t e r A c t .

I t was h e l d t h a t where a workman recovers compensation under

s . 7 ( 4 ) f o r a disease cont rac ted by a gradual process , the

d i sease had t o be one due t o t h e n a t u r e o f t h e employment

(see per Dixon 3. a t p. 4 4 9 ) . The same p r inc ip l e was

appl ied by the Ful l Court of the Supreme Court of New South

Wales i n Dow v. Commissionerfor Railways (1952) 26 W.C.R.

(N.S.N.) 73.

A fur ther discussion pr ior to Bourne 's Case of the

meaning of the words "nature of the employment" i s i n

Taylor v. the major i ty o f the Ful l Cour t o f the McQueen and Williamson 119541 V.L.R. 661. There

Supreme Court of

Victor ia (being concerned with the aggravat ion or accelerat ion

of a d i s e a s e ) h e l d t h a t f o r a d i sease t o be due t o t h e nature

of t h e employment it must be shown t h a t t h e employment has

a general tendency on employees who may be engaged i n it t o

acce le ra t e o r agg rava te t he d i sease . I t i s i n s u f f i c i e n t

t h a t it be shown tha t t he d l sease o f t he worker in ques t ion

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was so aggravated or accelerated by his occupat ion (per Gavan

Duffy and Hudson JJ. a t p. 671.)

The l e g i s l a t i o n i n q u e s t i o n i n Commonwealth v. Bourne

(1960) 1 0 4 C.L.R. 32 was t h e Commonwealth Employees'

Compensation A c t 1930 - 1959 which i n a l l m a t e r i a l r e s p e c t s

was the same a s t h e Ordinance presently under consideration.

There are two important di f ferences between that legis la t ion

and the Engl ish Workmen's Compensation A c t s . F i r s t , i n t h e

f o n e r l e g i s l a t i o n t h e compensable d i seases a r e no t

r e s t r i c t e d t o t h o s e l i s t e d i n a schedule aga ins t par t icu lar

work processes, and secondly, the requirement of causation

I is t h a t t h e d i s e a s e b e due " to the na ture o f - t he employment",

and no t t o " the na tu re o f any employment" which were t h e

words used Notwithstanding these differences the	i n t h e E n g l i s h l e g l s l a t i o n	(see	s.8(1))).
High	Cour t he ld tha t

not only was it not necessary for the worker to show t h a t

h i s d i s e a s e w a s caused by the t a sks of h i s employment

(Blatchford v. Staddon and Founds) bu t a l so such ev idence

was n o t s u f f i c i e n t t o p r o v e t h a t t h e d i s e a s e vras due t o t h e

na ture of h i s employment. The worker who v7as an inves t iga t ing

I

o f f i c e r i n t h e Sales Tax Branch of the Taxation Department died

of coronary sclerosis and myocardia1 degeneration. There was

evidence tha t a pa r t i cu la r t a sk o f i nves t iga t ion t o which he

had been asslgned had caused much f r u s t r a t i o n and anxiety.

The High Cour t he ld tha t no t on ly was the ev idence insuf f ic ien t

t o prove t h a t h i s employment had caused or aggravated hls

h e a r t d i s e a s e , b u t t h a t i n any event there was nothing i n the

na ture o f the employment as an inves t iga t ing of f icer o f sa les

- 14 -

tax cases that tends to cause heart diseases. Dixon C.J.

gave three reasons for refusing the deceased's widow's

claim for compensation. The first two concern the

insufficiency o€ the evidence to establish that the- work

the deceased was doing caused or aggravated his degenerative

heart condition.	The third reason was stated(at pp. 38-39)
as follows :

"ln t h e t h i r d p l a c e , I do n o t t h i n k t h e e x p r e s s i o n

i n S. lOtll ' d u e t o t h e n a t u r e of the employment

i n which the employee i s engaged' covers an employment

which has no p a r t i c u l a r t e n d e n c y t o g i v e r i s e t o a

d i s e a s e , c o n t r i b u t e or conduce t o it or a c c e l e r a t e

it and no i n c i d e n t , a d j u n c t or q u a l i t y o f w h i c h

i n v o l v e s t h o s e e m p l o y e d t h e r e i n i n a n y p a r t i c u l a r

l i a b i l i t y t o t h e c o n t r a c t i o n o f t h e d i s e a s e o r t o

t h e a g g r a v a t i o n or a c c e l e r a t i o n o f i t s course . . ..

The word 'nature' i s a wide a s w e l l a s a vagxe word

and one m u s t b e c a r e f u l n o t t o n a r r o w i t s a p p l i c a t i o n

or a t t e m p t t o r e d u c e it t o t o o much p r e c i s i o n . B u t

it does seem t o r e f e r t o a connex ion be tween t he

' d i s e a s e ' i n t h e d e f i n e d s e n s e and t h e d e s c r i p t i o n

of empZoyment i n v i r t u e o f i t s t e n d e n c i e s , i n c i d e n t s

or c h a r a c t e r i s t i c s . T h e i n v e s t i g a t i o n of s a l e s t a x

c a s e s a p p e a r s t o me t o have no th ing i n i t s n a t u r e

t o acceZera te vascu lar and c a r d i a c d e g e n e r a t i o n and

i f Bourne's employment i s d e f i n e d i n t h e w i d e r t e r m s

o f a n o f f i c e r o f t h e T a x a t i o n D e p a r t m e n t I know of

n o t h i n g i n t h e n a t u r e o f t h a t e m p l o y m e n t t o do so."

Fullagar J. said (at p. 40) :

" I t was not shown, nor, I should imagine , cox ld i t

have been shown, that a c h a r a c t e r i s t i c or d i s t i n c t i v e

f e a t u r e of employment a s a t a x a t i o n i n v e s t i g a t i n g

o f f i c e r was a t e n d e n c y t o cause a r t e r i a l s c l e r o s i s

o r myocardia2 degenerat ion , o r t o a g g r a v a t e o r

a c c e l e r a t e a n e x i s t i n g c o n d i t i o n o f a r t e r i a l s c l e r o s i s

o r myocardia2 degenerat ion . Such a t endency , so f a r

a s appeaps, was no more p a r t of t h e n a t u r e of

Mr. Bourne's employment than of the nature of any other

responsible employment. That employment was not, s o

far a s I can s e e , of such a na ture as t o e x p o s e

Mr. Bourne t o a s p e c i a l r i s k of contrac t ing any

p a r t i c u l a r d i s e a s e o r of s u f f e r i n g an aggrava t ion or

a c c e l e r a t i o n o f a n y p a r t i c u l a r d i s e a s e and S. 10 a p p l i e s ,

i n my o p i n i o n , o n l y t o c a s e s i n w h i c h t h e r e i s s u c h a

s p e c i a l r i s k . "

I do not find it necessary to quote fully from the

other judgments in that case, but I do consider that they are

- 15 -

t o t h e same effect. Taylor, Menzies and Windeyer JJ. a l l

took the view that the provis ion was concerned with occupational

diseases. Menzies J. s a i d ( a t p. 4 4 ) :

“The words w i t h t h e n a t u r e o f t h e ‘ t h e n a t u r e of t h e empZoyment’ a r e s i g n i f i c a n t

and i n d i c a t e t h a t t h e a p p r o p r i a t e e n q u i r y is concerned

empZoyment and i t s r e z a t i o n s h i p

w i t h t h e d i s e a s e w h i c h b r o u g h t a b o u t d e a t h r a t h e r t h a n

w i t h how t h e d i s e a s e w a s , in fhe par t icuZar c a s e , c o n t r a c t e d

or acceZerated : B t a t c h f o r d #. Staddon and Founds.

Uo twi ths tand ing t he d i sappearance of t he s cheduZe o f

i n d u s t r i a 2 d i s e a s e s , S. l0 does no t cover every case

where i t can be sa id t ha t work ing has t ened an empZoyee’s

i n c a p a c i t y or d e a t h f r o m d i s e a s e . If

Exact ly the same p r inc ip l e was enunciated in Commonwealth

v. Thompson (1960) 1 0 4 C.L.R. 48 where a l l of the Jus t i ce s o f

t h e High Bourne‘s Case. For Cour t re fe r red to and re l ied upon t h e i r r e a s o n s i n

example, Taylor J. sa id ( a t p. 55) :

I “As in Bourne’s Case, and f o r Z i k e r e a s o n s , I am

s a t i s f i e d t h a t c o n s i d e r a t i o n of the evidence shouZd

n o t Zead t o t h e c o n c Z u s i o n t h a t t h e work which the

deceased’ s ernpZoyment required h im t o p e r f o r m pZayed

any p a r t wh ich ha% a f fZ ic t ed h im f o r such i n a c c e Z e r a t i n g t h e p r o g r e s s of t h e d i s e a s e

a Zong Cime or in

b r i n g i n g a b o u t h i s d e a t h on 9 t h JuZy 1 9 5 8 . But even if

it d i d , t h e r e a s o n s g i v e n in Bozrne’s Case make i t q u i t e

d e a r t h a t h i s d e a t h was not caused by a d i sease wh ich was

due t o t h e n a t u r e o f t h e empZoyment i n which he was

engaged. If

Menzies J. s a i d a t t h e same page :

”For the r easons wh ich I h a v e g i v e n i n my judgment i n

The Commonwealth v . Bourne I c o n s i d e r t h a t , e v e n i f t h e

ev idence d i d e s t a b Z i s h t h a t t h e r e s p o n s i b i Z i t i e s of t h e

o f f i ce s wh ich he occup ied in the Taxat ion Depar tment d i d

aggravate or a c c e t e r a t e t h e coronary disease f rom which

he was aZready s u f f e r i n g , t h a t d i s e a s e w h i c h e v e n t u a Z Z y

c a u s e d h i s d e a t h was n o t d u e t o t h e n a t u r e o f h i s

empZoyment, and t o t hose r easons I have no th ing t o add .

Nindeyer J. s a i d ( a t p . 56) :

“For a d i s e a s e t o b e d u e t o t h e engaged, n a t u r e o f t h e empZoyrnent

i n wh ich t he empZoyee was the empZoyment must

b e s u c h t h a t it o r d i n a r i z y t e n & t o c a u s e t h a t d i s e a s e .

Tha t i s t o s a y , it must be a p r o p e r t y o f

tha t form o f employment

- 16 -

" t o p r o d u c e t h a t d i s e a s e - so t h a t c o n t r a c t i n g

t h a t d i s e a s e c a n b e s a i d t o be a n a t u r a l r e s u l t

of being engaged i n t h a t emptoyment."

Unless the High Court has subsequently departed from

the principle of those decisions they are undoubtedly binding

on this Court. Counsel for the respondent submitted that

the passages contained findings of fact, and did not lay

down binding principles of law. But the findings show

what are the proper issues for adjudication, and do lay down binding principles of law notwithstandmg that they are concerned with the facts of the instant cases.

It was suggested by counsel for the respondent that

there had been a departure from these principles in

Commonwealth v. Rutledge (1964) 111 C.L.R. 1. In that

case the respondent suffered a mental disorder known as latent

paranoia which, in view	of the terms of the definition of
"disease", was regarded	as a non-incapacitating disease. The

respondent was employed as a clerical assistant in the

telephone accounts section of the Postmaster-General's

Department. For approximately one week prior to her having a complete mental break-down she was carrying out special duties which involved her in spying on her fellow employees

in order to detect the theft of certain documents. Although

sake of

she nominally continued to perform her former duties for the/

appearance and disguise, her efforts were entirely bent on

the investigation. Her subsequent break-down was a severe

I psychotic disorder. The High Court held by a majority

- 17 -

(Owen J. dissenting) that there had been an aggravation of

her pre-existing disease due to the nature of her employment.

I

Much of the -Judgments were concerned with whether effect

could be given to the definition of disease as including

the aggravation, acceleration or recurrence of a pre-

existing disease. The majority (Taylor and Menzies JJ.) held that it could, and on this point Owen J. dissented.

I

The majority accordingly held that the issue was whether the

aggravationof her pre-existing disease was due to the nature

of her employment. On this Taylor J. said iatp. 7) :

l '. . . (The Zearned County Court judge) respondent found ' that the

par t icu lar task (upon which the was

engaged) was a t t e n d e d , i n i t s v e r y n a t u r e b y t h e

dangers t o Za ten t parano ids of a p s y c h o t i c o n s e t '

. . . . T h i s f i n d i n g was chaZZenged by the appeZZant

b u t it was one which was fuzzy j u s t i f i e d by t he

ev idence and no s u f f i c i e n t r e a s o n s why we shouZd

d i s a g r e e w i t h it . . . have been advanced."

Menzies J. said(at p. 11):

" . . . t h e q u e s t i o n h e r e seems t o b e w h e t h e r t h e

n a t u r e of t h e r e s p o n d e n t ' s ernpZoyment w i t h t h e

appeZZant was such a s t o expose a Za ten t parano iac

t o a s p e c i a Z r i s k of b e i n g t u r n e d i n t o a n a c t i v e

p s y c h o t i c p e r s o n .

I t i s , of c o u r s e , n o t s u f f i c i e n t t o a t t r a c t S . 10

t h a t t h e a p p e Z Z a n t ' S empZoyment brought about the

change which occurred; i t i s s u f f i c i e n t , h o w e v e r ,

i f t h e s p y i n g w h i c h was h e r empZoyment f o r t h e t i m e

b e i n g , had i n i t s na ture some th ing t o aggrava te a

p r e - e x i s t i n g c o n d i t i o n of Zatent paranoia or t o

acceZera te a c h a n g e f r o m t h a t c o n d i t i o n i n t o t h a t of

a c t i v e p s y c h o s i s . Here I t h i n k t h e e v i d e n c e d i d

h a v e t h e r e q u i s i t e g e n e r a Z i t y . "

Certainly I do not consider that Menzies J. adopted

any different approach from that taken in Bourne's Case either in the formulation or application of the relevant principle. Havlng defined the relevant employment as her

I I

!	. .
I	.
I

I - la -

spying work, he was satisfied that it was of the nature of

that employment, that is, of spying, that it would aggravate

the respondent's latent paranoia into a psychotic disorder.

Counsel, in argument, spoke of the nature of the employment as that of "investigating agent". The passage from the

I

judgment of Taylor J. is not entirely clear on the question

of "nature of employment". The reference to the "specific

task" of the respondent may suggest that his Honour was

looking to the particular incidents of her employment, or

his Honour may have considered that that formulation was

sufficient to define the nature of the respondent's employment

for the time being as the work of spying or investigating

agent. If the latter is correct then there is no essential

difference in the approach of Taylor J. from that of Menzies J.

I

However that may be, I consider that if there is anything in Rutledge's Case that departs from the principle of Bourne's Case and Thompson's Case it is insufficient to justify this Court from departing from the principle of the latter cases.

A fortiori where in the present instance there is not a

pre-existing disease which is aggravated as there was in Rutledge's Case but only a pre-disposition to the sufferance

of the disease.

The question then is whether there is sufficient

evidence before the trial judge to justify the finding that

the respondent's disease was due to the nature of his employment. ,

The first task is to define what is the relevant sphere of employment.

t

- 19 -

One may look at the tasks and duties performed by the respondent in his actual employment for the purpose of

arriving at this classification. However, there is a

limit as to how far one can take this, because the

classification which one is seeking to determine, is one

which if there were previous employers may be applied in

transferring some liability to them (see s.9(1A)). Where,

as here, there is only one employer this limitation may

seem to introduce an element of unreality. Nevertheless,

the cases require the determination of the nature of the

employment in this way.

In the present case, one consequence is that although

one may look to the tasks and duties performed by the

respondent in his actual employment in order to characterise

it, one cannot take the further step of looking at all the

incidents and circumstances occurring in that employment

mcluding particular incidents giving rise to Mr. Frederiksen's

anger and frustration.

It is true that in Bourne's Case Dixon C.J. was

prepared to regard the sphere of employment as that of an

!	officer in the Taxation Department, and in Thompson's Case
his Honour considered the nature of the employment "of a
Deputy Commissioner of Taxation or any lower office", (p. 531,
but the very relevance of identifying a particular named
employer in this case would be to bring into consideration the actual incidents and circumstances which occurred during the
respondent's employment with Connair. In any event it does
not appear that the remainder of the Court in Bourne's Case

- 20 -

and Thompson's Case were prepared to define the sphere of

employment any more closely than as a tax investigation officer

and a tax collector respectively. The respondent in his

particulars stated the nature of his employment was "Airline

Captain". For my part I would characterlse it as employment

as a pilot with a small commercial airline.

In my view the area in which this employment would take place can be confined to the jurisdiction to which the Ordinance applies, that is, the Northern Territory, and can

also be identified as taking place at the same time as the

respondent's actual employment. This enables the Court to

regard as incidents or qualities of the nature of the

employment in question, the distances of flight involved,

the landing facilities of the Northern Territory airports,

the maintenance facilities available, and the like. It also

includes as an incident of such employment the circumstances

surrounding the cyclone and the Darwin evacuation.

It does not appear to me that either Bourne's Case

or Thompson's Case requires the same approach to be taken

in this case as was taken by the majorlty of the Full

Victorian Supreme Court in Taylor v. McQueen and Williamson

where it was said that proof was necessary that the

employment had a tendency to cause, (or in that case

aggravate or accelerate) a disease amongst the employees

generally. It is true that so much would appear from the

judgment of Windeyer J. in Thompson's Case in the passage

previously quoted, but I do not regard the remainder of the

I .

i

- 21 -

Court as going so f a r . I f one does requlre that the

d i s e a s e a f f e c t employees generally, no scope could be given

t o t h e pre-disposition of the r e sponden t t o su f f e r h i s phob ia .

But al though the phrase "nature of the employment" r equ i r e s

I

a degree of abstract ion in the considerat ion of what is the

employment, I cannot understand why it r e q u i r e s t h a t t h e

worker l o s e h i s i d e n t i t y . If t h e p a r t i c u l a r d i s e a s e which

the worker s u f f e r s is due t o t h e i n c i d e n t s and q u a l i t i e s o f

h i s c l a s s o f employment, it is su re ly due t o t h e n a t u r e o f

h i s employment notwithstanding it is not contracted by o the r s .

I f h i s d i s e a s e is a l so con t r ac t ed by o the r employees no doubt

the proof of causation i s easier , but such evidence is no t

e s s e n t i a l . On appropriate medical evidence it may be

shown t h a t M r . Frederiksen's phobia was due t o t h e i n c i d e n t s

of working as a p i l o t i n a small commercial a i r l ine in the

Northern Terr i tory over a period which included the cyclone

and i ts aftermath. That might be a d i f f i c u l t matter t o

prove, but it is what the l eg is la ture has en jo ined . I f it 1s

proved I d i sease no twi ths tanding tha t consider it can be properly cal led an occupat ional

it is not suf fe red by o the r

p i l o t s , and I c o n s i d e r t h a t h i s p r e - d i s p o s i t i o n t o t h e

d isease can be t aken in to account in making that assessment .

Does t h e e v i d e n c e s a t i s f y t h i s t e s t ? This case has

caused m e some d i f f i c u l t y , b u t I have come to the conclus ion

I

t h a t it does not. The medical evidence ra ther goes to show

t h a t it was M r . Frederiksen's suppressed anger with Connair,

anger a t the s tandards of maintenance and lack of a t tent ion

to h i s compla in ts , (and it does not mat ter whether that anger

- 22 -

was justified or not), that was relevant. The fear of his

anger, working on his personality and aggravated by the

cyclone and the difficult conditions in its aftermath was

the cause of his phobic condition. This lacks the generality

required to show that the phobic condition was due to the

nature of his employment rather than his relationship with

Connair .

When questions were addressed to Dr. Litt which ralsed

the question whether the disease was due to the general

nature of the employment, Dr. Litt in his answers stressed

the effect of the particular relationship with Connair.

" Q . I n wha t way , doc tor , a s suming t he h i s to ry t ha t

Mr. F r e d e r i k s e n h a s cyc lone g i v e n i n t h e w i t n e s s b o x , i s

t h e h i s t o r y of a h y p o t h e t i c a l p a t i e n t - i n what

way would you see the and t h e a f t e r m a t h

a s b e i n g r e l a t e d	t o t h e t r i g g e r i n g	off	of	t h e
p h o b i c c o n d i t i o n	?

A . He h a s t o go on working i n a s i t u a t i o n w h i c h i s

n o t i d e a l . He c a n c o p e w i t h t h i s f o r a c e r t a i n

t ime because o f t he . . . everyone has t o dea l

w i t h t h e d i f f i c u l t s i t u a t i o n , b u t he i s working a

b i t l o n g e r h o u r s . He i s work ing under s t ress , he

i s h a v i n g t o f l y p l a n e s w i t h more p e o p l e i n t h e m .

He d o e s n o t s e e t h a t ' t h e p l a n e s a r e a s s a f e a s t h e y

should be and f o r t h i s he f e e l s a n g r y a t C o n n a i r .

There i s a g r e a t d e a l of a n g e r e x p r e s s e d a t

Connair and t h e way t h e y d i d n o t c o p e w i t h t h e i r

p l a n e s and t h e y d i d n o t d e a l w i t h h i s c o m p l a i n t s

and he f e l t he was b e i n g b r u s h e d o f f . And t h e s e

a l l t e n d t o make him f e e l more r e s e n t f u l and a s

t h i s a n g e r b u i l d s up and he can do l i t t l e a b o u t

i t , t h i s i s when h i s phob ic s ymptoms s ta r t .

. . . . . . . . .

Q. Do y o u c o n s i d e r t h a t h i s p h o b i a a g a i n s t f l y i n g

would have become manifest i f he was w i t h a n o t h e r

I

a i r l i n e , u n d e r much t h e same c i r c u m s t a n c e s , t h a t

i s , c i r c u m s t a n c e s o f t h e c y c l o n e o f h i s p r o b l e m s

w i t h h i s f a m i l y , o f h i m r e f e r r i n g t o c e r t a i n

d e f e c t s i n t h e a i r c r a f t a n d , s h o u l d I add, perhaps

some r e a c t i o n a g a i n s t o n e o f t h e members o f t h e

company concerned ? Do y o u c o n s i d e r t h a t was

p e c u l i a r l y . . . ?

- 23 -

" A . A 2 2 t h o s e t h i n g s , e s p e c i a t l y h i s a t t i t u d e t o t h e

company and h i s not b e i n g t a k e n s e r i o u s l y when

he po in t ed ou t t h ings t ha t were go ing wrong , ye s ,

I t h i n k it would have. ' I

This I consider ties the matter too closely to his

relations with Connair. Under the Ordinance the onus was

on the respondent to prove that the disease was due to

the nature of the employment, as that phrase is to be

properly understood. Although it is not the task of the

appellate court to substitute its opinion of the facts for

those of the trial judge, in this case I consider that the

learned trlal judge misapprehended the nature of the evidence

which would justify a finding that the disease was due to the

nature of the employment. In my opinion the learned trial judge regarded the totality of the incidents of the respondent's actual employment as sufficient evidence of the

nature of the employment. That is not so. As I consider

that the trial judge misdirected himself on this point, and as I do not consider there is sufficient evidence to justify

a finding that the disease was due to the nature of the

employment, I would allow the appeal.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NORTHERN TERRITORY DISTRICT REGISTRY	) No. NTG 10 of 1977
)

DIVISION GENERAL 1

On Appeal from the Supreme Court of the Northern Territory.

B E T W E E N :

CONNAIR PTY. LIMITED

Appellant

- and -

DAVID ANTHONY FREDERIKSEN

Respondent

FRIDAY 18 AUGUST 1978

REASONS FOR JUDGMENT ST.JOHN J.

The respondent, Davld Anthony Frederiksen, was for approximately

six years an airline pilot employed by the appellant, an alrline

operator carrying on business principally In the Northern

Territory. The respondent applied for workers' compensation

pursuant to the Workmen's Compensation Ordinance 1949 of the

Northern Territory. The relevant section	of that Ordinance is
s.9(1) which is in the following terms:-

. ./2

I	c
l

I	-2-
i

"S.9(1)

Where -

(a) a workman is suffering from a disease and

is thereby Incapacitated for work: or

(b) the death of a workman is caused by a

disease,

and the disease is due to the nature of the employment in which the workman was employed, his employer shall,

subject to thls Ordmance, be llable to pay compensatlon

in accordance wylth thls Ordinance as if %he disease

were a personal injury by accident arising out of or

in the course of his employment."

This section is in almost Identical terms to s.lO(1) of the

Commonwealth Employees' Compensation Act 1930 (the Act) whyhlch

has been the subject of a number of High Court decisions.

Section 6(1) of the Ordinance defines "disease" as including:

"any physlcal 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

dlsease. "

The respondent's application for compensation was first dealt

with by a Tribunal whyhlch made an award in favour of the respondent

and thereafter, pursuant to the Ordinance, the employer appealed

to a single Judge of the Supreme Court of the Northern Terrltory.

This appeal was in the nature of a re-hearing but no evidence

additional to that called before the Tribunal was adduced: the

learned Judge relying upon the transcript of evidence taken

before the Tribunal. There is no apparent conflict of evidence

nor was the respondent's or his witness' version of the facts

',

challenged in cross-exminatlon.

. /3

-3-

Shortly, the facts relied upon, and found by Muirhead J. were

that the respondent's early life and background contrlbuted

to a personality described by an expert psychiatrist as

"obsessive" or "compulsive", which, by way of explanatlon and

I	translation into lay language meant "perfectionist". That
psychiatrist said, "a perfectionist likes things to be neat
and tidy, everything has to be in its place and he gets worried
if it is not so. He is imposing his concept of what he thlnks
is order on the outside world". The respondent achieved
his ambltlon of becoming a commercial alrllne pilot and a
good one but hIs personality predisposed him to a phobia
against flying. The learned trial Judge found that the respondent ceased to fly aeroplanes "not because he had
obsessive views as to standard, not because he was a perfectionist
but because he developed fear, an averslon to flying which he I .
could not control". The learned trial Judge found that this
neurosis fell wlthm the statutory concept of &sease and
developed as a reaction to flying in unusual circumstances
after a cyclone which devastated the Darwln area in December, 1974.
The development of the neurosis, in the psychiatrist's view, occurred when he was worklng under stress in the aftermath of the cyclone. A detalled analysis of the Incidents which
manifested the "compulsive" or "obsessionist" mental attitudes of the respondent need not be undertaken. Suffice It to say that the evidence clearly indicated that the transition
from personality defect to neurosis appears to have taken place over a long period of time. The point at which the

- ./4

-4-

respondent's condition became morbid is not important but

it is conceded by the appellant's counsel that it did become

I

morbid before the neurosis developed proportions disabling

the respondent from flylng.

The appellant contends here, as it did before Mulrhead J.

that the disease was not due to "the nature of the employment"

in which the workman was employed and in support of that

proposition relies heavily upon The Commonwealth v Bourne (1959)

104 C.L.R. 32 (Bourne's Case) In which the Court consisted of

the Chlef Justice, Sir Owen Dixon, Fullagar J.. Taylor J..

Menzies J. and Windeyer J.. Two further cases have to be

consldered: The Commonwealth v Thompson (1959) 104 C.L.R. 48

(Thompson's Case) where the court was of the same composltion as in Bourne's case (and the judgment was delivered on the I

same day) and The Commonwealth v Rutledqe (1969) 111 C.L.R. 1

where the Bench comprised Taylor J., Menzles J. and Owen J..

It is to be noted that Taylor J. and Menzles J. sat on all three

cases. Shortly, Bourne's case was one in which the issue was whether or not there had been sufficlent evidence that an investigating offlcer in the Sales Tax Branch in the Taxation

Department of the Commonwealth who died from coronary sclerosis and myocardia1 degeneration (which diseases had developed over

a number of years) had died from a disease "due to the nature

of his employment". The Chief Justice held that the positive

answer to the question posed, given In the Court appealed from,

could not stand for three reasons. Firstly, that it had not

been sufficiently shown that employment upon which Bourne was

engaged formed the source of any psychiatric condition which

. ./5

-5-

may have borne upon the progress of the cardlac dlsease and

failure. Secondly, the Chief Justice said that he did not

think it established that there was any acceleratlon caused by

his work or its nature and thirdly, he did not think the

expression in s.lO(1) "due to the nature of the employment

in which the employee is engaged" covers an employment "which

has no particular tendency to give rise to a disease, contribute

or conduce to it or accelerate it and no incident, adjunct or

quallty of which involves those employed therein in any

particular liability to the contractlon of the disease or to

the aggravation or acceleration of its course."

His Honour then went on to refer to s.43(1) of the Workmen's

Compensation Act 1925 of the United Klngdom and quoted

Blatchford v Staddon and Founds 1927 A . C . 461 as authority

for the proposition that the purpose of the introductlon of

the phrase was to provide for ready recourse by the employee

to the latest employer who employed him in work to the nature

of which his complamt was due independently of the question

whether worklng for that particular employer contributed at

all to his condition or aggravated it or accelerated its

development.

In the same report, Fullagar J. at page 40, said this:

"It was not shown, nor, I should imagine, could It

have been shown, that a characteristic or distinctive

feature of employment as a taxation investigating

officer was a tendency to cause arterial sclerosis

or myocardlal degeneration, or to aggravate or

accelerate an exlsting condition or arterial

sclerosis or myocardia1 degeneration. Such a

tendency, so far as appears, was no more part

. . / 6

-6-

of the nature of Mr. Bourne's employment than of

the nature of any other responsible employment.

That employment was not, so far as I can see, of

such a nature as to expose Mr. Bourne to a special

risk of contracting any particular disease or of

sufferlng an aggravatlon or acceleration of

any particular disease and s.10 applies, in my

oplnlon, only to cases in which there is such a

special rlsk. "

It will be seen Immediately that the test applied by the

Chief Justlce and Fullagar J. does not, as it is there expressed

seem to cover the case where an employee has a peculiar

propenslty or predisposition towards a particular disease OL

aggravation of it and the industry does not have a tendency

to induce the onset of the disease or aggravation to employees

without such propensity or predisposition.

Taylor J. took the view that the widow failed to establish

the relationship necessary, that is, that the disease had

been aggravated by dutles that Bourne was required to perform.

His Honour went on:

"Still less is it establlshed by proof that

the work of a particular lndlvidual has been

attended by worry and anxlety which, in turn, has aggravated or accelerated the progress of a particular disease."

Menzies J., at page 44 held that s.lO(1) of the Act:

"does not cover every case where it can be said that

working hastened an employee's incapacity or death

from disease. It does so only when the employment

ordinarily mvolves a rlsk of disease so that

the disease is "due to the nature of the employment".

The evidence here falls far short of showing that the

occurrence or aggravation of heart disease 1s in any

way typlcal of the occupation of tax investlgatmg."

. . / I

l

--I -

!

Again, those two judgments do not seem to offer the respondent

an easy passage on the evidence found by Mulrhead J. but

Thompson's case and Rutledge's case further elucidate.

Bourne's case was referred to in Thompson's case by Sir h e n

Dixon and his Honour polnted to his remarks in the latter

case as to the meaning of s.lO(1). In Thompson's case a

Deputy Commissioner of Taxatlon had died from a coronary

occlusion at a staff functlon. Again it was held that the

evidence was insufficient but there was more emphasis on the

specific tasks whyhlch the employee carrled out when it came to

consider the "nature of the employment". The chief Justice

said: -

"I do not think that the "nature" of the employment

of a Deputy Commissioner of Taxatlon or of any

lower office . . . 'I.

I

Taylor J. referred, at page 55, to "work which the deceased's

employment requlred him to perform	. . . ' I	and Menzies J. at
page 55 referred to:

"the responslblllties of the offices which

he occupled. . . ' I .

i

,

These latter statements are important in that they tend to

narrow the concept of "the nature of the employment" to what

the employee actually does rather than leave it broadly as

general disease-producing aspects of the industry in which

the employment is. However they were made in a context where the

Bourne's case was being applied.

. . ./8

-8-

I

Two aspects of Bourne's case and Thompson's case deserve

emphasis. Firstly the analysls of the relevant section does

not strictly, perhaps, fonn part of the ratlo decldendl In

either case. Both appeals were upheld on the ground of no

evidence of the employment producing or aggravating the disease.

Secondly, the question of predisposltlon in a particular employee

to disease or aggravation of a disease did not arise.

The facts in Rutledge's case, in essence, bear a strong

resemblance to the facts in the case under appeal in that

there was a predisposition to disease as the disease existed

in a latent or less serious form and a proven relationship

between the onset of disease and the precise work performed.

There, the applicant for workers' compensation was a female

clerical assistant In the telephone accounts section of the

Post Master General's Department who, being a latent paranox,

was assigned the task of spying upon her fellow employees In order

to detect malpractice and, wlthm some days of the performing of

that task, developed paranoia of psychotic proportions as a

direct result of those speclfic duties. Such were the facts found on appeal to the County Court of Victoria and on those

facts Taylor and Menzles JJ. refused to disturb the award of

compensation whilst the third member of the Court, Owen J.,

did not touch on the relevant question. As already indicated

Taylor and Menzies JJ. comprised part of the Bench that

decided Bourne's case and Thompson's case. Taylor J.

referred to Bourne's case and at page	7, said of s.10
of the Act:

-9-

"I think we are bound to apply that sectlon as far

as we can in accordance with Its terms. This is

not an easy task but irrespective of other

difficulties which may arlse In relation to the

section I think we are bound to hold that an

employee afflicted by a non-incapacitating

disease is entitled to compensatlon under

the section if by reason of an aggravation of

that disease he becomes incapacltated or dles

provided that the aggravatlon is shown to be due

to the nature of the employment	In which the employee
was engaged.

That the aggravation of the respondent's pre-

I existing disease was due to the nature of the

employment in which she was engaged at the

relevant time was established to the satisfaction

of the learned County Court Judge."

Menzies J. referred to Bourne's case and in particular to his

comments on the difficulty of lnterpretation of s.10 and then

went on to quote the Chief Justice,Slr Owen Dixon and of the employment" and whlch has already been quoted hereln.

Also, reference was made to the judgment of Sir Owen Dixon

and Windeyer J. in Thompson's case. His Honour then summarised

the question for the Court as whether the nature of Rutledge's

employment was such as to expose a latent paranoic to a

special risk of belngturnedinto an actlve psychotic person.

A similar question was posed by Muirhead	J. in the case under
appeal.

There is no mention In Rutledge's case of any evidence that

there was a general tendency to spur latent paranoia into

activity. The appllcation of the principle enunciated in

Bourne's case to the facts of Rutledge's case leaves scope

. ./l0

-10-

€or concluding that the particular effect of the work done

I

can be substituted for general tendency in the formulation

of the principle to be applied.

I am of the vxew that the learned t r i a l Judge was correct in

his approach and I would dlsmiss the appeal with costs.

I Dated : 7.3.14

IN THE FEDERAL COURT	OF AUSTRALIA	1
)

NORTHERN TERRITORY DISTRICT REGISTRY	)	No. NTG 10 of 1977
)

DIVISION GENERAL )

ON APPEAL from the Supreme Court

of the Northern Territory

BETWEEN :

CONNAIR PTY. LTD.

Appellant

AND

DAVID ANTHONY FREDERIKSEN

Respondent

CORAM : Bowen C.J., St. John and Gallop JJ.

REASONS FOR JUDGMENT

GALLOP J. : This is an appeal from a judgment of the Supreme

Court of the Northern Territory delivered on 20 April 1977,

whereby the present respondent was awarded compensation in

respect of his incapacity for work by reason of his having

suffered from a disease due to the nature of his employment.

The court was exercising its appellate jurisdiction under

the Workmen's Compensation Ordinance 1949 of the Northern

I

-2-

Territory of Australia. Section 26 of the said Ordinance

provides a right of appeal against a determination of the

I Workmen's Compensation Tribunal on a question of law or fact,

and provides that such appeal may be by way of re-hearing.

The court heard the matter by way of re-hearing. There was

no additional evidence called before the Supreme Court, the

evidence being confined to the evidence which had already been

given before the Workmen's Compensation Tribunal against whose

decision the present appellant appealed to the Supreme Court,

and now appeals to this court.

The ground of appeal before this court is that on the

facts and on the evidence before the Workmen's Compensation

Tribunal, the Tribunal should not have found that the worker

suffered an injury constituted by a disease which was due to

the nature of his employment, and that the Supreme Court sitting

on appeal should not have so found.

It is necessary to examine the provisions of the Irlorkmen's

Compensation Ordinance so far as they are relevant to this appeal. ,

Section 7 of the Ordinance provides for payment of compensation,

in accordance with the Ordinance, to a workman who suffers

personal injury by accident arising out of or in the course of

his employment. Section 9 provides that where a workman is

-3-

suffering from a disease and is thereby incapacitated for work

and the disease is due to the nature of the employment in which

the workman was employed, his employer shall be liable to pay

compensation, in accordance with the Ordinance, as if the

disease were a personal injury by accident arising out of or

in the course of his employment. Certain subsections were

added to s.9 by Ordinance No. 1 of 1970, the effect of which

was to provide for the compensation to be recoverable from the

employer who last employed the workman, for the joinder of any

previous employer by the employer so liable, and for contribution

in an appropriate case from any such other employer. I t Disease"

is defined in the Ordinance 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 present appellant (hereinafter called "the employer")

employed the present respondent (hereinafter called "the workman")

as a pilot from January 1969 until 31 &arch 1976 when the employer

gave the workman notice of termination of his employment on the

ground that he failed to satisfy the "prescribed medical

standard". The circumstances giving rise to the termination of

the workman's employment arose out of a series of incidents

concerning the safety of the aircraft which the workman was

-4-

required to fly in the course 01 his employment, the impact of

Cyclone Tracy which occurred on 24/25 December 1974 , and the

I development of a phobic reaction to flying as a result of which

he was incapacitated for flying, at least with effect from the

end of September 1975.

The evidence before the Workmen's Compensation Tribunal

established that prior to this incapacitating phobic reaction

the workman had an obsessive, compulsive personality. This

finding was not challenged on the hearing of the appeal before

the Supreme Court, and the issue before that court was whether

the workman was suffering from a disease due to the nature of

his employment or whether his incapacitating phobic reaction vas due to the nature of his underlying personality and other

events, some of family origin, some related to Cyclone Tracy,

and some due to frustrations such as past failure to gain

appropriate promotion. The learned judge found in favour of

the workman and awarded compensation accordingly.

This finding of fact, namely that the workman had a

pre-existing obsessive, compulsive personality, was not disputed

by counsel for the employer on the hearing of this appeal.

Counsel further conceded that such a condition could be

described as a disease within the meaning of the Ordinance, namely a mental ailment, disorder, defect or morbid condition.

I

-5-

In other words there was clearly a point of time prior to the

workman's final collapse at which it can be said that the

workman had a disease upon rvhich stresses were likely to act.

Counsel did not concede that the workman had suffered an

aggravation, acceleration or recurrence of a pre-existing

disease. The employer' S argument was that if, in fact, there

had been an impact by the employment on the pre-existing disease,

such an impact could be described as an aggravation or

acceleration, but on the facts in the case neither the disease

nor the aggravation or acceleration was due to the nature of

the employment within the meaning of	s.9 of the Ordinance.	I
I

Either or both of them could have been due to the employment,

but, so the employer contends, that is vastly different to them

1

being due to the nature of the employment.

The employer has set out in this appeal to explain the

true meaning of the phrase "due to the nature of the employment

in rvhich the workman was employed" as set out in s.9(1) of the

Ordinance. Reference was firstly made to two decisions of the

High Court on the interpretation of that phrase (where it

formerly appeared), subject to minor variations which did not

affect the meaning, in the Cornonwealth Employees' Compensation

- Act 1930-1970, since repealed. In The Commonwealth v. Bourne

(1959) 104 C.L.R. 32 at p.37 Dixon C.J. said :

I

-6-

" In the first place, I do not think that it

sufficiently appears that it was the employment

upon which Bourne was engaged that formed the

source of any psychological condition that may

have borne upon the progress of his cardiac

deterioration and failure. It is evident that

a degenerative condition of the heart had

developed in him progressively over a considerable

period and it is more probable than not that the

interaction of the deteriorating state of his

heart and vascular system with any work or pursuit

to rvhich he addressed himself would produce the

signs of stress and worry of which those near him

speak. It is fallacious to fix upon the investi-

gation to which he had been assigned or the nature

of his employment. In the second place, I do not

think that it is established upon a balance of

probabilities that there was any acceleration by

his work or its nature of the progressive

degenerative disease from which he suffered and

if I am called upon to form an opinion, upon the

materials before us I should think it was not so.

It must be remembered that this is an appeal upon

fact as well as law. In the third place, I do not

think the expression in S. 10( 1) 'due to the nature

of the employment in which the employee is engaged'

covers an employment which has no particular

tendency to give rise to a disease, contribute or

conduce to it or accelerate it and no incident,

adjunct or quality of which involves those employed

therein in any particular liability to the

contraction of the disease or to the aggravation or

11

acceleration of its course.

It is important to observe that the first two propositions set

out by the Chief Justice appear to be findings of fact. It is ;

only in the third proposition that he endeavours to explain the

meaning of the phrase. The further dicta appearing after the

third proposition make it apparent that the Chief Justice was

expounding the law only in the third proposition and not in the

-7-

first two propositions. I think that this is important in

understanding the real ratio of Bourne's Case. Immediately

after the third proposition the Chief Justice went on to say :

It The phrase 'nature of the employment' is,

of course, no novelty in this context in the law

of employers' liability: cf. s.43(1) of the

Workmen's Compensation Act 1925 of the United

Kingdom. In the provisions to which the use of

the expression is to be traced the purpose of

using the words 'due to the nature of the

employment' and not 'due to the employment' was

to provide for ready recourse by the employee

to the latest employer who employed him in work

to the nature of which his complaint was due

independently of the question whether working

for that particular employer contributed at all

to his condition or aggravated it or accelerated

its development; that employer could then claim

over against a previous employer employing the

claimant in work of a like nature and so on down

the line. It was accordingly necessary to make

the nature of the work the test and not the

actual work done o r the employment as it actually

affected the man. In a not very full form sub- ss. (3) and (4) exhibit the same principle. In

Blatchford v. Staddon & Founds Lord Sumner said

of the phrase: "In construing the Act effect must

be given to the words to the nature of'. Their '

meaning cannot be the same as if the section had

simply said is due to' any employment. I think '

they are inserted because this part of the section

is not concerned directly with something arising out of the particular service of the particular employer sued, but with results Iihich are incidental to the class of employment, in which the workman has served several emDlovers". So - <

in Eaton v. George Wimpey & Co. Mackinnon L.J.

for the Court of ADDeal said: "It is essential

to observe that the- words are 'due to the nature

of ' the employment and that they are not 'caused

by the employment' or 'contracted during the

-a-

employment'". The word 'nature' is a wide as well as a vague word and one must be careful

not to narrow its application or attempt to

I

reduce it to too much precision. But it does

seem to refer to a connexion between the

'disease' in the defined sense and the

description of employment in virtue of its

i I t

tendencies, incidents or characteristics.

Reference was also made to a passage appearing in the

judgment of Fullagar J. at p.40. Having disposed of any

suggestion that the worker in that case may have been entitled

to conpensation in respect of injury by accident arising out of

his employment, his Honour then went on to deal with the way in

which the case might have been made out under s.10 of the Act

on the basis that the death was due to the nature of the

employment. His Honour said :

I1 It was not shown, nor, I should imagine, could

it have been shown, that a characteristic or

distinctive feature of employment as a taxation

investigating officer was a tendency to cause

arterial sclerosis or myocardial degeneration,

or to aggravate or accelerate an existing

condition of arterial sclerosis or myocardial

degeneration. Such a tendency, so far as

appears, was no more part of the nature of

Mr. Bourne's employment than of the nature of

any other responsible employment. That employ-

ment v7as not, so far as I can see, of such a

nature as to expose Mr. Bourne to a special

risk of contracting any particular disease or

of suffering an aggravation or acceleration of

any particular disease and s.10 applies, in my

opinion, only to cases in which there is such

a special risk."

-9-

His Honour's comments in this passage likewise appear to me to

be all findings of fact in the particular circumstances of the

case then under consideration, except for his very last comments

that the section only applies to cases in which there is a

special risk of attracting a particular disease.

Taylor J. at p.42 said :

I'

In order to recover compensation pursuant to

s.10 it was, of course, necessary for the respondent

to show that the disease which caused the death of

her husband was due to the nature of the employment

in which he v7as engaged. This, in my opinion, she

failed to do for such a relationship is not

established by showing that a disease from which a

particular individual is found to be suffering has

been aggravated or accelerated by the duties which

he has been required to perform. Still less is it

established by proof that the work of a particular

individual has been attended by worry and anxiety which, in turn, has aggravated or accelerated the progress of a particular disease. To hold otherwise

would be to treat the relevant condition expressed

in s.10 as satisfied if, irrespectively of the

nature of the employment, the 'nature' of the

employee was such as to subject him to worry and

anxiety. To my mind, both the history and substance

of s.10 lead inevitably to the conclusion that it is

concerned with so-called 'occupational diseases' and

on this branch of the case I agree with the

observations of Menzies, J. 11

Menzies J. at p.44 explained the meaning of the phrase under consideration in the following terms:

"The words 'the nature of the employment' are signif-

icant and indicate that the appropriate enquiry is

concerned with the nature of the employment and its

relationship with the disease which brought about

death rather than with how the disease was, in the

particular case, contracted or accelerated:

Blatchford v. Staddon and Founds. Notwithstanding

I

-10-

the disappearance of the schedule of industrial

diseases, s.10 does not cover every case where

it can be said that working hastened an employee's

incapacity or death from disease.

It does so only when the employment ordinarily

involves a risk of the disease so that the disease

is 'due to the nature of the employment I . f'

His Honour then went on to say that the evidence in the case

fell far short of showing that the occurrence or aggravation

of heart disease was in any way typical of the occupation	of
tax investigating.

Windeyer J. explained that the disease provisions of the

Act are concerned with whatarecommonly called industrial

diseases or occupational diseases and that arterio-sclerosis

could not possibly be regarded as an occupational disease of

employees in the Taxation Department. He found that it was not

necessary to consider the operation of the section to diseases

which are characteristic products of certain occupations because

the evidence in the case did not go far enough to make it

necessary to enter upon that argument. Here again there is

involved in his Honour's statements a finding of fact in the

particular circumstances of Bourne's Case.

In addition to the findings of fact in Bourne's Case the

High Court did expound the scope of the disease provision and

clearly laid down that it is concerned with occupational diseases.

The same principle was expounded again in Commonwealth v.

i

-11-

Thompson ( 1960) 104 C.L.R. 48 where all of the learned Ju stices

referred to their respective reasons in Bourne's Case and

adhered to them. See per Dixon C . J . at p.53, Fullagar J. at

p.53, Taylor J. at p.55, Menzies J. at pp55-56 and Nindeyer J.

at p.56.

The employer contends that it may be deduced from Bourne's

- Case that the expression "due to the nature of the employment

in which the workman was employed" covers, to put it in the

positive way, only employment which has a particular tendency

to give rise to a disease, contribute or conduce to it or

accelerate it and refers to results which are incidental to the

class of employment by virtue of its tendencies, incidents or

characteristics and is not concerned directly with something

arising out of the service of the particular employee.

The same phrase "due to the nature of the employment in

which the employee was engaged'' came to be considered four years

later in The Commonwealth v. Rutledge (1964) 111 C.L.R. p.1.. The 2

facts in that case were vastly different to the facts in Bourne's

-

Case. An employee in the telephone accounts section of the

Postmaster-General's Department was required for a little more

than a week to carry out special duties involving the investi-

gation of suspected dishonest practices on the part of other

employees in the section, who were believed to be removing

I

-12-

records relating to trunk-line calls made by illegal bookmakers.

The employee suffered from latent paranoia, and the strain of

these special duties resulted in a severe mental disturbance

which incapacitated her for work. By majority, consisting of

Taylor and Menzies JJ. it was held that the employee was

suffering from a disease due to the nature of her employment

and was accordingly entitled to compensation under the

Commonwealth Act. Taylor and Menzies JJ. had, as appears above,

both sat in Bourne's Case. Taylor J. disposed of the appeal in

Rutledge's Case in the following words :

'' That the aggravation of the respondent's

pre-existing disease was due to the nature of

the employment in which she was engaged at the

I

relevant time was established to the satis-

faction of the learned County Court judge.

After discussing the evidence he found 'that

the particular task (upon which the respondent

was engaged) was attended, in its very nature,

by the dangers to latent paranoids of a

psychotic onset' and relying particularly on

the evidence of Dr. Springthorpe, he found

the relevant issue of fact in favour of the

respondent. This finding was challenged by

the appellant but it was one which was fully

justified by the evidence and no sufficient

reasons rvhy we should disagree with it, or,

with the finding that the aggravation of the

respondent's disease resulted in total

incapacity, have been advanced."

It is to be observed that his Honour did not here endeavour

further to explain the meaning of the phrase as set out in

Bourne's Case and found that the County Court judge had made

-13-

findings of fact which were fully justified by the evidence and

had applied the law correctly to those facts. His Honour could

find no reason for disagreeing with the County Court judge's

findings of fact, and by inference it appears that Taylor J.

approved of the way in which the County Court judge had applied

the law as expressed in Bourne's Case to those facts.

After setting out some of the facts proved in evidence in the County Court, Menzies J. said at p.11 :

S l

Upon this and like evidence, I am not

disposed to disturb the finding made by the

learned County Court judge that the respondent's

conversion from a latent paranoiac, as she was,

into an active psychotic person, as she became,

was due to the nature of the employment in which

she was engaged. It is, of course, not

sufficient to attract s.10 that the appellant's

employment brought about the change which

occurred; it is sufficient, however, if the

spying which was her employment for the time

being, had in its nature something to aggravate

a pre-existing condition of latent paranoia or

to accelerate a change from that condition into

that of active psychosis. Here I think the

evidence did have the requisite generality. I'

Here again his Honour in effect is saying that there was evidence

to support the findings of fact made by the County Court judge

and no sufficient reason was established for disagreeing with

those findings of fact. His Honour then sets out the true

meaning of the phrase and does not attempt to distinguish Bourne's Case. His Honour apparently thought it sufficient to dispose of the matter under consideration that the findings of

-14-

fact were supporhble by the evidence dnd iL was not: shown that

the law had been incorrectly applied to those facts. In my

view, Rutledge's Case is not inconsistent with Boume's Case.

The application of the principles set out in Boume's Case

in such a v7ay as to entitle a workman to compensation may be more ,

difficult according to the relationship of the disease (or

aggravation or acceleration thereof) and the particular work upon

which the workman was engaged. From a factual point of view the

distinguishing feature of a disease due to the nature of the

employment in which the workman was engaged will often be the

disease itself. Such diseases are referred to as occupational

diseases and include lead-poisoning, deafness, silicosis and

I

dermatitis, and by definition under this Ordinance include a mental '

ailment, disorder, defect or morbid condition. They normally

,. .

would not include pneumonia (Menzies J. I S example in Boume's

- Case at pp.44-45) or heart disease. A workman might also more

readily be entitled to compensation if the disease due to the

nature of his employment is a recently contracted disease rather

than a contraction of gradual development or the aggravation,

acceleration or recurrence of a pre-existing disease. In such

case a workman may not have to contend with the complicating

background of a pre-disposed disposition or history of symptoms

-15-

which may or may not be described as a disease. Likewise from

a factual point of view the length of time during which the

!

workman had been employed in a particular class of employment

or on a particular task as part of that employment may be

important in determining as a matter of fact whether the

contraction of the disease was due to the nature of the employ-

ment, or was due to some other circumstances unrelated to the employment, such as contraction from an outside source, or the

natural progression of a pre-existing condition, not aggravated

or accelerated by the employment. In other words, it may be

that the duration of the employment generally or of the

performance of a particular task may be an indication that the

disease was contracted during and was due to the nature of that

employment. The shorter the employment or Performance of a

particular task, the more difficult it may be to establish as

a fact the necessary connection between the disease and the

employment or task. These seem to me to have been some of the

difficulties in reconciling Rutledge's Case (performance of a

particular task for a little more than a week) and Bourne's Case

(performance of a specific task for a period of 8 months)

coupled with the nature of the disease in each case. But each

case turned upon its own facts and the application of the

I

principle set out in Bourne's Case to those facts.

-16-

In this context I turn to consider the findings of the

Supreme Court leading to its final conclusion that the workman

had suffered a disease due to the nature of the employment in

which the workman was employed. The workman's employment with

this employer commenced in January 1969 and, as indicated above,

was terminated with effect from 31 March 1976, he having become

incapacitated for work at the end of September 1975. It was

common ground before the Supreme Court and before us that the

workman had at all material times a personality which predisposed

him to his final anxiety state in which he developed a phobic

fear of flying. He developed this phobic fear of flying

situations and fear concerning his own capacities to cope as

a pilot. The Supreme Court carefully considered the only expert

evidence in the case, together with the evidence of the workman

himself and concluded that the history provided a firm basis for

the view expressed by the expert witness, namely that the workman

had an obsessive, compulsive personality and that he developed

a phobic fear of flying situations and his own capacities to

work as a pilot. It was not really disputed by the employer on

the hearing of this appeal that these findings of fact were

justified on the evidence. Nor was it disputed that the workman

was incapacitated as a result of his phobic reaction. The

Supreme Court went on to find that the phobic reaction v7as

-17-

11 due substantially at least to his flying experiences, that is

to say, to the nature of his employment" and that such phobic

reaction was a disease "due to the nature of that employment".

What is not readily apparent from the judgment appealed from is

whether the Supreme Court determined that the phobic condition

was itself a disease, i.e. a mental ailment, disorder, defect

or morbid condition, or whether it was an aggravation, acceleration

or recurrence of a pre-existing disease. No doubt the reason why it is not clear is that the evidence of the expert witness was

not clear. It must be remembered that the issue before the

Tribunal and before the Supreme Court on appeal was whether the

workman was suffering from a disease due to the nature of his

employment or whether his incapacitating phobic reaction v7as due

to the nature of his underlying personality and other events,

some of family origin, some related to Cyclone Tracy and some

due to frustrations such as past failure to gain promotion. It

was in such a trial atmosphere that the expert gave evidence and '.

it is in that atmosphere that we must examine what his evidence

I

really was.

The expert witness treated the workman on 18, 24, 25, 28

and 31 July 1975 when he took a history from the workman and his

wife. He then diagnosed the phobic reaction which incapacitated I

the workman for a time. The condition apparently abated and the

-18-

workman went back to flying. The witness described the condition

11

as having been alleviated, not cured. His symptoms seemed to

have resolved." But in September there was a recurrence of

symptoms, he developed a phobic reaction again and has not flovm

since. The witness referred to the "phobic symptoms" starting.

However, later in his evidence the witness described the phobic

condition as a completely new condition.

"Q.	Is it possible to separate the phobic conditions
from his general personality so that this is
something separate and new or is it all part of
his overall psyche?

A. No, he is predisposed with this, but this is a

new separate thing which has developed. Up until, I think, May or June of 1975, after the

cyclone he had been coping adequately. He had

been flying; he had not sought to avoid the

flying situation and from talking to him and

from what I have heard in court here he had

been a competent pilot. It is since May or

June that he started to develop symptoms. This

is why I think this is a new thing developing

in a predisposed personality.

Q. Can it be regarded as a completely new condition?

It

A. Yes.

In cross-examination he described the fear of planes situation

as something new and which had cropped up since the cyclone.

He also said that the phobia against flying would have become

manifest if he had been employed with some other airline under

much the same circumstances.

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I

In its ordinary meaning "disease" is a word of very wide

import comprehending any form of illness, and that very wide

meaning has been expanded in this Ordinance so as to include

a mental ailment, disorder, defect or morbid condition whether

of sudden or gradual development. To distinguish between a new

condition and an aggravation, acceleration or recurrence of a

pre-existing disease is not a task on which a court can properly

embark unless guided the whole distance by expert evidence. It

may be that the distinction can be literally drawn between the

disease as an underlying general condition and the particular

symptoms stemming from it under the influence of particular

occurrences or circumstances. For a discussion of this difficult

I

fact finding exercise see Semlitch v. Federal Broom Company Pty.

- Ltd. 80 W.N. (N.S.W.) p.1603 and the judgment of Moffit J., and

on appeal at (1964) 110 C.L.R. p.626 where the matter is discussed

by Xitto J. and Windeyer J. and they come to different conclusions.

I think what the witness was really saying was that after

the cyclone the workman had at some point of time prior to the

first period of incapacity a morbid condition, that additional

and new symptoms by way of phobic reaction arose and the morbid

condition then became incapacitating. As indicated above it was

conceded before us that the pre-existing obsessive, compulsive

-20-

personality could be described as	a disease within the meaning
of the Ordinance.

The ground of appeal before us is that on the facts and

on the evidence before the Workmen's Compensation Tribunal, the

Tribunal should not have found that the worker suffered an injury

constituted by a disease which was due to the nature of his

employment, and that the Supreme Court, sitting on appeal, should

not have so found. On the hearing of this appeal the workman

contends that on the facts and on the evidence, the findings of

the Tribunal and the Supreme Court on appeal were correct, either

on the basis that the workman suffered a disease (i.e. he

contracted a disease which he had never had before) or he

!

suffered an aggravation, acceleration or recurrence of a pre-

existing disease (applying the extended meaning of "disease" in

the definition section).

Under s.28(1) of the Federal Court of Australia Act 1976

this court . , may in the exercise of its appellate jurisdiction: ! -

"(a)	affirm, reverse or vary	the judgment
appealed from;

give such judgment, or make such order

as, in all the circumstances, it thinks

fit, or refuse to make an order;

set aside the judgment appealed from,

in whole or in part, and remit the

proceeding to the court from which the

appeal was brought for further hearing

and determination, subject to such

directions as the Court thinks fit;

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( d ) s e t aside a v e r d i c t o r f i n d i n g of a

j u r y in a c iv i l proceeding, and enter

judgment notwithstanding any such

verdict o r f i nd ing ;

(e) ........ ........ ........ ........ ...

( f ) ........ ........ ........ ........ ...

I1

(g) ........ ........ ........ ........ ...

In the determination of this appeal we should examine the

evidence before the court appealed from and treat the appeal

as being an appeal on f a c t as well as law. In hearing such

appeals this court mill apply the p r inc ip les which were l a i d

down i n Ifhim Creek Consolidated (NL) v. Federal Commissioner

of Taxation (1978) 1 7 A.L.R. p.421, adopting the pr inc ip les

! l a i d down by the High Court i n Pa t te rson v. Pat terson (1953)

89 C.L.R. p.212, and more recent ly i n D a Costa v. Cockburn

Salvage and Trading Pty. Ltd. (1971) A.L.R. 97; (1970) 124

C.L.R. 192 and Edwards v. Noble (1972) A.L.R. 385; (1971) 125

C.L.R. 296. Without disrespect to the learned judgments

expounding the sett led rules i n those cases, fo r p re sen t

purposes it is s u f f i c i e n t t o a d o p t the rules c r y s t a l l i s e d by

Menzies J. i n Edwards v. Noble (supra) a t p.308 :

“They are (1) upon	such an appeal the task of
a court of appeal	i s so different from i t s task

in considering motions for new trials after a

j u r y v e r d i c t that it is wrong t o u s e i n r e l a t i o n

t o one the language appropriate to the other;

I . i

i .

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(2) a court of appeal does not supplant the trial

judge by trying the case afresh on the record;

(3) a court of appeal, while having regard to the

judgment appealed from, is under a duty to make

up its own mind as to the facts; ( 4 ) special

weight ought to be given to the judgment appealed

from if anything turned upon the credibility of

witnesses or any other matters as to which the

judge hearing the case would have an advantage

over the court of appeal; (5) in any case, even

those within ( 4 ) , where a court of appeal is

satisfied of error on the part of the trial judge

it will correct that error, even in cases Tihere,

although the reasons for the judgment of the

trial judge do not themselves disclose any error,

the result satisfies the court of appeal that 19

there was undisclosed error.

As indicated above, the Supreme Court did not hear any

additional evidence by way of re-hearing. The evidence was

confined to that evidence Ivhich had been given before the

Workmen's Compensation Tribunal. It is plain, therefore, that

this is not a credibility case and this court is in the same

intellectual position to make findings of primary fact and by

inference findings of ultimate fact as the Supreme Court was.

Having done so, it is a case of applying the correct principles

to the facts in an appropriate way.

On the view of the facts which I have taken I think that

there was sufficient evidence to justify a finding that the

workman suffered from a disease which was due to the nature of

l

his employment and I v70uld dismiss the appeal with costs.

!