John Burch v State of South Australia No. Scgrg-97-331 Judgment No. 6517 Number of Pages 29 Workers' Compensation
[1998] SASC 6517
•25 February 1998
IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
COX, LANDER AND BLEBY JJ
CATCHWORDS:
Workers' compensation - for what injuries compensation is payable - diseases - diseases to which employment a contributing factor - meaning of 'disease' in s30 - congenital arterio-venous malformation (AVM) - extended meaning of 'disease' in s3 - whether AVM is a physical disorder or defect. Significance of 'development' in s3. Workers Rehabilitation and Compensation Act 1986s3, s30, referred to. Heydon's Case (1584) 3 Co Rep 7a; 76 ER 637; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Owen v South Australia (1996) 66 SASR 251, discussed. Workers Rehabilitation & Compensation Corporation v Ascione (1989) 52 SASR 122, considered.
Statutes - acts of parliament - interpretation - incorporation of other statutory provisions - Workers Rehabilitation and Compensation Acts3 - mischief rule - purpose of Workers Rehabilitation and Compensation Act 1990 - whether mischief rule may be used where no apparent ambiguity or uncertainty - extrinsic evidence. Second reading speech - Acts Interpretation Acts22. Acts Interpretation Acts22, referred to. Newcastle City Council v GIO General Ltd
(1997) 72 ALJR 97; Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363; International Hotel Ltd v McNally (1940) 64 CLR 24; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Mills v Meeking (1990) 169 CLR 214; Wacondo v The Commonwealth (1981) 148 CLR
1, considered.
HEARING:
ADELAIDE, 4-5 September 1997 (hearing) 25 February 1998 (decision)
#DATE 25:2:1998
Appearances:
Appellant:
Counsel: Mr A J Besanko QC with him Mr S M Lieschke
Solicitors: Lieschke & Weatherhill
Respondent:
Counsel: Mr J A Telfer
Solicitors: Crown Solicitor (SA)
Intervener Workcover Corporation:
Counsel: Mr T L Stanley
Solicitors: Piper Alderman
ORDER: appeal dismissed.
COX J
The circumstances of this appeal are described in the reasons of Bleby J.
The appellant worker was born with an arterio-venous malformation (AVM) in the brain - a kind of vascular short circuit which was symptomless until, when the appellant was forty, the AVM started to bleed. A haematoma formed which raised the intracranial pressure and that in turn caused an obstructive hydrocephalus which aggravated the problem. He had emergency surgery to relieve the pressure and later the AVM was removed. The principal questions on the appeal relate to the possible application to this medical history of the notions of "disability" and "secondary disability" and "disease" in the Workers Rehabilitation and Compensation Act 1986.
It was not disputed that the appellant suffered a "physical injury" within the meaning of the "disability" definition in s3 when the AVM haemorrhaged. The difficult question is whether the AVM or the intra-cerebella haematoma or the two conditions considered together amounted to a disease. If they did, the appellant necessarily failed in his claim for compensation under the Act because he could not prove to the Review Officer's satisfaction that his employment contributed to his disability. See s30.
I must say that the proceedings have taken a less than satisfactory form. The determination made on behalf of the Department of Education and Children's Services on 25 March 1994 stated that the appellant had suffered a "disease" within the meaning of s3 of the Act but that his employment had not contributed to the disease. The appellant applied for a review of that determination. The only reason for disagreeing with it that he gave in his application for review was - "The incapacity arose out of or in the course of the worker's employment." There was no challenge, certainly no direct challenge, to the Department's determination that the appellant had in fact suffered a "disease". I infer from the Review Officer's reasons that the appellant put forward two arguments at the hearing - that he suffered an injury in the primary sense of the word; alternatively, that if it was established that the AVM was a pre-existing disease, the case fell on the facts within the exceptive provisions of s30(2)(b) of the Act. The Review Officer confirmed the Department's decision. In her judgment she described the issue between the parties as revolving around the question of causation, and her reasons were almost wholly devoted to that subject. She found against the appellant on the evidence. So far as I can see, there was no express finding by the Review Officer that the appellant was suffering from a disease; the reasons would seem to have taken that for granted. The last paragraph of the reasons makes an observation about Workers Rehabilitation and Compensation Corporation v Ascione (1989) 52 SASR 122, which dealt with the meaning of "disease" in s3 of the Act, but there is no discussion about the evidence or argument relevant to that subject. In his notice of appeal to the Tribunal the appellant complained that the Review Officer "erred in finding that the worker's disability was a secondary disability or disease," and the learned Deputy President's reasons for decision begin by recording that the appellant was not precluded from mounting that argument because he had squarely put it to the Review Officer. It was not suggested to us that this was a misunderstanding on the Deputy President's part. The argument on the Full Court appeal focussed almost exclusively upon the question of disease vel non. The consequence of this is that we (like the Deputy President) have to make a decision on the facts at the appeal level without the benefit of relevant findings by the tribunal that heard the witnesses. Indeed, there is a question whether the experts who gave evidence were asked all the right questions relevant to a vital factual and legal aspect of the appellant's medical condition. However, neither party had any complaint to make to us about the procedure that was followed and we are left to do the best we can with evidence that is probably deficient and findings on the subject that are simply non-existent.
"Disease" is an elusive word in workers compensation law. It is not defined in the 1986 Act. There are dictionary definitions of "disease" that are wide enough to encompass the appellant's condition. However, as Bleby J has shown, the preponderance of Australian authority is against including a "structural defect" such as an AVM in the ordinary, undefined meaning of "disease" in workers compensation legislation, and I do not think we should depart from that line of authority in our interpretation of the present Act.
That, however, is not the end of the matter. Section 3 provides that the word "disease" in this Act, unless the contrary intention appears, "includes Ö any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; Those are very general words. I disregard the expression "morbid condition" which by a synonymy simply states in effect the ordinary meaning of "disease" without elucidating it. It seems to me that the appellant's AVM was a physical disorder or defect which probably developed gradually until it ruptured in 1993. The rupture cannot have been uncaused, and Ms Molloy's description of it as "spontaneous" indicates that the cause was internal. Ms Molloy said of the AVM blood vessels that "they leak and they also bust in a spectacular way" but that the cause of this is unknown. She was not asked about the possibility of gradual physical changes in the AVM underlying a rupture. Dr Hallpike expressly referred in his evidence to "development" of the fistula by which the blood flow increases consequent upon the enlargement of the AVM. In these circumstances it seems reasonable to treat the rupture of the appellant's AVM as dramatically demonstrating its prior development. If there was no development of the AVM before the rupture, there certainly was then. Alternatively - and this makes fewer inferences about any underlying physical changes - the rupture itself could be regarded as a disorder or defect of sudden development. Furthermore, I think one may say that the haematoma and the hydrocephalus themselves, which had the direct effect of disabling the appellant from work, constituted a physical ailment or disorder or defect, of sudden development. In one way or another, the appellant's condition, in my opinion, came within the statutory extension of the word "disease".
I appreciate that the Full Court in Workers Rehabilitation and Compensation Corporation v Ascione (1989) 52 SASR 122 interpreted the explanatory treatment of "disease" in s3 of the Act, in its original 1986 form, as amounting to a limitation on the ordinary meaning of the word. The so-called inclusive definition in s3 has been radically amended since then. It is clear, in my opinion, that the present formula has the effect of extending the ordinary, undefined meaning of "disease".
As Bleby J points out, taking these broad s3 terms at face value makes the ambit of the s30 restriction very wide indeed. Perhaps that is what Parliament intended, or perhaps the subject matter and the scheme of the Act generally imply the exclusion from the extended meaning of "disease" of a medical condition caused directly by external trauma. There is no need to pursue that question now. Whatever implicit limitations the s3 definition may contain, they could not have the effect, in my view, of excluding the appellant's medical condition from the extended meaning of "disease".
In my opinion it has not been shown that the Review Officer came to the wrong decision. Because the appellant's disability was a disease within the meaning of s3, his inability to prove that his employment contributed to the disability meant that the disability was not compensable.
I have said that the inclusive definition of "disease" in s3 was amended following the Full Court's decision in Ascione's Case . Both counsel for the respondent and counsel for the intervenor asked us to look at the Minister's second reading speech on the Workers Rehabilitation and Compensation Act Amendment Bill 1990 (Hansard, House of Assembly, 21 March 1990, p697) in order to identify the purpose of the amendment. Counsel for the appellant was opposed to our doing that, arguing that there is no ambiguity in the wording of the 1990 amendment and so no authority for going outside the text of the Act. As it happens, the interpretation that I have given to the "disease" definition, taken at face value, accords with the submission of those who invited us to look beyond the statutory text, so presumably my examining the second reading speech is unlikely to change my mind. However, it is necessary in the circumstances to say something about the principle involved in looking at extrinsic materials.
The mischief rule - that in interpreting an Act of Parliament one may have regard to the purpose it was intended to serve - goes back to Heydon's Case
(1584) 3 Co.Rep.7a; 76 ER 637 which was a decision by the Court of the Exchequer on the proper interpretation of the statute 31H8, c13. The Court there resolved
"that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered :-
1 st . What was the common law before the making of the Act.
2 nd . What was the mischief and defect for which the common law did not provide.
3 rd . What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4 th . The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico ." (at 76; 638)
There is nothing in this statement of principle that would make the application of the mischief rule conditional upon an ambiguity in the text of the Act when taken at face value, but until quite recently the rule was usually applied in that restrictive way. However, it is clear that the restriction has now been discarded. In CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ includes the following passage -
"It is well settled that at common law the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." (at 408. Footnote citations omitted)
See also Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97 at 104.
It is plain, I think, from the reference to McHugh JA's judgment in Isherwood v Butler Pollnow Pty Ltd and from the other case citations, that the passage I have just quoted expresses the present common law approach to statutory interpretation and not merely an approach enjoined by recent changes to the Acts Interpretation Acts of the Commonwealth and other States. So interpreted the passage would appear to support the respondent's and intervenor's submission. There is a question, however, whether s22 of the ActsInterpretation Act requires a different conclusion.
Section 22 reads -
"(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability."
Pearce and Geddes, Statutory Interpretation in Australia (4 th ed) par.2.6, comments that "under subs(1) it seems that a construction that would promote the purpose or object of the Act must be preferred only where the provision being interpreted is ambiguous on its face". There is a question whether that interpretation of s22 is correct.
The present s22 was put into the Act in 1986. The original section was in very wide and general terms. It was regarded as something of an oddity (cf International Hotel Ltd v McNally (1940) 64 CLR 24 at 29, 35) and was generally ignored. No submissions were made to us in this appeal about the proper interpretation of the new s22 and its possible effect on the common law and I confine myself to some tentative observations about it.
As I have indicated, it is probably correct to say that, at the time s22 was refashioned, the prevailing view in Australian courts was that the purpose of an Act could only be taken into account where there was an ambiguity or inconsistency on the face of the legislation. See, for example, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, at 305; Mills v Meeking (1990) 169 CLR 214 at 223, 235. Section 22 was meant to liberate the common law, not to restrict it. Secondly, the section does not state that the purpose or object of an Act may only be considered where the provision being construed is reasonably open to more than one construction. It simply says what is to be done when that is the case. It would be strange if the mischief rule could not be used where there is no apparent ambiguity but a literal interpretation would lead to inconsistency or injustice. Finally, s22 says nothing about the way in which the purpose or object of an Act is to be discerned - in particular, whether the interpreter is confined to the Act itself. It merely provides that the interpreter is not restricted to an express statement on the matter in the Act. The section does not, certainly in terms, qualify the established practice whereby a court applying the common law mischief rule could have regard to the legislative history of an Act or other relevant material.
I should say that we were referred to Owen v South Australia (1996) 66 SASR
251 in support of the respondent's and intervenor's submission on this subject. The point there was quite a narrow one: where the mischief rule is applied on a question of statutory interpretation, may regard be had to the Minister's second reading speech notwithstanding the general common law rule about the inadmissibility of Parliamentary debates ( Wacondo v The Commonwealth (1981) 148 CLR 1, 25)? There were conflicting decisions on that issue in this State. What I said in Owen v South Australia was largely confined to that evidential point, but the reasons and the Full Court's decision were, I think, consistent with the common law principle as stated in CIC Insurance v Bankstown Football Club . So far as I can recall, there was no submission in Owen v South Australia that the use of the mischief rule was modified in any way by s22 of the Acts Interpretation Act.
I think it unwise to say any more than that about s22, in the absence of full argument. On the view that I have taken of s3 of the Act in question here, it is unnecessary for me to do so.
For the reasons that I have given I would dismiss the appeal.
LANDER J
I have had the advantage of reading the draft reasons of Cox and Bleby JJ.
The appellant suffered from an arteriovenous malformation (AVM) in the brain. An AVM is a congenital defect which comprises a collection or cluster of abnormal blood vessels which are neither arteries nor veins. The AVM exists between an artery and a vein. The structures of the vessels are not complete and they contain weaknesses. The vessels leak and they also have the potential to burst in a spectacular way.
Doctor Hallpike, a neurologist, gave this evidence:
"Q Right. Is it fair to say that the integrity of the blood flow through this cluster of blood vessels is compromised.
A Well, the blood flow through an arteriovenous malformation in general as the malformation increases in size the blood flow also increases and in a sense there's development of what's called a state of fistula or excessive blood flow between the artery and the vein, so it's an inefficient process because it's in a sense transferring arterial blood directly to the venous side without going through the function of a useful normal bed of capillaries.
Q Yes.
A So it's a sort of - it's in a sense an abnormal connection, and what that means is that there isn't the normal - necessarily the normal resistance of going down through very small arteries in a normal way then into capillaries across which diffusion takes place for the nutrition of cells and then the recollection of that out into the venous system. It's a short-circuit, and of course because the artery pressure is high and the venous pressure is low you have got an abnormal shunting or short-circuiting of blood.
Q Yes.
A So the flow-through in arteriovenous malformation may be high and many of the vessels in the AVM, if we can use that short form - - -
Q Yes.
A - - - are themselves abnormal. So it's a situation in which there are many factors that are potentially contributing to vessel rupture and haemorrhage."
His evidence suggests that the congenital malformation increases in size. He was not further examined on that, however.
Doctor Molloy, a neurosurgeon, agreed that Mr Burch suffered from an AVM which was a congenital condition and therefore "something you're born with". She said:
"It is thought that they might slowly get a little bit bigger as you get older but you're born with them - newborn babies sometimes - you can sometimes find them in new born babies if you look for them."
She was not further examined on how an AVM might develop over the lifetime of a person born with such a condition.
She said that an AVM has a cumulative one to three per cent chance per year of haemorrhage. They can bleed at any time - whilst lying still - even whilst asleep. She said it can happen spontaneously. A person who has an AVM is not advised to restrict activities because restrictions make no difference.
In the appellant's case he had a 'big bleed' when the AVM ruptured. Blood escaped into the cerebellum, which caused coning and the brain became swollen. Without surgery the appellant would have died.
The evidence established that the rupture could have occurred without any precipitating cause such as hypertension, stress or physical activity. The question to be determined was whether the disability which the appellant undoubtedly suffered was compensable.
Disability is defined:
"' disability ' of a worker means -
(a) any physical or mental injury including -
(i) loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
(ii) a disease; or
(iii) disfigurement; or
(b) where the context admits - the death of the worker, and includes a secondary disability;"
Relevantly disability therefore includes any physical injury including a loss, deterioration or impairment of a part of the body or a disease or a secondary disability.
A disability is only compensable if it arises from employment. Section 30 provides:
"30 (1) Subject to this Act, a disability is compensable if it arises from employment.
(2) Subject to this section, a disability arises from employment if -
(a) in the case of a disability that is not a secondary disability or a disease - it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a disease -
(i) the disability arises out of employment;
or
(ii) the disability arises in the course of employment and the employment contributed to the disability."
Disease is defined:
" ' disease ' includes -
(a) any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and
(b) [Irrelevant]"
Secondary disability is defined:
" 'secondary disability' means a disability that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior disability;"
Prior disability is not defined but in the context of the Act must mean a disability that is not a secondary disability. Therefore in the context of these facts a secondary disability supposes a previous physical or mental injury or a disease.
Section 30 is clear enough. A disability which is not a secondary disability or disease is compensable if it arises out of or in the course of employment. However, if the disability is a secondary disability or a disease it is only compensable if it arises out of employment or it arises in the course of employment and the employment contributed to the disability.
In the case of a disease or a secondary disability mere temporal connection is not enough. The disability must arise out of the employment or if not arise in the course of employment and the employment and contributed to the disability.
The appellant accepted that he had not established that the disability, which he suffered, arose out of employment or that the disability arose in the course of employment and the employment contributed to the disability. He did establish that the disability occurred in the course of employment.
The matter which then had to be determined in this case was whether the AVM or the rupture of the AVM amounted to a disease or secondary disability. If the AVM and the rupture of the AVM was either a disease or a secondary disability then the appellant would not succeed merely by establishing that the disability arose out of or in the course of employment. If the disability was a disease or a secondary disability the appellant needed to establish that it arose out of employment or if it did not arise out of employment it arose in the course of employment and the employment contributed to the disability.
As Cox J has pointed out the matter went to the Review Officer upon the unstated assumption that the condition giving rise to the disability was a disease. The determination made on behalf of the employer was that the appellant's disability arose out of his suffering a disease to which his employment had not contributed. Therefore the determination was that he had not suffered a compensable disability.
However, apparently the appellant argued before the Review Officer that the condition from which he suffered was not a disease or a secondary disability. He argued that "the nature of the incident involving the worker established that Mr Burch suffered an injury in the primary sense and was not required therefore to establish a causal connection". The Review Officer must have rejected that submission because the reasons are devoted to determining whether the employment contributed to the disability. The appellant failed before the Review Officer, who, in accepting Doctor Molloy's evidence, found that the employment did not contribute to the disability.
The implicit finding that the appellant's disability was a disease was challenged in the appeal from the Review Officer to the Tribunal. The grounds of appeal from the decision of the Review Officer were:
"1. The decision is wrong in fact and law.
2. The Review Officer erred in finding that the injury or disease did not arise out of or in the course of employment.
3. The Review Officer erred in finding that the worker's employment had not contributed to the worker's disability.
4. The Review Officer erred in finding that the worker's disability was a secondary disability or disease.
5. The Review Officer erred in finding that there was no evidence before her to indicate that the worker was suffering hypertension in the period proceeding the incident on 23 November 1993.
6. The Review Officer erred in finding that the opinions of Dr's Hallpike and Molloy were inconsistent with each other."
The appeal to the tribunal proceeded with a different emphasis than in the hearing before the Review Officer. On the appeal to the tribunal the appellant submitted that the Review Officer had wrongly found that his disability was a disease and thus embarked upon an enquiry as to whether his employment contributed to the disability. It was put that the Review Officer should have found that the appellant suffered an "injury" in its unextended meaning and that in those circumstances the enquiry carried out was irrelevant. In the alternative it was put that even if the disability was a disease the Review Officer erred in ignoring evidence favourable to the appellant which was capable of establishing the necessary causal connection.
The learned Deputy President determined that the condition brought about by the haemorrhage fitted within the definition of disease in the Act and therefore the condition was a disease. In reaching that conclusion the learned Deputy President had regard to the second reading speech by the Minister of Labour which allowed him, so he said, to conclude that this disability was a disease notwithstanding the decisions in O'Neill v Lumby (1987) 11 NSWLR 640; Accident Compensation Commission v McIntosh (1991) 2 VR 253; and Workers Rehabilitation and Compensation Corporation v Ascione (1989) 52 SASR 122.
In the first of those cases the worker suffered a rupture of two aneurisms in the right cerebral artery causing haemorrhaging into the intracranial space. In the second case the worker suffered a cerebral haemorrhage as a consequence of a rupture and bleeding on the right hand side of the brain due probably to a congenital malformation of the blood vessels, though the rupture could have occurred without any arteriovenous malformation. In the third case, a decision of the Full Court of this Court, the worker also had an arteriovenous malformation constituted by an abnormal intervening structure between the artery and the veins. The structure which ruptured in that case was the same type of structure from which this appellant suffered.
Each of the decisions to which the tribunal referred, and which incidentally have been relied upon on this appeal, involved the application of fact to the definition of injury or disability in the different Acts in each jurisdiction.
Careful regard has to be had to the differences in the definitions in each of the Acts. One must also be careful not to attempt to use decisions on the facts in a particular case as a precedent for determining whether the facts in this case amount to a disease or secondary disability or do not amount to either of those matters: Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 39 (Privy Council) and O'Neill v Lumby (supra).
As Kirby P said in O'Neill v Lumby (supra):
"Fourthly, I agree with everything that Clark JA has written about the dangers of deriving binding or even persuasive remarks about the nature of a particular "disease" or medical condition from earlier reported cases, and judicial observations in them about such diseases or conditions. That involves a misuse of precedent. Decisions on the facts are (subject to what I have said) reserved by Parliament to the judge of the Compensation Court. The medical evidence might well differ from case to case. In any case, medical knowledge and understanding is constantly changing. To pluck out of earlier decisions, binding or even persuasive remarks about the nature of aneurisms and their proper classification as such as "diseases" or " injuries simpliciter " would be to misunderstand the function of such decisions. It would be to distort the proper relationship between appellate courts and a trial judge, applying the law to the facts actually proved before him in a particular case."
In O'Neill v Lumby the question for determination was whether or not the condition from which the worker suffered was an injury within the meaning of the Act; and further, whether it was to be classified as a disease because if it was there needs to be a cause or connection with the employment. Injury was defined but disease was not so the application of the facts in that case was to an undefined ordinary meaning of the word disease.
In the Victorian case the question was whether the sudden rupture of the blood vessels and consequent cerebral haemorrhage arising from the arteriovenous malformation was a physical injury within the meaning of the Act. Disease was defined to include "any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development and also includes the aggravation, acceleration or occurrence of any pre-existing disease as aforesaid".
In that case the court determined that it was open to the tribunal to find that the worker had suffered a physical injury because the happening of a rupture could not aptly be described as a disease. Moreover it found that it was not apt to describe the malformation of the worker's arteriovenous cerebral circulation as a disease. The Court distinguished Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 (High Court) and (1968) 118 CLR 32 (Privy Council) apparently on the basis that the respondent in the case before the court was not suffering a disease immediately before the rupture: at 258.
In Workers Rehabilitation and Compensation Corporation v Ascione the Full Court determined that the rupture of the AVM of which the worker in that case suffered was not a disease within the meaning of the definition of disease (as it then was) in the Workers Rehabilitation and Compensation Act .
However the definition of disease with which Workers Rehabilitation and Compensation Corporation v Ascione was concerned was quite different to the definition of disease at the time that this appellant suffered his disability. At the time of the hearing of Workers Rehabilitation and Compensation Corporation v Ascione disease was defined in the following manner:
"Disease includes the deterioration of a physical, mental or sensory faculty for which there is no obvious proximate cause."
It was the decision in Workers Rehabilitation and Compensation Corporation v Ascione which gave rise to the repeal of that definition and the enactment of the definition in its present form.
I think, therefore, the decision in Workers Rehabilitation and Compensation Corporation v Ascione , whilst it deserves the respect of a decision of the Full Court of this Court, does not preclude this Court from determining that a congenital malformation of the same kind which existed in Workers Rehabilitation and Compensation Corporation v Ascione is a disease for the purpose of a consideration of a disability under the Act as it now stands.
In my opinion the evidence supports the finding that the AVM was a disease within the meaning of the definition as it now is. It was a physical defect of gradual development. As Mr Hallpike says, the blood flow through the AVM causes it to increase in size. Dr Molloy said an AVM might slowly get a little bit bigger as a person gets older.
I disagree, with respect, with Bleby J. I do not think that the AVM can be described as a static condition. I think the evidence supports the finding that it was a condition of gradual development.
I think that the AVM must be a disease. It fits all of the criteria of a disease being a physical disorder or defect of gradual development. In that respect the appellant's condition is different to that which was considered by the Victorian Supreme Court in Accident Compensation Commission v McIntosh (supra) where the fact finder and that Court concluded that the condition which existed before the rupture was not a disease.
Having concluded that the underlying condition was a disease it is necessary to consider whether the rupture itself is either a disease or secondary disability.
The relevant decision for this Court in a consideration of the definitions of disease and secondary disability is Tonkin v Federation Insurance Ltd
(1981) 27 SASR 153. That matter involved a consideration of the Workers Compensation Act 1971. The question in that case for the Court was whether an autogenous physiogical or pathological change in the course of the progress of a disease was an injury within the meaning of the definition in the Act:
Injury was defined in s8 of that Act.
"'injury' means any physical or mental injury and without limiting the generality of the foregoing includes:
(a) a disease contracted by the workman in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; (b) the aggravation, acceleration, exacerbation, deterioration or recurrence, of any pre-existing injury or disease not being a coronary heart disease where the employment was a contributing factor to that aggravation, acceleration, exacerbation, deterioration or recurrence; and (c) the aggravation, acceleration, exacerbation, deterioration or recurrence, of any pre-existing coronary heart disease, and for the purposes of this definition the employment of a workman shall be taken to include any journey, attendance or temporary absence referred to in subsection (2) of section 9 of this Act."
Disease was defined in the same section:
"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development and also includes aggravation, acceleration, exacerbation, deterioration or recurrence of such an ailment, disorder, defect or condition:"
It can be seen that the definition of disease in that Act is in nearly the same terms as the definition of disease and secondary disability in the Act under consideration. It seems to me that the reasoning in that decision is more relevant to a consideration of this matter than the reasoning in Workers Rehabilitation and Compensation Corporation v Ascione which, although a later decision of the Full Court, was concerned with a quite different definition. In Workers Rehabilitation and Compensation Corporation v Ascione the Court did not doubt the correctness of Tonkin v Federation Insurance .
In Tonkin v Federation Insurance the court held that it was bound to follow the High Court decision in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR
537. King CJ (with whom Sangster J agreed) said that Ogden Industries Ltd v Lucas was an authority binding on the Court for the proposition that a physiological or pathological change in the cause of the progress of a disease is not to be regarded as an injury unless it came within paragraphs (a), (b) or (c) of the definition.
In Ogden Industries Pty Ltd v Lucas (supra) Barwick CJ said at 557/558:
"The oedema was not, in my opinion, a physical injury within the opening words of the new definition of injury properly construed. It was, as the agreed facts require us to assume, a physiological change for the worse. Its sudden and unexpected character is of no significance, for we are not here concerned with the accidental quality of an injury and the definition of disease applies equally to gradual as to sudden development. It was autogenous in the sense that nothing but the accelerated disease of which it was a manifestation caused it to occur, either at the time it or at all: as I have said, it was no more than a phase in that accelerated disease."
He went on to say at 558:
"Disease simpliciter is expressly removed by the amendment from the definition of injury and only such disease as defined to which the employment contributes is, in my opinion, included. If the employment must contribute to disease for it to be an injury, quite clearly autogenous changes in the course of a disease cannot in themselves be injuries, whether or not the disease is itself a compensable injury."
Gibbs CJ (with whom Brennan and Dawson JJ agreed) referred to Ogden Industries Pty Ltd v Lucas and Tonkin v Federation Insurance with approval in Hockey v Yelland (1984) 157 CLR 124 of 137.
I believe, for the reasons I have already expressed, that the AVM was a disease. I believe that the rupture was an autogenous change in the course of the disease. The rupture was the inevitable result of the disease. Doctor Molloy said that the prospects of rupture were one to three per cent cumulative per year. The rupture, in my opinion, is also a disease because it is a physical defect of sudden development.
I think that is consistent with the reasoning in Favelle Mort Ltd v Murray
(1976) 133 CLR 580 and Gibbs CJ in Hockey v Yelland (supra).
This case may be distinguished from Zickar v MGH Plastic Industries PtyLtd
(1996) 71 ALJR 32 where the rupture was found not to be autogenous and in those circumstances the fact that the aneurism was itself an autogenous disease did not prevent the rupture being described as an injury. The distinction is one of fact. In Zickar v MGH Plastic Industries Pty Ltd Brennan CJ, Dawson and Gaudron JJ specifically approved the reasoning of Gibbs CJ in Hockey v Yelland (supra). Toohey, McHugh and Gummow JJ said of the reasoning of Gibbs CJ in Hockey v Yelland at 44:
"The appellant's case was that the subarachnoid haemorrhage was an injury in the unextended sense of the definition. As to this Gibbs CJ said:
"The importance of this question lies in the fact that the Neurology Board may have taken the view that the subarachnoid haemorrhage was autogenous and that stress or exertion was not a contributing factor in causing it. So to decide would not be an error of law on the face of the record."
Having examined a number of authorities, his Honour concluded:
"It follows from what I have said that if the Neuorlogy Board decided that the subarachnoid haemorrhage was merely 'the culmination or climax of a progressive disease, itself unrelated to employment'... or that the haemorrhage was otherwise autogenous, and that the work which the appellant was doing played no part in causing it, it was quite right to determine that it was not an 'injury' within the meaning of the Act. If they took that view, the haemorrhage was not an injury within the opening words of the definition, and was not within par (a) or par (b) because the employment was not a contributing factor. There is nothing on the record to show that they did not take such a view."
There can be no quarrel within this passage from the judgment of Gibbs CJ so long as the confined context in which it is expressed is clearly understood. If nothing more appeared than that the haemorrhage was merely the culmination or climax of a progressive disease, it could not be said that the rejection of the claim by reference to the opening words of the definition disclosed an error on the face of the record. But that is not the present case."
Kirby J was of the opinion that the decision of the Privy Council in Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 and the decision of the High Court in Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 were both wrongly decided. He also said that Hockey v Yelland (supra), which accepted the correctness of Slazengers (Australia) Pty Ltd v Burnett , was incorrectly decided. He was of the opinion that the reasoning in Slazengers (Australia) Pty Ltd v Burnett should be rejected and the High Court decisions which followed that reasoning including Hockey v Yelland , should be reconsidered.
In this case the rupture which occurred was the culmination of the progressive disease. There was nothing which could be said to have caused it to happen. This rupture did not have any precipitating cause. It was not caused by hypertension, stress or any of the appellant's activities and certainly not contributed to by the appellant's work. It was, in the true sense, the culmination of the progressive disease, which was the AVM.
I think the rupture was not only a disease but also a secondary disability. The prior disability from which the appellant was suffering was the AVM, which was of itself a disease. The rupture amounted to an aggravation, acceleration, exacerbation and deterioration of that disease. It was therefore a secondary disability.
It follows that the appellant's AVM was a disease. The rupture of that AVM was both a disease and a secondary disability. Neither the rupture nor the AVM was compensable unless the appellant could show that the disability arose out of his employment or arose in the course of his employment and the employment contributed to the disability. Neither arose out of employment and whilst the rupture arose in the course of employment the appellant could not establish that the employment contributed to that disease or secondary disability.
In my opinion the appellant was not entitled to compensation under the Act.
In relation to the use of the Minister's second reading speech the common law does not make it a condition that there be an ambiguity in the text of an Act before a court can have regard to reports of law reform bodies ( CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384); explanatory memorandum laid before Parliament ( Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97 at 104); and second reading speeches. It is permissible, under the common law, to have regard to those documents at first instance as an aid to the construction of a statute.
Counsel for the appellant argued that this Court should not have regard to the second reading speech because there was no ambiguity in the definition of disease and therefore the Court was not entitled to have regard to extraneous materials. At the time this was argued the first High Court decision to which I have referred had not been reported and the second not decided.
Therefore it was not argued that s22 of the Acts Interpretation Act would prevent the common law applying and only allow the Court to have regard to the second reading speech where the Court had first identified an ambiguity.
Indeed s22 was not relied on at all but that is probably explained, as Cox J has said, because it might have been incorrectly thought that reference to these extraneous materials could only occur where there was an identified ambiguity.
Section 22 does not create a problem in this case because I think that it can be said whatever the construction of s22 there is enough uncertainty and ambiguity in the definition sections to allow regard to be had to the second reading speech to ascertain the mischief at which the Act is directed.
I think the speech makes it clear what Parliament intended to address. The Minister said:
"The second major issue dealt with in this Bill is the insertion of a new definition of 'disease' which is necessary to overcome a Supreme Court decision in the case of Ascione which had the effect of allowing certain non-work related disease to be treated as compensable under the Act. In the case of Ascione, the worker had a congenital condition that resulted in what could generally be called a stroke and which occurred while the worker was travelling to work. The work itself did not contribute to the stroke. The full Supreme Court held that the stroke was not a 'disease' as defined under the Act but was an injury and therefore compensable as it had occurred in the course of employment on the way to work.
Under the previous repealed Workers Compensation Act autogenous conditions such as strokes were treated as diseases and in order for them to be compensable it was necessary to show that work was a contributing factor. As a result of the Surpeme Court's decision, in cases such as Ascione's involving a disease where there is an obvious proximate cause, it is now only necessary to show that the disability occurred in the course of employment. There is no longer a requirement to show that the work itself was a contributing factor. As a result, the Supreme Court's interpretation of 'disease', if allowed to stand, could potentially have a serious financial effect on the WorkCover fund.
When the Workers Rehabilitation and Compensation Act was drafted there was no intention of changing the wide meaning given to the definition of 'disease' that existed under the old Act. This Bill accordingly picks up the definition contained under the old legislation, including the related provision on heart disease, to put beyond doubt that diseases are only compensable if they are work related. Furthermore, it is proposed that this change be made retrospective to the commencement of the new scheme.
Retrospectivity is warranted in this case, first, because of the potential for a heavy financial drain on the WorkCover fund and, secondly, because the definition has in practice been given its plain meaning up to Ascione's case and no unfairness would be created by changing the definition to ensure that the plain meaning of the existing definition was preserved. However, in the case of Ascione and any other cases that may have been determined, it is proposed that the retrospectivity would not apply and the decisions on those matters would be allowed to stand. Where a claim has not been determined the Bill provides for the recoupment of reasonable expenses reasonably incurred in making a claim to ensure that such claimants are not financially disadvantaged by the retrospectivity. I commend the Bill to the House."
I do not think there is any doubt that the mischief to which this amendment is directed is the decision and the underlying reasoning in Workers Rehabilitation and Compensation Corporation v Ascione . It is directed at the construction of the Act and in particular the definition of "disease" arrived at by that Court.
It can be seen that the amending Bill was introduced to ensure that autogenous conditions were treated as diseases and require that "work be a contributing factor" to a disability consequent upon the disease. The amendment sought to have the very matter with which this Court is concerned treated as a disease.
It would be consistent with that purpose to give to the definition of disease a literal construction so that the purpose and object of the Act would be promoted.
The appeal in my opinion should be dismissed.
BLEBY J
The principal question raised by this appeal is what constitutes a disease for the purposes of the Workers Rehabilitation and Compensation Act 1986 ("the Act").
The immediate parties to the appeal from the determination of the Workers Compensation Appeal Tribunal were the appellant worker, Mr Burch, and the State of South Australia, his employer. However, exercising its powers pursuant to s123A of the Act, the Workcover Corporation of South Australia intervened in the proceedings in support of the respondent.
At the time of the commencement of the alleged disability giving rise to his claim for compensation, the worker was a few days short of his fortieth birthday. He was the acting Principal of the Bordertown Primary School. On the morning of 26 November 1993, shortly after he arrived at work at the school he experienced a sharp pain in his head which was accompanied by symptoms of nausea, discomfort and disorientation. His condition worsened during the day, to the point where he was admitted, unconscious, to the Royal Adelaide Hospital, where he underwent emergency surgery.
Mr Burch suffered from an arteriovenous malformation ("AVM"). At the site of the AVM there had been a haemorrhaging of the blood vessels and the formation of an intra-cerebellar haematoma. The haematoma in turn had produced an obstructive hydrocephalus which was, in effect, a pressing on the outflow of the ventricle which collected cerebrospinal fluid, which in turn exerted pressure on other parts of the brain, causing him to lose consciousness.
At surgery the haematoma was evacuated and the obstructive hydrocephalus was drained. The AVM itself was removed at a subsequent operation.
An AVM is a congenital defect comprising a cluster of abnormally formed blood vessels between an artery and a vein. Because these blood vessels are abnormal, they are prone to rupture and bleeding. Dr Hallpike, a neurologist, explained in evidence that there was an inefficient and excessive flow of blood between the artery and the vein without it going through the normal bed of capillaries for the nutrition of cells. He described it as a "short circuit" and "because the artery pressure is high and the venous pressure is low you have got an abnormal shunting or short circuiting of blood... So the flow-through in (AVM) may be high and many of the vessels in the AVM... are themselves abnormal" (AB37).
The AVM was entirely congenital, and neither the Mr Burch nor anyone else was aware that he had an AVM until the haematoma developed. Ms Molloy, the neurosurgeon who performed the operation, said that the AVM had a 1-3% chance per year (cumulative) of haemorrhaging and it can occur at any time, without any known precipitating event or condition. While there was a difference of expert opinion on whether it could be caused by hypertension, such was not established on the evidence.
The argument before this Court therefore proceeded on the basis that neither the AVM nor the haemorrhage were in any way caused or contributed to by the worker's employment.
That fact immediately brought into play s30 of the Act, because the haemorrhage occurred whilst Mr Burch was at work and in the course of his employment. Section 30 then read as follows: "30.(1) Subject to this Act, a disability is compensable if it arises from employment.
(2) Subject to subsection (2a) a disability arises from employment if - (a) in the case of a disability (not being a secondary disability or a disease) - it arises out of or in the course of employment; or (b) in the case of a disability that is a secondary disability or a disease - (i) the disability arises out of employment; or (ii) the disability arises in the course of employment and the employment contributed to the disability. (2a) (Not relevant) ..."
This section provides for an entitlement to compensation by virtue of a mere temporal connection with employment if the disability is not a disease or a secondary disability. In the case of a disease or a secondary disability, the disability must either arise out of employment or, if it arises in the course of the employment, the employment must have contributed to the disability.
A "disability" is defined in s3 of the Act as follows:
"' disability ' of a worker means - (a) any physical or mental injury including - (i) loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or (ii) a disease; or (iii) disfigurement; or (b) where the context admits - the death of the worker, and includes a secondary disability;"
That definition, apart from the inclusion of a secondary disability, is, at first reading, exhaustive. However, the meaning of the word is extended to include a secondary disability as defined elsewhere. Relevantly, "disability" means any physical or mental injury. However, that phrase being the primary definition of "disability" is itself given an extended meaning by the inclusion of sub-paragraphs (i), (ii) and (iii). Thus it would appear that "disability" encompasses any physical or mental injury as commonly understood, and includes any of the categories of the extended definition. I will need to return to this definition in due course.
It can be seen from s30 that not only is the definition of "disability" of importance, but that the entitlement to compensation, where there is merely a temporal connection with the employment, depends on the disability not being a secondary disability or a disease. "Disease" is defined as follows:
" 'disease' includes -
(a) any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and;
(b) (Not relevant)"
"Disease" is defined in such a way as to include certain conditions which may not necessarily be included in the ordinary concepts of disease. The decision of this Court in Workers Rehabilitation and Compensation Corporation v Ascione (1989) 52 SASR 122 considered the predecessor to this definition which then read:
"' disease ' includes the deterioration of a physical, mental or sensory faculty for which there is no obvious proximate cause."
The Court in that case appears to have acceded to an argument that in its then form, the definition was exhaustive rather than enlarging. However, the key words which induced that conclusion were those which qualified what appeared to be an otherwise expansive definition of disease, namely "for which there is no obvious proximate cause". I will need to return to Ascione's case, but I need only observe for present purposes that the definition is now very different, and does not exclude a disease as commonly understood. It includes certain things which might not ordinarily be encompassed in the concept. Thus, a condition will be caught by the definition if it is a disease as commonly understood, or if it comes within the extended definition (in this case) in paragraph (a).
"Secondary disability" has the following definition:
"' secondary disability ' means a disability that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior disability;"
Not a great deal need be said at this stage about that definition, other than that if the primary condition is not a "disability", there cannot be a secondary disability.
Mr Burch's condition was not caused or contributed to in any way by his employment. The only connection between the haemorrhaging and its consequences and his employment was a temporal one. Therefore if Mr Burch suffered from a disease in the ordinary sense or in the extended sense described in paragraph (a) of the definition, or if he suffered from a secondary disability, he could not succeed in his claim for compensation.
I turn then to the question of whether Mr Burch suffered from a disease. There is a preliminary question which needs to be resolved, namely whether for this purpose, one looks at the haemorrhage and its immediate consequences or the underlying condition (the AVM) or both. It is necessary to have recourse to a line of cases which have had to consider the question of diseases under various legislative regimes. Each of these cases involves both an underlying condition and an identifiable event giving rise to the claim for compensation.
Originally, entitlement to compensation under most Australian Acts depended on whether the worker suffered "personal injury by accident arising out of and (later changed to "or") in the course of his employment". Those were the words of the Commonwealth Employees' Compensation Act 1930 which were considered by the High Court in The Commonwealth v Ockenden (1958) 99 CLR 215. There was no mention of disease in the Act, but it was held in that case that a worker suffering from incompetence of an aortic valve in consequence of having contracted rheumatic fever did not suffer personal injury by accident. In their joint judgment the Court (Dixon CJ, Fullagar and Taylor JJ) said (at pp223-224):
"[T]he traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease ."
Kavanagh v The Commonwealth (1960) 103 CLR 547 was a case where the worker vomited while at work, and thereby ruptured his oesophagus, in turn causing his death. Under a similar legislative regime the worker's dependants recovered because there was a sudden destruction of tissue by force, constituting personal injury by accident, even though not externally induced. All members of the Court, however, distinguished that case from "an episode that is an ordinary consequence of the progress of a disease" (per Windeyer J at 578). On the other hand, a stroke due to a thrombus forming in an atheromatous cerebral vessel was not an "injury by accident", but was held to be the natural progression of a pre-existing morbid condition: The Commonwealth v Hornsby (1960) 103 CLR 588. Thus, in order to determine whether there had occurred personal injury by accident, there was excluded from that description any event which could be identified as being part of the natural progression of a disease.
In 1942 the New South Wales Act was altered to provide compensation for an "injury". That was defined as follows:
"'Injury' means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912-41, applies, include a disease caused by silica dust."
With the deletion of the requirement for accidental injury, for the first time diseases were excluded unless employment was a contributing factor. "Disease" was not defined. Slazengers (Australia) Pty Ltd v Burnett [1951] AC
13 was a case involving an acknowledged hypertension and myocardial degeneration, followed by a coronary occlusion not caused or contributed to by the employment. It was that case in which the Privy Council, subsequently confirmed by the High Court in Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482, held that the definition of injury excludes from the meaning of that term in its ordinary sense a disease which does not satisfy the conditions expressed in the definition. In other words, although the coronary occlusion might otherwise be described as an injury, as a matter of construction, being the inevitable consequence of the disease and to which the employment was not a contributing factor, it was not an injury. Darling Island Stevedoring and Lighterage Co v Hussey (supra) was a case of a fatal coronary occlusion suffered on a work related journey, the occlusion being a consequence solely of a progressive heart disease. It could not therefore independently be an injury.
The Queensland definition was considered in Hockey v Yelland (1984) 157 CLR
124. The definition of injury was as follows:
"'Injury' means (without in any wise limiting the operation and scope of section nine of this Act) personal injury arising out of or in the course of employment, and includes - (a) a disease which is contracted in the course of the employment, whether at or away from the place of employment, to which the employment was a contributing factor; and (b) the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration, but does not include those diseases as specified in section 14B of this Act;
Loss of hearing caused by the condition known as industrial deafness shall be deemed to be personal injury for the purposes of this definition."
This definition, as did the later New South Wales definition, included reference to an aggravation or acceleration of the disease, but the basic structure of the definition has remained the same in a number of State Acts. In that case the worker suffered a subarachnoid haemorrhage while working on a building site. Under the Queensland Act his claim was referred for determination to a board known as the Neurology Board, which was not obliged to give any reasons for its decision, and whose decision the Act declared to be "final and conclusive". The proceeding was by way of certiorari to quash the determination by virtue of an alleged error on the face of the record, the determination being that the worker had not suffered an "injury" within the meaning of the Act. It did not give any reasons. The question for determination was therefore whether, in the language of Gibbs CJ at 133, the haemorrhage was "necessarily" an injury in the unextended sense of the definition. The decision of the High Court was that it was open to the Board to make the finding that it did, there being a number of possible causes of the haemorrhage. The Board, inferentially, had held that it was either the inevitable course of a disease or an aggravation or acceleration thereof, to which the employment was not a contributing factor. Furthermore, although it involved a sudden physiological change, the construction of the section adopted in Slazenger's case (supra) and Hussey's case (supra) required that it could not be included in ordinary concepts of "injury".
By the time O'Neill v Lumbey (1987) 11 NSWLR 640 came to be considered the New South Wales definition of "injury" was as follows: "'Injury' means personal injury arising out of or in the course of employment, and includes - (a) a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and (b) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation, or deterioration."
It can be seen that it was of essentially the same structure as the definitions considered in the cases referred to above, and once again, "disease" was not further defined. A worker in that case had suffered a rupture of a congenital aneurism, causing haemorrhaging into the intra-cranial space. The cause of the aneurism was a compromised cellular construction, weakened over time by blood pulse. It formed a "balloon" in the cell wall which eventually ruptured. The New South Wales Court of Appeal, by a majority, held that it was open to the Compensation Court of New South Wales to conclude that the worker had suffered an injury in the primary sense because the cause of the aneurism was not a disease for the purposes of the definition. At p655 Clarke JA, delivering the majority opinion, said:
"In Darling Island Stevedoring and Lighterage Co Ltd v Hussey , Fullagar J pointed out (at 506) that it would be wrong, in the context, to describe the coronary occlusion as the disease. He said: 'The disease is the atheroma or sclerosis or other morbid cardiac or vascular condition which culminated in the occlusion.'
This, with respect, is clearly correct and in that range of cases in which a person suffers from a ruptured aneurism the inquiry as to whether that person suffered from a disease is directed to the cause of the aneurism not the condition itself. The evidence shows that such a condition could be caused by a disease but equally it is in my view open to conclude that in the particular circumstances found to have occurred here the respondent was not suffering from an underlying disease. It would, for instance, have been open to the judge to conclude that an arterial weakness, not a disease, had caused the aneurism.
Once the conclusion is reached that it was open to Manser J to hold that the respondent suffered from an injury simpliciter and that there was no legal error in his approach the appeal must fail."
Hockey v Yelland (supra) was distinguished on the basis of the narrow question which had come before the Court and the fact that on the evidence it was open to the Neurology Board in that case to decide that the haemorrhage was the culmination of a progressive disease, unrelated to the employment.
It can therefore be seen from these cases that if the underlying condition is not a disease, or if it is open to the tribunal of fact so to find, then the event giving rise to the incapacity can be considered as standing alone and will be compensable as an injury in the ordinary sense. On the other hand, if the underlying condition is or is able to be held to be a disease of which the event is a natural consequence, then the event is considered to be part of the progression of the disease or an aggravation or acceleration of it. Unless it is contributed to by the employment, the claim for compensation will fail.
A similar approach seems to have been taken in relation to the Victorian Act and the Workers Compensation Act 1971 (SA), where the entitlement to compensation also depended on there being an injury and where the definition of "injury" took a similar form to that in New South Wales. However, "disease" was also defined in both Acts in a manner almost identical to that in the South Australian Act at present. In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 the worker suffered a coronary artery disease and myocardial degeneration. He suffered a series of coronary occlusions and myocardial infarctions, the last occurring shortly before a change in the levels of compensation provided by the Victorian Act (1 July 1965). He died from a pulmonary oedema after 1 July, and his dependants claimed compensation at the new level on the basis that the pulmonary oedema was a new injury, being a sudden physiological change for the worse. It was agreed that it arose out of "work-aggravated and work-accelerated coronary artery disease and work-aggravated and accelerated myocardial degeneration, and was the terminal event in a long history of cardiac disease". At the relevant time, injury was defined in the Victorian Act as follows:
"'Injury' means any physical or mental injury, and without limiting the generality of the foregoing, includes -
(a) a disease contracted by a worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and (b) the recurrence aggravation or acceleration of any pre-existing injury or disease where the employment was a contributing factor to such recurrence aggravation or acceleration..."
"Disease" was defined as follows:
"'Disease' includes 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 any pre-existing disease as aforesaid."
The High Court held that the worker did not suffer an "injury" within the meaning of the term then in force. Once again, it was because the oedema was considered to be but a phase of the aggravated or accelerated cardiac disease. Barwick CJ said at p557:
"The oedema was not, in my opinion, a physical injury within the opening words of the new definition of injury properly construed. It was, as the agreed facts require us to assume, a physiological change for the worse. Its sudden and unexpected character is of no significance, for we are not here concerned with the accidental quality of an injury and the definition of disease applies equally to gradual as to sudden development. It was autogenous in the sense that nothing but the accelerated disease of which it was a manifestation caused it to occur, either at the time it did or at all: as I have said, it was no more than a phase in that accelerated disease."
Kitto J said, at p569:
"If... the initial assumption be adhered to that it is in accordance with the Act to isolate the pulmonary oedema and consider it as a disease in its own right, so to speak, the case is made out that an acceleration of the pulmonary oedema, in the sense of a bringing forward in time of the onset of that condition, occurred on 7 th July 1965, and that it was an acceleration to which the employment, by its effect upon each of the earlier stages of the coronary artery disease, contributed.
These considerations seem to me to entitle the respondent to succeed, provided that the crucial step be taken of holding that the Act intends a physical disorder which comes into existence merely as a stage in the development of a larger disorder to be considered separately for the purpose of applying the definition of 'disease' and the provisions of ss.5(1) and 9(1). For my part, though I confess to having wavered on the point, I think that to take that step would be to introduce into the scheme of the Act a conception so artificial and so removed from the common sense of the matter that compelling words should be required before accepting it. I find no such compelling words."
A similar approach was therefore taken by identifying the underlying condition and by not treating the incapacitating event separately if it was properly seen as a culmination of the disease.
This Court, in Tonkin v Federation Insurance Limited (1981) 27 SASR 153 applied Ogden Industries v Lucas (supra) where the worker had a long-standing arterio-sclerotic vascular disease, as a result of which a piece of material, probably a fat embolus, dislodged from the diseased left internal carotid artery, and totally blocked the middle cerebral artery. In consequence there was loss of blood supply to portion of the brain, leading to the death or destruction of certain brain tissue. The definition of "injury" was very similar to the Victorian definition, and the definition of "disease", although similar, was as follows:
"'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development and also includes aggravation, acceleration, exacerbation, deterioration or recurrence of such an ailment, disorder, defect or condition"
Other than for the inclusion of aggravation, acceleration etc, the definition is identical with that in the present Act. Once again the pathological change in Tonkin occurred in the course of the progress of the long-standing disease, and because of that was not separately considered as an injury, and the Court applied the construction to the definition of "injury" which had begun in Slazenger's case and had been applied in many cases since, including Ogden Industries Pty Ltd v Lucas , namely that because it did not come within the description of a work-induced disease, it could not separately be classified as an injury.
The most recent Victorian case is Accident Compensation Commission v McIntosh (1991) 2 VR 253. "Injury" and "disease" remained similarly defined as in Ogden Industries Pty Ltd v Lucas (supra). The alleged injury was a cerebral haemorrhage due probably to congenital malformation of blood vessels, although it could have occurred without any arteriovenous malformation. The tribunal of fact had found that the haemorrhage was a physical injury for the purposes of the definition. It found that there was "no evidence of any progressive condition or of any real condition that could be described, in general terms, as a disease" (supra at p262). The question before the Appeal Division of the Supreme Court of Victoria was whether it was open to the Tribunal to find that the worker suffered a physical injury, as defined. The Court held that it was. It confirmed that on the evidence the worker had not suffered from any disease in the ordinary sense, but was going about her work in the normal way before the rupture occurred. The rupture in that case was separately regarded, and was held to be an injury in the ordinary sense, because it was not part of or related to any underlying disease. Cases like Slazenger's (Australia) Pty Ltd v Burnett (supra) and Ogden Industries Pty Ltd v Lucas (supra) were distinguished on the basis that the final event was no more than the terminal or precipitating phase of the earlier disease. The Court dismissed an argument that the rupture of the artery was not, of itself, a "physical injury". Murphy J, delivering the opinion of the Court, said at p262:
"I have the utmost difficulty in accepting such a proposition. If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture - something quite distinct from the defect, disorder or morbid condition, which enables it to occur. An occlusion caused by the distinct flaking off of a platelet, and the blocking of an already narrowed arteriosclerotic artery is quite distinct from the diseased condition of the artery itself. So also is a rupture distinct from its aetiology, whether progressive or not."
That passage was approved by Toohey, McHugh and Gummow JJ, who were part of the majority, in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335.
Finally, in Zickar's case itself, the worker suffered a rupture of a cerebral aneurism attributed to congenital weakness, and as a consequence suffered severe brain damage. His claim was based on the New South Wales Act. Zickar's case is important for the fact that it was not in issue that the cause of the aneurism was a disease, which of course is undefined for the purposes of the New South Wales Act. Its rupture was nevertheless held to be a physical injury, the majority of the Court holding that the structure of the definition of "injury" was such that the reference to diseases was no more than an extension of the definition of "injury", and was not exclusive of other disease-induced events not caused or contributed to by the employment. The case has no doubt had a significant impact on the definition of "injury" as contained in the New South Wales and Victorian Acts, and as used to be contained in the South Australian Act of 1971. It merely means that the culminating event can be both part of a disease and also a physical injury for the purposes of that definition. During the course of their reasons, Toohey, McHugh and Gummow JJ said (supra at p334):
"But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury."
Thus, while it may now be of less significance for the purposes of the New South Wales definition, the culminating event, if it is part of the progression of a disease, may still be regarded as being included in the disease. Zickar's case merely means that in New South Wales it can also be regarded as a physical injury and can be the subject of compensation if there is only a temporal connection with the employment.
It can therefore be seen that in those Acts where disease is either undefined or is defined in a manner similar to that presently contained in the South Australian Act, the first inquiry has been whether the underlying condition is a disease, in which case the precipitating event to which the disease gives rise is seen as being part of that disease. If it can be shown that the underlying condition is not a disease, then the event itself must be considered, and will generally come within the concept of a physical injury by virtue of the event being an identifiable pathological change causing or inducing physical damage.
The only case in which it may be said that where there was no underlying disease the precipitating event was nevertheless considered, standing alone, as to whether it would constitute a disease is that of Workers Rehabilitation and Compensation Corporation v Ascione (supra). The factual circumstances of that case were almost indistinguishable from the present. There was a rupture of an AVM. The Court had little difficulty in arriving at the conclusion that the condition which gave rise to the rupture was not a "disease" as then defined in s3 of the Act. However, all members of the Court did consider whether the rupture itself could be classified as a disease. The only reason for that appears to have been by virtue of the nature of the then definition itself. By that definition, disease included "the deterioration of a physical, mental or sensory faculty for which there is no obvious proximate cause". By reference to the deterioration of a physical, mental or sensory faculty, it was at once expansive, and would indeed cover almost any physical injury. That part of the definition required the consideration of a particular event. However, the definition was at once immediately restrictive by the addition of the words "for which there is no obvious proximate cause". It was that restriction which required the conclusion that the rupture was not itself a disease. There was an obvious proximate cause for the rupture, namely the AVM. But for that, the rupture would necessarily have been a disease. Because it was not a disease the disability was compensable as being a physical injury.
The present definition of "disease" is quite different and does not preclude the approach which it seems all the other cases require. I therefore apply that approach to the facts of the instant case.
The underlying condition in this case was the AVM. It was congenital. There was nothing to indicate that it was progressive. Mr Burch did not know that he had it. He was not disabled in any way by the condition itself. Was it, therefore, a disease in the ordinary (undefined) sense? In my opinion, it was not. I respectfully adopt what was said by Clarke JA in O'Neill v Lumbey (supra) at 655:
"In ordinary language a disease is understood as connoting an ongoing process which is to be distinguished from a structural defect which can be repaired or removed. In the case under discussion the weakness was effectively repaired after the rupture. Once that occurred the problem was eliminated. On the other hand the repair of a ruptured aneurism consequent upon arteriosclerosis would not normally be understood as removing the problem. The mechanical repair to the damaged tissue would not prevent the ravages of the ongoing underlying disease."
I note that that approach was expressly approved by Olsson J in Workers Rehabilitation and Compensation Corporation v Ascione (supra) at 137-138. The approach is entirely applicable to the condition in this case. As I have pointed out, the defect itself (the AVM) was effectively removed at a subsequent operation. It is to be distinguished from an insidious vascular disease.
Was the condition a disease in the extended sense contemplated by paragraph (a) of the definition? It may be accurately described as a "defect" or a "morbid condition", but the qualifying words "whether of sudden or gradual development" suggest the need for some progression or development - something that develops or unfolds, rather than remaining static. This condition had been the same ever since the formation of the blood vessels, and it had not deteriorated or changed since that time. I therefore do not consider that the underlying condition was a disease in the extended sense.
If the underlying condition was not a disease, then on the long line of authority I have referred to, it would be inappropriate to regard the haemorrhage or the precipitating event as part of or as an inevitable result of a disease, and therefore as included in the totality of the events to which the definition of "disease" is then applied.
Does the present definition, as did the definition in Ascione's case, require a consideration of the precipitating event itself as a disease? One could not apply the ordinary concept of disease to the event in question. Unlike the definition of "disease" applying at the time of Ascione's case, it refers not so much to an event but to a state or condition. It takes its flavour from the use of the words "ailment", "disorder", "defect" and "condition". The respondent argued that the haemorrhage was nevertheless a "physical... disorder (or) defect... of sudden... development". So to hold would be to define a disease by reference to an event, rather than a state or condition, and it would mean that most injuries caused by external trauma for which compensation is payable under the Act would also be diseases and would be subject to the same restrictions on recovery of compensation as are disabilities which are conventional diseases. It is unlikely that Parliament intended that result. I therefore consider that even if it were appropriate to consider the precipitating event as a disease in itself, where the underlying condition is not a disease, I do not consider that the definition extends to the event in question.
It was urged upon us that the present definition of "disease" must be read in the light of events subsequent to the decision in Ascione's case (supra). Following Ascione's case, Parliament amended the definition of "disease" in the Act to its present form, but retained the definition of "disability" and the provisions of s30. That amendment was effected by the WorkersRehabilitation and Compensation Act Amendment Act 1990 (No 34 of 1990), s3. Section 2(2) of the amending Act provided:
"(2) Section 3 will be taken to have come into operation at the same time as the principal act came into operation."
The amendment, whatever its effect, was therefore intended to act retrospectively.
Section 8 of the amending Act provided that the amendment effected to the principal Act by s3 did not affect (inter alia) the rights of the respondent in Supreme Court Action 998 of 1989, being Ascione's case. We were asked to infer from that and from what the Minister said in his second reading speech introducing the amending Bill, that it was the intention of Parliament, by effecting that particular amendment, to ensure that in circumstances such as those of Ascione's case and the present case, such events should be included in the definition of "disease".
In my opinion, that cannot be a necessary implication from the statutory preservation of the rights of the worker in Ascione's case. The amendment and the new definition of "disease" was plainly intended to be retrospective to the commencement of the principal Act. The express exclusion of the application of the provisions to Mr Ascione merely indicates that, whatever its effect, it has no application retrospectively to him.
As to the Minister's second reading speech, the respondent and the intervener relied on the decision of this Court in Owen v State of South Australia (1996) 66 SASR 251 to the effect that it was now permissible to have regard to the Minister's second reading speech in order to identify the purpose of the Bill or the mischief it was intended to remedy. Counsel for the appellant submitted that reference to such extraneous materials could only arise if there was a patent ambiguity or obscurity in the legislation. It is clear that if there ever was any such restriction, it has been removed by the High Court. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR
384, Brennan CJ, Dawson, Toohey and Gummow JJ said in their joint judgment, at p408:
"It is well settled that at common law, apart from any reliance upon s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy." (Footnotes excluded)
That approach was confirmed in Newcastle City Council v GIO General Ltd
(1997) 72 ALJR 97 per Toohey, Gaudron and Gummow JJ at 104 and McHugh J at 112.
However, it is clear that the only purpose in looking at the Minister's second reading speech is to ascertain the mischief that the Act was intended to cure. It does not mean that one can have regard to the second reading speech in order to ascertain what Parliament intended certain words to mean. Nor did it mean that once the mischief has been ascertained, the words must be strained in their meaning and context to give effect to the identified mischief. Reference to the second reading speech provides no more than an indicator of what Parliament hoped to achieve. It does not follow that Parliament's hope has necessarily borne fruit.
When introducing the Bill for the Act which introduced the present definition of "disease" in 1990, the then Minister for Labour said (Hansard, 21 March 1990 at pp697-698):
"The second major issue dealt with in this Bill is the insertion of a new definition of 'disease' which is necessary to overcome a Supreme Court decision in the case of Ascione which had the effect of allowing certain non-work related diseases to be treated as compensable under the Act..."
It may have been the intention of the Government to change the law consequent upon the decision in Ascione , but I find the second reading speech unhelpful, as it misstates the effect of the decision in Ascione . The Court did not consider the condition in that case to be either a disease in its commonly understood sense or in the extended sense. In any event, when read in context, the Minister's speech expresses a desire on the part of the Government "to put it beyond doubt that diseases are only compensable if they are work related". That begs the question as to what Parliament may choose to include or not to include in the definition of "disease".
I have already referred to the argument that the haemorrhage was a "physical... disorder (or) defect... of sudden development". I acknowledge a substantial argument that a literal meaning of those words might encompass this condition or event. However, if the literal reading leads to absurdity and to something that Parliament plainly did not intend, then the alternative construction reasonably open will be preferred. As was said by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320:
"[T]here are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute."
That passage was approved by Brennan CJ in Newcastle City Council v GIO General Ltd (supra) at 102.
While the definition is not without its difficulty, I am persuaded that to adopt that literal meaning really goes far beyond what Parliament intended by opening up the operation of the restrictive disease provisions to almost any kind of physiological change, whether produced by disease or trauma. That would have the effect of severely curtailing the access of workers to compensation for disabilities which merely arise in the course of their employment. One can discern, from the well documented history of workers' compensation legislation, including that of this State, an evolving legislative purpose to broaden access to compensation for work related injuries. Nowhere can I detect a purpose to restrict access to compensation for non-disease caused disabilities where they arise solely in the course of employment. Yet a construction which brings this type of physiological change within the definition of "disease", and the restrictions on the recovery of compensation which apply to it, would inevitably bring within the same restriction a great many other disabilities which have never been regarded as having any association with disease, and which have hitherto been the subject of compensation as arising in the course of employment.
We are bidden by s22 of the Acts Interpretation Act 1915, where an Act is reasonably open to more than one construction, to prefer a construction that would promote the purpose or object of the Act, whether or not that purpose is expressly stated in the Act. Given the apparent division of opinion in this case and the acknowledged vacillation of the tribunal below as to the construction of the definition of "disease", I think it is not unreasonable to say that the definition is reasonably open to more than one construction. In those circumstances one must endeavour to construe the Act as a whole: K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 per Mason J at 312. That means that one must guard against too literal a construction of the 1990 amendment in isolation. When the definition is read in the context of the Act as a whole and having regard to its overall purposes, I am unable to construe it in a manner which includes the appellant's condition or the precipitating event as a disease. It must therefore follow that, in my opinion, the appellant succeeds in his argument that his disability was not a disease for the purposes of the Act.
The next question to be addressed is whether he suffered a "secondary disability". If he did, s30 of the Act requires that he show more than a temporal connection between the employment and the disability. As I earlier pointed out, in order to have a secondary disability, there must be a prior disability in respect of which there is an aggravation, acceleration, exacerbation, deterioration or recurrence. The only event which could possibly constitute the secondary disability is the haemorrhage and its immediate sequelae. The only "prior" disability could therefore be the underlying condition itself. For reasons I have given, that was not a disease and could not, on that account, be included in the definition of "disability". The condition was not a "physical or mental injury". There had never been a physiological change. The condition had always been present without deterioration. It could not properly be described as a "loss, deterioration or impairment of (an) organ or part of the body, or of a physical, mental or sensory faculty". "Loss" suggests the removal or disappearance of something that was previously there. That was not this case. "Deterioration" suggests a change in the condition of the organ, and there has been no such change. "Impairment" suggests again some sort of induced change to the organ or part of the body in question, but in any event prior to the haemorrhage, there had never been any impairment of function of any relevant part of Mr Burch's body. Therefore, in my opinion, there was no prior disability in respect of which it could be said that the haemorrhage was an "aggravation, acceleration etc".
In order to succeed, however, Mr Burch needed to establish that the precipitating event was itself a disability, and it was not, as I understand it, suggested that the haemorrhage did not constitute a physical injury by way of sudden physiological change or indeed the impairment of part of his body, namely his brain. He therefore suffered a disability which was not a secondary disability or a disease and, being an identifiable event, it was shown to have arisen in the course of employment, and thus was compensable, by virtue of the application of s30 of the Act. Whilst Zickar v MGH Plastics Industries Pty Ltd (supra) appears to have changed the law significantly in New South Wales and those States where the Act contains a similar definition of "injury", the decision itself has no effect on the outcome of this case, and indeed may not have the effect in this State that it clearly has in New South Wales.
I would therefore allow the appeal and set aside the decision of the Tribunal dismissing the appeal from the Review Officer. I would make a declaration that the disability suffered by the appellant on 26 November 1993 is compensable in accordance with the provisions of the Act. I would remit the matter to the Tribunal for a determination of the amount of compensation in accordance with the provisions of the Act.
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