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John Burch v State of South Australia No. Scgrg-97-331 Judgment No. 6517 Number of Pages 29 Workers' Compensation

John Burch v State of South Australia No. Scgrg-97-331 Judgment No. 6517 Number of Pages 29 Workers' Compensation

Case [1998] SASC 6517 25 February 1998

Compensatory Damages

Disease

Disability

Statutory Interpretation

Jurisdiction

Workers Compensation Law

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: John Burch v State of South Australia No. Scgrg-97-331 Judgment No. 6517 Number of Pages 29 Workers' Compensation [1998] SASC 6517
Case: [1998] SASC 6517
Decision Date: 25 February 1998

CaseChat Overview and Summary

In this appeal, the appellant, Mr John Burch, sought compensation under the Workers Rehabilitation and Compensation Act 1986 for a disability resulting from a haemorrhage caused by an arteriovenous malformation (AVM) in his brain, which occurred while he was at work. The key issue was whether the AVM and the resulting haemorrhage constituted a "disease" under the Act, which would render the appellant's disability non-compensable unless his employment contributed to the disease. The Full Court of the Supreme Court of South Australia considered the definitions of "disability" and "disease" in the Act, as well as relevant case law and legislative history. The Court found that the AVM was not a disease in the ordinary sense or in the extended sense defined in the Act. The haemorrhage, while a physical disorder of sudden development, was not considered a disease because it was the inevitable result of the AVM, which was not a disease. Consequently, the appellant's disability was not a secondary disability or a disease, and therefore compensable under the Act as it arose in the course of his employment. The appeal was dismissed, and the matter was remitted to the Tribunal for a determination of the amount of compensation.

Orders