Johnson and Comcare
[2003] AATA 969
•29 September 2003
CATCHWORDS – COMPENSATION
– Workers’ Compensation – heart condition/myocardial infarction – physical and emotional stressors - whether Comcare liable to pay compensation for the applicant’s condition – whether injury suffered in the course of or arising out of the applicant’s employment – whether condition an existing condition - whether applicant’s employment was a contributing factor which aggravated or accelerated the applicant’s existing condition – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss. 4 and 14
Workers’ Compensation Act 1926 (NSW) s. 6
Commonwealth Employees’ Compensation Act 1930 (Cth) s. 9
Workers Compensation Act 1987
Workers’ Compensation Act 1951 (ACT) ss. 6, 7 and 9
Defence Act 1903 s. 45
Veterans’ Entitlements Act 1986
The Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967) 117 CLR 19
The Commonwealth v Ockenden (1958) 99 CLR 215
Kavanagh v The Commonwealth (1959-1960) 103 CLR 547
Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156
Kennedy Cleaning Services Pty Ltd v Petroska (2000) 200 CLR 286
Charles R Davidson v M’Robb [1918] AC 304
Humphrey Earl Limited v Speechley (1951) 84 CLR 126
Commonwealth v Wright (1956) 96 CLR 536
Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529
Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473
Comcare v Mather and Mitchell (1995) 37 ALD 463
Gregory v Comcare (1997) 72 FCR 196
Comcare v O’Dea (1997) 26 AAR 252
Re Daykin and Department of Defence [1998] AATA 370
Re Commonwealth Bank of Australia and Wark (1995) 37 ALD 697
Australian Telecommunications Commission v Treloar (1989) 90 ALR 202
Repatriation Commission v Bendy (1989) 18 ALD 144
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154
DECISION AND REASONS FOR DECISION [2003] AATA 969
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2001/1588
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT JOHNSON
Applicant
AndCOMCARE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Dr P D Fricker (Member)
Date: 29 September, 2003
Place: Melbourne
Decision:The Tribunal affirms the reviewable decision of the respondent dated 24 July, 2000.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 24 August, 2000 the applicant, Mr Robert Johnson, lodged an application for review of a reviewable decision made by a delegate of the respondent, Comcare, on 24 July 2000. The decision affirmed an earlier determination made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) on 29 June, 1999 that Comcare was not liable to pay compensation for Mr Johnson’s heart condition. In the determination the delegate stated:
“For a claim to be successful under the Act, the evidence has to show that it is probable, and not merely possible that your military service contributed to a material degree to either the causation, aggravation, acceleration or recurrence of the disease.”
At the hearing Mr Nathan Moshinsky QC appeared on behalf of Mr Johnson and Mr Robin Gorton QC appeared with Ms Ann McMahon on behalf of Comcare. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence together with further documents, to which we will refer in these reasons. Mr Johnson gave oral evidence in support of his case together with Warrant Officer Hyndman, Mr Johnson’s immediate superior at the relevant time, Dr René Dupuche and Professor Paul Nestel. Evidence on behalf of the respondent was given by Professor Michael O’Rourke and Professor Malcolm West.
THE ISSUES
There are two main issues in this case. The first is whether Mr Johnson suffered an injury simpliciter, or the aggravation of such an injury, arising out of, or in the course of, his employment. If he did not suffer an injury simpliciter, the second issue is whether he suffered an ailment, or the aggravation of any such ailment (and so a disease) that was contributed to in a material degree by the Commonwealth.
BACKGROUND
Some of the facts forming the background to the issues that we must decide were not in issue between the parties. In light of that and on the basis of the evidence, we have made the findings of fact that we will set out in the following paragraphs.
Mr Johnson was born on 29 November, 1948. His father suffered from a heart attack when he was 50 years of age and his sister suffered from cancer. Mr Johnson suffered from a hernia from 1995. He also suffered from alcoholism but conquered that problem from about 1981. For the past 18 years, Mr Johnson has been told that his cholesterol reading is too high. He has followed the instructions that he has been given and, after his heart attack, began to take medication. Mr Johnson used to smoke about 40 cigarettes each day but then reduced it to 15 to 20 each day in 1996 and then reduced it further. He did not reduced his smoking because he was suffering from any symptoms.
Mr Johnson joined the RAAF on 20 May, 1980. After three months basic training at Edinburgh Air Base, he became a cook’s assistant and continued in that position until 1993. His duties included setting up and clearing dining rooms, making tea and coffee, doing dishes and sweeping and mopping floors. He attained the rank of Sergeant after six years. In 1993 he completed a stewards’ course. On its completion, he continued to perform his previous duties in the dining room but also cleaned and cared for accommodation in the Officers’ Mess on the base at Wagga.
Mr Johnson was transferred to the Tindal Air Base (“the Base”) in the Northern Territory.. Tindal is located some 17 kilometres south of Katherine. He was a Sergeant and responsible for the Sergeant’s Mess. His duties were similar to those he carried out in Wagga. He assumed responsibility for the accommodation from a civilian, who had been caring for it up to that time, including the Tindal Emergency Accommodation Line Camp (“TEAL Camp”). It comprised approximately 1,000 beds in all. TEAL Camp held 511 when it was full. Blocks in TEAL Camp, each comprising five rooms, were grouped into four groups. Some rooms had single beds but most had double bunk beds.
His responsibilities included booking people into and out of the accommodation. In his early days, this was done without the benefit of a computer. Mr Johnson was later required to maintain a computerised accommodation system based in part on a hotel computerised accommodation record system. An employee at the level of an ASO2 assisted him with his administrative duties. Mr Johnson’s other duties required him to oversee cleaners caring for the Officers’ Mess and the Sergeants’ Mess. The airmen were required to clean their own quarters and to care for the gardens. Mr Johnson’s duties required him to inspect them to ensure that they were kept at an appropriate standard.
Each week, those in the accommodation would bring their dirty sheets to Mr Johnson and he would give them clean sheets to take back to their rooms. Mr Johnson would put the dirty sheets into bags of 20 together with pillowslips. Each bag weighed approximately 20 kilogrammes. He would then place the bags in a van parked next to the office. From there, the bagged sheets would be transported to the bedding store or accommodation cell on the Base. Normally, Mr Johnson would not mop the floors in the accommodation blocks but would do so if they were “really busy” and people were going out and coming in almost immediately. Usually, the job was undertaken by one of the cleaning staff.
On 11 May, 1998 Mr Johnson was admitted to hospital for a hernia operation and returned to work on 19 June, l998. Although he was not completely fit initially, he built up his fitness and was at his full fitness by the beginning of August, 1998.
At some time after his hernia operation, he was transferred from the Sergeants’ Mess to the Accommodation Cell. He was there for three weeks before being sent to an advanced stewards’ course in Wagga from 3 August to 24 August, 1998.
On the weekend of Saturday and Sunday, 29 and 30 August, 1998, Mr Johnson attended the Base for several hours each morning in order to prepare accommodation. On Sunday, 30 August, 1998, while at home in the early afternoon, Mr Johnson experienced chest pain that led him to seek medical treatment at the Base. He was subsequently transferred by the RAAF’s air ambulance to the Katherine Base Hospital (“KBH”). From there, he was transferred by the Royal Flying Doctor (“RDF”) to the Darwin Public Hospital and then the Darwin Private Hospital (“DPH”). He was later transferred to the RAAF Base in Darwin and then to the Queen Elizabeth Hospital (“QEH”) in Adelaide.
On 16 February, 1999, Mr Johnson lodged a claim for compensation claiming that on 30 August, 1998 he had suffered a heart attack in the course of his employment.
THE EVIDENCE
Mr Johnson’s exercise regime before 29 and 30 August, 1998
Before the weekend of 29 and 30 August, 1998, Mr Johnson said that he walked up to six kilometres three times each week. In addition, he and his wife walked 2.4 kilometre each night as they walked the dogs. In addition, Mr Johnson said, he rode his bike 1.5 kilometres to and from work each weekday, played volleyball each week and also played soccer. Each year, he was required to undertake a physical fitness test. To complete it, he had to walk 5 kilometres in 44 minutes, which he could do in 40 minutes, raise himself by his arms so that his chin was level with a bar and hold the position for 20 seconds, and do 20 sit ups. He did not find it a strenuous test.
Work-related matters at the Base prior to his being transferred to the Accommodation Section
At the beginning of 1998, Mr Johnson was working as the Sergeant’s Mess Manager but began a period of leave on the Friday before the 1998 flood in Katherine. In an attachment to his claim giving details about all the events which led up to the injury he wrote:
“To start back to the beginning when I first notice that the work I was doing began to become stressful for me was:
During the Flood in Katherine 1998, I was working a 12 hr shift in town, and put in charge of people and RAAF personnel I had never worked before and, some of whom were of a higher rank than myself. This in itself was quite stressful as people were coming in at all hours of the night wanting food stuff without paper work or authority, and it became stressful having to turn them away during such a time of need for everyone. Also after the food when we went back to our normal work and messes, there was a bit of a difference between to civilian personnel in the Airmen’s Mess Dining Room, one of which happened to be my wife and the other being a Officers wife who had just started working for the Dept of Defence on the 4th Jan 98. I was working as the Sergeants Mess Manager and was asked to try and sort the situation out. This at the time I thought was a reasonable request. I tried to do this task to my best ability and without being bias to either side or person. In the end the situation got out of hand and I was told to look after both messes being the Airmen’s and Sergeants, this in itself was quite a task having to go back and forth between the messes and also look after all the my secondary duties these duties included doing rosters for ground defence, duty member, PFT and leave, for all of Catering Section. I was working overtime just about everyday plus working on weekends just tom (sic) finish my workload. All of this work was (now I think about it) getting to me and health.” (T documents, page 11)
In evidence Mr Johnson said that his wife and the officer’s wife had both been employed as civilians in the Messes under his supervision. Amongst other duties, the officer’s wife, who was employed as a General Services Officer level 2 (“GSO2”), was required to set up and clean the dining rooms. Although she was required to sweep and mop the floors, she refused to put the chairs up on the tables and just swept and mopped around them. She told him that she had a bad shoulder but, as she had not provided a medical certificate, he said that he regarded her as fit and she had to do the work. He said that the officer’s wife, went to his supervisor and said he was harassing her. Mr Johnson said that he was later called into the office and “got a dressing down for harassing her”.. Mr Johnson said that he denied that he had harassed her and that he was only doing his job to get her to do her job.
The trouble between his wife, who worked as a GSO2 in the Airmen’s Mess and the officer’s wife began when the officer’s wife would not do her job, Mr Johnson said. He tried to mediate between them. When he went to a superior officer for assistance, he was told that he was their supervisor and that he should sort it out. When he tried to do that, the officer’s wife said that he was siding with his wife in the matter. He had trouble sleeping and felt that he was “going through the mincer all the time”. Mr Johnson said that he felt angry with both the officer’s wife and with the officers. In cross-examination, Mr Johnson said that he did not tell doctors anything about this. He coped with it himself.
Mr Johnson’s transfer to the Accommodation Section
Flying Officer Johns spoke with Mr Johnson on 16 July, 1998 and recorded their conversation. They spoke of the reasons for Mr Johnson’s transfer to the Accommodation Section from the Catering Section. The reasons were said to be to overcome the level of stress that Mr Johnson appeared to be under because of circumstances due to his wife’s health and his own, the number of secondary duties for which he was responsible and the unworkable situation that had developed professionally between himself and the officer’s wife. The transfer was not intended as punishment and Flying Officer Johns pointed out to “… SGT Johnson that he now appeared to be happier and considerably less stressed in his new work area, to which he agreed.” (T documents, page 20).
“On call”
In giving evidence, Mr Johnson said that people would arrive at Tindal at various times. Most were expected but, on occasion, some would come earlier than expected and would need to be accommodated. If people were expected, keys would be left for them with security located some 3½ kilometres from the accommodation. If they were not expected, security would call the person who was on call for the accommodation. At one time, any of the Leading Aircraftsmen or Women Stewards (“LAC/WS”) in the Catering Section could be called.
On 7 July, 1998, Mr Johnson wrote a minute to the Messing Services Manager and headed it “Accommodation Cell Pager”. The minute advised that, as of 8 July, 1998, only those working in the Accommodation Section could be paged as they were the only persons who could operate the accommodation computer. In practice, this meant that only he and ACW Dixon were on call (Exhibit J). From 1998, there was a roster as to when each was on call. Being “on call” meant being on call at any time of the day or night. If they were actually called to do some work, they were given leave to be absent for an equivalent amount of time during the normal working day. They would not be paid overtime but, when they accumulated eight hours of “on call” time, they would take a day off and put “LIL” (i.e. leave in lieu) in the roster. Mr Johnson was given nine days leave in lieu after his work during the Katherine floods.
When he was on call, Mr Johnson would either stay at home, some 2 kilometres from the Base, or would go to the pool at the Base. He would not travel to Katherine. In 1994, he was given a pager when on call but it proved unreliable. Sometime in 1998, Mr Johnson was given a mobile telephone. When he received a call, Mr Johnson would go to the Base where he would get a key from a locked cabinet, check the room to ensure that it was empty and give the key to the person.
In cross-examination, Mr Johnson said that, until approximately July, 1998, he had not been working in accommodation in Tindal but was in the Catering Section. As a member of the Catering staff, he was called on occasion as he lived closer to the Base than those who lived in Katherine but others could be called. It was a matter of convenience that he was called but he agreed that he had not been on call in relation to accommodation before mid July, 1998. Other members of staff did take the pager before that time and took it with them to places such as Katherine or on other activities. Mr Johnson said that the pager was unreliable. Whether being on call stopped a person following his or her domestic or social activities, Mr Johnson said, depended upon the person. He agreed with Mr Gorton that he had made the choice to stay at home or at the pool.
Wagga
In giving oral evidence, Mr Johnson said that he had felt a pain when he was walking down the road at Wagga while he was attending the advanced stewards’ course. He thought that it felt like a stitch. In cross-examination, Mr Johnson said that he was walking at about 7:00 or 7:30pm outside course hours at some time about two weeks into the course. He did not regard himself as exerting himself but experienced a pain that was sharp and like a stitch for a very short period of time. He described it as being sharp and as extending from his left side just below his rib cage to an area forward and up to about the nipple area. Mr Johnson pointed to an area of his body that was in the mid clavicular line. The pain lasted for only one or two seconds. While he was in Wagga, he had not done anything that he would say was moderately strenuous. He had played some sport “but not all out”. He did not have any recurrences of the pain in Wagga and neither sought any treatment for it nor took any medication. Mr Johnson said that he did not experience any pain in his chest, side or ribs again until 29 August, 1998. His hernia always played up but it hardly ever stopped him from doing anything.
Events at Tindal on return from Wagga
Mr Johnson was working in the Accommodation Cell for three weeks before he left to go on a course in Wagga. In the attachment to his claim, he had described the duties during these three weeks as more stressful as there was double handling of the bookings with a lot of walking and phone calls between a lot of people. On 24 August he returned from the course and was told that the Americans on third phrase of an exercise had been lost from the computer while he was away and they wanted to know what happened to it. He said he did not know as he was not responsible.
In cross-examination, Mr Johnson said that the ASO2 and he had to re-enter each of the people who had been lost from the computer.. Mr Johnson said that he was upset because he was getting the blame for the problem. In that first week on his return, Mr Johnson said that he had also become upset when he had been dealing with one Captain and then had been told by another Captain to take no notice of the first. Both were senior to him and he had to deal with their contrary directions.
Events of Saturday, 29 August, 1930
In his oral evidence, Mr Johnson said that, prior to the weekend of 29 and 30 August, 1998, there were two squadrons accommodated at the Base. They were to leave on the Tuesday, 25 August, 1998, but the Hercules that was due to take them became unserviceable in Darwin. Consequently, the two squadrons had to be accommodated for a further period until one squadron could leave on the Saturday and the other squadron drove to Darwin on the Sunday. Mr Johnson said that he found out about these arrangements on the Friday, 28 August, 1998. He was on call for the weekend.
He then arranged to go to the Base at 6:30am on the Saturday, take the soiled sheets as they were handed back in the normal way, hand out fresh ones and do an inspection of the rooms. When he arrived at the Base, he said in giving evidence that he found that some had already gone to board the plane and not taken the sheets from their beds. He had to strip the beds himself and stripped about 40 beds in all. He carried them back to the Accommodation Cell and carried clean sheets back to the rooms where he placed them on the bed. Although he did not make the beds, he swept and mopped the rooms. Mr Johnson said that he finished his work at approximately 11:00am.
Events of Sunday, 30 August, 1998
On the Sunday, Mr Johnson said in giving evidence, he returned to the Base at 6:30am to repeat what he had done the previous day. He found that the whole squadron had gone and he had to strip all the beds, carry clean linen to place on each bed and clean the rooms. The job could not be left until the following Monday as there was an exercise starting on that day and the accommodation was required. He was told by an officer from an advance party from the Army that he wanted the toilets cleaned. The officer gave him a private to assist in the task. Mr Johnson said that the private assisted for 30 to 45 minutes.
After he had done all of the work with the rooms, Mr Johnson said, he decided to do the night accommodation for Friday, Saturday and Sunday nights. He had to enter details such as whether the rooms were clean or dirty and whether occupied or not. That task normally took him 40 minutes to complete each night. In addition, he bagged the laundry. Mr Johnson said in giving evidence that he felt tired on the Sunday and rather warm in his full uniform as he was required to be.
While he was carrying the sheets, Mr Johnson said, he had felt what he thought were stitches. He felt that he did more lifting and carrying on that day than usual. Had he been doing the work during the week, there would have been people there to give him a hand but he could not leave it as more people required accommodation on the following day.
In cross-examination, Mr Johnson said that he started work on the Sunday between 6:30 and 6:40am. In his claim form for compensation dated 15 February, 1999, Mr Johnson had said that he had:
“… started work at 0600hrs to clear the last personnel out of Teal Camp and get the keys ready, a member of the advance party for the next the exercise informed me that the toilets needed a good clean, so I got all the cleaning gear ready and started them went some help came and I left to go back to my office and check all the leaving members out and count and bag all the laundry they had used. …” (T documents, page 12).
He had not made any mention of these pains in this statement. In cross-examination, Mr Johnson said that no-one from the squadron had been there to bring back their sheets. This was the true situation and that his earlier evidence had been incorrect.
In a statement dated 8 November, 1999 written to his solicitor, Mr Johnson had written:
“ I left home at 0600Hrs drove to RAAF Police Section to collect keys for Accommodation Cell Office, to collect the master rooms key for Teal Camp. Arrived at Teal Camp approximately 0615Hrs. I seeked out the Officer in Charge of the members who were leaving, asked him to have his members clean their rooms and come and collect clean linen from the Office, as 75% of the members had already departed. I had to clean the rooms and carry the dirty laundry and replace it with clean ones, this is so to have the rooms ready for the next contingent (two single bed sheets and two pillowcases) back to the office. Then take clean laundry back to the rooms, this distance (is showed on the map enclosed) is approximately 250 to 300 Metres in length. With 75 members leaving on that morning, I had to carry most of the laundry by hand, (as the trolleys were waiting to be repaired. I was only able to carry about Ten to Fifteen Sheets (approximately 9 to 15 Kilos) at a time, you can image how many trips I had to make. With the weather being about 24/26C also humid plus being in uniform I sweated a lot. I had to stop on a few occasions while I got my breath back also I had some pains in my chest area. All of this took me from 0615 till approximately 1030Hrs. While I was doing this, the Army Captain said that the toilets and showers needed cleaning before his contingent arrived. After I finished the rooms I started on cleaning the toilets and showers, then the Army sent me some help to finish these off. At roughly 1130Hrs I departed Teal Camp with the van full of dirty laundry and proceeded back to the Accommodation Cell Office. Once there I unloaded the dirty linen from the van into the Store and started to bag the dirty laundry into 20 sheet lots (there weigh 20Kilos), also at this time I started to do the Night Audit on the Accommodation Computer (trying to get head for the next day). So in fact I was doing two jobs at once, going back and froth (sic) from computer and bagging up the laundry. While doing this I had a crushing pain in my chest which made me stop doing the bagging up, after a short time the pain receded and I carried on till I had finished. Then drove back to RAAF Police Section to hand the keys back in, and drove home.” (T documents, page 51)
When Mr Johnson was reminded that he had said in this document that 75% had departed, Mr Johnson said that he had been incorrect in saying in his oral evidence that everyone had gone; 25% were still there. There had been no-one from the squadron to bring their sheets. It had been a long time since the events had occurred. He also agreed that he had been wrong when he had said in his oral evidence that no-one else was there and that he had no assistance. His reason for the error was that it was some five years since the events occurred.
In a statement dated 10 September, 2001, Mr Johnson had said that Corporal Neighbour, who was then in charge of the Accommodation Cell, had measured the distance between A block and the place where the van was parked. The distance along the pathway between the van and rooms 41-45 and 46-50 was 144 metres. The distance to rooms 21-25 and 26-30 to the van is 145 metres. Both measurements were for a one way trip. Fifteen sheets weighed 15 kilogrammes and 20 sheets, 20 kilogrammes (Exhibit H).
He agreed with Mr Gorton in cross-examination that he had started between 6:30 and 6:40am and that he had to carry sheets to and from, and to clean, no more than 30 rooms. Mr Johnson agreed that he would pick up approximately ten to fifteen sheets at a time and carry them to the Accommodation Office. He completed that job in three or four trips. The distance that he walked each way had been measured by his friend and former colleague, Corporal Neighbour as 140 steps. Mr Johnson agreed that Corporal Neighbour’s steps were not a metre in length and agreed with Mr Gorton that the estimate of 250 to 300 metres that he had made in his letter of 8 November, 1999 was a gross exaggeration. In re-examination, Mr Johnson reasserted that the distance was 250 to 300 metres. In his letter, he had estimated 75 people as leaving the base but Mr Johnson said that 30 to 40 was a more accurate estimate.
In cross-examination, Mr Johnson said that he had to collect sheets from rooms 21 to 40 and 41 to 60 in A and B Blocks. Each was a double room but occupied by only one person. Therefore, only 40 people were leaving on that day. He did not place the sheets in the van parked next to the Accommodation Office but threw them all in the office. The temperature increased during the day to about 24 to 26oC. Mr Johnson moved sheets until approximately 10:30am. He said that he found the work strenuous. Although he had passed his physical fitness test, he was not used to carrying weights. He said that he used a mop and broom to clean the rooms, each of which measured approximately ten feet by eight feet. In order to get the dust out from under the bottom bunk, he had to bend down or to get on his hands and knees.
Mr Johnson said that he started to clean the showers and toilets by himself but was then assisted by an Army private. He could have chosen to let the private do the work but they were his responsibility and he wanted to ensure that they were cleaned properly. It was not a job that he found particularly stressful. Although there were other people on the Base, he could not ask for their assistance as they were there for an American exercise and not for the exercise involving the Australians. It was not the case that 300 people, or any number of people, had arrived unexpectedly at the Base on Sunday, 30 August, 1998. Mr Johnson said in cross-examination that he had not sought the assistance of anyone to help him over the weekend. It should have been an easy job if people had taken their sheets to him and returned the clean ones to their rooms.
Also in cross-examination, Mr Johnson said that he had driven the sheets in the van to the Accommodation Cell’s office some 5 to 6 kilometres from TEAL Camp. He left the camp at about 11:30am and left the office for home at about 12:30pm. Bagging the sheets was not part of his responsibilities but he did that job in order to get ahead for the week as there was to be a change over of people and a new lot would be moving in. He then drove home.
In giving evidence, Mr Johnson said that he arrived home at approximately 12:30pm after completing his work. The man from next door came in with lasagne. He experienced “a bit of stitch” and then felt a pain as if his chest were being crushed with a vice. Mr Johnson told his wife to get the car to take him to the Base and to call the service police to call the medical staff. The medical staff first attended Mr Johnson at the office of the service police. He had an electrocardiograph (“ECG”) at the Base and was given an angina tablet before being taken to KBH and then to the Darwin Public Hospital. At that hospital, he asked for a pan and then said that he was going to be sick. Mr Johnson said that he woke up with the staff performing CPR. He said that he was going to be sick again and he underwent CPR again. After being transferred to the RAAF Base in Darwin, Mr Johnson was flown to the QEH where he underwent an angiogram and remained for two weeks.
In the document accompanying his compensation claim, Mr Johnson had described events after he had finished his work:
“… I finished all that at about 1230 hrs and went home for some lunch and to watch football on the TV.
At approximately 1430 hours I felt a crushing pain in my chest and rang the RAAF police to get the duty medical assistance out and meet me at the medical centre, as I came through the gate my wife and I where stopped by the guard and asked for our passes, I had my ID pass but my wife in the rush to get help for me forgot hers, we were then told to pull over to the hard stand as we needed passes to get in. The medical assistance came and we drove to the medical centre where I was diagnose as having a Heart Attack.” (T documents, pages 12-13)
In his letter of 8 November, 1999, Mr Johnson had referred to a crushing pain in his chest at home but made no reference to any other episode of pain.
In cross-examination, Mr Johnson said that he experienced a pain for one or two seconds when he was walking but it stopped when he stopped walking. When he was in the Accommodation Cell’s office, he experienced a second one on the Sunday. It was similar to the first one that he had experienced that day. Mr Johnson agreed that he had made no mention in his compensation claim of these pains. He said that he had thought that only the “big one” needed to be mentioned and had thought that the earlier ones were just a stitch because he was walking and lifting sheets. He included the pains in a later document which he prepared after his solicitor asked him to include everything that was relevant.
Also in cross-examination, Mr Johnson said that he felt the crushing pain in his left lower chest to his central mid chest and around to the middle of his back. At the time, he was only sitting in his chair. He was given an angina tablet at the medical centre on the Base and the pain went away but it returned.
Mr Johnson said in cross-examination that he could have told the doctor at the Base that the pain had been building up over the previous two days (T documents, page 26). When asked how he could have said that, he replied that he did not have an answer. What he was saying at the hearing was as accurate as he could be. It was also noted in the notes of the Base’s medical centre that he had been experiencing pain lasting two to three minutes over the previous one to two weeks. Mr Johnson said that he had said one to two weeks because he was including the pain that had occurred in Wagga. He could not recall saying two to three minutes.
The In-Flight Patient Report of the Aerial Medical Service recorded on 30 August, 1998 that Mr Johnson had experienced increasing chest pain on exertion over the previous two weeks. It had been relieved by nitrates but on that day he had experienced the sudden onset of severe chest pain for 20 minutes. In cross-examination, Mr Johnson said that he had told them that he had increasing amounts of pain on the Sunday. The pain at Wagga and on the Sunday morning was the same and then there was the “big one”.
Mr Johnson said in cross-examination that he had not experienced any symptoms of ill-health while he was working during the Katherine flood. He was just tired.
Warrant Officer Hyndman
Warrant Officer Hyndman, who had worked as the Caterer at the Base, from July, 1997 to June, 2001, said that Mr Johnson would have been working physically quite hard to clean the numerous blocks on his own but, after some time, Army personnel were used to assist him (T documents, page 14).
MEDICAL EVIDENCE
Base’s Outpatient Clinical Records dated 30 August, 1998
The history taken on Mr Johnson’s presentation at the Base was:
“Complained of central chest pain radiating across chest heavy in nature over last 1-2 weeks lasting 2-3 minutes usually. Occurs with exercise or at rest. Today finished work at home developed chest pain lasting 20 minutes and radiating to back. Associated shortness of breath diagnosis of ischaemic chest pain/unstable angina was made.”
At 14:30, it was recorded:
“Presents with severe chest pain radiating to back. Complains of chest pain severity 10/10 ‘Feeling like chest would cave in.’ Has been building up for last 2 days. Was sitting at home – nil exertion.”
The notes indicate that, at 14:15, there was a recurrence of pain. Sub lingual arginine was given at 14:55 leading to a rapid resolution of the pain.
ECG reports from Katherine Hospital
On the ECG taken at the Katherine Hospital, 14:35 hours was marked on Mr Johnson’s arrival in Accident & Emergency. The essential features of the report were:15:16:16 marked, actual time incorrect and no pain; 15:24:37 marked, with pain easing; 15:34:58 showing clear ST segment elevation on V1, V2, V3 (the anterior chest leads) and marked with pain and decided to strep the patient on this ECG; 15:49:13 marked uring streptokinase and with pain; 16:12:43 during streptokinase and no chest pain; 16:30:10 during streptokinase and no chest pain; 17:08:37 post streptokinase; 17:57 1/24 (one hour) post streptokinase therapy and nil chest pain. There are no ST elevations or other ischaemic changes in 15:24:37 or following, up to and including 17:57:49.
Aerial Medical Service
The In flight patient report of the Aerial Medical Service dated 30 August, 1998 stated:
“Increasing chest pain on exertion over past 2 weeks removed by sub lingual nitrates. Today sudden onset severe chest pain for 20 minutes. … Transferred to ambulance at 19:45.” (Exhibit A)
A diagnosis of “Anterior ischaemia/threatened MI” made. An attached document under notes was the history which recorded:
“50 year old sergeant had chest pain this morning and again lunchtime. ECG normal. 4th ECG showed some ST elevation.
Anterior AMI?? - Cardiac enzymes normal!” (Exhibit A)
Subsequent medical care
Professor O’Rourke summarised Mr Johnson’s subsequent medical history at the Darwin Public Hospital, the DPH and the QEH:
“… While his chest discomfort had settled initially in Katherine, this apparently had recurred and he was transferred by air to Darwin Hospital where the electrocaardiogram had changed and showed acute evolving anterior myocardial infarction. The electrocardiographic changes were associated with right bundle branch block, indicating extensive evolving anterior infarction. Mr. Johnson was treated with streptokinase in an attempt to lyse the responsible coronary artery thrombus. CK level rose to over 4000 with MBCK index over 5.0 – consistent with extensive myocardial infarction. Mr. Johnson suffered an episode of ventricular fibrillation which required defibrillation and also showed signs of cardiac failure which also required treatment. After five days at the Darwin Hospital he was transferred to Darwin Private Hospital and then following conduct of a Sestamibi modified stress test, he was transferred to the Queen Elizabeth Hospital in Adelaide for coronary angiography. Coronary angiography showed complete occlusion of the left anterior descending coronary artery proximally together with 70% narrowing of a large lateral ventricular branch of the circumflex and an 80% stenosis of the right coronary artery in its mid part. Ventriculography showed evidence of a large anterior apical infarct with apparent aneurism formation and poor left ventricular systolic function. In the Queen Elizabeth Hospital Mr. Johnson developed episodes of atrial fibrillation and was anticoagulated. He had a number of syncopal episodes. His electrocardiogram showed evidence of bifasicular block (left posterior fascicular block and right bundle branch block). Electrophysiological studies showed inducible ventricular tachycardia. A pacemaker was inserted and he was treated with Amiodarone – the pacemaker was used to prevent ventricular asystole, the Amiodarone to prevent ventricular tachyarrhythmias.
Mr. Johnstone was transferred back to Katherine where he made a slow convalescence. He was subsequently discharged from military service.” (Exhibit 3, pages 2-3)
Dr René Dupuche
After seeing Mr Johnson, Dr René Dupuche prepared his first report dated 19 November, 2001. In a second report dated 19 June, 2002, he gave references to articles regarding the relationship between the emotional state and coronary artery disease. Dr Dupuche set out Mr Johnson’s history as he understood it to be in his first report:
“In a month or so before the heart attack he was subjected to greater stress than usual, arising directly out of extra work load. This stress appears to have been of substantial degree.
In the two or three weeks before the 30th August he had had episodes of chest pain which in retrospect were clearly anginal and indicative of a pre infarction situation. This is a common prodrome.
On 30th August, 1998 he arrived at work in the morning. A short time later chest pain occurred, but seemed to subside and he carried on with his work at a fairly intensive level both psychologically and physically. From his description there was the carrying of quite heavy weights. Pain appeared to occur later in the morning and assumed a severe level. He then returned home, apparently with the pain having subsided and it was some time later, perhaps two hours that a much more severe pain occurred.
He sought medical attention and then occurred a cascade of events with admission to the Katherine Hospital, air transport to the Darwin Hospital, the development of clear signs of myocardial infarction, the administration of appropriate treatments, and ultimately transfer to Adelaide where angiography was performed which revealed severe arterial occlusions, particularly in the critical left anterior descending coronary artery, with clear signs of major anteseptal myocardial infarction, aneurysm formation, heart failure and the need for a pacemaker. All indicators are those of a major myocardial infarction. …” (Exhibit B, pages 1-2)
Dr Dupuche then went on to consider the relationship between stress and coronary artery disease:
“The role of stress in the causation of coronary artery disease has long been debated, but it does seem clear that there are many articles demonstrating not only a relationship between stress and the development of coronary artery disease but also between stress and the induction of acute myocardial infarction.
This matter has been considered by the Stress Working Party of the National Heart Foundation, amongst others, and in their conclusions they have not refuted stress as a cause of coronary artery disease when it works in conjunction with other more established risk factors such as, in this case, smoking, family history and hypercholesterolaemia.” (Exhibit B, pages 2-3)
In his oral evidence, Dr Dupuche said that he had been a long time in clinical practice and had accumulated a great deal of evidence suggesting a close relationship. He said that the report of the Stress Working Party of the National Heart Foundation (“NHF Report”) has said that there was a plausible relationship between stress and the development of pulmonary artery disease particularly if the stress was substantial and accompanied by other risk factors. The concept of “plausibility” was something that interested him and to him it implied that there is value in the association in the sense that it does not reject but tends to accept the relationship. In cross-examination, Dr Dupuche said that the NHF Report had not ruled out the relationship.
Of work factors, Dr Dupuche said in his first report that work was increasing in difficulty for Mr Johnson, was physically arduous and psychologically stressful. All of these were important, he said, as they all represented risks in a coronary setting. In his oral evidence, Dr Dupuche said that Mr Johnson’s other risk factors were that he was a heavy smoker, had high cholesterol, had a family history and was glucose intolerant.
Dr Dupuche said that, given Mr Johnson’s vascular and coronary risk factors and the severity of his left anterior descending coronary disease, it was perhaps inevitable that he would develop a major myocardial infarct or some other expression of his coronary stenotic disease. What was not inevitable, he said in his first report, was that it would occur on 30 August, 1998 with rather rapid progression to major acute myocardial infarction. The mechanisms that induce or contribute to the induction of the infarction include increased thrombotic tendency and plaque destabilisation and rupture (complicated lesion), he wrote. The closer the occurrence of infarction to physical exertion, the more persuasive is that association, but a time interval of several hours is not such as to break that association.
Dr Dupuche described coronary artery disease as proceeding in two stages:
“… The first stage is pre clinical and asymptomatic. The patient has no symptoms and is unaware of his disease. There is progressive narrowing of the coronary arteries, not of critical degree, under the influence of risk factors.
Eventually the condition proceeds to the second stage where the patient has symptoms and this usually corresponds to the development of a critical degree of narrowing, often associated with plaque destabilisation and the development of a complicated lesion. …” (Exhibit B, pages 3-4)
In oral evidence, Dr Dupuche said that a person develops an infarct because there is a critical deficiency of blood flow to the heart muscle. That leads to a depression of oxygen to the heart muscle and the heart muscle dies in smaller or greater degrees. An artery becomes constricted because of plaque. Plaque comprises a combination of scar tissue, calcium and fat cells. The plaque is covered with a cap comprising fibrous tissue. It grows incrementally over a long period of time and, as it does so, constricts the blood flow. If the cover of the plaque is fissured, a clot is formed. That causes a physiological change.
In a person such as Mr Johnson, Dr Dupuche said, it is fair to say that there was a build up of plaque over time before the infarction occurred. That process was not presenting itself symptomatically to Mr Johnson. Had the surface of the plaque not cracked, Mr Johnson would have noticed the increasing levels of occlusion plaque in his reduced capacity to walk distances and in angina pain. Eventually, there would be occlusion sufficient to cause an infarction. The cracking of the surface of the plaque led to the formation of a clot and occlusion of the artery and then to an infarct. Mr Johnson would have felt pain on the Sunday morning because the increase in the degree of his occlusion was starting to cause insufficiency of his blood flow..
In relation to the first stage, Dr Dupuche said, the relationship between the disease and Mr Johnson’s work is less clear. Work related stress over a sufficient period could have increased his smoking and raised his cholesterol levels and so accelerated the formation of atheromatous lesions that were the ultimate cause of his myocardial infarction. Articles in Medical Journals discuss relationships but care must be taken with them as:
“… their conclusions (medical articles) must be seen as ‘averaging’ and similarly difficult to apply to the single case.” (Exhibit B, page 4)
In his oral evidence, Dr Dupuche said that, if the body is acutely stressed, it pumps out adrenalin and cortisone. There is a consequent increase in the rate of the heart beat and in blood pressure and so in the force of the contraction of the heart. The heart becomes more “jerky”.. All three consequences are disadvantageous to fragile plaque. In cross-examination, Dr Dupuche acknowledged that the body is designed to produce adrenalin in stressful situations but the ancient response was a physical one of fight or flight. In that way, the adrenalin was dissipated but, as that response is not available in modern life, the adrenalin cannot be dissipated.
Exercise in the second stage of the disease is a complex matter, Dr Dupuche said. It is easy to see risks with major exercise as well as major psychological stress in a situation of unstable atheromatous plaques and active angina. Fitness and exercise will not cause a deterioration in a patient’s condition and has no protective role but is very likely to have an injurious role. If plaque is starting to fissure to an extent, a run around the TAN is likely to markedly exacerbate the situation. A patient with established angina would not, therefore, be encouraged to sprint and Mr Johnson’s work on 30 August, 1998 could perhaps be seen as “repetitive sprints”.. There could be quite a period of time between physical work and an infarction. Dr Dupuche continued to maintain his view that it is his “… opinion that there is a convincing case of a significant and material, but not exclusive, relationship between his work on the day of his infarction and that infarct.” (Exhibit B, page 4) If a person has unstable plaque and is running to make the beds, that activity tends to promote the fissuring of the plaque.
In conclusion, he saw “… a rather strong relationship between this man’s work on the day of his infarct and perhaps in the days and weeks before and his ultimate myocardial infarct on that day” (Exhibit B, page 4). In Dr Dupuche’s opinion, on “… the balance of probabilities the episode of pain whilst moving laundry on 30/08/1998 was the commencement of a process that reached its fruition at home with the development of the major coronary obstruction. … With the onset of pain at work and the commencement of the coronary occlusive process, continuing to work would have accelerated and aggravated the process which reached its finality at home.” (Exhibit B, page 5). In his oral evidence, Dr Dupuche said that he was speaking in this passage of the final phase of Mr Johnson’s plaque rupture and occlusion. He was saying that the rupture appeared to have occurred at work and did so because he believed that fissuring occurred from the time at which Mr Johnson began to feel pain. On 30 August, the process suddenly accelerated when he experienced pain and it was completed when he arrived home.
In his first report, Dr Dupuche wrote that “Certain factors could and probably did bring forward this catastrophic event” (Exhibit B, page 3). Dr Dupuche explained in his evidence that he meant that the plaque was changing from not producing pain to producing pain. In a matter of weeks, it would produce a major myocardial infarction. It was changing because certain things were going on in his life that were deleterious to his fragile plaque. In giving oral evidence at the hearing Dr Dupuche said that, in the month or so before the myocardial infarction, Mr Johnson had experienced extra stress arising out of a greater than normal workload. He experienced chest pain earlier on the Sunday but it subsided and he carried on with his work. On that morning, Mr Johnson had been carrying quite heavy weights. He was under some form of stress and duress to complete the work. Dr Dupuche said that the pain appeared later in the morning and “assumed quite a severe level of chest pain later in the morning”.. Pain is a clinical sign of insufficient blood flow to muscle representing an increased degree of occlusion due to change in the plaque, that is, a fissure with a degree of overlying thrombosis.
Dr Dupuche said that the details provided to him were that the man was stressed by his duties and that there was a substantial physical component to his work. He understood that Mr Johnson was making beds which he thought was difficult. He said that stress is part of every day living and does not produce physiological change. Stress which is physiologically important is such as that which would put the blood pressure up for “hours on end” and there would be grades within that. He agreed that there was no material to show that Mr Johnson’s blood pressure had been elevated. When asked by Mr Gorton whether he had any basis for drawing the conclusion that Mr Johnson’s blood pressure was elevated, Dr Dupuche said that it was possible to adopt a reasonable position that there was no smoke without fire. If Mr Johnson was feeling stressed in his work, it could be assumed that his blood pressure had gone up. His being asked about the lost booking records on 24 August when he had been absent from work for a three week period could be regarded as a stressful episode. Even though his being asked might be regarded as a transient episode, whether he had a transient response to it is a different matter. It is something that Dr Dupuche did not know the answer to and so was not in a position to tell if the event had had any effect on him.
In cross-examination, Dr Dupuche said that, in view of Mr Johnson’s myocardial infarction on that day, the episodes of chest pains he experienced in the two or three weeks before 30 August must have been of coronary origin. He is known to have suffered from coronary disease. The pain typically associated with angina occurs fairly broadly across the chest. It may radiate down the left arm but not always. Occasionally, it may occur in the right arm rather than the left arm and may occur in the abdomen or other atypical areas. Pain in the ribcage or well out to the side would be unusual and, unless it came to settle in the chest, it could be assumed that it was unlikely to be a pain associated with angina.
In the case of Mr Johnson, a pain occurring two weeks before the myocardial infarction suggests some form of breaking or fissuring of plaque. It can progress or fissure or it may repair itself and subside. If it progressed, it can lead to an infarct. The fact that Mr Johnson was walking down the street when he first experienced the pain was irrelevant, Dr Dupuche said. Even a moderate amount of walking may cause a small fissure. The majority of fissures occur without any major identifiable exertion. A small fissure might have led to a small clot and so a little pain. It could then repair itself and so his condition could wax and wane. Such pains are often thought to be indigestion. At the same time, walking can lead to a sudden rupture and the sudden onset of severe symptoms.
Dr Dupuche rejected Mr Gorton’s suggestion that the absence of symptoms in the two week period before 30 August meant that he was not suffering from any problems associated with plaque in that period. Knowing that Mr Johnson had an infarct on 30 August means that his pain two weeks earlier was most probably ischaemic pain even though it was pain atypical of ischaemic pain. Most probably it was caused by some change in his plaque. The fact that he did not suffer any more pain might mean that his fissure had healed. Dr Dupuche agreed that Mr Johnson might or might not have suffered a fissure but there is no other reasonable explanation of what his pain might have been, he said. What happened on 30 August was a continuum of what had gone before. The continuum started two or three weeks before with the pain and continued with the pain on 30 August. Throughout all of this, Dr Dupuche understood that Mr Johnson was suffering from stress. The particular stressors came and went to some degree but not entirely.
Dr Dupuche said that he did not have an understanding of the duration of the pains that Mr Johnson’s suffered on the morning of 30 August. He agreed that, if each pain lasted only one to two seconds, it was not particularly suggestive of ischaemic pain. It was more indicative of skeletal or muscular pain. If he were told of such a pain and there were no risk factors, Dr Dupuche said that he would not think it suggestive of angina. With the presence of risk factors, though, there is a need to be careful. In this case, he knew that Mr Johnson ultimately suffered an infarct and so there was the possibility of double pathology e.g. wind or infarct. He would not expect a thrombosis that developed to disappear in a second or two. For all that, it must be understood that a thrombosis sitting on plaque may break off and cause an occlusion. Therefore, a short pain is not specifically evocative of angina but angina cannot be ruled out.
In cross-examination, Dr Dupuche stated that myocardial infarction is a progressive development in the face of a lack of oxygen supply. He agreed that oxygen deficiency past a critical level will produce infarction after a period of about 30 minutes. If there is an established infarct in which heart muscle has died, it can be expected that there will be ECG changes. Dr Dupuche said that ST segment changes on ECG were indicative of injury rather than infarction. The criteria for infarction are T wave inversion and Q waves. Ischaemia gives ST segment elevation. It starts with ST elevation with progression to T wave inversion and the appearance of Q waves. From the time of occlusion to death of heart muscle takes only half an hour.
On examining the ECG records of the Katherine Hospital (Exhibit 2), Dr Dupuche observed that there were significant ST changes at 14:35 on 30 August. There was a change in the pattern of the T waves at the same time and this should be regarded as an indication of ischaemic disease. The T waves at the Katherine Hospital suggested myocardial damage, Dr Dupuche said, but he could not put it any higher than that. He could not say that Mr Johnson had suffered an infarction at the Base and could only say that there was something nasty going on. Dr Dupuche noted that there were some inconsistencies in the ECG taken at 14:35 and that they could be as a result of positional factors or a variation in the conductive gel. The later ECGs at the hospital are consistent and do not indicate myocardial infarction at that time. It followed, Dr Dupuche continued, that Mr Johnson underwent more dramatic changes in his coronary arteries after the time of the ECGs at the Katherine Hospital. In cross-examination, Dr Dupuche said that Mr Johnson’s disability arises as a result of an infarct and it appears that he had not suffered an infarct at the time that he was admitted to the Katherine Hospital. In re-examination, Dr Dupuche said that he was unable to answer definitively a question whether Mr Johnson had suffered a minor infarct before the ECGs taken at the Katherine Hospital.. Given the accelerated process of his pain, though, it was very likely that he had and that it was beginning to have an impact on his heart.
Dr Dupuche agreed that the paper, “Triggering of acute myocardial infarction by heavy physical exertion: protection against triggering by regular exertion” by Mittleman MA, Maclure M, Tofler JB et al (N Engl J Med; 1993; 329 at 1677-1683) (“Mittleman paper”) was a very good article. It was put to him that the paper concluded that the physical exertion required to trigger a myocardial infarct has to be significant and within an hour or less of infarction if a relationship is to be drawn between the two. Dr Dupuche replied that, while he would expect a fairly close relationship between the two, he would not rule out the relationship if two or three hours had elapsed. The statistics in the Mittleman paper are fairly useful he agreed. Those statistics showed that physical exertion at or above the level of six METS is recognised as triggering an infarction on occasion. The Mittleman paper described that level of exercise as representing quite a bit of exercise, such as speed walking and running, with panting and overheating. Dr Dupuche said that he found the description of the levels of exercise unhelpful as a trained marathon runner would find that level of work very easy. An overweight person with multiple risk factors should be measured by different rules, Dr Dupuche said. The same amount of work would have a much greater effect on such a person than on the marathon runner.
When asked whether the Mittleman paper shows that, if exertion triggers an infarct, it does so within one hour, Dr Dupuche agreed that this was so statistically. Statistics cannot govern the individual case, though. He also agreed that Mittleman’s graph showed that myocardial infarction was much less likely after one hour but he remained certain that, in cases where more than an hour had elapsed since exercise, that exercise had put the process in train.
Dr Dupuche said that he did not know whether the work that Mr Johnson had undertaken on 30 August was any more difficult than the work he had done on other days but he did not think that mattered. A history of a little pain, thought to be indigestion, over a few weeks is a very common story given by patients. Looking back, it is possible to say that the pain was probably ischaemia that was not recognised as such. The opportunity to intervene before the infarct is lost. If a person stresses him or herself in that time, it would probably hasten the process. It was very hard to know whether exertion played a part in Mr Johnson’s case. What mattered was that the plaque was fissuring and what he might have coped with on another day, he did not cope with on that day. He believed that the process started when Mr Johnson first got chest pain, it dribbled on and accelerated, that he became symptomatic because he had developed fissures in plaque and that it also accelerated towards the end. This commenced with sudden severe pain that morning on 30 August, 1998 and this was the first step and the second step was the change in the pain.
Professor Paul Nestel
Professor Nestel, who is a consultant physician, has conducted research into cardio vascular disorders focusing on the factors causing those disorders and the longer term management of those who suffer from them. He has prepared four reports relating to Mr Johnson.
In his first report dated 22 January, 2000, Professor Nestel referred to Mr Johnson’s experiencing “severe crushing chest pain early on Sunday afternoon 30th August 1998 some 2 hours after returning home from work” (T documents, page 54). As to when Mr Johnson’s infarct occurred, he continued:
I remarked in Bendy’s case, and have said on other occasions, eg Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240; that it is sufficient that the employment contribute to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. When several separate factors together cause the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker’s employment. The tribunal was, however, in error holding that a contribution brought about by the employment, however small, was sufficient. A contribution which is so small as to be immaterial, which has no causal significance, is not sufficient. A disease or an aggravation, acceleration or recurrence thereof is not attributable to employment unless it is causally connected therewith. As s 29 states, employment must be a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence thereof.” (pages 204-205)
What of employment as a contributing factor to the aggravation, acceleration or recurrence of a disease? The leading case in this area is Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (McTiernan, Kitto, Taylor, Windeyer and Owen JJ) in which the High Court considered the provisions of the 1926 NSW Act. In considering the words “aggravation” and “acceleration”, Windeyer J said:
“The next question then is, was there in December 1960 ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.” (page 639)
The concept that the words are not mutually exclusive was taken up by Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 when he said at page 405:
“... the ordinary English meaning of the words ‘aggravation and acceleration’, namely that ‘aggravation’ connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.”
In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 (Barwick CJ, Kitto, Taylor, Windeyer and Owen JJ), Windeyer J had emphasised that the mere fact that the disease had become worse during a person’s employment was not sufficient for it to be said that the disease had been “aggravated”. It had to have been made worse and his or her employment had to be a contributing factor to its being made worse.
This aspect had also been addressed by the High Court in the earlier FederalBroom case. Windeyer J said at pages 641-642:
“I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way: it was a cause of her condition only in the sense that it acted as a precipitant. That may be true: nevertheless, Doctor Ellard agreed that ‘something obviously happened in December to her to cause a change in her way of life’.
The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.”
In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 (Smithers, Sweeney and Woodward JJ), the Full Court of the Federal Court considered whether Mrs Tzikas’ employment had contributed to the aggravation or acceleration of her mental disease. Sweeney and Woodward JJ said:
“... In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
For those reasons the matter should, in our view, go back to the Tribunal to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment, and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease.” (page 195)
In the same case, Smithers J said:
“If by his finding that the four specified sequelae played a part in the respondent’s mental illness the Tribunal meant no more than that in the course of the respondent’s natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue definitely or a desire to punish Telecom for the situations described in items one and four, then it could not be said that any of the sequelae were factors which contributed to cause an aggravation of the natural illness. They constituted a reason for action by the impaired mind but did not cause it.” (page 186)
Provided that it is a person’s employment, or some aspect of it, that has aggravated or accelerated his or her disease, there is no need to establish that the employment or any aspect of it was in any way out of the ordinary. That is to say, the person does not need to establish that the employer was at fault in some way. As Pincus J said in O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154 (Pincus J):
“It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment. Nor is it the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic (if there are such circumstances) are compensable.” (page 159)
There is no question that Mr Johnson was subject to a number of risk factors: high cholesterol, smoking and a family history. We are also satisfied that Mr Johnson considered that he had worked under stress for some period of time for the reasons that we have given above. None of the medical witnesses, though, supported a finding that mental stress, whether long or short term, contributed to the development of atherosclerosis or to its aggravation. Therefore, we find that Mr Johnson does not suffer from a disease that has been contributed to in a material degree by his employment.
For the reasons we have given, we do not consider that Mr Johnson has suffered an injury that arose out of or in the course of his employment or a disease, or an aggravation of a disease, that was contributed to in a material degree by his employment with the RAAF. Therefore, we affirm the reviewable decision of the respondent dated 24 July, 2000.
I certify that the one hundred and seventy preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Dr P D Fricker (Member)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 14, 15, 20 and 21 May, 2003
Date of Decision 29 September, 2003
Counsel for the Applicant Mr N. Moshinsky QC
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr R. Gorton QC with Ms A. McMahon
Solicitor for the Respondent Australian Government Solicitor
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