Johnston, Peggy Iris v Commonwealth of Australia

[1979] FCA 44

, ~

I N T H E FEDERAL COURT OF A U S T R A L I A j \.\ -._

-. . - A .

A U S T R A L I A N C A P I T A L T E R R I T O R Y 1 N o . 1 of 1978

D I S T R I C T R E G I S T R Y

1

GENEML D I V I S I O N

-. 1

I N Tl IE MATTER O F ANDREW S C O T T JOHNSTON

(DECEASED)

..

BETWEEN : TIIE CO>I;,IONIV'EAI.TH O F A U S T R A L I A

- AND : PEGGY I R I S J O H B S T O X

ORDER

J U D G E X I K I N G ORDER D A V I E S J .

DATE O F ORDER 10 May 1 9 7 9

WHERE PIADE C a n b e r r a

THE COURT ORDERS THAT t h c a p p c a l be d i s m i s s e d arid t h a t t h c

a p p e l l a n t pay Lhc r c s p o n d c u t ' s t nxcd

cos t s of t h e a p p c a l .

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY j

DISTRLCT REGISTKY	No. 1 of 1978 '
-- -

GENERAL- DIVISION j

IN THE MATTER OF ANDRLW SCOTT JOHNSTON

(DECEASED)

BETWEEN : THE COX.lON\*IEALTII OF AUSTRALIA

- AND : PEGGY IRIS .JOHNSTON

REASONS FOR JUDGilTXT

This is an appeal from a decision of the Comilon~realth Employees'

Compensation Tribunal which determined that the clai~rlant for

Commonwealth employees' compensation, Peggy Iris Johnston, mother

of the deceased, Andrew Scott Johnston, was partially dependent

upon her son at his death, that the employmcnt of the deccased

by the Commonwealth had contrlbutcd to the aggravation of a

cancerous condition f r o m whlch 1 1 1 had suiCL>red , ~ u d that his

death had resulted therefron.

The deceased had bcen a member of the Royal Australian Navy.	In
1970, while on duty with H%IS J-parit, he sought attention froln

. - . . -- - - ..--.

. .--.v

the Vung Tau Military Base Hospital in Vietnam, was advised that

he suffered from haemorrhoids and was given suppositories. NO

medical record presently exists of that examination but there was adequate evidence before the Tribunal to support its finding that such examination took place and of the advice and treatment given.

Thereafter, until August 1974 when it was ascertained that I@. Johnston was suffering from carcinoma of the bowel, he believed that he had a haemorrhoidal condition. His mother gave evidence that when Mr. Johnston was on leave in 1971 he used suppositories

and a cream, that thereafter I*. Johnston carried the

supposltories in his toilet bag when on leave and that she had

noticed him taking the tube of cream from the toilet bag when hc

went to the bathroom. The Tribunal acted on the vlew that the

suppositories were obtained from Navy sources. The Tribunal

records that, "It is not in question that HMAS Ardent carried no

medical officer, did carry medical supplies and that supposltories

can be obtained without a prescription.It. Mrs. Johnston said in

evidence that on two occasions her son told her that the

haemorrhoids were sore and blcedlng badly. She said, "He always

had trouble with them.". Mrs. Johnston gave evidcnce that her

son informed her early in 197b that he had seen his insurance

agent, that he was going to take out a superannuation policy with

an insurance company and had been advised to obtain a medlcal

certificate. She said that, subsequently, he telephoned her froq

HMAS Cerberus to tell her that a doctor had aclvlsed hln to have a

haemorrhold operation. Subsequently, he came horn? on leavc and

took his mother and his brothers and sisters on a camping trip.

On hls return from leave, he again telephoned his mothcr and

informed h e r he was n o t y e t going i n t o h o s p i t a l bu t was go ing t o

Tasmania w i t h HMAS Ardent and t h a t when he came back from t h a t

t r i p he would have t h e haemorrhoid o p e r a t i o n .

The f a c t s concern ing t h e d o c t o r ' s a d v i c e , mentioned i n t h e

te lephone c o n v e r s a t i o n , a r e n o t c l e a r . I t seems u n l i k e l y t h a t

5

M r . Johns ton saw a c i v i l i a n d o c t o r a t t h a t t ime. His s e r v l c e

r e c o r d s show t h a t on 3 J u l y 1974 he saw D r . M o f f i t . The d a i l y

medical r e c o r d s igned by D r . M o f f i t r e c o r d s a d i a g n o s i s of

haemorrhoids. The t rea tment g iven was s u p p o s i t o r i e s and ointmcnt

and t h e r e was t o be a review on 7 J u l y . D r . M o f f i t gave ev idence

be fo re t h e T r ibuna l b u t , i n t h a t ev idence , made no r e f e r e n c e t o

and was asked no q u e s t i o n s concerning h i s examination on 3 J u l y .

'Having r ega rd t o subsequent e v e n t s and t o D r . M o f f i t ' s

unquest ioned medical s k i l l , i t seems u n l i k e l y t h a t D r . l l o f f l t made

an examinat ion on 3 J u l y o r t h a t on t h a t day he reached a concludc

d i a g n o s i s t h a t M r . Johns ton was s u f f e r i n g from haemorrhoids. I t

seems more l i k e l y t h a t D r . Mof f i t was t h e d o c t o r t o whom M r .

Johns ton r e f e r r e d i n h i s t e lephone c o n v e r s a t i o n w i t h h i s mother,

t h a t t h e r e was a t e n t a t i v e d i a g n o s i s of hacn~orrho ids on t h e b a s i s

of what Mr. Johns ton s a i d t o D r . l I o f f i t and t h a t Mr. Johns ton

was asked t o r e t u r n on 7 J u l y f o r a f u l l examina t ion , probably

w i t h a view t o then a r r a n g i n g f o r an o p e r a t i o n should t h a t prove

t o bc neces sa ry . No doubt , M r . J ohns ton d i d n o t r e t u r n on 7

J u l y because of t h e arrangement t h a t was made f o r him t o go t o

Tasmanla w i ~ h II&'rS Ardent .

The examinat ion of 3 J u l y 1974 i s n o t mer.i.ioned i n t h e r ea sons

of t h e T r ibuna l and was n o t s p e c i f i c a l l y a d v e r t c d t o i n t he o r a l

evidence given. I have referred to it to indicate that, in my view, it would not be safe to conclude that on 3 July there was

a diagnosis made on that day that Mr. Johnston suffered from

haemorrhoids. I have indicated my view of the likely way in

which the daily medical record of 3 July correlates with the

other evidence. My view may not be correct. ~everthelehs,

I

the Tribunal did not take into account either that there was a	!
i
diagnosis of haemorrhoids made on that day or that in 1374 a	:
I

doctor seen for insurance purposes made such a diagnosis.	For	I
the reasons I have given, I also am of the view that no such conclusions should be drawn.

On arrival in Hobart, when servlng wlth HI\.lAS Ardent, Mr. Johnston

I

attended casualty at the Royal Hobart Hospital.	A report from	I
!

the co-ordinator of the casualty servlces at that hospital

records that Mr. Johnston was seen on 27 July 1974 and, I1He vras

suffering from internal piles, which were tender and not bleed~ng

at this time. An operation was pending, according to the

history given by him. He was given cream and suppositories and

was going for further treatment in Melbourne.". However, because

of subsequent events, it seems likely that no proper examnation

of Mr. Johnstan was then made.

Mr. Johnston saw Dr. Stewart, a general practltjoncr on Flindcrs from cancer of the bowel and referred him for further exanination

Islan6, on Lr August 197Lt. Dr. Stc-.~,?.rt mad2 a11 sxaniz:i-tior! of

by a surgeon as soon as possible. Subsequently, Dr. Steiiartrs

diagnosis was confirmed. An operation was perfor~ned but the

t

carcinoma had	reached	such an advanced	s t a g e t h a t s u r g e r y could	'!
:t

n o t	p reven t	d e a t h .	M r .	Johns ton	d i e d	on	3	Janua ry	1975.	, i
t

Carcinoma	of	t h e	bowel	i s a	r a r e bu t	p o s s i b l e	c o n d i t i o n i n a	!
f
r

person of t h e age of 23 y e a r s , M r . J o h n s t o n ' s age when he d i e d .

, . I

However,	i t i s more common i n persons of a f ami ly which has a	!
I

h i s t o r y	of	t h e	d i s e a s e .	M r .	J o h n s t o n ' s	f a t h e r	a l s o d ied	of	1
4'

cancer of t h e bowel. Cur ren t t heo ry a c c e p t s t h e view t h a t t h e

t

t

cance r develops from a benign polyp o r war t i n t h e bowel r eg ion

' l

and t h a t t h e t ime span between t h e polyp becoming mal ignant o r ,

cancerous and d e a t h i s t h r e e o r f i v e t o t e n y e a r s . D r . Gouls ton

I

s a i d i n evidence t o t h e T r i b u n a l t h a t , " . . . t h e b e s t a u t h o r i t i e s

!

say t h a t t h e sequence from the r e c o g n i t i o n of a polyp t o the

development of cancer and dea th i s i n t h e realm of f i v e t o 10 ,

y e a r s ..." and t h a t t h e p e r i o d was n o t l i k e l y t o be l e s s . Me s a i d !

t h a t , "Anything i s p o s s i b l e , bu t c u r r e n t t each ing i s t h a t t h e r e

i s a long d e l a y per iod ." . D r . Pembrey pu t t h e l e n g t h of time

, i

between t h e o n s e t of cance r and d e a t h a s t h r e e t o t e n y e a r s . ;

He s a i d t h a t c u r r e n t knowledge d i d n o t sugges t t h a t t h e r e would

be a s h o r t e r pe r iod . He s a i d , " In a l l b i o l o g i c a l m a t e r i a l ,

we tend t o a c c e p t t h a t t h e r e a r e 2 per c e n t who a r e s h o r t e r and

2% pe r c e n t who could be l o n g e r , bu t i t seems u n l i k e l y t h a t t h i s

l

occu r s i n cancer . " . The evidence t o t h e T r i b u n a l was t h a t , i f 1

t h e cancer i s t r e a t e d a t an e a r l y s t a g e , p a r t i c u l a r l y by s u r g e r y ,

' l

t he p r o b a b i l i t i e s a r e t h a t t he l i f e of t h e p a t i e r ~ t w i l l be

exLendcd. D r . Whltehead s a l d t h a t , provided the t r e a t ~ : ~ ; l t 1s

'I :

e a r l y cnough,	t h e	p a t i e n t	can	a n t i c i p a t e a normal	l i f e	J
expectancy.	$

A patient suffering from the cancer feels discomfort in the bowel

and anal region and may also suffer some pain and bleeding.

These symptoms are consistent also with haemorrhoids. However,

-

a doctor can often feel or see the difference between the polyp

or cancer and the haemorrhoid. The haemorrhoid feels and looks

more like a varicose vein whereas a polyp feels and looks somewhat make an investigation with his finger and to use a proctoscope

like a wart and the cancerous mass behind the polyp has a hard

feel about it. The medical evidence was in general agreement

that, if a doctor has doubt as to whether.or not the condition in

a haemorrhoidal condition, he should make an examination to exclude

other causes such as a benign polyp or malignant carcinoza. Dr.

which enabled him to see into the recturn. The evidence was

that, in a case of doubt, these examinations should be made, even

in the case of a person of Mr. Johnstonfs age.

The Tribunal accepted Dr. Goulstonfs evidence that, because the carcinoma had been conclusively shown to exist in Mr. Johnston in July 1974, and because the haemorrhoidal condition had not been clearly demonstrated, then it was probable that it was the I1...same abnoricality or possibly a pre-cancerous conditlon...I1 which was the cause of the problem for which T,ir. Johnston sought treatment at the Vung Tau Hospital in 1970. Dr. Goulston based

thls conclusion upon the vlevt that i!r. Johnsto~~s sy~ptom; v~erc

consistent wlth the development and growth of the cancerous

condition and that there was no evidence to indicate that Mr.

Johnston was suffering from haemorrhoids betwe~n t4zrch 5970 and

the date of his death. Dr. Goulston sald that the medical

records which he had inspected did not show the existence of

haemorrhoids. It is not clear from the evidence what were the -

records which Dr. Goulston had seen. Dr. Goulston said in

cross-examination, "...there is no objective evidence put before

me that he had haemorrhoids. That is say-so. I do know that

he had a cancer but I do not know that he had haemorrhoids. have said that the symptoms are compatible, and I have been told that he continued to complain of these symptoms over three or four years, and the question was put to me was it probable they (the cancerous condition) were the reasons, and I said yes.".

In cross-examination, it was not put to Dr. Goulston that Dr.

Moffit had examined Mr. Johnston and had diagnosed haemorrhoids.

The daily medical record of 3 July 1974 was not put to Dr.

Goulston. Nor in cross-examination was he asked his view of

the significance of a daily medlcal record completed by Dr.

Moffit on 7 August 1974 that on examination he had found 5 ' to 2 '

haemorrhoids. In his evidence in chief, Dr. Goulston was asked by counsel for the applicant to look at documents numbered 43,

44 and 45. Document 45 was the daily medical record of 7 August

1974. Whether Dr. Goulston then looked at the report or whether he had previously seen it 1s not clear. No speciflc question

was asked about it. The conclusion must be drawn that either

he did not see the record of 7 August 1974 or he regarded the

reference in it to haemorrhoids 25 1~~1gnlilc3nt.

In my view, it was open to the Trlbunal to accept Dr. Goulstonln

evidence. Dr. Stewart examlncd 1.W. Johnston on 4 August 1974.

He took a history of weight loss and of bleeding for a few weeks

prior to his examination. He made an examination with his

finger and felt lumps encircling the rectal wall. He said in

evidence that the lumps were within easy reach of his finger which is not long. He had no trouble actually feeling them. He said that in detecting the lumps he formed an lnstant and

tentative diagnosis that there was a malignancy of some kind. He said that his experience was that of the average competent

general practitioner. He sald that, if he had been called upon

to examine a young man who had been complaining of haemorrhoids

or something wrong in the anal region, he would carry out an

examination of the rectum as a matter of course and would do so

to exclude the possibility of other than haemorrhoids unless

there were special factors whlch might stop a full examination.

He said he did the rectal examination with his finger and

probably also a proctoscopic examination. In his subsequent

written report, he said that the patient had complained he had

been troubled by tlhaemorrholdstt and, on examination, he (Dr.

Stewart) had found, ItLumps encircling rectal wall piable looking,

bleeding small posterior anal fissure.". He recornended

treatment by a surgeon as soon as possible. The report does

not suggest that Dr. Stewart found haemorrhoids. It mentions

haemorrhoids only as the matter of complaint. The report was

of a cancerous condition and was subsequently confirmed. Dr.

Stewart xras not az!<ecl in croi,~-exr:;lir,251~n Lo say and d ~ d ]lot

say that, in addition to the cancer, I k . Johnston also had

haemorrhoids.

Subsequently, on 8 August 1974, Mr. Johnston was examined by a

consulting surgeon, Mr. I. McInness. The record of that

examination shows that, on examination per rectum, there was

found, "Large fixed mass ant rectal wall - Feels like Ca.".

Thereafter, Hr. Johnston was operated on for the carcinoma.

There was no mention of haemorrhoids in any of the subsequent

medical records.	There was no mention of haemorrhoids in the
autopsy report.

The evidence supporting the presence of the haemorrhoids is contained in the evidence and records of Dr. Moffit and the

report from the Royal Hobart Hospital. As mentioned above,

the significance to be given to the dally medical record of 3 July 1974 was not explained and it would I thi~k be unsafe to

place any reliance upon it. In his oral evidence, Dr. Nofflt

said that, on examination on 7 August 1974, ll...superficially	! !
he did have haemorrhoids present." and that a reference in his	!

written report of that day to haemorrhoids 5 ' to 2 ' was a

reference to "...primary and secocdary ha em or rho id^.^'	When	!
:
I

asked to tell the Tribunal what he meant by that, he said,	i t
i i

llHaemorrholds are varicose veins of the anal canal, and :

depending on how far the varicosities are enlarged, uie divide l

them up into primary, secondary or tertiary haemorrhoids. I i

thlnk also he had very small haemorrhoids which were giving hlm i

at that stage apparmtly llttle pr-oblen.lt. I Ie s n ~ d	that ths	I
i

haemorrhoids were comparatively minor in appearance.	On 7	1
1

August 1974, Dr. Mofflt referred Mr. Johnston to a surgeon for t

opinion and treatment. In hls notes to the surgeon he said,

"Recent haemorrhoids. P.R mass. Please examlne and 1nlrestlgate l i i'

.- . .....-- - " .- - - . . , F'.

and treat as you see fit.". In his evidence, Dr. Mofflt said

that, "1 was under the impression that he was being treated for haemorrhoids elsewhere.". I flnd this evidence of Dr. Moffit

as to the haemorrhoids rather confusing. However, I would not

accept that it shows that Mr. Johnston had significant

haemorrhoids in August 1974 and I would not take the evidence as

destroying Dr. Goulstonls evidence that it probably was the

cancerous condition or a pre-cancerous condition which caused

the symptoms for whlch Mr. Johnston sought treatment in March

1970.

The report from the Royal Hobart Hospital records that Mr. suffering from "...internal plles, which were tender and not

bleeding at this time.". From the fact that Dr. Stewart easlly

found the cancerous condition it is clear that no proper

examination was made at the Royal Hobart Hospital. The repcrt

records that, "An operation was pending, according to the hlstory

given by him.". No doubt the medical officer thought he was not

called upon to do other than provide a temporary rellef a d	he
did thls by supplying suppositories and cream.

I have dealt with the above evidence at some length for I think

it establishes the point that was most crucial to the success

of the application. There was respocslble evlaenca beforc the

Tribunal which the Tribunal properly could and did accept that

from March 1970, when he went to Vung Tau h'ospltal for treatment

i

of the condition which he believed to be haemorrhoids, until the

time of his death, Yr. Johnston was suffering from a carclnorns

of the bowel or possibly the pre-cancerous condition which led

up to that carcinoma.

The findings of fact which then connected Mr. Johnstonrs emplo~pent

with his ultimate death were a finding by the Tribunal that

probably the cancer could have been detected if an adequate

medical examination had taken place when Mr. Johnston presented

himself to the Vung Tau Military Hospital in IS70 and a finding

that, if it had then been detected, the cancer could have been

treated. There was, I think, evidence on which the Tribunal

could rely to make these findings. Dr. Goulston gave evldence

that the cancerous or pre-cancerous condition vihlch exlsted in

1970 should on the probabilities have been detected then as well

as at any other time subsequent to it by the exercise of ordlnary

medical competence. That evidence was not seriously disputed.

Drs. Stewart and Whitehead said that ordinarily it would be proper to make a full examination of the rectum including the use of a

proctoscope. Dr. Mof fit expressed ticre same vievr. Dr. Pembrey

threw some doubt on it when he said, "1 think if I saw a young

man and I did a rectal examination and there was nothing I could

feel which was abnormal, I would be unllkely to do a proctoscopic

examlnatlon.". However, on the whole, his evidence waz to the effect that the condition could have been detected. He was

asked whether, assuming thcrc werc symptoms of haemorrhoids and

there was blcedlns about which the p,=zii.nt colplclincd e:~t-ly LP

1971, the condition (cancer) should have been detectable usxng

the ordinary proper medlcal procedures at thnt time. Dr. Pembrey

said, "It is probable that it could have been detected at that

stage.". Accordingly, there was evidence which the Tr~bunal

properly could accept that the condition probably would have been

detected had a proper examination been made at Vung Tau Hospltal

in March of 1970. It was not in dispute that, had the condition

then been detected, Mr. Johnstonrs life would have been prolonged

and, on Dr. Whlteheadrs evidence, that he could have expected a

normal life expectancy.

The case accepted by the Tribunal was, therefore, that Mr. Johnstonfs employment contributed Lo his death because his employment led him to attend the Vung Tau Hospital and, at that

hospital, there was an inadequate examination of hls then

condition which failed to detect a condltlon which, on the	l
!
probabilities, would have been detected had a proper examination
i

been made. That flnding is sufficient justification for the t

decision of the Tribunal. However, there was additional

evidence which provided a basis for the conclusion that the

employment was connected with the failure to arrest a cancerous

condition. Mr. Johnstonfs employment in the Navy resulted in

his obtaining medical advice from doctors and medical off~cers

engaged by the Armed Services. The Itavy imposed upon him a duty

to keep hlmself fit and to report for treatment should he have

any medical problems. He was not required to obtain treatment

merely from the doctors who were made available by the Armed

Services 5ut, und-rstandnhly, it ..:as convr:nient acd economic for

him to attend them. There was no acceptable evldcnce zhat h:?

attended any other doctor. Over the period from Ilarch 1970 untll

the time when the cancer was diagnosed, Fir. Johnston cons-l;antly used suppositories and creams which he obtalned from Navy sources and, bccause he had seen the doctor at Vune Tau Hos;>ital and - .. - - . -

r"

because he was obtaining treatment of suppositories and crcan proper medical advice in relation to the condition from which he

out of Navy stores, it is probable that he did not seek the

medical advice which a civili.an probably would have sought.

suffered. This provides an additional basis upon which the

Tribunal could have found, as it did find, that Mr. Johnstonls employment contributed to his death.

For these reasons I am of the view that the grounds of appeal which submit that there was an insufficiency of evidence to justify the findings of the-Tribunal are cot well based.

I turn now to other points of law raised in the appeal. The

relevant provisions of the Compensation (Australian Government

Employees) Act 7971 are as follows :

1129.(1) Where -

(a) an employee contracts a dlsease or suffers an aggravation, acceleration or recurrence of a disease; and

!

(b) any employment of the employee by the Comnozxrealth ,

was a contributing factor to the contractron of

the disease or to the aggravation, acceleration or

recurrence, as the case may be, whether or not the

disease was contracted or the aggravation,

acceleration or recurrence was suffered in the

course of that employment,

the succeeding provisions of this sectlon have effect.

(a) the death of the employee;

results from the disease, or from the apgravation,

acceleration or recurrence of the dlsease, or the

employee obtalned medical. treatment in relation to the

disease, or the aggravation, acceleration or

recurrence or the disease, as the case may be, then,

for the purposes of this Act, unless the contrary

intention appears -

(f) the contraction of the'disease, or the

aggravation, acceleration or recurrence, as the

case may be, shall be deemed to be a personal

injury to the employee arlsing out of the

employment of the employee by the Commonwealth;

and

(g) the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, the date of the death, the date of the loss, be the date of the injury.".

1143.(1) Where an injury to an employee results in the death	of the employee, the succeeding provisions of t h ~ s
section have effect.

(2) Subject to this section and to sections 37 and 44 of

thls Act, if the employee dles without leavlng

dependants, compensation is not payable in respect of

the injury.

(4) If the employee dies without leaving dependants who

were, at the date of the death of the employee,

wholly dependent upon him but leaving dependants

who were, at that date, partly dependent upon him,

then -

(a) subJect to this section and to sections 37 and

44 of this Act, the compensation payable in

respect of the injury is such amount, not

exceeding Fourteen thousand flve hundred dollars,

as the Commissioner determines should be pa~d,

taking into account any losses suffered by those

.

dependants as a result of the cessation of the earnings of the employee; and

(b)

that compensation is payable to, or in accordance wlth the dlrectlons of, the Cornmissloner for thc benefit of those dependants.'!.

It was submitted by Mr. Burchett, Q.C., who appeared for the appellant, that, even if the facts found by the Trlbunal be

accepted, nevertheless the employment was not "... a contributing

factor to the contraction of the dlsease or to the aggravation,

a c c e l e r a t i o n o r r e c u r r e n c e . . , ." t h e r e o f . See paragraph ( a ) of

s s . 2 9 ( 1 ) . It was conceded by M r . K e l l y , Q . C . , counse l f o r

Mrs. Johns ton , t h a t t h e cance r was a n autogenous d i s e a s e and t h a t

i

t h e employment of M r . J ohns ton d i d n o t c o n t r i b u t e t o i t s

e

c o n t r a c t i o n o r re-occurrence and t h a t i t was n o t a c c e l e r a t e d . f

M r .	Ke l ly submi t t ed ,	and	t h e T r i b u n a l found,	t h a t t h e employment	1
i

c o n t r i b u t e d t o t h e "aggravat ion" of t h e d i s e a s e because i t

I

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

1

a t a n e a r l y s t a g e of i t s development. Mr. Burche t t submi t ted i

t h a t a f a i l u r e t o p revpnt t h e growth o r development o r sp read of

a d i s e a s e does n o t c o n s t i t u t e a n a g g r a v a t i o n of a d i s e a s e . He i

r e l i e d upon d l c t a i n Ogden I n d u s t r i e s P t y . Limited v . Lucas L

116 CLR 537, and i n p a r t i c u l a r t h e s t a t e m e n t by Windeyer J a t

p.593 t h a t , i

1, l :

Aggravat ion ' means, I t h i n k , t h a t an e x i s t i n g d i s e a s e has

been made worse, n o t t h a t t h a t i t has simply become worse." .

M r .	Burche t t a l s o r e l i e d upon	t h e remarks	of	Barwick C J a t p.558
t h a t ,

I, I f t h e employment must c o n t r i b u t e t o d i s e a s e f o r i t t o be f

an i n j u r y , q u i t e c l e a r l y autogcnous changes i n t h e cou r se :

of a d i s e a s e cannot i n themselves be i n j u r i e s , whether o r

n o t	t h e	d i s e a s e	i s	i t s e l f	a	cornpensable	i n j u r y . " .	L
' I I

I n t h a t c a s e ,	The i r Honours were,	however,	concerned w i t h a	i
l
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s i t u a t i o n where	t h e	clnployment	d i d n o t	c o n t r i b u t e	t o	t h e	worser~ ing	,
l

of t h e worker ' s c o n d i t i o n . I n t h e p r e s e n t a p p e a l , t h e T r lbuna l

took the view t h a t t he employment d i d c o n t r i b u t e t o t he d e a t h i

and	t h a t	the	f a l l u r e t o t ake remetlial	s t s p s aggravdted	o r	1	I
,i

c o n t r i b u t e d	t o	t he	agg rava t ion	of	t he	d i s e a s e .	I	a g r e e w i t h	'1.
1 I

t h a t view. I f a maintenance worker, havlng a du ty t o ma in t a in

a machine, s e e s o r n e g l i g e n t l y n e g l e c t s t o s e e a bea r ing becolne

hot because of lack of oil and fails to rectify that lack, he. the condition and to take remedial steps aggravated or contributed to the aggravation of the disease from which Mr. Johnston suffered. Likewise, Mr. Johnston's employment contributed to the aggravation.

contributes to the situation whereby the bearing increasingly

becomes hot and damage occurs. His failure to take remedial

action aggravates or contributes to the aggravation of the problcm.

In my opinion, the words "contraction", "aggravation", "acceleration" and "recurrence" cover the field of the circumstances in which employment may contribute to death or

impairment from a disease. The Tribunal has found facts which

establish that Mr. Johnston's death from the disease was

contributed to by his employment.	In my view, the words uscd in
s.29 comprehend that situation.

It was next submitted by Mr.Burchett that the death was not before the proclaimed date, 1 September 1971, and because, it \>as I said, the aggravation was not compcnsable under the preceding Act,

compensable under the Compensation (Australian Government

the Commonwealth Employees' Compensation Act 1930. That Act was

repealed by the 1971 Act and ss(1) of s.104 of the 1971 Act

provides :

" 1 0 4 . ( 1 ) Subject to this Part, this Act othcr than scctio:~ 1 2 0

applies in relat~on to an ir~lury sust.:~ini-:l, a dlseclse

contracted, or an aggravation, acceleration or recurre~lce of

a disease suffered, by an employee ~ J C ~ O ~ C tlic proclaicled dale .

as it applies in relation to an injury s~istalnecl, a discasc

contracted, or an aggravation, acceleration or recurrence of .

a disease suffered, by a n employee on or after that date.".

However, s s ( 2 ) of s .104 l i m i t s t h e r i g h t t o compensation a s

fo l lows :

"104.(2) The l a s t p reced ing sub-sec t ion does n o t e n t i t l e a

person t o r e c e i v e compensation under t h i s Act i n r e s p e c t of

an i n j u r y s u s t a i n e d b e f o r e t h e proclaimed d a t e , o r i n r e s p e c t

of a d i s e a s e , o r a n a g g r a v a t i o n , a c c e l e r a t i o n o r r e c u r r e n c e

of a d i s e a s e , symptoms of which f i r s t became appa ren t b e f o r c

t h a t d a t e , i f compensation was n o t payable i n r e s p e c t of

t h a t i n j u r y , t h a t d i s e a s e o r t h a t a g g r a v a t i o n , a c c e l e r a t i o n

o r r e c u r r e n c e , a s t h e ca se may be -

( a ) i n t h e c a s e of a n i n j u r y s u s t a i n e d , o r a d i s e a s e o r

an a g g r a v a t i o n , a c c e l e r a t i o n o r r e c u r r e n c e of a d i s e a s e ,

symptoms of which f i r s t became a p p a r e n t , b e f o r e t he

commencement of t he Commonv~ealth Employees'

Compensation Act 1930 - under t h e Commonwealth

Workmen's Compensation Act 1912; o r

( b )	i n any o t h e r c a s e - under t h e Commonwealth Employees' Compensation Act 1930, o r t h a t Act a s amended, a s i n
f o r c e a t t he t ime when the i n j u r y was s u s t a i n e d o r
symptoms of t he d i s e a s e , o r of t hc a g g r a v a t i o n ,
a c c e l e r a t i o n o r recurrence, f i r s t became appa ren t . " .

I f t h e c l a im i s made " i n r e s p e c t of an i n j u r y " w i t h i n t h e meaning

of t h o s e words i n s s ( 2 ) t hen t h e i n j u r y occur red p r i o r t o t h e

proclaimed d a t e . I t i s t o be r e c a l l e d t h a t s . 2 9 ( 2 ) p rov ides

t h a t , i f t h e d e a t h of t h e employee r e s u l t s from t h e a g g r a v a t i o n

of t h e d i s e a s e , t h e a g g r a v a t i o n i s deemed t o be a p e r s o n a l

i n j u r y t o t he employee and t h e d a t e of t h e i n j u r y i s deerned t o

be " (g ) t he d a t e of t h e d e a t h .... o r t h e d a t c on which t h e medlcal

1 1

t r ea tmen t was f i r s t o b t a i n e d , whichever i s t h e e a r l i e r .... .

The term " the medical t rea tment" r e f e r s back t o t h e e x p r e s s i o n

" . . . t h e employee ob ta ined medical t r ea tmen t i n r c l a t i o n t o t h e

d i s e a s e . . . " . C c r t a i n l y , d c a t h occurred a f t e r t h e p r o c l n i x s d daLe.

Horrever, i n 1970, Mr. Johns ton souglit c ~ o d i c a l t r e a t m e n t i n

r e l a t i o n t o t he d i s e a s e . The Tr ibuna l acccp tcd " . . . t h a t t he

deceased d l d seek medical t rcat rnent f o r pa in i n h i s bowel r eg ion

a t Vung Tau i n 1970 ...". The Tr ibuna l a l s o acccp tcd D r . G o u l s t o r ~ ' .

evidence to which I have earlier referred that, probably, it was

the cancerous or pre-cancerous condition which gave rise to the

sympton~s for which Mr. Johnston sought treatment. Thus, Mr.

Johnston first sought medical treatment in relation to the

disease in 1970. It may be noted that s.37 uses a similar

expression when it makes the Commonwealth liable to make payment

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.... in respect of the cost of medical treatment obtained in

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relation to the iojury .... . The word "treatment" is not

defined though s.5(1) defines "therapeutic trcatment" as including

an examination, test or analysis for the purpose of diagnosing an

injury and "medical treatment" as including an examination, test

or analysis carried out on or in relation to an e~r~ployee at the

request or direction of a legally qualified medical practitioner. its use in s.37 as well as in s.29 leads me to the view that the word has a wide denotation and comprehends a consultation for the

purpose of diagnosis. I take the fact to be that, in 1970,

there was a consultation at Vung Tau Hospital for the purpose of

diagnosis. It is on that footing that the conclusion is reached that the doctor at Vung Tau Hospital should have diagnosed and

treated the cancerous or pre-cancerous condition. Accordingly,

I take the fact to be that in 1973 >Jr. Johnston obtained "medical

treatmcnt" and, as the complaint out of which it arose was the

cancerous or pre-cancerous condition, I take it that Nr. Johnston

then obtained ,r~etlical LrcaLr~enL in relation to that disease.

It follows that the date of the injury 1s deemed to be the date

of the examination in 1970. This precedcs the proclaimed date.

a

However, argument before me proceeded on the footing and I am of It

the view that, for the purposes of ss(2),	the claim was not made	f
,i 3

in respect of "an injury" but in respect of "an aggravation ....

of a disease". I am of the view that, in ss(2),the word "injury" i:

i

c

carries its ordinary meaning rather than the deemed meaning

attributed by s.29. Thus, attention must be given to the

expression in ss(2) "...at the time when symptoms ... of the

l

aggravation ... first became apparent...". The Tribunal took

the view that the relevant symptoms became apparent when diagnosed .	i
by Dr. Stewart on 4 August 1974.
A symptorrl as defined in the Oxford English Dictionary is :
i

"Path.: A (bodily or mental) phenomenon, circumstance, or

change of condition arising from and accompanying a dlsease

or affection and constituting an indication or evidence of

it; a characteristic sign of some particular dlsease.

L

gen.: A phenomenon or circumstance accompanying some

condition, process, feeling, etc. and serving as evldcnce

of it iorig. a property of something evil); a sign or

indication of something.". I l i

The symptoms which were apparent to Mr. Johnston and for which	I
i
he sought treatment in 1970 were symptoms of the cancerous or
I

pre-cancerous condition. Specifically, Dr. Goulston said, "1

have said that the symptoms are compatible, and I have been told

?

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that he continued to compLain of these symptoms over three or

four years, and the question was put to me was it probable they

(the cancerous condition) were the reasons and 1 said yes.".	J
i
On thls evid?ncc, the symptoms of t h e disease were apparent in	i
. b
1970, before the proclaimed dste, though thc presence of the
a 9
disease itself was not perceived by either the examining doctor
5

or Mr. Johnston.	However, the claim is made not "in respect of ,'	.
9

a disease" but "in respect of...an aggravation". Therefore, 3

t

the relevant date is the date when symptoms of the aggravation

first became apparent. This was not at the time of the

examination in 1970 for it was the failure to detect the disease

at that examination and subsequently which constituted the

aggravation. On the probabilities of the case, symptoms of the

aggravation of the disease would not have been and werc not

apparent until after the proclaimed date of the Compensati~n

(Australian Government Employees) Act 1971. Therefore, ss(2)

of s.104 does not preclude the grant of compensation.

For these reasons, I would dismiss the appeal.

1 certi'y t h a t t h l s and the 19

.-.,g pt. B S are a t r ue copy o f the

p?,;

R s for Juiigmerlt l lere ln of hls Honour

hi;. J ~ s ~ l c e ' ~ L ) I c~