Kennedy Cleaning Services v Petkoska

[2000] HCATrans 433

IN THE HIGH COURT OF AUSTRALIA

Registry  No C16 of 1999

B e t w e e n -

KENNEDY CLEANING SERVICES PTY LIMITED

Appellant

and

VESELA PETKOSKA

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MARCH 2000, AT 10.20 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR D.J.C. MOSSOP, for the appellant.  (instructed by Hunt & Hunt)

MR F.X. COSTIGAN, QC:   If the Court pleases, I appear with my learned friend, MR G.J. LUNNEY, for the respondent.  (instructed by Romano & Co)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say two things before I get to our submissions.  The first is that your Honours will have a slightly amended form of our written submissions.  There were some mistakes that had not been corrected, that a few words were left out and a wrong reference given.  The amendments are in relation to some parts of paragraph 6 but they do not alter what was there. 

The second thing is, your Honours, we have given your Honours a number of extracts from dictionaries in relation to terms that are referred to in the definition of “disease” in the enactment – it is in question – and also some other expressions that may be of some significance but, your Honours, may I come to that later.  Your Honours, the course which I would propose to follow in these submissions is, first, to go, and I will do so briefly, to the facts; secondly, then to the statutory provisions; and, thirdly, to the Court’s two most recent decisions on related questions, namely Hockey v Yelland and Zickar v MGH Plastic Industries Pty Limited. 

Your Honours, if I could turn, first, to the factual circumstances.  The respondent suffered from a form of heart disease which gave rise to blood clots which could be washed to the brain with the flow of blood through the body.  That occurred and blocked the supply of blood to the brain causing a stroke.  Your Honours, the medical evidence as to what happened was not in contest and the medical doctors were not called as witnesses.  Their reports were simply tendered.

It was not in contest that the stroke was not contributed to by her work, and one would also see from the medical reports that her condition was described by the doctors as being a disease.

Your Honours, could I give your Honours the references to the most relevant parts of the reports.  If I could take your Honours very briefly to that part of the record.  One commences at page 17, Dr Cassar, and your Honours will see at page 17, lines 45 to 50, where he refers to an “indication of underlying mitral valve disease”.  Then at ‑ ‑ ‑

KIRBY J:   Does that doctor refer to the way in which the pathology developed after the stroke to the ‑ ‑ ‑

MR JACKSON:   Not this doctor.

KIRBY J:   I see.

MR JACKSON:   Your Honour, if one goes to Dr – your Honours, what I was going to do, I am going to go to those parts of the reports which (a) describe the process that occurred, and, secondly, in some cases they refer to it specifically as being a disease.

KIRBY J:   There is no doubt that she had an underlying disease, but the question is, is it not, how the clot moved internally and became lodged in the brain.  That is said to be the point of distinction.

MR JACKSON:   Yes, your Honour.  That leads to the ‑ ‑ ‑

KIRBY J:   That is the general definition of injury as distinct from the disease part of the definition.

MR JACKSON:   Yes.  Your Honour, of course, one is dealing with legislation – and this is the second point I will come to – which is somewhat different in form from that in the other two cases which I mentioned a moment ago.  Your Honours, I was going to go then from Dr Cassar to Dr Ashton, page 21, the second paragraph, lines 30 to 40.  I should have said also, your Honours, the passages to which I am going to refer will, in some cases, state specifically that it was not work related – or what happened to her was not work related.  Then, your Honours, Dr Peak, page 22, the passage commencing at about line 39 and going through to line 52.  Your Honours will see particularly between lines 45 and 50:

closely linked with the risk of blood clots being formed in the heart and washed to the brain, causing stroke. 

Then page 23, lines 37 to 52 ‑ ‑ ‑

KIRBY J:   Do any of the doctors say that the blood clot can, though caused by the disease, be washed through the arteries and just disappear?  I assume that sometimes happens.  I do not know.

MR JACKSON:   I think the answer is that none of them says that the blood clot can disappear, although equally it seems clear that it does not necessarily follow that there will be a stroke.  Stroke is a possible but not a necessary consequence of there being a clot forming.  At page 23, lines 37 to 52, Dr McCredie at page 27, lines 14 to 20, where she was said to have:

suffered a well known complication of mitral stenosis, that is, an embolism, in this case a cerebral embolism which lodged in the left tempero-parietal region of her brain and produced a substantial neurological deficit.

KIRBY J:   “Embolism” is simply another word for clot, is it?

MR JACKSON:   Yes, your Honour.  Also on page 27, about line 46, where mitral stenosis, the narrowing of the valve, is described as a late sequel of rheumatic fever.  That discussion goes on from line 46 through to page 28, about line 24.  Could I mention then Dr French.  His report commences at page 29 and in a number of places he refers to the “disease”.  Your Honours will see at line 52 on page 29, “rheumatic mitral valve disease for many years”, also the second‑last line on the same page and on page 30, the second line on the page.  If one goes to about line 32, your Honours will see in the passage that goes through to the bottom of the page the same expression is used on a number of occasions.  Could I refer particularly to about line 39 where he refers to:

a stroke which was presumed to be due to a cerebral embolus secondary to the valvular heart disease.

Also the top of page 31.  Finally, Dr Joubert at page 35 where your Honours will see at line 24 he refers to “rheumatic heart disease”.  Could I refer also to about line 59 on that page where your Honours will see again a reference to “rheumatic heart disease” at about line 62.  That passage goes through to the bottom of the page.

Your Honours, that is the nature of what occurred and, of course, it was a crippling injury.  Apart from anything else, she had great difficulty in communicating orally to people after it and, for practical purposes, became unable to communicate and, of course, was unable to perform her work as a cleaner.  Now, your Honours, could I go then to the terms of the statute, the Workers’ Compensation Act 1951.  Your Honours, it has a particular structure different from that under consideration in Zickar v MGH Plastic Industries Pty Ltd 187 CLR 310. Could I go to that case for just one moment? Your Honours will see at page 314 the way in which the term “injury” was defined and your Honours will see that, about halfway down the page, it said:

In this Act –

‘injury’ –

(a)  means personal injury arising out of or in the course of employment;

and then –

(b)  includes –

(i)  a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and

(ii)  the aggravation, acceleration…..of any disease, where the employment was a contributing factor to the aggravation –

and so on, and then the reference to an exclusion.  Now, your Honours, that is the provision that was a question there and if I could just go to page 328 in the paragraph commencing at about point 8 on the page, three members of the Court there referred to the need to look at the language of a particular statute in question.  Your Honours, if one goes to the statute in question ‑ ‑ ‑

KIRBY J:   Is the structure of the Workers’ Compensation Act of the Australian Capital Territory similar to that of other statutes in Australia, or is this different?

MR JACKSON:   Your Honour, broad similarity, in the sense that it contains words one sees in other statutes and a structure which has a broad similarity.

KIRBY J:   There used to be a Commonwealth Employees’ Compensation Act, that has gone now, I think, but is there a federal equivalent and is it identical to the ACT Act?

MR JACKSON:   There is a federal equivalent, your Honour, I just do not have the name of it for the moment, but it is not identical.

KIRBY J:   It seems a very limited application this case then.

MR JACKSON:   Well, your Honour, could I say, without wishing to go back over the argument that took place on the application for special leave, that the members of the Court at that stage, who heard the application, considered it of sufficient merit to grant the application and if your Honours were later to take a different view, well then I would seek to argue the point at that stage.

GAUDRON J:   His Honour Justice Kirby took a different point of view on the special leave application.

MR JACKSON:   I am sorry, your Honour.

GAUDRON J:   I think his Honour Justice Kirby was on the special leave application anyway.

MR JACKSON:   Yes, he was, your Honour.

KIRBY J:   Yes, I had mental reservations, but, however, we are here now so I say nothing more at the moment.

MR JACKSON:   Well, your Honour, could I just say I would rely upon two things:  one the written argument in that case in which I think you referred to the cognate provisions in other jurisdictions – I just do not have it to hand at the moment – and secondly upon our oral submissions at the time, which must have then persuaded your Honour and could not get any better, I expect now at this point.

KIRBY J:   You indicated then that you were not challenging Zickar.

MR JACKSON:   I did, your Honour, that is exactly what I said, and I also said that the statute was different, and that is where I am going to come to now, your Honour.  Now, your Honours, the particular statute, in our submission, does draw distinction between injury and disease and, to put it shortly, where there is disease the employment, in our submission, must have played a part in the contraction or aggravation, et cetera, of a disease and may I, your Honours, seek to say also, that in this case a separate regime is set up in respect of disease.

Your Honours, one starts with section 7(1) which is in Part II of the Act entitled “Entitlement to Compensation”.  Your Honours will see in section 7(1) that:

Where a worker suffers personal injury arising out of or in the course of the worker’s employment, the employer is liable to pay compensation in accordance with Schedule 1.

Now, your Honours, the term “personal injury” as used in section 7(1) is not defined, but the term “injury” is defined in section 6(1) and your Honours will see that “injury” is, essentially, “any physical or mental injury”.

Now, your Honours, could I just pause to say that the person who is liable compensation is the employer at the time when the worker suffers the injury.  That that is so is apparent from the terms of section 7(1) itself.  Now, your Honours, in relation to “disease” ‑ ‑ ‑

KIRBY J:   Could I just ask you to pause there.  Injury was held in England long ago to include internal injury.  There was a problem when it used to be injury by accident, but you do not contest that an internal injury can be an injury for the purpose of section 7(1)?

MR JACKSON:   Well, your Honour, I will answer that in a qualified way, if I may.  I have not yet come to the provisions dealing with “disease” ‑ ‑ ‑

KIRBY J:   I realise that.  But just if we drew a line here and looked at the word “injury”, I realise your argument relates to how you have to construe 7(1) in the context of the other provisions of the statute that incorporate the disease provisions.  But if you just looked at personal injury, that would, on the face of things, include something internal to the worker as well as something which has come from an external source?

MR JACKSON:   Yes, your Honour, it would.  But I said I would give a qualified answer to that.  The internal injuries of which one is speaking in that context fall, I suppose, broadly into two classes in relation to which different answers might, perhaps, be given.

One class is one where there is, for example, some strain not caused by any external act, external force being applied, but perhaps by the worker applying force to something.  It may be a strain in the worker’s body.  I suppose one could even have eye strain looking at a computer screen for long enough.  So it is not just – it would include that class.  Another class is the class where, for example, as in Zickar there was a rupture of some part of the body.

Now, your Honours, what we would seek to say about that is that if you took out of account the presence of the word “disease” widely defined in this case, and took out of account the provisions in relation to disease, then the inclination would be to give the term “injury” a meaning wide enough to include injuries, if I could use that expression, of that kind.  And that that is so is reflected in the observations which we have made, your Honours – that we give your Honours the references to the passage and I will come to it a little later in the discussion by Chief Justice Gibbs in Hockey v Yelland (1984) 157 CLR 124 at page 133. It is referred to in paragraph 5.1 of our written submissions. That occurred in circumstances where the legislation made no specific provision for diseases or provided specifically only for a special class.

Now, your Honour, we would adopt in that regard what was said by Chief Justice Gibbs in Hockey v Yelland at page 133, about point 6 on the page. So that is the answer I give to your Honour. Now, what I was going on to say was this, that if one turns to the provision for disease, one goes first to the definition of the term which is found in section 6(1). Your Honours will see that, first of all, it is defined; secondly, that it is widely defined, and it is defined to include:

any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease ‑ ‑ ‑

GAUDRON J:   That would certainly cover in this case the mitral stenosis.  How do you fit the subsequent stroke into that definition?

MR JACKSON:   Well, your Honour, because it is simply part of the ordinary development of that disease, not necessarily ‑ ‑ ‑

GAUDRON J:   Well, is it?  You see, the disease, as I would have understood it from those medical reports, is the underlying narrowing of the mitral valve.  What happens thereafter is an incident in its own right, as it were.

MR JACKSON:   Well, your Honour, could I just say ‑ ‑ ‑

GAUDRON J:   It may be a common consequence of a disease, but it is not the disease.  I would not have thought that it fitted into that definition at all.

MR JACKSON:   Well, your Honour, could I just say in relation to that that if one looks at the medical reports, what one sees is that one of the aspects of the disease is that it produces embolisms and that the embolism may do the very thing that occurred here.

GAUDRON J:   One of the consequences of the disease.

MR JACKSON:   With respect, your Honour, that is ‑ ‑ ‑

GAUDRON J:   Possible consequences.

MR JACKSON:   Possible parts, your Honour, possible parts.  One of the possible parts of having this disease is that you will have a stroke.

GAUDRON J:   You may say it may be that the stroke itself could fit into the disease as a disorder of sudden development, but ‑ ‑ ‑

MR JACKSON:   Well, your Honour, could I just say this:  if one looks at the term “disease” as used in the statute, what it is intended to cover, in our submission, is really, to put it shortly, anything that is caused internally, caused by the body itself, the morbid condition, an ailment, disorder, defect or morbid condition, something that arises in the body, as it were.

t10/kvs
           Now, your Honour, it may well be that it is possible to divide up what happened in this case into a number of classifications, one classification being that it is two diseases, but what one does see is that whether one divides it up into two parts or just takes the second part of what actually happened, what one does see, your Honour, is that that is something that is entirely within the description of a physical or perhaps even a mental ailment, a disorder, a defect or a morbid condition and, your Honours, there is a sudden development of that.    Maybe one may call it sudden or one may call it gradual but it is something that falls directly, in our submission, within the definition of disease.

GLEESON CJ:   Does your argument proceed upon the assumption that there is a strict dichotomy between injury and disease?

MR JACKSON:   In the end, your Honour, yes, we come to that.  Ultimately, what I mean by that, your Honour, is this, that if there is something that is a disease then it falls within the section 9, even if it might have been something that one could also categorise as a physical or mental injury.

GLEESON CJ:   But would not that definition of disease cover some forms of injury?

MR JACKSON:   Well, your Honour, if one took the term in the absence of the expression – if the expression “injury” were not there, the answer is probably so, your Honour, yes, if one could say a person who had been hit by a car, for example, was suffering from a physical ailment in consequence of that.

GLEESON CJ:   Well, a broken arm sounds to me like a defect.

MR JACKSON:   Well, your Honour, on one view that is perfectly possible, but what I was seeking to say that if one looks at the terms and the kind of structure that follows in section 7 and section 9, that what is being looked at in terms of injury is something that is caused either by application of force or perhaps by strain on the one hand, whereas on the other hand disease is intended to contemplate something that is not caused by one of those things but, rather, caused by some other feature.

KIRBY J:   Is not the dichotomy view difficult to reconcile with the fact that the statutes began with injury and then disease was added prima facie to enlarge the entitlements and yet you are now trying to say that by adding the disease and the aggravation of disease you somehow are then required to cut back the definition of injury.  It is a curious result from something which was intended to enhance compensation rights.

MR JACKSON:   Well, your Honour, so far as the present Act is concerned, the terms of section 7 and section 9 really came in together.  I do not know, with respect, that in relation ‑ ‑ ‑

KIRBY J:   Were they both there in 1951?

MR JACKSON:   Yes, your Honour.  Yes.  Your Honour, there have been some amendments to the provisions over the years.

KIRBY J:   My recollection is that the aggravation, et cetera, provisions came in in the late 1950s as a result of the decision of Hussey.  I am not sure of that, but my recollection, certainly with the New South Wales Act, that they came in later to deal with a case that was held in this Court, a decision of this Court, but, anyway, perhaps that can be checked.

MR JACKSON:   I will, your Honour, but could I just say, however, that the Act has not remained entirely static.  What I mean by that is that provisions such as those to which I will come, of 9A and 9B, were not originally in but they were in before the accident questioned here.  But they go to work out the general proposition.

Your Honours, could I go then to the question of disease and to section 9.  What is established, in our submission, is that there is a separate regime, in effect, in relation to diseases.  It commences with section 9(1), and I take your Honours to that.  Your Honours will see the expression in subsection (1) – I am sorry, could I just say this:  your Honours will see that when subsection (1) is applicable, it has the effect, as the concluding words of it say, that “subsections (2) to (5) have effect”.  Your Honours will see that ection 9(1)(a) refers to circumstances where a worker has either contracted a disease or suffered an “aggravation, acceleration or recurrence of a disease”.  Could I pause to say, your Honours, perhaps the expression “contracted” or “aggravation”, et cetera, may be some answer to what your Honour the Chief Justice was putting to me, because one would not really “contract” a broken arm, one would think, or suffer an aggravation of a broken arm in that sense, and so it is speaking of something that can be contracted, et cetera.

Your Honours, paragraph (a) deals with that circumstance.  The second aspect is section 9(1)(b).  Your Honours will see that section 9(1)(b) looks to “any employment of the worker by his or her employer” and asks in respect of that employment whether it was a contributing factor to either contracting the disease or its “aggravation, acceleration or recurrence”, even though the contracting or aggravation, et cetera, may have happened later.

Your Honours, section 9(2) then performs two functions.  The first is that it treats the contracting of the disease or its aggravation, et cetera, as being – I am looking at paragraph (c) – a personal injury arising out of the worker’s employment.  Your Honours, the second thing that is done, is done by paragraph (d).  It selects the time of death or incapacity, as the case may be, as being the time when that deemed injury occurred.

GAUDRON J:   Does not the presence of the deeming provision suggest that what your are talking about there is something that does not fall within the ordinary terms of the definition of “injury”?

MR JACKSON:   Your Honour, to a degree it does, in our submission, yes.  What I was going to say also was that if one then looks at the succeeding provisions and the way in which they describe the effect of 9(2)(c), they suggest that the liability in respect of disease is something that arises by virtue of section 9, as distinct from section 7, the personal injury provision.  So what we would suggest is that it is right to say that the term “deemed” in 9(2)(c) does suggest that the things that are within the term “disease” are not within the term “personal injury”.

GAUDRON J:   No, I was ‑ ‑ ‑

MR JACKSON:   No, I did not think your Honour was going to agree with that, with respect, but the ‑ ‑ ‑

GAUDRON J:   No, I was thinking that what it was postulating is that you look to see if you fall within the term “injury”.  If you do, so be it.  It is only if you do not fall within the term “injury” that you go back and look and see if it can then be a deemed injury.  So that there is not necessarily a dichotomy between the two.  It is just that if you fall outside one, then you go on this other route.

MR JACKSON:   Your Honour, could I just say two things about that.  The first is that that does not really leave section 9 with much to do.  The second thing ‑ ‑ ‑

GAUDRON J:   Yes, it does.  It leaves it all the work to do when you do not fall within the definition of “injury”.

KIRBY J:   Dermatitis, for example; you have a dermatitis disease.

MR JACKSON:   Your Honour, I accept that there may be some possible cases that are diseases but do not amount perhaps to injury.  But it would be in one sense difficult to say that a dermatitis condition was not one that one could regard as - if it were obvious and causing scratching and so on, was not something that was an injury because it would be something that did affect the body, externally perhaps.

GAUDRON J:   Take lead poisoning.

MR JACKSON:   In relation to lead poisoning, that may be something that is a disease, and then only a disease.  It would not be very surprising.

KIRBY J:   But the point is that it does leave the section something to do.

MR JACKSON:   I am sorry, your Honour?

KIRBY J:   It does leave section 9 with some work to do.  It works in the case of diseases that are not injuries.

MR JACKSON:   Your Honour, I do not suggest that section 9 does not have some work to do, on any view.

KIRBY J:   Well, you want it to do a lot of work and then to take away rights.

MR JACKSON:   No, your Honour.  What we are seeking to say is that you find an Act which has a specific, but limited, provision where something falls within a widely defined description of disease.  Now, if one is looking at the enactment, one sees that it does not include in the definition of “injury” something that is a disease.  It adopts a quite different form of approach and, consistently with that, there are entirely different provisions dealing with the operation of the disease provision.

GLEESON CJ:   Mr Jackson, I am not sure where this would lead, but blindness would be within the definition of disease, would it not?

MR JACKSON:   Yes, your Honour, I expect so, yes.

GLEESON CJ:   Now, blindness might result from an injury at work or it might result from a condition that develops over a long period of time.  It might result from doing things that you have been warned not to do but whatever is the cause of it, it might be within the concept of a disease or it might be within the concept of injury, or it might be both.

MR JACKSON:   It is possible, your Honour, yes, and it may be that different – if one had a person who was – it may well be that one would say, well, if you have someone who suddenly suffers from blindness and, your Honour, that has occurred to people who have had other injuries sometimes suffer from blindness, sometimes miraculously cured, or people who have been shot in the war with shrapnel in the head, or something of that kind.  Now, your Honours, it may be possible to regard the blindness as being an injury which occurs at the time when it happens.  I could understand someone saying someone was struck blind and that is something you regard as an injury, ergo it is clearly a section 7 case.  If, on the other hand, the blindness was caused by something that was a progressive disease, then it be a section 9 case, even though it happened at work.  Your Honour, could I just say that, in relation to section 9 ‑ ‑ ‑

GLEESON CJ:   And perhaps, even though you could explain in physiological terms the blindness, by reference to some event that finally came upon a person while the person happened to be at work, as the result of a progressive deterioration of some conditions.

MR JACKSON:   Yes.  Your Honours, what I was going to say was that if one looks at, and I was dealing with section 9(2), what I was seeking to make about it was that if one looks at the succeeding provisions of section 9, and I will come to these in a moment, it is apparent enough that the Act treats section 9(2) as the source of liability.  If your Honours go to the opening words of section 9(3), it speaks of a case:

(3)  Where a liability of an employer in respect of a disease……arises by virtue of this section –

and if I could just pause to say, your Honours, your Honours will have seen that section 9(2) treats the deemed injury as having occurred at the time of the death or the incapacity and is deemed to be “personal injury” arising out of the employment by, it must be the employer, at that time, and your Honours will see then that subsection (3) makes any other earlier employer falling within 9(3) liable to pay contribution.

Your Honours will also see in subsection (4) that the opening words of that provision contemplate a liability arising under the section itself and your Honours will see too, in subsection (5), that the provision contemplates:

a claimant for compensation under this section in respect of a worker’s disease –

Now, your Honours, could I pass over section 9AA, because it was not in force at the time of the accident in this case, but take your Honours to sections 9A and 9B.  Those provisions set out a number of means whereby, in the case of a disease, proof that the employment was a contributing factor is facilitated.  Your Honours will see in the case of section 9A it allows the regulations to specify that some types of employment have prima facie contributed to some diseases and then section 9B deals with, to put it shortly, four situations:  in section 9B(1) it deals with contracting a disease and says that any prior employment in which the incidence of that disease amongst employees is higher than the incidence generally, is to be treated prima facie as a contributing employment; section 9B(2) says the same thing in respect of “aggravation, acceleration or recurrence”; section 9B(3), in the case of death from disease, says that a “but for” test for contribution is to be applicable; and section 9B(4) does the same in respect of:

incapacity for work or facial disfigurement.....by disease –

And, your Honours, what we would submit is that the presence of those provisions suggest that disease and injury are treated separately in the Act.

Your Honours, could I refer also to, for example - your Honours, I should say that one does see, of course, the term “injury” being used frequently in the Act, but one sees also the term “disease” being used in, for example, section 12(1), which says that:

the amount of compensation payable in respect of –

(a)  an injury or injuries sustained on 1 occasion; or
(b)  a disease;

shall not.....exceed $20,000.

which is an indexed figure.

KIRBY J:   I take the force of the argument.  You are basically putting forward the proposition that one must construe the statute as a whole, look at the way it treats injury and then look at the way it treats disease, and then reconcile them in a way that does not destroy the power of each, but, if that were the construction, that would seem to strike fatally at the view that the majority took in Zickar and maybe at some point in your argument you will make clear why an aneurism rupture, which was a result of a congenital condition, presumably a disease, within the general words of that term, gets into a Compensation Act and yet, this case, a stroke falls out.  It seems difficult to me to reconcile Zickar with your theory of the dichotomy between injury and disease.  Do not deal with it now; just deal with it at some point in your argument, if you would.

MR JACKSON:   Your Honour, what I was going to say, was I was about to turn to those two cases Hockey v Yelland and Zickar.  But could I, in relation to that, say – although the particular issue does not arise in this case – it may well be the case that under this statute, the result that would be arrived at in the case of exactly the same facts as in Zickar would be different.

GLEESON CJ:   When you said the Act deals differently with injury and disease, a possible point of view is that it would be slightly more accurate to say the Act deals differently with injury and with the disease that does not amount to - - -

MR JACKSON:   Yes, your Honour.  Your Honour, that is one way of putting it.  But that, within itself, carries a question of a definition of what amounts to injury.  Your Honours, could I turn then to the two cases to which I adverted, the first being Hockey v Yelland (1985) 157 CLR 124. Your Honours, in that case the Queensland legislation had defined “injury” in the manner referred to at page 128. Your Honours will see about two‑thirds of the way down the page, the definition of “injury” as meaning:

personal injury arising out of or in the course of employment and including –

and your Honours will see the inclusions.  The principal judgment, your Honours, was that of Chief Justice ‑ ‑ ‑

GUMMOW J:   Well, one has to understand the nature of the litigation in that case.  It was really a certiorari, was it not?

MR JACKSON:   Yes.

GUMMOW J:   It was a jurisdiction dispute, was it not?

MR JACKSON:   Yes, your Honour.  The question was whether there was an error of law on the face of the records, some discussion about what amounted to the record.  And as three members of the Court, including your Honour, pointed out in Zickar, that the view taken by the Court in that case was correct in your Honours’ view, but that a somewhat different point was that being argued in Zickar.  And it is for that reason, your Honour, that I want to go, and I will do so very briefly, to what was said in Hockey v Yelland first, because the view of a majority of Justices in Zickar does not seem to have doubted the general proposition that something which is the product of an autogenous disease is not, itself, an injury, although in the statute in question in Zickar it was held that it might be in the particular circumstances.

Your Honours, I have taken your Honours to the terms of the definition.  The principal judgment was that of Chief Justice Gibbs; Justices Mason, Brennan and Dawson agreeing in relevant respects.  Could I go to page 132 about point five, where his Honour, halfway down the page, said:

The definition of “injury” in s.3(1) of the Act comprises three categories –

which he then described.

He went on to hold, if I could go over a few pages, your Honours, at page 136 about point 8 on the page and the passage that goes through – it is the last paragraph on page 136 and it goes up to the top of page 137, that a disease which happen to manifest itself during employment was only compensable “if employment was a contributing factor” and, your Honours, at page 137 about point 6 on the page his Honour said:

On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition:  if the incapacity is to be compensable it must fall within –

to put it shortly, the disease provisions:

On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment.

Now, your Honours, the application of that – I am sorry, I should say that his Honour had discussed the earlier cases.  I referred your Honours earlier to page 133 but the discussion continues on until page 136 and the application of that principle to the facts appears at page 137 at the bottom of the page going over to the top of page 138:

that if the Neurology Board decided that the subarachnoid haemorrhage was merely “the culmination or climax of a progressive disease, itself unrelated to employment”…..or that the haemorrhage was otherwise autogenous, and that the work which the appellant was doing played no part in causing it, it was quite right to determine that it was not an “injury” within the meaning of the Act.

Now, your Honours, could I go then to Zickar 187 CLR 310. The relevant definition is at page 314 – I took your Honours to it earlier – and there were three sets of reasons in the case. First, Chief Justice Brennan, Justice Dawson and your Honour Justice Gaudron were in the minority in the result. Those reasons discussed the cases culminating in Hockey v Yelland and then go on to say, at page 325 about point 8, that:

the reasons for judgment in Hockey v Yelland compel the dismissal of the present appeal.  The essential steps in the reasoning –

and their Honours discuss that and, your Honours, the passage really goes through the whole of the next page to the end of the reasons on page 327.

KIRBY J:   Their Honours appear to attach importance to the legislative history of the provisions.  We do not seem to have any indication of what was the legislative history of the provisions in the ACT Act.  Is it important for us to look at those, or not?

MR JACKSON:   Your Honour, in the end, I think not, although I am happy to give your Honours a history of it in a short form if your Honour wants one, and I can perhaps give your Honour the ‑ ‑ ‑

KIRBY J:   I think it might be helpful because of the possibility that it adds to Justice Gaudron’s point that this was an added definition, if this be the history, that was intended by dealing with deeming provisions, which is the slightly different way in which it has been approached in the ACT, to therefore be dealing with an artificial construct, as distinct from an injury in the ordinary sense of the word.

MR JACKSON:   Your Honour, may I give your Honour that on a piece of paper, perhaps, your Honour, because, could I just say, it does involve the addition, for example, of sections 9A and 9B which I mentioned earlier, and perhaps I can give your Honours that in due course.

Your Honours, I was going to go to the second set of reasons in Zickar. They are the reasons of Justice Toohey and your Honours Justices McHugh and Gummow. Your Honours discussed the earlier cases and then at page 332, about point 4, referred to the fact that:

The personal injury upon which the appellant relies is the rupture of the arterial wall.  There can be no doubt, having regard to the medical evidence…..that this event constituted personal injury and it is not in dispute that what occurred took place in the course of the appellant’s employment.  Equally it is not in issue that the aneurism itself…..was a disease from which the appellant was suffering prior to the rupture.  Does the existence of this disease take the matter into par (b) of the definition –

and your Honours then went on to page 333, and about halfway down the page referred to proposition stated by Chief Justice Gibbs in Hockey v Yelland.  What your Honours will see, it follows from what I have said, that “if the Neurology Board”, et cetera, and then your Honours said:

There can be no quarrel within this passage from the judgment of Gibbs CJ so long as the confined context in which it is expressed is clearly understood.  If nothing more appeared than that the haemorrhage was merely the culmination or climax of a progressive disease, it could not be said that the rejection of the claim by reference to the opening words of the definition disclosed an error on the face of the record.  But that is not the present case.

Then your Honours went on to say, at page 334, halfway down the page:

But the present case is not one of an autogenous disease.  Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies.  It may be accepted that the aneurism was an autogenous disease but the appellant’s claim to personal injury within par (a) is based on the rupture which occurred…..the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation.  If there was no rupture there would be no event answering the description of personal injury –

and so on, and you get to the end of that paragraph.

Then, your Honours, at page 335, about point 9 on the page, said, quoting from Accident Compensation Commission v McIntosh:

If the rupture is due to blood pressure, arteriosclerosis –

et cetera –

it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur.

Your Honours said:

We respectfully agree with this observation and, in our view, nothing in Hockey v Yelland…..precludes its acceptance.

Your Honours, finally, your Honour Justice Kirby, who was the other member of the majority in the result, took the view that the previous decisions should not be followed.  That is at page 346, about point 6 on the page.  Your Honour then at pages 351 to 352 under the heading “Conclusion and orders” set out your Honour’s views.  At about the fourth line of those:

No longer is there a dichotomy between “personal injury” in its full sense and “disease injury” within the additional part of the definition.  A worker is entitled to succeed if he or she can bring a claim within either head of recovery.  Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a “disease” is whether, notwithstanding that manifestation, the case falls within the primary definition of “injury” –

and your Honour went on to the top of the next page.  Could I, in relation to this case, submit that this is a case where, on any view, the respondent was suffering from something that was a disease in terms of the definition in the Act.  She had a physical disorder, a physical defect, or a morbid condition, perhaps a physical ailment.  It was, in one sense, of gradual development, in another sense, of sudden development.  Again, it might be described as the acceleration of a pre-existing disease. 

The Act recognises, of course, that the consequences of disease as defined may be “death” or “severe incapacity”.  That that is so appears from the way in which section 9(2) is framed, where your Honours will see that it operates in circumstances where there has either been the death of the worker or total or partial incapacity of the worker that may have resulted from the disease. 

Your Honours, the death of a person or total incapacity, for example, are consequences which are likely to follow in many cases of disease, including cases of the present.  That makes it unlikely, in our submission, that the term “injury” is to have the broad meaning contemplated by, for example, your Honour Justice Kirby in Zickar.  What one sees in the definitions is that there is a broad definition of disease which is applicable, however one chooses to apply it – and I refer to what I said in answer to your Honour Justice Gaudron earlier ‑ to a case such as the present.  One then sees, in relation to that, a special – I use the expression again “regime” set out – special times are selected at which the injury is deemed to have occurred, or which the disease is deemed to have become an injury.

One then sees in the same context the definition of “injury” as meaning “any physical or mental injury”.  In our submission, that term is apt in those circumstances to apply to damage caused by external forces, damage caused by perhaps external events and damage caused by various kinds of strains occurring in the course of work.

CALLINAN J:   Mr Jackson, I am sorry, but in relation to what you have just been putting, could I take you back to a passage in Zickar in the judgment of their Honours Justices Toohey, McHugh and Gummow at page 334, that passage you referred us to. Their Honours say at about point 5 that:

From Dr Stening’s evidence, it is clear that the rupture of the aneurism was not inevitable –

What do you say about that passage?  Is it suggesting that inevitability is a test and, if it is, what do you say about such a test?

MR JACKSON:   Your Honour, could I say first that in relation to the necessity for non‑inevitability, as it were, or inevitability, as the case may be, it is unlikely that their Honours were seeking to make that a test in every case because one is, after all, talking about factual circumstances which could vary.  It must be something which depends to an extent upon the circumstances of the particular disease in question.  What I am seeking to say in relation to that is that if you have something which, as in a case like this, is something that flows from the disease or is part of the disease and in circumstances where you have a very wide definition of “disease” so that the event itself is capable of being another disease, as it were ‑ ‑ ‑

CALLINAN J:   That is what I was going to ask you about, the reference to “event” a little later in the paragraph where their Honours say that there was such an event.  What was the event?  The event was the rupture and not something that caused the rupture.

MR JACKSON:   I accept that is what the Court was saying.

CALLINAN J:   I am not saying that is so.  I am really asking what your submission is.

MR JACKSON:   That is what seems to have been the view taken by those members of the Court because, if your Honours will see in I think the fifth line of that paragraph, that the claim was “based on the rupture which occurred”.

CALLINAN J:   Yes, so that there does not seem to need to be any external event at all, that the rupture is the event and the event may have absolutely nothing to do with the task or the work.

MR JACKSON:   Yes, your Honour.  Because, including in section 7 in this case, one is looking either at “arising out of the employment” or “happening in the course of the employment”, there does not have to be a relationship really other than a temporal one for the injury to be an injury.  To take a commonly enough used example, if you have, say, a plumber walking across the road to give a quotation to premises across the road and is knocked down by a car, that would still be something that happened in the course of employment; it would be an injury in the course of employment.

CALLINAN J:   And simply because of the words “in the course of” in the definition?

MR JACKSON:   Yes, and the difference between that and the disease situation, in our submission, is that the causal relationship does have to be established and then there is the mechanism set up for other employers who may have been involved in the cause themselves to contribute.

CALLINAN J:   That is the way you distinguish Zickar’s Case.

MR JACKSON:   Yes, your Honour, and also, of course, because of the fact that there is a definition of what is disease and disease contemplates the very thing that is the event, in effect, in, for example, Zickar and in the present case.

KIRBY J:   Justice Callinan’s question brings out for me the problem that I have with your proposition, that your theory of this Act can live with Zickar, because it seems to me that you tender to the Court an attractive dichotomous theory.  Your have injuries, you have diseases, never the twain will meet.  If they fit within diseases, they cannot be injuries and, therefore, you classify it at the beginning and then you have to fit within whichever statutory category applies.  I can understand that, but that does not seem to be the way in which the majority reasons in Zickar approach the matter.  I just do not see how you can live with the approach of the majority in Zickar.  I think you have to attack the approach in Zickar, do you not?

MR JACKSON:   Your Honour, could I say in relation to that, first of all, one is dealing with a different statute and a statute which is markedly different in the sense that you do not find injury and disease in the one definition ‑ ‑ ‑

KIRBY J:   But in some ways it is a statutory difference which is against you because that is a case where they have the prima facie definition of injury and then they say it includes, which one would assume means extends, whereas here you have a deeming provision which is a categorisation, you have real injuries and you have artificial deemed injuries.  So that, I think if there is a distinction, it is against you or your client, rather than for you.  But I just do not see how this Court could say, “Well”, depending on the statutory provisions, “you get it for an aneurism but you do not get it for a stroke”.  They are both dramatic internal catastrophes that happen at a particular point of time in the course of employment and that is enough.

MR JACKSON:   Your Honour, one is, of course, talking about different jurisdictions and legislatures which have enacted legislation in different ways.  In relation to that, your Honour, what we would seek to say is that if you look, first of all, at the way in which the concept of disease is dealt with in the ACT enactment, what you see is that it is not just a question of saying disease is included in injury, even if it might not have been, which it might not otherwise have been, which is really the definition in Zickar and, perhaps, in Hockey v Yelland, but rather it is a case where disease is dealt with - is not just included in the definition, it is also dealt with separately.

Now, your Honours, in relation to that, what we would seek to say is that if you look at the way in which it is dealt with it involves not just the inclusion in the definition, but also a separate means of obtaining compensation, different burdens of proof specially provided for, and so on.  That makes it likely that it is different.  The second thing is that if one looks at the terms of the definitions, you do see that disease is itself defined in a way which would include the very things, in effect, that were within the definition of - treated as being within the definition of injury in Zickar.

Now, in circumstances like that there is no particular reason, in our submission, why one should give a preference one way or the other to section 7 or to section 9 in relation to the cases to which it applies.  Now, your Honours, that does not involve, in our submission, overruling Zickar.  Of course, if your Honours took the view that it was necessary to do that, then I would seek leave to the Court to revisit that. 

What we would say about it in that connection is that you will see the – and, your Honours, I think I might really be doing in that, in substance, adopting the argument that was advanced in Zickar, saying that the Court should not have departed from what had been held in Hockey v Yelland - your Honours, in relation to which there was no especial need for the Court to revisit Hockey v Yelland.  That is the argument, I think, I would put in relation to that, your Honours, and, in effect, adopt the considerations that your Honour Justice Kirby listed as being the argument which had been advanced on that occasion.

GAUDRON J:   But are we not in a somewhat different territory here in that you have precise definitions of “disease” and “injury” – well, at least precise definition of “disease” – in your definition section?

MR JACKSON:   Yes.

GAUDRON J:   It is an imprecise definition of “injury”, I should have said, in that it defines itself by reference to injury.  So why would you not treat injury there as meaning anything which could ordinarily as a matter of language come within the expression “injury”?

MR JACKSON:   Well, your Honour, could I say, first, about that that the assumption on which your Honour’s question to me is based is, with respect, one that we would seek to put in issue because what you do see is that really the terms “disease” and “injury” are ones that are both expressed in broad terms in the sense that “‘injury’ means any physical or mental injury”, “‘disease’ includes ‑”and then you see something that one would think really, apart from perhaps the “aggravation, acceleration” is itself the definition of “disease” or something that is an ordinary definition of “disease”, but one that is expanded upon in some respects.  Now, your Honours, both of them have degrees of imprecision about them, but the second thing we would seek to say ‑ ‑ ‑

GAUDRON J:   Well, “injury” certainly has a lot of imprecision about it, does it not?

MR JACKSON:   Well, your Honour, it says a “physical or mental injury”.  One does have to read at some point the two together.  What I was going to say, your Honour ‑ ‑ ‑

KIRBY J:   “Mental” must be internal and, therefore, that reinforces the acceptance which is a very long one, going back 50 or more years, that injury can also be internal and I do not take you to challenge that.

MR JACKSON:   No, your Honour, it is a question of a physical or mental injury and a mental injury could be one of a psychiatric nature or, I suppose, could be one of a neurological nature.

GAUDRON J:   And, prima facie, a stroke would come exactly within those words.

MR JACKSON:   Well, your Honour, prima facie, a mental injury, so would every death, of course, which would be a little unlikely, in our submission.  Now, your Honours, what I was going to say, if I could just revert to what your Honour Justice Gaudron put to me a moment ago, if your Honour is correct in saying that “disease” is relatively specifically defined whereas “injury” is less specifically defined, then, in our submission, the approach to the manner of reconciliation of them would be unlikely to be that the broad provision would be the one which would prevail in circumstances to which both might apply, because on an equally open view, in our submission the better one would be that if the Act did make a specific provision for something that was defined in relatively precise terms, then, in the circumstances where that definition fitted, the more specific provision should be the one to be applied.

KIRBY J:   In the case of death you would still have to show that it is a death resulting from injury, so you have got to get back to whether there was an injury, and it is not too astonishing, you know - you see, the problem with your theory is you are trying to get back to the time when the Act was “arising out of and in the course of the employment”, whereas the Act was amended in the 1940s, I think, to say, “arising out of or in the course of the employment”, and maybe this Act was always that way, and therefore lots of injuries happen at work that have nothing to do with the work, nothing at all, but they still are covered by the Act because they fall within the “arising in the course of”; so it is not too astonishing that catastrophes, internal catastrophes or deaths resulting from them, that happen at work, in work time, get covered, although they have nothing at all to do with the work.

MR JACKSON:   Yes.  Your Honour, that is what one sees, of course, that section 7(1) says if you suffer:

personal injury arising out of or in the course of the worker’s employment –

then –

the employer is liable to pay –

What you see though is that equally you have got circumstances referred to in section 9 and they deal with the specific circumstances in which a person:

contracts a disease or suffers an aggravation…..of a disease;

Now, what I am seeking to say about that is simply that, if you find that in relation to those circumstances the Act then goes on to deal specifically with the consequences of that and the way in which the liability in relation to that is dealt with, then, the probability, in our submission, is that, in the specific circumstances to which it applies, then that is to provide.

KIRBY J:   That is why, it seems to me, that you really must embrace the dichotomous view and say Zickar was wrongly decided because Zickar is a case of the product of a disease.  For example, an internal injury like straining on a stool causing a twisted bowel, that would be an incident, dramatic and alone, that happened in the course of employment, no disease, just an internal stress, so that would fall within the injury, properly so described, but your theory, I think, correct me if I am wrong, really has to get to the point that anything that is connected with a long term process, like an aneurism or like a stroke, has to be slotted into the disease category and it either gets up if there is an employment connection or it fails if there is not.  That is a neat way of approaching the statute; I can understand it, but I just do not think you can have Zickar and your theory too.

MR JACKSON:   Well, your Honour, I do not particularly want Zickar, if I can put it that way.

KIRBY J:   I know you do not.  But you started your argument by saying you did not challenge it, and I just want to understand how you can have that contention if you cannot, then it is better ‑ ‑ ‑

GUMMOW J:   You might not have got special leave if you put it on the basis of wanting to challenge Zickar.

MR JACKSON:   Your Honours, so far as Zickar is concerned – your Honour, I do not know, I suspect I am saying what I said before.  But in relation to Zickar, what we would simply is that the statutory provisions are different and we would rely on the passage in Zickar to which I referred earlier, in which your Honours Justices McHugh, Gummow and Toohey referred to the fact that you have to look at the statutory provisions.  They may be different in different cases.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Costigan.

MR COSTIGAN:   If the Court pleases, the respondent suffers from the nervous position here that it believes you can put its submissions in a very simple way, and that always causes some concern to counsel.  But it starts off with the proposition that ‑ ‑ ‑

McHUGH J:   Why?  There was a workers compensation in this appeal that was opened at 10.15 and counsel sat down at 10.21 and won the appeal.

MR COSTIGAN:   Is that an invitation, your Honour?  The respondent starts off with the proposition that the law, as it currently stands in this country, is to be found in Zickar and that Zickar is not being challenged in this Court.  We would say that if one looks at the decision of the majority in Zickar we find that it is said that the first thing you do is look at the definition in the statute.  Indeed, the minority in Zickar, itself, said, as we set out in our submissions on page 4, the majority said at page 325 that:

The essential steps in the reasoning are not only established by a consistent and unbroken line of authority; they are dictated by the definition of “injury” in the 1987 Act.

Now the majority in Zickar, including your Honour Justice Kirby, went to the statute to determine whether or not the dichotomy argument was the appropriate way to approach this kind of claim.  We say that what is to be found in this case is material of a medical nature which, really, it is very difficult to distinguish from the finding that was made by the Court in Zickar. We know that it appears from the evidence of Dr McCredie at page 27 of the appeal book in the passage just after the passage that my friend referred to, at the bottom of the page:

My assessment of the situation with Mrs Petkoska is that she had moderately severe mitral stenosis as a result of previous rheumatic fever;  she did not however have significant shortness of breath but the first serious manifestation of her illness was when she produced an embolus, that is a blood clot which forms in the left atrium and breaks off, and on this occasion happened to pass directly to the left tempero‑parietal region of her brain.

So that what we have here is ‑ ‑ ‑

KIRBY J:   Was there any evidence that said that an embolus can just pass out of the body?  Should one infer that?  I do not know myself.

MR COSTIGAN:   I think one has to infer it, your Honour, because I do not think it is specifically said.

KIRBY J:   The fact that they say this one lodged in the brain rather suggests that it is not an essential consequence.  I just do not know, though.

MR COSTIGAN:   Your Honour, it is not said in any of the medical reports.  We would submit that it is an irresistible inference that not all clots will necessarily lodge either in the brain or in any other part of the body so as to cause permanent injury.  But that is not adverted to in the medical evidence.  What we have here is a description of a blood clot which forms, no doubt consequent upon the existence of a pre-existing condition, and breaks off and then lodges in the brain and causes the catastrophe which resulted in incapacity, not unlike what was said in Hume Limited v Peart where there was a piece of the arterial wall that broke off and caused the occlusion.

If the analysis that is to be found in the judgments in Zickar is correct, what we have here is a situation of a medical kind so close to what happened in Zickar that my friend is, we would say, forced to the situation where he has to say that a rupture is an injury, but the breaking off of a clot is not.  We have set out in our submissions ‑ ‑ ‑

CALLINAN J:   Excuse me, why do you describe it as a breaking off of a clot?

MR COSTIGAN:   I do that ‑ ‑ ‑

CALLINAN J:   Because it has been broken away from one of the veins?

MR COSTIGAN:   Your Honour, I did that specifically because that is what the doctor said – Dr McCredie.  I took that to mean that there is the development of a clot within the heart.

CALLINAN J:   Where do I find that in ‑ ‑ ‑

MR COSTIGAN:   Page 27, the last line of the page, your Honour.  The paragraph starts a few lines earlier:

she did not however have significant shortness of breath but the first serious manifestation of her illness was when she produced an embolus, that is a blood clot which forms in the left atrium and breaks off ‑ ‑ ‑

GAUDRON J:   But again, that is not really the injury, is it, Mr Costigan?

McHUGH J:   That is the problem I have with understanding this case.  Is there any evidence anywhere that there was any physiological change to any part of the respondent’s brain or body?

GAUDRON J:   You have to say, do you not, that that is exactly what a stroke is, in this case, although the medical reports do not deal with that.

MR COSTIGAN:   The medical reports are elliptical.  What we do know from all the medical reports is that there is an underlying condition, one of the possible consequences of which in time might be the development of a clot, of an embolus, which might cause incapacity.  We know so far as she was concerned that, in fact, a clot did form and it moved from the heart and was stopped in the brain where it blocked and caused a stroke.

HAYNE J:   But the medical material stops at the point of infarct, does it not?

MR COSTIGAN:   I think it does, your Honour, yes.  We are not saying really that the transport of the clot from the heart to the brain was itself an injury.  What we are saying is that when the clot got to the brain and occluded a particular part of the brain, damage was done to the brain as a result of that.

McHUGH J:   Where is the evidence about the damage being done to the brain?

MR COSTIGAN:   At page 27, lines 15 to 20:

It would appear that on the 9th of September 1992 she suffered a well known complication of mitral stenosis, that is, an embolism; in this case a cerebral embolism which lodged in the left tempero-parietal region of her brain and produced a substantial neurological deficit.

McHUGH J:   I know, I saw that, but does that prove that there is some physiological change of damage to the brain?  I mean, supposing somebody suffers memory impairment.  It does not necessarily mean that there is any physiological change, does it?

MR COSTIGAN:   Your Honour, we would say it is an inevitable conclusion of the finding that there is significant disability in the respondent flowing from what is described in the medical reports as a stroke.

KIRBY J:   One minute she was doing her work, the next minute she could not even explain what was happening to her.

MR COSTIGAN:   Something has happened to her.

GLEESON CJ:   Well, she cannot speak.

MR COSTIGAN:   She cannot speak.

GAUDRON J:   If you look to page 18, line 41:

The CT scan showed a lesion in the left parieto temporal area.

Is that not what you want?

MR COSTIGAN:   Yes, your Honour.

McHUGH J:   That is your injury then, is it not?

MR COSTIGAN:   That is the lesion.  I am grateful to your Honour.

GLEESON CJ:   As I understand what happened at work, she fell over and she has never been able to speak since.

MR COSTIGAN:   That is so.  It was quite a dramatic event.  She was found, as I understand it, on the floor.  She had fallen over and she has been in a bad condition ever since, so something quite dramatic happened.  So the doctors looked at it and reported and their conclusion, which is not really challenged in the main part, is that she developed an embolus.  The cause of the embolus was the underlying condition.  It caused a blockage in the brain with these catastrophic conclusions.  We would say that is a physiological change.  I have to say if we cannot establish that physiological change, then my submissions are probably shorter than I had anticipated.

KIRBY J:   It is pretty hard to distinguish that from the aneurism in Zickar, it seems to me, with respect to Mr Jackson, but you will remember Mr Jackson, when confronted with that suggestion, said that he did not really particularly like Zickar and, if necessary, he would invite the Court to revisit it.  I understood him to, as it were, come to that point ultimately as his bottom line.

MR COSTIGAN:   Yes, but he also did not ask the Court to revisit Zickar.

KIRBY J:   I thought he hinted darkly at revisitation.

MR COSTIGAN:   Yes, your Honour.

CALLINAN J:   He said in terms if he had to, he would challenge it.

MR COSTIGAN:   Yes, well ‑ ‑ ‑

GUMMOW J:   He would need leave for that.  He might end up with his special leave revoked.  It is a bit of a double-edged sword.

MR COSTIGAN:   Yes.  We have come here on the basis that Zickar is the law in view of the frank statements by our friends ‑ ‑ ‑

GUMMOW J:   Anyway, it has to construe the ACT statute.  Practitioners in this field always read out cases rather than construing the statute and I am tired of it.

MR COSTIGAN:   Well, your Honour, we would say that in construing the ACT statute we are immensely assisted by the judgments in Zickar and when one looks at the ACT statute in the same way that the Court looked at the statute in Zickar, we say one comes to the same conclusion unless one says that there is a difference of some kind between the rupture of an aneurism and the occlusion of a vessel in the brain.

GAUDRON J:   If one really listened to this, that, prima facie, and as a matter of ordinary language, something might fall both within the definition of “disease” and also within the definition of “injury”.  How are they to be reconciled?  The first question is, do sections 7 and 9 require their reconciliation?  On one view, they do not.  If they do, how are they to be reconciled?

MR COSTIGAN:   The first thing we would say, your Honour, is that the primary section in the Act is section 7.  That is the section which imposes liability on an employer if personal injury has been suffered in the course of the employment, so that when one looks at a claim for compensation the first thing one does is to determine whether what happened to the worker was personal injury.  That question having been asked, one needs to go to the definition.  The definition is in general terms, as your Honour indicated, but it has the assistance of some 100 years of tortured development in the courts with a good understanding at the end as to personal injury encompassing a large number of internal conditions which might fall within “disease”.  Now, if, in fact, the facts of a particular case enable a decision to be made under section 7, that personal injury has been suffered, that is it.

HAYNE J:   But that approach presupposes that the scheme of the Act is a scheme which says, “Injury plus disease, plus deemed disease, are the events which give rise to compensation as opposed to a scheme”, for which I understood Mr Jackson to contend, “that the scheme of the Act is box 1, ‘injury’, or box 2, ‘disease’”.

MR COSTIGAN:   That is so, your Honour, and we would say strongly that the scheme of the Act is to impose liability on an employer where there has been injury, full stop.  That is the first question one asks:  has there been personal injury?

Now, if the facts of the particular case do not enable an affirmative answer to that question, a worker can then seek solace by looking through the rest of the Act to see whether there is some deeming provision which would give him or her the basis for a claim for injury.

KIRBY J:   There seem to be two arguments against that.  One is that normally the rule of construction is that you read a statute as a whole and, secondly, that the Parliament of the ACT or the legislature has inserted quite detailed provisions in 9A and 9B which rather suggest that they are reading the statute as a whole.

MR COSTIGAN:   Again, it is difficult, your Honour, to look at these statutes without some recourse to the long history of workers compensation because part of 9A and 9B is what used to be called the industrial diseases sections, the silicosis and asbestosis sections, where there was an ability to claim contribution from previous employers and that is still there, but looking at the scheme of the Act as a whole, even section 9, despite the words which my friend referred to, namely where liability “arises by virtue of this section”, what section 9 is doing is saying that in certain circumstances a factual situation will be deemed to be a personal injury for the purpose of section 7.  So that the scheme of the Act always takes you back to section 7 and what is required for a claim in the first place is to establish a factual basis upon which a finding of personal injury can be made.

Now, in that sense there is comfort, we feel, from the decision in McIntosh, which was referred to in Zickar, and there is there a description of the history which suggests the kind of internal personal injury that we are relying on.  But at the end of the day, if Zickar remains the law, and it is the

law, then the course which we submit is the simple approach is the one we say should be followed and this appeal should not be upheld.  Now, I am not anxious to repeat myself, if the Court pleases, nor, I am sure, is the Court anxious that I should not, so they are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Costigan.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I just say one thing by way of reply.  Our learned friend referred to section 9.  Of course, one does have to bear in mind that if it is right to say that disease is something which can fall within an injury so that if – I am sorry, I will start again.  If there is something which is an injury and if one goes to that first then it would seem strange, in our submission, that an employer would not have the benefit of provisions such as section 9(4) in a case of that kind where a worker had:

made a wilful and false representation that the worker did not suffer, or had not previously suffered, from –

a disease because the way in which subsection (4) is framed is that it only applies in cases where there is a liability under the earlier provisions of section 9.

HAYNE J:   Mr Jackson, before you sit down, at page 71, paragraph 61 of the reasons of the Full Court, there is a quotation from Justice Murphy in the Victorian Court, where his Honour describes “injury” in its normal usage – I am reading from about line 55 – as:

any ascertainable lesion…..causing incapacity –

What do you say about that as a working definition of injury in its ordinary sense?

MR JACKSON:   Well, your Honour, if one took the passage, without the comments of the Full Court in this case, it depends, your Honour, I suppose, on what is contemplated by “dramatic physiological change”.  Now, your Honours ‑ ‑ ‑

HAYNE J:   It was not those words upon which I fastened for the moment, so much as “ascertainable lesion causing incapacity”.

MR JACKSON:   Well, your Honour, I do not mean to be carping in what I am saying.

HAYNE J:   No.

MR JACKSON:   Your Honour, “ascertainable lesion” in the context in which it appears there, together with “dramatic physiological change”, probably is intended to refer to something which is brought about by some external force.  Your Honour, if it goes beyond that, then our submission would be that not every case where one could say there was an ascertainable lesion, or the other phrase that is used, would be an injury for the purposes of this Act.

KIRBY J:   Do you mean external to the body?

MR JACKSON:   Your Honour, not necessarily external to the body, but it could be caused by some action on the body itself ‑ ‑ ‑

KIRBY J:   External to the organ?  I am thinking, for example, of that instance I gave you of straining on a stool in the toilet at work; now traditionally that has been regarded, if it leads to a bowel catastrophe, as an injury, even though it has nothing to do with the employment, it just happens to be a dramatic incident that happened in work hours.

MR JACKSON:   Well, your Honour, it may be on the margin perhaps, but if it happens in work hours and if one can identify something that one can call an injury caused by some force or movement perhaps, or something of that kind, so be it.

KIRBY J:   I may be wrong, but I do not think it would be regarded as at the margin in why should a person get it if the toilet system falls on his head, which has nothing to do with work duties, but not for some internal catastrophe; they are both injuries?

MR JACKSON:   Well, your Honour, really because, I suppose, in relation to things that fall within disease, they are caused by either some earlier employment or caused by something internal to the person’s body and the way in which the legislature has resolved the competing rights, as it were, has been that in the case of persons who suffer from a disease as defined, then first, there is not the latitude given that there is in the case of some observable injury, if I can use perhaps a neutral term, on the one hand, and, on the other hand, there is provision made in those cases for there to be contribution from those who played a part in causing it.  Your Honour, it is a method of resolution of a difficult issue.

McHUGH J:   But is not the principal problem with the dichotomy argument that the disease provisions are directed, in a large part, to matters which will occur outside the course of employment?  And what the section fastens on is the employment, as a contributing factor, to the contracting of the disease or the aggravation, and so on.  So that one may contract a disease, one may aggravate a disease outside the course of employment.  It may have nothing whatever to do with the employment, but if you can say that the employment is contributing then you are home.  Whereas an injury is concerned principally with cases arising in the course of employment, although no doubt it is true that injuries can also arise out of the course of employment.  Is that the argument against the dichotomy?  They are not two separate fields.  There is likely to be quite an overlap.  I mean, section 9 itself specifically speaks about whether or not the disease was contracted in the course of the employment.

MR JACKSON:   Of an employment?

McHUGH J:   Yes, of that employment.

MR JACKSON:   Well, your Honour, could I just say that section 9(1)(b) speaks of any employment having been a contributing factor.  The way in which the provision then seems to operate is that the employer at the time of the dramatic event, in effect, is then treated as the one responsible.  But then that employer has the ability to recover from other employers who were involved.  But, your Honour, I do not know that the way in which your Honour put it to me really says anything against our argument in a way, with respect, because what we are simply seeking to say is that in cases where there is a disease which has been contracted or aggravated, then the provision to which one looks is section 9 rather than section 7.  Your Honour, I do not know that I can do more than say it again.

McHUGH J:   I know.  But what I was putting to you was that section 9 fastens on employment as a contributing factor.  Injury is concerned with that which arises out of or in the course of employment.  They are not mutually exclusive as a matter of language.  They may well and truly overlap; usually will.

MR JACKSON:   Your Honour, in our submission – and I think I am repeating myself – what you do have in the situation that in the case where there is disease, even if there might otherwise be an overlap, the way in which the Act should be interpreted is to make the provision which is apposite in such a case that which is set out in section ‑ ‑ ‑

McHUGH J:   Does that mean that the Kavanagh type case or the Zickar type case would not be injury for the purpose of this legislation?  There are specific injuries in those types of ‑ ‑ ‑

MR JACKSON:   In Zickar I think the answer is yes, your Honour, it would be a disease.

McHUGH J:   So the fact that there was a lesion to the brain in this case is not to the point, you say?

MR JACKSON:   Exactly, your Honour, yes.

KIRBY J:   Essentially that drives you to saying that under the New South Wales Act the Court ought to have classified Mr Zickar as falling within “disease”?

MR JACKSON:   It does not, with respect, your Honour.

KIRBY J:   You say it does not.

MR JACKSON:   I have given your Honour the reasons why I made that submission earlier, that it simply turns on the difference in the enactments.  One accepts what the Court said in Zickar but Zickar does not cover this case.

CALLINAN J:   Mr Jackson, could I just ask you one question.  In section 9(3), should we read “contribution” as covering indemnity?

MR JACKSON:   Your Honour, a difficult question, I accept, and in other contexts one would find cases, I think, that say contribution does not mean indemnity, sometimes it does.  The answer is probably yes, your Honour.

CALLINAN J:   It helps your argument a little bit, I think, if you read it to include indemnity.

MR JACKSON:   It would be surprising if one did not, your Honour, because the way in which subsection (2) works is to select someone who may have had no part in it at all.  Of course, the argument does have another side, I suppose, and that is that that is what the legislature does in the case of section 7(1) anyway, in some cases played no part in the injury in that case.  The other thing I was going to say, your Honours, and it is the last thing I would seek to say, is that if it is right to say that section 9 does not cover all the disease cases, then, in our submission, one does have a situation where the employer is unable to utilise the provisions of subsection (3), for example.

McHUGH J:   But does your argument mean that in some cases you may have a situation where the actual employer incurs no liability at all, but an outside previous employer might?

MR JACKSON:   It could, your Honour, yes, it could.  Not incurs no liability, the liability is incurred.  However, there is an ability to recover from someone else.  The liability is incurred because of the way in which paragraphs (c) and (d) of section 9(2) operate.  But then the liability that arises by virtue of this section, as section 9(3) says, is one that can be

passed on and the provisions of section 9A and 9B are ones which can assist in the passing on, to facilitate the passing on.  They also facilitate, of course, the position of the employee.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter and adjourn until 10.15 tomorrow morning.

AT 12.05 PM THE MATTER WAS ADJOURNED