Lincoln v Royal Automobile Club of Tasmania

[1991] TASSC 87

76/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lincoln v Royal Automobile Club of Tasmania [1991] TASSC 87; A76/1991

PARTIES:  LINCOLN
  v
  ROYAL AUTOMOBILE CLUB OF TASMANIA

FILE NO/S:  WC 50/1987
DELIVERED ON:  19 September 1991
JUDGMENT OF:  Crawford J

Judgment Number:  A76/1991
Number of paragraphs:  26

Serial No 76/1991
List "A"
File No WC 50/1987

LINCOLN v ROYAL AUTOMOBILE CLUB OF TASMANIA

REASONS FOR JUDGMENT  CRAWFORD J

19 September 1991

1. The deceased was a road service patrolman employed by the defendant. His job was to drive his employer's service van in response to calls from the drivers of disabled vehicles and provide those drivers with assistance. On 2 February 1983 his duties required him to work the afternoon shift commencing at 4pm, and concluding at midnight. He lived with his wife, the plaintiff, at Austins Ferry and left from there for work that afternoon. During the shift he attended ten service calls within Hobart and at places which included Moonah, Kingston, Warrane and Hobart Airport.

1. At 11.20pm, he was driving the van in Bay Road, New Town, which was within the area in which he was expected by his employer to make service calls. There was no evidence clearly establishing why he was driving the van at that time and place. It was consistent with his employment obligations for him to have been making his way towards his home, via New Town and the northern suburbs of Hobart, awaiting service calls. Whether he was doing so is not known. But I infer that he was either driving in the course of his employment for his employer's purposes, or he was driving home. The defendant's counsel did not argue to the contrary.

1. The van crashed into a fence. The deceased was found dead at the wheel. The cause of death was a heart attack which was not induced by any particular activity, effort or strain. That it occurred while he was driving his employer's van during the shift was a coincidence. The plaintiff claims workers' compensation as his widow.

1. Two matters were argued by counsel. The first was whether death resulted from personal injury by accident. The second was the amount of compensation which should be awarded, which depends upon the extent to which the plaintiff was dependent on her husband.

1. The provisions of the Workers' Compensation Act 1927 relevant to the primary question of liability are:

"5–(1)  If in any employment a worker suffers personal injury by accident, or is disabled or dies as the result of a disease, arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule l:

(3A)     Without limiting the generality of the provisions of subsection (1) but subject to the provisions of subsection (2), an injury by accident to a worker shall be deemed to arise out of and in the course of the employment if the accident occurs –

(a)       while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment; (or)

......

(d)       while the worker is travelling between his place of employment and his place of residence."

Schedule I rule 2(1):

"2–(1)  The compensation payable under this Act, where death results from the injury sustained by the worker, is a lump sum calculated in accordance with sub–rule (2)."

"Arising out of and in the course of the employment.:

1. I hold that the heart attack arose out of and in the course of the employment because of the deeming provisions in s5(3A). On the evidence I am satisfied that either paragraph (a) or (d) apply. It was a working day. The deceased had that day attended at his place of employment pursuant to his contract of employment. He was either present at his place of employment or was travelling between his place of employment and his place of residence at the time of the heart attack. On the evidence one or other of those propositions has been established. Counsel for the defendant did not seek to argue to the contrary.

1. I am not aware of any direct authority on the point, but I have no doubt that if the deceased was travelling in the service van in the course of his employment he was "present at his place of employment". There is no reason for thinking that for a place to be a place of employment it must be stationary relative to the surface of Earth. Plainly, a working seaman on his ship at sea would be present at his place of employment, as would a driver of a train engine, a truck driver in his truck and a pilot flying his aircraft.

Personal injury by accident:

1. As already indicated, there was nothing in the evidence to establish that any particular effort or incident occurred, external to his body or arising out of his employment in a literal sense, which induced the heart attack. Death, therefore, can be attributed solely to natural causes. The post–mortem examination revealed that the deceased had had two previous and separate myocardial infarcts which had healed with fibrosis. There were many areas of atheroma in his coronary arteries and brain. He was therefore more likely to suffer a heart attack than a person without such a history and atheroma.

1. The heart attack and death were caused by a coronary occlusion in the terminal portion of the left coronary artery which was completely occluded by atheroma (atheromatous plaque) and blood clot.

1. There was little difference in opinion between the medical witnesses, Dr Gibbs for the plaintiff and Dr Freeman for the defendant. Where there was a difference I preferred the evidence of Dr Freeman. He appeared more positive, precise and knowledgeable. They both agreed that the occlusion occurred in a main artery at a point where there was atheroma, a blood clot at that point causing a complete blockage. Although Dr Gibbs accepted that the clot might simply have developed at that point, he considered that if that was so there would have been a gradual narrowing of the artery and the deceased would have noticed symptoms prior to the attack. There was no evidence that the deceased did so. Dr Gibbs therefore favoured the conclusion that the clot developed elsewhere and then flowed in the bloodstream to the point where the artery was narrower because of atheroma and lodged there. On the other hand, Dr Freeman considered it more likely that the clot developed at the place of the occlusion. His opinion was that a travelling clot, that is to say an embolus, is extremely rare in the coronary artery system and does not occur as a result of coronary artery disease. He said that a coronary occlusion usually occurs at the site of atheromatous plaque for two reasons. Firstly, the atheromatous plaque narrows the artery and disturbs the blood flow, making a blockage more likely. Secondly, changes in the wall of the artery occur at that point, with vaso–active substances being released which by their nature cause a clot. For clotting to occur there must be damage to the endothelium. That damage triggers an amorphous sponge–like network of fibrin, containing in its meshes substances extracted from the blood as it flows past, such as cells and platelets. Clots classically occur at the site of atheromatous plaque, he said. Whichever opinion is accepted does not seem to matter. Neither counsel submitted it did.

1. Both doctors agreed that death resulted from the occlusion. Blood was prevented from flowing to a part of the heart and because that part became starved of oxygen provided by the blood, it ceased to function. Ventricular fibrillation probably occurred. This means that the co–ordinated action of the heart was lost. For the heart to operate as a pump, electrical impulses must be transmitted through it in a particular way to cause the ventricles to contract and pump blood. The occlusion caused the synchrony of the impulses to be lost. Instead of beating normally, the heart became subject to irregular twitching or fluttering. Blood would not have been expelled from the heart and brain death would have occurred within three minutes. Dr Gibbs thought it possible that death followed the occlusion without ventricular fibrillation. I do not see that it matters. The occlusion prevented blood flowing to part of the heart. The heart was thereby prevented from operating normally. Death resulted.

1. On this evidence, counsel for the defendant submitted that death arose only from the natural progression of a morbid condition and not from personal injury by accident. I hold that is correct. I find myself constrained to so hold by judgments of the High Court in The Commonwealth v Hornsby (1960) 103 CLR 588 and by two previous cases in this court. Hornsby concerned the provisions of the Commonwealth Employees' Compensation Act 1930–1956 (Cth) and I am mindful of the submissions made by counsel for the plaintiff that considerable care should be undertaken when scrutinizing the judgments of courts interpreting different legislation. By s4(1) of that legislation "injury" was defined as meaning "any physical or mental injury...." whereas there is no definition in the Act of 1927 being interpreted by me. In the Commonwealth legislation "disease" was defined as including "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development....". By the Act of this State only certain specified diseases and conditions are included within the meaning of the word. By s9(1) of the Commonwealth legislation liability was established if there was "personal injury by accident arising out of or in the course of his employment". By s9A(1)(a) liability was extended to a case where "personal injury by accident is caused to an employee while he is travelling to or from .... his place of employment ....". By s10 it was provided that where an employee was suffering from a disease and was thereby incapacitated for work, or his death was caused by a disease, "and the disease is due to the nature of the employment" liability attached. The Workers' Compensation Act 1927 s5(3A)(d) is similar in effect to s9A(1)(a) of the Commonwealth legislation. There is no precise equivalent in this State to s10 of the Commonwealth legislation although by s5(1) liability attaches if the employee "is disabled or dies as a result of a disease, arising out of and in the course of the employment".

1. In Kavanagh v The Commonwealth (1960) 103 CLR 547 the High Court considered the same legislation in a case where a Commonwealth employee, whilst in the course of performing his duties at his place of work, felt ill for reasons unassociated with his work and vomited, the sudden and unexpected force of which ruptured his oesophagus. As a result of that rupture he died six days later. His widow sought workers compensation and was successful. All five judges were of the opinion that what occurred was an "injury by accident" and three of them considered that it arose in the course of the employment. The two dissenting justices were of the opinion that the injury by accident did not arise either out of or in the course of the employment.

1. On the same day as the court delivered its judgment in Kavanagh the court, constituted by the same five judges, also delivered judgment in The Commonwealth v Hornsby (supra). In that case the worker was travelling on a tram from his home to his place of work when he developed a right–sided paralysis of the arm and leg due to a cerebral vascular accident, a stroke in common parlance. He had not experienced any previous symptoms of arterial degeneration. It was found that the stroke was due to a thrombus which had formed in an atheromatous cerebral vessel. There was medical evidence that the cerebral vessels had been affected by atheroma for some time and that the concurrent existence of atheroma in those vessels and hypertension was a cogent predisposing influence in the formation and development of the thrombus. Four of the five judges held that the stroke was a result solely of the natural progression of a pre–existing morbid condition and did not constitute "injury by accident" within the meaning of s9A of the Commonwealth legislation. Two of the majority, Dixon CJ and Windeyer J, were of the opinion that there was no need for there to be established that the injury was occasioned by the journey to work or its incidents and that the words "while he is travelling" in s9A(1)(a) involved a purely temporal relationship between the injury and the travelling.

1. Dixon CJ at p593 said that if it had been possible to attribute the development of the thrombosis, the consequent ischaemia and the resulting paralysis to the travelling or any incident or concomitant of the journey it would doubtless have been easy to isolate it as an accidental injury. But the physiological disaster which occurred to the plaintiff in that case was not in any degree attributable to the journey. At p594 Dixon CJ said:

"My opinion has fluctuated upon the question whether these factors are enough to make it right to characterize the event as injury by accident within the meaning that has been attached to that expression. But after full consideration I have reached the conclusion that the processes leading to Hornsby's "injury, cannot be regarded otherwise than as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus. It too closely resembles physiologically and pathologically the course and incidents of the occlusion of an atheromatous sclerotic coronary artery and its consequences. Upon that we have passed judgment in The Commonwealth v Mackey, unreported 19/10/1959, following or rather applying, Ockenden's Case (1958) 99 CLR 215. I therefore think that the conclusion reached by Judge Moore cannot be upheld."

Dixon CJ came to his conclusion after referring to s9 and s10 of the Commonwealth legislation and concluding that there was no sufficient ground for excluding from the operation of s9 what would otherwise be an injury by accident simply because it was the outcome or the attendant consequence of disease or of physiological degeneration or deterioration.

1. Fullagar J made no reference to s10. He said, at p596, that the cases which require consideration in this connection fall into three classes. First there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. The contraction of anthrax and tuberculosis in this way were, he said, examples of injury by accident and he cited authorities. Second, there are cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus, and his Honour referred to Clover, Clayton & Co Ltd v Hughes [1910] AC 242 and Kavanagh v The Commonwealth (supra). The breaking of an artery cannot be distinguished from the breaking of a leg. Fullagar J then referred to the third case, which was the one he held he was considering. At pp596 and 597 he said:

"Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre–existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a 'sudden physiological change'. Examples are found in Hetherington's Case (1939) 62 CLR 317 (coronary occlusion) and Sharpe's Case (1955) AC 1 (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged.

In all these cases it is to be remembered that the question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose out of or in the course of the relevant employment. The questions have not always been kept distinct, and I am not quite sure that we kept them distinct at all points in Ockenden's case (1958) 99 CLR 215.

Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre–disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled.

Cases of the first and third classes are, of course, cases of disease. The present case does not fall within the first class, but does fall within the third. With regard to this class of case, and so far as statutes framed as is the Commonwealth Act are concerned, the rule to be applied is now, I think, well established. It may be stated, for present purposes, in terms limited to heart cases. If, as in Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210; 61 WN 83 the arterial disease and the thrombosis or other occlusion in which it culminated were 'autogenous', and no particular incident or activity of the worker accelerated or contributed to the occlusion, it cannot be said that there was any personal injury by accident. If, on the other hand, as in Hetherington's Case (supra) (where the worker had just walked up a steep slope) it can be found, and is found, that some particular incident or activity of the worker did contribute to or accelerate the occlusion, then the worker must be held to have suffered personal injury by accident. When this position is reached, a further question may or may not arise as to whether the particular incident or activity was in the course of the worker's employment."

1. Taylor J was also of opinion that there had been no "injury by accident". He distinguished the decision of the Judicial Committee in James Patrick & Co Pty Ltd v Sharpe (supra) on the ground that in that case the Victorian legislation being considered had particular definitions of "injury" and "disease".

1. Windeyer J thought that the stroke was undoubtedly an injury caused by some physiological occurrence but it was not "injury by accident", which expression he said must be "interpreted according to the meaning of words in ordinary popular language" (at p607). He continued at p608:

"Whether a particular occurrence involves a distinct physiological change may be an important and decisive inquiry in some cases. But a distinct physiological change is not itself an expression of clear and definite meaning. It is, with advancing medical knowledge, capable of debatable refinement. It is certainly not a synonym for injury by accident according to the meaning of words in ordinary popular language. If it were, any sudden and unexpected illness accompanied by an abnormal temperature – which might I assume be, or betoken, a physiological change – would be an injury by accident. The sudden onset of acute appendicitis would be an injury by accident. And so would every sudden death, for death surely involves a distinct physiological change."

1. He concluded that an injury or incapacity that is an ordinary result of the progress of a disease according to its ordinary course was not an accident.

1. I turn to decisions of this court. In Cassidy v Transport Commission unreported 38/1962, Cox J had to consider the case of a guard on a train found dead in the guards van. There was no dispute that he died in the course of his employment and that he died of heart failure. The deeming provisions of s5(3A) applied to the case. Cox J, carefully considered the evidence and authorities and found for the deceased's widow and children because the heart attack and death were in part caused by the exertions to which the deceased had been subjected shortly before his death. If his Honour had not been able to conclude this as a fact, but had been left with simply the natural progression of a pre–existing morbid condition, without it being established that some exertion precipitated the heart attack, he clearly would have found for the defendant.

1. In Stewart v Cornwall Coal Company No Liability unreported 6/1969, Crawford J considered a claim by a widow for workers compensation arising out of the death of her husband as a result of a heart attack while he was at his place of employment. The deeming provision of s5(3A)(a) applied and the only question for his Honour to decide was whether the deceased suffered personal injury by accident. On the evidence Crawford J was not persuaded, on the balance of probabilities, that any particular exertion precipitated the heart attack and accordingly there was no injury by accident. Authorities referred to by Crawford J included Kavanagh and Hornsby and he held that the law expressed in the judgments of the High Court in Hornsby applied. He emphasised that the onus of proof was on the plaintiff to establish her case on the balance of probabilities and said at pp10 and 11, that if:

"it is as equally probable as not that the deceased died as an event in the inevitable progress of his degenerative heart disease as explained in Hornsby's case (supra) she has not established her case ...... It being improbable that any activity or other matter which occurred that morning had any bearing on his death, I find that it is at least as probable as not that he died as a result of the normal progression of his disease ...... This is a case where the plaintiff has not been able on the probabilities to establish that her husband's death was more probably than not caused by injury by accident."

The only other relevant case in this court of which I am aware is that of Riley v State Fire Commission unreported 75/1984. In that case the worker, when at his place of work in circumstances where the deeming provision of s5(3A)(a) applied, felt pains in the left side of his chest. He was taken to hospital. The diagnosis was anterior myocardial infarction which Brettingham–Moore J said was the death of a heart muscle resulting from an obstruction of the coronary artery. His Honour was not satisfied on the balance of probabilities that any particular activity or exertion at work caused or contributed to the myocardial infarction. He held that there was personal injury by accident. The worker was disabled as a result and was entitled to workers compensation. The worker had, three years earlier, suffered chest pain which possibly indicated a subendocardial inferior infarct. His Honour said at p4 of his judgment that the injury "was a sudden event which has not been proved, on a balance of probabilities, to have resulted from the plaintiff's past history". Taking into account that the plaintiff bore the onus of proof, which was stressed by Crawford J in Stewart v Cornwall Coal Company No Liability, the significance of this statement is difficult to understand. With respect I feel that his Honour slipped into error. He did not explain what the legal result would have been if such a matter had been proved.

1. Brettingham–Moore J based his finding that the plaintiff suffered personal injury by accident on dictionary meanings of "injury" and "accident". He said that neither word was defined in the Act, that they are common words and their ordinary meanings ought to be applied. The meanings he extracted from the Shorter Oxford English Dictionary were for "injury" hurt, loss, harm, detriment or damage and for "accident", an unforseen contingency, something which occurs by chance, anything that happens. I comment that care should be taken when applying dictionary meanings of individual words contained in a phrase. This point was made by Mason J, in Hope v Bathurst City Council (1980) 144 CLR 1 at 8 when, in considering the meaning of the statutory expression "carrying on a business" he said he was concerned with the popular meaning of the word "business" as used in that expression rather than the popular meaning of the word itself.

1. Brettingham–Moore J said that there was no doubt that the plaintiff suffered an injury. The heart did suffer hurt, loss, harm, detriment and damage. The injury, he held, was accidental. He said at p4: "It was not intended. It was not planned. It was not expected." He referred to Kavanagh v The Commonwealth (supra) for the proposition that there may be injury by accident without being attributable to any external agency if it results from some force or pressure exerted from within the body. He distinguished The Commonwealth v Hornsby (supra) upon the basis that in that case the stroke was held to be the result solely of the natural progression of a pre–existing morbid condition and not to constitute "injury by accident".

1. It is my opinion that I should apply the majority judgments in the High Court in The Commonwealth v Hornsby. I also consider that the approach of Cox J in Cassidy v Transport Commission and Crawford J in Stewart v Cornwall Coal Company No Liability was the correct one and should be followed. With respect I consider that Brettingham–Moore J in Riley v State Fire Commission was in error.

1. Toohey J stated what he considered were the principles emerging from the authorities in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41 at pp43–4. I conclude by citing part of what he said:

"4        Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of an aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body: Clover, Clayton & Co Ltd v Hughes and Kavanagh v Commonwealth (1960) 103 CLR 547.

5         Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre–disposing physical condition. The employer must take the worker as he finds him: Commonwealth v Hornsby at p597 per Fullagar J

....

7         Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre–existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident: Commonwealth v Hornsby at p597 per Fullagar J"

1. For the reasons I have expressed I hold that it has not been established by the evidence on the balance of probabilities that the deceased suffered an injury by accident. There will therefore be judgment for the defendant.