Morgan, Kathleen Mary v Commonwealth

[1984] FCA 395

Re: KATHLEEN MARY MORGAN
And: COMMONWEALTH OF AUSTRALIA
No. VG198 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
McGregor J.
Fisher J.

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Compensation (Commonwealth Government Employees) Act 1971 - Death of employee - Cause certified as carcinoma of the lung - Certain events occurring three months before death - Whether those events caused aggravated or accelerated death - Tribunal's approach to resolution of factual and medical issues - Whether dicta in Adelaide Stevedoring Co. Ltd. v. Forst (1940) 64 C.L.R. 538 were a statement of legal principle - No error of law.

HEARING

MELBOURNE

#DATE 22:11:1984

ORDER

The appeal is dismissed

The applicant is to pay the respondent's costs.

JUDGE1

KATHLEEN MARY MORGAN (applicant) widow of JOHN FREDERICK MORGAN (the deceased) who died on 23 July 1981 at the age of 47 has appealed against the decision given by the Administrative Appeals Tribunal (the Tribunal) in an application for review of a decision of the Delegate of the Commissioner for Employees Compensation expressed as follows -

"The Department of Housing and Construction therefore is not liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971, in respect of the death of the said John Frederick Morgan and the claim for compensation of the said Kathleen Mary Morgan is therefore disallowed."

1. THE COMMONWEALTH OF AUSTRALIA (respondent) is joined as a respondent.

2. It appears from facts not contested that from March 1970 until the date of his death, the deceased was employed by the respondent in the Department of Housing and Construction (the Department). At that time he was an acting Technical Officer Grade 1. Following an incident on the 2 April 1981, to be referred to later, the deceased was from 22 April 1981 certified unfit for work. On 11 June 1981 the deceased submitted a claim under the Compensation (Commonwealth Government Employees) Act 1971 (the Act) for compensation for chest strain and nervous condition caused by the incident on 2 April 1981. That claim had not been dealt with at the time of his death which occurred on 23 July 1981. The cause of his death was certified as carcinoma of the lung. On 29 September 1982, the applicant claimed compensation under the Act in respect of that death. On 8 December 1982 a Delegate of the Commissioner for Employees' Compensation made the determination already quoted. The Tribunal in its judgment, initially orally, and later by way of a statement in writing as requested by the respondent, stated that the case raised two broad issues. These were as follows (numbers are ours) -
   
   

1. (i) Whether exposure of the deceased to asbestos dust caused, aggravated or accelerated his lung cancer.

(ii) Whether exposure to any other dust had or might have had a similar effect.

2. Whether events which occurred on 2 April 1981 aggravated or accelerated, in either or both of the ways mentioned below, his lung cancer or any other condition so that death occurred significantly earlier than it might otherwise have done;

(i) as a result of depression of his immune response system;

(ii) the possibility that he suffered a physical trauma which caused acceleration of the growth of the tumour.

1. The Tribunal referred first of all to the exposure on one occasion in 1975 or 1976 to asbestos dust. It appears from the evidence that this had been no more than half an hour although there might also have been some asbestos dust blown towards the deceased by wind. The Tribunal noted that the area where this occurred was in the open air and that there was no concentration of asbestos or dust containing asbestos fibres. It found that the exposure to asbestos dust was minimal. For reasons, including reliance on medical evidence to which it referred, it was of the view that the applicant had failed to establish her case on exposure to asbestos on the balance of probabilities.

2. As to exposure to other dust, the Tribunal accepted the evidence, given by all the medical witnesses except one, that dust does not have any carcinogenic effect if it is not asbestos dust or cadmium oxide dust. It then noted that there had been no suggestion that the deceased was ever exposed to cadmium oxide dust. It found that there was no acceptable evidence of a nexus between exposure to non-specific dust and cancer and concluded that the applicant's claim could not succeed on the basis that the deceased's exposure to dust contributed to causing the contraction, aggravation or acceleration of his cancer.

3. We turn now to the second issue. In this regard it is worth recording that the events of 2 April 1981 included that a fellow workman had been electrocuted, that the deceased had run some distance to obtain help, that on returning to the scene he felt "something like a tear in the centre of my chest". It was for this incident that, as noted above, he had, prior to his death, made a claim for compensation.

4. Counsel had referred in argument to the well known statement in Adelaide Stevedoring Co. Ltd. v. Forst (1940) 64 CLR 538 by Rich ACJ. (at p 563). In that case, where there were conflicting medical opinions, he said, referring to the conclusion on the facts of the Supreme Court of South Australia, that he did "not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology."

5. The Tribunal, after referring to that passage and to the sequence of events in the present case, said -
   
   

"In our view, therefore, those events would not naturally inspire in the mind of a common sense person uninstructed in the pathology of what the incident on 2 April caused, or could have caused, a presumptive inference that they accelerated the date of death and brought it forward significantly. So we have come to the conclusion that we should not start our investigation from the standpoint of any such presumptive inference."

1. The Tribunal then proceeded to consider the four possible traumas postulated by various witnesses. The first was that there might have been a myocardial infarction, though the Tribunal did not readily accept that such a happening could be described as "trauma". It noted that in all the medical reports and certificates there was no suggestion that a myocardial infarction had been discovered. The second so-called trauma was that the deceased "might have suffered a muscular spasm commonly called a stitch". Again the Tribunal rejected this as unlikely. The third suggestion was that the deceased might have suffered a pulling away of tumour tissue which had adhered to the pleura possibly causing a spread of cancer cells "into the pleural cavity and bloodstream and so to other parts of the body thus increasing the growth of the tumour". The Tribunal did not accept this suggestion. The fourth suggested trauma was that there might have been a pneumothorax. Again, it is clear from its reasons that the Tribunal did not accept this suggestion. It rejected the suggestions that there had been any "trauma". Further, the Tribunal noted that Dr. Milne, who considered that there was probably no trauma, was of the view that the tearing sensation was most likely due to emphysema of the deceased's lungs, consequentual upon his many years of heavy smoking. The Tribunal accepted his opinion and found that it was most likely that the pain had been suffered by reason of emphysema.

2. Finally, it considered whether the deceased's immune response system had been depressed because of the shock of the events of 2 April 1981 and the stress under which he remained during the rest of April and well into May 1981 and, if so, whether that accelerated his death. In this regard, after referring to the medical evidence, it said -
   
   

"Of the medical expert witnesses Dr. Minty was probably the best qualified to express an opinion on that matter; he has had 35 years' experience as a cancer specialist. We accept his opinion that during the last stages of cancer the immune response system has become practically non-existent as a result of the cancer. We are satisfied that any depression of Mr. Morgan's immune response system as a result of shock or stress increasing the cortisol level during the period between 2 April 1981 and his death would have been insignificant. The immune response system was by then already virtually non-existent. Consequently, the applicant's claim cannot succeed on the basis of acceleration of the date of his death by depression of the immune response system."

1. On the basis of these findings, the Tribunal found that there was no entitlement to compensation.

2. Before us, counsel for the applicant stated that although he did not formally abandon arguments presented to the Tribunal that the condition of the deceased might have been caused, aggravated or accelerated by dust, asbestos or otherwise, he conceded that the evidence on that point was "fairly much against the widow" and did not put any argument to us on that aspect. In our opinion the Tribunal was entitled on the evidence to reject any such contention.

3. However, counsel for the applicant relied heavily on the passage to which reference has already been made in the judgment of Rich A.C.J. in Forst's case. He submitted that statement established, as a matter of law, the right starting point in cases of this kind; that the Tribunal had commenced at the wrong starting point. Accordingly, the facts it described were "coloured by the incorrect starting point". He submitted that upon the evidence there must have been a depression of the deceased's immune response system; that, accordingly, must have either contributed to, aggravated or accelerated the death of the deceased. In so submitting, he elevated those words to a statement of principle to be observed in cases whenever the death of an employee occurs following an incident at work. In our opinion there is no justification for such an approach. We reject the submission. Rich A.C.J. was not speaking generally, but merely commending such an approach by the Full Court of South Australia on the facts of the case before it. On the materially different facts before it, it was open to the Tribunal to form the opinion that the events would not naturally have inspired in the mind of a common sense person, uninstructed in the pathology of what the incident on 2 April 1981 caused or could have caused, a presumptive inference that they accelerated the date of death. In our opinion the Tribunal did not err in law in concluding that it should not start its investigation from the standpoint of any such presumptive inference.

4. Section 44 of the Administrative Appeals Tribunal Act 1975 limits an appeal to a question of law. The Tribunal did not err in law. On the evidence it was entitled to arrive at the conclusion which has been quoted earlier.

5. A practice note of this Court provides that counsel in an appeal should provide a brief summary of his argument for presentation to the Court. We remind practitioners of the necessity to do this. In this particular case we have been assisted by having such a presentation on behalf of the respondent. We accept in substance the arguments there set out. Having been able to read them in advance, the time spent in hearing has thereby been shortened.

6. In view of our decision it has become unnecessary to hear argument on the question of dependency.

7. The appeal is dismissed with costs.