Pasminco Australia Limited v Fairchild
[1990] TASSC 61
•9 October 1990
Serial No 59/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Pasminco Australia Limited v Fairchild [1990] TASSC 61; A59/1990
PARTIES: PASMINCO AUSTRALIA LIMITED
v
FAIRCHILD, Howard John
FILE NO/S: LCA 17/1990
DELIVERED ON: 9 October 1990
JUDGMENT OF: Zeeman J
Judgment Number: A59/1990
Number of paragraphs: 23
Serial No 59/1990
List "A"
File No LCA 17/1990
PASMINCO AUSTRALIA LIMITED v HOWARD JOHN FAIRCHILD
REASONS FOR JUDGMENT ZEEMAN J
9 October 1990
This is an appeal from the workers compensation division of a court of requests pursuant to s63 of the Workers Compensation Act 1988.
The learned commissioner who dealt with this matter determined that the respondent was entitled to weekly payments of compensation in respect of a period of total disability whilst the respondent was suffering from tinea. His Honour did not make any final determination as to the amount to which the respondent was entitled, leaving it to the parties to settle the amount of compensation due in accordance with his reasons and reserving leave to refer the matter back to him in default of agreement. Having regard to the wide terms of s63(1) it appears that the appeal is competent and it was not otherwise submitted to me.
The learned commissioner did not make express findings of fact as to all relevant matters, but it appears from the written reasons for his determination that he either expressly or impliedly made the following findings of fact:
1The respondent was a labourer in a zinc production plant operated by the appellant.
2A medical practitioner examined the respondent on 10 December 1989, found him to be suffering from tinea of both feet and certified him as being unfit for work and prescribed treatment which was successful.
3The respondent was wholly incapacitated from working as a result of his condition for a period of about ten days.
4It was not possible to find that the respondent contracted tinea at work.
5Whilst engaged in his employment with the appellant, the respondent was required to work in wet conditions which caused his feet to sweat, aggravating the tinea to the degree that the respondent became wholly incapacitated from working.
Upon the basis of those findings of fact, the learned commissioner held that the respondent was entitled to be paid weekly compensation in respect of the period of incapacity upon the basis that the respondent suffered an injury, namely a disease. The basis for that conclusion appears from the following portion of his Honour's reasons:
"Although the words aggravation, exacerbation and recurrence have been omitted from the definition of the word disease in the new Act, I think that the concept of disease in the new Act includes the aggravation of a pre–existing disease. It must always be shown, of course, that the disease arose out of the employment and was substantially contributed to by the employment."
In making those observations, the learned commissioner no doubt had in mind the definition of "disease" in s3(1) of the Workers' Compensation Act 1927 which defined that word as including "the aggravation, acceleration, or recurrence" thereof. No similar words appear in the Workers Compensation Act 1988. Whilst the notice of appeal set forth three different grounds alleging particular errors of law on the part of the learned commissioner, essentially all those grounds, directly or indirectly, seek to impugn the learned commissioner's conclusion that the aggravation of a pre–existing disease is encompassed within the concept of disease as that term is defined in the Act.
The liability to pay compensation is created by s25(1) of the Act, which is in the following terms:
"25–(1) If in any employment –
(a)a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or
(b)a worker suffers an injury, which is a disease, arising out of and in the course of his employment to which his employment contributed to a substantial degree,
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –
(c)to the worker; or
(d)if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."
That provision needs to be read in conjunction with the following provisions contained in s3:
"3–(1) In this Act, unless the contrary intention appears –
...
'disease' means any ailment, disorder, defect, or morbid condition, whether of a sudden or gradual development;
...
'injury' includes a disease;
...
(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred –
(a)on the day on which the worker became totally or partially incapacitated by reason of that injury; or
(b)if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury.
...".
It will be observed from these provisions that the test for determining an employer's liability to pay compensation differs depending on whether the injury is a disease or is not a disease.
In The Electrolytic Zinc Company of Australasia Limited v Maister Serial No 23/1990 at p13 ([1990] Tas R 91), Underwood J observed that "It is apparent that many 'conditions' may be both an injury and a disease as defined". As defined, all diseases are encompassed within the word "injury". It follows that any condition which is a disease is by definition an injury. If his Honour was intending to convey that many conditions which fall within the definition of "disease" would fall within the meaning of "injury", even if that word were not defined by the Act as including "disease", then I would respectfully agree. The word "injury" is not itself defined, but is merely given an extended meaning. It must also be given its ordinary meaning as indicating harm, detriment or damage. In that sense, it might be argued that any injury would necessarily fall within the definition of "disease". If such an argument were to be correct, it would make nonsense of s25(1) in that no worker could ever become entitled to compensation under para(a) of that subsection. One ought to assume that the legislature was intending to create two categories of injury, each of them compensable but with the question of the entitlement to compensation being determined according to different tests.
The proper construction of s25 was addressed in The Electrolytic Zinc Company of Australasia Limited v Maister (supra) in the following terms (at p22):
"It may be that there are many 'conditions' which would ordinarily be described as injuries but which would also be diseases within the meaning of the Act. In such cases a right to compensation would only arise under s25(1)(b), as s25(1)(a) confers a right only with respect to an injury not being a disease. It seems to me that those are the plain words of the Act. This is a significant matter because:
(i)in the case of an injury which is a disease the right to compensation is dependent on proof that the employment contributed to the injury to a substantial degree.
(ii)in the case of an injury which is a disease, the injury only occurs on the notional date prescribed by s3(5) or (6).
(iii)no liability to pay a lump sum referred to in s71 arises until after the injury has occurred in accordance with s3(5) or (6).
(iv)the evidentiary provision, s25(5) applies only to injuries, not being a disease.
(v)the evidentiary provision, s26(1) is limited in its scope having regard to the extended meaning given the word disease by s3(1).
Whether the foregoing was intended I doubt, but it seems to me that the words of s25(1)(a) are so clear as to admit to no other construction. The compensable event is there described as 'an injury, not being a disease', as defined by s3(1). If the injury suffered comes within the definition of disease, a right to compensation can only arise under s25(1)(b).
However, further examination of this problem is unnecessary to determine the present matter."
The circumstances which fall for consideration in this appeal do require further examination of this problem. Were it not for the words "not being a disease" appearing in s25(1)(a) there would be little difficulty in bringing the respondent's claim within that paragraph. The disabling event as distinct from the condition generally could be categorised as being an injury. The disabling event could be categorised as arising out of and in the course of the respondent's employment in that it arose out of, and was activated by, the wet conditions in which the respondent was required to work. However, the additional words appearing in s25(1)(a) must be given their proper meaning. Counsel for the appellant has argued that a proper construction of the Act in its application to the facts of the present case results in the following conclusions:
(a)Tinea is a disease within the meaning of the Act.
(b)The respondent sought weekly payments of compensation during the period of his disability resulting from the tinea from which he was suffering.
(c)The injury suffered by the respondent was therefore a disease.
(d)It followed that the respondent did not fall within s25(1)(a).
(e)As the learned commissioner did not find and could not have found that the disease of tinea was contracted by the respondent in the course of his employment with the appellant, the respondent did not fall within s25(1)(b).
(f)It followed that the respondent was not entitled to weekly compensation.
If it is correct to categorise the injury suffered by the respondent as being a disease, it would lead to the peculiar result that although the respondent was incapacitated from working and that incapacity would not have arisen had it not been for certain aspects of his working conditions, he would not be entitled to compensation. A further peculiar result would be that the adoption of the appellant's argument would leave little, if any, scope for the possibility of a worker falling within s25(1)(a). In my view the argument is fallacious. The difficulties arise out of Parliament's desire to make injuries which are not diseases and injuries which are diseases mutually exclusive for the apparent purpose of applying different bases for entitlement and different evidentiary provisions. The distinction is entirely artificial, particularly having regard to the broad meaning attributed to the word disease by s3(1).
The disease from which the respondent was suffering was tinea. One cannot consider various stages or various levels of seriousness of that condition as constituting separate or distinct diseases. Both counsel relied on the decision of the High Court in Darling Island Stevedoring and Lighterage Company Limited v Hussey (1959) 102 CLR 482. That case was concerned with the construction of s6(1) of the Workers' Compensation Act 1926–1951 (NSW) which, inter alia, defined "injury" as meaning "personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor ...". The respondent to the appeal, who was the applicant for the payment of compensation in respect of the death of her husband, had been successful before the Workers' compensation commission. The deceased had been a casual watchman suffering from a progressive heart disease. He collapsed and died from a coronary occlusion just after he had arrived at a pick–up centre for the purpose of seeking employment. The Act deemed injury received between a worker's place of abode and a place of pick–up to be one in respect of which compensation was payable if injury occurred. In that case, at p505, Fullagar J said:
"If it were permissible to ignore that part of the definition of 'injury' which deals with diseases, it would be permissible to say that the physiological event of the blocking of an artery, if some exertion on the part of the worker had contributed to it, was within an artificial but established meaning of the term 'injury'. This is what was done in Peart's Case; (1947) 75 CLR 242. But since Slazengers' Case [1951] AC 13, it is no longer permissible to reason in this way, and Peart's Case must, in my opinion, be regarded as overruled. A case where the immediate cause of death is a coronary occlusion is unquestionably a death from disease. It falls within the second part of the statutory definition, and compensation is not recoverable unless the disease which culminates in the coronary occlusion fulfils the conditions of that part of the definition. Those conditions are not fulfilled in the present case. Slazengers' Case means, in effect, that we must read the relevant part of the definition as if the word 'journey' were substituted for the word 'employment'. But the relevant disease was not contracted in the course of the journey, nor did the journey contribute to the contracting of it.
Cases of coronary occlusion may perhaps be regarded as possession peculiar features. But in those cases it is wrong, in my opinion to regard the coronary occlusion as itself the relevant 'disease'. The disease is the atheroma or sclerosis or other morbid cardiac or vascular condition which culminated in the occlusion."
At p509, Kitto J said:
"The appeal must depend on the question whether the disease which so affected the deceased's heart that it could not respond to the moderate demand which the journey made upon it falls within the second part of the definition of injury as applied to the facts of this case, that is to say whether it was contracted on the journey to the place of pick–up and was contributed to by that journey. The only possible way of putting the case so that an answer favourable to the respondent should be given is to say, first, that the progress of the disease from its inception to its fatal issue involved a contracting of it at every stage that it reached, including the most advanced stage that it reached during the journey, and, secondly, that the exertion of the journey contributed to its progress to that stage."
His Honour went on to conclude that each of those propositions was untenable.
At p520, Windeyer J said:
"And statements about distinct physiological changes often tend to a misconception, because they may mean only that the man concerned has begun to die. Furthermore an existing infirmity, or an increase in its incapacitating effect, may become apparent if upon exertion the limit of bodily tolerance is reached sooner than theretofore. This is the consequence of an existing condition, not the onset of a new malady. It is manifestation not causation, revelation not genesis. Some relationship between the occurrence of death and whatever effort or activity, great or small, immediately preceded it may nearly always be postulated when a man succumbs because some organ has from infirmity due to advancing disease or decay proved at least unequal to the task of further sustaining bodily effort; and it may in one sense be proper to speak of a causal relationship. But it is not I think in this sense that exertion can properly be spoken of as accelerating death or as a contributing factor. It may often be true that if a man doomed or dying had not done this or that, he might not have died exactly when he did; he might have lived a little longer, perhaps some hours, perhaps minutes, perhaps seconds longer. But the Act is not concerned with the abbreviation of life by seconds, minutes or even hours. It is concerned with death or incapacity whereby a worker or his dependents suffer because he cannot continue at work. To say that a man died from exertion simply because he might not have died had he remained at rest doing nothing at all is only to say that he was already incapable of the exertion of work."
At first blush those dicta might be considered as supporting the appellant's submissions. However later cases suggest that that case ought to be limited in its application to injuries only within the artificial meaning of that term, as referred to by Fullager J These difficulties were further considered by the High Court in the Darling Island Stevedoring and Lighterage Company Limited v Hankinson (1967) 117 CLR 19, which case was also concerned with s6(1) of the New South Wales Act. However, prior to the commencement of the period of disability the subject of that case, that section had been amended and included the following:
"6 — (1) 'Injury' means personal injury arising out of or in the course of employment, and includes –
(a)a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and
(b)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation, or deterioration;
...".
In that case, the respondent worker was a person who, for a considerable time, had been suffering from an infection which had partially destroyed some of his spinal structures. Whilst lifting a heavy package at work, one or two of the infected vertebral bodies in the accused's back collapsed. That collapse resulted in immediate acute pain followed by a deterioration in the respondent's condition over the ensuing fortnight until he became paralysed. The Workers' Compensation Commission held that the respondent had suffered at work an aggravation, acceleration, exacerbation and deterioration of the pre–existing disease as a result of which he was totally incapacitated. The majority in the High Court did not adopt that view, but held that the collapse of the vertebrae constituted an injury in the ordinary sense of the word and that the respondent was entitled to an award of compensation on that basis.
At p28, Barwick CJ said:
"... the evidence in the case does not support the view that the injury to the respondent was an aggravation, acceleration, exacerbation or deterioration of a disease. As I have already indicated that acceleration, in my opinion, on the facts was a consequence of the injury but not the injury itself."
A similar view was expressed by Taylor J at p31, with whom Kitto J concurred.
Under the present Act the liability of an employer to pay compensation arises when a worker "suffers" an injury. The verb "suffers" is used in its transitive form to determine the point in time when the rights and liabilities on the part of both employer and employee become vested. For that proposition, I adopt the reasoning of Underwood J in The Electrolytic Zinc Company of Australasia Limited v Maister (supra) at pp7 – 9. The provisions of s3(5) have the effect of fixing the day upon which an injury shall be deemed to have occurred, ie suffered by the worker. The purpose of that subsection is not to create any separate liability, but rather to provide a day upon which the rights and liabilities as between employer and employee become vested. The respondent suffered an exacerbation of the disease of tinea. However, that exacerbation was a consequence of an injury. The injury consisted of warm liquid coming into contact with the respondent's rubber boots causing perspiration. That injury had as its consequence, an exacerbation of the disease of tinea. The injury suffered was not in itself a disease. It fell within s25(1)(a) of the Act. I consider that view to be consistent with the authorities to which I have referred, and with the review of those authorities by Gibbs CJ (expressing the view of the majority of the court) in Hockey v Yelland (1984) 157 CLR 124, at pp132 – 137 and with his Honour's view, expressed at p137, that "a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment."
It follows that the learned commissioner was wrong in holding that the respondent was entitled to compensation upon the basis that he suffered an injury being the aggravation of a pre–existing disease. I do not consider his Honour's view that the concept of disease contained in the Act is one which includes the aggravation of a pre–existing disease to be correct. An aggravation of a disease cannot be said to be a disease which arises out of and in the course of a worker's employment. However, where an event which results in there being an aggravation of a pre–existing disease itself constitutes an injury in the ordinary meaning of that word, then a liability to compensation may arise under s25(1)(a).
Whilst the learned commissioner fell into error, the would have arrived at the same conclusion as to the respondent's entitlement had he applied the correct principles. The respondent fell within s25(1)(a). He did suffer from a period of total incapacity for work resulting from the injury. He otherwise became entitled to compensation under s69 of the Act.
It follows that the appeal is dismissed.
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