Tallon, Joanne Veronica v Commonwealth of Australia

[1981] FCA 100

Re: JOANNE VERONICA TALLON
And: COMMONWEALTH OF AUSTRALIA
No. VG37 of 1981
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Compensation - claim by executrix of deceased Commonwealth employee - appeal from decision of Compensation Tribunal on questions of law - requirement "to state questions of law" - desirability of specifying "disease" and "aggravation" - whether evidence to support findings of Tribunal - Compensation (Commonwealth Government Employees) Act 1971 s.5(11), s.29 - Federal Court Rules (S.R. 140 of 1979) Order 57 Rule 4(2)

HEARING

MELBOURNE

#DATE 9:7:1981

ORDER

1. The appeal be dismissed.

2. The decision of the Compensation Tribunal be affirmed.

JUDGE1

This is an appeal under the Compensation (Commonwealth Government Employees) Act 1971 (the Act) against a decision of the Commonwealth Employees Compensation Tribunal (the tribunal) given 10 February 1981, rejecting a claim by the appellant for compensation in respect of the death of Reginald Alfred Tallon (the deceased).

The deceased was employed by the Australian Telecommunications Commission (the commission) and had been employed for a period of 24 years in the service of the commission and its predecessor the Postmaster General's Department. On 4 March 1977 the deceased suffered a myocardial infarction (the first infarction). He returned to work on 23 April 1977, worked until 13 May 1977 and was retired from the service of the commission on 29 June 1977 on the recommendation of Dr Sullivan, a Commonwealth Medical Officer. He died on 2 October 1979 at the age of 67 years as a result of a further myocardial infarction (the second infarction) which was described by Dr Stubbe as being a massive one.

On 30 November 1978 it was determined by the Deputy Chief Delegate of the Commissioner for Employees' Compensation (the delegate) that the deceased's employment by the commission "on 4 March 1977 was a contributing factor to the aggravation of a developing myocardial infarction suffered by him (sub-section 29(1)) and that aggravation is deemed to be a personal injury . . . arising out of his employment (sub-section 29(2))". The delegate also determined:

"(c) any heart condition suffered by the said Reginald Alfred Tallon causing incapacity for work or necessitating medical treatment subsequent to 11 January 1978 is not the result of contribution by his employment to the contraction, aggravation, acceleration or recurrence of a disease;

(d) the Australian Telecommunications Commission is therefore not liable to pay compensation under the Act in respect of any heart condition suffered by the said Reginald Alfred Tallon causing incapacity for work or necessitating medical treatment subsequent to 11 January 1978."

Almost two years later, on 13 November 1980 the delegate made another determination rejecting a claim by the appellant, the widow of the deceased, in respect of his death.

Both of these determinations were referred to the tribunal for "reconsideration" under s.63 of the Act. The matters were heard together by consent, the reference by the deceased being amended to make it a reference by the appellant "as executrix of the deceased's will". Both at the hearing before the tribunal and in this court Mr Spittle of counsel appeared for the appellant and Mr Wheeler of counsel appeared for the respondent.

The notice of appeal, dated 6 March 1981, set out the grounds of the appeal as being:

"(a) Mr. J. O. Ballard misdirected himself in law in that he failed or failed properly to consider whether or not the employment of the deceased was a contributing factor to the contraction or aggravation or acceleration of hypertension, arterial and myocardial degeneration with the occurrence of a myocardial infarction at work on the 4th day of March, 1977, and subsequent heart failure and a further myocardial infarction resulting in death on the 2nd day of October, 1979.

(b) Further, or in the alternative, Mr. J.O. Ballard misdirected himself in law in that he failed or failed properly to consider whether or not the occurrence of the myocardial infarction at work on the 4th day of March, 1977, being accepted as an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 by a determination dated the 30th day of November, 1978, was a contributing factor to the contraction or aggravation or acceleration of hypertension, arterial and myocardial degeneration with the occurrence of subsequent heart failure and a further myocardial infarction resulting in death on the 2nd day of October, 1979.

(c) Further, or in the alternative, Mr. J.O. Ballard misdirected himself in law in that he failed or failed properly to consider whether or not the occurrence of the myocardial infarction at work on the 4th day of March, 1977, being accepted as an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 by a determination dated the 30th day of November, 1978, was a contributing factor to the later myocardial infarction resulting in death on the 2nd day of October, 1979.

(d) The evidence adduced before the Tribunal compelled the conclusion that the Appellant is entitled to receive compensation in respect of the deceased's death.

(e) The decision of the Tribunal was wrong or wrong in law."

A document headed "Particulars of grounds of appeal", in the following form, was filed on 26 June 1981:

"1. That the Compensation Tribunal misdirected itself in law in that it failed to answer the correct question required within the meaning of the Act by considering the work was a contributing factor in the death.

2. That having found as a fact that after the first infarction the deceased remained incapacitated for work the Compensation Tribunal erred in law in considering and deciding whether it necessarily followed from this that the work was a contributing factor to the death.

3. That having considered the question of whether the death from the second infarct resulted from the first infarct the Compensation Tribunal erred in law in failing to decide this question.

4. That having found as a fact that after the first infarction the deceased remained incapacitated for work the Compensation Tribunal erred in law on a proper consideration of the evidence in failing to find that the death from the second infarction resulted from the said first infarction.

5. That having found as a fact that after the first infarction the deceased remained incapacitated for work the Compensation Tribunal erred in law on a proper consideration of the evidence in failing to find that the said first infarction, being work caused, represented an aggravation or acceleration of a disease within the meaning of the Act, and thereby contributed to the death.

6. That the Compensation Tribunal erred in law in failing on a proper consideration of the evidence to find that the employment of the deceased was a contributing factor to the contraction or aggravation or acceleration of hypertension, arterial and myocardial degeneration with the occurrence of a myocardial infarction at work on the 4th day of March, 1977 and subsequent heart failure and a further myocardial infarction resulting in death on the 2nd day of October, 1979."

Particular 7, which sets out certain matters described by the appellant's counsel as "peripheral", will be set out later.

The wording of the grounds of appeal and of the particulars is such that an attempt was made to obtain clarification from Mr Spittle. However, he adhered to the wording of the grounds and the particulars although he conceded that the claim was not based in any way upon the "contraction" of any disease referred to in (a) and (b) of the grounds and in paragraph 6 of the particulars, nor upon the "recurrence" of a disease referred to in paragraphs 1(b) and 2(c) of the determination of the delegate on 30 November 1978 as varied by the tribunal's determination - upon which variation the appellant placed considerable reliance.

Order 57, r.4(1) of the Federal Court Rules, which deals with appeals to the court under the Act, provides that:

"In an appeal under this Order, the notice of appeal shall state the question or questions of law raised on the appeal."

In Commonwealth v. Johnston (1980) 31 A.L.R. 448 at p.460-461 Brennan J. referred to that sub-rule and said:

"The utility of that sub-rule was illustrated in the present case when it emerged at the very end of the argument that, if the court adopted a particular construction of the Act and a particular construction of the Tribunal's findings on an issue, the appellant would contend that there was no evidence to support the findings on that issue - a question of law to which scant attention had hitherto been paid in the course of the proceedings.

The relevant questions of law must be identified according to the findings of fact which the Tribunal made."

During the hearing of the appeal I made it clear that the form of the grounds and particulars was such as to make it very difficult to understand precisely what were the "questions of law raised on the appeal". However, the respondent declined to make any submissions or comment as to the form of the grounds and particulars.

In opening the appeal Mr Spittle said that:

"The case for the appellant widow was that the employment with the Commonwealth had been a contributing factor to the aggravation and acceleration of hypertension, arterial and myocardial degeneration and that that aggravation included the occurrence of a myocardial infarction on 4 March 1977 which was accepted by the delegate on 30 November 1978 determination and that that was a contributing factor to the further aggravation, acceleration and recurrence of the said disease and a contributing factor to the death by way of the second fatal myocardial infarction."

He contended that the tribunal misdirected itself because it misconceived the legal question involved and therefore the evidentiary and factual questions (see particular 1 - see also 2). He relied upon paragraph 14 of the tribunal's decision which included the following:

"I have found as a fact that after the first infarction the deceased remained incapacitated for work. It does not necessarily follow from this that the work was a contributing factor in the death."

He submitted that "that question or test, that the tribunal posed there, is quite wrong in law". I reject that argument because in my view the tribunal in that sentence, read in the context of the overall reasons for decision, was not posing a question or test. Having referred to its finding of fact that the deceased remained incapacitated after the first infarction, the tribunal was simply making a parenthetical remark - and a remark which was quite justifiable.

The appellant submitted that the tribunal should have acted on the view expressed in Commonwealth v. Johnston (supra at p.471) that:

"The Act confers rights to compensation where death results either from the disease or from the aggravation of the disease - provided that the employment by the Commonwealth was a contributing factor to the contraction of the disease in the one case or to its aggravation in the other."

It was submitted that the tribunal had erred in law in failing to consider the correct question which was whether death resulted from an aggravation of a disease to which the employment was a contributing factor (see ground (a) and particular 2). In my opinion the reasons of the tribunal show that it did answer the "correct question" and made a finding, in accordance with the evidence of Dr Kay, that the two myocardial infarctions on 4 March 1977 and 2 October 1979 "were in different parts of the heart" and also a finding that there was no relationship between the two infarctions. The latter finding was based on Dr Kay's evidence which relied upon the absence of "considerable cardiac failure" (as he said in evidence in chief) or "acute cardiac failure at that stage . . . the first stage" (as he said under cross examination).

Mr Spittle sought to rely upon the existence of cardiac failure. However, the tribunal was entitled to accept and in my view did accept the evidence of Dr Kay that the deceased had no sign of cardiac failure when examined by him in January 1978. There was also evidence that in June 1977 Dr Sullivan listed "all disabilities" of the deceased as being "arteriosclerosis and cerebral ischaemia" and made no reference to cardiac failure. Further, Dr Padmanabajn agreed that he "saw no specific evidence of heart failure" when he examined the deceased on 25 January 1979, i.e. nearly two years after the first infarction. It is true that there was evidence from the appellant that the deceased showed symptons which were consistent with cardiac failure, but that evidence did not say when those signs were observed and therefore is consistent with the development of cardiac failure at a time substantially removed from the first infarction and much closer to the time of the second infarction.

Under particular 3 the appellant contended that the tribunal failed to decide the question whether the death from the second infarction resulted from the first infarction. I reject that contention because in my view the tribunal made it clear that it accepted the evidence of Dr Kay that he "could see no relationship between" the two infarctions and the evidence justified its finding of fact that the death from the second infarction did not result from the first infarction.

Mr Spittle submitted under particular 4 that, "having found as a fact that after the first infarction the deceased remained incapacitated for work the Compensation Tribunal erred in law on a proper consideration of the evidence in failing to find that the death from the second infarction resulted from the said first infarction". Section 95 of the Act permits an "appeal on a question of law only" to this court from any decision of the tribunal. In my view as a matter of law it was open to the tribunal on the evidence before it to refuse to find that the death resulted from or was contributed to by the first infarction.

Under particular 4 (and also under particulars 2 and 5) Mr Spittle sought to found an argument upon the basis that the tribunal had "found as a fact that after the first infarction the deceased remained incapacitated for work". It is convenient to deal here with that aspect which is common to the three particulars and which is one of "the two basic questions of law" which Mr Spittle referred to in his reply. It is based upon paragraph 15 of the document which included (1) the decision of the tribunal; (2) the reasons for that decision; and (3) the variation by the tribunal of the delegate's determination.

Under s.84(2) of the Act the tribunal was required to "give reasons in writing for its decision and those reasons shall include its findings on material questions of fact". I accept Mr Wheeler's argument that paragraph 15 of that document does not purport to set out findings of fact by the tribunal and should not be treated as containing any finding of fact. On its face paragraph 15 does not form part of the tribunal's reasons for reaching its decision. It had already decided the case by saying, in paragraph 14 at the conclusion of its reasons, "Accordingly, the claimant's claim in respect of the death fails". The tribunal's "findings on material questions of fact" were, as required by s.84(2), included in the reasons for its decision which reasons precede the statement of the tribunal's decision that the "claim in respect of the death fails".

In my opinion, the words in paragraph 15 relied upon by the appellant do not form part of the reasons for decision or of the findings of fact made by the tribunal. They are part of the formal variation of the determination of the delegate. If, contrary to my view, they form part of the reasons then they must be read in the light of the reasons and the findings as a whole. Having regard to the vagueness and lack of definition and precision in the words "any heart condition" in paragraph 15, those words must be read down in the light of the tribunal's findings of fact in paragraph 14, which are based upon its acceptance of the evidence of Dr Kay.

In this connection, it must be borne in mind that the words in paragraph 15, setting out the formal variation of the determination upon which Mr Spittle seeks to rely, are not the words of the tribunal in the sense of being words chosen by the tribunal to express its determination. The tribunal in paragraph 15 has taken the words of the determination of the delegate of 30 November 1978 and altered certain words to give effect to its view, expressed in paragraph 8 of the decision, that the deceased "was never again fit to return to work and that this incapacity was contributed to by the work-related infarct". Having made the finding of fact that the incapacity, which continued until the deceased's death, "was contributed to by the work-related infarct" and that "accordingly, the claimant, as executrix . . . is entitled to compensation for total incapacity until the death" it became necessary for the tribunal to vary the determination of the delegate - which it did in paragraph 15.

The effect of the amendments made by the tribunal to paragraphs 1(b) and 2(c) of the delegate's determination of 30 November 1978 was as follows:

1. In paragraph 1(b) to delete the words "subsequent to 11 January 1978 is not" and to substitute the single word "is";

2. In paragraph 2(c) to delete the words "subsequent to 11 January 1978 is not" and to substitute the words "prior to his death was".

It is true that, in giving effect to its intended variation of the delegate's determination, the tribunal used the method of deleting the whole of paragraphs 1(b) and 2(c) of the delegate's determination of 30 November 1978 and substituting paragraphs which in fact consisted of those paragraphs as amended in the manner set out above. That is a well known method of varying or amending a document. It has the advantage of making the determination as varied easier to follow as it is not necessary to examine two documents in order to see where words have been inserted, omitted or substituted. The tribunal's findings of fact, based on its view of the evidence, cannot differ according to which method of drafting it used to give effect to its intended variation of the determination, i.e. to give effect to its findings including the passage I have quoted from paragraph 8 of the tribunal's reasons for decision.

In my view, on a fair reading of the tribunal's decision, it did not make a finding of fact, based upon the evidence before it, that "any heart condition suffered by the deceased causing incapacity for work . . . is the result of contribution by his employment to the contraction, aggravation, acceleration or recurrence of a disease" (paragraph 15). In any event, there are difficulties in reading the words literally as a finding of fact because of the use of the words "contraction" of a disease and "recurrence" of a disease - upon which words, as already pointed out, the claim for the appellant was not based and in respect of which there was no evidence to support such a finding. As I have said, the words used in paragraph 15 are not words chosen by the tribunal. They are the words used by the delegate. The words "any heart condition" - and in particular the word "any" - may have been appropriate to a determination rejecting the claim, as the delegate did, but were not appropriate for the tribunal's variation of the determination so as to grant the claim. A determination granting a claim should clearly specify the disease or diseases which has or have been aggravated and should avoid such a vague description as "any heart condition".

The tribunal stated that it had a "difficult task" and briefly referred to the conflicting evidence of the two medical specialists whom it had heard give evidence and be cross examined. On my view of the tribunal's decision as a whole, it is clear that it accepted the evidence of Dr Kay which included his evidence that the two infarctions were in different parts of the heart and his medical opinion that there was no relationship between the two infarctions. That evidence was based upon his view, to which I have already referred, that, where a person has had one infarction, then, in the absence of considerable cardiac failure at the first stage, the first infarction does not make it more likely that the person will suffer a second infarction.

I consider that some support for the view which I have expressed, namely, that the words in paragraph 15 do not constitute a finding of fact, appears from paragraph 16 of the tribunal's determination. It states that the "determination in this matter of 13th November 1980 is affirmed", (i.e. the determination of the delegate). It read as follows:

"DETERMINATION

1. On the evidence before me, I am unable to find that the death of the said Reginald Alfred Tallon on 2 October 1979 was a result of: -

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

(b) the contraction of a disease, or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sections 27 and 29 of that Act, I hereby determine: -

(a) the death of the said Reginald Alfred Tallon on 2 October 1979 was not the result of personal injury arising out of or in the course of his employment;

(b) the death of the said Reginald Alfred Tallon on 2 October 1979 was not the result of the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor;

(c) the claim for compensation of the said Joanne Veronica Tallon of 7 July 1980 is therefore disallowed.

(SGD.) R. J. DICKINSON
Delegate of the Commissioner
for Employees' Compensation."

It will be seen that the tribunal there affirmed under s.84(1) the determination of the delegate that the death of the deceased "was not the result of . . . the aggravation, acceleration . . . of a disease to which his employment was a contributing factor". In the course of his submissions, Mr Spittle placed great reliance on s.29. However, the delegate's determination so affirmed by the tribunal was expressly made "in pursuance of the provisions of the . . . Act including sections 27 and 29". Section 29, which was expressly referred to by the tribunal in paragraph 14, has effect where "(a) an employee . . . suffers an aggravation, acceleration . . . of a disease; and (b) any employment . . . by the Commonwealth was a contributing factor to the . . . aggravation, acceleration . . . " of the disease. In my opinion there is nothing to suggest that the tribunal failed to correctly apply s.29, to which both it and the delegate had referred.

The appellant also submitted that the court should not be satisfied that the tribunal considered the provisions of s.5(11)(a) of the Act which, so far as material, reads as follows:

"(11) For the purposes of this Act -

(a) the death . . . of an employee . . . shall be taken to have resulted . . . from a disease contracted by the employee or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the injury, the disease or the aggravatin, acceleration or recurrence, as the case may be, contributed to the death, . . . and . . . "

In this connection reliance was placed upon Delahunty v. The Commonwealth of Australia (judgment delivered 11 February 1981 - not yet reported). In that case a Full Court (Evatt, Northrop and Deane JJ.) held that it was probable that the judge whence the appeal came "did not intend to encompass the effect of the provisions of s.29 of the Act in the primary question which he formulated . . . did not address his mind to the essential question which arose for consideration . . . ". However, in that case the reasons of the court below themselves suggested that the court had considered the case on the basis of s.27 and had not considered s.29. Further, the Full Court said that it was not clear whether his Honour's "attention was ever directed to the provisions of s.29". I may add in passing that in that case it was not a court which dealt with such cases frequently whereas in the present case the tribunal is a specialist tribunal. It would be very surprising indeed if such a tribunal overlooked s.5(11). Further, the tribunal had the benefit of argument by counsel who regularly practice in that jurisdiction - the same counsel as those who appeared on this appeal and it was not suggested to me that they had both failed to mention s.5(11) to the tribunal.

What is more important, however, is that, apart from the absence of any express reference to s.5(11), there is nothing in the reasons for decision which leads me to conclude that the tribunal failed to consider and apply the provisions of s.5(11). However, the tribunal also did not refer to the definition of "disease" in s.5(1) but in my opinion that is no warrant for concluding that if failed to consider and apply the definition in s.5(1) of the word "disease". The tribunal is not obliged to refer to every section that is relevant to its decision in order to demonstrate that it gave consideration to it. Unless from a reading of the decision overall there is reason for thinking it probable that a section has been overlooked - as occurred in Delahunty's Case (supra) - this court should not infer such an error in the tribunal. It should not draw such an inference merely from the fact that there is no reference to a section. I am not prepared to reach that conclusion in this case.

Mr Spittle submitted that the variation by the tribunal of the determination of the delegate dated 30 November 1978 (i.e. as to payments of compensation because of incapacity to work), constituted a rejection of Dr Kay's evidence on that aspect and argued that there was an inconsistency in the tribunal's decision to accept Dr Kay's evidence as to the claim in respect of the death. I reject that submission. For the reasons given earlier, I do not consider that the tribunal made a "finding" that "any heart condition . . . causing incapacity . . . is the result of contribution by his employment . . . ". Its finding was simply that his "incapacity was contributed to by the work-related infarct" (see paragraph 8). In my opinion there is no inconsistency between a finding that incapacity for work immediately before the deceased's death "was contributed to by the work-related infarct" and a finding that there was "no relationship between the 1977 infarct and the 1979 infarct".

Mr Spittle contended that it is difficult to find any specific findings in the tribunal's decision supporting the dismissal of the claim in respect of the death and that any such findings are totally inadequate to justify the dismissal. I reject that argument. In my view the tribunal made a finding of fact that the two infarctions were in different parts of the heart and that there was no relationship between the two infarcts. Those findings were based on an acceptance of Dr Kay's evidence which it was open to the tribunal to accept notwithstanding Dr Stubbe's evidence. It cannot be said, in my opinion, that it is a finding "that no reasonable person, bona fide having regard to all the circumstances shown by the evidence", could reach - per Winneke C.J. Gowans and Gillard JJ. in Simons v. Herald and Weekly Times Ltd (1970) V.R. 131 at p.136. For the same reasons I reject ground (d) of the notice of appeal, namely that the evidence "compelled the conclusion that the Appellant is entitled to receive compensation in respect of the deceased's death".

Mr Spittle also submitted that the tribunal had rejected evidence given by Dr Kay that "there is no reason to suppose that that (coronary sclerosis) would be aggravated in any way by the work he was doing on that day (i.e. 4 March 1977). There is no way in which effort would cause any change in that artery". In my view the tribunal did not reject that part of Dr Kay's evidence; rather, it accepted his view, expressed on the same page of the transcript, that the fact that the deceased continued to work on that day "although he had done similar work before obviously without trouble, led to some degree of infarction". One of the difficulties in considering this appeal has been the failure of the appellant to be sufficiently precise in the use of terms, particularly in identifying the disease which has been aggravated. In my view the tribunal found as a fact that the work on 4 March 1977 "led to some degree of infarction" and that that degree of infarction contributed to the deceased's incapacity until his death. However, the tribunal did not find that that degree of infarction or the employment contributed to the death from the second infarction in a different part of the heart.

Accordingly, I do not accept Mr Spittle's submission that the tribunal rejected Dr Kay's evidence that the work being done on 4 March 1977 did not aggravate the underlying disease of coronary sclerosis. The appellant's case tended to treat coronary sclerosis, arteriosclerosis, myocardial infarction, myocardial degeneration and even hypertension as being all the one disease or, as it was put when questioned, "components of the one disease". There was also a tendency to fail to distinguish the disease from the aggravation of the disease.

In my view it was open to the tribunal to accept Dr Kay's evidence that the work on 4 March 1977 did not aggravate the underlying condition of coronary sclerosis but that it did lead to some degree of myocardial infarction occurring on that day. There is nothing to suggest that the tribunal found that there was any aggravation of hypertension - as to which in any event there is no evidence that it is part of the "one disease" and not a separate disease. The questions before the tribunal therefore were -

(1) did the aggravation at work of the myocardial infarction occurring on 4 March 1977 contribute to the incapacity during the period up to the deceased's death;

(2) did that aggravation contribute to the death.

In my view the tribunal answered the first question in the affirmative and the second in the negative. As I have said, there was evidence upon which those findings could be made and, as Deane J. said in The Commonwealth of Australia v. Lyon (1979) 24 A.L.R. 300 at p.301:

"The question for me on this appeal is not whether, in my opinion that finding was the correct or preferable one."

It was also argued by Mr Spittle "that the employment . . . was a contributing factor to the . . . aggravation or acceleration of hypertension, arterial and myocardial degeneration with the occurrence of a myocardial infarction at work on the 4th day of March, 1977 and subsequent heart failure and a further myocardial infarction resulting in death on the 2nd day of October, 1979" - see particular 6. The form of that particular does not appear to me to comply with the requirement of Order 57 r.4(1) of the Rules that "the notice of appeal shall state the question or questions of law raised on the appeal". However, I shall state my views on it. In my opinion on the evidence it was open to the tribunal to find that:

There was no evidence that the employment, as distinct from the work which led to some degree of infarction on 4 March 1977, was a contributing factor to the aggravation or acceleration of:

(i) "hypertension"

(ii) "arterial degeneration"

(iii) "myocardial degeneration"

(iv) "myocardial degeneration with the occurrence of a myocardial infarction at work on the 10th day of March 1977 and subsequent heart failure and a further myocardial infarction resulting in death on the 2nd day of October, 1979".

Mr Wheeler stated that the case was put to the tribunal "wholly and solely on the basis of the connection between the first myocardial infarction and the second myocardial infarction". In any event I accept his submission that, although there was evidence as to the nature of the work, there was no medical evidence that the general nature of the work (i.e. putting to one side the work which led to some degree of infarct on 4 March 1977) aggravated or accelerated an underlying condition of coronary sclerosis. Even if there were such evidence, the tribunal was entitled to refuse to act upon it and to accept Dr Kay's evidence.

Mr Spittle conceded that there was no evidence that the hypertension viewed as a separate disease was aggravated by the first infarction or alternatively by the employment. Mr Spittle asked the court to take judicial notice "of the fact that hypertension is certainly part and parcel of the disease process. It is an aggravated disease". Asked the question "Part and parcel of what disease process?", Mr Spittle said:

"There is no specific evidence in this case spelt out to say that hypertension is a component of coronary sclerosis, or if you like coronary artery disease, but in my submission your Honour can take judicial notice of the fact it is certainly a component of hypertension. It is one disease with various components."

In my view it is plainly not open to the court to take judicial notice in the way suggested by Mr Spittle.

Mr Spittle also relied upon certain matters which he described as peripheral issues. They are set out in particular 7 as follows:

"7. That the Compensation Tribunal erred in law in finding that:

(i) There is an absence of lay evidence.

(ii) Dr. Kay was of the view that there was immediate healing after the first infarction.

(iii) The Royal Melbourne Hospital records do not indicate continuous intensive treatment but rather support the conclusion of Dr. Kay, who examined the deceased in January, 1978, that the deceased settled down quite well after leaving hospital.

(iv) That the evidence of Dr. Kay is in accord with the other known facts and finding the medical facts in accordance with this evidence.

That in each case such a finding was not open to the Compensation Tribunal on a proper consideration of the evidence."

They may be dealt with briefly. In my view in each case the item is not a finding of fact made by the tribunal but rather a comment upon the evidence. Neither singly nor in combination do they show an error of law so as to support the appeal. Item (i) did not accurately state the tribunal's comment. I do not consider that the tribunal made any finding as suggested in item (ii) although it did refer to this aspect of Dr Kay's evidence and may not have stated it accurately as to time. However, this did not in my view affect its findings of fact upon which its decision was based. Item (iii) was not developed by Mr Spittle. The matter there set out was only a reference - and an inconclusive one at that - to hospital records. Item (iv) is not expressed as clearly as it might be. However, in my view it is clear from the decision that the tribunal made a finding that it accepted Dr Kay's evidence as to the claim in respect of the death (as distinct from the claim for a continuation of payments for incapacity). In particular, as I have already said, it accepted his evidence and found as a fact that the two infarctions were in different parts of the heart and that there was no relationship between them. The wording used by the tribunal in the passage referred to in item (iv) is open to criticism but that does not affect those two findings.

For these reasons the appeal is dismissed and the decision of the compensation tribunal is affirmed.