MELBOURNE, VICTORIA. Workers' Compensation-" personal injury by accident arising out of or in the course
employment '-Meaning-Application to progressive disease not con- nected in origin with employment-Discovery in member of Navy of defective working of aortic valve in heart as result of gradual process following childhood illness-Time when valve became defective not known-Necessity for sudden and May 15, 16, distinct physiological change to constitute injury by accident-Necessity for proof that change took place while employee engaged in duties of employment and not, e.g., on leave-Commonwealth Employees' Compensation Act 1930-1956 (No. 24 of 1930-No. 93 of 1956), S. 9 (1).
Under S. 9 (1) of the Commonwealth Employees' Compensation Act 1930-1956 it is necessary for an applicant seeking to recover compensation to show that he has sustained " personal injury by accident arising out of or in the course of his employment"
Held, that a worker does not suffer such an injury where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
James Patrick &Co. Pty. Ltd. v. Sharpe (1955) A.C. 1, discussed and dis- tinguished.
Held, further, that in the circumstances of the case, an applicant for com- pensation had not proved that he was entitled thereto.
Decision of the County Court at Melbourne reversed.
APPEAL from the County Court at Melbourne, Victoria.
James Bruce Ockenden, by application dated 20th January 1955 claimed from the Commonwealth of Australia compensation under the provisions of the Commonwealth Employees' Compensation Act
99 CLR 216
1930-1956 in respect of personal injury allegedly sustained by him and arising out of or in the course of his employment by the Common- wealth. The facts on which the applicant relied are set out in the judgment hereunder.
The application having been refused on 23rd September 1955 OCKENDEN. by the delegate of the Commissioner for Employees' Compensation
the applicant appealed, by notice dated 7th October 1957, to the county court at Melbourne, an extension of the time allowed for lodging an appeal having previously been granted.
The appeal was heard before his Honour Judge Mitchell who, on 5th February 1958, ordered that the appeal be allowed with costs and that the respondent pay to the applicant the sum of £8 2s. 6d., the cost of medical treatment received by the applicant.
From this decision the Commonwealth of Australia appealed to the High Court.
C. I. Menhennitt Q.C. (with him W. H. Tredinnick) for the appellant. The condition which developed in the applicant as a result of the gradual progression of the disease was not injury by accident within the meaning of S. 9 1 of the Commonwealth Employ- ees' Compensation Act. The fact that the condition was of gradual development eliminates the element of accident. [He referred to Roberts v.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading The Commonwealth v Ockenden
Sign in free to access the full text
Details
AGLC
The Commonwealth v Ockenden [1958] HCA 37
Case
[1958] HCA 37
Decision Date
CaseChat Overview and Summary
The Commonwealth appealed to the High Court of Australia against a decision of the County Court at Melbourne, which had allowed an appeal by James Bruce Ockenden. Ockenden had claimed compensation from the Commonwealth under the Commonwealth Employees' Compensation Act 1930-1956 for personal injury allegedly sustained arising out of or in the course of his employment. The County Court had ordered the Commonwealth to pay Ockenden a sum for the cost of medical treatment.
The central legal issue before the High Court was whether Ockenden had sustained "personal injury by accident arising out of or in the course of his employment" as required by section 9(1) of the Act. Specifically, the court had to determine if a progressive disease, not attributable to employment, could result in a compensable injury by accident if a sudden physiological change occurred during the course of employment, and whether such a change had been proven in Ockenden's case.
The High Court held that a worker does not suffer personal injury by accident arising out of or in the course of employment if they experience a sudden and distinct physiological change that is solely the product of the inevitable development of a progressive disease, and which cannot be attributed to or associated with any incident of their employment. The court distinguished this situation from cases where an external event or action causes a physiological change. In Ockenden's case, the court found that the evidence did not establish a sudden and distinct physiological change, nor did it prove that any such change, if it occurred, happened during the course of his employment. The court noted that the murmur detected in Ockenden's heart was likely the result of a gradual deterioration from a childhood illness, and there was no evidence linking its onset or progression to any specific incident of his naval service.
Consequently, the High Court allowed the appeal, set aside the order of the County Court, and ordered that the Commonwealth pay the taxed costs of the appeal.