Workers Rehabilitation and Compensation Corporation v Ascione

[1989] HCATrans 291

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1989

B e t w e e n -

WORKERS REHABILITATION AND

COMPENSATION CORPORATION

Applicant

and

MARK GERARD ASCIONE

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J

TOOHEY J

Ascione

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FF.IDAY, 17 NOVEMBER 1989, AT 3.16 PM

Copyright in the High Court of Australia

M1T12/l/PLC 1 17/11/89

MR K.R. McCARTHY, ~C:  In this matter I appear with my

learned riend, MR D.S. HART, for the applicant.

(instructed by Ross & McCarthy)

MR D.J. BLEBYf QC:  May it please the Court, I appear with

my earned friend, MR T.L. STANLEY, for the

respondent. (instructed by Duncan Groom Wilson)

MR McCARTHY:  If the Court pleases, there are copies of the

new South Australian work cover Act before the

Court. This Act came into operation in

September 1987. It is a radical departure

from the, if I might call it, ·· the old idea of

workers' compensation where an employee was given

a right to compensation from his employer and

the employer required to insure against his

liability.

The new Act constitutes a "Workers

Rehabilitation and Compensation Corporation",

section 7 and it is that corporation which, among

other things:

is liable to make all payments of

compensation to which any -

South Australian worker becomes entitled.

· Xha.t is seetion 46. That last statement, of course,

needs qualification because there are, in

certain circumstances, permission - or is possible

for some employers to be exempt. There is not a

large number of exempt employers.

r~- should also draw the Court's attention to

section 6 of the Act which, of course, deals with

Australia. When a claim for compensation or	employees from interstate when injured in South
rehabilitation is made, it is the duty of the Corporation to determine liability in relation to
that claim. That is section 53. In case of
liability of the Corporation to pay compensation
as opposed to medical questions, the person directly affected by a decision may apply to the Corporation for a review of that decision:
section 95. Review officers are officers of the
Corporation and are appointed pursuant to
section 77. The Act also creates a workers'
compensation appeals tribunal: section 78.
And a person dissatisfied with a decision of a
review officer may appeal to that tribunal: 97.
There is an appeal limited to questions of law
to the Full Court of the Supreme Court from the
tribunal: section 100. This was such an appeal.

The facts: they are set out mainly in

paragraph 2(b) of the affidavit in support of this

application at page 59:

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The respondent is a practitioner of the Supreme Court .... was employed by

Messrs W.A.G. Morris, Pearce &
Associates in that capacity as from

the 11th day of January 1988. At about

8 a.m. on that day -

that is the very first day of his employment -

he was on his way to work by tram

when he collapsed and was conveyed to

hospital. Investigations at hospital

disclosed that the cause of his collapse

was a left intra-cerebral haemorrhage

caused by the bursting of an artereo-venus

malformation from the anterior choroidal

artery on the left side.

Now, that condition was described by the only

medical witness called, a Mr Brophy, a neurosurgeon

and he takes up the story set out by Mr Justice Legoe

and Mr Justice Millhouse at page 20 of the

application book about line 13.

Mr Brophy described the arteriovenous

malformation as consisting -

n ••• of a collection of vessels that

are normal in number, size and

histiologically, if we look at them

under a microscope, abnormal.. in their

structure. Now, this abnormality is

fed frequently by a normal artery

within the cerebral circulation and
it's drained by veins which may be
normal, but the abnormality lies in the

intervening structures that is not a

normal capillary bed and that's what

I've mentioned from a physiological

point of view. This is a low resistance

circuit."

He added that the condition was to be

compared with an aneurism which occurs

on the arterial side of the circulation,

namely, at points of branching of the
major arteries. Aneurisms -

he speaks of them, and then I take it up at 31:

By way of contrast, arteriovenous

malformation is constituted by an

aberration of the formation of the

capillary bed. The Tribunal observed

that Mr Brophy could not explain why

the event occurred on the day and in the
circumstances that it did. It is an

abnormality that a percentage of people

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are born with and then a percentage of
those people will rupture at various

times thereafter, but a rupture is not

inevitable. As to why it should happen

when the person is 28 and not 15 or some

other age, was unclear. Mr Brophy added:

"I guess we could say that the rupture

in a percentage of individuals is

inevitable with time, just due to the

exposure tonormal arterial circulation -

the pressure in the normal arterial bed."

A worker is entitled to compensation by way of income maintenance when he suffers a compensable

disability that results in incapacity for work:

section 35, and just the first part of that section

is all that is necessary.

It is section 30, if the Court pleases, that sets out the conditions under which a

disability is compensable, and if I may read

subsections (1), (2) and (3)(a):

Subject to this Act, a disability is	compensable if it arises from
employment. A disability arises from employement if -
(a) in the case of a disability (not
being a secondary disability or a disease) - it arises out of or in the course of employment -

the old familiar words.

MASON CJ: You had to bring yourself within that provision?

MR McCARTHY:	No, Your Honour, the worker did - had to bring himself within that provision.
MASON CJ: Yes.
MR McCARTHY:	I am sorry, I think I may be confusing the

Court because:

in the case of a disability (not
being a secondary disability or a

disease) -

and, of course, here the disability, in our

submission, is clearly a disease. So that

perhaps if I can skip to subsection (3)(a):

Subject to subsection (4), the employment of a worker includes -

(a) a journey -

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now, he was on a journey. Then subsection (2)(b):

in the case of a disability that is a

secondary disability or a disease -

now, I will not trouble the Court with"secondary
disability", that is obviously one on top of

another. Then:

the disability arises out of employment
or

the disability arises in the course of

employment and the employment contributed

to the disability.

Now, it was at all times conceded and never

suggested that what had happened to this worker

had anything to do with his employment at all

and the sole question for determination was whether

or not what occurred to him, what disability he had,

was a disease.

TOOHEY J: Is it over-simplifying the matter, Mr McCarthy, to

look at the definition of "disease" which reads:

"disease" includes the deterioration of

a physical, mental or sensory faculty

for which there is no obvious proximate

cause -

and to say that it is your case that something

may be a disease if it is a deterioration of a

physical, mental or sensory faculty for which

there is an obvious proximate cause?

MR McCARTHY:  Yes. I say that the Full Court has completely

misconstrued that definition. The Full Court has

said, in effect -

"disease" includes the deterioration -

et cetera -	faculty for which there is no obvious
proximate cause -

and excludes a deterioration - -· -

MASON CJ:  In other words, it has read "includes" as

"means"?

MR McCARTHY: Yes,and, in my submission, that is quite wrong

in the context of this Act. .

TOOHEY J: Well, looking at it from the other point of view,

your argument depends on treating the definition

as not only inc~uding the deterioration there
defined but is including also a deterioration

possessing, an almost opposite quality, namely a

deterioration for which there is an obvious proximate

cause?

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MR Mee.ARTRY:	No, Your Honour, not so.	I say that a disease

is a disease in its ordinary popular sense and

if there is a condition which medical science

cannot yet define, and that is something for

which there is no obvious proximate cause,

then we will add that into our definition of

"disease" and say that compensation is recoverable

if it can be shown that any disability arising

from it is employment related.

MASON CJ:  But when you look at (a) and (b) together of

section 30(2), does it not make more sense to

say that (b) is directed to the case of a

disease which has a known proximate cause?

Then the question arises, for example, whether

the employment contributes to it.

MR McCARTHY:  With respect, Your Honour, I answer that "No"

simply because, in my submission, it is obvious

that Parliament has intended to compensate for

injury and I say that because of the definition

of the word "disability".

TOOHEY J: Well, you have difficulty with that, do you not?

MR McCARTHY: "Disability" means:

injury including -

a -

loss ..... a disease or disfigurement -

or even death -

and includes a secondary disability.

So that what we say is this, that a disability

in its primary sense means a physical or mental
injury but "injury" is extended in the sense

described by Lord Selbourne in ROBINSON V

LOCAL BOARD OF BARTON-ECCLES,and that dictum to

which I want to refer is set out in Justice Olsson's

judgment at page 47 at the bottom of that page.

There His Lordship was dealing with the definition

the same as this. namely X includes Y, and:

His Lordship said -

'An interpretation clause of this kind

is not meant to prevent the word

receiving its ordinary, popular and

natural sense whenever that would be

properly applicable; but to enable
the word as used in the Act, when there

is nothing in the context or the

subject-matter to the contrary, to be

applied to some things to which it would

nor ordinarily be applicable.'

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Now, we say that the Parliament has

used that device on both occasions in these

two definitions and so it extends "injury"

to include "impairment of bodily faculties,

disease or disfigurement". So, the intention

of Parliament was to compensate, basically,

for injuries but because that word in its

ordinary sense cannot always cover what is

required to be compensated, "injury" is extended

to include those specified losses. But having

extended that definition, Parliament realizes

that it has gone too far with "diseases" and

so in section 30 it said not all such injuries

in the specified circumstances, namely those in section 30(2)(b).

are to be compensated in any event. only

TOOHEY J: Can I just put this to you, Mr McCarthy? If

you take the definition of "disease" and put to

one side for a moment the difficulty that is

caused by the use of the word "includes" but

just take what follows:

the deterioration of a physical,

mental or sensory faculty for which

there is no obvious proximate cause.

Now, that situation, the condition is not

compensable unless it can be shown to have

arisen out of employment which would require

some sort of causal connection, presumably,

or that it arose in the course of employment

and the employment contributed to the disability.

So it has to be some - - -

MR McCARTHY:  And I have no difficulty with that, Your Honour.

TOOHEY J: Well, just a moment. There has to be some

linking in that situation of the condition with

the employment. Where, however, there is a

proximate cause, then the condition is compensable	deterioration for which there is an obvious	if it arises out of or in the course of
employment. You have a deterioration but you
have an obvious proximate cause and in that
situation it is not all that difficult to say
whether it arose out of or in the course of
employment.

MR McCARTHY: 

I accept that, if Your Honour pleases, but

of course that is not what Parliament has said.
Parliament wants to exclude from the operation
of section 35, namely payment of compensation,
disease-caused disabilities which have nothing to

do with employment. which is this very case, in my

submission. Could I give some simple illustrations?

I mean, this Court has heard enough of heart attacks

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and diseases for me to be able to say that

coronary artery disease is a progressive disease

and will cause a disability.

Now, if the definition of "disease" as

found by the Full Court is correct, then that

means that anyone who has a heart attack on his

way to work is entitled to compensation, be

there any connection with his employment or not

because everyone knows the obvious proximate

cause of myocardial infarction. The same thing

in relation to a stroke. You can say the same

thing in relation to any one of the known diseases:

arthritis, asthma, dermatitis, the pneumoconioses,
all zoonoses; they all have obvious proximate causes.

But if I can give an historical illustration which

illustrates the point that I am making and gives
the latter part of the definition work to do,

can I take the condition of Legionnaires' disease

and be I right or be I wrong, the illustration I

want to make is this, is that a whole lot of

people in an employment situation in a building,

working away, suddenly became sick. They were

all sick with the same thing but medical science

had not proeressed far enough to know what was

the cause of it and whether the cause was obvious

or not. Now, subsequently, of course, we found

out that Legionnaires' disease, the cause of that

is some virus or bacteria that can be introduced

into the air of a building. But if I go back

historically before medical science discovered

that, then we have people, disabled or

incapacitated, and they are incapacitated

and their physical, mental or sensory faculties

have deteriorated and there is no obvious proximate

cause for that.

Now, they are circumstances, in our submission,

that this inclusion is meant to cover; something that

is inexplicable, and then have a look at it and if

on the balance of probabilities it be said

that there is a work connection with this

deterioration for which there is no obvious

proximate cause, then even though it be a disease,

they are still entitled to compensation. And there

must be - and I have no doubt there are - many

problems: illnesses, call them what you will,

for which medical science cannot yet and will not

be able to give an answer.

What Parliament has meant to do, in my

submission, is to recognize that fact and give those

workmen a chance of compensation. Even if what has

happened to them cannot be categorized as a disease -
no one knows what it is - they are entitled to

compensation if they can show that their incapacity

arises from the employment or is somehow employment

connected.

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DAWSON J:  Mr McCarthy, this man was not suffering from a

disease on any view, was he?

MR McCARTHY:  If Your Honour pleases, it must be. He

certainly did not have an injury.

DAWSON J: Well, the tribunal came to the conclusion that

arteriorvenous malformation is not a disease

in the ordinary meaning of the term

but a different view - - -

MR McCARTHY:  If Your Honour pleases, that has to be read

in context of the Act.

DAWSON J:  I thought you were saying that your contention

., was that the definition of "disease" is not
exhaustive. The word "includes" are words of
extension and not words of limitation.

MR McCARTHY:  Yes, Your Honour.

DAWSON J: And "disease" also bears its ordinary meaning.

MR McCARTHY:  Yes.

DAWSON J: Well, its ordinary meaning would not cover a

malformation, would it? At least the tribunal

did not think so.

MR McCARTHY:  In my submission, it does and it must.

DAWSON J: Well, if it does not, then your argument falls,

does it not, in this particular case?

MR McCARTHY:  That particular argument would fall but then,

of course, it is not an injury either.

DAWSON J: Well, he certainly suffered a disability, did he

not?

MR McCARTHY:	With respect, no, because it is not an injury.
DAWSON J: But it includes any loss of a physical, mental

or sensory faculty.

MR McCARTHY:	Yes, I suppose that must be so.
DAWSON J:	So, he suffered a disability. And if you take

the view that I am putting to you - I know you do

not necessarily accept that - it was not a disease

and it arose in the course of his employment,

therefore he is entitled to recover.

MR McCARTHY:  If the Court pleases, in context of the

Act an entirely autogenous malformation in these

circumstances must be regarded as a disease.

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DAWSON J: Well, the tribunal did not think so and nor

did Mr - well, I do not know that that is right.

MR McCARTHY:  Mr Justice Olsson certainly thought it might

not have been - did not find it necessary to

decide. The other two judges were firmly of the

view that it was a disease.

DAWSON J:	I would not have thought so.
MR McCARTHY:	I mean, as it was said, it came within the

dictionary definitions of "disease" - ordinary
definition; the ordinary idea of "disease" and

they were all put before the Full Court.

If the Court pleases, the interpretation

urged by us that the inclusion is to have the

effect we urge upon the Court gives the phrase

sensible work to do, gives a sensible meaning

in the context of the whole Act and it

cannot, in my submission, be thought that

it is only things for which medical science

cannot assign an obvious cause that can be

diseases. It is complete negation in common sense

of the word "disease" and it produces a result

which is not out of step by regarding conditions
which are obviously diseases, in the ordinary
sense of the word, as diseases rather than
negating that ordinary meaning if they had to have
an obvious proximate cause. And to decide that

Parliament intended to exclude from the definition

of "disease" anything for which an obvious

proximate cause could be shown produced, in our

submission, a complete nonsense.

If the Court pleases, on the point of the

importance of the matter, it is probably obvious

but I must, again, emphasize the fact that to

start with it is a new Act. The applicant here

is the man responsible - is the body responsible

for all payments of compensation. We are dealing

with matters which have troubled the courts in

compensation, namely, diseases, heart attacks,

strokes and injuries of that nature which,

as the Court well knows, are extremely expensive

and extremely disabling disabilities. It is a

matter which, in our submission, cries out for

correction by this Court. They are my submissions,

if the Court pleases.

MASON CJ: Yes, Mr Bleby?

MR BLEBY:  If the Court pleases, it is our submission that

this is not a case for special leave. The

South Australian Act, whilst new, as my learned

friend said, has not yet shown to have

developed into quite the maze that apparently the

Victorian Act has developed into. But there are

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two questions which arise on this proposed appeal,

both of which my learned friend must succeed on

if the appeal is to succeed. One is the

construction of the definition itself, and I speak

of the definition of "disease" and whether it

admits of a disease for which there is a proximate

and obvious cause or, indeed, whether it admits

of any disease according to the common understanding
of the word.

The second point arises that if the answer

is "Yes" to that, that it does so admit - and it

only arises if that answer is "Yes" - is whether

this respondent's particular ailment was such a

disease. So, I stress, the second point only

arises if the first point is answered against the

respondent.

Now, in relation to the first point, in our submission, the highest that the applicant can put

its case on special leave, that is some special
feature warranting the interference of this

Court, is that it is a question of law of some

general importance in the interpretation or

application of the Act in South Australia in some

types of disease. We would submit it is a very

limited class of disease. That is the highest,

it seems, it can be put by way of special leave.

It cannot affect and will not affect any similar

legislation of any other State. It is a unique

piece of legislation; it is a unique definition.

We have available, if necessary, relevant

parts of all the State and Commonwealth legislation

dealing with similar matters. There is no such

definition in any such Acts. Indeed, there is a

variety of experiences in the legislation. Some,

particularly the new Commonwealth Act of 1988

and the Tasmanian Acts, the former one and the

new one of 1988, both have exhaustive definitions

nothing like the present South Australian one. of "disease", both in very different terms, both	Some, and I cite New South Wales and Queensland,
have no definition of "disease" at all. A number
of others, in fact, most of the remaining ones, of the Commonwealth - the old Commonwealth Act,
the.Victorian Acts, the Western Australian Act,
the Northern Territory Act, the ACT Act, have inclusory definitions but inclusory definitions
of a very different character; very similar amongst themselves but very dissimilar from that in
South Australia.
So, it cannot be raised there for a matter of any great importance from that point of view.
The fact that some definitions in some Acts may
be inclusory in their nature makes no difference,

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it must depend upon the context and the nature

of the definition. And we would certainly
dispute the suggestion that a whole range of

other diseases are incorporated or become

disabilities for the purpose of this Act

merely as a result of the interpretation of

the supreme court and the Full Court.

The example that my learned friend gave

particularly of the Legionnaire's disease would

fail, in our submission, because if no one knew

the cause of the disease at the time when my

learned friend was speaking of, and there was

not an obvious proximate cause, it would be

extremely difficult, in our respectful submission,

for the worker to show that the disability arose
out of or in the course of the employment if he
did not know the cause. So, the definition seems

to be saying something other than that.

To suggest that it :includes in the disability

category a whole range of more connnon diseases
is to overlook the requirement that it must arise in

the course of the employment. Not every disease, obviously, arises in the course of the employment except - accepting for the moment that this is a

disease - there is an identifiable time when this

occurs, when the blood vessel bursts, but that

very seldom occurs with most diseases.	They are
contracted over a period of time.

So, the point we make is that we are looking

at a very limited class of case in a situation where

it can only have effect in South Australia in that

very limited class of case. It is no more, in

our respectful submission, than a reasonably

straightforward point of statutory interpretation

against well-developed canons of construction.

There is no novel point of statutory interpretation

that is involved. It is not as though there are differences of judicial opinion on the question;

the review officer, the three-man review tribunal,

the Full Court were all unanimous in their view. We

would also be arguing - of course, now is not the case

to do_so -•that those decisions are correct, but it

is not as: though- there· is a ·-wide divergence of

ju.dicial opinion ..

The next point we would make is that the 4

question arises in a sophisticated and detailed

statutory scheme, which my learned friend has outlined

to the Court, a scheme for compensation and

rehabilitation. It is not an insurance-type of

scheme as the old legislation was. Parliament, under this Act, determines what is compensable. Parliament determines· what has to be provided by

way of rehabilitation. The present applicant, as

the servant of Parliament, fixes the levy rate that

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all employers have to pay according to a range

of pre-determined levels fixed by the Parliament,

and I invite the Court's attention to section 66

of the Act in this context. The section has been

amended by the amending Act of 1988 but I do not

need to take the Court to the amendments which were

to subsections (2) to (5). It is a section dealing
with levies but Your Honours will see that in

subsection (7) the Parliament has fixed the range

of levies that employers pay. It is the Corporation,

under subsection (8), which fixes:

the percentage applicable to a particular

class of industry -

and in doing so, the Corporation, the applicant

here:

must have regard to -

(a) the extent to which work carried

on in that class is, in the opinion
of the Corporation, likely to contribute

to the cost of compensable disabilities;

and

(b) the need for the Corporation to

establish and maintain sufficient funds -

(i) to satisfy the Corporation's current

and future liabilities -

and so on. So, the Corporation is not just a

payer, it is also a determiner of the - in part,

at least - levies to be paid by employers so that

the scheme remains balanced, and that is its

statutory mandate. That must, therefore, in our

submission, reduce the status of an appeal brought

by that same Corporation where, under the Act,

it has a remedy in its own hands to cope with

what might be seen to be adverse decisions of

courts. But, ultimately, it is for Parliament to

determine, as I said before, what is compensable

and what levies will be paid. It is for Parliament,

if Parliament dislikes the way the scheme has been

interpreted, to amend it.

Allied with that submission, we would draw

the Court's attention to section 14 of the Act

which again provides for the role of the Corporation,

in fact, it sets out the functions of the

Corporation, and in subsection ('l)(a) is:

to undertake, subject to the general	direction and control of the Minister,
the administration and enforcement of
this Act -

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I will skip over the next three -

(e) to keep under review the effect

on disabled workers of State laws (including this Act) and to make,

where appropriate, recolIIIIlendations to

the Minister for the reform of those

laws;

(f) to keep the operation of the second

schedule under review and to make,

where appropriate, recommendations to

the Minister for additions or amendments

to that schedule;

(g) to report to the Minister on the
administration of this Act or any matter
referred to the Corporation by the

Minister.

Now, the applicant in these proceedings, to a large

'extent, has it in its own hands if the Act needs

amending. Indeed, I am instructed that since the

Full Court decision there has been a bill prepared.

No doubt, my friend - we are in no position to

enlighten the Court on that; my friend may be.

But the point is this: the applicant has a statutory

duty to advise the minister on changes to the Act.

It may or may not have made reco1I1II1endations for change but one wonders whether, even if leave were given and the appeal was unsuccessful, then

the recommendation would be made and Parliament

would implement some form of change and that,
we say with respect, would be wasting this Court's time. In short, we suggest it is a matter for the Corporation and for Parliament to attend to those

matt:ers.

Now, that really is in relation to the

interpretation of the definition. But if my friend

is right in his argument that the definition means

what he submits that it should mean, I come to the	second point which the applicant in these proceedings
has to get over. If he succeeds on the interpretation question, he then says, "Well, the definition includes any sort of disease as cotmnonly understood."
The question then arises, "Was our client's
ailment a disease?" And we take the point of
Your Honour Justice Dawson: again, the tribunal and certainly one judge, and perhaps three in the
supreme court, have said that it is not, but that
is essentially a factual question. That is the way
the majority of the Supreme Court of New South Wales viewed such a question in the case of O'NEILL V
LUMBEY which is cited in the judgments. It was a
case of an aneurysm; again, a not dissimilar situation but in LUMBEY's case,the majority judgment

MlT13/5/PLC	14	17/11/89
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being delivered by His Honour, I think,

Mr Justice Clarke, said this, and I read from

page 650 - as I say, it was a case of not

dissimilar types of facts although it was an

aneurysm.

Prime facie it would seem to me

that the question whether a person was

suffering from a disease falls to be

decided as a question of fact. No

doubt there may be cases in which the

facts which are found must necessarily

establish that the condition is a

"disease" withins 6(1) -

that is of the New South Wales Act -

but in my opinion there would be rare

instances in which the factual

determinations of the tribunal are capable

of giving expression to only one view.

In particular it would be erroneous

to conclude that because a particular

condition has been described in an

authoritative decision as a disease

any manifestation of that condition, no

matter how caused, is necessarily a

disease.

And we would adopt that, with respect, and say - - -

MASON CJ:	We need not trouble you further, Mr Eleby.
MR ELEBY:	If Your Honour please.
MASON CJ:	Now, Mr McCarthy, do you wish to say anything in

reply?

MR McCARTHY: Only, if the Court pleases, to take up the last

two points my learned friend made. Firstly, in

relation to amendment to the legislation: our

submission on that is in two parts; one, there

is absolutely no need to amend clear legislation. If

that is wrong, of course, experience has taught

us that amendments ofeen · cfo,;;:Ti.ot · · , ,

cure the defect they are aimed at. A decision on

this definition is- impe~tant.

In relation to my learned friend's comment on O'NEILL V LUMBEY and the question as to whether

or not the ailment of the respondent was a disease
or not, might I refer to the judgment of the

President of the Court of Appeal, Mr Justice Kirby

at page 642 and the point taken by His Honour

there at the top of the page:

Nevertheless, the limitation on appeals

from the Compensation Court does not

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entirely exclude from review the

factual findings upon which the judge
of that Court proceeds to reach his

conclusion. The ultimate finding .....

may not be rendered immune from review
by a purported finding of fact. This

Court retains its function to consider whether, in the light of the evidence, the facts as found, or the undisputed

facts, indicate, in the ultimate

conclusion reached, an incorrect

application of the law.

Now, whether or not this ailment is an injury

or a disease or whether it is a disease is ultimately a question of law falling to be

determined on an interpretation of the definition

section, and that is, of course, exactly what the

applicant is asking for here, is a correct

determination of the definition section. That is

all I wish to say in reply.

MASON CJ:  Thank you, Mr McCarthy.

Although the interpretation of the relevant

and novel statutory provisions gives rise to

some difficulty, we are not persuaded that the

result arrived at by the Full Court of the Supreme

Court in this case was attended with sufficient

doubt to warrant the grant of special leave to appeal. The application is therefore refused.

MR BLEBY:  I ask for costs, if the Court pleases.

MASON CJ: Yes, and with costs, Mr McCarthy.

AT 4.10 PM THE MATTER WAS ADJOURNED SINE DIE

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