Zickar v MGH Plastic Industries Pty Ltd
[1995] HCATrans 293
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S51 of 1995
B e t w e e n -
DARRIN ZICKAR
Appellant
and
MGH PLASTIC INDUSTRIES PTY LIMITED
Respondent
BRENNAN CJ
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 11 OCTOBER 1995, AT 2.04 PM
Copyright in the High Court of Australia
MR P.J. DEAKIN, QC: If the Court pleases, I appear with my learned junior, MS L.P. McFEE, for the appellant. (instructed by Lewis & Fawkner)
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR S.G. CAMPBELL, for the respondent. (instructed by Curwood & Partners)
BRENNAN CJ: Yes, Mr Deakin.
MR DEAKIN: Thank you, your Honours. The essential facts of this case are relatively simple and there is very little dispute about those. The appellant, unbeknown to him, suffered from a congenital weakness in an anterior communicating artery within his brain mass ‑ ‑ ‑
BRENNAN CJ: Do you have a summary of your argument, Mr Deakin?
MR DEAKIN: Yes, I do apologise, your Honours. Can we hand the requisite numbers to your Honours, together with two copies for my learned friends.
BRENNAN CJ: Yes, Mr Deakin.
MR DEAKIN: At a point in time which was not precisely established on the evidence, the congenital weakness that existed in this man’s artery ballooned out into what was described as a berry aneurism under the pressure of blood flowing through the artery until the artery was no longer able to withstand the pressure of blood hitting it. And there is no dispute that on 15 October, whilst he was at work at the respondent’s premises, the appellant collapsed as a result of that aneurism rupturing, leading to haemorrhaging in the subarachnoid space and extensive brain damage, substantially disabling the appellant.
Your Honours, it is not disputed that there are three types of aneurisms of which the relevant one for the present purposes involved in this case is a congenital aneurism flowing from a weakness in the artery. Nor is it disputed, we would submit, that the incident involving the rupture, occurring as it did on the respondent’s premises, that the incident arose in the course of the appellant’s employment. What is in dispute is the correct, if I can use the word, categorisation of the episode.
At first instance the trial judge held expressly that it was a personal injury falling within subparagraph (a) of the definition in section 4 and not a disease falling within subparagraph (b). It was not, in fact, submitted at first instance that an aneurism was a disease. Nevertheless, when the matter came on for hearing in the Court of Appeal that was the principal thrust of the then appellant’s submissions to that court, that it, properly categorised, was a disease, and that submission found favour with the majority and they reversed the finding of the trial judge on that basis.
Now, we submit, your Honours, that on the facts of this case there are three alternative conclusions which could be drawn from the facts of the case. We submit that it could not be said in any serious way that it was neither an injury nor a disease. It would have to be accepted into one of those categories. So we submit the three alternative conclusions are these: firstly, which is, of course, our principal submission to your Honours as found by the trial judge, it is our submission that it was a personal injury or as it is described in some of the authorities an injury simpliciter.
BRENNAN CJ: What is the “it”?
MR DEAKIN: The aneurism, the rupture of the aneurism, your Honour.
BRENNAN CJ: The rupture of the aneurism?
MR DEAKIN: Yes, the rupture of the aneurism which occurred on 15 October 1987 at the place of employment was a personal injury within section 4(a). The second alternative, which is clearly the one that will be relied upon by my learned friend and which was accepted by the Court of Appeal, was that it was not properly categorised as an injury but should be categorised as a disease, and we will, of course, be putting to your Honours that is erroneous.
The third alternative which, as we understand it, this Court has not expressly had to deal with in any prior case, is the alternative that we have referred to in the outline of argument, namely, that it is capable of satisfying both the definition of an “injury” within (a) and “a disease” within (b) and in those circumstances we will be submitting to your Honours that even if that were the correct construction and the correct conclusion on the facts, because it satisfies (a), and (a) now being separated from the definition of injury in (b) under the 1987 Act, that the appellant is entitled to succeed, there being no dispute that it arose in the course of employment.
So, we will be submitting to your Honours that so long as your Honours are persuaded that (a) is satisfied, namely that there was a personal injury occurring on that day in the form of the rupture of the aneurism, then the appellant is entitled to succeed and we will be submitting to your Honours that that is so even if the definition of “disease” might, on one view of it, also be satisfied.
TOOHEY J: What is involved in the third of the options when you say it may satisfy both?
MR DEAKIN: We would submit that because now in the 1987 Act which is in force, of course, for the purposes of this case there are two alternative subsections within the definition of “injury”; that a worker who satisfies (a) is entitled to succeed under (a) and that even if the condition may also satisfy the definition of disease in (b) that that would not preclude him from succeeding under (a). Is that an answer to what your Honour was - - -?
TOOHEY J: Not quite, because I rather took you to be saying that it might be possible for the Court to conclude that there was an injury without necessarily pinning the decision to either (a) or (b) but to say that it must fall within one or the other, but your last answer rather suggested that is not the case.
MR DEAKIN: Your Honour, whilst that could be a view also that the Court could find available on the facts, we would be submitting that the preferable view on the facts is the one that we advance to your Honours, because if what your Honour has just put to me were to be the correct conclusion that it would not necessarily follow from that conclusion that this appeal would succeed, it may have to go back down for the other issue to be determined which, as your Honours are probably aware, remains unresolved; that being whether the employment contributed to the onset of the disease.
TOOHEY J: But do you exclude what I put to you as a possible result?
MR DEAKIN: Well, your Honours, we would not exclude it.
TOOHEY J: No.
MR DEAKIN: It does not form part of our principal submissions to your Honours, but we do not exclude it, no. I suppose what your Honour is putting to me is a possible fourth alternative, because it may not be quite as conveniently categorised into the three alternatives which I have outlined, but we would, only with some reluctance if we are wrong on the other arguments, your Honour, attempt to accommodate what your Honour has put to me, namely that fourth possible alternative.
TOOHEY J: Yes, thank you.
MR DEAKIN: So, your Honours, our principal submissions, as your Honours would have already gleaned, is that the trial judge was correct in his conclusions on the facts of the case, he having the assistance not only of medical reports, but three medical experts who were called in the case by the present appellant and cross-examined by the respondent and could we just invite your Honours to turn very briefly to the factual findings which the trial judge made in the light of that evidence. They appear conveniently on one page at page 118 of the appeal book. He has referred to the medical extracts from the medical evidence in earlier pages and at 118 line 5:
I accept the opinions expressed by the applicant’s doctors, and even those of the respondent’s doctors, that the development of the aneurysm and the rupture was not a disease.
I am satisfied the applicant had a congenital weakness which, with the passage of time, led to the production of the aneurysm which in time inevitably ruptured. it was submitted that the applicant suffered an injury simpliciter and I am satisfied that he did suffer an injury simpliciter and not a disease.
He refers then to O’Neill v Lumbey and a Victorian case that is on the list of authorities now reported, and he says at line 36:
I am bound by the decision in O’Neill v Lumbey and on all the evidence I find the applicant suffered an injury simpliciter on 15 October 1987 whilst working for the respondent.
And he then goes on to say:
I make no finding as to whether or not stress played any part in the applicant’s injury.
We submit those findings were clearly correct, and those findings, as your Honours are probably aware, were accepted and adopted by the minority judgment in the Court of Appeal, namely the judgment of Mr Justice Priestley, who, I think it is fair to say, your Honours, adhered to his view on how these definition sections operate, as he had originally expressed it in the decision of O’Neill v Lumbey, in which he and Mr Justice Clarke had been in the majority, and confirmed that that remained his view and, applying that decision to the findings of the trial judge in this case, came to the same conclusion as the trial judge.
Could we just invite your Honours to consider briefly what Mr Justice Priestley says in his minority judgment. At 126 of the appeal book, line 12, his Honour says, what is fairly trite, I suppose:
As the rupture of the aneurism happened in the course of the worker’s employment, the questions which the medical evidence presented to Judge Thompson were whether the facts showed that the worker had “received” within the meaning of s 9 a “personal injury” within the meaning of those words in par (a) of s 4, and if not such a “personal injury”, then whether the facts showed a disease within the meaning of par (b).
He then proceeds to deal with the medical evidence towards the foot of that page and over the following page. He does say at the foot of 126:
I mentioned earlier that although the medical evidence revealed two views on the question whether the worker’s employment had contributed to the happening of the rupture, all seemed to agree about what, on the probabilities, had happened in the worker’s brain leading up to and at the time of the rupture. This was that there had been a congenital weakness in the wall of a blood vessel supplying the brain; with the passage of time, the force of blood striking the weakness caused the gradual development of a balloon, so that the rounded part of the swelling constituting the ballooning effect became thinner and thinner; finally the pressure of blood made a tear in the blood vessel. Blood then leaked from the blood vessel into the fluid surrounding the brain. It also seems to have been common ground that such ruptures may be fatal or may do severe damage ‑
He then refers to a:
second kind of rupture of an aneurism which occurs as a result of an acquired disease ‑
No dispute that that is not relevant to this case. Then the third being an aneurism which comes from trauma; very rare and, again, not submitted by anyone to be relevant to this case.
TOOHEY J: Could I just ask you this, Mr Deakin: your took us to page 118, where the primary judge said that he was satisfied that the appellant suffered an injury simpliciter. Obviously it is based on the medical evidence, but how far does the medical evidence go in ascribing or identifying what happened as an injury? Did the doctors use that terminology, or is that a legal conclusion arrived at by the judge on the basis of the medical evidence?
MR DEAKIN: I think it is fair to say, your Honours, that the doctors did not use the words in so many terms. They certainly did not use the words “injury simpliciter” nor, as I recall the evidence, did they use the words “personal injury”. It was the description of the episode, if I can use that neutral word, provided by the doctors which provided the factual basis for his Honour’s conclusions. We would categorise it, your Honours, as a finding of fact nevertheless. Whilst it cannot be said to be exclusively a question of fact, it nevertheless is a finding of fact arrived at by the trial judge based on the medical evidence.
TOOHEY J: Can you identify for us what the injury was?
MR DEAKIN: Yes. The injury, we submit, your Honour, is very simply the tearing or rupturing of that aneurism. We submit that is the injury that his Honour is referring to. He says both, as your Honours have seen at line 6. He says that both the development of the aneurism and the rupture was not a disease. That, I suppose, leaves it open to an argument that, perhaps, the development of the aneurism itself was an injury. But we submit that it is the rupturing, the tearing, the breaking of the artery that occurred on 15 October 1987 which is the injury. And that is the essence of the finding. Whilst he uses the words “injury simpliciter” rather than “personal injury” we submit nothing turns on that.
We will be taking your Honours to some of the medical evidence that supports that finding but could I just deal with what the judges in the Court of Appeal have said about the matter before I take your Honours to that evidence. I was at 126 in Mr Justice Priestley and I had gone over to page 127. At the foot of 127, his Honour confirms what I have just read to your Honours that:
Judge Thompson took the view that an actual injury occurred in the worker’s brain when the aneurism ruptured, and that this was not a disease. That is, he held that the rupture was a non disease injury, falling within par(a) of the definition and not a disease injury falling within par(b). This meant that he need not consider whether the worker’s employment had been a contributing factor to the occurrence of the rupture.
And on that basis, he made the orders for payment. Then, taking your Honours over, Mr Justice Priestley then refers to the authorities which have been decided in this Court, all of which we have put before your Honours but, for the moment, can we just pass over to 131 where, having referred to Hornsby’s Case, he refers to what Mr Justice Fullagar said in Hornsby where there were the three categories of cases referred to by Mr Justice Fullagar. That is appearing at line 45 on page 131 where he talks of the three types:
(1) where a disease had been actually contracted through exposure to infection or other risk attendant on the conditions of employment; (2) where there was actual internal physical injury such as the rupture of an aneurism or of an oesophagus; (3) where death or incapacity resulted not from an actual physical injury, external or internal, but from the development or culmination of a pre‑existing and progressive morbid physical condition. He noted that in class (3) cases the final occurrence (he gave as examples coronary occlusion and auricular fibrillation) which resulted in death or incapacity was commonly referred to as a “sudden physiological change”. In his view, cases of the first and third class were cases of disease. What had happened to the worker in the case then before the court was within the third class.
In regard to his class (2), Fullagar J said cases falling within it were
“not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre‑disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the court was, in effect, that the employer must take the worker as he finds him.”
He then refers to the decision in O’Neill v Lumbey where Mr Justice Clarke described the arterial weakness which had caused the aneurism as not being a disease consistent with what the trial judge in this case has found, and going over - I will not trouble your Honours with a lot of material that I need not trouble your Honours with - to 135 at line 19 he goes back to what Mr Justice Fullagar said in Hornsby and says:
Fullagar J was clearly right in saying what he did about his class (2), from which it follows, I think, that the rupture of the aneurism in the present case which had resulted from a congenital weakness in the blood vessel wall is not properly to be regarded as a case of disease. Adopting also his reference to its being natural to regard the breaking of an artery as indistinguishable from the breaking of a leg, it seems to me to be appropriate to regard what happened in the present case as a par (a) non disease injury.
He goes on to say that that accords with what was decided in O’Neill, asks whether there is any different conclusion that the court should draw in the light of what Judge Thompson arrived at and says at line 50:
Not only was it open to Judge Thompson to come to the conclusion which he did, once it is recognised that the rupture of an aneurism present as the result of congenital weakness in a blood vessel occurs in the way in which it was described in the medical evidence in the present case, it seems to me to be a proper conclusion of fact that the events fell within the description of a non-disease injury within the meaning of par (a) of the definition.
Your Honours, the majority came to a differing view by two different means, I think it is fair to say. Mr Justice Meagher, we submit, his judgment is fatally flawed by his apparently overlooking the finding that was made by the trial judge. At page 143 of Mr Justice Meagher’s judgment his Honour says at line 19:
Judge Thompson is not to be criticised for failing to make a finding on the question of whether the incident under examination should be classified as a disease.
He puts:
It was not submitted by either party at trial that the aneurysm was or is a disease, despite medical reports -
As we have taken your Honours to it, I do not need to repeat it, but as your Honours recall the first lines we read to your Honours on page 118 of the judgment was a specific finding to the contrary of that so his Honour appears to have either ignored it or at least failed to take any proper regard to it. So, we submit that matter does seriously impinge on what Mr Justice Meagher decided and what he seems to have decided is contrary to the approach adopted by Mr Justice Clarke and Mr Justice Priestley in O’Neill v Lumbey. He seems to have decided that the weakness in this man’s artery was the disease and that is what he says at page 142, line 11. After referring to the other cases and Hussey in particular, he says:
The disease is the weakness; the deficiency in the number of cells or in some other property of the cells in the artery wall.
And, on that basis, he finds that it was a disease case properly categorised and notwithstanding the fact that a rupture had, in fact, occurred, that he says that it should properly be categorised as a disease.
We submit that firstly, there is no authority for that proposition at all, we would respectfully submit, for a conclusion that a weakness is a disease and in the absence of authority we submit that the conclusion could not be supported and one could use the eggshell skull type of example to show how erroneous it would be to conclude that a weakness should be equated with a disease either in this sort of case or in an eggshell skull sort of case.
TOOHEY J: What if there is a steady deterioration, to pick up the language of Justice Meagher at page 142, line 20, Mr Deakin? He is not so much fastening on to the weakness, as I read him, as the deterioration produced or resulting from the weakness.
MR DEAKIN: Yes, your Honour. There is some evidence that we will need to take your Honour to as to whether or not the conclusion which, it is fair to say, both Mr Justice Meagher arrived at and Mr Justice Powell arrived at in relation to deterioration, is the correct conclusion from the medical evidence. But what your Honour puts to me is that what his Honour is saying is it is a disease emanating from the weakness and it is the congenital weakness steadily deteriorating which produced the ultimate end result for this man at work.
Now, your Honours, we submit that because, firstly, he has overlooked the judge’s findings of in fact, at the first instance, and secondly, because his starting point is equating disease with weakness, that even if we are wrong on the lack of evidence in respect of a steady deterioration in this man’s case, we would submit that, nevertheless, this Court would not accept the conclusions which his Honour has drawn in respect of the categorisation of this episode. He does not, we would respectfully submit, adequately deal with the rupture as a separate episode. At line 35, what he says in respect of the rupture is:
The rupture of an aneurysm caused by, or incidental to, another disease (such as arteriosclerosis) is a disease injury. That does not mean the rupture of a congenital aneurysm does not form part of a disease process.
Now, your Honours, his whole starting point is that the disease process is the weakness and it leads from that through to the deterioration that your Honour Mr Justice Toohey has drawn to my attention through to the rupture. But if his starting point is erroneous, as we submit it is, then we would submit his conclusion is similarly flawed. We would submit that that is an incorrect method of categorising this episode involving the rupture of an artery.
BRENNAN CJ: Is the phrase “disease injury” to be found anywhere in the cases?
MR DEAKIN: There are varying terminologies used, your Honours. It started with the words of “injury simpliciter” and “disease simpliciter”. I am not aware of any case which expressly uses the words “disease injury”, but I cannot actually answer your Honour completely on that. I think everyone understood what is meant by it, namely, it is an injury falling within the disease definition, but I am not confident that the words “disease injury” has been previously used in the way that Mr Justice Meagher has used it, your Honour.
Could I just say this before leaving Mr Justice Meagher’s decision, that his Honour, with all due respect to him, does not attempt to deal with the medical evidence in any adequate way at all. He does not address what the doctors said in any respect. He comes to a conclusion which he says derives from that evidence but he does not attempt to deal with it, and we would submit that that is a further reason why the Court would not accept the conclusions which Mr Justice Meagher arrived at.
Mr Justice Powell took a different approach. His Honour set out 10 of the authorities dealing with disease cases. He then set out what appears from page 150 onwards seven of the definitions of disease which have been referred to in a number of those cases starting at line 37 on 150 of the appeal book going through those various differing wordings of what disease means in the context of workers’ compensation cases and then, we would submit, quite inexplicably, those definitions going right through to 154, says:
It is against the background of this wide variety of views as to what is, or may be, a “disease” or “injury” for the purposes of statutes such as the 1987 Act -
and he turns to the facts and does give his understanding of the medical evidence. Then at 156, point 45, after he has dealt with those various aspects of the medical evidence, not all of which we would draw to your Honours’ attention has actually emerged from the medical evidence but which seems to have been derived by his Honour from other sources, but that perhaps matters little. He says at 156, line 45:
In contract to the view expressed by Clarke JA in O’Neill, it has long been my understanding that, both for medical purposes and, as a matter of ordinary English usage, “disease” is a condition involving a disturbance in the function or structure of any organ or part of the body.
Now firstly, your Honours, we draw your Honours’ attention to the fact that that definition derives from one of his Honour’s own decisions, sitting in the protective jurisdiction of the Supreme Court, where he was determining whether a Downs Syndrome child fitted within a particular statutory formula for treatments of disease. It has nothing to do with the workers’ compensation jurisdiction at all and, we submit, without being unduly disrespectful, it is of no assistance at all in differentiating between disease and injury because, on its face, an injury is as capable of satisfying the definition of a condition involving a disturbance in the function or structure of any organ or part of the body, as is a disease. In fact, Mr Justice Mason, in the course of the special leave application, went so far as to say that in his view it appeared to be a satisfactory definition of injury, but whether your Honours need to go as far as that - it certainly, we would submit, is singularly unhelpful in distinguishing those two, and for that to be the basis of what Mr Justice Powell determined as being the correct categorisation of this case as a “disease” case rather than an “injury” case, we submit, is clearly erroneous and that your Honours would prefer and adopt the findings of the trial judge, reinforced as they are by the judgment of Mr Justice Priestley.
But, your Honours, having looked at those aspects of the judgments, could we then invite your Honours to consider the evidence which was called in the case from the specialist doctors who gave oral evidence. Could we take your Honours firstly to ‑ ‑ ‑
GUMMOW J: What will this show us?
MR DEAKIN: Well, it serves two purposes, your Honours; it shows the factual basis for the finding by the trial judge that it was more properly categorised as an “injury” rather than as a “disease”, but secondly, your Honours, we submit, properly construed, it does not support the progressive deterioration of the condition which did form a part of at least Mr Justice Meagher’s decision. We submit that properly construed, it shows that there is no way of knowing how long something like this exists in the form of an aneurism and the rupture occurs at a point in time when the repeated blows of the blood on this particular part of the artery are sufficient for it no longer to be able to withstand the pressure and it ruptures.
GUMMOW J: On this second aspect, was there any finding by the trial judge?
MR DEAKIN: On the repeated blow aspect, does your Honour mean?
GUMMOW J: Yes. You said you were referring to the evidence for two purposes; one was to be found as borne out in the trial judge’s judgment. Was the second borne out in the trial judge’s judgment?
MR DEAKIN: The second one, I think it is fair to say, he does not make any findings about it being non-progressive ‑ if I put it that way ‑ it is true, and nor, of course, does he make any finding that it was progressive. But it is for that reason, in part, that we feel that we do need to take your Honours to it, bearing in mind, your Honours, that the appellant suffered some difficulty because, at first instance, it was not put by the respondent that the aneurism was a disease and, on one view, it was not a matter that needed to be expressly addressed in the evidence, because it was not being submitted that it was categorised as a disease and that, nevertheless, was the basis upon which the Court of Appeal reversed the decision, even though it had not been put at first instance.
GAUDRON J: What was the submission at first instance?
MR DEAKIN: I am going to ask my learned friend to identify that, because I had a little bit of difficulty understanding it, your Honour. It cannot be disputed that counsel for the respondent was endeavouring to show that the employment had not contributed to the episode which occurred. But why that should loom as important if it was not being submitted that the underlying condition was a disease, I have a bit of difficulty understanding. It was as if “arising out of” or “in the course of” were still in the old form of “arising out of” and “in the course of”. But perhaps I could ask my learned friend to identify that because, to be honest, your Honour, I cannot answer your Honour’s question. I was not able to ascertain precisely what was the case that was being put by the respondent at first instance, other than to exclude the work as having any role to play in the manifestation of the rupture.
As it arose in the course of employment I could not understand why ‑ I suppose it should also be said there was no doubt it was disputed that it was an injury, I suppose, that is probably correct, although that is not recorded in the judgment, but it was disputed that it was an injury, but it appears it was not put that it was a disease. So, it must have been argued on the basis that it was neither, as I would understand it. But, I was not present at first instance and I cannot otherwise answer your Honour’s question.
TOOHEY J: I was going to ask you that: the approach taken in a lot of these cases seems to be to assume ‑ and perhaps rightly ‑ that there are only two possibilities, say, where there is a rupture of an aneurism, namely that it is a personal injury, or it is a disease, and once you exclude one you are left with the other.
MR DEAKIN: I think that is a fair summary of what Hockey v Yelland would support, your Honour, under the old definition. We will be putting as our second alternative submission to your Honours that, under the new definition, those mutually exclusive categories should no longer be adhered to but that is our alternative argument.
TOOHEY J: I was not thinking so much in terms of exclusivity, but the cases proceed, in many instances, on the footing that it has to be one or the other and once you have excluded one, you are left with the other, as it were.
MR DEAKIN: Yes. We submit that certainly with the new Act in its present form, it should not proceed on excluding one and left with the other; it should proceed on the basis, as logic would dictate, if one satisfies injury, the first one, in subsection (a), that is enough for the purposes of a worker being entitled to exclude. Or, putting it another way, your Honours, if (a) is satisfied an injury, why should any conclusion under (b) preclude recovery? That is, perhaps, putting it the other way. In other words, how should ‑ ‑ ‑
GUMMOW J: The definition does say “means” and “includes”.
MR DEAKIN: Yes, it does, and it is true that that was the wording that was used in the old definition. But the difference, your Honours ‑ and this is trespassing into my second alternative submission ‑ is that they now appear in separate subsections, whereas they never previously did, and that, therefore, (a) has a distinct meaning and (b) is intended to and is expressed to mean something else, namely that the meaning includes something different ‑ disease.
GUMMOW J: Yes, but they are not necessarily antithetical, in your submission.
MR DEAKIN: No. But can we leave that to the second alternative submission. Could I then just take your Honours briefly to the medical evidence. At page 38, Dr Kendall in-chief described the mechanism of the congenital aneurism as a weakness in the middle layer of the artery at line 40:
a weakness in the arterial wall and over time, particularly whenever there is a rise in blood pressure, you get a ballooning of that area. Sometimes it’s vexed first of all, sometimes it ruptures and that is the first, sometimes only, and sometimes last thing that happens.
You can have either brain damage or death. He then goes on to distinguish the congenital aneurism from the other two which we need not trouble your Honours with, except to note that the degenerative type of aneurism would more readily obviously fall into the category of a disease, but it is very different from the aneurism that occurred in this case.
In Dr Stenning’s evidence earlier in the appeal book, commencing at page 24, again similar terminology is used, referring to a weakness of the wall of the blood vessel at line 33, supplying the brain and the congenital weakness which occurs at the point where the blood vessels divide. This aneurism, if your Honours were to turn to it, is depicted in a sketch, appeared at the join where the artery divided and the exposed point in the Y of the artery is where the aneurism developed and ruptured. The sketch appears at page 90 if your Honours were to be troubled to look to it where, in very rough fashion, the artery is divided and it is the central point of the Y in the artery where the rupture actually occurred.
At page 24, line 40 he goes on to describe:
the weakness of the blood vessel wall balloons out some that it assumes the shape of a berry, and as it balloons out the rounded part of the swelling becomes thinner and thinner until finally the pressure of the blood behind it tears it.
And then there is various consequences that we need not trouble your Honours with and the brain damage that is referred to on the next page. Could I take your Honours over to 26 where he refers to the three types. Again, I do not think I need to trouble your Honours with anything more than that except that when he is dealing with the congenital type which is the relevant one, at line 21, after talking about the aneurism:
Initially the aneurism is not present but the blood flow impinges - when a blood vessel divides the blood is coming directly up the parent blood vessel.
So, we are coming up the base of the Y to where it divides:
It tends to strike the wall if you at the apex of the limbs of the Y so that there is pressure at that point.
He goes on to say:
the weakness is manifested by the vessel wall being unable to withstand the force of the blood flow.
And down the page at line 48/49:
Because of a pre‑existing weakness at that point that blood vessel is not able to withstand the pressure of the blood hitting it before it divides to go into each of the branches, and whereas a normal blood vessel will maintain its anatomy throughout life, the abnormal blood vessel gradually develops a balloon.
And at line 20:
Eventually the most rounded part of that aneurysm becomes sufficiently weak that it actually tears under the normal blood pressure.
Then there is a reference to something which is extracted from O’Neill’s Case. That paragraph that is indented derives from the O’Neill judgment at page 649 and he goes on then to deal with the other two types which I do not think I need to trouble your Honours with. Finally, Dr Prior, at page 50, at about line 40, he again describes the berry aneurism arising from a defect and says at 41:
The aneurysm itself is not present but the defect is there and over the years, particularly if there is raised blood pressure, then a blow out develops at the site of that defect, usually at the conjunction, the point at which a vessel branches
He is asked this question:
the fact that one has a cell defect at an arterial junction, does that always predispose a person to aneurysm and to brain damage or death within the course of their lifetime.
A. No, it’s possible to have an aneurysm which never causes any complaint throughout life.Q. And to your knowledge have there been statistics prepared from autopsies in relation to this.
A. Yes, there is a known percentage of autopsies at which aneurysms were found which were not suspected during life.
There is some further evidence on that issue, and going down the page to line 46 on page 51:
certainly can we say that this man’s aneurysm was in no way related to any form of degenerative change.
A. That is correct.
So that when dealing with inevitability and progression of the disease, we submit that evidence should be taken into account and it may occur as a quite sudden “blow out” to use the language of Dr Prior or a “tearing” to use the language of Dr Kendall or a rupture, of course, to use the language which has most frequently been adopted. Sometimes that is the first, the only and sometimes the last thing that happens as Dr Kendall said at line 45. So, we would submit that all of that evidence is consistent with “injury” in the form of the rupture.
Your Honours, it is true to say that the words “personal injury” themselves are not defined in the Act. It may be thought that there would be no reason for defining them but, we would submit - and there is not any clear authority in this area as to what they might mean within the context of this sort of legislation - but, your Honours, there is reference in some of the authorities, for instance, to “a pathological change”, “an abrupt pathological change”. There is reference to someone being hurt, I think, in some of the earlier cases. But, whatever definition is applied or whatever the words mean, we submit that the tearing of a swelling within an artery would, on any view of it, satisfy the definition of “a personal injury”, and it would only be if that were not a correct description of what had occurred that one could, in our submission, have recourse to an alternative characterisation of the matter, namely, as the manifestation or the last stage or the progression of a disease condition, even assuming your Honours are against us in concluding that the aneurism is not a disease.
It would only be if the aneurism, properly categorised as a disease - and we submit that would be erroneous categorisation of it - were to be described as the correct description of what occurs on the 15 October 1987 that your Honours would overturn what the trial judge found and what Mr Justice Priestley found. So we would submit your Honours would be satisfied that, as has been held in the cases that we have set out in the outline of argument - admittedly, some of them involve different statutory wordings but they all talked about injury, whether injury by accident or personal injury, but all the cases that we have set out in 1.4 of the outline of argument were all cases in which the court either acknowledged the possibility of, for instance, in Hornsby, or expressly held, as in Kavanagh, O’Neill v Lumbey, Ascione and McIntosh that the rupture in those cases was a personal injury.
We would submit that whether one uses the words “non-disease injury” or whether one uses the words “personal injury” which is now what appears in subsection (a), that is, in our submission, the correct categorisation of what occurred to this man and it is erroneous to conclude that it was a disease or the end process of a disease, particularly with the separation out now of the “disease” meaning from the “personal injury” meaning in the separate subsection. So, that is all we would want to put to your Honours on the first limb of what we are seeking to argue. If your Honours are against us on that - - -
BRENNAN CJ: Your question is whether or not an incident is to be characterised as an injury if the aetiology of the incident is non-extrinsic, is that correct, non-extrinsic to the body, not iatrogenic but something which owes its existence, at least in part, to an extrinsic cause.
MR DEAKIN: Your Honours have got in mind, I think, the passage in Hockey v Yelland where his Honour the Chief Justice Mr Justice Gibbs refers at 137, I think it is, to “a physiological change resulting from an external cause”, something to that effect. There is no doubt that - I cannot imagine this is disputed, and if any clear authority was needed for the proposition Hankinson’s Case provides it that if there is an external event which produces trauma and injury, some physiological change, even if disease is present then, clearly, it satisfies the definition of an “injury”.
BRENNAN CJ: Quite.
MR DEAKIN: There cannot be any dispute about that. The question which I think your Honour is asking me is absent an external event, absent and external cause, can the court be satisfied that an injury occurs.
BRENNAN CJ: Putting it another way, what is the policy of the Act which requires the relationship of the employment to the onset of disease in paragraph (b) which does not make it necessary in paragraph (a) when there is no extrinsic cause?
MR DEAKIN: Well, that is perhaps a difficult question in distinguishing the two. We would submit that the policy of the Act is to provide adequate compensation for workers who sustain any injury at all whilst at work, but to provide only a limited benefit to workers who, suffering from disease, are disabled because of some part of that disease process. In that latter case, the qualified benefit, as your Honours know, is it is only if the disease either is contributed to by the employment or an aggravation of exacerbation of the disease occurs whilst in the employment.
I suppose it is a floodgates argument. I suppose, your Honours, there are too many diseases which could be compensable if someone were to suffer from symptoms as a result of them in a way that is not contributed to by the employment but occurs whilst people are working. I suppose that is the rationale behind it. But what the Act emphasises and has consistently emphasised is that all injuries occurring at work in the course of employment, are compensable, and it does matter what may have been the cause of those injuries. When the Act was first introduced, as your Honours known, it was “arise out of and “in the course of”. But for many, many years, well before the 1987 Act was introduced, that was amended to be “arising out of or, in the course of”, and the ‑ ‑ ‑
BRENNAN CJ: Well, one of the immediate effects of that, of course, was to ensure that the worker no longer had to establish that the cause was work related.
MR DEAKIN: Indeed, yes.
BRENNAN CJ: That is what makes me puzzled about your present argument where we are not looking for an extrinsic argument at all.
MR DEAKIN: No, but, your Honours, whilst it is not necessary for us to find an extrinsic cause in the case of an injury, because as long as it occurs in the course of employment it is not necessary, it is only really if your Honours are against us on that primary submission in relation to injury that we have to deal with the causal matters. But what I was addressing in taking your Honours to that medical evidence is the argument which, I suppose, in proper sense, should be in reply, but the argument which I anticipate will be put against us, namely, that the reason why this is properly categorised as a disease was because there was some ongoing process going on before 15 October 1987, which ‑ I do not know how my friend is going to put it to your Honours but which either culminated in or climaxed on, or manifested itself, or something to that effect, on this particular day, which happened to be at a time when he was at work.
But why we have put it the other way round, rather than seeking to exclude something because it may fall within (b) and why we have rather emphasised one looks to (a) first, is that because the policy of (a) is very clear; that no matter what may cause the injury, if it is an injury, and it occurs in the course of employment when a man is it work, as this man is, the legislature intends him to be compensated, and that has always been the case since the Act was amended to have them in disjunctive form.
Why should that policy be defeated if the man does suffer an injury simply because he may also have some benefits under the second alternative, namely the disease provisions, and we submit that would be the effect of construing it in that way, because otherwise he would be entitled to relief under (a), but deprived of relief because (b) is satisfied, and so that, instead of widening the cover and scope of compensation, in fact there has been a substantial erosion of it, and one could imagine innumerable cases where trauma to a person which would otherwise be compensible could be excluded because a disease process was also present. Let us take the simple example of a rupture of a medial ligament in the knee; it may well be that the man has extensive degenerative changes in his knee and yet is it to be suggested that because of those extensive degenerative changes in his knee, which may at some stage produce some trauma to the knee, that he would be deprived of benefits of it even though the rupture of the medial ligament would otherwise clearly be an injury to him. We submit that that is just one example of it, as to why it could not possibly mean that.
Equally, a retinal detachment; there are many conditions of the eye which could give rise to, or make one susceptible even to, a retinal detachment, but is it to be suggested that a worker who suffers a retinal detachment at work, arising in the course of his employment, should be deprived of the benefits of that injury, simply because there might be some ongoing process unbeknownst to him going on in his eye.
TOOHEY J: But does it follow from that, Mr Deakin, that a ruptured aneurism will always be personal injury by accident?
MR DEAKIN: Well, your Honour, that is the view that is adopted in that Victorian case that we put on our list of authorities and we submit that it is one view of the matter. But the alternative view would be, consistent with the evidence in this case, that where there is an ongoing degenerative process, such as the build-up of fatty substances within the arteries, or there is a hardening of the arteries which is the typical non-congenital condition, which may lead to an ultimate rupture, it may be thought that those cases ought to be excluded from the concept of injury, because there is a sufficient connection with the disease to have it properly categorised as a disease process.
Well now, we submit that your Honours would conclude that all ruptures, because of the nature of that tear, that injury occuring, should be categorised as an injury case, but it may be that if your Honours are against us on that, the degenerative change cases where the fatty build-up or the hardening of the arteries is the true cause of the artery ultimately rupturing, may need to be put into a different category and, in answer to your Honour’s question, mainly to be categorised as disease rather than injury.
But we would submit that Mr Justice Murphy - can I just give your Honours a very quick reference to it - in the decision of the Victorian Full Court, does come to that conclusion that essentially all ruptures should be treated as injuries. The case is Accident Compensation Commission v McIntosh (1991) 2 VR 253, the two other members of the court both agreeing with what Mr Justice Murphy said, and at the very foot of 262 - your Honours, it may be of assistance to read a little bit more out of this judgment, because we submit it is a very cogent and powerful reasoning. His Honour says, on the third paragraph at line 12 on 262:
It is not, I think, possible to say that, as a matter of law a sudden rupture of an artery or vein at work, or during a protected period, causing an immediate extravasation of blood to result in a haemorrhage, cannot be a “physical injury” as that term is used in the definition of injury in s 5.
So that we are not confusing our definitions, your Honours, it says “physical or mental injury”, I think, section 5 means any physical or mental injury and, without limiting the generality of the foregoing, includes a disease. His Honour goes on to say:
Indeed, those who would contemplate the acceptance of such a proposition, endeavour to limit its width, by qualifying it immediately, and saying that this is the law where the occurrence of the event is unable to be connected with some external happening or cause, and is aetiologically to be seen to be the result of an underlying disease ‑
That is the matter that the Chief Justice addressed to me ‑
occurring as an event in the progression of an autogenous or idiopathic disease. I have said that it was not able to be argued in the present case that the congenital defect was progressive.
Can I take your Honours down to 30:
Everyone appears to agree that if some external agency precipitates the rupture, it is a physical injury ‑ but by some line of reasoning (obscure to me) it is suggested that, if the precipitating factor cannot be identified, or is not identified, or is found not to exist, the rupture ceases to be a physical injury. How or why this is said to occur is not made clear.
It is put that without an external agency a rupture of an artery in the brain, with haemorrhaging of the blood extravasated into the brain, is simply an aggravation of some disease process which entitles the worker to compensation only if his work is a contributing factor in causing the aggravation. In other words, it is put that a rupture of an artery during a protected period cannot be compensated if incapacity results, unless it can be shown that the rupture was contributed to by some external agency or by work. The rupture is equated with the disease.
The argument is that it is not, of itself, a “physical injury”. I have the utmost difficulty in accepting such a proposition. If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture ‑ something quite distinct from the defect, disorder or morbid condition, which enables it to occur. An occlusion caused by the distinct flaking off of a platelet, and the blocking of an already narrowed arteriosclerotic artery is quite distinct from the diseased condition of the artery itself. So also is a rupture distinct from its aetiology, whether progressive or not.
So, we submit that would support the view that all ruptures should be treated as injury and we submit it is a powerful reasoning that this Court would adopt to accept that proposition, but even if your Honours are not prepared to go as far as that and that the disease type aneurism should be excluded, we submit that that would not exclude this case which is a different aetiology altogether. That case adopted as correct the O’Neill v Lumbey approach as your Honours see from the next pages of the judgment.
In answer to your Honour Justice Toohey, we submit that one should treat rupture as an injury and it should be treated in that fashion whatever its aetiology but, alternatively, if your Honours are against us on that, then in cases other than the degenerative disease cases, then it should be treated as an injury falling within subsection (a) as the trial judge held in this case.
Can we remind your Honours of Kavanagh v Commonwealth 103 CLR 547, because in Kavanagh, although it is true to say it was different wording under the Victorian legislation - and this also answers your Honours Justice Brennan’s question to me about the external event - the facts in Kavanagh were that the man suffered a rupture of his oesophagus as a result of vomiting and it is important that in Kavanagh there was no external event at all occurring.
There was nothing extraneous to the man which caused the vomiting or the rupturing of the oesophagus. It was never established what it was. It was assumed that some sort of virus must have invaded him because he did get some diarrhoea which then progressed to vomit and the ruptured oesophagus occurred, but the cause of it could not be explained. What every single member of this Court in Kavanagh concluded was that notwithstanding the absence of any external event at all, that it nevertheless constituted an injury for the purposes of the Commonwealth legislation.
True it is that the Commonwealth legislation was not in the same words as either our 1926 Act or the current legislation but, your Honours, it still talked about personal injury. Admittedly, it talked about personal injury by accident but if anything that, one would think, would narrow the meaning of it rather than expand it, but every member of that Court held that vomiting resulting in the rupture of an oesophagus without external event or cause was nevertheless a personal injury by accident.
Could I take your Honours not to every judgment, but could I take your Honours to the Chief Justice, Justice Dixon’s judgment at the foot of page 552 where he refers to what occurred. At the very last three lines of 552 his Honour says:
The question in contest is whether the rupture of the oesophagus was a personal injury by accident arising in the course of the employment.
And, on the next page at about point 7 or 8:
The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure.
If we needed a definition that may be quite a convenient one and can I just give your Honours page references to all of the other judges who come to a similar conclusion on the facts: Mr Justice Fullagar at 558, Mr Justice Taylor at 562; he dissented because of a lack of connection with the employment but at 562 he clearly agreed that it was a personal injury by accident; Mr Justice Menzies at 569 and Mr Justice Windeyer at 578. Again, Mr Justice Windeyer dissented in respect of its connection with employment but, nevertheless, agreed that there was no dispute that it was a personal injury by accident.
We submit that answers what the Chief Justice put to me in relation to the requirement of any external event or cause, because Mr Kavanagh had no such external event or cause and all members of the Court agreed, nevertheless, that it satisfied the definition of “personal injury by accident”. Whatever Chief Justice Gibbs meant by the example that he gave in Hockey’s Case where he refers, in that passage we have already looked at, at 137 as being an example of an injury, namely a physiological change resulting from an external cause, could not be said to mean that no other physiological change could satisfy the definition of “injury”. We submit he does not say that. All it is is an example of something which would constitute an injury but Kavanagh, we submit, is clear authority for the proposition that no external event is required to satisfy the definition of “injury”.
Could I move to the second alternative submission. Assuming your Honours are against us on that simple categorisation of the case, as an injury and not a disease, we accept, of course, that if it is a disease and nothing more than a disease, then this appeal must fail and there is nothing we can put to your Honours, of course, to dissuade your Honours from that. The question which will have to be determined is whether the employment contributed to it. But, we submit that if (a) is satisfied, then even if your Honours come to the view that it also falls within the definition of a disease within (b), that nevertheless the worker ‑ ‑ ‑
GUMMOW J: There is only one definition.
MR DEAKIN: I do apologise, your Honour. Even if falls within what subsection (b) refers to as a disease, then the worker’s entitlement under (a) still exists and he is entitled to his compensation because it falls within (a). We do need to look at the rational basis for what was the original construction of the original section which led to what have been called the mutually exclusive categories. The most convenient way of doing that, rather than taking your Honours all the way back to the Privy Council decision, is to look at Hussey’s Case which is where this Court adopted the Privy Council construction of the section in Slazengers. Darling Island Stevedoring & Lighterage Co Ltd v Hussey 102 CLR 482. It is at pages 492 to 493 where the Chief Justice sets out what the Privy Council determined in Slazengers Case and why they did it. He quotes from Lord Simonds in the Privy Council at 492 where, in summary, what his Lordship says is this at about point 6:
“But this at least is clear that in the Act the word ‘injury’ (unless the context or subject matter otherwise indicates or requires) ‑
we emphasise those words ‑
must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease”.
His Honour, the Chief Justice says:
This sentence, in my opinion, contains within it a statement of the ultimate decision which the judgment reaches. That decision is that the ordinary rules of construction prevail and that the definition excludes from the meaning of “injury” any other disease than one which satisfies the conditions it expresses.
I do not want read all of what follows, but can I go over the page to page 493, after further quoting from Lord Simonds ‑ perhaps I should read the quotation from Lord Simonds, at about point 4 on 493:
It appears to their Lordships that the implication of this intention is irresistible. The improbability of the word “injury” bearing a different meaning in successive paragraphs of the same sub‑section is so great that any legitimate interpretation which avoids this result would appear preferable. It must be conceded that the opening words of s 6 admit the possibility of the defined meaning being excluded, but this is a general provision covering all the definitions. As a matter of construction it covers the definition of “injury”, but ‑
And he goes on to deal with the improbability of the draftsman intending two different meanings, and therefore concluded that no disease, unless it was a disease which satisfied the particular definitions, should be included with an injury.
But what that passage makes clear, we submit, is this, that it is because, firstly, there was nothing in the context or the subject matter of the Act which required a different conclusion to be arrived at but, more importantly, it was conceded that the opening words of section 6, which included the definition of “injury” in much the same words as they presently bear, admit of the possibility of the defined word meaning “being
excluded”. But we submit that the legislature clearly had a very distinct purpose in mind in altering the old definition which had stood for many, many years, whereby ‑ and I did provide your Honours, at the back of the outline of argument, with the two pieces of legislation so that your Honours can compare them.
The wording, of course, is not materially different, except for the word “and” being omitted. But from previously being within a single definition with different categories, there are now, we submit, whilst Your Honour Justice Gummow is, of course, correct in saying it is still a definition, there are now two distinct categories within that definition, and “disease”, whilst it is still included within the definition, is in a different category to the “personal injury” referred to in (a).
So that whereas previously it was all rolled up in one inclusive definition, there is now a distinct definition of a particular part of it, namely personal injury, appearing in (a), and a further part of the definition in (b), including nominated diseases, and whatever logical basis there was, and we, of course, accept the logical basis that did previously exist, for saying that therefore disease must operate to exclude all other categories ‑ a disease falling within the disease provisions must operate to exclude all other categories ‑ can no longer operate, in our respectful submission, and nothing flowing from the definition of disease in (b) can, in our respectful submission, affect the meaning of “personal injury” in (a). If, as we put to your Honours, this is a personal injury within (a), then the appellant is entitled to succeed.
We do not understand any of the cases to have expressly dealt with this before, namely the possibility of both being satisfied, but we submit there is no reason in policy or on the reading of the Act why if (a) is satisfied the worker would not be entitled to it. It could not mean two different things; it could not have a particular meaning when disease is not present and have a different meaning when disease is present, and if (a) is satisfied and that what occurs is properly describable as a personal injury, then, your Honours, we submit that the worker is entitled to succeed and that nothing within (b) could alter that entitlement. So, your Honours, on that alternative basis we would submit the appeal ought to be allowed, even if your Honours are against us on the principal basis.
BRENNAN CJ: Thank you, Mr Deakin. Yes, Mr Jackson. You have some notes of argument, Mr Jackson.
MR JACKSON: Yes, your Honour. May I hand to the Court copies of our outline of submissions.
BRENNAN CJ: Mr Jackson, in paragraph 4 of your notes of argument you raise the question of whether Hockey v Yelland should be overruled, not distinguished.
MR JACKSON: Overruled, your Honour; that is our submission, because what we submit is that in reality, on both issues ‑ ‑ ‑
BRENNAN CJ: You appreciate the problem that that gives rise to with a Court of five, Mr Jackson?
MR JACKSON: Your Honour, I am not asking that it be overruled; what I am submitting is that our learned friend’s argument is asking the Court to overrule the decision. We are content to have the Court deal with the matter, but we do say that is what the effect of the argument on the other side is.
BRENNAN CJ: What you say is, essentially, that your argument is supported by Hockey v Yelland, and to find in favour of the appellant is tantamount to overruling Hockey v Yelland?
MR JACKSON: Yes, your Honour. The only respect in which it would not ‑ ‑ ‑
BRENNAN CJ: And is inevitable, is that what you say?
MR JACKSON: Yes, your Honour. I add one qualification. The only qualification, your Honour, is this, that the legislation in question in Hockey v Yelland was the legislation of Queensland. This legislation is New South Wales.
BRENNAN CJ: That is the only distinction in your submission?
MR JACKSON: In our submission.
TOOHEY J: And do you say it is inevitable whether the Court gave effect to the first submission or the alternative submission?
MR JACKSON: Your Honour, both. May I explain what I mean by that, very shortly. What we would submit is that Hockey v Yelland disposed of such differences of view as there might have been in the past under different legislation such as that in Kavanagh. Kavanagh is specifically referred to. There are a number of cases dealing - and we really tried to summarise this in paragraph 7 of the outline of submissions. Until Hockey v Yelland, there
had been a number of cases dealing with various provisions referring to personal injury by accident, some reference perhaps to disease, and so on. There was an obvious difficulty in reconciling, for example, paragraphs (a) and (b) of the definition in the present case. They have to be reconciled in some way. Hockey v Yelland cut the Gordian knot, or whatever expression one chooses to use.
In doing that, what was decided was that where there was a condition of the present kind it was one which did not fall within paragraph (a) but fell within paragraph (b) and the type of condition was - and we refer to this in paragraph 10 - exactly what the Court is dealing with here. The view taken by the Court in that case was one which depended not just upon what the particular nuance of facts may have been, but depended upon a view taken about the meaning of the provisions.
BRENNAN CJ: The Court will adjourn briefly in order to consider what course it should take.
AT 3.22 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.28 PM:
BRENNAN CJ: I propose to call on Mr Deakin first, Mr Jackson. Mr Deakin, if the Court were with Mr Jackson in the construction of what was said in Hockey v Yelland the question would then arise whether you would wish the Court to overrule Hockey v Yelland?
MR DEAKIN: Your Honours, if your Honours were to accept Mr Jackson’s submissions and allowing for the amendment in the Act were nevertheless to be of the view that Hockey v Yelland accorded with my learned friend’s submissions then, your Honour, we would submit as a last alternative that this Court should overrule Hockey v Yelland in the way that we had outlined the case. We sought, as your Honour knows, to distinguish it on the basis that it dealt with the predecessor of the section but if your Honours are against us on that then we would submit that this Court should overrule it.
BRENNAN CJ: The problem arises, of course, that we are constituted only by five so that the choice is one of two and it is a stark one. That is, if you are willing to abide by whatever view this Court takes on the question of distinguishing and you may, therefore, ultimately perish with Hockey v Yelland being preserved, then so be it: we do not need to reconstitute. If, however, there is the prospect of the need, on your argument, to overrule Hockey v Yelland, then the case would have to be adjourned and the Court reconstituted in order to consider that submission.
McHUGH J: It may require more than overruling Hockey v Yelland. It may require a full examination of all the cases on this topic.
MR DEAKIN: Yes.
GUMMOW J: Starting with Slazenger.
MR DEAKIN: Yes. Your Honours, I think everybody involved in this area of the law agrees that the whole thing needs to be overhauled, if not overruled, because the matter is left in such a state of uncertainty and that may well have operated in the Court’s mind in granting special leave in this case but, relevant to my client’s case, could I inquire would the Court be able to reconstituted tomorrow?
BRENNAN CJ: No.
MR DEAKIN: No. Your Honour, I think I should get instructions on the matter. My own inclination would be to say that I think we would need to have that as an argument in our submissions to the Court and that, therefore, the Court may need to be reconstituted, but could I have the opportunity to take some instructions on it?
BRENNAN CJ: Yes. Before we adjourn for that purpose I will see if Mr Jackson has anything further to say.
MR DEAKIN: Yes, thank you.
MR JACKSON: Your Honour, only this of course, that if the Court were to adjourn in order to be reconstituted at another date to rehear the matter we would, of course, wish yet to address submissions on the question whether Hockey v Yelland should be overruled, even if the Court were to take a different view now, because your Honours would appreciate that the Act which is the subject of the proceedings is an Act which was enacted not very long after the decision in Hockey v Yelland. I do not mean a matter of days, but a matter of a few years.
BRENNAN CJ: Yes. How long would you require, Mr Deakin?
MR DEAKIN: Would your Honour just give us 10 minutes?
BRENNAN CJ: Of course. Yes, we will adjourn for 10 minutes.
AT 3.32 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.37 PM:
BRENNAN CJ: Yes, Mr Deakin.
MR DEAKIN: My instructions are to avail ourselves of what the Court has foreshadowed and to seek to have the further argument of the matter conducted before the Full Court.
BRENNAN CJ: Yes, very well, then the matter will stand adjourned to a date to be fixed.
MR DEAKIN: If the Court pleases.
MR JACKSON: Your Honours, I suppose I should just say one thing in relation to costs and it may ultimately be academic, of course. Would your Honours, in view of the fact a differently constituted Court will be dealing with the matter finally, reserve to that Court, perhaps, the question of any costs occasioned by the adjournment?
BRENNAN CJ: Yes, costs will be reserved.
AT 3.39 PM THE MATTER WAS ADJOURNED
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