Zickar v MGH Plastic Industries Pty Ltd

[1995] HCATrans 86

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S146 of 1994

B e t w e e n -

DARRIN ZICKAR

Applicant

and

MGH PLASTIC INDUSTRIES PTY LIMITED

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 1995, AT 11.15 AM

Copyright in the High Court of Australia

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the applicant with my learned junior, MS L.P. McFEE.  (instructed by Lewis & Fawkner)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR R.G. JONES, for the respondent.  (instructed by Curwood & Partners)

MASON CJ:   Yes, Mr Deakin.

MR DEAKIN:   As your Honours are probably aware, at least in a general sense, in every State of Australia and under Commonwealth legislation as well, workers compensation benefits are provided by legislation including a definition of compensable injury with two separate considerations.  The first is referred to by the trial judge in this case as an injury simpliciter - a personal injury simpliciter; the second, relating to diseases contracted or aggravated by the employment.  Clearly, there are variations in the wording used amongst the various State and federal legislations, but common to all of the legislation is a difference between benefits flowing from injury per se  - injury simpliciter - which arise in the course of, or in respect of employment, as opposed to injuries categorised as disease injuries in which an additional requirement is imposed; namely that employment contributes to the contraction or aggravation of the disease.  It is therefore, we would submit, abundantly obvious that in determining entitlements under all legislation - and in particular, of course, under the New South Wales
legislation the subject to this application - it is critical to know what bodily conditions would ordinarily fall within the definition of “disease”, in which the additional ingredient is required; as opposed to injury - whether it is described as personal injury or merely injury - in which there is no such requirement.

What this case graphically illustrates, in our respectful submission, is that at least in New South Wales and in Queensland, where there is no statutory definition of “disease” provided, there is no binding and widely accepted definition of disease established in the authorities.  The position is quite unclear as the judgments of this Court illustrate.  The facts we need not take your Honours to in any detail, except to have it noted, as your Honours would already gleaned, that it is a case involving a cerebral aneurism which was of congenital nature, which ruptured whilst the man was at his place of employment, leading to a stroke and significant brain damage.  In this case, the trial judge had the benefit of oral evidence from three expert medical witnesses who were called on behalf of the applicant, as well as reports from those doctors and reports tendered on behalf of the respondent, but the trial judge made express findings based on that evidence, that it was a case of “an injury simpliciter”, to use his Honour’s words.  Those findings are to be found at page 4 of the appeal book.  He further found, expressly, that this was not a case of a disease.  He found that additional finding at line 5 on page 4 as well as line 14.  Those findings were upheld and adopted by Mr Justice Priestley in his reasons in the Court of Appeal - he being in the minority.  The majority seems to have approached the case on the assumption that if it is a disease condition then the worker’s entitlements to compensation, of necessity, must be determined under the disease provisions.  The majority determined that in this case, although it had not been put at first instance that this was a disease case requiring the applicant’s entitlements to be determined exclusively under the disease provisions which, in turn, of course, requires him to satisfy the onus of proving that the employment contributed to the injury.

If one looks at Mr Justice Meagher’s judgment initially, his Honour, we submit, clearly wrongly assumed that there had been no finding by the trial judge on the issue of whether or not it was disease.  If your Honours were to turn to page 29 of the book, at line 15 his Honour says:

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.

That was clearly an erroneous conclusion in the light of the express findings that we have already taken your Honours to on page 4 of the judgment.  Mr Justice Meagher did not appear to determine what meaning should be given to the word “disease” - there being no statutory definition of it - but appears to have concluded that in this case it was the weakness in the wall of the artery which constitutes a disease.  We would respectfully submit that that conclusion is not supported by authority.  It is certainly not supported on the facts of this case, as found by the trial judge and, we would submit, clearly wrong.

Mr Justice Powell, who of course was the other judge forming the majority in the case, having set out no less than seven definitions of disease, deriving from various authorities - both of this Court and the New South Wales Court of Appeal - commencing on page 37 of the book and going over to the foot of 39 and over to 40, comes to the view, understandably, that there is no accepted meaning of “disease” that is established on the authorities, and creates, with the greatest of respect to his Honour, his own definition deriving from an earlier decision of his when he was sitting in another place.  His conclusion as to what “disease” means is contained at the foot of page 42, wherein he describes it as:

a condition involving a disturbance in the function or structure of any organ or part of the body

We would respectfully submit, your Honours, that that definition, as it is apparently accepted by his Honour, is singularly unhelpful in drawing any distinction between injury and disease, because any injury - even a traumatically inflicted injury - would satisfy his Honour’s definition of “a condition involving a disturbance in the functional structure of an organ or part of the body”.  So, far from helping the principal issue in the case, it considerably confuses it and is of little assistance at all. 

Applying that definition, his Honour found, without referring in any detailed way to the trial judge’s findings, that this case, in his view, satisfied that definition rendering it disease, and applying what the Privy Council had determined in the Slazengers’ Case, subsequently applied in this Court in Hussey, that it was a disease case, that all of the workers entitlements were limited to the disease provisions and that therefore the worker has no entitlement to be compensated on the basis of an injury.  We would submit that both of the majority judgments were clearly in error in those respects that we have identified, and the questions which we submit give rise to special leave considerations are that this case is not a matter where applying an accepted definition, or applying an accepted statement of principle, where judges of the intermediate Court of Appeal express differing views on how those definitions should be applied to the particular facts of the case, but the case demonstrates that this area of the law is so uncertain, with so many decisions which are, to say the least, difficult to reconcile - and on another view of it, plainly contradictory and inconsistent - that it calls for a definitive statement by this Court as to what are the applicable principles.  We would respectfully submit that there are two issues which call for intervention by this Court.

MASON CJ:   Can I interrupt you to ask you this question?  Is not the decision of the Court of Appeal consistent with the decision of this Court in Hockey v Yelland?

MR DEAKIN:   We respectfully submit, not, your Honours.

MASON CJ:   Why not?

MR DEAKIN:   Because firstly, Hockey v Yelland has to be looked at in the context of what the Court was called upon to determine in that case.  It was an application for a writ of certiorari which required error of law on the face of the record to be demonstrated.  The nature of the inquiry that the Court was called upon to embark upon in that case was circumscribed considerably because of that very fact.  It was not even an appeal limited to a question of law, it was an appeal limited to an error of law on the face of the record.  The facts were not required to be gone into.  There were no reasons. even, for the determination.  So, all that the High Court was called upon to determine in that case was; was there an error able to be demonstrated on the face of the record in the light of the medical board’s findings.

McHUGH J:   But the decision still held, did it not, that the two paragraphs of the definition are mutually exclusive?

MR DEAKIN:   With respect, your Honour, it has been simplified to be summarised in that way but, we would respectfully submit, oversimplifies.  What Yelland confirmed is, firstly, it is a matter of what the statute says - there can be no dispute about that - and varying results can be explained because of different wording in the statutes.  But what it otherwise decided, we would respectfully submit, is this; that where you have disease simpliciter cases, which are properly to be treated as diseases, then they call to be determined exclusively under the disease provisions.  What Yelland does not say, we would respectfully submit, and what it does not exclude is any consideration of the issue of whether there has been personal injury nevertheless.  It is the latter point that we submit remains open, notwithstanding Yelland.  If it is a disease case, Yelland and the Privy Council and earlier decisions of this Court confirm that it has to be dealt with under the disease provisions.  If, notwithstanding the fact that it may satisfy the disease provisions, there is a personal injury involved, as we submit is the case in this case on the findings of the trial judge, then the rights to compensation can be determined and should be determined under the injury provisions and not under the disease provisions.

McHUGH J:   What did you mean earlier in your submissions when you said there are “inconsistent decisions”?

MR DEAKIN:   I meant , your Honours, that unless one takes the submission which I have just put to your Honours, it is difficult to reconcile the two decisions that are referred to in our summary of argument, namely, Hankinson’s Case and Sharpe’s Case wherein there was undoubtedly present a diseased condition where the Court nevertheless held - in the first case, Hankinson, in this Court, and Sharpe’s Case, in the Privy Council - that the facts of the case gave rise to a finding of personal injury.

McHUGH J:   I thought Yelland settled that question.

MR DEAKIN:    Your Honours, we would submit that it was not settled by Yelland; it was explained in the context of the different statutory provisions but we would submit it did not finally settle the matter.

MASON CJ:   All I can say, Mr Deakin, is that that was not my understanding.  I participated in the decision in Hockey v Yelland.

MR DEAKIN:    Your Honour did participate in it and your Honour agreed, as your Honour recalls, with the Chief Justice’s decision in the way that the Chief Justice approached the case my learned friend and what your Honours, of course, have in mind is that within the Chief Justice’s judgment there is an express agreement with what Mr Justice Stephen and what your Honour had said - - -

MASON CJ:    - - -in Favelle Mort.

MR DEAKIN:    Favelle Mort had said.  We would submit that if what flowed from the case was strictly as your Honour Justice McHugh has put to me, then it would have called upon the Court in Hockey v Yelland to say, expressly, “We reject the approach and line of argument which was accepted by Mr Justice Jacobs in Favelle Mort and with whom Mr Justice McTiernan agreed.  But, your Honours, we would submit what we have been putting to your Honours is the correct construction of that case, particularly if your Honours bear in mind what was said by the Chief Justice in Hockey v Yelland at page 133 of the judgment where his Honour preserves the very matter which we are seeking to outline to your Honours.

At the top of page 133 in the judgment of the Chief Justice in Hockey v Yelland, after referring to some earlier decisions in respect of the definition of “injury”, his Honour says this:

Something that is an injury within the ordinary meaning of that expression will therefore come within the definition although it was not causally related to the employment.  However an injury will not answer the description of the words in par.(a) or par.(b) of the definition unless the employment was a contributing factor.

In the present case, clearly the subarachnoid haemorrhage occurred in the course of the appellant’s employment.  The question then arises whether the haemorrhage was necessarily an injury in the unextended sense of the definition. 

So that is asking the very question which we submit is the question in this case.  Even though it is a disease case, the question then arises whether the haemorrhage was necessarily an injury in the unextended sense of the definition; “necessarily” because in that case it was an order to review a writ of certiorari.

Now, your Honours, we would submit that that is the critical passage in saying that disease cases, strictly speaking, clearly fall to be determined under “disease” but that does not preclude an inquiry, perhaps even a preliminary inquiry, as to whether it satisfies the “injury” definition.

DEANE J:   Well, what about the rest of the paragraph there?

MR DEAKIN:    Yes.  What his Honour goes on to say, your Honour, is that question is important because of what the board had found in respect of the subarachnoid haemorrhage in that case.

DEANE J:   What they may have.

MR DEAKIN:    Yes.  The difficulty, of course - - -

DEANE J:   The inference is though that they had to take that view.

MR DEAKIN:    The difficulty was, as we have been putting to your Honours, that this was a very limited point in this Court in Hockey v Yelland because it had to be an error on the face of the record and the board’s simple resolution of the matter, which is reproduced in the report on page 128, was nothing more than that it did not constitute an injury within the meaning of the Act, and that was all the Court had to deal with.

DEANE J:   If one reads the third sentence of that paragraph as meaning the only way you could justify the board’s holding is if they took the view, you would say that that was wrong?

MR DEAKIN:    No, your Honour, we would respectfully say it would not be wrong.  We would respectfully say that this case could not determine the matter, and the Court had to deal with it on the basis of what was limited on the face of the record, but the question, nevertheless, was capable of being asked, namely, “Does the circumstances nevertheless give rise to a finding of injury simpliciter?”  This Court said in that matter it was determined adversely.  It was not.  It was a non-injury simpliciter case and that therefore the Court did not interfere with the decision which had been made. 

Your Honours, the question is whether what is included in the Act, namely, a right to compensation for an injury simpliciter, is excluded in all cases in which a disease is involved.  That is really the question which is before the Court in this case and we submit that Hockey v Yelland does not determine it and that there is nothing in Hockey v Yelland or any other case which says that in every disease case you have no right to prove that the matter arose as an injury simpliciter. We would respectfully submit that what my learned friend has extracted from what is at 137 in the judgment is no more than an example of cases which fall into either the disease category or the injury category but nowhere does Chief Justice Gibbs attempt to say that those are the criteria which are to be applied. At page 137, the Chief Justice says:

On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition -

pausing there:  we have no quarrel, of course, with that.  That begs the question.  What that says is, “if there is nothing more than disease present, then there can’t be injury”.  And he goes on to say:

if the incapacity is to be compensable it must fall within par.(a) or par.(b).

No quarrel with that of course.

On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment.

Now, your Honours, we submit that that applies certainly if there is an external cause even if disease is present and, we would submit, his Honour should not be read to be saying there that it is only if an external cause occurs that one can have a definition of “injury” because if his Honour was saying that he is contradicting all of the authorities, well established, dealing with what “injuries arising out of the course of the employment” means.  There is no requirement for an external cause.  So, his Honour is giving no more than illustrations of what can be a compensable injury and can be a compensable disease under the two categories.  But his Honour is not saying that it is only injuries caused by external cause that satisfy a definition of an injury.  That passage in itself shows that where there is an injury, within the opening words of the definition, the worker is entitled to take advantage of it. 

Your Honours, I see the light is on.  Before I do sit down, there is one further submission that we do wish to put to your Honours.  Can I just very quickly hand to your Honours a copy of the 1926 Act and the 1987 Act.  Can I trespass on your Honours’ time to put this submission to your Honours:  Hockey v Yelland, of course, was the 1926 Act and it involved the Queensland legislation but, for relevant purposes, undistinguished from the 1926 Act.  What we submit is a significant change which distinguishes the case from the legislation, the subject of this Court’s decision in Hockey v Yelland, is this:  that under the 1926 Act which is extracted - the second page we have given to your Honours.  Section  6, in the old Act is at the back of the two pages.  It was an inclusive definition of “injury” which was said to include “disease” and it was because of the wording in that form that the Privy Council said, “If injury includes only a particular category of disease then other diseases much be excluded.”

If your Honours look at the new Act, what we have is two distinct subparagraphs within section 4.  “Injury” now means “personal injury”.  It also means, subparagraph (b), and includes -

(i) a disease -

so that what was originally the foundation for the Privy Council’s decision in Slazengers, adopted by this Court, namely, that one can take from the “disease” meaning something which reads down the “injury” meaning; that no longer is permissible and now one has, under the 1987 Act, a clear distinction between personal injury in (a) and non-personal injury but including disease-type injuries in (b) and, (b) cannot on any view of it, your Honours, read down or dilute what is under (a).

MASON CJ:   You have made that point and your time has expired.

MR DEAKIN:    Thank you, your Honour.

MASON CJ:   Mr Jackson.

MR JACKSON:   Your Honours, in our submission, the fundamental flaw in the argument on behalf of our learned friends is that the argument does not give full weight to the various matters decided by the Court in Hockey v Yelland 157 CLR 124. Your Honours, if I could go first to the core of that decision. Your Honours will see that in a passage which appears at the bottom of page 137 and goes to the top of page 138. It is the last two lines on page 137. Your Honours will see the passage commencing,” It follows from what I have said” and your Honours will see there in the whole of that paragraph the essence of the view taken by the Court is set out. May I invite your Honours to note, of course, that the references to “para.(a) and par.(b)” in that passage are references equivalently to paragraphs (b)(i) and (b)(ii) in the Act presently under consideration. The word “injury” your Honours will see there put in inverted commas, that is a reference to the definition as a whole.

Your Honours, could we say, in relation to Hockey v Yelland, that that decision was unanimous on a number of things relevant for present purposes.  One was the issue of the relationship between the two parts of the definition of “injury” in the equivalent provision of the Queensland statute.  The second thing was that the decision was unanimous on the fact that each provision - and when I say “each provision” I mean the provisions of Acts in various jurisdictions - the interpretation of the term “injury” will depend upon the circumstances of the particular enactment.  And the third thing the case decided was that in a case not materially different from this really in any way, there was a disease as distinct from an injury, using the term “injury” in an undefined sense.

May I, your Honours, go to the passages in that case that make out those propositions.  Your Honours, it will take me a moment or two but may I commence at page 128.  Your Honours will see the definition there set out and, your Honours, it is not, in our submission, in any way materially different from that presently in issue.  Indeed, the form of the present definition rather supports the decision more than the form in which it appeared in the Queensland Act then under consideration because the division of it into two parts emphasises, in our submission, one of the things that was decided in Hockey v Yelland, namely that the expression “injury or personal injury” used by itself would not ordinarily include disease.

Your Honours, the nature of the injury in that case appears at page 132 about point 2 on the page where what your Honours will see is the sentence commencing, “In other words, it was said, the Neurology Board accepted” etc cetera.  Your Honours, that is summarising a submission that was made that indicates, clearly enough, the nature of the contentions.  Your Honours, after setting out the contentions that were made in the next paragraph, what your Honours will see is that the terms of the definition were paraphrased in the paragraph commencing at point 5 on page 132, and then at the top of page 133, your Honours will see a summary of what was said about the definition, namely, that:

Something that is an injury within the ordinary meaning of that expression -

a matter which his Honour had not yet come to -

will therefore come within the definition although it was not causally related to the employment.  However an injury will not answer the description of the words in par.(a) or par.(b) -

that is disease -

unless the employment was a contributing factor.

Now, your Honours, in the second paragraph on page 133 what your Honours will see is that the exact issue that is presently contended for arose in that case and it is after that, your Honours, on page 133, one sees a discussion of the earlier cases in which the wide meaning had been given to the term “injury”.  And as your Honours will see at page 133, about point 7, his Honour said that:

The cases in which this broad meaning was first given to “injury” were decided under legislation which made no specific provision for diseases, or provided specifically only for a special class of disease -

and then, at the bottom of the page, your Honours will see his Honour’s observation, that:

As a statement of the effect of the word “injury” where it appears in workers’ compensation legislation and is not specifically defined, those remarks are no doubt correct.

That is as to the broad view of it.  Then your Honours will see at the top of page 134, it all “depends on the words of the definition.”

Your Honours, at page 134 point 2, going through to the next page, again to about point 2, your Honours will see a discussion of the Court’s earlier decision in Hume Steel Ltd v Peart, and then the Privy Council’s decision in Slazengers v Burnett, and if I could refer your Honours particularly to the conclusion and page 135, about point 2, that is, that if that statement, that is from Slazengers v Burnett:

is applied to the definition.....it means that a disease is only included in the definition if it comes within the words of para.(a) or par.(b).

Now, your Honours, there is then a discussion of the cases following Slazengers v Burnett.  Your Honours, that commences at about point 3 on page 135 but could I refer your Honours particularly to a couple of passages in it?  The first is at page 135, about point 8, where what was said that in Darling Island Stevedoring and Lighterage Co Ltd v Hussey:

The Court further held that the coronary occlusion was a disease, since that expression covers “what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature” -

Your Honours, which seems just what Mr Justice Powell had said, really -

as distinct from a “sudden or identifiable physiological change which could properly be described as a personal injury not being a disease”.

Your Honours, the discussion continues at page 136.

Could I just say, your Honours, that a reference was made by my learned friend to Justice Jacobs in Favelle Mort Ltd v Murray.  Your Honours will see on page 136, about point 4, that what was said by Justice Jacobs in that case was not, in relation to a case such as this, at variance with the decision of the Court of Appeal in this case.

Your Honours, the differences of view in Favelle Mort v Murray were resolved, as your Honours will see at the bottom of page 136, in accordance with the judgment of Justice Stephen and your Honour the Chief Justice in that case.  Your Honours will then see the proposition set out at the bottom of page 136 through to the top of page 137.

Could I invite your Honours to note, in passing, that at page 137, about point 8, the decision of the Judicial Committee in James Patrick & Co Pty Ltd v Sharpe is there taken into account by the Court.  Could I invite your Honours to note again the conclusion at point 9 on page 137 to the top of page 138, to which I have taken the Court already.  Your Honours will also see in his Honour’s reasons that Darling Island Stevedoring and Lighterage Co Ltd v Hankinson is referred to at page 137 in the first new paragraph on that page.

So, your Honours, the cases that are said to give rise to the potential difficulty were all dealt with by the Court in that case.  To the same effect, your Honours, is the separate judgment of Justice Wilson at page 145, about point 4, where he summarised - your Honours, the sentence commencing, “that definition was in the same terms”, he is referring there to Slazengers v Burnett, and then, your Honours, at page 146 about point 2 or point 3 on the page, his Honour expresses a view which accords with that of the other members of the Court.

Now, your Honours, having said that, what is apparent, in our submission, is that if there is any difference of view, the difference of view comes about because of the view taken by the earlier Court of Appeal in New South Wales in the decision upon which reliance is placed in our learned friends’ submissions and that is the decision in O’Neill v Lumbey.  But, your Honours, what we would simply say about it is that the reasoning in O’Neill v Lumbey was wrong in that it did not properly follow the Court’s decision in Hockey v Yelland.  The present case does.  your Honours, those are our submissions.

McHUGH J:   Is there not another issue in it and that is whether or not this decision is correct because the court has just simply misapplied the proper meaning of “disease”?

MR JACKSON:   With respect, not, your Honour. 

McHUGH J:   This is not a case where the condition itself has continued to progress, in a sense.  You have got a weakness and it is pounded, pounded, pounded until suddenly it collapses.  Now, that has never struck me as a disease and my understanding of this jurisdiction was, when I used to practice in it, was that it was never regarded as a disease and I rather gather from the papers in this case that the counsel who conducted the case also accepted the view it was not a disease.

MR JACKSON:   That is probably because they felt obliged to follow O’Neill v Lumbey, your Honour, yes.  But, your Honour, in our submission, what was being spoken about, the condition in Hockey v Yelland was no different from that in the present case.  Now, that is why, in a case of a condition - if I could use a neutral terms like this - what one sees is the paragraphs (b)(i) and (b)(ii) operate in such a way as the Court of Appeal here.  The case, of course, then had to be sent back to be dealt with in order to decide whether it was caused by the employment.  That is really the difference, your Honour.  If it was a disease, then the question arose of the relationship between it and the employment.

If it had been - and it might have been found - that because of the particular stress or this or that upon him, that the rupture occurred, if that happened, then he falls within it, your Honour.

McHUGH J:   But in the course of your argument you said that Justice Powell’s definition at page 42 was the same as that in Hussey’s Case but it would seem to me that Mr Justice Powell’s definition goes far beyond what was said in Hussey.

MR JACKSON:   Your Honour, what he is saying is a:

“disease” is a condition involving a disturbance in the function or structure of any organ -

et cetera.

McHUGH J:   I know but, I mean, if you pull your teeth out, that involves a disturbance in the function of - - -

MR JACKSON:   But it also, your Honour, would be an injury.

DEANE J:   Has he not left out “autogenous” or something like that?

MR JACKSON:   Yes, your Honour.  He is no doubt speaking in the context in which the issue arose because your Honours will see in the preceding paragraphs he is speaking about that type of injury and that follows through in a number of paragraphs.

DEANE J:   Because if you do not put in a word like that it is clearly wrong, is it not?

MASON CJ:   It looks more like a definition of “injury”.

MR JACKSON:   Maybe.

McHUGH J:   And once you apply that definition, the result seems to follow from this case, that this was a disease.

MR JACKSON:   Your Honour, we do not dispute there was a disease.

McHUGH J:   I think the problem about this case is not the great point of principle that Mr Deakin has been putting forward but, rather, this more narrower point.

MR JACKSON:   Your Honour, it is really.  All one has, really, is a question of construction of the definition in the Act and that definition, in terms of conditions - again to use the neutral term - which are, with respect, not dissimilar from the present case and, indeed, for practical purposes, exactly the same, was the subject of consideration by the Court in Hockey v Yelland, a consideration as to the meaning of the terms.  Now, your Honour, if one has, as here, a case where a natural condition of the body is likely to bring about the condition in any event, it then becomes - it is, in our

submission, simply something that is properly described as being a disease as distinct from injury and a case where the legislature has said in cases like that, what there has to be demonstrated is that a particular condition you are suffering from was caused by or one that was exacerbated by, to put it shortly, the employment and it is not an injury; “injury” in the context meaning simply something that is brought about by external means.

Now, if it is brought about by external means and, your Honours, if one had a case where you.....something, then the answer is yes, it is.  But it is not, your Honour, something that, in our submission, differs in any respect from what was decided in the earlier case.  Your Honours, those are our submissions.

MASON CJ:   Thank you, Mr Jackson.  Mr Deakin.

MR DEAKIN:    We just put this other matter, your Honour.  What we would submit, accepting and adopting what Justice McHugh said, is that if the effect of this case is to overrule O’Neill v Lumbey, as it has expressly sought to do, bearing in mind that that case has been followed in Victoria and in South Australia, and by substituting, whilst overruling that decision, a test of what is the definition of “disease”, which is clearly wrong, we would respectfully adopt what Justice McHugh has said, then that is sufficient basis, we would submit, for the grant of special leave.

MASON CJ:   The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 11.54 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:

MASON CJ:   There will be a grant of special leave in this case.

AT 12.01 PM THE MATTER WAS CONCLUDED