FEDERAL COURT OF AUSTRALIA

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1 FEDERAL COURT OF AUSTRALIA May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 Citation: Appeal from: Parties: May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 May v Military Rehabilitation and Compensation Commission [2014] FCA 406 BENJAMIN JAMES EDWARDS MAY v MILITARY REHABILITATION AND COMPENSATION COMMISSION File numbers: NSD 485 of 2014 NSD 945 of 2014 BENJAMIN JAMES EDWARDS MAY v MILITARY REHABILITATION AND COMPENSATION COMMISSION & ADMINISTRATIVE APPEALS TRIBUNAL Judges: ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ Date of judgment: 30 June 2015 Catchwords: WORKERS COMPENSATION whether the appellant suffered an injury within the definition of s 4(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) whether the primary judge erred in failing to identify errors of law in the Administrative Appeals Tribunal s (Tribunal) decision whether the Tribunal erred in the construction of the word injury by giving meaning to the word only by reference to certain specific remarks made in Kennedy Cleaning Services Pty Ltd v Petkoska 200 CLR 286 at [35] whether injury requires a specific finding of sudden or identifiable physiological change whether the Tribunal erred in requiring proof of causal contribution of employment to the injury suffered temporally in the course of employment whether the Tribunal erred in misdirecting itself as to evidence required for a finding of injury. ADMINISTRATIVE LAW whether grounds of appeal state a question of law whether an appeal on a question of law encompasses a so-called question of mixed fact and law whether appeal competent whether pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) the Court may exercise its appellate jurisdiction dealing with a

2 - 2 - question of law that had not been previously raised before the primary judge whether there is prejudice, issue estoppel or Anshun estoppel arising from hearing the further judicial review application under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), together with the appeal. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16 Compensation (Commonwealth Employees) Act 1971 (Cth) ss 5, 27 and 29 Commonwealth Employees Compensation Act 1930 (Cth) ss 4, 9 and 10 Commonwealth Employees Compensation Act 1948 (Cth) ss 4, 9 and 10 Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) Commonwealth Workmen s Compensation Act 1912 (Cth) Federal Court of Australia Act 1976 (Cth) ss 20 and 24 Judiciary Act 1903 (Cth) s 39B Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 and 14 Workmen s Compensation Act 1897 (UK) Workmen s Compensation Act 1906 (UK) s 8 Workers Compensation Act 1916 (Qld) s 3 Workers Compensation Act 1926 (NSW) ss 6 and 7 Workers Compensation Act 1987 (NSW) s 9A Workers Compensation Act 1951 (ACT) s 7 Cases cited: Accident Compensation Commission v McIntosh [1991] 2 VR 253 Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 Allianz Australia Ltd v Sim [2012] NSWCA 68 Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 Australian Iron and Steel Ltd v Connell [1959] HCA 54; 102 CLR 522 Australian Postal Corporation v Burch [1998] FCA 42 Australian Postal Corporation v Burch [1998] FCA 944; 85 FCR 264 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290 Australian Telecommunications Commission v Barker [1990] FCA 489; 12 AAR 490 Australian Telecommunications Corporation v Lambroglou

3 - 3 - [1990] FCA 689; 12 AAR 515 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 Bell v Commissioner of Taxation [2013] FCAFC 32 Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321 Brintons Limited v Turvey [1905] AC 230 Canute v Comcare [2006] HCA 47; 226 CLR 535 Charter Reinsurance Co Ltd v Fagan [1997] AC 313 Clover, Clayton & Co Limited v Hughes [1910] AC 242 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522 Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153; 207 FCR 247 Commonwealth v Hornsby [1960] HCA 27; 103 CLR 588 Commonwealth v Ockenden [1958] HCA 37; 99 CLR 215 Commonwealth v Whillock [1983] FCA 183; 48 ALR 433 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Darling Island Stevedoring and Lighterage Co Ltd v Hankinson [1967] HCA 10; 117 CLR 19 Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 Evans v Queanbeyan City Council [2011] NSWCA 230 Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 Fenton v J Thorley & Co, Limited [1903] AC 443 Fife Coal Co v Young [1940] AC 479 Haritos v Commissioner of Taxation [2015] FCAFC 92 HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; 149 FCR 291 Health Insurance Commission v Van Reesch [1996] FCA 1118; 45 ALD 302 Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; 62 CLR 317 Hockey v Yelland [1984] HCA 72; 157 CLR 124 Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241 Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1 Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547 Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA

4 - 4-45; 200 CLR 286 Life Insurance Company of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 Major Engineering Pty Ltd v Timelink Pacific Pty Ltd (No 2) [2009] VSCA 83 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; 84 NSWLR 697 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; 250 CLR 490 O Brien v Komesaroff [1982] HCA 33; 150 CLR 310 O Kane v Comcare [2014] FCA 341; 221 FCR 482 OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606 Petkoska v Kennedy Cleaning Pty Ltd [1998] FCA 1289; 87 FCR 526 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 R v Kearney; Ex parte Attorney-General (Northern Territory) [1984] FCA 261; 3 FCR 534 Sea Shepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; 212 FCR 252 Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; 59 FCR 6 Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 Tabet v Gett [2010] HCA 12; 240 CLR 537 Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 182; 49 FCR 409 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; 82 ALR 175 Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; 10 ALR 303 Tuite v Administrative Appeals Tribunal [1993] FCA 71; 40 FCR 483 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 Walker v Bairds & Dalmellington Ltd 1935 SC (HL) 28 Webb v Repatriation Commission [1988] FCA 127 Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 Articles and Texts: Commonwealth, Parliamentary Debates, Representatives, 16 September 1948 Commonwealth, Parliamentary Debates, Senate, 24 May 1988 Hanks P, Safety, Rehabilitation and Compensation Act Review, Report February 2013 (Commonwealth of Australia 2013)

5 - 5 - Jones O, Bennion on Statutory Interpretation (6 th ed, Lexis Nexis UK, 2013) Date of hearing: 19 and 20 February 2015 Place: Division: Category: Sydney GENERAL DIVISION Catchwords Number of paragraphs: 235 NSD 485 of 2014 Counsel for the Appellant: Solicitor for the Appellant: Counsel for the Respondent: Solicitor for the Respondent: NSD 945 of 2014 Counsel for the Applicant: Solicitor for the Applicant: Counsel for the First Respondent Solicitor for the First Respondent: Counsel for the Second Respondent: Mr P Menzies QC and Ms B K Nolan AW Simpson & Co Mr G T Johnson SC and Mr B D Kaplan Moray & Agnew Mr P Menzies QC and Ms B K Nolan AW Simpson & Co Mr G T Johnson SC and Mr B D Kaplan Moray & Agnew The Second Respondent entered a submitting appearance, save as to costs

6 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 485 of 2014 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: AND: BENJAMIN JAMES EDWARDS MAY Appellant MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent JUDGES: ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ DATE OF ORDER: 30 JUNE 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the appellant to rely upon the amended notice of appeal filed on 15 October The appeal be allowed. 3. The orders of the Court made on 30 April 2014 be set aside, and in lieu thereof order that: (a) the decision of the Administrative Appeals Tribunal dated 14 December 2011 be set aside; (b) (c) the matter be remitted to the Tribunal for determination according to law; and the respondent pay the appellant s costs. 4. The respondent pay the appellant s costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule of the Federal Court Rules 2011 (Cth).

7 - 2 - IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 945 of 2014 BETWEEN: AND: BENJAMIN JAMES EDWARD MAY Applicant MILITARY REHABILITATION AND COMPENSATION COMMISSION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ DATE OF ORDER: 30 JUNE 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The time in which the applicant be permitted to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended to 15 October The application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) be heard and determined by the Full Court of the Federal Court, together with the applicant s appeal from the decision of the Court (Buchanan J) dated 30 April The said application be dismissed, the first respondent to pay the applicant s costs thereof. Note: Entry of orders is dealt with in Rule of the Federal Court Rules 2011 (Cth).

8 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 485 of 2014 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: AND: BENJAMIN JAMES EDWARD MAY Appellant MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 945 of 2014 BETWEEN AND: BENJAMIN JAMES EDWARD MAY Applicant MILITARY REHABILITATION AND COMPENSATION COMMISSION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ DATE: 30 JUNE 2015 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT Introduction and summary 1 Shortly after joining the Royal Australian Air Force (RAAF), the appellant, Mr May, suffered from symptoms or a condition that the Administrative Appeals Tribunal said in its decision dealing with his claim for compensation, cut short what might have been a very promising career as a pilot of the RAAF. The Tribunal concluded, however, that Mr May (to

9 - 2 - whom we shall refer as the appellant, notwithstanding he is also an applicant before the Court) had not suffered an injury for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that the Military Rehabilitation and Compensation Commission (MRCC), the respondent, was not liable to pay him compensation under the SRC Act. It should be said at the outset that there was no issue about the truthfulness and reliability of the appellant s claim as to his disability, in that he was (and became shortly after joining the RAAF) significantly disabled by what the Tribunal called vertigo. 2 The primary judge found the appellant had not identified any legal error in the Tribunal s decision, and in particular, in its approach to the determination of whether the appellant suffered an injury as that term is to be construed in the SRC Act. 3 There is complexity in the documentation before this Court on appeal. In conjunction with an appeal from the primary judge s decision, the appellant filed an application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). Also an amended application was filed, together with an amended notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). We will return to this thicket of documentation in due course. 4 In the appeal, the Court is concerned, first, with whether error has been shown in the decision of the primary judge and, if so, whether legal error has been shown to exist in the Tribunal s decision. That legal error may be identified either through a question of law formulated in the appeal under s 44 of the AAT Act, or in grounds of review formulated to support a claim for relief under s 39B of the Judiciary Act or under ss 5 and 16 of the AD(JR) Act, if these latter two judicial review mechanisms are available in the circumstances. 5 The existence of a challenge to the lawfulness of the Tribunal s decision under both the Judiciary Act and the AD(JR) Act might, on one view, render detailed consideration of the particular approach to s 44(1) unnecessary. However, a court of five members was constituted to consider that issue in particular; and we have determined the appeal on that basis. 6 On the issues concerning the nature and scope of an appeal under s 44 of the AAT Act, these reasons for judgment should be read in conjunction with our reasons for judgment

10 - 3 - in Haritos v Commissioner of Taxation [2015] FCAFC 92. We summarise the effect of our decision in Haritos in relation to s 44 of the AAT Act at [161] below. 7 We are satisfied the appellant has established error in the decision of the learned primary judge, and that certain questions of law identified by the appellant should be answered favourably to him. Factual background 8 The appellant enlisted in the RAAF on 6 November 1998 and was discharged on 30 July 2004 at the rank of Officer Cadet. Between 10 November 1998 and 30 March 2000, the appellant received various vaccinations in the course of his employment in the RAAF. 9 The Tribunal s factual findings on the sequence of events experienced by the appellant after the vaccinations were set out at [53] of the reasons: Mr May has described the symptoms he experienced following the vaccinations he received on 10 November It is clear from the medical tests that Mr May underwent before he was accepted for entry into the RAAF as an officer cadet, that he was healthy and very fit. Mr May states that within 30 to 60 minutes of receiving the vaccinations, he began to experience symptoms and that these increased over the next few days. He says his tongue felt swollen, he felt dizzy and experienced nausea and diarrhoea. There are clinical notes on his reporting sick from 22 November 1998 and these notes appear to record the symptoms as described by Mr May at the time. The medical opinions recorded in the notes [ ] indicate that Mr May s treating doctors thought that he was probably suffering from a viral illness and possibly bacterial gastroenteritis. Thereafter, he had a history of infections, particularly of the upper respiratory tract, which, on some occasions required hospital treatment. 10 The primary judge also referred to what occurred at [28] of his reasons: After the first set of vaccinations which occurred during his RAAF service he was diagnosed with a viral illness. The following year (1999), he was again diagnosed with a viral illness. In 2000 Mr May was found to need gammaglobulin treatment for persistent lymphopenia (low lymphocytes count). It was suggested then that the treatment would be lifelong but in 2001 the treatment was found to be no longer necessary. In the succeeding years Mr May underwent a series of investigatory procedures which produced no clear identification of the cause of his symptoms. 11 The appellant s claim was summarised by the Tribunal at [2] of its reasons: On 29 November 2002, Mr May lodged a claim for rehabilitation and compensation dated 20 November 2002 in respect of low immunity, fatigue, illnesses, dizziness which he claimed was caused by vaccinations received in the course of his employment in the RAAF. On 11 March 2003, a MRCC delegate denied Mr May s claim noting that specialists who had examined Mr May had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service.

11 Following an application for review, on 22 April 2010, the MRCC reconsidered but affirmed the decision of 11 March 2003 denying the appellant s claim. Relevant legislative framework 13 Section 14 of the SRC Act provides: 14 Compensation for injuries (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. (2) Compensation is not payable in respect of an injury that is intentionally selfinflicted. (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally selfinflicted, unless the injury results in death, or serious and permanent impairment. 14 At the relevant time, the word injury was defined in s 4(1) of the SRC Act as follows: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee s employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee s employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. 15 At the relevant time, the word disease, was defined in s 4(1) as follows: disease means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee s employment by the Commonwealth or a licensed corporation. 16 At the relevant time, the word ailment was in turn separately defined under s 4(1) as follows: ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

12 - 5 - Central issues in the appeal 17 It will be necessary to refer more fully to the terms of the appellant s complaints about the Tribunal s and primary judge s approaches, but the central question and errors of law can be expressed tolerably simply as follows. 18 The central question in the appeal is whether the primary judge erred in failing to identify a relevant error of law made by the Tribunal in addressing the question as to whether the appellant suffered an injury arising in the course of his employment with the RAAF. 19 At least the following errors of law were said by the appellant on appeal to have been committed by the Tribunal: (a) (b) (c) The Tribunal misconstrued the statutory definition of the word injury in s 4 of the SRC Act by giving meaning to the word only by reference to certain specific remarks of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 dealing with another piece of legislation, rather than by construing the Act as a whole and in its historical (including legal) context, with the assistance of cases such as Kennedy Cleaning. The Tribunal misconstrued or misapplied the phrase injury arising in the course of employment by effectively requiring proof of a causal contribution of employment to the injury suffered temporally in the course of employment. The Tribunal misdirected itself as to the evidence that could be sufficient in determining whether the appellant had suffered an injury and thereby failed to undertake its review function according to law. 20 The asserted errors in (b) and (c) were raised before the primary judge, but not that in (a), at least not in its particular terms. 21 For the reasons which follow, the errors asserted in (a), (b) and (c) are all made out. The statutory and legal context of s 14 of the SCR Act and the meaning of injury therein 22 Before turning to the background to s 14 and the conceptions of injury and disease in the legislation, it is worthwhile noting the unusual nature of the circumstances and why great care needs to be exhibited in a precise understanding of the statute and of the concepts dealt with in it. If the appellant is to be accepted as truthful, as he apparently was, he has a condition that the Tribunal loosely described (see Tribunal [61]) as vertigo; it

13 - 6 - was preceded by various physiological changes at different times: a swollen tongue within 30 to 60 minutes of receiving some vaccinations, nausea with stomach discomfort, sore teeth, swollen glands, and a feeling of disequilibrium or dizziness. No doctor has been able to diagnose the true nature of the condition; no disease has been identified of which these physiological changes might be described as symptoms; no doctor has been able to identify an event (external or internal) that caused or explained these physiological changes. 23 In this context, it is crucial to understand the statute, and from it, to understand what the notion of injury is, how it relates to disease and the extent to which, if at all, an injury requires a specific event or cause that explains symptoms or a condition that can otherwise be said to be an identifiable physiological change to the body, or a disturbance of the normal physiological state, or something which involves a harmful effect on the body. To understand these issues and to explain why the Tribunal fell into error and the proper conception of injury in the SRC Act, it is necessary to understand the development of the provisions, and the meaning of the concepts in question, as explained and discussed in a number of authoritative and persuasive cases. 24 The structure and meaning of s 14 and the relevant definitions in s 4 of the SRC Act take their place after over a century of legislation dealing with the compensation of injured workers. Whilst it is not necessary to trace this history in exhaustive detail, it is instructive to note certain aspects of it in order to understand the legal context of the SRC Act and, in particular, the definitions of injury and disease. 25 The following discussion owes much to the full and authoritative consideration of the development of Australian workers compensation legislation, the concepts involved and the proper approach to construction of statutes, such as the SRC Act, that is to be found in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and Kennedy Cleaning. Given, however, the uniqueness of the appellant s position, we think it appropriate to deal with the legal context in a little detail. 26 The first Australian statutes were based on United Kingdom legislation: the Workmen s Compensation Act 1897 (UK) (1897 Act) and the Workmen s Compensation Act 1906 (UK) (1906 Act). Neither statute defined injury or disease. The central operative provision of both the 1897 Act and the 1906 Act linked compensation to personal injury by accident arising out of and in the course of employment [being] caused to a workman.

14 27 The authoritative interpretation of the compound expression personal injury by accident was given by the House of Lords in Fenton v J Thorley & Co, Limited [1903] AC 443 at 448 and 451 (Lord Macnaghten and Lord Shand, respectively), as follows: Now the expression injury by accident seems to me to be a compound expression. The words by accident are, I think, introduced parenthetically as it were to qualify the word injury, confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words arising out of and in the course of employment qualify the word accident, or the word injury, or the compound expression injury by accident? I think the latter view is the correct one I come, therefore, to the conclusion that the expression accident is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed: Lord Macnaghten at 448. [After agreeing with the speech of Lord Macnaghten] I shall only add that, concurring as I fully do in holding that the word accident in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence: Lord Shand at That disease could be personal injury by accident using those words in the ordinary sense was recognised in Brintons Limited v Turvey [1905] AC 230 at (Earl of Halsbury LC), (Lord Macnaghten) and (Lord Lindley). The use of the word accident was, as the Earl of Halsbury LC said in Brintons at 233, to exclude idiopathic disease. As we have just set out, in Fenton at 448, Lord Macnaghten said that the word accident was used in its ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. As Latham CJ later said in Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 at 252, if diseases were excluded from compensation that was so not because they were not injuries, but because they were not within the conception of the word accident. See also Kennedy Cleaning at 294 [21] per Gleeson CJ and Kirby J. 29 The 1906 Act introduced, in s 8, specific provision for diseases set out in the schedule to the Act if the disease is due to the nature of any employment in which the workman is employed. 30 Section 8(10) provided that nothing in s 8 (by its dealing with certain diseases): shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this Act.

15 31 Thus, there was no doubt that a disease could be a personal injury, but it had to be by accident. 32 The relationship between disease and injury within the phrase personal injury by accident arose with the question as to whether the rupture of an aneurism (the aneurism being a manifestation of an idiopathic disease) could be personal injury by accident. The House of Lords held that it could be: Clover, Clayton & Co Limited v Hughes [1910] AC 242 where a workman suffering from a serious aneurism fell dead while employed straining and tightening a nut. 33 The distinction drawn in these cases, necessitated by the requirement of accident and the conjunctive and, was between the consequence of the progress of a disease (not personal injury by accident) and a consequence contributed to by an event that occurred in the course of employment (a personal injury by accident). That distinction, in some form, has (as the discussion of the authorities below reveals) permeated later statutory formulations: see also the comments of Brennan CJ and Dawson and Gaudron JJ in Zickar at The early legislation in all States and Territories adopted the definition of injury in the 1897 Act and the 1906 Act ( personal injury by accident arising out of and in the course of employment ). Some adopted the approach to disease in s 8 of the 1906 Act. 35 Commonwealth legislation was passed in 1912: Commonwealth Workmen s Compensation Act 1912 (Cth) (1912 Cth Act), which likewise followed the model of the 1897 Act: a scheme where liability arose for personal injury by accident arising out of and in the course of employment, with no definition of injury or disease. 36 In 1930, the Commonwealth Employees Compensation Act 1930 (Cth) (1930 Cth Act) was passed, which adopted the 1906 Act model: an operative provision for personal injury by accident in the same terms as the 1897 Act and the 1912 Cth Act, with disease dealt with in a schedule. There was, however, no equivalent of s 8(10) of the 1906 Act. 37 In 1948, the 1930 Cth Act was amended by the Commonwealth Employees Compensation Act 1948 (Cth) (1948 Cth Amending Act) to include definitions of injury and disease in s 4: disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;

16 - 9 - injury means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury; 38 The relevant operative provisions (s 9 as to injury and s 10 as to disease ) were amended. Section 9 was repealed and replaced with a provision with subs (1) as follows: If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act. (Emphasis added.) 39 The provision was similar to the 1897 Act and the 1906 Act structure with the important exception of the change from and to or in the phrase arising out of and or in the course of. The requirement for personal injury by accident remained. By this time, 1948, such a more liberal provision (based on the disjunctive or not the conjunctive and ) was found in equivalent legislation in a majority of States, and the words by accident had been removed in many States, though not in the 1930 Cth Act. 40 Importantly, s 10 (the provision dealing with compensation for diseases) was amended by replacing the existing provision referring to a schedule of diseases (subs (1)) with a generally expressed provision in subs (1) as follows: Where (a) an employee is suffering from a disease and is thereby incapacitated for work; or (b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment. 41 The changes to s 10 marked a departure from the approach to liability for disease in the 1906 Act that identified particular occupational diseases which were compensable. This was the first time that the Commonwealth scheme sought to identify what constituted a disease in a general sense, rather than by simply relying on the ordinary meaning of the word or a schedule which listed diseases for the purposes of the Act. Furthermore, it provided for compensation for any disease which was due to the nature of the employment in which the employee was engaged.

17 In the Minister's second reading speech (Commonwealth, Parliamentary Debates, Representatives, 16 September 1948, (Mr Dedman)) which otherwise emphasised that the general purpose of the Act was to increase the amounts payable to injured workers, the following observations were made about these amendments: [I]t is proposed to repeal the present second schedule to the Act which specifies the diseases on account of which compensation will be granted, and limits compensation to particular processes causing disease. Following the example of New South Wales, Victoria and Queensland, compensation will, under this proposal, be granted on account of incapacity for work caused by any disease provided that it is due to the nature of the employment. In total, therefore, the Act, if amended as proposed, will be thoroughly up to date, and will incorporate a wide and ample scheme of safeguards for those who serve the Commonwealth in their daily work. 43 In Hume Steel 75 CLR 242, the High Court dealt with a journey claim under the Workers Compensation Act 1926 (NSW) (1926 NSW Act). The case concerned a man who died of a coronary occlusion riding his bicycle to work. It was said by the employer that there was no injury. The deceased s aorta and coronary arteries were in an advanced state of atheroma; the artery was brittle; a piece of lining of the artery had loosened and blocked the artery. Journey claims were dealt with under s 7(1)(b) that commenced, Where a worker has received injury. Section 6(1) defined injury in a manner to include disease to which the employment was a contributing factor. The section read: Injury means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor 44 The Court found the definition of injury in s 6(1) was not applicable to the word injury in s 7(1)(b). Importantly, for later cases, and for this case, Latham CJ discussed the nature of, and relationship between, injury and disease in s 6. In passages in Hume Steel, parts of which were quoted and cited by Toohey, McHugh and Gummow JJ and by Kirby J in their two sets of reasons in Zickar 187 CLR at 332 and 340 and referred to and cited by Gleeson CJ and Kirby J, and Gaudron J in Kennedy Cleaning 200 CLR at 300 [39] and 303 [50], Latham CJ said 75 CLR at : Many cases have been decided in English courts on the words personal injury by accident Cases such as Fenton v. J. Thorley & Co. Ltd.; Clover, Clayton & Co.Ltd. v. Hughes and many other cases have dealt with the subject of accident, and have resulted in the establishment of the proposition which I quote from Fenton v. J. Thorley & Co. Ltd. That the expression accident is used in the popular and

18 ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed, that is, is not expected or designed by the worker In many cases the relation of the conception of accident to that of disease has been discussed. But the word accident is not found in the New South Wales legislation and these authorities are in my opinion of no assistance in determining the question which arises in the present case. The cases in which the question was whether the contraction or aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employment all assume that a disease is an injury. What are described as idiopathic diseases are outside the English Act (Brintons Ltd. v. Turvey). The plaintiff s atheromatous condition, according to the findings of the Commission, was such a disease it was a morbid condition of which the cause is unknown. But these diseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word accident as defined in Fenton v. J. Thorley & Co. Ltd. Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury. There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury. (Emphasis added.) 45 Notwithstanding the fate of the approach in Hume Steel to the construction of the relevant statute brought about in later cases to which reference is made below, these passages are (by reason of their modern adoption in Zickar and Kennedy Cleaning) of continuing importance to understand the meaning of injury (in what might be called its ordinary meaning) and also to place in context what Gleeson CJ and Kirby J said in Kennedy Cleaning, and in particular to recognise that their use of words was not definitional in character, but by way of exemplification. 46 Hume Steel is also important for its place in the history of the construction and interpretation of provisions such as s 6(1) of the 1926 NSW Act which defined injury without the phrase by accident and with the disjunctive or and expressly included disease to which the employment was a contributing factor. In Hume Steel the Chief Justice and all the justices (Latham CJ at , Rich J at 254, Starke J at 254, Dixon J at

19 and McTiernan J at 259) refused to confine injury as including only diseases to which employment was a contributing factor. Exemplifying this unanimous view, Dixon J said at 258: I am unable to agree in the argument that was advanced founded upon the express reference in the definition of injury to diseases contracted in the course of the employment to which the employment is a contributing factor. That argument was that the only disease or pathological state or change covered by s 7(1), whether under the head of injury or otherwise, is that described in the reference to disease contained in the definition of injury. It must be remembered that the words in question were introduced to enlarge the scope of the definition. I think a restrictive inference of so drastic a kind cannot be based upon them. 47 This latter view as to the non-exclusive effect of including diseases so contributed to by employment (as well as the view that the s 6(1) definition of injury was not applicable to s 7(1)(b) journey claims) was rejected in 1951 by the Privy Council in a New South Wales workers compensation appeal in Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13. Lord Simonds said that the meaning of injury was narrowed by the exclusionary effect of the inclusion of disease contributed to by employment, saying at 19-20: The Act, as is commonly conceded, makes a substantial departure from former legislation in this field, and in particular deals not, as had previous Acts, with injury by accident but with injury simpliciter, a change which made it necessary to define what had previously been undefined. The difficulty of such definition is shown in the several alterations which were made in Amending Acts between 1926 and 1947, and is, perhaps, further illustrated by the fact that in the end the definition still contains the word which is itself to be defined. But this at least is clear, that in the Act the word injury (unless the context or subject-matter otherwise indicates or requires) 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. 48 Slazengers was followed in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 in a case under s 6(1) of the 1926 NSW Act concerning a watchman who collapsed and died from a coronary occlusion after suffering from progressive heart disease. Slazengers. Dixon CJ, Fullagar, Kitto and Windeyer JJ applied At , Dixon CJ made clear that the evidence only revealed the progression of the heart disease and not a separate or distinct disease ; see also 505 (Fullagar J), 509 (Kitto J) and 518 (Windeyer J). There was no relevant employment contribution; so, the worker failed. Fullagar J observed at 500: With regard to Kellaway's Case [Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210], it is important to note that Jordan CJ expressed the opinion that all

20 cases of disease must, both under the Act of 1929 and the Act of 1942, be subsumed under the second part of the definition of injury, i.e. that part of the definition which deals specifically with diseases. A case of disease could no longer be regarded as a case of injury in the general sense of the first part of the definition. His Honour said: - The portion of the definition of injury beginning with the words and includes a disease was inserted to indicate that injury is no longer, in the Act, to be read, by a somewhat forced construction, in a non-colloquial sense wide enough to include disease generally, but is to include it only when it is contracted in the conditions specified. It follows that if a worker originally contracts a not immediately disabling disease from causes to which his employment does not contribute, and, for causes to which also the employment does not contribute, the disease, by its natural progress, grows worse until it reaches a point at which it disables him or causes his death, his employer incurs no liability to compensation. So far I would agree with his Honour: indeed, I think it is clear that the view which he has expressed is correct. (Emphasis in bold added; emphasis in italics in original.) 49 Windeyer J also observed at 518 that the effect of the definition (in s 6(1)) and of the Privy Council s decision was that the only compensable disease under the 1926 NSW Act was one which came within the definition (that is, a disease to which employment was a contributing factor). 50 The distinction between disease and injury of the kind dealt within the construction of s 6(1) of the 1926 NSW Act in Slazengers was brought to the 1930 Cth Act in three cases: Commonwealth v Ockenden [1958] HCA 37; 99 CLR 215, Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547, and Commonwealth v Hornsby [1960] HCA 27; 103 CLR 588. It is to be recalled that the 1930 Cth Act used the phrase personal injury by accident. 51 In Ockenden, a naval officer with a rheumatic heart claimed compensation under the 1930 Cth Act. Initially it was contended that he was suffering a disease within the meaning of s 4(1) but the Commissioner and the County Court Judge were both of the opinion that his condition was not in any way attributable to naval service. On the appeal to the County Court, he successfully argued that his condition constituted personal injury by accident. The Court (Dixon CJ, Fullagar and Taylor JJ) in concluding that the facts did not disclose any injury by accident held, in respect of cases falling within the statutory definition of injury rather than disease (at ): The acceptance in Sharpe s Case [(1955)] AC 1] of the view that in Victoria it is now no longer necessary to find an external event of some kind associated with a sudden physiological change rested, essentially, of course, upon the special provisions of the amendment introduced into the Workers Compensation Acts of that State by the amending Act of But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker s employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by

21 accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word accident of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment. (Emphasis in bold added; emphasis in italics in original.) 52 The traditional view referred to by the Court in this passage in Ockenden is illuminated by a perusal of the advice of the Privy Council in James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1 (referred to in the above passage in Ockenden) delivered by Lord Reid, in particular at After referring to Fenton v Thorley, Lord Reid noted Viscount Caldecote LC s views in Fife Coal Co v Young [1940] AC 479 at 483 of a steady extension of the meaning (that is, width of application) of the phrase personal injury by accident. Lord Reid said (at 14) that this extension was particularly notable in cases dealing with disease. Lord Reid referred to Lord Tomlin s review of the authorities in a Scottish appeal, Walker v Bairds & Dalmellington Ltd 1935 SC (HL) 28. The relevant considerations concerning accident can be understood from what Lord Tomlin then said at 1935 SC (HL) 32, cited by Lord Reid, what Viscount Caldecote said in Fife Coal at 484, also cited by Lord Reid, and from what Lord Reid himself said in discussing the cases: there may be personal injury by accident, even though the employee s work has proceeded in the normal way, and even though the injury is due to the presence of a special condition in the employee s body: Lord Tomlin in Walker 1935 SC (HL) at 32. But death or disability which was merely the result of continuous process over a period, there being no particular change in the man s condition at any one time, was never held to be due to injury by accident: Lord Reid in Sharpe at 14. [After reference to various cases where recovery had been denied]. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen s Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged. When the workman s claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workman in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to

22 make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover, Clayton & Co. Ld. v. Hughes or heart failure as in Falmouth Docks & Engineering Co. Ld. v. Treloar. : Viscount Caldecote in Fife Coal at [1940] AC 484 In all cases in the United Kingdom and in Victoria before 1946 it was necessary to prove that some external event or some action of the deceased had caused the sudden physiological change to happen when it did. In the present case the worker s death was due to a sudden physiological change which happened at a time deemed to be in the course of his employment, but there is no finding that any external event or any action of the deceased played any part in causing the fibrillation to happen when it did and their Lordships must deal with the case on the footing that the fibrillation was due solely to the onset or progress of some disease within the man s body: Lord Reid in Sharpe at [1955] AC 15. (Emphasis added.) 53 That the incident to which the Court referred in Ockenden need not be external was made clear in Kavanagh 103 CLR 547 where the High Court was asked to consider whether a ruptured oesophagus constituted an injury by accident within the meaning of s 4(1). Dixon CJ said at 553: 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. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection 54 The Chief Justice distinguished Ockenden, saying at 555: It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency. I say this because I do not think that it is consistent with s 9(1) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the employment, including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof. 55 Fullagar J concurred with this conclusion (at 558) as did Menzies J (at 569). Taylor J (at 562) and Windeyer J (at 578) also concurred in this respect, but dissented in the result on the question of in the course of employment. 56 Kavanagh also reinforced, unequivocally, the lack of employment causality in arising in the course of employment : 103 CLR at (Dixon CJ), (Fullagar J) and (Menzies J).

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