Re Canberra College of Advanced Education v Albert Edward Culpin [1986] FCA 22 (10 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: CANBERRA COLLEGE OF ADVANCED EDUCATION
And: ALBERT EDWARD CULPIN
No. ACTG11 of 1985
Administrative Appeals Tribunal Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

Administrative Appeals Tribunal Act - Appeal from Tribunal affirmation of determination of delegate of Commissioner for Employees Compensation - Aggravation of disease of Commissioner for Employees Compensation - Aggravation of disease of hypertension - Definition of injury in s.5 of Compensation (Commonwealth Government Employees) Act 1971 - Meaning and application of s.8.

Administrative Appeals Tribunal Act 1975, s.44 Compensation (Commonwealth Government Employees) Act 1971, ss.5,8,27,29.

Commonwealth of Australia v. Whillock (1983) 48 ALR 433

Reitano v. The Commonwealth, unreported, Full Court, Evatt, Northrop and Burchett JJ., 13/12/85.

HEARING

SYDNEY
10:2:1986

ORDER

The appeal is allowed and the decision of the Administrative Appeals Tribunal affirming the determinations of the delegate of the Commissioner for Employees Compensation of 9 March 1983, 5 April 1983 and 6 April 1983 is set aside.

The matter be remitted to the Administrative Appeals Tribunal for decision of the respondent's claim based on s.29 of the Compensation (Commonwealth Government Employees) Act 1971.

The applicant Canberra College of Advanced Education pay the respondent's costs.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the
Federal Court Rules.

DECISION

This is an appeal brought under s.44 of the Administrative Appeals Tribunal Act 1975 in respect of a decision of the Administrative Appeals Tribunal constituted by Mr. J.O. Ballard, Senior Member. The appeal is, of course, limited to questions of law.

2. The matter arises out of a claim for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 made by the respondent, Mr. Culpin. Mr. Culpin, who was born on 5 January 1921, was employed as an Assistant Bursar by the applicant, Canberra College of Advanced Education. On 12 August 1980, during his lunch break, he enjoyed, as was his custom, a game of squash with a friend at the Canberra College of Advanced Education Sports Centre, which was situated within the College grounds some 300 metres from Mr. Culpin's office and was under the control of the Sports Union, though the building was maintained by the College. During the game Mr. Culpin suddenly collapsed, losing consciousness for about ten seconds. He was taken to Royal Canberra Hospital at Acton by ambulance and remained off work from 12 August to 12 September 1980. His resumption of work on 12 September 1980 was unfortunately short-lived, and he went on sick leave on 10 November 1980. He did not again return to work, ultimately retiring on the ground of invalidity on 10 September 1981.

3. The respondent's claim did not identify any particular injury, disease or aggravation, though it did clearly enough make a claim in respect of the incapacity for work which commenced on 12 August 1980. It was disallowed on 22 April 1981, upon the basis of the view held by the delegate of the Commissioner for Employees' Compensation that there was no nexus between the squash game and Mr. Culpin's employment.

4. There was no step taken by Mr. Culpin to have the disallowance of his claim reviewed.

5. The next event in the story was the allowance by the Commissioner for Employees' Compensation of a totally unrelated claim by another employee of Canberra College of Advanced Education in respect of a leg injury suffered playing squash at the same squash courts. This event initiated a review, within the Office of the Commissioner for Employees' Compensation, of Mr. Culpin's claim also. As a result, Mr. Culpin was advised that his claim had been reconsidered, and a determination made in his favour. That determination was dated 9 March 1983. By it the earlier determination, disallowing the claim, was revoked and it was determined as follows:

"The said Albert Edward Culpin sustained
personal injury namely aggravation of
hypertension resulting in cardiac arrythmia
on 12 August 1980 during his attendance at
his place of employment.

This attendance of the said Albert Edward
Culpin was an attendance within the meaning
of sub-section 8(4) of the said Act and, by
virtue of sub-section 8(3) thereof, his
employment included that attendance;
therefore in accordance with section 27 of
the said Act, the said personal injury arose
out of or in the course of his employment.

In accordance with the provisions of the said
Act The Canberra College of Advanced
Education is therefore liable to pay
compensation in respect of the said personal
injury."

6. Further determinations followed, determining the consequences, as regards payment, of the determination of 9 March 1983. Those determinations were made on 5 and 6 April 1984.

7. Canberra College of Advanced Education applied, under s.63 of the Compensation (Commonwealth Government Employees) Act, for a review of all three determinations by the Administrative Appeals Tribunal. S.63(1), so far as material, provides:

"Where a determination by the Commissioner is
made under this Act, an application may be
made to the Administrative Appeals Tribunal
for a review of the determination by or on
behalf of a party to the determination...".

8. Upon the hearing of the application by the Administrative Appeals Tribunal, medical reports were tendered dealing with the treatment of Mr. Culpin following the incident at the squash courts, and in addition, reports were tendered of two consultant physicians, Dr. A.D. Dick and Dr. R.F. O'Shea, both of whom also gave oral evidence.

9. The Tribunal affirmed the determinations of the delegate. It considered that s.8(4) of the Compensation (Commonwealth Government Employees) Act applied on the basis that Mr. Culpin had suffered an injury "at his place of employment", and his attendance there was deemed by the statutory provision to be "reasonably incidental to his employment" since "the attendance occurred during an ordinary recess in his employment".

10. No reference whatever was made to the provisions of s.29 of the Act.

11. Upon the appeal I heard some argument as to whether there was any evidence to support the finding that the squash courts were part of Mr. Culpin's place of employment. Provided there was some evidence, as I think there was, the question is one of fact: The Commonwealth v. Duncan (1982) 44 ALR 249 at 256, 265. But both counsel were agreed that the issue was really a false one. Counsel for the applicant pointed out that the Tribunal had not specified the injury it found to have been sustained on 12 August 1980, and contended that there was no evidence either of an injury, or of any incapacity lasting for a period of longer than 24 hours, as a result of the episode, even if that episode could have been held to have involved an injury. The evidence, he submitted, did not leave room for any conclusion but that the problem which caused Mr. Culpin's incapacity was a condition of hypertension or an aggravation of a condition of hypertension.

12. The reasons of the Tribunal proceed upon the basis that what was involved was an injury. Indeed, the reasons include a paragraph in the following terms:

"Two issues arise in this matter. The first
is whether the injury which the respondent
suffered while playing squash in August 1980
occurred in compensable circumstances. The
second is whether if it did, the applicant is
totally incapacitated as a result."

Although this statement of the issues assumes as an unquestioned fact that the matter concerned what was described as "the injury", the reasons nowhere explicitly state what the injury was, or precisely how it came about. Early in the reasons there is a brief statement of the events of 12 August 1980, as follows:

"In August 1980 the applicant was playing a
regular game of squash at the College during
a lunch time break. During the game he
suffered a 'syncopal episode' which proved to
be associated with an attack of atrial
fibrillation. The respondent was then sent
to the Royal Canberra Hospital. The heart
reverted to normal heart action. After a
period in hospital the respondent was allowed
to go back to work on or about the 5th
September 1980."

Later in the reasons it is stated:

"There is no doubt that the applicant suffered
an attack of atrial fibrillation while he was
playing squash at the Sports Centre during an
ordinary recess in his employment."

13. It seems to me that the Tribunal's reasons must be understood on the basis that it viewed the "attack of atrial fibrillation" as constituting an injury within the meaning of the Compensation (Commonwealth Government Employees) Act. (Atrial fibrillation is a condition of irregular and rapid contractions of the atria, the upper chambers of the heart, working independently of the ventricles, the lower chambers of the heart.)

14. The Tribunal further considered that, in the appropriate statutory sense (see s.5(11)), incapacity had resulted from this injury and was still continuing.

15. In the reasons of the Tribunal, considerable weight is placed upon s.8(3) and (4) of the Compensation (Commonwealth Government Employees) Act, and the opinion is expressed that "s.8 does provide compensation for injuries which occur at the place of employment whether or not they also arise out of or in the course of the respondent's employment". It is, of course, implicit in this statement that the Tribunal thought what was involved was an injury which occurred on a particular occasion, at the place of employment.

16. Unfortunately I think these reasons disclose errors of law. Indeed, counsel for the respondent, Commonwealth of Australia v. Whillock (1983) 48 ALR 433 having been cited in the applicant's argument, conceded that Mr. Culpin's case should have been considered, not as a case of injury, but under s.29 of the Compensation (Commonwealth Government Employees) Act. It was accepted s.8 was irrelevant in the circumstances of this case. (One can, of course, imagine circumstances where s.8 could have relevance to a s.29 case, as for instance if at the place of employment there was something - perhaps an allergen - which was a contributing factor to the contraction or aggravation of a disease.) Furthermore, counsel also conceded that, if the atrial fibrillation could be regarded as an injury, it abated within twenty-four hours and had no lasting consequences.

17. Counsel's concessions appear to me well justified. In Commonwealth of Australia v. Whillock (supra), the Full Court, by majority (Smithers and St. John JJ., Northrop J. dissenting) held, in a case of a death claim arising out of a coronary occlusion, that the definition of "injury" in s.5 of the Act prevented reliance upon the thrombus, the occlusion, or the myocardial necrosis, (each of which had occurred) as injuries, since each "constituted part of a disease, namely coronary arterial disease and (required) consideration in the context of s.29 of the Act" (per Smithers J.), or was a "harm or detriment... caused by disease" (per St. John J.).

18. Whillock's Case is authority for the proposition that if an injury is within the meaning of the Act a disease, by virtue of the definition of injury in s.5(1) which excludes "a disease or the aggravation, acceleration or recurrence of a disease", it can only attract compensation under s.27(1) if the employment contributed to its contraction or aggravation etc. within s.29. It is not permissible, to adopt language which Kitto J. applied to an analogous problem in Ogden Industries Pty. Ltd. v. Lucas [1967] HCA 30; (1967) 116 CLR 537 at 569-70, and which Smithers J. cited in Whillock's Case at p 443, to treat as a separate injury a physical disorder which came into existence merely as a stage in the development of a larger disorder: the operation of the Act is exhausted when its provisions have been applied in respect of the disease consisting of the progressive disorder as a whole.

19. In the present case it was not suggested that the atrial fibrillation in question was other than a manifestation, upon the respondent engaging in moderate and accustomed exercise, of the untreated and advancing condition of hypertension from which he was suffering (though unknown to him). Park Royal Motor Hotels Pty. Ltd. v. Sullivan (1985) 61 ACTR 15 (overruled by the Full Court, Gallop, Davies & Neaves JJ., unreported 27/9/85, but not as to the principles stated in the judgment) is distinguishable, on the terms of the ordinance there involved, in which "injury" was defined quite differently.

20. The real question, as both counsel agreed, was whether the employee had suffered, over a period or periods of time, an aggravation of the condition of hypertension, to which the employment had been a contributing factor within the meaning of s.29 of the Act. As to that question, if the Tribunal had held that a relevant aggravation had occurred, it was not in dispute there was evidence to justify such a finding. But I cannot accede to the respondent's argument that I should make the finding. It is a matter of fact, to be decided by the Tribunal on the evidence, as is the duration and extent of any incapacity which has resulted, in the statutory sense, from any aggravation of the respondent's hypertension (see ss.29(2), 5(11) and 31(4), and Reitano v. The Commonwealth, unreported, Full Court, Evatt, Northrop and Burchett JJ., 13/12/85). I think the original claim, read broadly, as such claims should be read, and not restrictively, is wide enough to cover an aggravation, and the determination the subject of review by the Tribunal was a determination in respect of that claim. Accordingly, it was open to the Tribunal to decide the question of aggravation.

21. A separate argument was advanced, for the applicant, that error of law was also demonstrated by the manner in which the Tribunal reached the conclusion that the incapacity found was a total incapacity for work. It was suggested there was some lack of clarity in the expression of the basis of this conclusion. As the matter will in any event have to be reconsidered, and possibly upon further evidence, and as I am clearly of opinion it would be open to the Tribunal, if the evidence remained the same, to make a finding treating any compensable incapacity as total rather than partial, I do not consider it is necessary to go into this argument.

22. Before parting with the matter, I think I should refer briefly to s.8(3) and (4), which loomed large in the Tribunal's reasons. It is plain that s.8 is concerned with the scope of the employment. But s.8 does not amend s.27 or s.29 - it merely provides that the employment includes certain attendances which, but for its provisions, may or may not have fallen within the scope of the employment (cf. Maunder v. Commonwealth of Australia (1983) 51 ALR 44). To sustain a claim in respect of an injury, it remains necessary to apply the provisions of s.27(1), but understanding the reference to employment in those provisions in the light of s.8. Similarly, in the case of a disease, s.8 does not avoid the provisions of s.29(1), but those provisions must be read bearing in mind that the reference in them to employment may have an expanded operation by virtue of s.8.

23. In the result, the appeal is allowed and the decision of the Administrative Appeals Tribunal affirming the determinations of the delegate of the Commissioner for Employees Compensation is set aside. The Court further orders that the matter be remitted to the Administrative Appeals Tribunal for decision of the respondent's claim based upon s.29 of the Act. In accordance with the applicant's undertaking, it is ordered that the applicant pay the respondent's costs.