Re Regina Beton Whillock v the Commonwealth of Australia [1986] FCA 329 (3 October 1986)

FEDERAL COURT OF AUSTRALIA

Re: REGINA BETON WHILLOCK
And: THE COMMONWEALTH OF AUSTRALIA
No. G115 of 1984
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
Beaumont J.
Pincus J.

CATCHWORDS

Workers' Compensation - Commonwealth employees - member of Defence Forces - Death from myocardial infarction - Necessity to consider if employment a contributing factor in aggravation or acceleration of disease - Right of Appeal from prescribed Court - Error of Law - Failure of prescribed Court to address proper question - Failure to discuss evidence relative to the question.

Compensation (Commonwealth Government Employees) Act 1971, ss. 5, 8, 27, 29, 95

Anisminic v Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147

Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473

Commonwealth of Australia v Whillock (1983) 48 ALR 433

HEARING

SYDNEY
3:10:1986

ORDER

The appeal be allowed.

That the matter be remitted to the Commissioner for Employees' Compensation for re-determination.

All questions of costs are reserved.

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

DECISION

The appellant, Regina Beton Whillock, is the widow of Robert John Whillock (the deceased) formerly a Chief Petty Officer, Medical, Royal Australian Navy who died on 8 May 1977 as a result of a "heart attack" suffered in circumstances referred to later herein. The deceased was born on 4 October 1929 so that at the date of his death he was aged 47. The appellant was born on 23 May 1926 and at all relevant times was partially dependent on the earnings of the deceased. A son of the deceased, born on 3 November 1964, was then totally dependent.

2. On 26 March 1979 the appellant lodged a claim for compensation in respect of the death of the deceased under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the Act).

3. Some of the questions and answers set out in that claim form are:

Q. If death of employee resulted
from an injury - what was the
nature of the injury? A. Heart attack.

Q. When did you first become
aware of the injury? A. 8 May 1977.

Q. Describe briefly how the
injury occurred? A. Ascending steps to
sick bay. Strain and
exertion on heart.

Q. If death of employee
resulted from a disease -
what was the nature of the
disease? A. Heart disease.

Q. How was the disease caused? A. Stress of employment
and exertion.

Q. When did you first become
aware that the employee was
suffering from the disease? A. 1973.

Q. When was the disease caused? A. 1972/1977.

Q. For what period was employee
engaged in his employment? A. 1972/1977.

Q. When was the employee first
incapacitated by the disease? A. 1973.

Q. If employee ever previously
suffered from the disease
state the approximate date
on which the disease first
manifested itself? A. 1973.

4. It is clear that under provisions of s.7(1) and (2) of the Act the deceased, as a member of the Defence Force, was for the purposes of the Act deemed to be employed by the Commonwealth and his employment was for those purposes deemed to be constituted by his performance of his duties as a member of the Defence Force.

5. Relevant sections of the Act are:

5(1) In this Act unless the contrary intention appears -

"injury" means any physical or mental injury and
includes the aggravation, acceleration or recurrence
of any physical or mental injury but, subject to
section 29, does not include a disease or the
aggravation, acceleration or recurrence of a disease;

"disease" includes any physical or mental ailment,
disorder, defect or morbid condition, whether of
sudden onset or gradual development;

"prescribed Court" means (a) the Workers' Compensation
Commission of New South Wales;

(b) to (e) ...

5(11) For the purposes of this Act:

(a) the death ... of an employee ... shall be taken
to have resulted from ... the aggravation (or)
acceleration ... of a disease suffered by the
employee if ... the aggravation (or) acceleration
... contributed to the death ...

8(3) For the purposes of this Act ... the employment of an
employee by the Commonwealth includes the attendance
of the employee at his place of employment ... at any
time during a period when he is not required to engage
in his employment, where the attendance is reasonably
incidental to his employment.

27(1) If personal injury arising out of or in the course of
the employment of an employee by the Commonwealth is
caused to the employee, the Commonwealth is, subject
to this Act, liable to pay compensation in respect of
that injury in accordance with this Act.

29(1) Where -

(a) an employee ... suffers an aggravation (or)
acceleration of a disease; and

(b) any employment of the employee by the
Commonwealth was a contributing factor ... to the
aggravation (or) acceleration ... whether or not
... the aggravation (or) acceleration was
suffered in the course of that employment;

the succeeding provisions of this section have effect.

(2) If -

(a) the death of the employee;

(b), (c), (d) (e) ...

results from the ... aggravation (or) acceleration of
the disease ... then, for the purposes of this Act
unless the contrary intention appears -

(f) the ... aggravation (or) acceleration shall be
deemed to be a personal injury to the employee
arising out of the employment of the employee by
the Commonwealth.

6. On 7 May 1980 a Delegate of the Commissioner for Employees Compensation rejected the claim, determining that the death was not the result of personal injury arising out of or in the course of the employment of the deceased, and also, was not the result of the contraction of a disease or the aggravation, acceleration or recurrence of a pre-existing or underlying disease to which his employment was a contributing factor.

7. On 24 November 1980 the appellant, pursuant to s. 90 of the Act, made application to the then appropriate prescribed Court, namely the Workers' Compensation Commission of New South Wales, for a judicial review of the said determination. That review came on for hearing before His Honour Judge O'Meally on 5 and 7 May 1982, on which later day His Honour gave ex tempore reasons for judgment. As such reasons are not fully reported it is necessary that the same be set out. Those reasons read:

This is an application for judicial review of the
determination of the Commissioner for Employees Compensation
of 7 May 1980 that the death of Robert John Whillock on 8 May
1977 was not the result of personal injury arising out of or
in the course of his employment nor the result of the
contraction of a disease or to the aggravation, acceleration
or recurrence of a pre-existing or underlying disease to
which his employment was a contributing factor. The
Commissioner disallowed a claim for compensation made by his
widow, Regina Beton Whillock, in respect of the death of her
husband.

The deceased was at the time of his death a Chief Petty
Officer in the Royal Australian Navy. He was at that time
serving upon Her Majesty's Australian ship, "Stalwart" and
living in accommodation provided by the Navy at East Hills.

His appointment to "Stalwart" was as a Chief Petty Officer,
Medical and that appointment required him to man the sick bay
on the ship. In May 1977 "Stalwart" was in dry dock at
Cockatoo Island dockyard.

On Sunday, 8 May 1977 whilst at his home, the deceased
complained of low back pain which was of sufficient intensity
to cause him to contact the Naval Hospital at Balmoral and,
in due course, to present himself there for examination and
such treatment as may have been prescribed. He was taken
from East Hills to Balmoral in a Naval ambulance and was
examined by Dr Virant who prescribed an anti-inflammatory
drug and suggested to him that he absent himself from work at
least, in the first instance, for a period of a couple of
days or so.

The deceased was, for whatever reason, reluctant to accept
the advice of Dr Virant and instead was transported from
Balmoral to Cockatoo Island, initially by road and then by
boat. He boarded his ship by means of a gang plank which
probably was on a level plane and then ascended one flight of
stairs in order to get to the Petty Officer's mess. It would
seem that whilst in the Petty Officer's mess he was still
suffering pain and discomfort in his low back which was not
relieved by the medication which had been prescribed nor by
his changing posture. As a consequence, he attended the sick
bay on board the ship which necessitated his ascending a
further flight of steps. The two flights of steps were
probably not more than eleven each in number. From the sick
bay the course of events which then occurred was that the
deceased began the process of disembarking, in fact
disembarked, was placed in a launch for the purpose of being
removed to hospital but whilst in the launch he died.

A post-mortem examination was conducted and there seems to be
no dispute that the cause of his death was a myocardial
infarction caused by an occlusion of his right coronary
artery by a thrombus which the examiner thought to be of
recent origin.

It is appropriate to observe at this stage that on Sunday, 8
May 1977 the deceased was not on duty on "Stalwart" but in
the ordinary course of events would have been on duty on her
on the day following.

It is in these circumstances that the deceased's widow brings
her claim for compensation, alleging that the deceased
suffered an injury arising out of or in the course of his
employment with the respondent.

Section 27(1) of the Compensation (Commonwealth Government
Employees) Act 1971 provides:

If personal injury arising out of or in the course of
the employment of an employee by the Commonwealth is
caused to the employee, the Commonwealth is, subject to
this Act, liable to pay compensation in respect of that
injury in accordance with this Act.

Subject to the provisions of s.29 of the Act injury is
defined so as to exclude a disease. For reasons which I
shall later give, I am of the view that the death of the
deceased was not caused by a disease.

Sub-section 3 of section 8 of the Act provides:

For the purposes of this Act, other than section 32, the
employment of an employee by the Commonwealth includes
the attendance of the employee at his place of
employment ... at any time during a period when he is
not required to engage in his employment, where the
attendance is reasonably incidental to his employment.

The respondent resists the applicant's claim for compensation
on the basis that his death was caused by a disease and by
reason of the operation of section 29 of the Act no claim can
be validly maintained. It also resists the applicant's claim
on the basis that at the time of the event which caused his
death, his attendance at his place of employment was not
reasonably incidental to his employment.

I have said that it is my view that his death was not caused
by a disease. The post-mortem examination revealed the
presence of a recent thrombus which occluded his right
coronary artery. That occlusion prevented the flow of blood
to his heart muscle and caused its necrosis. There was a
pathological change brought about to a vital organ of his
body. That event, in my view, constituted an injury. It may
well be said that the thrombus was caused by a reaction on
his blood passing through degenerate blood vessels which were
diseased. That this is so, in my view, is probably correct.
That is to say, he suffered from cardio-vascular disease but
nevertheless the effect of the thrombus forming and causing
an occlusion brought about physical consequences to his
myocardium and damaged it. That, as I have said, in my view
constitutes an injury.

It seems to me that there are two bases upon which the
applicant can properly rest her claim for compensation. The
first is under the provisions of section 27(1) and the second
under the provisions of section 8(3). The applicant will be
entitled to compensation if she establishes to my
satisfaction that her husband received an injury, arising out
of or in the course of his employment. The former concept
connotes a causal connection whereas the latter connotes a
temporal one. I am not satisfied on the evidence that his
injury arose out of his employment, so it remains to consider
whether he suffered injury in the course of his employment.
That concept would seem to be simple enough though like many
simple concepts it has been the subject of analyses and
interpretation by courts at all levels of the judicial
hierarchy.

8. His Honour then cites extracts from Humphrey Earl Limited v Speechley [1951] HCA 75; 84 CLR 126 at p 134 and Henderson v The Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281 at p 294 before continuing:

Thus it appears that what is incidental must be related to
the carrying out of an employee's employment.

It was necessary for the deceased to carry out his employment
that he be present on board "Stalwart". In the ordinary
course of events, until the day following, he was authorised
to remain on board so that he might more easily present
himself for duty on the day following. He was motivated, so
it would seem, to return to "Stalwart" rather than go home
for the reasons I have mentioned and also because the sick
bay was short-staffed and he thought his presence might
assist in its efficient conduct.

A number of reported cases has been cited but it seems to me
that in the ultimate what is reasonably incidental to
employment is a question of fact and degree. It seems to me
that in the circumstances of this case the deceased's
presence on board "Stalwart" at the time he suffered his
infarct was reasonably incidental to his employment. In
saying that, it will be apparent that I am of the view that
the infarct occurred whilst he was on "Stalwart" and not
before he arrived upon her. (Emphasis added).

It seems to me that the terms of section 27(1) entitle the
applicant to compensation if she satisfied me that a temporal
connection exists between the employment and the injury to
her husband which caused heart necrosis. She has so
satisfied me.

The consequence is that I set aside the determination of the
Commissioner and remit the matter to him with this expression
of opinion.

9. The respondent, the Commonwealth of Australia, pursuant to s.95 of the Act, appealed from the judgment of Judge O'Meally to the Federal Court of Australia by Notice of Appeal dated 26 May 1982. Section 95 provided that the appeal be "on a question of law only". The grounds of appeal as filed were:

1. That the Commissioner misdirected itself (sic) at law in
finding that the deceased whilst in the course of his
employment suffered 'personal injury' within the meaning
of section 27(1) of the Act;

2. That the Commissioner was in error in holding that the
deceased sustained an injury in the course of his
employment within the meaning of section 27(1) of the
Act;

3. That the Commissioner should have found that the death
of the deceased on 8 May 1977 was not the result of
personal injury arising in the course of his employment;

and sought an order (inter alia) that the determination of the Delegate of the Commissioner for Employees' Compensation dated 7 May 1980 be affirmed.

10. Under s.24(1) of the Federal Court of Australia Act 1976 the appeal was within the appellate jurisdiction of the Federal Court and pursuant to s.25 was heard by a Full Court.

11. The appeal first came on for hearing before a Full Court of the Federal Court on 28 October 1982 when the present appellant, Mrs Whillock, then the respondent to that appeal, sought leave to file a cross-appeal out of time as follows:

A. The respondent cross appeals from that part of the
decision of Judge O'Meally of the Workers' Compensation
Commission of New South Wales (the Commissioner) given
on 7 May 1982 at Sydney pursuant to Section 95 of the
Compensation (Commonwealth Government Employees) Act
1971.

B. Questions of law to be raised on the appeal:

1. Did the Commissioner err in law in finding that the
death of Robert John Whillock (the deceased) was
not caused by a disease?

2. Was the Commissioner in error in not finding that
the employment of the deceased was a contributing
factor to the death of the deceased by way of
aggravation, acceleration or recurrence of a
disease?

C. GROUNDS:

1. That the Commissioner misdirected itself at law in
not finding that the travelling undertaken by the
deceased on 8th May 1977 accelerated and/or
aggravated a coronial arterial disease thereby
causing death.

2. That the Commissioner erred in finding that the
death of the deceased was not caused by a disease.

3. That the Commissioner should have found that the
travelling on 8th May 1977 was a contributing
factor to the aggravation and/or acceleration of a
coronial arterial disease thereby causing death.

12. The Court then granted such leave to file the said cross-appeal and adjourned the matter by consent.

13. Thereafter, the appeal and cross-appeal came on for hearing before a Full Court of the Federal Court (Smithers, St John and Northrop JJ) on 18 February 1983 and 15 April 1983 when the Court reserved its decision. Judgment of that Court was given on 24 June 1983 (48 ALR 433) when the Court ordered that:

(a) In respect of the appeal herein,

(i) that the appeal be allowed.

(ii) that the decision of the Workers' Compensation
Commission of New South Wales of 7 May 1982 be
set aside.

(iii) that the matter be remitted to the Workers'
Compensation Commission of New South Wales for
re-determination in accordance with the
directions of the Federal Court of Australia to
consider the matter in relation to s.29 of the
Compensation (Commonwealth Government Employees)
Act 1971 and the applicability of that section to
the provisions of s.27(1) thereof.

(iv) that the question of costs be reserved.

(b) In respect of the cross-appeal herein,

the Court reserves the costs thereof but having
regard to the nature of the orders in the appeal
herein it otherwise makes no order.

14. The effect of the reasons for judgment of the majority of the Full Court of the Federal Court was that His Honour Judge O'Meally erred in law in finding that the deceased had died from a direct "injury" suffered in the course of his employment by the Commonwealth on 8 May 1977. That is to say the learned Judge had erred in considering the matter as a claim for personal injury directly under s.27 of the Act and not as a deemed personal injury claim as a consequence of an aggravation or acceleration of a disease contributed to by the employment of the deceased by the Commonwealth (that is, as a claim pursuant to s.29 of the Act).

15. This is clear from the observations of Smithers J who after making reference to Slazengers' Case (1951) A.C. 13, Butler's case [1958] HCA 56; (1958) 102 CLR 465, Hussey's case [1959] HCA 55; (1959) 102 CLR 482, Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588, and Ogden's case (1967) 116 CLR at 569, 570 said at 48 ALR 443:

Of course, once identified as aggravations of a previously
existing disease, each of the thrombus, the occlusion and the
myocardial necrosis, operates as an injury in its own right,
so to speak, but only if the aggravation was contributed to
by the employment. The same is true of the disease itself.
It is my view that had the Commissioner approached the
problem on the basis that the thrombus, the occlusion or the
myocardial necrosis, were incidents of aggravation of a
pre-existing coronary artery disease, and that death resulted
from such aggravation of the disease, such approach would
have been supported by the evidence. On that basis the
question would have arisen as to whether any employment of
the deceased by the Commonwealth was a contributing factor to
the aggravation of the disease. The Commissioner did not
deal with this question. It is for him to decide on
reconsideration pursuant to the order of the court. If he
had dealt with the question at the hearing and had answered
it in the affirmative there was evidence before him on which
such a finding might have been made. Upon such a finding the
aggravation of the disease would constitute an injury arising
out of the employment of the deceased within the meaning of
s.27(1) of the Act. (Emphasis added).

Accordingly the appeal should be allowed and in accordance
with s.95 of the Act the matter should be remitted to the
Workers' Compensation Commission of New South Wales for
reconsideration of the matter on the basis that the thrombus,
the occlusion and the necrosis constituted part of a disease,
namely coronary artery disease and require consideration in
the context of s.29 of the Act.

16. St John J in a separate judgment agreed with the conclusions of Smithers J and the consequential orders proposed by him.

17. The matter again came on before His Honour Judge O'Meally on 7 November 1983. No further evidence was then presented to the Commission. After hearing submissions from Counsel for the respective parties, His Honour gave the following ex tempore judgment.

O'Meally, J: This matter comes before me at the direction
of the Federal Court of Australia to which an appeal was made
against my findings and order of 7 May 1982. I then
determined that the deceased, who died of a myocardial
infarction, had suffered an injury in the course of his
employment with the respondent. However, the Federal Court,
by majority, expressed the view that I was wrong in that
conclusion and that the matter ought to be remitted to me for
consideration whether or not the deceased's employment was
responsible for the aggravation, acceleration or recurrence
of the deceased's coronary artery disease. (Emphasis added).

I suppose it is not a matter of profound significance but St
John J. seems to have been moved, in coming to his
conclusion, by use of the phrase "pathological injury"
attributed to me. However, that phrase does not appear in
the judgment, nor anywhere in the evidence.

Nevertheless the matter has been remitted to me by order of
the Court to consider some aspects which their Honours
apparently thought I had not considered when I gave my
extempore reasons on 7 May 1982.

I did say at page 4 of my judgment that I was not satisfied
on the evidence that the injury to the deceased arose out of
his employment. That remains my view, although it has been
urged upon me by counsel for the applicant that I ought to
reconsider it in the light of the evidence which was before
me.

It is conceded by counsel for the respondent that I am
entitled to reconsider the matter anew, even though I had
expressed a concluded view when I gave my judgment initially.

Having analysed the evidence and argument, it is put by
counsel for the applicant that the applicant is entitled to
succeed if I am satisfied that the deceased engaged in
exertion or exerted effort which was responsible for the
occlusion of his coronary artery and subsequent infarction.
The facts were not exhaustively recited in my reasons of 7
May 1982 but so far as the submission made by counsel for the
applicant is concerned, the following facts are relevant.
The deceased boarded "Stalwart" by a gang plank which was
probably on a level plane of thirty feet in length. To
arrive at it he traversed a distance something less than
forty yards and had, as I previously mentioned, ascended
eleven stairs to arrive at the mess. Whilst at the mess, he
was still experiencing back pain. It is said that I ought to
find that whilst in the mess he began to experience chest
pain and infer that as a consequence he attended the sick
bay, which involved his ascending a further eleven steps;
that the effort of ascending eleven stairs accelerated the
occluding process and consequentially the infarct and that
being on "Stalwart" was an incident of employment, the
disease process was accelerated by his employment.

I am unable, on the evidence, to find when it was that he
suffered the onset of chest pain. That is critical to the
submission made by counsel for the applicant, because
accepting as I do the evidence of Dr Shiller that the infarct
began at the time chest pain was experienced, it becomes
impossible to say when the infarct began; so that one cannot
determine whether its onset or even its acceleration was
affected by any effort. It is, of course another question
whether the effort that would have been involved in ascending
eleven stairs would have been sufficient to accelerate the
disease process; but in the light of the conclusion which I
have announced, it is unnecessary to express an opinion on
that matter.

The conclusion therefore to which I am regrettably caused to
come is that the determination of the Commissioner is correct
and it is confirmed.

I make no order as to costs.

18. The appellant appealed to the Federal Court from that decision on 2 December 1983. Thereafter the appeal was listed before a single Judge of the Court for directions on at least three occasions before the matter was directed to be included amongst matters in a call-over list for the Sydney Full Court sittings of the Court.

19. An amended Notice of Appeal filed herein on 20 February 1986 shows the questions of law raised on the appeal as follows:

1. Was the Commissioner in error in not finding that the
employment of the deceased was a contributing factor to
the death of the deceased by way of aggravation,
acceleration or recurrence of a disease?

2. Was the Commissioner in error in not finding that the
deceased died as a result of the aggravation or
acceleration of a disease to which his employment was a
contributing factor?

whilst the grounds of appeal are shown as:

1. That the Commissioner was in error in not considering
whether or not pursuant to Section 31(3) of the Act that
the death of the deceased had been contributed to by an
aggravation and acceleration of a disease?

2. That the Commissioner should have found that the
employment of the deceased was a contributing factor to
the aggravation and/or acceleration of a coronial
arterial disease, thereby causing death?

3. That the Commissioner should have found that the
travelling on the 8th May, 1977 was a contributing
factor to the aggravation and/or acceleration of a
coronial arterial disease, thereby causing death?

4. That the Commissioner was in error in finding that he
could not determine whether the onset of chest pain or
even its acceleration was affected by any effort?

and sought orders that:

1. That the appeal be allowed.

2. That the decision of the Commissioner given on 7th
November 1983 be set aside and in lieu thereof that an
award be made in favour of the applicant.

20. The sections of the Compensation (Commonwealth Government Employees) Act 1971 dealing with appeals from prescribed Courts to the Federal Court of Australia, namely Division 5, which included s.95 of the Act, were repealed by the Commonwealth Functions (Statutes Review) Act 1981, Part VI and Schedule 2. Section 95(3) read:

95(3) The Federal Court of Australia shall hear and
determine the appeal and -

(a) may affirm, vary or set aside the decision of the
Compensation Tribunal or the judgment or order of
the prescribed Court;

(b) may give such judgment, or make such order, as in
all the circumstances it thinks fit; and

(c) may remit the case for re-hearing and
re-determination, either with or without the
hearing of further evidence, by the Compensation
Tribunal or prescribed Court, or for
re-determination by the Commissioner, in
accordance with the directions of the Federal
Court of Australia.

21. Section 151 of the amending Act makes provision for the saving of s.95 of the principal Act in respect of determinations by the Commissioner for Employees Compensation made before the date of the amendments, namely 1 July 1981. Here it will be recalled that the Commissioner's determination was made on an earlier date, namely 7 May 1980.

22. I respectfully agree with the observations of Smithers J at 48 ALR 433 at 443/4 which is emphasised in the extract from his reasons for judgment set out above that the question for consideration by the trial Judge on his first determination and again on re-determination was whether any employment of the deceased by the Commonwealth was a contributing factor to the aggravation or acceleration of his pre-existing coronary artery disease.

23. A perusal of the two separate reasons for judgment of O'Meally J dated 7 May 1982 and 7 November 1983 leaves me with the belief that at no stage has the learned Judge properly addressed this question. In particular on his re-determination of the matter following the Full Court of the Federal Court's decision in June 1983 wherein the proper question for consideration is clearly raised in the judgment of Smithers J, His Honour does not set out the question as posed by Smithers J at all but states that he has been directed to consider whether the deceased's employment was responsible for the aggravation, acceleration or recurrence of the deceased's coronary artery disease.

24. It is clear, in my view, that the learned Judge then addressed his mind to a wrong question in circumstances which have resulted in an error of law being committed. (Anisminic v Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 ' 171 (Lord Reid) and 195 (Lord Pearce)).

25. I have had the opportunity of reading a copy of the draft reasons for judgment of Beaumont J's herein and agree with his expressed view that O'Meally J "took an unduly restricted view of the inquiry committed to him". A detailed study of all the evidence before the learned trial Judge as set out in the Appeal Book indicates that a tribunal of fact may have concluded, on the balance of probabilities, that the deceased's employment was a contributing factor to the aggravation of the deceased's disease. Such evidence should, in my view, have been dealt with by His Honour and would, I feel sure, have been referred to by him if he had addressed his mind to the proper question. It was of course open to His Honour having considered any evidence supporting such a finding to have rejected it or portions of it so as to conclude that he was not satisfied that the deceased's employment was such a contributing factor. But owing to the absence of reasons in this regard, I cannot, in all the circumstances, feel the degree of confidence required to be satisfied that His Honour did in fact address the appropriate question.

26. In my view the appeal should be allowed and the decision of the Workers' Compensation Commission given on 7 November 1983 be set aside.

27. Under the provisions of s.95 of the Commonwealth Act before the 1981 amendments referred to above the Court would have remitted the matter back to then prescribed Court, the Workers' Compensation Commission of New South Wales. But the New South Wales Workers' Compensation Commission was effectively abolished in June 1984, (see NSW Acts 89, 90 and 93 of 1984). It appears that the saving provisions of the amending NSW Acts (see Act 93 of 1984, s. 6 Sch 2 Cl 8) make no provision in respect of the present matter should the appeal be allowed. This question has been raised with Counsel for the respective parties. It was agreed between the parties that should the Court allow the appeal then the proper course would be for the matter to be remitted back to the Commissioner for Employees' Compensation for reconsideration.

28. In all the circumstances therefore, I am of the view that the matter should be remitted to the Commissioner for Employees' Compensation established under s.9 of the Compensation (Commonwealth Government Employees) Act 1971 for re-determination as a matter of urgency.

29. I would reserve the question of costs. It is noted that the Full Court of this Court reserve costs of the first appeal.

Having had the benefit of reading the judgment of Pincus J., I need not repeat what his Honour has said.

2. In the earlier appeal (Commonwealth of Australia v. Whillock (1983) 48 ALR 433), the matter was remitted for reconsideration on the basis that the thrombus, the occlusion and the necrosis "constituted part of a disease, namely coronary artery disease and require consideration in the context of s.29" - per Smithers J. at p.444. So far as presently relevant, s.29 provides:

"29. (1) Where -

(a) an employee ... suffers an aggravation,
acceleration or recurrence of a disease;

("disease" is defined in s.5(1) to include
"any physical or mental ailment, disorder,
defect or morbid condition, whether of
sudden onset or gradual development"); and

(b) any employment of the employee by the
Commonwealth was a contributing factor
to the....aggravation, acceleration or
recurrence....whether or not....the
aggravation, acceleration or recurrence was
suffered in the course of that employment,

the succeeding provisions of this section have
effect.

(2) If -

(a) the death of the employee;

....

results from the aggravation, acceleration or
recurrence of the disease,....then, for the
purposes of this Act, unless the contrary
intention appears -

(f) ...the aggravation, acceleration or
recurrence of the disease....shall be
deemed to be a personal injury to the
employee arising out of the employment of
the employee by the Commonwealth; and

(g) the date or death....shall be deemed to be
the date of the injury."

(By s.5(ll), the death of an employee shall be taken to have resulted from an aggravation, acceleration or recurrence of a disease suffered by the employee if the aggravation, acceleration or recurrence contributed to the death.)

3. In his first judgment, O'Meally J. made the following findings :-

"The deceased....boarded his ship by means of a
gang plank which probably was on a level plane
and then ascended one flight of stairs in order
to get to the Petty Officer's mess. It would
seem that whilst in the Petty Officer's mess he
was still suffering pain and discomfort in his
low back which was not relieved by the
medication which had been prescribed nor by his
changing posture. As a consequence, he attended
the sick bay on board the ship which
necessitated his ascending a further flight of
steps. The two flights of steps were probably
not more than eleven each in number. From the
sick bay the course of events which then
occurred was that the deceased began the process
of disembarking, in fact disembarked, was placed
in a launch for the purpose of being removed to
hospital but whilst in the launch he died.

A post-mortem examination was conducted and
there seems to be no dispute that the cause of
his death was a myocardial infarction caused by
an occlusion of his right coronary artery by a
thrombus which the examiner thought to be of
recent origin."

4. The learned Judge elaborated these findings in his second judgment as follows:-

"....it is put by counsel for the (deceased) that
the (deceased) engaged in exertion or exerted
effort which was responsible for the occlusion
of his coronary artery and subsequent
infarction....The deceased boarded 'Stalwart' by
a gang plank which was probably on a level plane
of thirty feet in length. To arrive at it he
traversed a distance something less than forty
yards and had....ascended eleven stairs to
arrive at the mess. Whilst at the mess, he was
still experiencing back pain. It is said that I
ought to find that whilst in the mess he began
to experience chest pain and infer that as a
consequence he attended the sick bay, which
involved his ascending a further eleven steps;
that the effort of ascending eleven stairs
accelerated the occluding process and
consequentially the infarct and that being on
'Stalwart' was an incident of employment, the
disease process was accelerated by his
employment.

I am unable, on the evidence, to find when it
was that he suffered the onset of chest pain.
That is critical to the submission made by
counsel for the applicant because, accepting as
I do the evidence of Dr. Shiller that the
infarct began at the time chest pain was
experienced, it becomes impossible to say when
the infarct began; so that one cannot determine
whether its onset or even its acceleration was
affected by an effort. It is, of course,
another question whether the effort that would
have been involved in ascending eleven stairs
would have been sufficient to accelerate the
disease process; but in the light of the
conclusion which I have announced, it is
unnecessary to express an opinion on that
matter. (Emphasis added)

The conclusion therefore to which I am
regrettably caused to come is that the
Determination of the Commissioner is correct and
it is confirmed."

5. I agree with Pincus J. that the sole question for the learned Judge was whether the deceased's employment was a "contributing factor" to the aggravation of his disease and that it was open to his Honour to hold that the death was caused by a sequence of events, including a partial blockage of the artery followed by exertion, thus justifying a finding that the exertion on the ship contributed to the death. I also agree that the learned Judge's approach may be criticised because his Honour did not even begin the process of attempting to determine to what extent, if at all, exertion on the "Stalwart" contributed to the death; and that the real issue here is whether his Honour was entitled in law to arrest the inquiry simply by declining to make a finding as to the time of onset of the infarct.

6. In my respectful opinion, O'Meally J. took an unduly restricted view of the inquiry committed to him. True it is that the appellant bore the onus of proof to establish, on the balance of probabilities, that the exertion on the ship contributed to the aggravation of the disease. But this issue was to be determined in all the relevant circumstances of the case, regard being had, in particular, to the fact that the primary source of information on the point, the deceased, could not give evidence (cf. Cross on Evidence, 2nd Aust. ed. at p.474). With all respect, the learned Judge should have approached the matter in the broader context of the whole of the circumstances rather than confining his inquiry to endeavouring to ascertain the precise moment at which the infarct began. No doubt, such an inquiry, if fruitful, could well throw light on the ultimate question to be determined in the proceedings. However, the learned Judge's inability, on the evidence, to pin-point that exact moment with scientific precision did not necessarily resolve the matter adversely to the appellant. In other words, when the whole of the circumstances of the case were considered, it could still be open to a court to find that, on the balance of probabilities, the exertion on the ship contributed to the aggravation of the disease.

7. It follows, I think, that the learned Judge addressed his mind to the wrong question and, to this extent, an error of law occurred (see Anisminic v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147, per Lord Reid at p 171 and per Lord Pearce at p 195; Sinclair v. Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, per Barwick C.J. at p 480 and per Gibbs J. at p 483.

8. I would propose that the appeal be allowed, that the decision of the Workers' Compensation Commission given on 7 November 1983 be set aside and that the case be remitted to the Commissioner for Employees' Compensation for re-hearing and re-determination without the hearing of further evidence.

9. It is hardly necessary to say that the matter deserves an expeditious resolution.

This is an appeal, said to be on questions of law, from a decision of O'Meally J. in the Workers' Compensation Commission of New South Wales, given on 7 November 1983. That Commission then had the function, pursuant to s.94 of the Compensation (Commonwealth Government Employees) Act 1971 of hearing an appeal as a "prescribed court" from a determination of the delegate of the Commissioner for Employees' Compensation.

2. The case concerned the death on 8 May 1977 of a member of the Royal Australian Navy, Chief Petty Officer Whillock, from a heart attack while being transported by boat from a vessel called the "Stalwart", then in drydock.

3. O'Meally J. first considered the matter in 1982, when he decided, in favour of the applicant widow, that Mr. Whillock had suffered an injury arising out of, or in the course of, his employment; a decision of the delegate was thus reversed. That was on the basis that the process of formation of a clot in the deceased's right coronary artery, which blocked that artery, causing an infarct, constituted an "injury" within the meaning of the relevant provisions of the Act. His Honour's conclusion was successfully challenged on a first appeal to this Court, in which judgment was delivered on 24 June 1983; the case is reported at 48 A.L.R. 433. This Court, then constituted by Smithers, St. John and Northrop JJ., decided by a majority that the first decision of O'Meally J. should be set aside and the matter be remitted for redetermination; the Court held that the relevant event did not constitute an "injury".

4. The reason for remission of the matter was that the Court wished it to be reconsidered on the basis that death was due to a disease, and either the death or disease, or both, might be sufficiently connected with the deceased's work to enable compensation to be recoverable.

5. The relevant provisions of the Act were discussed in the reasons given in the first appeal to this Court, but since that concerned a different question, it is desirable briefly to mention the parts of the Act which are directly material. Section 27(1) creates an obligation to pay compensation for "personal injury arising out of or in the course of the employment" of a Commonwealth employee. The word "injury" is defined by s.5(1), and the definition concludes by saying that the word "subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease". Since the expression "aggravation, acceleration or recurrence" recurs in these provisions, I will, for simplicity, use the single word "aggravation" to stand for the whole phrase. The effect of s.29, so far as relevant here, is to deem the aggravation of a disease to be personal injury arising out of employment if death "results from" that aggravation and the employment was a contributing factor to that aggravation.

6. It will be noticed that there are two causal connections required by s.29, one between the aggravation and the employment, and the other between the aggravation and the death. The appellant, on the facts of this case, plainly has no problem with the second; the question is whether the employment by the Commonwealth was a "contributing factor" to the aggravation. It should be mentioned, however, that the expression "results from" is so defined in the relevant context by s.5(11) that death is taken to result from an aggravation if the aggravation "contributed to" the death. Then s.31(3) has the effect that the death is taken to have been "contributed to" by the aggravation if, but for the aggravation, "the death of the employee would have occurred at a significantly later time". But the test of occurrence at a significantly later time, derived from s.31(3), is not material here, where there is no doubt that there was an aggravation which caused the death; the sole question is whether the employment was a "contributing factor" to the aggravation.

7. The evidence was that Mr. Whillock, who had had a previous heart attack, suffered a blockage in his right coronary artery which caused his death. The blockage was caused by a blood clot, but there was no suggestion that the clot formed because of anything to do with Mr. Whillock's employment. The case put forward was that exertion in which Mr. Whillock engaged in the course of his employment shortly before his death contributed to the onset, or progress, of an infarct - a death of heart tissue - which was the immediate cause of Mr. Whillock's death. The exertion relied on included moving up the gang-plank of the Stalwart, ascending stairs to the mess and, later, ascending stairs to the sick-bay.

8. When the matter came back before O'Meally J., he reconsidered it as directed, but this time confirmed the determination of the delegate. O'Meally J. held himself to be unable to say whether effort in which the deceased engaged shortly before his death was connected with the occurrence of the infarct because he said he could not determine when the infarct began; he could not determine that because the infarct began when chest pain began and the evidence was not such as to enable him to determine when chest pain began.

9. In one sense, the reasons of O'Meally J. were unsatisfactory; his Honour found himself unable to determine the facts on which a positive conclusion as to the entitlement to compensation could have been founded; but, as it seems to me, the failure of O'Meally J. to reach a conclusion on that question was, on the facts, defensible. More to the point, it did not constitute a legal error.

10. Facts relating to the matter are set out in the reasons of Smithers J., who formed one of the majority in the previous decision of the matter by this Court. However, it is desirable to deal with the evidence in some further detail, for present purposes. As O'Meally J. found, there was evidence that the infarct began at the time chest pain was experienced, but the evidence as to that time was conflicting. According to N.S. Esson, who spoke to the deceased in the mess on two occasions after 2 p.m. on the day of his death, the deceased then complained of back pain, but not of chest pain. He then left Mr. Esson, and about 3.15 p.m. went to see R.J. Greenwood who was on duty in the sick-bay on H.M.S. Stalwart at the time. From the sick-bay he went to the boat, to be taken to hospital, but died on the boat. Mr. Greenwood said the deceased complained of the same feelings as four years before when he had a heart attack - i.e. of severe chest pain, and said he had had it for about two or three hours. That would fix the onset of the chest pain at a time well before the deceased spoke to Mr. Esson. There was other evidence mentioned in the judgment of Smithers J., referred to above, which suggested that Mr. Esson was right in saying that it was back pain of which the deceased complained; it is unnecessary to set that evidence out. There was also evidence from doctors as to the possibility of various sorts of exertion in which the deceased engaged shortly before his death being connected with the infarct.

11. It has to be kept in mind that the appellant's case was not that the underlying disease was caused by the deceased's employment. Her contention was that exertion shortly before the death, at a time when there was a clot partly closing off what was left of the passage through the right coronary artery, made his heart work harder, creating an increased need for flow of blood through that artery and accelerating his death. Of the medical specialists who were called, all conceded this possibility, but they did not all use language according it the same degree of likelihood. Dr. W.L. Calov thought the emotional stress of the back pain was aggravated by the boat journey and that probably the pain and journey were enough to precipitate death. Dr. Eric Schiller said that if the pain started only in the mess, where the deceased was talking to Mr. Esson, then walking to the sick bay and up a flight of steps, then from the sick bay to the boat "could well have aggravated or exacerbated the cause of his heart condition". Dr. Schiller also thought that, if the chest pain was already present from about 1 p.m. (which would be so if the account given by the deceased to Mr. Greenwood was correct), then the walk from the boat to the ship up a gangway and up steps on the ship "could have aggravated the heart condition in the same way". As to the former possibility, Dr. Schiller said in cross-examination that he thought it was highly probable that the deceased would have died whether he had stayed in the sick bay or moved from it. Dr. David Brender, while generally speaking opposed to the theory that exertion had something to do with the deceased's death, conceded the possibility that if there was a thrombus present within two or three hours before the death, the exertion the deceased engaged in could have aggravated his condition.

12. On this evidence, as it seems to me, it was open to O'Meally J. to hold the death was caused by a sequence of events, including a partial blockage of the artery followed by exertion, justifying a finding that exertion on the day in question contributed to the death; it seems clear, however, that O'Meally J. was not obliged so to find. To my mind, the most substantial criticism of his approach was that he did not even begin the process of attempting to determine to what extent, if at all, exertion on the ship contributed to the death. He failed to do so because, as he thought, he could not determine when the chest pain began and therefore could not determine when the infarct began. One could say, in opposition to the learned judge's opinion, that whenever the infarct began its onset was likely to have been contributed to, or its progress promoted, by exertion; but I do not think his Honour was obliged to take so broad a view. The assumption underlying his reasoning was that, without a finding as to the stage at which the infarct began, there was no rational foundation for postulating a particular course of events including exertion as a contributing factor. For example, if the infarct began and progressed substantially during a time when the deceased was, as Mr. Esson said, sitting and lying about before ascending to the sick bay, it would seem difficult to reach a conclusion favourable to the appellant.

13. One contention which was urged upon us by counsel for the appellant was that it was likely that the deceased's having moved from the mess to the sick bay contributed to the onset or progress of the infarct - or, at the least, that the possibility of its having done so should have been expressly examined by the learned judge. It does not appear to me, however, that if his basic approach was defensible, it would have been consistent with that approach to treat that phase of the deceased's activity before his death as being of special significance. It is noteworthy that Dr. Calov who, of the three physicians who gave evidence, had the view most favourable to the appellant, did not place emphasis on the ascent to the sick bay. But that is not the principal point; in my view, the real issue is whether his Honour was entitled in law to arrest the enquiry at the threshold, so to speak, by declining to make a finding as to the time of onset of the infarct.

14. I think that mode of treatment of the facts was well within the range of permissible outcomes. Being entrusted with the task of finding the facts, the learned judge found himself unable to reach a conclusion as to the time of onset of the infarct. The onus lay upon the appellant to prove a set of facts leading to a conclusion favourable to her case, and she failed to do so. Since his Honour was not able to be satisfied as to when the infarct began, it would have been largely a matter of speculation as to what any particular phase of the exertion engaged in, or that exertion considered as a whole, had to do with the onset or progress of the infarct.

15. I have read the reasons prepared by Evatt J. and have noted his Honour's view that O'Meally J. did not properly address the question whether the deceased's employment was a contributing factor to the aggravation or acceleration of the disease.

16. While it might, in my respectful opinion, have been better if O'Meally J. had set out, in his second judgment, the relevant words of the statute rather than paraphrases, I cannot accept that it is at all likely that O'Meally J. decided the matter in ignorance of the precise wording of the causal test posed by the legislature - "contributing factor". The first sentence of the first set of reasons includes an express reference to that test, and there are two further references to s.29 in which it is set out. For reasons which it is unnecessary to recapitulate, when the matter first came to this Court it was remitted to O'Meally J., specifically for reconsideration of the question whether employment was a contributing factor to the aggravation of the disease. I would be loath to draw the inference that O'Meally J. simply failed to notice what the task was which was explicitly set him, and do not think the matter should be remitted for a second reconsideration of the same point.

17. It is my view that the conclusion at which O'Meally J. arrived is not shown to have been affected by any legal error and that the appeal should be dismissed.