Re Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees v June Anne Hall [1993] FCA 129; (1993) 17 Aar 198 (1993) 41 FCR 508 (30 March 1993)

FEDERAL COURT OF AUSTRALIA

Re: COMMISSION FOR THE SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES
And: JUNE ANNE HALL
No. QG57 of 1992
FED No. 207
Number of pages - 10
Workers' Compensation
[1993] FCA 129; (1993) 17 AAR 198
(1993) 41 FCR 508

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CATCHWORDS

Workers' Compensation - Commonwealth employee - death from glioma - aggravation or acceleration of symptoms of glioma from injury sustained during the course of employment - appeal by employee's widow - Commonwealth obligation to dependant where 'an injury to an employee results in death' - acceleration of symptoms of glioma did not 'result in' the employee's death.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss. 17, 124, 128

Compensation (Commonwealth Government Employees) Act 1971 ss. 27, 29, 31

Johnston v. The Commonwealth [1982] HCA 54; (1982) 150 CLR 331

Australian Industry Development Corporation v. Boyd (1990) 95 ALR 149

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

Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235

Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173

McLaughlin and Co Pty Ltd v. Brinnand (1965) WCR 112

HEARING

BRISBANE, 11 March 1993
30:3:1993

Counsel for the applicant: Mr D. J. McGill instructed by

Australian Government Solicitor

Counsel for the respondent: Mr P. Munro instructed by
Welfare Rights Centre

ORDER

THE COURT DECLARES THAT:

While the employment of Mr Hall by the Commonwealth was a
contributing factor to the acceleration of the disease glioma, the
death of Mr Hall did not result from the acceleration of that
disease.

THE COURT ORDERS THAT:

1. The orders made by the Administrative Appeals Tribunal on 31
March 1992 be set aside.
2. There be no order as to costs of this application or as to
the costs before the Administrative Appeals Tribunal.

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

DECISION

SPENDER J The applicant, the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, appeals to this Court from the decision of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe, Dr G. S. Urquhart and Captain T. E. Keane made on 31 March 1992, whereby the Tribunal set aside a decision made by a delegate of the Commission on 22 April 1991, which decision affirmed a determination made on 23 August 1990 by a delegate of the Commission that the Commission was not required to pay to the respondent's husband compensation for personal injury pursuant to the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988.

2. This application raises a short point as to the proper interpretation of s. 29(2) of the Compensation (Commonwealth Government Employees) Act 1971.

3. The parties have been content to proceed in a somewhat unsatisfactory way, having regard to the statutory provisions, in respect of the determination of the central question between the Commission and Mrs Hall, which I will detail shortly.

4. The respondent to this application is the widow of a deceased serviceman, Roy Hall. Mr Hall was born on 5 July 1947, enlisted in the Royal Australian Air Force in 1981 and was discharged in 1990, being medically unfit for further service. On 20 June 1990 Mr Hall lodged a claim for compensation for tumour of the brain stem, glioma, which he attributed to hitting his head on the roof of a military vehicle in which he was a passenger during field training exercises in November 1987.

5. On 23 August 1990, a delegate of the Commission said that he was unable to find that the personal injury sustained by Mr Hall was the result of (a) a personal injury arising out of and in the course of his employment and (b) the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment contributed in a material degree; and (c) a journey which constituted part of his employment by the Department of Defence. The delegate determined that the Department of Defence was not liable to pay compensation in respect of Mr Hall's claim.

6. On 7 January 1991, Mr Hall sought a reconsideration of that decision.

7. Mr Hall died on 20 March 1991 as a direct result of the glioma.

8. On 22 April 1991, a delegate of the Commission wrote to Mrs Hall, and said:

" I refer to your husband's letter dated 7 January 1991
requesting reconsideration of the determination dated 23
August 1990 in respect of his claim for brain stem
glioma and our telephone conversation today.
DECISION.
As discussed, I have decided to affirm the decision
dated 23 August 1990. The Department of Defence is not
liable to pay compensation for the condition. "

Under the heading 'REASONS' he said:

" I have examined all the evidence available to me and I
have taken note of the reasons put forward in his
request for reconsideration, namely that the bump on his
head accelerated the condition.
For compensation to be payable you must establish that,
on the balance of probabilities (as distinct from
possibilities), there is a connection between the
condition from which Mr Hall suffered and his service. "

The letter later said:

" If you are dissatisfied with this decision, you can ask
the Administrative Appeals Tribunal (A.A.T.) to review
the decision. "

9. In an application for review of decision received by the Administrative Appeals Tribunal on 31 May 1991, Mrs Hall as executor of the estate of Roy Hall sought review of the decision made on 22 April 1991, affirming on reconsideration the decision of 23 August 1990, that:

" The Department of Defence is not liable to pay
compensation in respect of the claim of Roy HALL. "

10. Before the Tribunal the parties proceeded on the basis that the point at issue was the entitlement in Mrs Hall, in respect of which the Tribunal, after giving its reasons, said:

" The Tribunal has therefore set aside the decision under
review and substituted a decision that the Commonwealth
is liable under sub-section 17(3) of the Commonwealth
Employees Rehabilitation and Compensation Act 1988 by
virtue of the operation of s. 128 of that Act (the 1988 Act). "

11. Section 17(1) provides:

" This section applies where an injury to an employee
results in death. "

12. Section 17(3) provides:

" Subject to this section and to sections 16 and 18, if
the employee dies leaving dependants some or all of whom
were, at the date of the employee's death, wholly
dependent on the employee, Comcare is liable to pay
compensation in respect of the injury of $120,000 and
that compensation is payable to, or in accordance with
the directions of, Comcare for the benefit of all of
those dependants. "

13. The obligation to a dependent under s. 17(3) arises where "an injury to an employee results in death".

14. 'Injury' in s. 4 is defined 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. 'Disease' is defined as:

" '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; "

16. 'Ailment' is defined as:

" 'ailment' means any physical or mental ailment,
disorder, defect or morbid condition (whether of sudden
onset or gradual development); "

17. It is accepted by both parties that the 'injury' of Mr Hall occurred in December 1987, which is a date prior to the commencing date of the 1988 Act, the commencing date for which was 1 December 1988. Section 124(2) relevantly provides:

" A person is not entitled to compensation under this Act
in respect of any injury, loss or damage suffered before
the commencing date if compensation was not payable in
respect of that injury, loss or damage:
...
(c) in any other case - under the 1971 Act as in
force when the injury, loss or damage was suffered. "

18. Section 128 of the 1988 Act provides:

" Any liability of the Commonwealth, or of a Commonwealth
authority, to pay compensation or make any other payment
to a person under any provision of the 1912 Act, the
1930 Act or the 1971 Act shall, to the extent that it
had not been discharged before the commencing day, be
taken to have been incurred by the relevant authority on
that day under the corresponding provision of this Act. "

19. Section 124(2) makes it necessary to look at the provisions under the 1971 Act.

20. Section 27(1) of the 1971 Act provided:

" 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. "

21. Section 29(1) and (2) are crucial in this appeal and the principal point in the application is whether the provisions of s. 29(2) of the 1971 Act are to be read disjunctively or not. Section 29 relevantly provided:

"(1) Where -
(a) an employee contracts a disease or suffers an
aggravation, acceleration or recurrence of a
disease; and
(b) any employment of the employee by the
Commonwealth was a contributing factor to the
contraction of the disease or to the aggravation,
acceleration or recurrence, as the case may be,
whether or not the disease was contracted or 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;
(b) a loss to the employee of a kind referred to
in section 39 or 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste
or smell; or
(e) the total or partial incapacity for work of
the employee,
results from the disease, or from the
aggravation, acceleration or recurrence of the
disease, or the employee obtained medical
treatment in relation to the disease, or the
aggravation, acceleration or recurrence of the
disease, as the case may be, then, for the
purposes of this Act, unless the contrary
intention appears -
(f) the contraction of the disease, or the
aggravation, acceleration or recurrence, as the
case may be, 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 of the death, the date of the loss,
the date of the disfigurement, the date of the
commencement of the incapacity or the date on
which the medical treatment was first obtained,
whichever is the earlier, shall be deemed to be
the date of the injury. "

22. Section 5(11) relevantly provided:

" For the purposes of this Act -
(a) the death, or a disfigurement, incapacity or
disablement, of an employee, or a loss suffered by an
employee, shall be taken to have resulted from an injury
to the employee, from a disease contracted by the
employee or from an aggravation, acceleration or
recurrence of a disease suffered by the employee if the
injury, the disease or the aggravation, acceleration or
recurrence, as the case may be, contributed to the
death, disfigurement, incapacity, disablement or loss; and
..."

23. Section 31 of the 1971 Act made provisions relating to diseases and in sub-section 3 provided:

" (3) The death of an employee shall be taken for the
purposes of this Act to have been contributed to by a
disease or by an aggravation, acceleration or recurrence
of a disease, if, but for that disease, or that
aggravation, acceleration or recurrence, as the case may
be, the death of the employee would have occurred at a
significantly later time. "

24. Section 31(5) provided:

" This section shall not be construed as limiting by
implication the generality of the provisions of section 29. "

25. The material facts seem not to be in dispute.

26. In November 1987 Mr Hall hit his head on the roof of a military vehicle in which he was a passenger during field training exercises. At that time he suffered no symptoms of head injury. Approximately four weeks after the incident Mr Hall commenced to suffer dizziness, giddiness and vertigo, as well as nausea. The medical evidence before the Tribunal included a report from a neurosurgeon, Dr Michael Weidmann, to the effect that Mr Hall's tumour can in no way be related to his head injury. Dr Weidmann also said:

" The injury may well have caused some swelling or oedema
within or surrounding the tumour, thus resulting in his
symptoms.
It is therefore possible that the minor head injury may
have caused symptoms to appear some weeks before they
otherwise would have. However, the subsequent events
would have been the same with or without the head injury. "

27. In oral evidence before the Tribunal, Dr Vivian Edwards, a neurophysician, agreed that a haemorrhage such as might have occurred in Mr Hall can result in a non-symptomatic glioma becoming symptomatic sooner than it otherwise would have done.

28. The Tribunal stated its crucial reasons very tersely as follows:

" 18. The Tribunal is satisfied that there was an
incident in November 1987, in which the deceased, Mr
Hall, suffered trauma as a result of an accident in the
truck being driven by Sergeant Farrington. The Tribunal
accepts the written evidence of Sergeant Farrington that
the incident occurred which corroborates the written
evidence of Mr Hall to that effect.
19. At the time the applicant formed the view that her
husband was ill and that he must be suffering from a
blood clot or something of that nature. Eventually in
March 1988, Mr Hall was diagnosed as having vertigo,
nausea and related complaints. The Tribunal is
satisfied that the diagnoses of March 1988 recognises a
temporal connection between the symptoms and the
incident in November 1987.
20. The Tribunal has come to the conclusion, on the
evidence, that the diagnosed conditions were symptoms of
the brain stem glioma which symptoms were aggravated and
accelerated by the November 1987 incident and that the
Commonwealth is therefore liable under section 27 of the
1971 Act. "

29. It seems to me that the provisions of s. 29(1) (a) and (b) are met, with the consequence that the succeeding provisions of s. 29 have effect. The position was that Mr Hall, an employee of the Commonwealth, suffered an acceleration of a disease (it being accepted that the rendering symptomatic of what was previously an asymptomatic glioma constitutes an acceleration of that disease) and the employment of Mr Hall by the Commonwealth was a contributing factor to the acceleration of that disease.

30. There is no doubt that death was a direct result of the disease glioma. It is clear on the medical evidence that the acceleration of that disease by the head injury suffered by Mr Hall did not bring forward his death: that is to say that the bringing on of symptoms of his glioma did not affect the time at which Mr Hall died.

31. It is in these circumstances that the Commission appeals, saying that the clear inference from paragraph 20 of the Tribunal's reasons is that the Tribunal adopted the view that it was not necessary that the death of Mr Hall result from the acceleration of his disease; it is sufficient if death results from the disease. The Commission contends that this approach by the Tribunal was in error and that it is necessary to read s. 29(2) disjunctively.

32. In my opinion, notwithstanding that the section does have serious difficulties, the repetition of the words "as the case may be" where it appears between paragraphs (e) and (f) of sub-section 2 and where it appears in paragraph (f) is a linguistic signpost requiring the section to be read disjunctively. The repetition of the words "as the case may be" in subsection (2) echoes the same words in subsection (1).

33. In the view I take of the matter, where employment by the Commonwealth has been a contributing factor to acceleration of a disease but the acceleration is spent, in the sense that the disease has reached a stage that it would have reached without any contributing factor from the employment, then the fact that there was an earlier acceleration, now spent, of a disease and death resulting from the disease does not mean that the contraction of the disease is deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. To attach liability to the Commonwealth, the acceleration of the disease to which the employment was a contributing factor, has to result in the death of the employee. That is to say, in my opinion, there has to be a nexus between the contributing factor of the Commonwealth employment and the death.

34. Such a conclusion, in my view, is consistent with the provisions of s. 5(11)(a). In the absence of any contribution by the acceleration of the disease to the death, the death has not resulted from the acceleration of the disease. This conclusion, in my respectful view is in conformity with the broad principle of the legislation referred to by the joint judgment of Gibbs CJ, Mason and Wilson JJ in Johnston v. The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 339, where their Honours said:

" The object of the statute is to provide for the payment
of compensation to employees who suffer injury or
disease occurring in circumstances connected with their
employment by the Commonwealth. Section 29 makes
specific provision for the payment of compensation in
cases of incapacity in which an employee contracts a
disease or 'suffers an aggravation, acceleration or
recurrence of a disease', when employment by the
Commonwealth is a contributing factor, by deeming the
contraction of the disease or the aggravation,
acceleration or recurrence to be a personal injury to
the employee arising out of his employment by the
Commonwealth. In this setting it is natural to suppose
that Parliament intended that compensation is payable
when an employee suffers an increase in the severity of
a disease and his employment contributes to that
increase in severity, whether the employment so
contributes by actually making the disease worse or by
delaying medical treatment which would arrest the
natural course of the disease. It would scarce conform
to the broad policy underlying the statutory provisions
to confer an entitlement to compensation in the first
case but not in the second. "

35. The argument for Mrs Hall is that notwithstanding that there is no contributing factor from her husband's employment to his death, the fact that there was an acceleration of symptoms by some weeks in 1987 is sufficient to ground her entitlement under the 1971 Act. It seems to me that this is contrary to the policy of the 1971 Act. Mr Hall would have been entitled to compensation if the acceleration for a few weeks of the symptoms of his glioma resulted in incapacity: by s. 29(2)(f), the acceleration of a disease is deemed to be an injury in respect of which by s. 27 there is a liability to pay compensation. My present view is that such compensable incapacity exists only during the period of acceleration. That question however is not the one that I have now to consider.

36. That the terms of s. 29(2) are to be read disjunctively, seems to have been implicitly accepted by Smithers J in Commonwealth of Australia v. Whillock (1983) 48 ALR 433 where his Honour, after reciting the provisions of s. 29(2)(f), said at 436:

" Accordingly, in circumstances where death of a
Commonwealth employee results from the contraction of a
disease or from the aggravation of such a disease, and
his employment by the Commonwealth was a contributing
factor thereto, that contraction or aggravation shall be
deemed to be not only a personal injury but a personal
injury arising out of the employment.
Accordingly, in respect of death of an employee and
certain other disabilities suffered by him as the result
of an injury as defined in s 5 of the Act the
Commonwealth is liable to pay compensation, provided the
injury was one arising out of or in the course of the
employment. Also, if the employee's claim is made on
the basis that he died as a result of a disease, or the
aggravation of a disease, the Commonwealth is liable to
pay compensation as though he had suffered an injury,
provided that it is established that 'any employment' by
the Commonwealth of the employee was a contributing
factor to the contraction or aggravation of the disease.
Herein I use the expression 'aggravation' as importing
aggravation, acceleration or recurrence of a disease. "

His Honour said at 444:

" 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 on 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. "

37. In Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173, a case concerned with s. 29(2)(e) of the 1971 Act and not a case of death, Smithers J at 182 referred to the provisions of s. 5(11) and said:

" ...s 5(11) plays a part. It provides that if an
aggravation of a disease contributes to incapacity to
work, the incapacity shall be taken to have resulted
from the aggravation. Thus, if the aggravation by the
sequelae contributed to the illness (see s 29(1)), the
incapacity must be taken to have resulted from the
aggravation of the disease. It would follow that for
the purposes of s 29(2) the incapacity resulted from the
aggravation. Then s 29(2)(f) applies with the result
that the aggravation of the disease is deemed to be an
injury in respect of which by s 27 there is a liability
to pay compensation. "

Smithers J referred to the observations of Windeyer J in McLaughlin and Co. Pty Ltd v. Brinnand (1965) WCR 112 where his Honour said:

" If, however, the employment by aggravating his disease
or accelerating its progress merely causes an incapacity
of the same degree that the disease would in time have
caused but causes it earlier, then it seems to me that
the resulting compensable incapacity is only that which
can be said to be attributable to the aggravation or
acceleration: that is to say it is the incapacity from
its actual occurrence to the time when, ex hypothesi,
the disease, if not accelerated or aggravated, would
have produced it. "

Smithers J said at 183:

" This last sentence touches the present case in a most
significant way. "

and later he said:

" If one considers the case of a progressive disease which
will ultimately produce incapacity but which is
aggravated by some event, it may be that the aggravation
merely hastens the incapacity and it is reasonable to
say the only incapacity caused by the event was that
during the period of acceleration. "

38. In Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235, Davies J said at 244:

" It is desirable that I should mention that it is
necessary for an applicant to prove not merely that his
disease, its aggravation or acceleration has been
contributed to by his employment but also that his total
or partial incapacity for work results from that
disease, aggravation or acceleration. In this respect,
it will be necessary for the Tribunal, in its
reconsideration, if it finds that the applicant suffers
from an endogenous disease and not merely from a
reactive depression, to go on to consider whether there
was an aggravation or acceleration thereof to which the
employment contributed, whether incapacity for work
resulted from that aggravation or acceleration and
whether such incapacity was of a temporary or continuing
nature. "

39. His Honour also set out the passage of Windeyer J in McLaughlin and Co. Pty Ltd v. Brinnand (supra), referred to by Smithers J in Australian Telecommunications Commission v. Tzikas (supra).

40. Finally, in Australian Industry Development Corporation v. Boyd (1990) 95 ALR 149 Neaves J said at 161:

" It is implicit in the decision that the tribunal gave an
affirmative answer to each of the following questions:
(a) Was the respondent suffering from a disease, being a
stress-related psychiatric illness referred to as
reactive depression?
(b) Did the respondent suffer an aggravation of that
disease?
(c) Was there a causal relationship between the events
of 5 January 1987 following the respondent's return to
work on that day and the aggravation of the disease such
that those events 'contributed to' the aggravation?
(d) Did it follow that the respondent's employment
contributed to the aggravation?
(e) Was the respondent partially incapacitated for work
as a result of the aggravation of the disease? "

41. In the view I take of the matter the relevant question for the Tribunal to ask, and which it failed to do, was "Was the death of Mr Hall a result of the acceleration of the disease glioma?", the Tribunal having found that his employment by the Commonwealth had contributed to that acceleration. The medical evidence makes clear that only a negative answer can be given to that question.

42. For the above reasons the appeal should be allowed. The orders made by the Administrative Appeals Tribunal on 31 March 1992 should be set aside. In the unusual circumstances of the change in the nature of the application and indeed the change in the questions for decision, I think it appropriate that the Court declare that while the employment of Mr Hall by the Commonwealth was a contributing factor to the acceleration of the disease glioma, the death of Mr Hall did not result from the acceleration of that disease.

43. As to costs, after hearing from Mr McGill as to the applicant's attitude to costs, I order that there be no order as to costs of this application or as to the costs before the Administrative Appeals Tribunal.