Australian Postal Corp v Simon Burch [1998] FCA 42 (6 February 1998)

FEDERAL COURT OF AUSTRALIA

WORKERS COMPENSATION - employee of the Commonwealth - injury occurring whilst at work - definition of words "ailment", "disease" and "injury" - liability of the Commonwealth to make compensation.

Safety, Rehabilitation and Compensation Act 1988 , ss 4, 7, 14

Health Insurance Commission v Van Reesch (Full Court of the Federal Court of Australia, Northrop, Wilcox & Nicholson JJ, 20 December 1996, unreported)

Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310

AUSTRALIAN POSTAL CORPORATION v SIMON JOHN BURCH

VG 157 of 1997

NORTHROP J

MELBOURNE

6 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 157 of 1997

on appeal from the administrative appeals tribunal

general administrative division constituted by

mr b g gibbs, am, senior member

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	SIMON JOHN BURCH Respondent
COURT:	NORTHROP J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

2. The decision of the Tribunal be affirmed.

3. The claim for compensation be remitted to the applicant for determination of the compensation to be made to the Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 157 of 1997

on appeal from the administrative appeals tribunal

general administrative division constituted by

mr b g gibbs, am, senior member

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	SIMON JOHN BURCH Respondent

COURT:	NORTHROP J
DATE:	6 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

At all relevant times, the respondent ("Mr Burch") was employed by Australian Postal Corporation ("the Applicant") as a postal delivery officer. On 29 September 1994 he was stationed at the Malvern Post Office. While at work on that day at the post office he suffered a stroke. He was bending to pick up some letters which had fallen to the floor. While crouching to pick up the letters he fell sideways and collapsed. He was taken by ambulance to the Alfred Hospital where he was diagnosed as having suffered a major stroke secondary to a thrombosis of his right cerebral artery. As a result of this event, Mr Burch has suffered incapacity for work.

In conformity with the Safety, Rehabilitation and Compensation Act 1988 (the "S R & C Act") Mr Burch claimed compensation. The claim was rejected by a delegate whose decision was affirmed by another delegate in accordance with s 62 of the S R & C Act 1975 . On review of that reviewable decision, the Administrative Appeals Tribunal ("the Tribunal") by a decision made on 20 March 1997, set aside the reviewable decision and made a decision that on 29 September 1994 while employed by the Commonwealth Mr Burch suffered an injury within the meaning of s 4(1) of the S R & C Act being a cerebral stroke, right side of brain, speech and paralysis left arm, leg, resulting in incapacity for work and that the Applicant was liable to pay compensation to him in accordance with the S R & C Act. Pursuant to s 44 of the Administrative Appeals Tribunal Act, the Applicant has appealed on questions of law from the decision of the Tribunal.

There were a number of issues before the Tribunal but the important question of law raised on the appeal is the proper construction and application of s 14 of the S R & C Act 1971 having regard to the definition of the words "ailment", "disease" and "injury" contained in s 4(1) of the S R & C Act. Section 14, as properly construed, is to be applied to the following finding of fact by the Tribunal:-

"104. In conclusion, I find that on 29 September 1994 Mr. Burch experienced a sudden disturbance of his physiological state, being the occlusion of his right middle cerebral artery, which resulted in a stroke. The stroke, which has given rise to a degree of incapacity, did not occur as a result of disease. Rather, it was an injury in the primary sense, being an "injury simpliciter" in the context already explained in these reasons. As such, Mr. Burch's stroke was an injury within the meaning of section 4(1) of the Act."

In that paragraph, the Act referred to is the S R & C Act. It is not disputed that implicit in this finding is the finding that the stroke was not an inevitable result of any disease, in the usual meaning of that word, from which Mr Burch may have been suffering at the time of the suffering of the stroke. The reference to the "occlusion of his right middle cerebral artery" is a reference to the thrombus which blocked the artery to the brain of Mr Burch thereby causing the death of the brain cells which resulted in the stroke. The stroke occurred in the course of the employment of Mr Burch by the Commonwealth. There was no need to establish any other connection between the employment and the stroke.

This issue has given rise to different conclusions by different courts at different times. There can be no doubt, in the light of the most recent authorities, that if the claim by Mr Burch had been brought under the Compensation (Commonwealth Government Employees) Act, (the "1971 Compensation Act 1971 ") the Tribunal would have made no error of law in coming to the conclusion set out. This is made clear by a reference to Health Insurance Commission v Van Reesch (Full Court of the Federal Court of Australia, Northrop, Wilcox and R D Nicholson JJ, 20 December 1996, unreported) and Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310.

The judgment in Van Reesch was not referred to by the Tribunal in its reasons for judgment but Zickar was. Zickar involved the construction and application of NSW legislation. Van Reesch involved the construction and application of s 27 of the Compensation Act 1971 and the definitions of "disease" and "injury" contained in s 5(1) of that Act.

In Van Reesch, there was evidence to support a finding that the Commonwealth employee, Mrs Van Reesch, suffered a disc prolapse described as a "right SI nerve root compression due to extended nucleus L5-51" arising out of or in the course of her employment. At the time she was suffering from a disease, within the normal meaning of that word, but Mrs Van Reesch was not relying upon the disease provisions of the Compensation Act 1971 . Her back condition was an autogenous disease, but her claim related to personal injury being the disc prolapse. There was evidence that the disc prolapse was not an inevitable consequence of the disease. The Full Court held that the disc prolapse constituted an event which could answer the description of personal injury appearing in s 27 of the Compensation Act 1971 thereby imposing a liability on the Commonwealth to make compensation. The presence of the disease did not prevent the disc prolapse being a personal injury.

In the present case, as in Van Reesch, Mr Burch suffered an event, the stroke, in the course of his employment. Prima facie, that event constituted an injury, within the usual meaning of that word, arising out of or in the course of his employment thereby making the applicant liable to pay compensation. The authorities show that a temporal relationship between the injury and the employment is sufficient to establish that the injury arose in the course of the employment. There is no need to establish, in those circumstances, that the work contributed in any way to the happening of the injury.

Counsel for the Applicant has contended that the differences between the relevant provisions of the Compensation Act 1971 and the S R & C Act are so great that the principles enunciated in Van Reesch have no application to the present case. They contended that in the present case the stroke could not constitute an "injury" as defined in the S R & C Act and that any claim by Mr Burch had to be based on a "disease" as defined.

There is no doubt that the modes of expression and definitions in the S R & C Act are very different to those contained in the Compensation Act 1971 . There is no doubt that the definitions contained in the S R & C Act give artificial and restricted meanings to the words "disease" and "injury" appearing in that Act. It is apparent also, that the draftsperson of the later Act did not appreciate fully the artificial and restricted meanings given to those words. In order to understand the issue raised in this appeal, it is necessary to refer in some detail to the relevant provisions of both Acts. In doing this, for the sake of clarity and except where otherwise necessary, the substance of the relevant provisions will be set out, but those interested can check the actual words of the statutes.

Subsection 27(1) of the Compensation Act 1971 provided that if personal injury arising out of or in the course of the employment of an employee by the Commonwealth was caused to the employee, the Commonwealth was liable to pay compensation in respect of that injury. This subsection imposed a liability on the Commonwealth to make compensation. The compensation to be made was to be calculated in conformity with other provisions of the Act.

Subsection 5(1) of the Compensation Act 1971 contained definitions. The subsection contained the common provision that the definitions given are to apply where the words and expressions are used in the Act "unless the contrary intention appears". The word "injury" is defined:-

"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."

On its face, the use of the word "means" suggests an exhaustive definition of the word "injury". This aspect need not be considered here. However three matters should be noted. First, the word "injury" is defined in the sense of any injury (the same word) but limited to any physical or mental injury or the aggravation etc of any such injury. In the present case the concept of aggravation etc can be ignored.

Secondly, subject to s 29, an injury does not include a disease. Thus a disease, as defined, is not an injury, as defined. Insofar as it is possible, an injury and a disease are mutually exclusive.

Thirdly, the definition does not limit the meaning of the word "injury" to an injury arising out of or in the course of the employment of an employee. Accordingly, in construing the word "injury" as defined it was necessary to have regard to the generally accepted meaning of injury as meaning harm of any kind done or sustained. The term is limited to physical or mental injury.

In s 5(1) the word "disease" is defined to enlarge the ordinary meaning of the word. An inclusive definition is given. The word disease is defined:-

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

A number of comments are made. First, the generally accepted meaning of the word "disease" is a morbid condition of the body, or of some organ or part, illness, sickness, ailment.

Secondly, in many instances, an injury, as defined, could come within the normal meaning of the word disease and the extended meaning of the definition. The workers' compensation acts, including the Compensation Act 1971 have treated a disease and an injury as being different in nature. The Courts have treated the two as being different. This is illustrated clearly by the opinions expressed by the majority of the Justices in Zickar. In that case the issue was whether the rupture of an aneurism constituted an injury. The aneurism was an autogenous disease but the claim by the worker was based on the rupture which had occurred. The worker was suffering from a disease, but his claim was based on an injury. The following passages are taken from the joint judgment of Toohey, McHugh and Gummow JJ appearing at pages 332 to 336.

"The personal injury upon which the appellant relies is the rupture of the arterial wall. There can be no doubt, having regard to the medical evidence and the authorities to which we have referred, that this event constituted personal injury and it is not in dispute that what occurred took place in the course of the appellant's employment. Equally it is not in issue that the aneurism itself, that is the swelling of the blood vessel, was a disease from which the appellant was suffering prior to the rupture. Does the existence of this disease take the matter into par (b) of the definition so that the appellant must show his employment to have been a contributing factor?"

"From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury."

"In Accident Compensation Commission v McIntosh [1991] 2 VR 253 the Appeal Division of the Supreme Court of Victoria held that it was open to the Accident Compensation Tribunal to find that the sudden rupture of blood vessels and consequent cerebral haemorrhage, arising from an arteriovenous malformation, was a "physical injury" under the relevant Victorian statute. Murphy J, with whom Crockett and Cummins JJ agreed, pointed out that there was a general agreement that if some external agency precipitates a rupture, it is a physical injury. But, as his Honour observed (at 262):

"If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture - something quite distinct from the defect, disorder or morbid condition, which enables it to occur."

We respectfully agree with this observation and, in our view, nothing in Hockey v Yelland or in any other decision of this Court precludes its acceptance."

In Van Reesch, the Full Court accepted these opinions together with the opinions of Kirby J and applied them to the provisions of the Compensation Act 1971 .

Thirdly, note the word "ailment" in the definition. That word generally is understood to mean a morbid affection of the body or mind, morbid being a characteristic of a disease. In fact the word disease in its normal meaning is often understood as being an ailment. The word disease normally connotes a morbid condition of the body (or of the mind) or of some organ or part of the body. The word connotes an illness, sickness or ailment - see the Macquarie Dictionary.

Fourthly, it is noted that the definition of "disease" is not expressed in a way limiting it to a disease which is caused by or contributed to by the employment of the employee.

It is noted that the Compensation Act 1971 contains no express provision imposing a liability on the Commonwealth to make compensation to an employee suffering from incapacity as a result of a disease. Sections 29, 30 and 31 however, rectify that omission. For present purposes, it is sufficient to say that under s 29 where an employee contracts a disease, as defined, and any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease, whether or not the disease was contracted in the course of that employment, and as a result of that disease the employee suffers incapacity, 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. There is no need to refer to the complementary provisions relating to the aggravation etc of a disease. As a result of this deeming provision, the Commonwealth, by reason of s 27, become liable to make compensation to the employee.

The structure of the corresponding provisions of the S R & C Act is very different. Broadly, a disease, as defined, is limited to a disease being one that was contributed to in a material degree by the employee's employment by the Commonwealth. A disease, as defined, is treated as an injury. Similarly, an injury is defined to mean an injury (other than a disease) suffered by an employee arising out of or in the course of the employees employment. The exclusion of a disease from an injury is overcome by the provision that by definition an injury means a disease suffered by an employee. The definitions will be referred to in detail later.

In the S R & C Act, s 14 corresponds to s 27 of the Compensation Act 1971 . Subsection 14(1) provides:-

"14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

It is noted, as will become apparent, the draftsperson of the S R & C Act did not appreciate the effect of the definition of the word "injury" or for that matter the word "disease" when used in the Act. The words "suffered by an employee" are otiose. They are contained in the definition of injury, and relevantly in the reference to the word "disease" contained in that definition. There was no need to repeat them in s 14. This is symptomatic of what flows from giving very different meanings to words in an Act to the meanings normally associated with those words. Difficulties and misunderstandings must, of necessity, arise.

Definitions of words and expressions used in the S R & C Act are contained in s 4(1) of that Act. The subsection contains the common provision that the meanings given are to be used "unless the contrary intention appears".

The word "ailment" although included in the definition of the word "disease" in the Compensation Act 1971 , was not given any definition in that Act. In the S R & C Act the word is given an exhaustive meaning:

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

This definition is identical to the inclusive definition of disease contained in the Compensation Act 1971 . It is noted also that the word "ailment" is defined in terms of the same word. In general, the word ailment, when used in the S R & C Act, can be treated as having the same meaning as the word disease in its normally understood meaning.

The word "disease" is given an exhaustive meaning in the S R & C Act, namely:-

" "disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."

It is readily apparent that in the S R & C Act the word "disease" has a limited meaning. The word is limited to compensational diseases, namely those that were contributed to in a material degree by the employee's employment by the Commonwealth. In the course of submissions the expression "sub-set" was used, diseases within the meaning of the S R & C Act constitute a sub-set of "ailments" as defined in that Act or of diseases as generally understood. A warning is given. When considering the S R & C Act, the word "ailment" should be used instead of the word "disease" since the latter raises with it the connotation of a compensational disease being one that was contributed to in a material degree by the employee's employment by the Commonwealth. In many claims based on an ailment, this is the essential issue to be determined, namely was there a connection between the ailment and the employment.

It is noted further that the definition of "disease" replaces the provisions of s 27 of the Compensation Act 1971 summarized earlier. The other provisions of s 29, 30 and 31 are re-enacted in s 7 of S R & C Act. This aspect will be mentioned later.

Finally, reference is made to the definition of the word "injury" when used in the S R & C Act. Again the definition is exhaustive and is 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;"

It is noted that under paragraph (a) of the definition, "injury: means a "disease" as defined. Of necessity such a disease must be an ailment of a limited type (the sub-group ailment) "suffered by an employee". The importance of paragraph (a) is that if an employee has suffered such a disease, under s 14 the Commonwealth is liable to make compensation in conformity with that section and with the S R & C Act since, by definition, it is an injury.

Secondly, it is noted that paragraph (b) otherwise excludes a disease from an injury as each is defined. Thus, for the purpose of the S R & C Act a "disease" and an "injury" as defined are mutually exclusive. The position remains the same as it was under the Compensation Act 1971 . There, a compensational disease, in its normally understood meaning, was deemed to be an injury for the purpose of imposing a liability on the Commonwealth to make compensation under s 27 of that Act. The effect of paragraphs (a) and (b) of the definition of the word "injury" in the S R & C Act has the same effect.

Thirdly, it is noted that in paragraph (c) of the definition of "injury", injury is defined to mean an "injury" of a limited kind. This limited kind is in the nature of a sub-set of the set of injuries. The word injury must still have the meaning it is generally understood to have in order to determine the limits of the sub-set type injuries as defined. In this respect, the discussion of what is meant by an injury, within its generally understood meaning, in authorities binding on this Court remain binding. In particular the opinions contained from the extracts of the judgment of Toohey, McHugh and Gummow JJ in Zickar set out earlier in these reasons, should be accepted.

Fourthly, the limitation contained in paragraph (b) of the definition of "injury" has the effect of defining "injury" as a compensational injury under s 14 of the S R & C Act.

Fifthly, it is not necessary to expand upon the extension contained in paragraph (c) of the definition. This extension is similar both with respect to a disease and an injury.

In the present case, in giving their decisions each of the delegates proceeded on the basis that the stroke suffered by Mr Burch was a disease in the ordinary meaning of that word and in order to be compensational, the stroke had to be contributed to in a material degree by the employment of Mr Burch by the Commonwealth. Each delegate found against Mr Burch on that issue. It should be noted that neither of the delegates had the advantage of seeing the opinions expressed in Zickar and in Van Reesch. The opinion of the majority of the Full Court in Commonwealth of Australia v Whillock (1983) 48 ALR 433 then prevailed; generally see per Northrop J in Van Reesch.

The review before the Tribunal was based on two claims. First, counsel claimed that the stroke was an "injury" within the meaning of the Act. She relied upon the opinions of the majority of the High Court Justices as expressed in Zickar. Secondly, she claimed the stroke was a disease, or rather an ailment, and that the ailment was contributed to in a material degree by Mr Burch's employment by the Commonwealth. It is fair to say that most of the time taken up at the hearing before the Tribunal was directed to the second claim.

The Tribunal did not find it necessary to determine the second claim. It said:-

"105. In the circumstances, although I have set out the relevant evidence, I do not consider it necessary to proceed to determine the alternative proposition advanced by Ms MacTiernan."

The Tribunal had the benefit of seeing the opinions expressed in Zickar, but not those expressed in Van Reesch. The conclusion of the Tribunal has been set out earlier in these reasons. That conclusion is in conformity with the methodology and opinions expressed in Van Reesch. Prima facie, the Tribunal was not in error in coming to this conclusion it did.

Counsel for the Applicant contended that the effect of the different provisions introduced by the S R & C Act made the authorities based on the Compensation Act 1988 and the various Acts of the States relating to workers compensation no longer relevant. Counsel referred to and relied on a number of earlier authorities including The Commonwealth v Ockenden [1958] HCA 37; (1959) 99 CLR 215. Counsel relied also on the dissenting judgment of Brennan CJ, Dawson & Gaudron in Zickar.

In addition, counsel referred to and sought to rely upon what appeared in the second reading speech when the Commonwealth Employers Rehabilitation and Compensation Bill , the forerunner of the S R & C Act 1971 was introduced in Parliament - see Hansard, 27 April 1988 at 2191. The speech made no reference to the particular issue raised by this appeal and is of no assistance in determining this appeal.

Counsel referred also to s 7 of the S R & C Act. That section contains provisions similar to those contained in the Compensation Act. Subsection 7(1) corresponds to the former s 30, subsection 7(2) corresponds to the former s 31, subsection 7(6) corresponds to the former s 31 and subsection 7(7) corresponds to the former s 29 and in particular to subsection 29(3). These provisions do not assist in determining the issue before the Court. They are directed to problems involved with equating either by a deeming provision or by definition a disease with an injury and the onus of proof in certain circumstances. It should be noted, however, that in some of the provisions of s 7, a contrary intention may appear as a result of which the word "disease" is not to be given its defined meaning. It is not necessary to consider this matter further. Similar difficulties may arise with the word "injury" appearing in other sections of the S R & C Act such as s 6. The Legislature should give serious consideration to the difficulties and uncertainties arising from the current method of using definitions of words to impose obligations in complex legislation.

For the reasons set out in these reasons, the submissions made on behalf of the applicant are not accepted. In particular the Court should follow and apply the principles expressed in Van Reesch.

In the result, the appeal must be dismissed with costs. The Tribunal was not in error in coming to the conclusion it did.

There is one other matter to be dealt with. The effect of the decision of the Tribunal is to establish the liability of the Commonwealth to make compensation to Mr Burch. A further order should be made directing the applicant to make compensation to Mr Burch in conformity with the provisions of the S R & C Act. The order of the Tribunal will be varied accordingly.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop

Associate:

Dated: 6 February 1998

Counsel for the Applicant:	Mr R Meldrum QC and Mr M Croyle
Solicitor for the Applicant:	Wisewoulds
Counsel for the Respondent:	Mr R Gorton QC and Ms A MacTiernan
Solicitor for the Respondent:	Harry Nowicki & Co
Date of Hearing:	17 December 1997
Date of Judgment:	6 February 1998