Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 (4 August 1932)

In my opinion the appeal should be dismissed. I agree with the statement of reasons contained in the judgment of Ferguson J.

This case raises two questions of general importance as well as some matters which affect the rights and liabilities of the individual parties. The first of these matters is the correctness of the interpretation which in Harmey v. Board of Fire Commissioners of New South Wales[1] the Workers' Compensation Commission gave to sub-secs. 1 and 4 of sec. 7 of the Workers' Compensation Act 1926-1929. I find myself unable to agree with the interpretation adopted by this decision. It appears to me altogether too narrow. In my opinion the provision was not intended to restrict the right of the workers, but to enlarge them. Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving that employer to recover from previous employers subject to the limitation of time expressed in the section. No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer. The second question of general importance is how far the certificate of the Medical Board given under sec. 51 concludes the question of the causation of the disease. The material question submitted to the Medical Board in this case was that of his condition. Upon the construction of the certificate the Board gave, I do not doubt that they intended to certify that his condition was one of degenerative disease arising from lead-poisoning. Is it open to the Commission to disregard the finding of the Medical Board so certified in so far as it attributes the degenerative disease to lead-poisoning? The object of the section was to leave the condition or the bodily state physically and pathologically of the worker to a medical authority and to withdraw it from the lay tribunal. Condition is a wide word, but it is pointed rather at an existing state of affairs than at prior events by which it was caused. At the same time, in considering the nature and character of diseases, the distinction between cause and effect, as in other departments of life, is often unreal and cannot be strictly maintained. In the case of a broken skull there is no difficulty in distinguishing between the blow and the injury, but it would be impossible to predicate of a man that he was suffering from alcoholic poisoning and yet leave undecided the question whether he had imbibed alcohol. The question whether the finding of lead-poisoning goes to the condition of a man is largely one of fact. When lead-poisoning causes or contributes to such a state as that in which this worker was objectively found, is his diseased condition, when regarded from the point of view of his present and future capacity, which involves prognosis and remedy, the same as or different from that of a person presenting like objective symptoms arising from other causes? My perusal of the evidence leads me to give a negative answer to the question. Consequently the worker's condition includes "lead-poisoning" and the Commission was not at liberty to find that his incapacity arose or might have arisen from other causes. I think that the preliminary objection should be overruled, and that the remaining contentions of the respondent fail.

The appeal should be allowed with costs, and the questions should be answered: (1) Yes; (2) In view of the Medical Board's certificate, Yes; (4) Yes; (5) No; (6) No. It is unnecessary to answer question 3.

This was a claim by a worker for compensation under the Workers' Compensation Act 1926-1927 of New South Wales. A worker who receives personal injury in the course of his employment is entitled to compensation from his employer in accordance with the Act, and "injury" includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor, but does not include a disease caused by silica dust (see Act, secs. 6, 7). And, by sec. 7 (4), where the injury is a disease which is of such a nature as to be contracted by a gradual process, compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Any employers who during twelve months preceding a worker's incapacity employed him in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as in default of agreement may be determined by the Workers' Compensation Commission.

Under the Workmen's Compensation Act 1906 of England, it was formerly held that the disease must be contracted or accelerated during employment by the worker's last employer if he were to succeed against him, but the House of Lords dissented from this view and held that it was enough if his work with his last employer was of the same nature and character as the work to which the disease was due, and that it was not necessary to prove that it was the employment with his last employer that caused the "disablement" (Dean v. Rubian Art Pottery Ltd.[2]; Blatchford v. Staddon & Founds[3]; Ellerbeck Collieries Ltd. v. Cornhill Insurance Co.[4]). The Workmen's Compensation Act of 1916 of New South Wales followed the actual terms of the English Act. And, while the Act of 1926-1927 of New South Wales has changed the language, its scheme and intention are the same, and the reasoning on which Blatchford v. Staddon & Founds[5] is founded applies as well to it as to the English Act. Both Acts should, therefore, receive the same interpretation. This brings me to the facts of the present case.

The worker was a man fifty-eight years of age who had been employed in the painting trade for forty-four years. Mann, his last employer, employed him in that trade for a week in 1929. He was engaged in mixing paint, painting, and scraping down, and he "left work feeling ill." Notice of the disablement seems to have been given. In November of 1929, the Commission, pursuant to the Act of 1926-1927 (secs. 50-52) made a reference to a Medical Board to certify: (a) as to the condition of the worker; (b) as to his fitness for employment, "specifying where necessary the kind of employment for which he is fit." The Act provides that any such certificate given by a Medical Board shall be conclusive evidence as to the matters so certified.

The Board, on 3rd December 1929, gave the following certificate:—"Medical examination of Joseph Smith.—Employer: John Mann. We hereby give you notice that having duly examined the said Joseph Smith of 24 Commodore Street, Newtown, in accordance with the order of the Commission we certify as follows:—Condition of the Worker.—Complains of loss of power in right hand and arm and right leg. Presents signs of right sided hemiplegia. B.P. 200/110. Coast Hospital records 17/7/1929: Loss of power right side of face, right upper and right lower limb. No punctate basophilia. W.R. — ve. Urine, no albumin; lead in urine; 08 mgm per litre. B.P. 160/120. His fitness for employment, specifying where necessary the kind of employment for which he is fit: Unfit. And express an opinion as to whether or to what extent incapacity is due to the injury: See below. The facts as to the employment alleged by the worker, and on which this certificate is granted, are as follows:—We are of the opinion that the worker has right sided hemiplegia resulting from cerebral thrombosis following arteriosclerosis and nephritis. We are of the opinion that his condition is one of degenerative disease. In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease."

In January of 1930 the worker made application to the Workmen's Compensation Commission for compensation under the Act. He alleged that he was suffering from lead-poisoning, due to the nature of his employment, that of a painter; and that he was last so employed by John Mann. Other employers who during the twelve months preceding the worker's incapacity employed him as a painter were also added to the proceedings. The Commission on the hearing received medical evidence of the condition of the worker. The Commission found that the worker "was not incapacitated for work by an injury received in the course of his employment as a worker employed by the ... respondents, that is to say by a disease contracted in the course of his employment and to which the employment was a contributing factor." By this it meant that the injury was not received in the course of the worker's employment with Mann and the other employers joined in the proceedings and to which the employment was a contributing factor, and further that the worker's disease, though of a nature contracted by a gradual process, was probably due to a pathological condition unassociated with the nature of his employment with Mann and the other employers who during the preceding twelve months had employed him. But the Act contains no limitation of time within which the disease must be contracted. It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise "out of the particular service of the particular employer sued": it is enough if the disease is "incidental to that class of employment so that it can be attributed to service therein" (Blatchford v. Staddon & Founds[6]). The compensation can be recovered only against the employer in whose employment the worker is or who last employed him. And the employer by whom such compensation is payable may obtain contribution from the employers who during the twelve months preceding a worker's incapacity employed him in any employment to the nature of which the disease is due. The Commission thus appears to have proceeded upon an erroneous interpretation of the Act.

Further, the Commission also considered that it must determine the cause of the workman's condition. The certificate of the Medical Board has already been stated:—"We are of the opinion that the worker has right sided hemiplegia resulting from cerebral thrombosis following arteriosclerosis and nephritis. We are of the opinion that his condition is one of degenerative disease. In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease." Nothing turns on the position in which this opinion is found in the certificate. The important question is whether it is part of the function of the Medical Board in giving a certificate as to the worker's condition to state the cause of that condition. If so, the certificate is conclusive, and the Commission was bound by it. Now it seems to me that "it is impossible," to use the language of Farwell L.J. in Haylett v. Vigor & Co.[7], "to have the consequence without the cause, which is the gist of the liability." The Medical Board is not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act. "It seems to me," as Atkin L.J. said in Short v. Parker[8], "that the words condition of the workman may very well mean to a doctor the same thing as if he were asked, Is his condition such that he is suffering from a disease which is in fact caused by long exposure to dust." See also M'Avan v. Boase Spinning Co.[9]. The certificate of the Medical Board, stating the condition and the cause of that condition, was, in my opinion, a certificate as to the condition of the worker within the meaning of the Act, and bound the Commission.

A case was stated for the decision of the Supreme Court upon various questions of law, but the Supreme Court only dealt with the medical certificate, and said that in expressing an opinion as to the cause of the condition the Medical Board was exceeding its function. But with this view, for the reasons already given, I cannot agree.

Lastly, it was argued that the decision of the Supreme Court was not an appealable, but merely a consultative or advisory, order. There is nothing advisory about the decision: it was given in favour of the employer after the award of the Commission, and it is binding upon the Commission and all parties to the proceedings.

The appeal should be allowed, and the questions stated in the case answered as follows: (1) Yes; (2) Yes, in so far as it disregarded the certificate of the Medical Board; (3) The question is not answered; (4) Yes; (5) No; (6) No.

The proceedings should be remitted to the Workers' Compensation Commission of New South Wales, with a direction to do therein as shall be just, and consistent with the judgment of this Court, and if necessary to deal with any claim against the employers added to the proceedings that may be substantiated.

This is an appeal from an order of the Supreme Court of New South Wales determining questions raised by a special case which the Workers' Compensation Commission stated under sec. 37 (4) of the Workers' Compensation Act 1926 as amended to 1929.

A preliminary objection was made by the respondent to the competence of the appeal on the ground that the order of the Supreme Court is advisory in its character or, at any rate, is not final but interlocutory. The objection depends upon the provisions under which the case is stated. The case may be stated by the Commission before it makes its award, or after it has made its award, and the Commission is bound to state a case if required to do so by one of the parties. The case, which is confined to questions of law, is stated "for the decision of the Supreme Court thereon," and the decision of the Supreme Court is binding upon the Commission and upon all the parties to the proceeding. As the provision originally stood it was construed by the Supreme Court to mean that the Commission might state a case during the course of a proceeding, but not after the proceeding had been determined by an award (Roberts v. Jones[10]). As it now stands amended, it is apparent that the provision authorizes two kinds of proceeding by way of case stated. A special case that is stated by the Commission before making any order or award can do no more than obtain from the Supreme Court rulings upon questions of law by which the Commission must be governed in determining the proceedings pending before it. A case stated after an award or order has been made by the Commission has a very different operation. The Commission has then determined the proceedings pending before it, and its award or order concludes the matter, except in so far as the award or order may be affected by the decision of the Supreme Court upon the case stated. Accordingly, the statement of a case after award becomes a means of invoking the jurisdiction of the Supreme Court so that it may revise or reconsider, within the limits of the questions of law raised, the determination of the Commission. If the decision of the Supreme Court upon any of those questions means that the order or award of the Commission was erroneously made, that order or award can no longer remain in operation as a determination of the proceedings before the Commission. But a decision of the Supreme Court to the contrary results in the continuance of the order or award in full force and effect as the expression of the legal rights of the parties.

In the present case the Supreme Court so decided questions of law in the case stated as to support the order of the Commission. Thus the order of the Supreme Court finally concluded the rights of the appellant. It was final and not advisory. It follows that the preliminary objection should be overruled.

The appeal itself raises some difficult questions. The appellant claimed compensation under sec. 7 (4) for total incapacity resulting from injury consisting of a disease which is of such a nature as to be contracted by a gradual process. The appellant was a painter by trade, and the disease he relied upon was that of lead-poisoning. The respondent Mann was the employer in whose employment the worker was, or who last employed him (sec. 7 (4)); and therefore the claim was made against that respondent in the first instance. But he had employed the appellant for a very short time and accordingly he caused the remaining respondents, four in number, to be joined as the employers who, during the twelve months preceding the worker's incapacity, employed him in the employment to the nature of which the disease was said to be due. The appellant's incapacity arose from right sided hemiplegia, itself the result of cerebral thrombosis caused by arteriosclerosis and nephritis. He was fifty-eight years of age and had been a painter for forty-four years. Evidence was given before the Commission to the effect that the absorption of lead causes or aggravates arteriosclerosis and nephritis, and that although these conditions are common among all classes of whatever occupation, yet there is a greater incidence among those working in trades in which lead is used, such as painting. The appellant showed some traces of lead absorption but, on the other hand, blood changes common in chronic lead-poisoning and changes in the nervous system were not found. Conflicting medical opinions were expressed upon the question whether the appellant's condition was caused by the absorption of lead or arose independently. The Commission considered that, upon the medical history of the appellant as it appeared from the evidence, the probability that his incapacity was due to the sequelæ of lead-poisoning was, at most, no more than equal to the probability that his incapacity was due to a pathological condition unassociated with his work which could in any event disable him about the time that it did; and that if the arteriosclerosis and nephritis from which he suffered were sequelæ of lead-poisoning then the disease of lead-poisoning must necessarily have been contracted many years before his employment with the present respondents. The ultimate conclusion of the Commission was that the appellant had not established his claim and was not incapacitated by injury which he received in the course of his employment with any of the five respondents and to which this employment was a contributing factor. It could not be maintained that the Commission, upon the materials before it, was not at liberty to reach this conclusion which is limited to a denial that the employment by any of the five respondents contributed to the "injury," that is, the disease, and that it was received in the course of that employment. The Commission considered that a finding thus limited was enough to negative the appellant's claim because of the interpretation which the Commission had in previous cases placed upon sub-secs. 1 and 4 of sec. 7 construed with the aid of the definition of in sec. 6 (1). In Harmey v. Board of Fire Commissioners of New South Wales[11] the Commission ruled that the combined effect of these enactments is to place the onus on the worker claiming compensation for disablement by disease of proving that in the course of his employment with the last employer he contracted a disease to which the employment was a contributing factor. This interpretation gives too narrow an operation to sub-sec. 4 of sec. 7, the effect of which is to enable a worker, if in the course of his occupation he receives injury by contracting a disease by a gradual process through the nature of his occupation, to obtain compensation from the employer in whose employment in that occupation the worker is at the time of his incapacity, or, who last before his incapacity so employed him, leaving that employer to recover contribution from any other employers who in the twelve months prior to his incapacity employed the worker in that occupation.

If the definition of injury were written into the material part of sub-sec. 1 of sec. 7 of the Act of 1926-1927, it would run as follows: "A worker who receives personal injury including a disease which is contracted by the worker in the course of his employment and to which the employment was a contributing factor shall receive compensation from his employer in accordance with this Act." Sub-sec. 4 provides:—"Where the injury is a disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Any employers who, during the twelve months preceding a worker's incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make to the employer by whom compensation is payable such contribution as, in default of agreement, may be determined by the Commission."

Up to 1st July 1926 provisions modelled on those contained in sec. 43 of the British Workmen's Compensation Act 1925 were in force in New South Wales (sec. 12 of Act No. 71 of 1916), but those now in operation appear to be an attempt to provide for industrial or occupational diseases in a more compendious and general manner. It is difficult to suppose that the new provisions were meant to confine the worker's right to compensation within narrower limits than the old. No doubt in the expression "shall receive compensation from his employer" in sub-sec. 1 of sec. 7, the words "his employer" refer to the employer in the course of whose employment personal injury was received. Thus, when the definition of injury is applied so that disease is included, the words must refer to the employment in the course of which the disease is contracted and which is a contributing factor in the contracting of the disease. But sec. 6 contains many provisions which must operate as extensions imposing the liability created by sec. 7 on persons who are not employers. Sub-sec. 4 of sec. 7 deals with the special cases of diseases contracted by a gradual process, and this also operates by way of extension. The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the sub-section is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution. The description of the disease implied in the expression in the second paragraph "employment to the nature of which the disease was due" may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph "in whose employment the worker is or who last employed the worker" implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of, or last before, the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted.

From this construction of sub-sec. 4 of sec. 7 it follows that the ultimate finding made by the Commission stated by it in the special case is not enough to negative the liability of the respondents. But, although the ultimate finding of the Commission does not negative the respondents' liability to the appellant, the Commission states the principal considerations which guided it in arriving at this finding, and among them is the opinion that the probability that the incapacity was due to the sequelæ of lead-poisoning was at most no more than equal to the probability that it was due to an independent pathological condition. This amounts to a finding, based upon the onus of proof, to the effect that exposure to lead dust and to lead, in his trade of painter, was not a cause contributing to the appellant's incapacity. The Commission found that he was incapacitated by a disease which is of such a nature as to be contracted by a gradual process, and that he had worked in an employment, namely, a painter's trade, to the nature of which lead-poisoning may be due, and that, if the incapacity was due to the sequelæ of lead-poisoning, lead-poisoning was contracted before his employment with the respondents, but that it had not been established that the conditions by which he was incapacitated were the sequelæ of lead-poisoning. Although these subsidiary findings are expressed in a way which emphasizes "active lead-poisoning," "lead-poisoning" and "lead-intoxication," it seems reasonably clear that the Commission intended to cover all lead absorption and to hold that the appellant had failed to prove to the satisfaction of the Commission that the lead which he absorbed had any appreciable causal connection with his pathological condition. The Full Court of New South Wales proceeded upon this view of the Commission's finding which, it held, was fatal to the appellant's claim, unless it was outside the authority of the Commission to make the finding.

The appellant contends that the question whether his condition is occasioned by lead-poisoning or absorption was not for the Commission to decide, because it was concluded in his favour by a certificate of a Medical Board given under sec. 51. The Supreme Court entertained some doubt whether by its certificate the Medical Board did certify that the appellant's condition was due to lead-poisoning, but considered that, if this was the effect of the certificate, the Board had certified upon a matter not referred to it. Sub-sec. 3 of sec. 51 requires the Medical Board, in accordance with the rules made by the Commission, to give a certificate as to the condition of the worker and his fitness for employment, specifying where necessary the kind of employment for which he is fit and such other information as the Commission may require. It provides that any such certificate given by a Medical Board shall be conclusive evidence of the matters so certified. In this case, the Board was, by the terms of the reference, confined to the condition of the appellant and his fitness for employment. From the evidence given by the medical witnesses it inferentially appears that the pathological condition of a patient with arteriosclerosis and nephritis when it has been brought on or hastened by lead absorption may differ from that of such a patient who has not been exposed to lead-poisoning, and it certainly nowhere appears affirmatively that, in the diagnosis, prognosis and treatment of such a degenerative disease as that from which the appellant was suffering, it is immaterial whether it originated in or was aggravated or accelerated by a condition of lead absorption or of lead-intoxication. In many cases of traumatic injury and some cases of disease the state of the patient and the cause of that state are two independent matters. But a present stage in a continuous developing pathological condition can seldom be considered apart from previous stages, and, when it arises out of or has been influenced by some organic effect produced in the human body the consequences of which are not exhausted, the so-called "causes" of the man's present state may form an inseverable part of the description of his "condition." No doubt sec. 51 (3) should be strictly construed but, after all, it was intended to leave medical questions to the determination of medical men. The "condition" of a patient cannot be described except by reference to the character of his disease, and the character of his disease may be, and perhaps more often than not is, determined or conditioned by its origin. In the state of degeneration by disease which existed in the case of the appellant, the conclusion that it began with or was affected by lead absorption or intoxication enters into and forms part of the complete description of his condition. It follows that it was within the province of the Medical Board to certify that his state arose from lead absorption or intoxication, and that a certificate to that effect would be conclusive.

The remaining question is whether the Board did so certify. In a medical certificate under sec. 51 (3) definiteness and precision of expression are desirable, but the formality of a judgment or other legal instrument cannot be expected. It should be read in relation to the question which has arisen and the circumstances of the case together with such evidence as may be needed in explanation of technical expressions. If, when so read, it appears with reasonable clearness that the Board intended to state any conclusion or opinion, that conclusion should be treated as a matter certified whether the certificate records the opinion or conclusion under one heading or another. In this case the certificate under the heading "Condition of the worker" sets out various symptoms ascertained from examination and from inquiry. Then after the unfitness of the worker for employment is stated, a note, "see below," is placed under a printed request to "express an opinion as to whether or to what extent incapacity is due to the injury." Below, the following statement appears upon the certificate:—"We are of the opinion that the worker has right sided hemiplegia resulting from cerebral thrombosis following arterioscelerosis and nephritis. We are of the opinion that his condition is one of degenerative disease. In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease."

This appears plainly to mean that, in the opinion of the Board, exposure to lead dust has been the cause or aggravation of arteriosclerosis and nephritis followed by thrombosis causing hemiplegia. The position on the form in which this statement of opinion is written does not prevent it being a certificate as to the condition if otherwise it is so. It necessarily involves the proposition that the absorption of lead induced or increased the arteriosclerosis and nephritis.

For the reasons given this is a matter falling within the description of the worker's condition and accordingly the certificate is conclusive of it. It follows that the grounds upon which the Commission made its award cannot be supported.

The questions should be answered as follows:—(1) Yes; (2) Having regard to the certificate of the Medical Board, Yes; (3) This should not be answered, as the answer would involve some inferences of fact; (4) Yes; (5) No; (6) No.

A preliminary objection was taken by counsel for the respondents to this appeal, on the ground that the decision of the Supreme Court against which the appeal was brought is not a judgment, decree, order or sentence within the meaning of sec. 73 of the Constitution of the Commonwealth. In support of this submission it was contended that upon the true construction of sec. 37 of the Workers' Compensation Act 1926-1929 of New South Wales, under which the Supreme Court was invoked, the Court merely gave a consultative or advisory opinion for the guidance of the Workers' Compensation Commission. The award of the Commission, as settled by the Registrar of the Commission pursuant to rule 27 of the Rules made under the Workers' Compensation Act 1926-1929, was as follows: "Having duly considered the matters submitted, the Commission hereby orders and awards as follows:—(1) The Commission finds that the above named applicant was not incapacitated for work by an injury received in the course of his employment as a worker employed by the above named respondent, that is to say, by a disease contracted in the course of his employment and to which the employment was a contributing factor. (2) The Commission, therefore, makes its award in favour of the respondent."

Sub-sec. 7 of sec. 37 of the Workers' Compensation Act 1926-1929 is in these terms: "The decision of the Supreme Court upon the hearing of any such case shall be binding upon the Commission and upon all the parties to such proceeding." In view of the provisions of this sub-section, it is clear that if the Commission had made an award in favour of the present appellant, and the Supreme Court, by its decision under sec. 37 of a question that arose in the proceedings, denied the liability of the respondents to pay compensation to the appellant, the decision would have overruled the award and the respondent would not have been bound by the award to pay any compensation to the appellant. A decision of the Supreme Court under sec. 37, given as it was in this case, after an award had been made by the Commission, is, in my opinion, not an advisory or consultative opinion, but a final determination of the rights of the parties in the matter in which it was given. The preliminary objection should be dismissed.

The facts of the case have already been fully reviewed, and it is not necessary that they should be stated again. A number of questions were propounded in the stated case for the purpose of testing the validity of the reasons by which the Workers' Compensation Commission said it was guided in arriving at its decision to make an award in favour of the respondents. These questions may be reduced to the two questions which were argued at the hearing of this appeal, namely, (1) whether, upon its true construction, the certificate of the Medical Board was conclusive that the condition of the appellant was that he had lead-poisoning, and (2) whether the Commission was in error in confining its inquiry to the appellant's employment with the five respondents for the purpose of determining whether this appellant received "personal injury in the course of his employment," within the meaning of the Act.

Sec. 51 (1) of the Workers' Compensation Act 1926 provides that where notice has been given of an injury to a worker, any such worker shall, if so required by the Commission, submit himself for examination by a medical referee or a medical board. By sec. 6 "Injury" means personal injury, and includes a disease which is contracted by the worker in the course of his employment, whether at or away from his place of employment, and to which the employment was a contributing factor. Sec. 51 (3) provides that the medical authority, to whom any matter is referred, shall in accordance with rules made by the Commission give a certificate as to the condition of the worker and his fitness for employment, specifying where necessary the kind of employment for which he is fit and such other information as the Commission may require.

An application was made on behalf of the respondent John Mann, apparently after the receipt of the notice of "injury," and about six weeks prior to the application for an award, for the examination of the appellant by a Medical Board. The medical and industrial histories of the appellant were taken by an officer of the Commission and an order was made referring the appellant to a Medical Board to certify "(a) as to the condition of the above named worker; and (b) as to his fitness for employment, specifying where necessary the kind of employment for which he is fit." The Commission did not require any other information. The terms of the certificate which was given by the Medical Board need not be repeated. The certificate is headed "Medical examination of Joseph Smith." It will be noted that the medical officers who gave the certificate exhausted the space under the heading "Condition of the worker" by writing particulars of the complaint which the worker made to them, the signs which they observed and the result of their examination. The first sentence of the final part of the certificate is as follows: "We are of opinion that the worker has right sided hemiplegia resulting from cerebral thrombosis following arteriosclerosis and nephritis." This sentence immediately follows the direction on the printed form handed to the Board to "express an opinion as to whether or to what extent incapacity is due to the injury." The Medical Board was not expressly asked by the Commission to certify as to this matter. The respondents did not dispute that the appellant was afflicted, as the Board certified, with right sided hemiplegia resulting from cerebral thrombosis following arteriosclerosis and nephritis. The certificate continues: "We are of opinion that his condition is one of degenerative disease." Though this sentence is not under the heading "Condition of the worker," it is an opinion as to his condition. The question remains, what is the significance of the following statement "In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease"? It was contended on behalf of the respondents that this sentence states the cause of the appellant's condition rather than the condition itself, and it should therefore be rejected as beyond the terms of the Commission's reference to the Board. This statement is not written under the heading "Condition of the worker," but I do not think that it is impossible on that ground to regard it as a statement as to his condition. Upon a fair reading of the certificate does that statement mean that the appellant was suffering from lead-poisoning? I think it does. It is true that arteriosclerosis and nephritis are pathological conditions which may be found in persons who have not been poisoned by the absorption of lead. But these conditions are sequelæ of lead-poisoning. I think that the statement of the Medical Board, cognizant as it was of the medical and industrial history of a worker, and discovering in him those sequelæ and other symptoms of lead-poisoning, that his disease cannot be dissociated from the fact that he was in his employment exposed in a marked degree to lead dust, and that his work has been either the cause or the aggravation of his disease, is a certificate under sec. 51 as to the condition of the worker. In my opinion it certifies that he is suffering from lead-poisoning, which is an industrial disease. In this view the certificate was conclusive evidence that the appellant was suffering from lead-poisoning, and any finding of the Commission at variance with that conclusion cannot be supported.

The answer to the other question, namely, whether the Commission was in error in confining its inquiry to the appellant's employment with the five respondents for the purpose of determining whether he received "personal injury" in the course of his employment, turns upon the definition of in sec. 6, and upon sub-secs. 1 and 4 of sec. 7 of the Workers' Compensation Act 1926-1929. The definition of "injury" has already been quoted. Sub-sec. 1 says that a worker who receives such an injury whether at or away from his place of employment (and in the case of the death of a worker, his dependants) shall receive compensation from his employer in accordance with the Act; and sub-sec. 4 says that where the injury is a disease which is of such a nature as to be contracted by a gradual process, compensation shall be payable by the employer in whose employment the worker is or who last employed the worker, and that any employers who, during the twelve months preceding a worker's incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

These provisions supplant secs. 5 and 12 of the Workmen's Compensation Act 1916. Sec. 5 (1) of that Act provided that if in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer should be liable to pay compensation in accordance with the First Schedule in the Act. Sec. 12 provided for the payment of compensation in the case where a workman died from or was disabled by any industrial disease contained in the Third Schedule to the Act. Questions arose under sec. 5 as to liability when a mishap, arising out of and in the course of the employment, set up a disease, the question being whether the disease or the mishap caused the personal injury. In Eke v. Hart-Dyke[12] Cozens-Hardy M.R. said:—"Neither this Court nor the House of Lords has ever attempted to say that a mere disease without accident, not attributed to something which may properly be called an accident, entitles a workman to compensation under the Act. No doubt there have been some cases which were very near the line." (See also Pyper v. Manchester Liners Ltd.[13].)

Reading sec. 7 (1), sec. 6 and sec. 7 (4) together, it will be seen that the Legislature has provided that compensation shall be payable, subject to the provisions of the Act, where a worker (a) receives personal injury, or (b) contracts a disease in the course of his employment and to which the employment was a contributing factor, or (c) contracts a disease in the course of his employment and to which his employment is a contributing factor and the disease is of such a nature as to be contracted by a gradual process. The Legislature, having defined injury to include disease, replaced the elaborate provisions contained in sec. 12 of the earlier Act by the more compendious provisions relating to the payment of compensation to a worker incapacitated by an industrial disease contained in sec. 7 (4). The category of industrial diseases is not limited as it was under the earlier Act. The class of diseases to which sec. 7 (4) relates are diseases of such a nature as to be contracted by a gradual process. In the case of personal injury, in the primary sense of the word, the disablement would occur in the course of the employment in which the injury was received. But the gradual process by which the disease was contracted which ultimately disabled a workman may have extended over the course of his employment with a number of employers. The difficulties of a worker, disabled by such a disease, in making a claim, are diminished by the provisions of sub-sec. 4, which enable him to claim compensation from the employer in whose employment he is or who last employed him.

The statement of Scrutton L.J. in Ellerbeck Collieries Ltd. v. Cornhill Insurance Co.[14] is in point notwithstanding the differences between sec. 7 of the present Act and sec. 43 of the Workmen's Compensation Act 1925 (15 & 16 Geo. V. c. 84) in relation to which it was made. Scrutton L.J. said[15]:—"But it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment. When one tries to fit in these results to a scheme for compensation for accidents arising out of and in the course of the employment, this difficulty arises at once. An accident happens on a fixed and easily ascertainable date. But it is very difficult to say when an industrial disease, such as miners' nystagmus or lead-poisoning, begins. It is a gradual deterioration due to the employment which may be going on during service by the workman under several employers in the same industry until it results in disablement which may appear when the workman has only just begun to work under a particular employer. Under these circumstances it would be very difficult for the workman to pick the proper employer to sue. The Legislature saw the difficulty, and provided a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves."

It is admitted in the present case that the appellant was suffering from a disease of such a nature as to be contracted by a gradual process. The case stated says: "The Commission found that the applicant had not proved his case and that he was not incapacitated by injury received in the course of his employment and to which the employment was a contributing factor—meaning his employment with any of the five above named respondents who were represented before the Commission." That finding was not sufficient, in my opinion, to dispose of the appellant's claim for compensation in respect of the disease from which he was suffering. It was a disease of such a nature as to be contracted by a gradual process and the appellant had been employed as a painter prior to the period to which the Commission limited the inquiry. The decision of the Workers' Compensation Commission in Harmey v. Board of Fire Commissioners of New South Wales[16], which was applied by it in this case, does not, in my opinion, correctly interpret the intention of the Legislature in enacting sec. 7 (4). That decision was in these terms:—"The combined effect of these enactments is to place the onus on the worker claiming compensation for disablement by disease of proving that he received an injury (i.e., contracted a disease to which the employment was a contributing factor) in the course of his employment with the last employer. The further effect of sub-sec. 4, to my mind, is to deem a disease of gradual acquirement as having been contracted on each day of the twelve months preceding disablement that the worker was working in an employment to the nature of which his disease was due. The terms of the statute indicate in the case of diseases contracted gradually that the contraction of any such complaint could continue after the time when the disease first manifested itself. The words contracted by a gradual process indicate that the contraction need not be limited to a specific point of time in one employment but might extend over employments covering a period of twelve months at least"[17]. Sub-sec. 4 confines the liability of making contribution to the employers who, during the twelve months preceding the worker's incapacity, employed him in any employment to the nature of which the disease was due, but the Commission is not limited to the course of the worker's employment during that period for the purpose of determining whether he has contracted a disease in the course of his employment and to which his employment is a contributing factor and which is of such a nature as to be contracted by a gradual process. In the present case the question does not arise whether the Legislature intended that "the employer in whose employment the worker is" or "who last employed the worker" should be an employer who employed him in any employment to the nature of which the disease was due. The respondent Mann, as well as all the other respondents employed the appellant as a painter.

The appeal should be allowed and the questions answered as follows: (1) Yes, that the cause of his condition was lead-poisoning; (2) Yes, as the certificate was conclusive as to his condition, and the inquiry should not have been limited to his employment as a painter with the respondents; (3) See answer to (2); (4) Yes; (5) No; (6) No.

Appeal allowed. Judgment of the Supreme Court discharged. In lieu thereof questions in the case stated answered as follows: (1) Yes; (2) Having regard to the certificate of the Medical Board, Yes; (3) Not answered; (4) Yes; (5) No; (6) No. The respondents to pay the costs of this appeal and of the special case.

[1] (1927) 1 W.C.R. (N.S.W.) 247.

[2] (1914) 2 K.B. 213.

[3] (1927) A.C. 461.

[4] (1932) 1 K.B. 401, at pp. 409, 410.

[5] (1927) A.C. 461.

[6] (1927) A.C., at p. 470.

[7] (1908) 2 K.B. 837, at p. 841.

[8] (1926) 95 L.J. K.B., at p. 861; 135 L.T., at p. 537.

[9] (1901) 3 F. (S.C.) 1048.

[10] (1928) 28 S.R. (N.S.W.) 543.

[11] (1927) 1 W.C.R. (N.S.W.), at p. 260.

[12] (1910) 2 K.B. 677, at p. 681.

[13] (1916) 2 K.B. 691.

[14] (1932) 1 K.B. 401.

[15] (1932) 1 K.B., at p. 409.

[16] (1927) 1 W.C.R. (N.S.W.) 247.

[17] (1927) 1 W.C.R. (N.S.W.), at p. 260.

High Court of Australia

Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 (4 August 1932)

HIGH COURT OF AUSTRALIA