Hume Steel Ltd v Peart [1947] HCA 34; (1947) 75 CLR 242 (30 September 1947)

HIGH COURT OF AUSTRALIA

Hume Steel Limited Respondent, Appellant; and Peart Applicant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

30 September 1947

Latham C.J., Rich, Starke, Dixon and McTiernan JJ.

Wallace K.C. (with him Langsworth), for the appellant.

McClemens K.C. (with him Wall), for the respondent.

Wallace K.C., in reply.

The following written judgments were delivered:—

Sept. 30

Latham C.J.

This is an appeal from a decision of the Full Court of the Supreme Court of New South Wales upon a case stated by the Chairman of the Workers' Compensation Commission under the Workers' Compensation Act 1926-1946, s. 37 (4). It was held by the Supreme Court that there was evidence upon which the Commission could find (as it did find) that Robert James Peart received injury within the meaning of s. 7 (1) (b) of the Workers' Compensation Act 1926-1946. Hume Steel Ltd., Peart's employer, appeals to this Court. Section 7 (1) (b) was inserted in the Workers' Compensation Act by Act No. 13 of 1942. Section 7 (1), so far as relevant, provides as follows:—"(a) A worker who has received an injury whether at or away from his place of employment (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act. (b) Where a worker has received injury without his own default or wilful act on any of the daily or other periodic journeys referred to in paragraph (c) of this sub-section, and the injury be not received" during certain breaks or deviations in the journey "the worker (and in the case of the death of the worker, his dependants), shall receive compensation from the employer in accordance with this Act." Paragraph (c) defines "daily or periodic journeys" in such a way as to include a journey between the worker's place of abode and place of employment.

On 11th June 1945 R. J. Peart, a worker within the meaning of the Act who was employed by the appellant company, was riding a bicycle on a daily journey from his place of abode to his place of employment. The physical effort of riding a bicycle up an incline in the road brought about a coronary occlusion from which he died on the same day. His widow claimed compensation under the Act and was held to be entitled to compensation. The Commission's findings of fact include findings that the coronary arteries of the deceased were in an advanced state of atheroma, the coronary artery being brittle, and that the occlusion which brought about the blocking of the artery was due to a small piece of lining of the artery having loosened. It was also found that the origin of atheroma was unknown, and that the occlusion was the inevitable end result of the disease. It was found that the disease was not due to the nature of the deceased's employment with the respondent, that it was not contracted in the course of the employment, that the employment was not a contributing factor thereto, and that the disease had nothing at all to do with the deceased's employment with the respondent.

Compensation can be claimed under s. 7 (1) (b) where a worker has received injury without his own default or wilful act on a daily journey. Section 6 as amended by Act No. 13 of 1942 provides that, unless the context or subject matter otherwise indicates or requires, "injury" means "personal injury arising out of or in the course of employment 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 but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912-1941, applies, include a disease caused by silica dust." This "definition" does not really define the word "injury" because it includes the word "injury" itself in the statement of the meaning assigned to the word. The effect of the definition is that the meaning of "injury" (whatever this meaning may be) is limited for the purposes of the Act to certain injuries. Only injuries which satisfy certain requirements are to be regarded as injuries for the purposes of the Act—they must be personal; they must arise out of or in the course of employment or be a disease contracted in the course of the employment to which the employment is a contributing factor, with a special provision as to certain workers in coal mines. This "definition" is inapplicable to s. 7 (1) (b). If in s. 7 (1) (b) were given the meaning which is ascribed to the word in s. 6, then the periodic journey provisions in s. 7 (1) (b) would apply only in cases where there was an injury within the meaning of s. 6, that is, where the injury arose out of or in the course of the employment &c., or was a disease of the kind mentioned in the definition. If these conditions were satisfied, then the worker would be entitled to compensation under s. 7 (1) (a) of the Act, and it would never be necessary for any worker to have recourse to s. 7 (1) (b), which would have no possible field of operation. Accordingly, the context and the subject matter of s. 7 (1) (b) exclude the application of the definition of "injury" to the word where it appears in that section.

The Workers' Compensation Act deals with injuries resulting in incapacity or death. Death is not treated by the Act as itself an injury, but as something which may result from an injury. I refer, for example, to s. 7 (2): "Compensation shall be payable in respect of any injury resulting in the death or serious and permanent disablement of a worker." Section 8 contains four sub-sections, each of them introduced by the words, "Where death results from the injury." In the present case, therefore, the question is not whether the death of the worker on his periodic journey was an injury, but whether he "received an injury" on his periodic journey which resulted in his death.

Many cases have been decided in English courts on the words "personal injury by accident" which appear in the Workmen's Compensation Act 1925, s. 1, and corresponding earlier legislation. Cases such as Fenton v. J. Thorley & Co. Ltd.[1]; Clover, Clayton & Co. Ltd. v. Hughes[2] and many other cases have dealt with the subject of accident, and have resulted in the establishment of the proposition which I quote from Fenton v. J. Thorley & Co. Ltd.[3] that the "expression accident is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed," that is, is not expected or designed by the worker: Trim Joint District School Board of Management v. Kelly[4]. In many cases the relation of the conception of "accident" to that of disease has been discussed. But the word "accident" is not found in the New South Wales legislation and these authorities are in my opinion of no assistance in determining the question which arises in the present case.

The cases in which the question was whether the contraction or aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employment all assume that a disease is an injury. What are described as idiopathic diseases are outside the English Act (Brintons Ltd. v. Turvey[5]). The plaintiff's atheromatous condition, according to the findings of the Commission, was such a disease—it was a morbid condition of which the cause is unknown. But these diseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word "accident" as defined in Fenton v. J. Thorley & Co. Ltd.[6]. Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury.

There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury.

This injury took place "on a daily journey" of the worker within the meaning of the Act. Section 7 (1) (b) requires only that the injury should take place "on" a periodic or daily journey. No causal connection between the injury and the journey is necessary. A temporal relation is sufficient, namely, that the injury happened while the worker was on the journey. In the present case it has been found that the effort of the journey was the last straw which brought about the coronary occlusion which resulted in death. But this fact is immaterial because s. 7 (1) (b) does not require the establishment of anything further than the occurrence of the injury during the journey.

The result of this interpretation of the section is to provide a considerable degree of life insurance for workers upon their daily or periodic journeys. In the event of death happening during such a journey the conditions of s. 7 (1) (b) will be satisfied if the death is the result of any physiological injury, including internal harmful changes, which occurs during the journey—which would ordinarily be the case. It would be immaterial that the death was the inevitable result of a long-standing disease which had nothing to do with his employment. The consequences of this view are, as has been pointed out in argument, remarkable; for example, the dependants of a man who dies just before he leaves his work must, in order to obtain compensation under the Act, show that he received an injury which arose out of or in the course of his employment and caused his death. But if the worker dies while he is on a tram to go home in his ordinary way, his dependants can recover, though his death had no relation whatever to his work. If he did not go straight home, but got off the tram to visit a friend or to have a drink, and the death happened when he resumed his journey, the dependants could not recover under the periodic journey provision because of the exceptions relating to breaks and deviations. But these consequences are matters for the consideration of the legislature, not of the courts. In my opinion the appeal should be dismissed.

Rich J.

I agree that the appeal should be dismissed. The relevant facts are that the worker suffered from heart disease and that while riding on a bicycle from his place of abode to his place of employment a coronary occlusion resulted and death ensued. Although the immediate injury was independent of any external or chance happening, the decisions include injuries due, as in the instant case, to the condition of the worker's body, cf. Hetherington v. Amalgamated Collieries of W.A. Ltd.[7]. And it is unnecessary for me to add another link to the chain of cases which binds this kind of case[8]. The findings in the case accordingly bring the case within s. 7 (1) (b). I agree with the answer given by Jordan C.J. to the question submitted. The appeal should be dismissed.

Starke J.

A worker who has received an injury whether at or away from his place of employment (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act (Workers' Compensation Act 1926-1946, s. 7 (1)).

"Injury" means personal injury arising out of or in the course of employment 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 (Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942, No. 13, s. 2 (ii)). And by this Act was also inserted at the end of s. 7 (1), already set out, the following new provision:—

Where a worker has received injury without his own default or wilful action on any of the daily or other periodic journeys referred to in the Act and the injury be not received in certain circumstances immaterial to this case, the worker (and in the case of the death of the worker, his dependants), shall receive compensation from the employer in accordance with this Act. The daily or other periodic journeys referred to are:—(i) between the worker's place of abode and place of employment; (ii) between the worker's place of abode, or place of employment, and any trade, technical or other training school, which he is required by the terms of his employment or is expected by his employer, to attend.

The object of the Act is to enlarge the right to compensation. The nature of the injury is not altered. It is still personal injury including disease, but instead of arising out of or in the course of employment the injury must have been received without the worker's own default or wilful act on a daily or other periodic journey referred to in the Act, which the Act treats as part of or connected with his employment. The Act provides that where a worker has received injury on any of the daily or periodic journeys referred to in the Act he shall be entitled to receive compensation. But it is not necessary to decide whether there must be a causal connection or association between the injury and the periodic journey, for in this case there clearly was such a connection or association. The heart and the accompanying blood vessels of the worker, the aorta and the coronary arteries, were in an advanced stage of atheroma. The worker was pedalling his bicycle on the way from his home to his work when he suffered a coronary occlusion from which he died on that day. The physical effort of pedalling the bicycle, uphill, increased his blood pressure and precipitated the occlusion which was due to a small piece of the lining of the artery becoming loose and with other matter occluding the artery. The connection or association of his injury with the periodic journey is thus established and within the terms of the Act.

The decision of the Supreme Court of New South Wales that there was evidence upon which the Workers' Compensation Commission could find, as it did, that the worker received injury within the meaning of the Workers' Compensation Act 1926-1946 was right and this appeal should be dismissed.

Dixon J.

The worker died shortly after the occurrence of a coronary occlusion during the course of his journey to his place of employment from his place of abode.

It was a daily or periodic journey within the meaning of s. 7 (1) of the Workers' Compensation Act 1926-1946 N.S.W.. Paragraph (b) of s. 7 (1) provides that where a worker has received injury, without his own default or wilful act, on any of the daily or other periodic journeys to which the provision refers, he shall receive compensation from his employer.

By s. 6 (1) the word "injury" is defined to mean personal injury arising out of or in the course of the employment and to include 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.

This definition is inappropriate to par. (b) because if it applied the result would be that the paragraph, which was introduced by amendment, would fail to produce any effect. For already par. (a), where the definition obviously does apply, had provided that a worker who has received an injury whether at or away from his place of employment shall receive compensation from his employer. If it were necessary that an injury received on a daily or other periodic journey should arise out of or in the course of the employment, the amendment would do nothing, except perhaps make clearer what in any case is clear enough, namely, that sometimes a workman may sustain an injury arising out of or in the course of his employment although he is on his way between his home and his place of employment.

It is, no doubt, strange that in one paragraph the word "injury" should be governed by the definition and in the next paragraph, although the same word occurs in an almost identical phrase, it should not be so governed. But nevertheless I think the defined meaning of "injury" must be given to it in par. (a) and cannot be given to it in par. (b). It is therefore immaterial that an injury received on a daily or periodic journey arose neither out of nor in the course of the employment. It is enough that it satisfies the words "has received injury on any of the daily or other periodic journeys referred to."

What kinds of physical harm amount to injury or an injury is a matter with which the definition does not deal, except to include a disease contracted in the course of the employment, if the employment is a contributing factor.

The question here is whether the coronary occlusion can amount to such an injury as is contemplated by the words of par. (b).

In jurisdictions where the expression is "personal injury by accident" the qualifying force of the words "by accident" has formed the chief consideration in the discussion of the place of disease in the legislation. But it has never been doubted that disease may amount to an injury. Thus in Innes or Grant v. G. & G. Kynoch[9] Lord Wrenbury said, "The man suffered personal injury, for he contracted a disease and it resulted in his death." He had said the same in the Court of Appeal in Martin v. Manchester Corporation[10]. "Contraction of a disease is an injury; that injury may or may not be by accident." Again, in Walker v. Bairds and Dalmellington Ltd.[11] Lord Tomlin, speaking of a chill to a workman involving bronchopneumonia, said, "the disease which was the injury was in these circumstances the result of accident."

In Fife Coal Co. Ltd. v. Young[12] Lord Atkin said:—"It is necessary to emphasize the distinction between accident and injury, which in some cases tend to be confused. ... A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between accident and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed."

It would be ridiculous to suppose that for the purpose of par. (a) of s. 7 (1) the word "injury" was intended to have a more restricted meaning and application than it has received in England in the expression "personal injury by accident."

The purposes of that paragraph are served by the definition clause in s. 6 (1) where the expression is "personal injury" and I can see no reason why the meaning of those words in the definition and of in par. (b) s. 7 (1) should not be co-extensive.

Their application ought, I think, to be the same, that is, subject of course to the restrictive effect, in the one case, of the qualification expressed by the words "arising out of or in the course of" &c. and, in the other, of the words "on any of the daily or other periodical journeys referred to" &c.

Probably no difference would have been produced in the meaning of this latter phrase if the words "in the course of" had been used instead of the word "on" before "any of the daily or other periodical journeys."

In a general way the intention doubtless was to extend the course of the employment to the journeys of the workman between his home and his work. Injury received in the course of his journey is to stand in the same position as injury in the course of his employment.

It is well settled that, if it be established to the satisfaction of the tribunal of fact, as notwithstanding the present state of medical knowledge and opinion it often is established, that effort at work contributed to the occurrence of a coronary occlusion which a workman suffers during his hours of employment, he may be found to have suffered injury by accident arising out of and in the course of his employment.

It is not necessary to show that it was the result of some definite thing he did in the course of his work. If in the normal course of his work, owing to imperfect arteries or whatever other internal organ may have been diseased, the workman breaks down and dies, it is sufficient although you cannot point to a specific injury resulting from a specific act: see per Lord Buckmaster, Partridge Jones and John Paton Ltd. v. James[13]. Cf. Falmouth Docks and Engineering Co. Ltd. v. Treloar[14]; Whittle v. Ebbw Vale, Steel, Iron & Coal Co. Ltd.[15].

In Wilson v. Chatterton[16] Scott L.J. for the Court of Appeal refers to three decided cases where compensation was awarded "in which the workman suffered from weakness or disease of the heart, and death occurred without his being subjected to any abnormal strain. The principle which emerges," his Lordship continues, "is that, unless the weakness or illness of the workman is the sole cause of the accidental injury to, or death of, the workman, the employer is liable." See, too, Oates v. Earl Fitzwilliam's Collieries Co.[17]. That is to say, it is enough if the employment contributed to bring about the breakdown. With these principles settled under the limited English formula, it is difficult to see how the word "injury" whether in par. (a) or par. (b) of s. 7 (1) could be given a narrower application.

I am unable to agree in the argument that was advanced founded upon the express reference in the definition of "injury" to diseases contracted in the course of the employment to which the employment is a contributing factor. That argument was that the only disease or pathological state or change covered by s. 7 (1), whether under the head of "injury" or otherwise, is that described in the reference to disease contained in the definition of "injury."

It must be remembered that the words in question were introduced to enlarge the scope of the definition. I think a restrictive inference of so drastic a kind cannot be based upon them.

The change of the word "and" to "or" has created a difficulty as to whether in the case of par. (a) of s. 7 (1) more than a purely temporal connection between the employment and the pathological injury is necessary under the New South Wales legislation. To state it another way, the difficulty is whether to be a personal injury the pathological fact or event must in some way be related to the employment. The same difficulty arises under par. (b) in relation to the journey. In Kellaway v. Broken Hill South Ltd.[18] the Supreme Court decided under par. (a) that if a worker suffers from a progressive disease neither caused nor contributed to by his employment and while he is in the course of his employment but by reason of the natural course of the disease with no contributing factor from the employment an accentuation occurs and causes disablement or death, the worker or his dependants are not entitled to compensation. See, further, Osbeiston v. Grimley Ltd.[19] (Judge Perdriau).

There is some difference in the reasoning of Jordan C.J. of Davidson J. and of Roper J., who decided Kellaway's Case[20] but I think it may be said to depend upon their Honours' conception of the intended application of the expression "received a (personal) injury" in the context of the New South Wales enactment having regard particularly to the references to disease and to the change of "and" to "or."

On the question thus answered under par. (a) whether more than a temporal connection is needed for such a form of injury, I see little to distinguish the case under par. (a), of an injury in the course of the employment from the case under par. (b) of receiving injury "on" a journey. We may assume that the same considerations apply.

In the present case we need go no further than to decide that, if exertion or some other incident of the journey is a contributing factor, then coronary occlusion is within par. (b) of s. 7 (1). For in this case the deceased was riding to his work on a bicycle and it was found that the exertion contributed to the occurrence then and there of the coronary occlusion.

In my opinion the appeal should be dismissed.

McTiernan J.

I am of opinion that the answer given by the Supreme Court to the first question is right and that this appeal should be dismissed.

The question arises under s. 7 (1) (b) of the Workers' Compensation Act 1926-1946 of New South Wales and depends upon the proper construction of the word "injury" in that provision.

Section 6 (1) gives a statutory construction to the word "injury" in the Act, and this construction applies unless the context or subject matter otherwise indicates or requires it. The circumstances in which s. 7 (1) (b) imposes a liability upon the employer in respect of a worker who has received injury, do not admit of the application of this construction. Section 7 (1) (b) would be nugatory if the remedy given by it was limited by the connection prescribed by s. 6 (1) between injury and employment. It would be nugatory because injury received by a worker while travelling between his home and employment would not generally arise out of or in the course of his employment; and if the injury did so, it would be within s. 7 (1) (a). The same considerations apply if in s. 7 (1) (b) includes a disease, for s. 6 (1) says that "injury" includes a disease, an essential characteristic of which is that it was contracted in the course of the employment. The corollary of or implication from the express inclusion made by s. 6 (1) for the purposes of s. 7 (1) (a) of a disease having a particular connection with the employment, is not the exclusion of any injury due to disease from the purview of s. 7 (1) (b). The subject matter of the legislation limits the term in s. 7 (1) (b) to personal injury: the word "injury" is used in that sense in s. 7 (1) (b) without any limit upon its generality. Personal injury is the origin of the liability imposed upon the employer by s. 7 (1) (a) and s. 7 (1) (b). The essential difference between the two provisions does not consist in the nature of the personal injury against which each of them insures the worker, but in the circumstances in which each insures him. Section 7 (1) (b) is not at all concerned with limiting the word "injury" as a term descriptive of bodily hurt: it is concerned with extending the cover to circumstances beyond those delimited by s. 7 (1) (a). Neither s. 7 (1) (a) nor s. 7 (1) (b) contains the words "by accident." By omitting those words the legislature has done away with a qualification which is generally made on the employer's liability, but this omission does not restrict the content of the word "injury." The workman in the present case died from a coronary occlusion which was due to a small piece of the lining of the artery having loosened and blocked the artery. This was an injury within the accepted connotation of physical injury in this field of legislation. There is this finding of fact: "The occlusion was the inevitable end result of this disease." The disease was an advanced atheroma of the aorta and coronary arteries. The result of the authorities, many of which are cited in Hetherington v. Amalgamated Collieries of W.A. Ltd.[21] is that injury which is due to the worker's inherent weakness or disease may give rise to a claim for this statutory compensation. But if the claim was made under s. 7 (1) (a) it would be necessary to prove that the employment contributed to the injury: see s. 6 (1) "injury": cf. Clover, Clayton & Co. Ltd. v. Hughes[22] per Lord Loreburn. But in the present case, which is under s. 7 (1) (b), the only condition of liability is that the worker has received injury on a journey which is within the sub-section. The sub-section does not expressly require that there should be any other connection between injury and employment: and the sub-section does not imply any other connection.

Appeal dismissed with costs.

Solicitors for the appellant, A. O. Ellison & Co.

Solicitors for the respondent, Crichton-Smith, Taylor & Scott.

[1] (1903) A.C. 443.

[2] (1910) A.C. 242.

[3] (1903) A.C., at p. 448.

[4] (1914) A.C. 667.

[5] (1905) A.C. 230.

[6] (1903) A.C., at p. 448.

[7] [1939] HCA 36; (1939) 62 C.L.R. 317.

[8] (1939) 62 C.L.R., at p. 329.

[9] (1919) A.C. 765, at p. 797.

[10] (1912) 106 L.T. 741, at p. 742; 28 T.L.R. 344, at p. 345.

[11] (1935) 153 L.T. 322, at p. 326.

[12] (1940) A.C. 479, at pp. 488, 489.

[13] (1933) A.C. 501, at pp. 504, 505.

[14] (1933) A.C. 481.

[15] (1936) 2 All E.R. 1221.

[16] (1946) 1 K.B. 360, at p. 367.

[17] (1939) 2 All E.R. 498.

[18] (1944) 44 S.R. (N.S.W.) 210

[19] (1944) 18 W.C.R. 99.

[20] (1944) 44 S.R. (N.S.W.) 210.

[21] [1939] HCA 36; (1939) 62 C.L.R. 317.

[22] (1910) A.C. 242, at p. 247.