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High Court of Australia |
THE COMMONWEALTH v. HORNSBY [1960] HCA 27; (1960) 103 CLR 588
Workers' Compensation
High Court of Australia
Dixon C.J.(1), Fullagar(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Workers' Compensation - Commonwealth employees - Employee of Commonwealth Authority - "Personal injury by accident caused to an employee while he is travelling" - Cerebral vascular accident while travelling to place of employment - Natural progression of pre-existing disease - Necessity for sudden and distinct physiological change to constitute injury by accident - Application of Act to an authority of the Commonwealth - Commonwealth Employees' Compensation Act 1930-1956 (Cth) (No. 24 of 1930 - No. 93 of 1956), ss. 9A, 22.
HEARING
Melbourne, 1959, October 27, 28, 29;DECISION
1960, May 19.2. In the second place the view may be suggested that the Commonwealth Employees' Compensation Act should receive the same interpretation with reference to the distinction between injury by accident and disease as was placed by the Privy Council upon the material provisions of the New South Wales Workers' Compensation Act 1926-1951 in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13 ; (1950) 51 SR (NSW) 1 : see Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 . Section 9 and s. 10 are the two parallel provisions dealing respectively with injury by accident arising out of or in the course of the employment and incapacity through disease due to the nature of the employment. The structure of these provisions and of the material definitions is unlike that of the sections of the Act of New South Wales and in my opinion there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration. (at p593)
3. I therefore return to the question whether the learned County Court judge's conclusion that Hornsby suffered an injury by accident should be upheld. Had it been possible to attribute the development of the thrombosis, the consequent ischaemia and the resulting paralysis to the travelling or any incident or concomitant of the journey it would doubtless be easy to isolate it as an accidental injury. That perhaps is made clear by applying, mutalis mutandis, to a journey what was said in relation to the employment by Clauson L.J. at the conclusion of the judgment he delivered for the Court of Appeal in Oates v. Earl Fitzwilliam's Collieries Co. (1939) 2 All ER 498, at pp 502, 503 and by Lord Atkin in Fife Coal Co. v. William Young (1940) AC 479, at pp 488, 489 . These passages are of course not free from the influence upon the conception of accidental injury of the double condition imposed by the English legislation under which not only must there be personal injury by accident but it must arise both out of and in the course of the employment. But the relation of external causes to physiological change as ground for characterizing it as accidental injury is the point of much that was said by this Court in The Commonwealth v. Ockenden (1958) 99 CLR 215, at pp 223, 224 . The physiological disaster, however, which Hornsby encountered, so suddenly from his point of view, as he journeyed to his work was not in any degree attributable to his journey. Its causation, as its occurrence, was entirely an internal matter. Yet its nature and the physiological changes that took place must be considered. There was the sudden operation of the processes upon the man himself and the immediate "injury". The processes meant an internal occurrence that can be clearly distinguished from the pathological conditions leading up to it, one consisting in a definite impairment of a centre of control of bodily movement. My opinion has fluctuated upon the question whether these factors are enough to make it right to characterize the event as injury by accident within the meaning that has been attached to that expression. But after full consideration I have reached the conclusion that the processes leading to Hornsby's "injury" cannot be regarded otherwise than as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus. It too closely resembles physiologically and pathologically the course and incidents of the occlusion of an atheromatous sclerotic coronary artery and its consequences. Upon that we have passed judgment in The Commonwealth v. Mackey Unreported, 19th October 1959. , following or rather applying, Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 . I therefore think that the conclusion reached by Judge Moore cannot be upheld. (at p594)
4. A difficulty arose in this case to which I think it is desirable to refer, although in the view I have expressed it may not be material. Section 22 of the Act is as follows: "(1) The application of this Act shall extend to employees of such authorities under the Commonwealth as are prescribed. (2) Where the application of this Act is extended to employees of an authority under the Commonwealth, liability under this Act to pay compensation in respect of personal injury by accident arising out of or in the course of the employment of those employees shall, unless otherwise prescribed, be borne by that authority." Clause 15 of the Regulations made under s. 23 enumerates the "authorities of the Commonwealth to the employees of which the application of the Act shall extend" and includes the Commonwealth Bank. By cl. 11 of the Regulations the notice of appeal to the county court is to be lodged with the Commissioner. This was done by Hornsby. He had addressed his claim to the Governor of the Commonwealth Bank but it would seem that it was the Commonwealth and not the Bank that appeared upon the appeal to the County Court. It was the Commonwealth that appealed from the order of the county court which had declared simply that Hornsby was entitled to compensation without specifying the body on whom the obligation fell. (at p594)
5. It is by no means easy to construe s. 22 and apply it to the general provisions of the Act. But it is clearly enough based upon the assumption that a number of "authorities" of the Commonwealth exist, corporate bodies no doubt, whose employees are not employees of the Commonwealth but should receive compensation, the liability to pay which should be borne by the bodies, unless the Regulations otherwise prescribe. It would seem only just that those who pay should be parties to the proceedings by which the claim to compensation is put in suit. Moreover, as a question of compensation for injury arises out of the relation of employer and employee it might seem natural that the employer should be the dominus litis on his side. All this s. 22 leaves to inference or implication. It does not even employ appropriate language for moulding ss. 9, 9A and 10 or for that matter any other provision to employment by any other employer than the Commonwealth. In other words, no reasonably sufficient guidance is given by s. 22 as to the intended operation of the Act where an employee of an "authority" of the Commonwealth is the claimant. (at p595)
6. On the whole I think that the Act should in such a case be applied so far as may be mutatis mutandis as if the "authority" were for the purpose of the provisions the Commonwealth, that is to say the Act is interpreted as if the authority were substituted for the Commonwealth. The Commissioner must, of course, determine in the first instance the claim if disputed. As the foregoing seemed a possible view of the matter, the Court ordered at the hearing of the appeal of the Commonwealth that special leave to appeal should be granted to the Commonwealth Bank and that the name of the Bank should be added in the appeal as a party appellant. (at p595)
7. However, in my view the appeal of both appellants should be allowed. (at p595)
FULLAGAR J. The facts of this case are set out in other judgments, and I need not repeat them. I am of opinion that the appellants should succeed. The case appears to me to be covered by what was said in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 , as to which I refer to what I have said in Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547, at pp 559, 560 . (at p595)
2. It is impossible to say that what happened to the worker in this case arose either out of or in the course of his employment within the meaning of s. 9 of the Commonwealth Act. He was, however, at the material time clearly travelling to his employment by the Commonwealth within the meaning of s. 9A of the Act, and the sole question in the case, as I see it, is whether he suffered "personal injury by accident" within the meaning of that section. Those words must, of course, bear the same meaning in s. 9A as in s. 9. (at p595)
3. If the present case had arisen under the Workers' Compensation Acts (Vict.) which were considered by the Privy Council in Sharpe's Case (1955) AC 1 I think that the worker would have been entitled to succeed. But the decision in that case rested on certain special provisions in the Victorian legislation, which are not found in the Commonwealth Act. In particular it turned on the fact that in the Victorian Acts the word "injury" was defined as including "disease", and the effect of the decision is, I think, quite correctly stated in the passage in the headnote which read : "While in all cases in the United Kingdom and in Victoria before 1946 it was necessary, in order to establish that the death was due to injury by accident, to prove that some external event or some action of the deceased had caused the sudden physiological change to happen when it did, the effect of the definitions of 'disease' and 'injury' incorporated by Act No. 5128 of 1946 was to make it no longer necessary to associate the sudden physiological change with any external event or action by the deceased." (at p596)
4. Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered "personal injury by accident". This statement, however, requires qualification, because the words "injury by accident" (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. Examples are Brintons Ltd. v. Turvey (1905) AC 230 (anthrax) and Miller v. J. W. Handley Pty. Ltd. (1948) 2 WCD (Vict) 134 (tuberculosis), which was discussed in Nash v. Sunshine Porcelain Ltd. [1959] HCA 7; (1959) 101 CLR 353, at pp 363, 364, 378, 379 . Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus (Clover, Clayton & Co. Ltd. v. Hughes (1910) AC 242 , Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 ). It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a "sudden physiological change". Examples are found in Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 (coronary occlusion) and Sharpe's Case (1955) AC 1 (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged. (at p597)
5. In all these cases it is to be remembered that the question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose out of or in the course of the relevant employment. The questions have not always been kept distinct, and I am not quite sure that we kept them distinct at all points in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 . (at p597)
6. Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled. (at p597)
7. Cases of the first and third classes are, of course, cases of disease. The present case does not fall within the first class, but does fall within the third. With regard to this class of case, and so far as statutes framed as is the Commonwealth Act are concerned, the rule to be applied is now, I think, well established. It may be stated, for present purposes, in terms limited to heart cases. If, as in Kellaway v. Broken Hill South Ltd. (1944) 44 SR (NSW) 210; 61 WN 83 the arterial disease and the thrombosis or other occlusion in which it culminated were "autogenous", and no particular incident or activity of the worker accelerated or contributed to the occlusion, it cannot be said that there was any personal injury by accident. If, on the other hand, as in Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 (where the worker had just walked up a steep slope) it can be found, and is found, that some particular incident or activity of the worker did contribute to or accelerat the occlusion, then the worker must be held to have suffered personal injury by accident. When this position is reached, a further question may or may not arise as to whether the particular incident or activity was in the course of the worker's employment. (at p598)
8. Since the present case depends not on s. 9 but on s. 9A, no question of course of employment arises, and it appears to me to be clear that it falls within Kellaway's Case (1944) 44 SR (NSW) 210; 61 WN 83 (the decision in which was approved by the Privy Council in Slazengers' Case (1951) AC 13 at p 21; (1950) 51 SR (NSW) 1, at p 5 , and not within Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 . The appeal, therefore, should, in my opinion, be allowed. (at p598)
TAYLOR J. The question for determination in this case is whether, in the sense in which that expression is used in the Commonwealth Employees' Compensation Act 1930-1956, personal injury by accident was caused to the respondent while he was travelling from his home to his place of employment. Alleging that such was the case the respondent made a claim for compensation pursuant to s. 9A of the Act but his claim was disallowed by the Delegate of the Commissioner. However, on appeal to a County Court, he succeeded in obtaining a declaration that he was entitled to compensation and this appeal is brought from the order of the County Court which so declared. (at p598)
2. The evidence in the case shows that, whilst travelling on a tram to his place of employment on the morning of 15th April 1958 the appellant experienced the effects of a cerebral thrombosis which has left him with some degree of incapacity. Apparently he had not experienced any previous symptoms of arterial degeneration and he says that when he boarded the tram that morning he felt quite well. But he had not travelled far when he felt a sensation like "pins and needles in the right hand". He began to massage this hand and very shortly afterwards he felt similar sensation in his right foot. He thought his limbs might "get all right" but when he alighted at the end of his journey he had some difficulty and he slipped and fell on the roadway. It is not suggested, however, that any injury resulted from the fall. Upon being taken to hospital it was found that his blood pressure was very high and that the degree of right-sided paralysis which he had suffered was due to a thrombus which had formed in an atheromatous cerebral vessel. This was the opinion of Dr. Robinson whose evidence the learned County Court judge fully accepted. Dr. Robinson also expressed the opinion that the respondent's cerebral vessels had been affected by atheroma for some time before 15th April and it seems quite clear that he regarded the concurrent existence of atheroma in those vessels and hypertension as a cogent predisposing influence in the formation and development of the thrombus. He was also of the opinion that no incident of the respondent's work or journey had in any way contributed to this event. On the contrary his view was that the gradual progression of his atheroma coupled with his hypertension resulted in the formation and development of the thrombus until the supply of blood to the affected vessel was sufficiently impeded to produce the incapacity which it did on the occasion in question. So regarded the formation and development of the thrombus was part of the natural development of the respondent's disease. (at p599)
3. It will be seen that the facts of the case bear a strong resemblance to those which this Court was called upon to consider in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 . But in that case the claim was made pursuant to s. 9 of the Commonwealth Act and it was incumbent upon the claimant for compensation to establish not only that he suffered personal injury by accident but also that it had arisen out of or in the course of his employment. In the present case the claim is made under s. 9A and the question is whether the respondent, within the meaning of that section, suffered an injury by accident while he was travelling to his place of employment. No doubt it was this distinction which led the learned County Court judge to observe that "accepting that the thrombosis was an accident within the meaning of the Act" it was "clear on the authorities that the appellant would not have been entitled to compensation had the thrombosis occurred while he was at work". Thereupon his Honour held that the expression "while he is travelling to or from his place of employment" was not subject to any qualification whatever; the condition of entitlement had a temporal significance only and, since he accepted the view that the respondent had sustained personal injury by accident, he was entitled to compensation. (at p599)
4. It is, I think, unnecessary for us in this case to consider whether this proposition is or is not sound. For my part I take the view that the evidence does not disclose any injury by accident in the sense in which that expression is used in the Commonwealth Act and further examination of the ambit of s. 9A will be unnecessary unless and until an appropriate case should arise (cf., however, Slazengers (Australia) Pty. Ltd. v. Burnett (1948) 48 SR (NSW) 405; (1951) AC 13; (1950) 51 SR (NSW) 1 , Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 , and Australian Iron and Steel Ltd. v. Connell [1959] HCA 54; (1959) 102 CLR 522 ). It should, of course, be borne in mind that the provisions of s. 9A, introduced into the Act by the amending Act of 1948, is, in one sense, an appendage to s. 9. "In a general way the intention doubtless was to extend the course of employment to the journeys of the workman between his home and his work" (per Dixon J. as he then was, in Hume Steel Ltd. v. Peart [1947] HCA 34; [1947] HCA 34; (1947) 75 CLR 242, at p 257 and Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13, at p 21; (1950) 51 SR (NSW) 1, at p 5 ). But, however this may be, one thing is transparently clear and that is that the expression "injury by accident" must be taken to bear the same meaning both in s. 9 and s. 9A. And in Ockenden's Case [1958] HCA 37; (1958) 99 CLR 215 we have already given reasons for thinking that a physiological change which is solely the result of disease is neither "injury by accident" nor injury by accident in the course of employment in the sense in which those expressions are used in the Act. (at p600)
5. It is true that in James Patrick & Co. v. Sharpe (1955) AC 1 the Judicial Committee held that "a sudden and unexpected onset of a functional failure of the heart muscle resulting in a functional failure of the vital organs" constituted an injury by accident within the meaning of the Workers' Compensation Act 1928-1946 (Vict.). But as their Lordships said the question for decision in that case was whether, by the occurrence in question, personal injury by accident was caused to the deceased "within the meaning of s. 5(1) of the Act reading into that section the definitions of 'disease' and 'injury' contained in s. 3". The case they said turned "on the extent of the changes made by the enactment of the definitions of 'injury' and 'disease' and by the substitution of 'or' for 'and' in the phrase 'arising out of or in the course of the employment'". Now, "injury" was defined by the Act then under consideration to mean "any physical or mental injury or disease and includes the aggravation acceleration or recurrence of any pre-existing injury or disease as aforesaid" and "disease" was defined to include "any physical or mental ailment disorder defect or morbid condition whether of sudden or gradual development and also includes the aggravation acceleration or recurrence of any pre-existing disease as aforesaid". These definitions, it seems to me, could not fail to invest the compound expression "injury by accident" with a completely artificial meaning. Their Lordships observed in the course of their reasons that the obvious purpose of the amending Act of 1946 was to extend the scope of statutory compensation and went on to say that it might well be that the enactment of the definition of injury had altered or widened the meaning of the phrase "injury by accident". Thereafter they set out the substance of the definitions of "injury" and "disease" and added "If the words of these definitions are given their natural meaning then undoubtedly the deceased suffered injury at a time deemed to be in the course of his employment" (1955) AC, at p 16 . The meaning of the word "injury" as used in this passage may, I think, be more fully understood if there is substituted for that expression the relevant parts of the expanded meaning with which the definition section invested both that expression and the expression "disease". When this is done one asks whether by accident any disease, that is to say, "any physical . . . ailment disorder defect or morbid condition whether of sudden or gradual development" including "the aggravation acceleration or recurrence of any pre-existing disease as aforesaid" had been caused to the deceased in that case. How far the width of these definitions extended the scope of the Act may be difficult to discover but one thing that is clear is that the expression personal injury by accident when used in relation to that Act is quite different from personal injury by accident within the meaning of that expression as used in the Commonwealth Act. In the definition of "injury" in the latter Act there is no mention of the word disease; "injury" means any physical or mental injury and includes the aggravation acceleration or recurrence of a pre-existing injury whilst "disease", which bears a similar meaning to that expression in the Victorian Act, is the subject of the special provisions contained in s. 10. As will be seen there are marked differences between the two sets of legislation and the decision in Sharpe's Case (1955) AC 1 does not conclude the question before us. Indeed when the relevant provisions of the Commonwealth Act are closely examined it becomes clear, in my view, that disablement as a result solely of the natural progression of disease is not personal injury by accident within the meaning of that Act. Accordingly I am of the opinion that the appeal should be allowed and the order of the learned County Court judge set aside. (at p601)
MENZIES J. On the morning of 15th April 1958, the respondent, an employee of the Commonwealth Bank of Australia, was travelling from his home in Newport to his place of employment at the Note Printing Branch in Victoria Parade, Fitzroy. While travelling on a tram along Collins Street, he got a feeling of pins and needles in his right hand and his right foot and a few minutes later, when the time came for him to get off the tram at the Note Printing Branch, his right foot was out of action so that he fell down and had to be taken to hospital. The medical evidence established that the cause of his condition was a thrombosis forming in an atheromatous blood vessel and causing a right-side paralysis of the arm and leg. The Delegate of the Commissioner for Employees' Compensation disallowed Hornsby's claim for compensation under s. 9A of the Commonwealth Employees' Compensation Act 1930-1956, but upon appeal to the County Court, Judge Moore allowed the appeal, finding "that on the 15th April 1958 an accident happened to the appellant, viz., the thrombosis; that such thrombosis caused injury to the appellant, viz., damage to the brain with resultant paralysis or partial paralysis to the right hand and foot; and that such thrombosis and resultant damage and paralysis or partial paralysis happened while he was travelling to his employment by the Commonwealth". Against this decision the Commonwealth appealed to this Court. (at p602)
2. Before the appeal was opened, the question was raised whether the Commonwealth had any locus standi and eventually we gave special leave to the Commonwealth Bank to appeal and ordered that the name of the Commonwealth Bank should be added as a party to the present appeal. I am disposed to think that the effect of s. 22 of the Commonwealth Employees' Compensation Act is that employees of prescribed authorities of the Commonwealth (and the Commonwealth Bank has been prescribed) are to be treated for the purposes of the Act as though they were employees of the Commonwealth and that s. 22 (2) merely determines how the burden of any compensation awarded has to be borne, as between the Commonwealth and the authority. However, the way in which the Act is applied to employees of Commonwealth authorities leaves the position so obscure that the only safe course as the Act stands would seem to be that which has now been followed in this case, viz. of having both the Commonwealth and the authority as parties to proceedings under the Act. (at p602)
3. The appellants' contention is that it was wrongly found that personal injury by accident was caused to the respondent because, so it was said, there must be some incident external to the worker connected with an injury before there can be personal injury by accident and in this case the thrombosis was due to nothing beyond the inevitable progression of the heart disease from which the respondent was suffering and there was thus no such incident. In so far as the appellants founded themselves on the words "is caused" in s. 9A, the point is concluded against them by what was said by the Privy Council in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 and I will not repeat what I said about this in Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547, at pp 569, 570 . Mr. Eggleston did indeed claim that the judgment of the Privy Council by itself establishes the respondent's case here but although I am disposed to think that the reasoning supports his case - and I refer in particular to what was said in Sharpe's Case (1955) AC, at pp 19, 20 , and to my observations in Kavanagh v. The Commonwealth (1960) 103 CLR, at pp 573-575 - it must be recognized that the actual decision that the auricular fibrillation which resulted in Sharpe's death was personal injury by accident depended in a measure upon the introduction in 1946 into the Workers Compensation Acts (Vict.) of the definitions of injury and disease which have no counterpart in the Commonwealth Act. (at p603)
4. But even if Sharpe's Case (1955) AC 1 is not treated as governing this case, the reasoning to be found in the Privy Council's judgment and other weighty authority, leads me to the conclusion that here the thrombosis which occurred in a diseased blood vessel by reason of the progress of the disease and without any external event playing any part in it was personal injury by accident. There was a sudden physiological change for the worse in Hornsby's condition which was both unforeseen and untoward and because it occurred while he was travelling to work, that is enough to establish his claim under s. 9A. (at p603)
I have said in Kavanagh's Case (1960) 103 CLR, at pp 573-575 all that I need to say for present purposes about Sharpe's Case (1955) AC 1 , but I emphasize that the treatment in the latter case of Hetherington v. Amalgamated Collieries of W. A. Ltd. [1939] HCA 36; (1939) 62 CLR 317 is a complete answer to the submission that Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 indicates that what the worker was doing in the course of his employment, or something else external to the worker, must have played some part in what happened, if what happened is to be regarded as personal injury by accident. In Kavanagh's Case (1960) 103 CLR, at pp 572, 573 , I have also set out why the effect of the deceased's work was dealt with as it was in the judgments in Hetherington's Case [1939] HCA 36; (1939) 62 CLR 317 . (at p603)
6. In considering other authority, it is not necessary, in my opinion, to go back beyond the decision of the House of Lords in Fife Coal Co. v. William Young (1940) AC 479 . There the condition of "dropped foot", which was the injury suffered, not only occurred at work on a particular day, but resulted from the man's work as a packer in a coal mine, but what was treated as decisive on the issue whether injury by accident had been proved was not that the condition was the result of the work, but that it was shown that a definite physiological change for the worse took place in the worker's condition on a particular day. To quote Lord Atkin: "In Lord Fleming's words: 'What happened to him on 27th April transformed him from a man who was not suffering from dropped foot into a man who was.'" (1940) AC, at p 488 That this was decisive appears from the judgment of Viscount Caldecote L.C. where after referring to Marshall v. East Holywell Coal Co. (1905) 93 LT 360 , Gorley v. Backworth Collieries (1905) 93 LT 360 and Walker v. Hockney Brothers (1909) 2 BWCC 20 , he said (1940) AC, at pp 484, 485 : "There is no reason to doubt the correctness of the decisions in the three cases I have last mentioned. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged. When the workman's claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workmen in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover, Clayton & Co. Ltd. v. Hughes (1910) AC 242 , or heart failure as in Falmouth Docks and Engineering Co. Ltd. v. Treloar (1933) AC 481 ." It is true that there are statements in the Lord Chancellor's judgment which link the change in the worker's condition with the work he had been doing, but that is because the House of Lords was considering a finding that "the claimant's incapacity did not result from personal injury by accident arising out of and in the course of his employment, and therefore the employers were not liable to pay compensation", and to dispose of the case, the Lord Chancellor finally said: "The claimant sustained a definite physiological injury in the reasonable performance of his duties, and as the result of the work he was at the time of the injury engaged in." (1940) AC, at p 487 This dealt with the three matters the claimant had to prove to succeed. Lord Atkin said, after quoting Lord Fleming's words already set out: "If this be the true result of the findings I cannot see that any doubt that the man suffered an injury by accident can arise." (1940) AC, at p 488 . Perhaps even more illuminating, because it is quite clearly confined to the point whether there was or was not injury by accident, is the observation of Lord Romer made in the course of argument: "The question is, was there a physiological change for the worse in the respondent's condition on a particular occasion while he was at work?" (1940) AC, at p 480 . In Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) 2 All ER 201 , Lord Simonds, in considering Fife Coal Co. v. William Young (1940) AC 479 after quoting two passages from the judgment of the Lord Chancellor, said: "The passages that I have cited - to which I would add the pertinent observation of Lord Romer (1940) AC, at p 480 : 'The question is, was there a physiological change for the worse in the respondent's condition on a particular occasion while he was at work?' - show that the ratio decidendi in Fife Coal Co. v. William Young (1940) AC 479 was that the workman could there point to a particular physiological change on a particular day." (1948) 2 All ER, at p 208 . It was because it was not possible to point to such a change that a different result was arrived at in the case with which Lord Simonds was then dealing. (at p605)
7. This leaves me with the difficult problem of deciding whether, notwithstanding my own opinion that the stroke from which the respondent suffered was injury by accident, I am constrained by the decision of this Court in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 to conclude that it was not. I do not think that I am. In that case the aortic valve of the respondent's heart had been damaged when he was young as a consequence of rheumatic fever. At that time there was no marked physiological change, but in the course of time and while he was still in the Navy, the deterioration of the damaged valve had reached such a stage that it failed to close so that the blood tended to flow back. The County Court judge was satisfied that this condition "resulted from the natural progression of the effects of his rheumatic fever and he was not satisfied that it was in any way attributable to or aggravated by his service in the Navy", to use the language of the Court (1958) 99 CLR, at p 221 . It was in those circumstances that this Court decided that injury by accident had not been proved. In that case it seems to me there was lacking what I regard as decisive here, i.e. proof of the occurrence of a definite physiological change for the worse at a particular time. Such a change happened here while the respondent was going from his home to his work. (at p606)
8. Accordingly, I have decided Judge Moore was right and that this appeal should be dismissed. (at p606)
WINDEYER J. The respondent, an employee of the Commonwealth Bank, had a stroke while he was in a tram on his way to work. He became partially paralysed and was thus incapacitated for work. Does that mean that he is entitled to compensation under the Commonwealth Employees' Compensation Act? I think not. Neither the occurrence of the stroke nor the pathological condition that led to it was the result of, or in any sense associated with, his work. What is said, however, is that he suffered an injury by accident while travelling to his work and that that is sufficient. The proposition is surprising, if it means that everyone who unexpectedly falls sick or dies while on his way to or from work is entitled to compensation. The question is, however, to be determined by the words of the Act. Decisions on the same words used in other workers' compensation statutes, but in different contexts and settings, must be used cautiously. (at p606)
2. Section 9 of the Act provides for compensation "if personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee". In Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 , judgment in which is being given at the same time as in this case, I give my reasons for thinking that an "accident arising in the course of employment" does not mean simply an accident occurring while the employee is at work. It means rather, I think, an accident so connected with the course of employment that it would not have occurred to the employee at all if he had not been employed, but differing nevertheless from an accident arising out of the employment, which requires a causal connexion in the legal sense. Whether or not my view of the effect of s. 9 be right, the present case arises under s. 9A. That section provides that: "where personal injury by accident is caused to an employee while he is travelling to or from his employment by the Commonwealth . . . the Commonwealth shall . . . be liable to pay compensation as if the accident were an accident arising out of or in the course of his employment". The structures of the two provisions, as well as their words, differ. Section 9 deals with personal injury by a particular kind of accident; for the words "arising out of or in the course of his employment" are an adjectival phrase qualifying accident. Section 9A, using an adverbial phrase, deals with all cases where personal injury by accident (unqualified) is caused to an employee while travelling to or from his employment. (at p607)
3. Section 9A was clearly designed to extend the scope of the protection that s. 9 gives. It was said that one would therefore expect the two provisions to operate in a harmonious manner. To construe "while travelling" as involving (in s. 9A) a purely temporal relation between the accident and the travel, and to construe "in the course of employment" (in s. 9) as involving a relation between the accident and the employment that is not purely temporal would, it was urged, make the two provisions inharmonious. This may be so, but if disharmony results from the language that Parliament has used we cannot correct it; and this Act is not in all respects notable for its artistry. In Slazenger's Case (1951) AC 13, at p 21; (1950) 51 SR (NSW) 1, at p 5 , the Privy Council were able to rely upon the circumstance that disharmonies were to be avoided as reinforcing the conclusion that followed in that case from the application of well-known principles of construction and the definition of "disease" in the Act there in question. The same consideration with the same result was a governing factor in the decision in Hussey's Case [1959] HCA 55; (1959) 102 CLR 482 . The provisions here are quite unlike those there in question. And in my view, we should not, merely because "while" appears in s. 9A, make s. 9 and s. 9A harmonious by reading "in the course of" in the former as if it meant "while". That would be to make the introduction into the Act of the later and subsidiary provision change what I consider to be the true and established meaning of the earlier and main provision and to give it an application that, as I have said in Kavanagh's Case [1960] HCA 25; (1960) 103 CLR 547 , seems to me capricious and inconsistent with the policy and purpose of the Act. On the other hand, to read "while" in s. 9A as if it had the same meaning as "in the course of" has in s. 9 would be to give a quite unnatural sense to the simple expression "while travelling" and to ignore the contrast between the adjectival and adverbial effects of the two phrases. (at p607)
4. The respondent undoubtedly suffered the stroke that paralysed him while travelling. It can, I think, be said to have been an injury then caused to him by some physiological occurrence. But that does not, in my view, mean that it can properly be said to have been a personal injury by accident caused to him while travelling. It has been authoritatively said, more than once, that the expression "injury by accident" must be "interpreted according to the meaning of words in ordinary popular language" (see the passage in Lord Dunedin's speech in Trim Joint District School (Board of Management) v. Kelly (1914) AC, at p 684 quoted by Lord Porter in Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) 2 All ER 201, at p 203 ). Some of the "latent implications" - referred to by Dixon J., as he then was, in Hetherington's Case (1939) 62 CLR, at p 333 - that courts have found in the phrase would, I confess, not have occurred to me, unaided, as being within its natural meaning in ordinary popular language. These authoritatively declared implications must, of course, be recognized. But we are not to seek the implications of implications. Neither should we paraphrase paraphrases. Whether a particular occurrence involves a distinct physiological change may be an important and decisive inquiry in some cases. But a distinct physiological change is not itself an expression of clear and definite meaning. It is, with advancing medical knowledge, capable of debatable refinement. It is certainly not a synonym for injury by accident according to the meaning of words in ordinary popular language. If it were, any sudden and unexpected illness accompanied by an abnormal temperature - which might I assume be, or betoken, a physiological change - would be an injury by accident. The sudden onset of acute appendicitis would be an injury by accident. And so would every sudden death, for death surely involves a distinct physiological change. (at p608)
5. The actual contracting of a disease is in some circumstances an injury by accident arising out of or in the course of employment, and thus compensable under s. 9. And incapacity from a disease due to the nature of the employment is compensable under s. 10. But an injury or incapacity that is an ordinary result of the progress of a disease according to its ordinary course is not, I think, an accident. A usual consequence or the normal climax of a progressive malady does not become an accident because it manifests itself suddenly and, to the patient, unexpectedly. I do not think that any authority binding upon us and applicable to the words of the present Act compels such a view. What for present purposes the authorities establish is that if some external event or some act done by the man himself causes a sudden, harmful and unexpected physiological change to occur, that may amount to an injury by accident - and this may be so although the event or act would not have had the same consequences if the man had not been suffering from some predisposing disease. In such cases it is because the injury was not the result of the mere progress of an autogenous disease but on the contrary was unexpectedly precipitated by some external event or definite act that it can be attributed to an accident. But here the respondent would, for all that appears, have had a stroke when he did wherever he was. He happened to be in a tram on his way to work at the time. That does not bring the case within the Act. I would add only that I think we should in all these cases heed the salutary warning Lord du Parcq gave in Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) 2 All ER 201 which I respectfully quote: "Your Lordships are engaged in construing an Act of Parliament, and that duty is not to be performed by deducing from dicta contained in earlier judgments principles which may seem to follow from them. The pursuit of such a course of reasoning may take one on an interesting and attractive journey, but it is all too likely to lead to a destination far removed from any end contemplated by the legislature. Each step may be thought to justify a further advance, until at last the border-line is crossed which divides the reasonable interpretation of the statute from an unwarranted extension of its provisions. It is the duty of every tribunal to resist all temptation so to transgress" (1948) 2 All ER, at p 208 . I would allow the appeal. (at p609)
ORDER
Whereas at the hearing of the appeal from the order of the County Court at Melbourne by the Commonwealth of Australia it was ordered that special leave to appeal against such order be granted to the Commonwealth Bank of Australia and that the name of the said Commonwealth Bank be added to the appeal as a party appellant, Order that the appeal be allowed with costs and the order of the County Court be discharged. In lieu thereof order that the appeal to the County Court from the determination of the Delegate of the Commissioner for Employees' Compensation be dismissed with costs.
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