Pethick v Commonwealth [1960] HCA 75; (1960) 103 CLR 643 (18 October 1960)

HIGH COURT OF AUSTRALIA

PETHICK v. THE COMMONWEALTH OF AUSTRALIA [1960] HCA 75; (1960) 103 CLR 643

Workers' Compensation (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2) and Menzies(3) JJ.

CATCHWORDS

Workers' Compensation (Cth) - Commonwealth employee - National Service trainee - Injury - Bacterial endocarditis - Whether injury by accident - Whether arising out of or in the course of employment - Burden of proof - Commonwealth Employees' Compensation Act 1930-1959 (No. 24 of 1930 - No. 98 of 1959), ss. 9, 20.

HEARING

Adelaide, 1960, September 22, 23;
Melbourne, 1960, October 18. 18:10:1960
APPEAL from the Local Court of Adelaide.

DECISION

October 18.
The following written judgments were delivered:-
DIXON C.J. This is an appeal from an order of a Local Court made in the Commonwealth Employees' Compensation Act 1930-1959. By the order appealed from the Local Court dismissed an appeal from a determination of the Delegate of the Commissioner for Employees' Compensation revoking certain earlier determinations and declaring that the appellant had not sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth and did not suffer a disease attributable to the nature of his employment by the Commonwealth. The so-called employment by the Commonwealth consisted in National Military Service. The appellant, being then eighteen years of age and serving an apprenticeship to a butcher, was called up for National Service training in 1956. On 15th August 1956 he entered Woodside Camp, South Australia, and was there assigned to the Engineer Corps. On 23rd October 1956 he was one of a party who made a long march, during which he began to run a temperature. On his return to camp he was put in hospital. The diagnosis seems to have been bronchitis although an ex post facto account of the symptoms may be thought to throw doubt on that diagnosis. He was treated with penicillin and kept in hospital for some days. After his discharge from hospital he resumed his military training. According to his evidence he could not execute his duties as easily as before and he became breathless after much running; but otherwise he was fit to undergo training. He was discharged from camp on 22nd November 1956 and returned to his civil occupation. On 31st December 1956 he suffered another attack of illness similar in its onset to that encountered at the camp. He was treated again with penicillin and after a fortnight was allowed to leave bed, but on 18th January 1957 he suffered a relapse and then for the first time a murmur from the aortic valve of his heart was discovered or became apparent. He was placed in hospital and treated by a specialist in cardiology. His diagnosis was sub-acute endocarditis. After a considerable period of treatment the appellant was discharged from hospital. His condition of health, however, was much impaired and on 30th May 1957 he made an application for compensation under the Commonwealth Employees' Compensation Act. A medical board reported that he suffered from an aortic regurgitation and a healed sub-acute bacterial endocarditis, a condition resulting from an infection of a pre-existing damaged valve. Upon this report compensation was allowed to the appellant but on 23rd September 1959 the determinations by which it was awarded to him were revoked, in consequence, it was said, of applying to his case the decision of this Court in The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 (decided 14th August 1958). Hence the appeal to the Local Court. It is from the order of the Local Court dismissing the appeal that the present appeal comes to this Court. From the expert and other evidence and the analysis of the evidence made by the learned special magistrate the following conclusions may be drawn. (at p646)

2. The appellant when he entered on his service was a healthy and sound young man except that it is a reasonable hypothesis that there was a defect of the aortic valve from which there was an undetected murmur. The illness the onset of which occurred on 23rd October 1956 when he was placed in hospital was not bronchitis but was in fact sub-acute, or acute, bacterial endocarditis. There was then an involvement of the aortic valve. Bacterial endocarditis may be caused by an infection of any of a number of descriptions of organism; one which is commonly responsible is streptococcus viridans. But all that can now be known of the particular organism affecting the appellant's heart is that it was penicillin sensitive. An organism giving rise to bacterial endocarditis, being in the blood stream, lodges in the heart valve and multiples, thus setting up the inflammation which impairs the valve. The treatment with penicillin at the hospital at the Woodside camp repressed the infection but the use of penicillin was not kept up long enough, as it may be inferred, to eliminate the organism and the appellant's relapse on 31st December 1956 should be regarded not as due to a re-infection but as a recurrence of the same infection manifested in the bacterial endocarditis. It was at this stage that the murmur or regurgitation was heard. When a cardiologist examined the appellant on 21st January 1957 a gross diastolic murmur was apparent, pointing to the incompetence of the valve as a result of disease. (at p647)

3. It is the opinion of the cardiologist that he has "virtually no functioning aortic valve". "Normally when the left ventricle contracts it forces blood through the aortic valvae into the aorta; thereupon the aortic valve shuts, preventing blood from regurgitating back into the left ventricle." An infection present in the blood stream may come from any one of many sources; it may, for example, come through the mouth or a bacterial reservoir in the nose or throat or elsewhere, but unless there is a defect in the valve, whether congenital or acquired from rheumatic disease or otherwise, it is unlikely to find a lodging there. That is why it is a reasonable hypothesis that some antecedent defect already existed in the appellant's aortic valve. A bacterial colony once lodged in the valve may grow fast or slowly according to the virulence of the bacteria. How or when the bacteria entered the appellant's body it is impossible to say, but there are grounds in his case history for thinking that once the infection lodged in the aortic valve the development was rapid. On the other hand it is not possible to say that the valve had been much impaired by inflammation before the bacterial development was checked in the Woodside camp hospital by the use of penicillin. (at p647)

4. In these circumstances the question is whether the appellant can sustain a claim for compensation under s. 9 of the Commonwealth Employees' Compensation Act 1930-1959. Section 9 deals with personal injury by accident arising out of or in the course of the employment. Section 10 deals with compensation for incapacity due to disease but it is clear that the appellant's case is outside its application. For it is a necessary condition of the application of s. 10 that "the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth". Clearly enough bacterial endocarditis is not a disease due to the nature of military service or training. (at p647)

5. But the appellant's difficulties in bringing his case under the operation of s. 9 are very great indeed. He must show that personal injury by accident arising out of or in the course of his employment by the Commonwealth was caused to him. There is little difficulty in his satisfying the requirement that there shall be "injury". But it must be injury by accident and it must arise in the course of the employment or else out of it. The appellant's difficulties in satisfying this condition appear insuperable. There are three "events", supposed or real, laid hold of by the appellant as amounting to "injury-by-accident". The first is the entry of the bacteria causing the infection into the appellant's body. The second is the lodgment of the organism in the aortic valve, the involvement of the valve in the infection. The third is the pathological impairment or destruction of the valve as a physiological mechanism. (at p648)

6. On the facts to be inferred or assumed as to the inception and progress of the disease it seems to be plain that for one reason or another none of these three events supplies a basis for the application of the phrase "injury by accident arising out of or in the course of" his employment. It is convenient to deal with the three "events" in the reverse order. (at p648)

7. Now it seems clear enough that there is no sufficient ground for inferring that the impairment or destruction of the aortic valve took place before the appellant was discharged from the camp, on 22nd November 1956, and returned to his civil occupation. True it is that he complained that in the sports he became breathless and he was not as equal to exertion as before his illness. But that is compatible with the general theory of the antecedent condition of his heart and his exertions and the activities he actually pursued were hardly consistent with the view that there had by that time been a serious impairment of the heart. It is therefore impossible to treat this "event" as occurring at a time when it could form accidental injury arising in the course of the employment. There is no causal connexion which would make it possible to treat it as an accidental injury arising out of the employment. (at p648)

8. The second event postulated by the appellant is the settlement of the infection in and about the valve. Perhaps it is possible to infer or presume that this took place after he was called up and during his so-called employment on or before 23rd October 1956, although to do so hardly takes into account the possible logical effect of three short periods of leave in that time. But even so it is plain that there was nothing in the inception and progress of the infection of the valve prior to the pathological impairment of the valve which could constitute injury by accident. (at p648)

9. The first of the supposed events, the entry of the bacteria into the body of the appellant, seems even more out of the question as a thing constituting an injury by accident arising out of or in the course of the employment. The source of the bacteria, when and how they got into the blood stream, and how it came that they found a lodgment in the heart are undiscoverable. It is a hypothetical event which cannot be brought into any causal or temporal connexion with the employment. There are of course reported decisions, particularly of a time when courts were less accustomed than now to bacteriological explanations, describing the process of infection in terms appropriate enough to accidental injury although they must read strangely to a microbiologist. But we need not concern ourselves with these authorities, for in this case there is nothing to show that any bacterial infection had an origin arising out of or in the course of the employment. (at p649)

10. It is only necessary to add two observations. In the first place, if it matters, the general burden of proof rested upon the appellant before the Local Court, notwithstanding the earlier determination of the Delegate of the Commissioner. That determination might be used for its evidentiary value, but it could not throw over the legal burden of proof. In the second place, the appellant failed to establish a case not because of The Commonwealth v. Ockenden [1958] HCA 37; (1958) 99 CLR 215 but independently of any effect that may have been ascribed to that decision which has since been discussed in this Court in Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 and The Commonwealth v. Hornsby [1960] HCA 27; (1960) 103 CLR 588 . (at p649)

11. The appeal should be dismissed. (at p649)

McTIERNAN J. I agree in the reasons for judgment of the Chief Justice and am of the opinion that the appeal should be dismissed. (at p649)

MENZIES J. I agree with the judgment of the Chief Justice. (at p649)

ORDER

Appeal dismissed with costs.