Amalgamated Wireless (A/sia) Ltd v Philpott [1961] HCA 31; (1961) 110 CLR 617 (1 June 1961)

HIGH COURT OF AUSTRALIA

AMALGAMATED WIRELESS (A/SIA) LTD. v. PHILPOTT [1961] HCA 31; (1961) 110 CLR 617

Workers' Compensation (N.S.W.)

High Court of Australia
Dixon C.J.(1), Kitto(1), Taylor(1) and Windeyer(1) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - "Injury" - Injury on periodic journey - Aggravation of disease - Journey a contributing factor - Workers' Compensation Act, 1926-1960 (N.S.W.), s. 6 (1) "Injury", par. (b).*

HEARING

Sydney, 1961, April 7, 10;
Melbourne, 1961, June 1. 1:6:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

June 1.
THE COURT delivered the following written judgment:-
This appeal turns upon the amendment made by s. 2 (1) (a) of the Workers' the Workers' Compensation Act, 1926-1958 (N.S.W.). The chief purpose of the amendment was, it would seem, to overcome the effect of the decision of this Court in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 ; at all events the case is noted in the margin of the statute. The decision itself involved the interpretation and application by this Court of the decision of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 . By sub-s. (2) of s. 2 of the Workers' Compensation (Amendment) Act, 1960 the amendment made by sub-s. (1) (a) is to be deemed to have commenced on 1st July 1942. In the present case the worker, the respondent's husband, died on 17th May 1957 in conditions which under the provisions as unamended were held by the Workers' Compensation Commission of New South Wales to enable the respondent to recover compensation. An award was accordingly made in her favour. The employer disputed the correctness of the decision. The award was made on 31st March 1958. At the request of the appellant a case was stated under s. 37 (4) of the Act for the opinion of the Supreme Court upon certain questions of law set out therein. The case stated was dated 18th September 1958. It came on for hearing in the Full Court of the Supreme Court on 26th October 1960. In the meantime the Act, No. 30 of 1960, which was assented to on 19th April 1960 had become law and it was necessary to decide the states case under the Act as retrospectively amended. Neither the case stated nor the questions which it submitted for the opinion of the Supreme Court had been framed with the terms of the amended provision in view, but the findings of fact or some of them, although perhaps made alio intuitu, cover ground which probably will suffice. The facts of the present case are simple enough. The deceased worker, a man of fifty-three years of age, was employed as a process worker in Ashfield by the respondent company. He lived at Drummoyne. On the morning of 10th May 1957 he left his home to walk to a point some three or four hundred yards away to meet a friend who would drive him in a car to his work. He was a little late and hurried. Before he reached the car, probably after covering two hundred yards, he became very distressed: he was seized with cardiac pains. Shortly after reaching his place of employment he collapsed. He was taken home; a doctor saw him and diagnosed his case as coronary occlusion. Two or three days later he was placed in hospital where he died on 17th May 1957. It appeared that some twelve months before his death he had been subject to breathlessness and precordial pain on exertion. On his subjective symptoms a diagnosis of angina pectoris had been made in September 1956. A cardiologist who was called as a witness supported the view that the final occlusive process had been initiated during his walking from his home and became complete when he collapsed at his place of employment. His Honour Judge Conybeare, who heard the claim, in his reasons for his award said that the issue was whether anything relating to the journey of the deceased between his place of abode and place of employment contributed to the eventual coronary occlusion and later to his death. He had said that having regard to the sequence of events, particularly the time sequence, he was driven to the conclusion that something of a pathological nature happened on the walking journey of some three hundred and seventy yards albeit it was a journey slightly downhill or level walking. Having referred to the conflicting medical opinions he said that he accepted that which attributed death to some occlusive process which was materially contributed to by the effort involved both before the onset of the occlusion and subsequently. As appeared from the formal findings this refers to the effort involved in walking from the deceased's home to the car and later, at his destination from the car across the road to the factory. (at p622)

2. As the Act stood at the time when the award was made it was necessary to discover the legal effect of these findings from s. 7 (1) (b) of the Act, interpreting the word "injury" as contained in that provision according to the definition as it stood at that date in s. 6 (1). The learned judge considered that their legal effect so ascertained justified an award in favour of the widow and the purpose of the case stated was to appeal from that conclusion. But by the time when the Supreme Court upon that appeal came to decide upon the lawfulness of the award, it had become necessary to interpret the word "injury" in s. 7 (1) (b) according to the definition as given in s. 2 (1) (a) of Act No. 30 of 1960. We of course in our turn take the law as it existed at the time when the Court whence the appeal to us comes, viz. the Supreme Court, made its order. See Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at pp 106-110 . (at p622)

3. The text of s. 7 (1) (b) itself has not been altered by Act No. 30 of 1960. It is the definition of "injury" that has been amended: it has in form been replaced. Section 7 (1) (b) so far as material provides that where a worker has received injury . . . on any of the daily or periodic journeys referred to in par. (c) of the sub-section . . . . the worker and in the case of the death of the worker his dependants shall receive compensation from the employer in accordance with the Act. It requires but little consideration to see that the success of the widow's claim in this case to compensation must depend upon her being able to bring her husband's case within this provision and it is apparent that to do so she must show that the facts as found by his Honour Judge Conybeare in the foregoing extracts from his reasons disclose an "injury" within the meaning borne by that word in par. (b) of s. 7 (1). As "injury" was defined before the amendment of 1960 it meant a personal injury arising out of or in the course of employment and included 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. It is sufficiently evident on a mere reading of this definition that something had to be done to make it work with respect to an injury sustained on a journey between the worker's home and his job. For it is limited to an injury in the course of the employment, and yet the injury to be compensated under s. 7 (1) (b) ex hypothesi, was received on the periodic or other journey. So with disease: it must be contracted in the course of the employment or the employment must be a contributing factor. If the injury must arise out of or in the course of the employment although it occurred on the journey, par. (b) could add nothing to the worker's rights. The course of rejecting the definition of "injury" altogether in the interpretation of par. (b) of sub-s. (1) of s. 7 which this Court was prepared to adopt as a remedy (Hume Steel Ltd. v. Peart [1947] HCA 34; (1947) 75 CLR 242 ) did not meet with the approval of the Privy Council. The view which their Lordships took was that the difficulty should be met by implications in the body of the Act, particularly in s. 7 (1) (b) (Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 ). The implications that were made do two things. One thing is to imply that the course of the employment shall notionally extend to the journey. The other is to imply that where the employment must be a contributing factor the notion of employment shall similarly extend to or include the journey. This is all explained in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 . But a further consequence of applying the definition of "injury" in the interpretation of s. 7 (1) (b) was explained and acted upon in the judgment of the Privy Council and that also was again explained in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 . It depends upon the fact that the definition includes a reference to disease but restricts the description of the "disease" which it admits into the conception of "injury" within narrow limits by imposing two conditions. The conditions are first that the disease must be contracted by the worker in the course of his employment, which by implication means in the course of his employment or on the journey, and second that the employment (meaning by implication the employment or the journey) must be a contributing factor. Now it must be clear enough that where you apply this restrictive definition no disease not conforming with both these conditions can be covered. As Lord Simonds said for the Privy Council: "But this at least is clear, that in the Act the word 'injury' . . . must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease" (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 . The actual conclusion in the case of Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 and the conclusion in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 also depended upon this exclusion of a wider meaning. In each case death was caused by a coronary occlusion, in each case it was sought to obtain compensation under s. 7 (1) (b) and in each case the claim failed because the occlusion was the outcome of a cardiac disease and neither of the disease nor of the outcome could it be said that the conditions were complied with: neither the occlusion nor the cardiac disease was contracted in the course of the employment or journey and to neither did the employment or the journey form a contributing factor. When the Legislature set itself to remedy the result of these decisions it took what might appear an unexpected, an unusual, course. It did not go to the provisions of the body of the Act and in the light of the implications that had been held necessary recast the operative provisions as well as the definition. It did no more than rewrite the definition of "injury" and rewrote it only to add a new paragraph. The purpose of the new paragraph was simply to introduce into the conception of injury the causes of aggravation, acceleration, exacerbation or deterioration of any disease: the employment must be a contributing factor to such aggravation, acceleration, exacerbation or deterioration. Curious as the course taken to remedy the result produced by the decision may seem at first sight, the Legislature must be understood to rest on the extension given to the word "employment" by the decision of the Privy Council so as to include "journey". A close consideration of the legislation including the amendment shows that that certainly must be so. Otherwise there would be little or no sense in the amendment. So it now is to be taken that in applying s. 7 (1) (b) the employment includes the journey not only in considering whether injury arose in the course of the "employment" but also for the purpose of considering whether a disease was contracted in the course of the "employment" and whether the "employment" was a contributing factor. That is as true in applying s. 7 (1) (b) under the operation of the amended definition of "injury" as it was, by reason of the decisions in the case of Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 and in the case of Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 in applying s. 7 (1) (b) under the operation of the unamended definition. It remains true in that way simply because the Legislature evidently accepted the thesis of the two decisions and framed its amendment upon that basis. But it means, and this is all important for the present case, that par. (b) of the new definition applies in cases where the journey (and not the employment in the unextended sense) was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. It seems unlikely in point of fact that a disease will be "contracted" in the course of a periodical or any other journey referred to in s. 7, but if it be so contracted, it is likewise covered by the extension of the employment to include the journey for the purpose of the provisions. It may seem an odd thing to interpret a statutory amendment by reference to the implications devised to make sense out of the statute before the amendment, but a study of the statutes and the decisions leaves little or no doubt that it is the proper course. It means that although the word "employment" is used in the amended definition of "injury", its operation extends in the same manner as it did in the unamended definition to the "journey". The consequence is that now in the present appeal the test of liability must be whether the respondent's husband suffered an injury consisting in the aggravation, acceleration or deterioration of his cardiac or vascular condition to which the journey was a contributing factor. That was necessarily the test of liability before the Supreme Court. But it raises a question of fact not law. According to the findings expressed by his Honour Judge Conybeare, however, the deceased did suffer an injury of that description. The question for that learned judge was whether the evidence satisfied him that the deceased did suffer such an injury. We should simply accept his conclusion on the question unless we think that there was not before him a sufficiency of evidence to support it. As the law stands claims for compensation arising out of coronary or vascular conditions or occurrences can seldom be determined except as questions of fact depending in the end upon the evidence adduced. This may be unfortunate but it is a problem for the Legislature and not for the Courts. In the present case we think that there was evidence adduced before him upon which the material findings made by his Honour Judge Conybeare may be supported. The correctness in fact of the findings is not a matter for us. It is true that the findings were made without the exact provisions of the amending Act in mind but as it happens they fit the provisions sufficiently and make it unnecessary to remit the cause for further consideration. (at p625)

4. It follows from the foregoing that the appeal should be dismissed. (at p625)

ORDER

Appeal dismissed with costs.