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High Court of Australia |
COMMISSIONER FOR RAILWAYS v. HARRADINE [1961] HCA 85; (1961) 106 CLR 71
Government Railways (N.S.W.)
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Windeyer(4) and Owen(5) JJ.
CATCHWORDS
Government Railways (N.S.W.) - Officer incapacitated by injury - Entitlement to salary during incapacity - Officers suffering from arterio-sclerosis - Coronary occlusion - Injury conceded to have arisen out of and in the course of employment - Whether officers "incapacitated" before injury by reason of arterio-sclerosis - Government Railways Act, 1912-1957 (N.S.W.), s. 100B.*HEARING
Sydney, 1961, November 28, 29; December 13. 13:12:1961DECISION
December 13.2. On the night of 17th July 1956 he signed on at Eveleigh at about 7.20. He was to drive a train to Thirroul and back. On the return journey, at about 1.40 in the morning of 18th July, he took a fire iron down and tried to loosen the coal. After doing so he swung the fire iron over the tender. As he did so he says that he got a very sharp stabbing pain across his chest which he had not experienced before, and it continued for some time. At a later stage in the journey, at Sutherland, after putting the handbrakes on the trucks he again experienced the same pain and felt sick, and that happened on a third occasion. After waiting for a time at Redfern he finally signed off at Burwood. He was due to start work again that night at about ten minutes to eleven at Enfield. When he arrived there he felt sick and giddy and had the same pains. He was taken home and did not work again. The medical evidence tended to prove that he was suffering from myocardial infarction due to a coronary occlustion. The following gives the effect of that evidence. The pain he suffered was angina pectoris and was a symptom. He had been suffering from arterio-sclerosis. On the occasions that he suffered pain it was the result of effort. The coronary occlusion probably occurred upon the journey but it might have occurred earlier. Once the coronary artery or one of the branches is blocked, the muscles of the heart supplied by that blood vessel in effect die. According to the cardiologists called on behalf of the defendant Commissioner the angina which the plaintiff experienced on the journey did not contribute in any way; it arose from the basis cause, namely the coronary sclerosis and the hardening of the arteries. If it progressed up to the point where he did heavier things which were part of his normal work, he got a pain. Progression went on, and on the following day he had a major coronary episode. The three episodes of pain he had on the journey were not minor coronary occlusions. The plaintiff must, in the opinion of these medical witnesses, have had coronary sclerosis for many years. One medical witness called for the Commissioner said that he gathered from the history which he obtained from the plaintiff that what he did formed the usual sort of efforts for his occupation and that he got angina pectoris because at that time his coronary artery was inadequate for that extra effort. (at p75)
3. The reasons given by the Full Court of the Supreme Court of New South Wales (Evatt C.J., Herron and Collins JJ.) (1961) 79 WN (NSW) 45 dealt with a contention on behalf of the appellant Commissioner for Railways that the incapacity was not caused by or did not result from the injury said to have been incurred by the plaintiff because the plaintiff was incapacitated before he met with that injury. This contention apparently was based upon the view that, owing to the plaintiff's arterial condition, he was unfit to drive a railway engine before the journey from Thirroul began. Their Honours dismissed the contention on the ground that it rested merely upon the evidence of a doctor who, in their Honour's view, referred to incapacity in the medical sense and who asserted that, had he known the condition of the plaintiff before he went to work on 17th July 1956, he, the witness, would have advised him not to perform this work as, medically speaking, he was unfit to do so. Their Honours went on to say that incapacity in this type of legislation is an economic and not a physiological fact and cited the statement of Lord Macmillan in Birch Bros. Ltd. v. Brown (1931) AC 605, at pp 626, 627 : ". . . by incapacity for work is meant incapacity to earn wages by working." Their Honours added: "To say of a person whilst he is actually engaged in gainful employment that he is incapacitated for that employment is to be involved in a contradiction of terms" (1961) 79 WN (NSW), at p 49 . (at p76)
4. In view of the importance which the Commissioner attached to this decision he obtained, upon terms, special leave to appeal to this Court, notwithstanding the smallness of the amount involved. It is easy to understand the Commissioner's difficulty over the expressions describing incapacity as an economic, not a physiological, fact and as an incapacity to earn wages. I may say at once that I cannot share the view that these afford useful or practicable or indeed appropriate tests under s. 100B, which in terms speaks of "incapacity so as to be unable to perform the duties of the classification to which . . . (the officer) had been appointed". The question whether an officer is incapacitated must surely be judged according to the standards obtaining in the Railways. In supporting the Commissioner's appeal his counsel, no doubt with a view to isolating what was conceived to be a question of general application susceptible of abstract statement, informed the Court that he was prepared to concede that, within the meaning of s. 100B (1), the plaintiff respondent had suffered an injury arising out of and in the course of his employment. He did not identify, with any exact physiological or pathological change, the injury which he thus conceded to have been suffered but it must, I think, be supposed that it consisted in the destruction or "death" of a certain quantity of the heart muscle resulting from the occlusion. (at p76)
5. On the supposition involved I find it very difficult to define the exact point of controversy. In the abstract it may be conceded at once that if an officer of the Railways is already incapacitated from performing the duties of his classification and sustains, while so incapacitated, an injury arising out of and in the course of his employment which, if he were not already incapacitated, would have the effect of incapacitating him, he cannot be considered as incapacitated by the injury. The hypothesis seems to require that the prior or existing incapacity does not cease and continues to be effective, not having been replaced by the incapacity arising out of and in the course of his employment. But the difficulty is to see how this abstract conception, logical as it may seem, could ever be satisfied by any state of facts, for it supposes that, notwithstanding incapacity to perform the duties of his classification and while under that incapacity, the officer nevertheless suffers an injury arising out of and in the course of his employment. He could not suffer such an injury unless he was actually in the course of his duties. In the present case it seems clear enough that whether the plaintiff respondent was regarded as medically unfit or physically unfit to perform the duties of his classification, he was in fact performing them when the incident occurred which is treated by the Commissioner for Railways as amounting to an injury arising out of and in the course of his employment. It is equally clear that he became incapacitated when the physiological or pathological change occurred and it is in respect of that incapacity that he is seeking to recover. To my mind the simple way s. 100B (1) should be applied is to determine what is the incapacity to perform the duties of his classification in respect of which an officer claims salary or, to put it another way, to determine or identify the incapacity during which he claims to be paid a salary for the time being payable to officers with the same classification and with the same length of service. That incapacity having been identified, it seems only necessary to determine as a matter of fact whether it had its source in an injury arising out of and in the course of the employment. All sorts of logical or dialectical suppositions may be put as to the possibility of there being a pre-existing incapacity but it is difficult to suppose that in reality, once it is conceded that an injury arising out of and in the course of employment has occurred which in itself has incapacitating consequences, the prior condition of the officer can have any bearing on the matter. It appears to me that the troubles of the present case really arise from a supposition, not borne out by the medical evidence, that a deteriorating vascular condition forms the source of incapacity rather than the occlusion itself. The error of this can be seen if the evidence of the two medical witnesses called by the Railway Commissioner is scrutinized. I have great difficulty myself in seeing what is the exact point upon which the Railway Commissioner depends. It is little wonder that it did not emerge at the trial in any clear form. It is only necessary to add that the concession made by the counsel for the appellant Railway Commissioner is accepted only for the purpose of discussing the point he sought to develop and the acceptance involves no view of the Court as to its validity. (at p78)
6. The appeal should be dismissed. (at p78)
KITTO J. It seems clear that the meaning which has been given to "incapacity for work" in workers' compensation legislation has no application to the expression, in s. 100B of the Government Railways Act, 1912-1958 (N.S.W.), "incapacitated . . . so as to be unable to perform the duties of the classification to which . . . he had been appointed". The expression means, I think, so adversely affected that the departmental authority responsible for deciding whether or not he ought to be performing the duties of his classification would, if aware of his condition and acting reasonably, put him off those duties. (at p78)
2. The question then is whether s. 100B applies to the facts of the present case. The Commissioner's primary contention on that question, as I understand it, may be expressed shortly as follows. Let it be assumed in the respondent's favour that the attacks of angina pectoris on 18th July 1956 were due to an injury then and there caused by strain placed upon a diseased heart in the course of the respondent's duties as an engine-driver. Let it be assumed that as from the happening of that injury the respondent was unable to perform any work at all. Still, it must be recognized that the occurrence of the injury, or, if you like, the angina pectoris itself, demonstrated that even before they occurred the heart disease had reached such a stage that the respondent was incapacitated so as to be unable to perform an engine-driver's duties - in the sense that according to any reasonable departmental standards he ought to have been put off duty if only his condition had been known. It follows from this that the only incapacitation which could have been caused by an injury sustained on 18th July was an incapacitation from performing, not the duties of an engine-driver (for he was already incapacitated by the heart disease from performing those duties), but the duties of any class of employment for which he was not already incapacitated. In other words the respondent must turn to the Workers' Compensation Act if he is to get compensation for the incapacity for work which on 18th July was piled upon his pre-existing incapacity to perform some duties including those of his classification; and in respect of that pre-existing incapacity he has no rights under s. 100B, because it was due to the natural progression of his heart disease, and not to any injury. (at p79)
3. The answer in my opinion is that there is no ground for dividing the incapacity existing after the attacks of angina into an incapacity existing before those attacks and an additional incapacity caused by the injury (assuming that there was one) which produced them. What is relied upon as the pre-existing incapacity-that to which a doctor might have certified immediately before the attacks of angina if investigation had revealed to him the precise condition of the respondent's heart at that time-consisted in nothing but the propensity while performing his duties to become worse. It could not have been more than that, for so far as actual strength was concerned the respondent proved by actually performing the duties that he had all the necessary strength. But after the attacks of angina he was incapacitated in a different sense from performing even those duties. He simply could not perform those or any other duties at all. His incapacity from that time onwards was not the sum of two incapacities; it was a single incapacity extending to all work, including the work of his classification. (at p79)
4. One form which the Commissioner's contention took was that even on the view of the facts which I have expressed the case does not fall within s. 100B, because there is to be understood in the section an implied condition that before the injury the officer was not unable to perform the duties of his classification. If the expression "incapacitated . . . so as to be unable" were conceded so absolute a meaning that nothing short of complete physical impossibility of performing the relevant duties could satisfy it, the suggested condition would no doubt be implicit in the section, because an injury cannot make impossible what is already impossible. But then the implication would be unnecessary, because a man who cannot possibly perform his duties cannot sustain an injury arising out of and in the course of his employment. By insisting that the words of the section should be so interpreted that there may be an incapacity for the duties of a classification even while a man is actually performing the duties, the Commissioner necessarily concedes the possibility that another and more complete form of incapacity for the duties may arise out of and in the course of his performing them. (at p79)
5. I agree that the appeal should be dismissed. (at p79)
TAYLOR J. I agree that this appeal should be dismissed and I do not wish to add anything to what has already been said by the Chief Justice. (at p79)
WINDEYER J. I agree that, for the reasons given by the Chief Justice, this appeal must be dismissed. Saying this does not mean that I accept as correct the way in which their Honours in the Full Court expressed their reasons. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 I said that when a man who is in fact suffering from an ailment finds upon trying to work that he is unable to do so, he does not suffer an injury arising out of his employment: an incapacity for work arising from his ailment has merely become manifest. I adhere to what I there said. But it has no application to this case, because here counsel for the appellant conceded, for the purposes of the argument, that the deceased had suffered an injury arising out of and in the course of his employment. Whether the facts warranted this concession, which was made for the purposes of the argument, we do not have to consider. In the face of it it seems to me this appeal could not succeed. (at p80)
OWEN J. The respondent, the plaintiff in the action, recovered a verdict in the District Court in an action based upon s. 100B of the Government Railways Act. The case sought to be made on his behalf was that in the early hours of July 18th 1956, whilst driving a locomotive in the course of his duties as an engine-driver, he experienced three attacks of severe angina pain in his chest, each attack following upon the doing of work involving some exertion. A medical examination on the following day disclosed that he had been suffering from arterio-sclerosis for a long time and that this had progressed to the stage when he had had a coronary occlusion, which may have occurred while at work on July 18th. At the trial the jury returned a verdict in the plaintiff's favour and this necessarily involved a finding that he had been, to use the words of s. 100B, "incapacitated by injury arising out of and in the course of his employment so as to be unable to perform the duties" of an engine-driver. On appeal to the Full Court, Harradine v. Commissioner for Railways (1961) 79 WN (NSW) 45 it was held that there was evidence to support this finding. Whether this ruling was right or wrong does not arise for our consideration since, before us, counsel for the appellant Commissioner stated that, for the purposes of the appeal, he conceded that the respondent had sustained an injury arising out of and in the course of his employment at the time when he felt the attacks of pain whilst performing his duties. That concession-whether soundly based or not-seems to me to dispose of the appeal. Pain is not an injury nor is exertion and the "injury" which, by reason of the concession cannot be regarded as a mere incident in the progress of the coronary disease from which the respondent was suffering, can only have been a coronary occlusion and it was that "injury" that in fact rendered him unable to perform his duties as an engine-driver. It was contended however that since the respondent was, as the evidence showed, already suffering from arterio-sclerosis which rendered him unfit to drive a locomotive, it could not be said that he had been incapacitated by the "injury" which is assumed to have occurred on July 18th. The answer to that argument is that if an officer is in fact performing his duties when he sustains an injury it is irrelevant under s. 100B to enquire whether his condition was such that he ought not to have been performing them because of his state of health nor is it relevant to consider whether if he had not been injured his condition would sooner or later have rendered him unable to perform his duties. Accordingly I think the appeal fails. (at p81)
2. I would add, however, that I am unable to agree with the view expressed by the Full Court that the word "incapacitated" in the section means "incapacitated from earning wages". That this cannot be so will be seen at once if an attempt is made to read such a definition into the section. What the section is speaking of is an incapacity of such a nature as to render the injured officer unable to perform his duties and I agree with the Chief Justice that this must be judged according to the standards prevailing in the railway service. If, measured by those standards, an officer is so incapacitated in body or mind as to be unable to discharge the duties of the classification to which he belongs and that incapacity is due to an injury arising out of and in the course of his employment, he is entitled to the benefits of s. 100B. (at p81)
3. In my opinion the appeal should be dismissed. (at p81)
Commissioner for Railways v. Field.Railways v. Harradine, is from an order of the Full Court of the Supreme Court of New South Wales by which an appeal by the plaintiff to that Court from the District Court at Sydney was allowed and a new trial of an action in that Court was granted (1961) 79 WN (NSW) 71 . In the District Court the learned judge before whom the action was tried ruled that there was no evidence in support of the plaintiff's case fit to be submitted to a jury and directed a verdict for the defendant. The case possesses marked similarities to that of Harradine but the facts are somewhat different. (at p82)
The following written judgments were delivered:-
DIXON C.J. This appeal, which was argued with the appeal in Commissioner for
2. The action was brought under s. 100B(1) of the Government Railways Act, 1912-1957 (N.S.W.) to recover salary amounting to 406 pounds 9s. 1d. The plaintiff, who is the respondent in this Court, was a locomotive engine-driver. On 4th May 1959 he went on duty at 4 a.m. and drove his engine from Broken Hill. His destination was Menindee, where he had to take the ashes from the engine. While doing this work he suffered a severe pain which no doubt was angina pectoris. During the day and night, which he spent at the rest house, he suffered recurrences of this pain. Next day, 5th May 1959, he went on duty and took his part in turning a turntable on which his engine stood. He again experienced the same pain. He desisted from his work and when in the end he signed off duty at Broken Hill, he went to hospital. After a period off duty the plaintiff respondent was given work of a different classification. The cardiologist who was called as a witness on his behalf and who had examined him on 7th August obtained the history of his case, which he retailed in evidence. He said that his interpretation of the evidence was that the plaintiff had some infarction on 4th May because his attacks of pain lasted for so long: they had gone on for some hours and had recurred throughout the night. Usually that meant that the patient had an infarction but sometimes it was more or less a prelude, an indication that an impending infarction would occur. Allowing either of those two conditions, he thought that the fact that the plaintiff had exerted himself to that degree on the following morning, that is 5th May, would very greatly increase the extent of the muscle damage, the amount of damage that was done to the heart or else actually precipitate the muscle death. He thought that the plaintiff had an infarction on 4th May and the fact that he worked the next day precipitated (sic) it because of the fact that something extra happened on 5th May and he had more pain than on the day before. That was the most likely thing to have happened. He added that there had been some progress of the plaintiff's coronary disease which showed increasing sensitivity to the work or, rather, diminished his capacity to do work: he had a reduced capacity for work. (at p82)
3. In the Full Court, Ferguson J. summarized what he considered to be the view of the District Court judge, as that learned judge had thought that although there was evidence that the occlusion suffered by the patient was precipitated by his work on 4th and 5th May, that was insufficient to bring him within the four corners of the section as he was already unfit to perform such work. Ferguson J. said that also was the view argued before the Full Court. His Honour added: "It was said that had the case not been taken away from the jury the only findings they could have made were that though by 4th May 1959 the appellant had a capacity for work of a lighter description, his disease had then reached such a stage as to render him incapable of performing the duties of his classification, and that being so it was the progress of the disease and not the injury that had incapacitated him" (1961) 79 WN (NSW), at p 74 . His Honour said that argument had been rejected by the Court in Harradine's Case (1961) 79 WN (NSW) 45 . (at p83)
4. When the Commissioner for Railways obtained special leave from this Court to appeal in Harradine's Case, he also obtained special leave in the present case and for the purpose of arguing the same point. In this case too, counsel for the Commissioner for Railways at the hearing of the appeal conceded, for the purposes of argument, that the plaintiff had suffered an injury arising out of and in the course of his employment. His contention, however, was that before the plaintiff suffered that injury he had become incapacitated for work by reason of the progress of the disease and therefore that it could not be said that he had been incapacitated by the injury. (at p83)
5. It seems to me that the answer to this contention must be the same as that given in Harradine's Case. Once the assumption is adopted that the condition of Field accruing or arising on 5th May could properly be denominated an injury arising out of and in the course of his employment, it necessarily follows that his incapacity from and after that date must be considered an incapacity by injury arising out of and in the course of his employment. Various views might be taken as to his fitness for the work of an engine-driver on and before 4th May 1959, but at all events he did that work. Had he not suffered the injury which is assumed to have occurred on 5th May then he would not have been, or at all events might not have been, incapacitated over the period in respect of which he sues. He did his work and while at work is assumed to have suffered an injury. Clearly enough, as it seems to me, that injury was decisive. It is needless to discuss the epithets or descriptions which should be applied to his earlier condition. The word "incapacity" cannot be defined by substituting words having similar connotations, such as "unfitness", "disability", "inability", "disqualification", whether these terms be further limited by the use of such expressions as "pathological", "physiological" or "physical". It would seem in the end that incapacity is to be judged as a matter of Railway usage or understanding. It is, I think, proper for a man who claims to have been in a condition of incapacity to establish that that condition was the product of an injury arising out of and in the course of his employment. Once it is admitted that he sustained such an injury, it seems clear enough that, in a case like this, his existing incapacity flows from it. Let it be supposed that there was some growing disability of which more heed should have been taken. How long that would have operated or what would have been its course cannot be said and whether, had he been at rest, there would have been some amendment, even if temporary, cannot be known. His actual condition causing him to suspend work must be attributed to his assumed injury. He was doing his work, at all events after a fashion, and it was then that the injury arose. This Court necessarily accepts the assumption which the admission made on behalf of the Commissioner requires. Whether that assumption is well founded in fact is another question. It was a question for the Commissioner to decide in the circumstances and not for the Court. (at p84)
6. For the foregoing reasons I think that the appeal must be dismissed. (at p84)
KITTO J. I agree that the appeal should be dismissed. I need add nothing to what I have said in Harradine's Case. (at p84)
TAYLOR J. I agree that the appeal must, in the circumstances, be dismissed. (at p84)
WINDEYER J. I have nothing to add to what the Chief Justice has said, beyond referring to my remarks in Harradine's Case, the appeal which was heard with this appeal. The appeal should, I consider, be dismissed. (at p84)
DECISION
OWEN J. I have had the opportunity of reading the reasons of the Chief Justice. I agree with them and with his conclusion that the appeal should be dismissed. (at p84)ORDER
Order in each appeal:-Appeal dismissed with costs.
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