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High Court of Australia |
FEDERAL BROOM CO. PTY. LTD. v. SEMLITCH [1964] HCA 34; (1964) 110 CLR 626
Workers' Compensation (N.S.W.)
High Court of Australia
McTiernan(1), Kitto(2), Taylor(3), Windeyer(4) and Owen(5) JJ.
CATCHWORDS
Workers' Compensation (N.S.W.) - Injury - "Aggravation, acceleration, exacerbation or deterioration of any disease" - Functional mental illness a disease - Physical injury to worker suffering from pre-existing mental disease - New delusion of incapacity to work - Employment a contributing factor - Workers' Compensation Act, 1926-1960 (N.S.W.), s 6 (1) "Injury"*.
HEARING
Sydney, 1964, April 7, 8;DECISION
June 5.2. By the award the appellant was ordered to pay compensation to the respondent in respect of an "injury" on the basis that it came within par. (b) of the definition of "injury" in s. 6 (1) of the Act. The nature of such injury is the deterioration of a mental disease - schizophrenia. The principal question is whether from the facts proved the Commission could find that there was a "deterioration" and that the respondent's employment was a contributing factor to it. (at p627)
3. There was evidence of these facts. The respondent suffered from chronic schizophrenia. Her employment with the appellant began on 19th September 1959. While at work in a factory of the appellant she sustained an injury in lifting a box which was too heavy for her to hold; she had to drop it. The effort of lifting the box caused the straining of her muscles. She felt the injury most in the lower part of her right side. She was much distressed by the experience. The accident occurred on 1st December 1960. The injury, in so far as it affected her physically, resulted in incapacity only until about the beginning of 1961. The appellant discharged its liability under the Act to pay workers' compensation in respect of the injury. The mental disease became acute after the accident and remained in that condition up to the hearing in February 1962. The disease was rather latent for some years before the accident. Afterwards the respondent's mind was so deranged that she had delusions of suffering great pain in her lower right side and was utterly unable to work. There was no rational basis for these beliefs. Devlin J. (as he then was) said in R. v. Kemp (1956) 40 Cr App R 121 : "It would probably be recognized that there are diseases functional in origin about which it is not possible to point to any physical cause, but simply to say that there has been a derangement of the functioning of the mind, such as melancholia, schizophrenia and many other of those diseases which are primarily handled by psychiatrists . . ." (1956) 40 Cr App R, at p 127 . It was argued for the appellant that in the case of a disease of the mind such as schizophrenia which is diagnosed by the patient's symptoms that the disease and the symptoms must be distinguished; it is said that the disease is the constant factor and although delusions vary or increase that would not be evidence that a change in the disease which comes within any of the categories mentioned in par. (b) has taken place. (at p628)
4. Judge Wall enunciated certain propositions as to the relation of a psychosis to the symptoms. He considered that he had the support of the appellant's medical expert for those propositions. This is disputed by counsel for the appellant. I prefer the approach of Moffitt J. to the question. I refer to the following passages in his reasons for judgment: "Speaking very generally, sub-par. (b) to the definition of 'injury' is directed to a worsening of the disease, the four descriptions apparently being selected in an endeavour to be comprehensive. Let me first consider what is meant by 'deterioration' of a disease. The applicant says the underlying condition must deteriorate. One might not quarrel with that statement but reply that it begs the question as the real question is, 'What are the criteria of such deterioration?' The matter does not fall to be determined by first deciding whether 'disease' means the underlying mechanism or whether it also includes the symptoms and by then deciding whether the disease so defined has deteriorated. Some confusion appears to have arisen because symptoms were regarded as being capable of being divorced from the underlying condition or disease". "The Act is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment. Disease is relevant only so far as it incapacitates, that is only so far as it produces manifestations which cause incapacity. Such manifestations are relevant only so far as they are causally related to employment. Any other more limited approach, such as that submitted by the appellant, would disregard incapacitating symptoms arising from an employment stimulus and would necessitate embarking upon some artificial and probably unscientific assessment of strength and quality of the symptom generating mechanism of the disease. Some extraordinary problems would be posed." "Returning now to the findings in this case, it seems that the Commission sought to deal with the matter on the basis of defining the word 'disease' to include not only the underlying mechanism but also the symptoms. As was said (by Judge Wall) '. . . taking a psychosis to be a disease it includes not only the delusional potential of the condition but also the delusions which it creates'. That approach if taken literally appears to cause difficulty. However, shortly after it was said (by Judge Wall): 'In that view then each delusion generated by the mental disease constituted dererioration in the disease'. That, I think expresses the true approach, and I take it to mean that the disease, whether temporarily or otherwise, deteriorated in that symptoms which the applicant either did not have or did have to the same degree immediately before the employment incident, appeared after such incident and had an effect on her, so that her condition of health in a material sense, became worse so she could not work. On the evidence and on the findings I would have concluded that there was a deterioration of the pre-existing mental disease of the applicant". There was no jurisdiction under s. 37 to review findings of fact and the province of this Court in this appeal is limited by the provisions of that section. I take Moffitt J. to mean in substance that he was of opinion that the proofs of 'deterioration' were sufficient to satisfy the requirements of par. (b). I agree that the proofs were sufficient. (at p630)
5. The next question is whether it was open to Judge Wall to find that the respondent's employment was a contributing factor to such "deterioration". The respondent's belief that she is unable to work is a psychological condition; it is a form of madness which she never exhibited before. She worked continuously for a long period prior to 1st December 1960. Until the accident her mental condition did not interfere with the normal performance of work. The psychiatrist called by the employer said: "people tend to become more disabled as their schizophrenia goes on. It is likely that in the end she would have become unable to work". The evidence raises no probability that the "end" was near about 1st December 1960. The witness said further that he was not able to give "any idea" of when the schizophrenia would in the course of nature render the respondent unable to work. The psychiatrist called by the worker said that in his opinion the accident at work precipitated the the delusion that the respondent was unable "to cope with her work". In my opinion it was reasonably open to Judge Wall to find on the evidence of these psychiatrists and on the contrast between the respondent's ability to work before 1st December 1960 and her loss of capacity soon after that date that the injury she sustained on that date and the pain and distress it caused her brought on the new delusion that she was unable to work. In my opinion these facts are sufficient to prove a nexus between the employment and the deterioration of the respondent's mental condition. I think that the evidence raises the inference that it was more probable than not that the employment was a contributing factor to the worsening of the disease from which she was suffering. (at p630)
6. Else-Mitchell J. was of the opinion that par. (b) does not apply to the disease from which the worker in this case was suffering. The learned judge did not deny that the paragraph is not applicable to a mental disease as such. His reason stated briefly was that because it is manifest that par. (b) was inserted in the definition of "injury" in the Act to overcome the effects of the decision in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 the word "disease" in par. (b) ought to be construed as applying only to a disease the cycle of which is similar to the disease in that case. Counsel for the appellant did not argue in support of such a restrictive construction of par. (b). In my opinion the word "disease" is used in that paragraph as if it was intended to have an ample meaning, as in par. (a). Having regard to the purposes of the Act I think that the word "disease" in pars. (a) and (b) could apply to any morbid condition of the body or the mind the symptoms of which medical men would call a disease. I think that the judgment of Moffitt J in which Sugerman J. agreed is right in substance and I would dismiss the appeal. (at p631)
KITTO J. This is an appeal from a judgment of the Full Supreme Court of New South Wales dismissing an appeal from an award of the Workers' Compensation Commission. The award ordered the appellant to pay compensation to the respondent upon findings that on 1st December 1960 she received an injury arising out of and in the course of her employment with the appellant, and that the injury resulted in her being incapacitated for work. (at p631)
2. Having occasion in the course of her work to pull a tea chest from its position on top of other tea chests, she dropped it and in trying to keep it from falling on her foot she sustained a muscular strain in her right side. She was paid compensation for a period of incapacity for work resulting from the muscular condition, but sought an award for further compensation in respect of a continuing period of incapacity resulting from a delusional condition brought on by the incident. The respondent had a previous history of schizophrenia which predisposed her to delusions, and she had had delusions of different kinds before. But the incident of the tea chest was a contributing factor to the arising of a new delusion. This was a delusion that she continued to be seriously affected in a way which made it impossible for her to work by reason of abdominal pain. The award she sought was made, and there is no dispute now that it was rightly made if the proper conclusion on examination of the evidence is that there was sufficient evidence to support a finding that the bringing about of the new delusion, which admittedly incapacitated the respondent for work, constituted an "injury" within the meaning of the word as defined in s. 6 of the Workers' Compensation Act, 1926- 1960 (N.S.W.). (at p631)
3. The material portion of the definition extends "injury" to include "the aggravation, acceleration, exacerbation, or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration". The word "disease" is not itself defined in the Act. In the Supreme Court, to which an appeal from the award was taken, Else-Mitchell J. was of opinion that the only kind of disease within the scope of the words I have quoted is one which is progressive and irreversible or terminal, and does not extend to a psychosis or psychiatric disability. So construing the definition, he was for allowing the appeal. He would have allowed it upon another ground also, namely that if it were true that the incident of 1st December 1960 aggravated, accelerated or exacerbated an existing psychosis or caused it to deteriorate, it was that incident and not the employment or any factor in the employment that contributed to the result. The other members of the Court, Sugerman and Moffitt JJ. rejected the suggested limitation upon the generality of the word "disease" and found in the evidence sufficient support for the conclusion that the production of the delusion which incapacitated the respondent for work had rightly been regarded by the Commission as the aggravation, acceleration, exacerbation or deterioration of the pre-existing mental disease. Accordingly they dismissed the appeal. (at p632)
4. I find myself, with respect, unable to concur in either of the grounds taken by Else-Mitchell J. The first is based upon an assumption that the Legislature in enacting the relevant words, as it did by the amending Act of 1960, was mainly concerned to displace the decision of the Court in Darling Island Stevedoring and Lighterage Company Limited v. Hussey [1959] HCA 55; (1959) 102 CLR 482 ; and the conclusion is drawn that the word "disease" is used as meaning only such illnesses or disorders as possess the characteristics which were material to the decision in Hussey's Case [1959] HCA 55; (1959) 102 CLR 482 . No doubt the assumption is correct; but for the next step there is, I think, no warrant. In its ordinary meaning "disease" is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness. The second ground treats the word "employment" in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition. (at p633)
5. Moffitt J., in whose judgment Sugerman J. agreed, construed "disease" as including mental disease, and accepted as the basis of his judgment a statement of the judge of first instance to the effect that each delusion generated by the mental disease from which the respondent suffered constituted a deterioration of that disease. His Honour amplified the statement by saying that the disease deteriorated in that symptoms which immediately befor the incident of 1st December 1960 the respondent either did not have or did not have to the same degree appeared after the incident, and had such an effect on her that her condition of health became worse so that she could not work. Since there was undoubtedly evidence to justify a finding that the incident was a contributing factor to the arising of the new delusion, it followed that in his Honour's view the finding should not be disturbed that the employment was a contributing factor to a deterioration of the disease. (at p633)
6. Before this Court the contention has been put again which was put to the Supreme Court, that the evidence did not support a finding that the delusion causing the respondent's incapacity for work was anything more than an effect, or a symptom, or a manifestation of the underlying mental disease. It was said that the only permissible conclusion on the evidence of the expert witnesses was that the disease itself, as distinguished from the particular delusions to which it gave rise from time to time, was not made any worse by the incident of 1st December 1960, and that therefore the definition of "injury" is not satisfied in this case. The argument took it for granted that the collection of substantives in the definition - aggravation, acceleration, exacerbation, deterioration - could be rolled into one so that the question for decision could satisfactorily be rendered: whether it was open to the Commission on the evidence to find that the development of the respondent's new delusion as a result of the incident of 1st December 1960 was a worsening of the disease from which she suffered or was only a new manifestation of a disease which itself was not worsened. But fallacy lurks in paraphrase. To ask whether the disease became worse or merely issued in the new delusion while itself being no worse is to invite a discussion upon which a court could not properly pronounce unless guided for the whole distance by expert evidence, that is to say a discussion as to whether the nature of the relevant kind of mental disease is such that a distinction may legitimately be drawn between the disease, as an underlying general condition, and the particular delusions stemming from it under the influence of particular occurrences or circumstances. (at p634)
7. To pursue that discussion, however, seems to me to risk distraction from the real point of the case. The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse. Moffitt J. placed at least some of his emphasis upon the word "exacerbation", and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J. was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder. (at p635)
8. In my opinion the conclusion reached by the majority of the Supreme Court is correct, and the appeal should be dismissed. (at p635)
TAYLOR J. I agree that the appeal should be dismissed for the reasons given by Kitto J. I desire, however, to add some observations concerning a question which was raised during the hearing of this appeal. Upon the argument in this Court the question was raised whether the respondent might be entitled to compensation in respect of her incapacity upon a basis other than that upon which it was sought in the Supreme Court, and in this Court, to hold the award which she had obtained, i.e. on the basis that she might well be entitled to compensation for incapacity produced or contributed to by physical injury which occurred on 1st December 1960. Apparently in the Workers' Compensation Commission it was thought that that tribunal was precluded by the decision in Amalgamated Wireless (A/sia.) Ltd. v. Philpott [1961] HCA 31; (1961) 110 CLR 617 from considering the case on this basis, but in that case the claim which was made was one which, if it was to succeed, was supportable only by reference to the definition of "injury" contained in par. (b) of the definition of that term. In the present case, however, there was evidence of a physical injury to the respondent and there was evidence capable of supporting the inference that it had resulted in incapacity (see Eaves v. Blaenclydach Colliery Co. Ltd. (1909) 2 KB 73 ). In these circumstances it would have been open to the Commission to consider whether or not the respondent's present incapacity was, in fact, caused or contributed to in any material sense by such a physical injury (see Harwood v. Wyken Colliery Co. (1913) 2 KB 158 and Salisbury v. Australian Iron and Steel Ltd. (1943) 44 SR (NSW) 157; 61 WN 87 ). (at p635)
WINDEYER J. The dualism of Cartesian philosophy, its inveterate distinction between mind and matter, continues to influence our ideas of illness and disease. The evidence in this case shows that the respondent, who was the applicant before the Workers' Compensation Commission (and whom I shall call the applicant), was suffering from a disorder of the mind which the medical witnesses considered to be functional not organic. Let it be assumed that, in the present state of our knowledge of these things, this disorder is to be considered as purely psychogenic, it is none the less properly called a disease within the meaning of that word in the New South Wales Workers' Compensation Act. If we knew more of the inter-relation of body and of mind it may be that the irrational beliefs and irregular behaviour which are the marks of madness or near madness would in every case be seen as associated with some derangement of the mechanisms or the metabolism of the body - I have said associated with, rather than caused by, because the relationship may not be that of cause and effect. However that may be, there is nothing unusual in describing the applicant's affliction as a disease. That that use of the word is not novel appears from the statement of the Doctor of Physic about Lady Macbeth, "This disease is beyond my practice" and from Macbeth's question, "Canst thou not minister to a mind diseased?". (at p636)
2. The applicant succeeded before the Workers' Compensation Commission, and on appeal to the Supreme Court, on the ground that there had been, as a result of her employment, an aggravation or exacerbation of her disease. Her employer now appeals to this Court. The argument for the appellant was attractively presented; but it seemed to me to depend ultimately upon ideas that I think are erroneous. As I understood what was said, it was that in the case of a mental disease, functional and not organic in character, the disease is to be regarded as something apart from, and as it were producing, its manifestations. An analogy was suggested with a specifically organic disease, for example one of an infective character, and its symptoms. But even in relation to purely somatic disorders, identifiable as resulting from the derangement or degeneration of some organ, the assumed absolute distinction between the pathological condition, the disease, and its regularly occurring signs and symptoms may, it seems to me, be in some cases of doubtful validity. To regard bodily symptoms as always the product of an ailment, rather than of its essence, may be to treat concomitance as consequence. Some physicians might see the matter in one way; some in another. It seems to me to depend upon concepts of philosophy as much as on medical knowledge. A rigid separation of a disease from its symptoms is difficult in the field of psychosomatic and neurological ailments. In the field of purely functional mental disorders I think it is impossible. What was urged for the appellant was that the irrational actions, hallucinations and delusions of a person afflicted in mind as the applicant was are but the symptoms of an underlying deep-seated disease of the mind: and that one cannot say that the disease itself has worsened merely because changes occur in, for example, the nature of a delusion or in the objects upon which a fixed idea is focussed. That I shall assume to be so. But to go from the idea that irrational beliefs and behaviour betoken an underlying disorder of the mind to thinking of the mind as an entity, a disorder of which may manifest itself in symptoms that are apart from rather than a part of the disease itself, seems to me a mistakenly simple view of a complex phenomenon. As I cannot conceive of the mind apart from its functioning, I cannot conceive of it as being disordered or diseased apart from its manifestly disordered functioning. I therefore find it impossible to conceive of the malady as distinct from its manifestations. They are, it seems to me, of its essence. That view may be the result of the limitations of my knowledge. I am not equipped to consider questions of that kind. Nevertheless the view that I take accords, I think, with the manner in which, for the purposes of classification, mental disorders are commonly described and given what one of the witnesses in this case called "a diagnostic label". Classification of functional abnormalities of mind appears to be based largely on the manner of their manifestations, in emotional states, irrationalities, delusions, and aberrations in behaviour. That, at all events, is the conclusion that I draw from what the two psychiatrists said in this case. The applicant was said to be suffering from schizophrenia. Doctor Ellard described this form of mental disorder in terms of a syndrome. So far as the evidence showed, it could not be described otherwise. (at p637)
3. The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it. (at p637)
4. The opinions that I have expressed above agree, more or less, with those expressed by Sugerman and Moffitt JJ. in the Supreme Court, and in a general way with those of Judge Wall in the Workers' Compensation Commission. (at p638)
5. The definition of "injury" in the Workers' Compensation Act, 1926-1960
(N.S.W.) in its present form was introduced into the Act
by the amending Act
No. 30 of 1960, which was designed to enlarge its scope, its limitations
having been then recently made apparent
by the decision of this Court in
Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR
482
. Some of the difficulties
that it creates were referred to in the
judgment of this Court in Amalgamated Wireless
(A/sia.) Ltd. v.
Philpott
[1961] HCA 31; (1961) 110 CLR 617
. But they do not affect this case. Here the application
was put on the basis that the
employment was a contributing
factor to the
aggravation, acceleration, exacerbation or deterioration of a disease. I turn
therefore
to the evidence as it relates
to the following
questions, formulated
having regard to the terms used in the Act -
(a) Was the applicant suffering from a disease?
(b) If so, was there an aggravation, acceleration,
exacerbation or deterioration of it?
(c) If so, was her employment a contributing factor?
(d) If so, did a total or partial incapacity for work result from
such aggravation, acceleration, exacerbation or
deterioration? (at p638)
6. If there was evidence which would enable these questions to be answered in
the affirmative, the appeal should be dismissed. I
have set them out
separately for, as a lawyer must regard the statute, they arise for separate
consideration. A psychiatrist would
probably regard them, although logically
distinct, as psychologically involved one with another. (at p638)
7. As to the first question. I have already said that a functional mental disorder can be a disease within the meaning of the Act. What degree of abnormality of behaviour, beliefs and feelings demonstrates a morbid condition of the mind is no doubt primarily a medical question. Here the principal medical witnesses were agreed that for some years before 1960 the applicant was suffering from a mental illness. Judge Wall, having heard the witnesses, said in his judgment that he preferred the opinion of Doctor Ellard, who was called for the respondent, to that of Doctor Greenberg, called for the applicant. He said: "The applicant's medical witnesses feel that she is suffering from a neurasthenia whilst the respondent's expert is of the opinion that she suffers from a psychosis. In this regard I feel that the respondent's evidence is to be preferred because the evidence of the applicant's expert Doctor Greenberg was not illuminated by some significant prior history, particularly that relating to the applicant's admission to an institution in 1954". In these remarks his Honour seems to have been under some misapprehension. The two psychiatrists who gave evidence, Doctor Greenberg and Doctor Ellard, seem to me to have been in substantial agreement on most matters of importance, although in explaining their opinions, within the limits that the processes of examination and cross-examination allowed them, they used somewhat differing language. And Doctor Greenberg was not in fact ignorant of, nor in giving his opinion did he overlook, what he called "the acute mental illness" and "the acute psychotic illness" which had led to the applicant being an inmate of Callan Park Mental Hospital for some months in 1954. Moreover, although one of the medical witnesses called for the applicant described her as "neurotic", I have not noticed that Doctor Greenberg used the word "neurasthenia". Whether on ultimate analysis there is a valid and clear-cut scientific distinction between a person who is neurotic and one who is psychotic I do not pretend to know. I assume the difference in meaning between the two words lies principally in the patient's understanding of and attitude to his environment - the psychotic person living to a greater or lesser extent in an unreal world of fantasies, the neurotic person not being removed in his mind from the real world, but being unduly troubled in adjusting himself to it. But I can see no need for the Court to put a label upon the applicant's illness, or to be concerned because witnesses labelled it differently. (at p639)
8. The applicant recovered from the acute phase or episode of her illness in 1954 and resumed her activities. But according to the medical evidence her illness remained with her, latent it seems, although manifesting itself in hypochondriasis and capable of being precipitated so as to exhibit itself in a more serious form. (at p639)
9. The next question then is, was there in December 1960 "an aggravation, acceleration, exacerbation or deterioration" of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word "acceleration" probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. If the word "accelerated" stood alone, I would be inclined to agree with the view that Else-Mitchell J. took in his judgment in this case, and think that it was only to such progressive diseases that the relevant part of the definition of "injury" in the Act could apply. But the word does not stand alone; and I think, with respect, that the application of par. (b) of the definition cannot be confined as he suggested. Schizophrenia is according to the evidence progressive in that it produces delusions which may tend to become chronic. But in the present case the words "aggravation" or "exacerbation" are more apt than "acceleration" to describe the matters on which the case for the applicant depends. (at p640)
10. The essential facts may be summarized. On 1st December 1960 the applicant apparently hurt herself in some minor way while at work - or thought that she did - and thereafter she, for no ascertainable reason, suffered pain in her right side. This pain is, without doubt, delusional. It is, however, intensely real to her. She is persuaded, irrationally but none the less really, that there is something wrong with or in her right side - that the pain or discomfort, or "soreness" or "nastiness" as she calls it, which she for no objectively discernible reason feels, is caused by some physical thing that is "wrong" inside her. At times she is persuaded that she can actually feel with her hands something in her side that is the source of her discomfort. She gave evidence at the hearing ; and her pathetically irrational statements in the box revealed the delusions under which she laboured and also her withdrawal from reality and her inability to see that her fantasies were the creatures of her own disordered thoughts. She said at one point : "The pain is not so much, but there's a nastiness. The thing that does not belong to me in there is annoying". Asked "what do you say causes this pain in your side ?", she said "something must be out of place". At another time she said, "It's always loose". There was much more of a like pitiable kind. As a result of these delusions she firmly believes it is impossible for her to work. And because she is persuaded that she cannot go to work, in fact she cannot. That is undisputed. She was at the time of the hearing able to do some housework ; but what she could do was severely restricted by her delusions. Her state of incapacity and maladjustment was said by one of the medical witnesses to be "part of her total illness". None of the witnesses was asked directly for his opinion whether her disease had become worse or been aggravated. Doctor Greenberg, however, discounting the idea that a physical injury was the cause of her mental condition, said in a report that was tendered : "At the most it can be said that the incident at work in December 1960 aggravated a pre-existing condition". Doctor Ellard spoke of people having "acute flare-ups of schizophrenia". The "flare-up" from which she suffered in 1954 (an "acute paranoid psychosis" it was called), which had apparently been precipitated then by domestic discord, anxiety and homesickness, having subsided, what occurred in 1960 was described by Doctor Greenberg as "a new episode". Her condition thereafter he described as less acute but more chronic than, from what he was told, he considered it had been during the brief episode in 1954. It seems to me that there was in all this definite evidence of a deterioration in her mental condition after December 1960. The degree of maladjustment to her environment had become greater. "The basic illness" was, to use Doctor Ellard's words, "unchanged". She was still a schizophrenic. But her irrational beliefs were continuously disturbing her, and were incapacitating her to a much greater extent than formerly. Apparently they had become a fixed idea and were persistent. Her disordered state had seemingly become chronic. In short, judged by comparison with the attitudes and capacities of a normal person she had become more abnormal. (at p641)
11. I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment ? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way : it was a cause of her condition only in the sense that it acted as a precipitant. That may be true : nevertheless, Doctor Ellard agreed that "something obviously happened in December to her to cause a change in her way of life". (at p642)
12. The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor ? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later : that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so. (at p642)
13. The last question is, Did a total or partial incapacity for work result from the aggravation or deterioration of her condition ? There is no doubt that, aggravation, exacerbation or deterioration having been found to have occurred, incapacity resulted. (at p642)
14. For these reasons, and without endorsing everything that was said in the Supreme Court, I think that the appeal should be dismissed. (at p642)
15. But there is a further matter to which I should refer. During the hearing of the appeal in this Court an alternative approach to the case was suggested. This was that on 1st July 1960 the applicant sustained a physical injury and that, using the words of s. 9 of the Act, her "incapacity for work results from the injury". It has, of course, been common in workers' compensation cases to treat as an incapacity resulting from a physical injury the total disability that follows from it whether it be attributable only to the anatomical damage or to associated psychological and neurasthenic factors. The applicant's case might therefore have been put as follows. A minor bodily injury suffered by the applicant, a person of unstable mentality, had serious psychological consequences ; and thus it resulted in incapacity for work. So put, the case would not depend upon the statutory provisions concerning disease but on the general word "injury". (at p642)
16. But the questions are questions of fact whichever way the matter be regarded. The difference lies in the emphasis of one factor rather than another among the multiple causes of an incapacity. One factor answers to one part of the statutory definition of injury, the other to another. To a psychiatrist, the physical injury naturally appears as secondary or auxiliary to the pre-existing mental state in the production of the ultimate consequence. To adopt a phrase used by Jordan C.J., it would be "the catalyst which precipitates disability in a medium of disease": Salisbury v. Australian Iron & Steel Ltd (1943) 44 SR (NSW), at p 162 ; 61 WN, at p 91 . Law when concerned with fixing responsibility upon persons often seeks for the "effective cause" or the "proximate cause" of an event. But here all that the statute requires is "a contributing factor". The condition of the applicant could be regarded as the morbid psychological consequence of a small physical hurt or as an aggravation, exacerbation or deterioration of a morbid psychological state resulting from a small physical hurt. Either way was open. That taken was the one to which the evidence of the medical witnesses was, understandably and I venture to think correctly, directed. (at p643)
17. I would dismiss the appeal. (at p643)
OWEN J. For the reasons given by Kitto J. I agree that the appeal should be dismissed. (at p643)
ORDER
Appeal dismissed with costs.
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