Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19 (27 April 1967)

HIGH COURT OF AUSTRALIA

DARLING ISLAND STEVEDORING AND LIGHTERAGE CO. LTD. v. HANKINSON [1967] HCA 10; (1967) 117 CLR 19

Workers' Compensation

High Court of Australia
Barwick C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Owen(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - "Injury" - Undetected non-symptomatic pre-existing disease - Collapse of diseased vertebrae upon exertion at employment - Incapacity - Untreated, pre-existing disease would have caused similar incapacity - Compensable period - Workers' Compensation Act, 1926 (N.S.W.), as amended, s. 6 (1).*

HEARING

Sydney, 1967, March 22, 23; April, 27. 27:4:1967
APPEAL from the Supreme Court of New South Wales.

DECISION

April 27.
The following written judgments were delivered:-
BARWICK C.J. The appellant employer appeals against a decision of the Commissioner of the Workers' Compensation Commission of that State was entitled upon the evidence before him to make an award of compensation to the respondent worker without setting any terminal date to its operation. (at p21)

2. The respondent was employed by the appellant as a wharf labourer on 3rd September 1964 when, whilst lifting a bale of paper with a hook held in his hand, he felt a sharp pain between his shoulder blades. He received some medical attention and continued working during that day. From then on he did not work because unable to do so. By 21st September he was paralysed and unable to walk. (at p21)

3. Medical examination established to the learned Commissioner's satisfaction that, although himself unaware of it, the respondent prior to and on 3rd September was suffering from a staphylococcal infection of portion of his spine which had so far advanced that the bodies of two of his vertebrae were honeycombed and so weakened that they were ready to collapse upon even so slight an exertion as bending down to tie a shoe lace. The respondent's effort in lifting the bale of paper had in fact caused them to collapse. By that event the respondent was incapacitated for work. (at p21)

4. But the collapse of these diseased vertebrae had sequelae though their precise nature and course are not very fully disclosed in the medical evidence. It would seem that the collapse of the vertebrae caused a rupture of a containing membrane, thus allowing the spread of the infection which in turn led to a blockage in the spine, a consequence which brought on a paraplegic condition paralysing the respondent. But, whatever the full medical explanation, the causal relationship between the collapse of the vertebrae and the end result of paralysis was, in my opinion, sufficiently evidenced by a series of questions which ended with one put by the Commissioner and answered as follows:

"His Honour: Q. In other words, I suppose that means,
that was the collapse of the vertebrae one of the contributing
conditions to the complex from which infection could have
affected the spinal cord, is that so? A. Yes, I think this is
so."

The Commissioner accepted this evidence. In his reasons for judgment he said:

"There can be no doubt that the consensus of opinion is
that the applicant's condition resulted from infection, and
that the infection itself was dissociated from the course of the
applicant's employment. Nor could there be, it seems to me,
any doubt, upon the consensus of opinion, that this infection
would in the ordinary course have continued and extended
with increasingly incapacitating symptoms until it was
diagnosed and treated successfully." (at p22)

5. He found that:

". . .
(b) the applicant on 3rd September 1964 suffered an
aggravation,
acceleration, exacerbation and deterioration of a
pre-existing disease, an infection of the dorsal spine;
(c) the applicant was totally incapacitated thereby from
3rd September 1964 to date and continuing"

and made a continuing award on the basis of total incapacity at a specified weekly sum commencing on 3rd September, the date of the collapse of the vertebrae. (at p22)

6. The appellant employer appealed to the Supreme Court on two principal grounds, first that there was no evidence before the Commission on which it could find that the respondent's incapacity resulted from any aggravation, acceleration, exacerbation or deterioration of his pre-existing non-employment disease and, second, that, in any case, the only incapacity which could be regarded as having resulted from any aggravation, acceleration, exacerbation or deterioration of the infection of the spine, was of limited duration, that is to say, was limited to that period which would elapse between the date of the collapse of the vertebrae and that time at which in any event the disease of its own course would have caused incapacity. The Supreme Court dismissed the appeal. The appellant now relies upon the same grounds in its appeal to this Court. (at p22)

7. The evidence given before the Commissioner is in a small compass and has been fully canvassed in argument. The Commissioner preferred the opinion of the medical witness called by the respondent as to the relationship of the work performed by the respondent on 3rd September to the progress of the disease of which the respondent was then suffering. Part of that opinion was summed up in the question and answer which I have quoted. The relationship of the work to the collapse of the vertebrae was expressed by that witness as follows:

"In my opinion the lifting strain caused the collapse of the
diseased vertebral bodies, and something dramatic happened;
. . . ." (at p23)

8. As to the appellant's first ground, it is sufficient, in my opinion, to point to that evidence as enough to warrant the conclusion that the work done by the respondent on that day was causally related to the ultimate paraplegic condition. (at p23)

9. As to the second ground, it might be sufficient to observe that the evidence does not support the view that come what may the infection of the respondent's spine would have resulted rather sooner than later in paraplegia and total incapacity. Even if upon a proper understanding of the evidence that infection had reached such a stage on 3rd September that it was beyond arrest by the use of antibiotics, there remained on the evidence the possibility of operative treatment or, at the lowest, that possibility was not clearly negatived by the evidence. In this connexion the precise form of the passage which I have quoted from the Commissioner's reasons for judgment should be observed. There was therefore on any view of the relevant law no evidence upon which the time could be established at which total incapacity would have occurred due to the progress of the infection alone. (at p23)

10. But, having regard to the discussion of the case which has taken place in the judgments of the Supreme Court and in the arguments before this Court, I would prefer to dispose of the case on more fundamental ground. (at p23)

11. At the outset, I would wish to say that I do not think that the facts of the matter were rightly analysed as establishing an injury by aggravation, acceleration, exacerbation or deterioration of a pre-existing disease rather than an injury in the unextended sense of the statutory definition which itself led to incapacity. Regarded as the latter, the case presents no problem. Quite clearly, the circumstance that the injury would not have occurred but for the diseased state of the vertebrae or that its results were more extensive because of that condition would be irrelevant once incapacity was causally related to the injury. For my part, I am of opinion that the facts did establish such an injury and did not establish an injury by aggravation, acceleration, exacerbation or deterioration of an existing disease. (at p24)

12. But the Commissioner did not so analyse the situation and made the findings of fact to which I have referred. It seems to me therefore that three questions are thus raised. First, are such findings really compatible with the facts proved so as to be supportable by the evidence. Second, if so, do such findings warrant the award made by the Commissioner. Third, if such findings are not borne out by the evidence, is this Court entitled to analyse the facts in the manner I have expressed, and on the footing of that analysis support the award. (at p24)

13. As I have formed the clear opinion that on the basis of the Commission's actual findings its award would have been rightly made, I will first indicate my reasons for such an opinion. Thereafter I shall briefly deal with the first and third questions. (at p24)

14. The submission of the appellant is that where the injury of the worker consists of the acceleration of a pre-existing disease not caused by working in the employment, the compensable incapacity is that which results from the acceleration alone; that is to say, that if that disease, unaccelerated by work in the employment, would have at some time caused the incapacity, its acceleration can only relevantly cause that incapacity for the period which elapses between the onset of incapacity and the time at which that incapacity would in any case have occurred. The principal support for this argument is found by the appellant in the judgment of my brother Windeyer in McLaughlin & Co. Pty. Ltd. v. Brinnand Unreported (High Court 28th May 1965) - noted, 39 A.L.J.R. 77. . In a general statement of the relevant law, there occurs in my brother's judgment the following passage: "The effect of the Workers' Compensation Act (N.S.W.) since it was amended in 1960 is in my opinion as follows. If, without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering, then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease, his incapacity cannot be said to result from aggravation, acceleration or exacerbation. If, on the other hand, a worker's disease is so aggravated by his employment that it causes an incapacity when without such aggravation he would have suffered no incapacity from the disease, then he is entitled to compensation. And if the effect of the aggravation is to cause a greater degree of incapacity than the disease unaggravated would have done - as, for example, if what would otherwise have been a partial or intermittent incapacity becomes a total or permanent incapacity - he is entitled to compensation for the incapacity actually occurring, for it is the result of the aggravation of his pre-existing condition; and it is immaterial that unaggravated he might still have been to some lesser degree incapacitated. If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say, it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it. It may be that these considerations are artificial in relation to fundamental ideas of medical science. Their application may present special difficulties in connexion with diseases of uncertain aetiology. But it seems to me that the language of the Act forces them upon us. Bearing them in mind, I have reached the conclusion that there was no evidence to support the award in this case of continuing compensation from 1st December 1961." (at p25)

15. What I have earlier said as to the immateriality in the case of injury in the unextended sense of the definition of pre-existing weakness, disease or pre-disposition and of the extent or timetable of the resultant incapacity due to the same is fully documented in the cases and I have no need to discuss them. A sufficient reference is Sir Frederick Jordan's illuminating judgment in Salisbury v. Australian Iron and Steel Ltd. (1943) 44 SR (NSW) 157 , a judgment with the legal reasoning and conclusions of which I respectfully agree. That immateriality stems from basic concepts of workers' compensation. These are referred to, for example, in Williams v. Metropolitan Coal Co. Ltd. [1948] HCA 8; (1948) 76 CLR 431 , as well as in Salisbury v. Australian Iron and Steel Ltd. (1). See also Ward v. Corrimal-Balgownie Collieries Ltd. [1938] HCA 70; (1938) 61 CLR 120 , per Latham C. J. (1938) 61 CLR, at pp 130-132 . The relevant question in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained. Thus cases such as Watts v. Rake (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164 , in so far as they deal with the possible effect of a pre-existing condition upon the amount of an award of damages in such an action, are not in point in connexion with a claim under the Workers' Compensation Act. (at p26)

16. If the resulting incapacity is temporary, and has ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity, leaving the parties, if need be, to litigate subsequently the time at which incapacity ceased: or the award may simply be made without limitation as to time, the respondent to it being able to bring its operation to an end by establishing the loss of the incapacity. But the question in either case is whether the injury had ceased to cause incapacity. (at p26)

17. Section 6 of the Workers' Compensation Act now includes the aggravation, acceleration, exacerbation or deterioration of a disease within "injury" as defined. The words in this collocation may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease. In my opinion, the expression "acceleration of the disease" cannot be treated as connoting no more than the approximation of the incapacitating effect of the disease. In my opinion, the expression refers to the acceleration of the progress of the disease itself. No doubt in this sense it at least overlaps the significance of the expression "aggravation of the disease" but is none the less distinct from it. I can conceive that a disease may increase the tempo of its progression and thereby produce a result of a kind which a lesser progression may not have produced at all: or it may thereby produce a more extensive result, or it may produce sooner the same result as that which without the acceleration of its progression the disease might have produced; nor do these instances exhaust the possibilities. (at p26)

18. The Commission in the present case took the course of finding all these descriptions as the consequence of the work. If the injury to the respondent were to be regarded as an injury within the extension of the statutory definition, it would seem to me that the right description of it would be an acceleration or perhaps aggravation of the pre-existing infection. An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s. 9 of the Act. The question is whether because of the nature of such an injury, the basic principles to which I have referred in connexion with other injuries must be in some fashion modified or qualified. If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury ? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease. (at p27)

19. I appreciate that the injury is described in the section as the acceleration of the disease and not as the accelerated disease. But to cover the cases the legislature evidently desired to embrace, in my opinion, the only proper description of the relevant injury would be "the acceleration of the disease". When seeking to ascertain the result of the injury - the acceleration of the disease - I am unable myself to abstract the acceleration as if it were a causative entity apart from the disease in its accelerated state. Here, analysing the facts as did the Commissioner, the work accelerated the progress of the spinal infection. Incapacity resulted. It resulted from the then - accelerated - condition of the infection. That incapacity was permanent - it was not temporary. In my respectful opinion, it is not permissible so to isolate the acceleration of the disease as to attribute a part only of that permanent incapacity to the acceleration. (at p27)

20. In my opinion, where the acceleration is the injury if incapacity results, the entitlement to compensation is identical with that which would flow from the like incapacity resulting from any other kind of injury. In my respectful opinion, the conclusions which Sir Frederick Jordan expresses in Salisbury's Case (1943) 44 SR (NSW) 157 are as applicable to the case where the injury is merely the aggravation, acceleration, exacerbation or deterioration of a pre-existing non-employment disease as they are to the case of any other injury. I would respectfully agree with Sir Frederick Jordan when, as I read his judgment in Salisbury's Case (1), he supports the decision of the Court of Appeal in Old v. Furness, Withy & Co. (1934) 27 BWCC 266 only on the footing that the incapacity caused by the accident had ceased and come to an end before the date on which an award of compensation had been made. On any other view, in my opinion, that case ought not to be followed in connexion with the Workers' Compensation Act. Whilst in agreement will other parts thereof, I am unable, with very great respect, to agree with the statement in the judgment in McLaughlin & Co. Pty. Ltd. v. Brinnand Unreported (High Court 28th May 1965) - noted, 39 A.L.J.R. 77. , which I have quoted, that: "If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say, it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it." Therefore, though the facts of this case are said to bear the interpretation which the Commissioner has placed upon them, I am of opinion that his award would have been rightly made. (at p28)

21. However, in my opinion, the evidence in the case does not support the view that the injury to the respondent was an aggravation, acceleration, exacerbation or deterioration of a disease. As I have already indicated that acceleration, in my opinion, on the facts was a consequence of the injury but not the injury itself. (at p28)

22. That leaves the third of the questions which I posed for myself earlier. Can the Court give effect to the only view of the facts which I think they bear, namely, that there was an injury within the unextended meaning of the definition causing incapacity both immediately and mediately through the acceleration of the disease. In my opinion, it can. The basic facts are found by the Commissioner and there is no need for this Court, in order to give effect to the interpretation of them to which I have referred, itself to find any fact. The Court is in such a case able to refer the facts to the appropriate category of injury, particularly where the question is whether there is any evidence to support the making of an award. (at p28)

23. In my opinion, therefore, the appeal should be dismissed on the ground that though the respondent did not receive an injury, being the aggravation, acceleration, exacerbation or deterioration of a disease, he did receive an injury, namely, the collapse of the vertebrae of his spine, which caused total and permanent incapacity. (at p28)

KITTO J. I have had an opportunity of reading the judgments to be delivered by Taylor and Owen JJ. I agree that for the reasons their Honours express the appeal should be dismissed. (at p28)

TAYLOR J. On 15th July 1965 the respondent made an application for compensation pursuant to the Workers' Compensation Act, 1926 (N.S.W.), as amended, in respect of an injury to his spine "causing compression of the spinal cord in the thoracic region resulting in paraplegia". In the result the Workers' Compensation Commission found:

(1) that the applicant on 3rd September 1964 suffered an
aggravation, acceleration, exacerbation and deterioration of a
pre-existing disease, an infection of the dorsal spine; and
(2) that the applicant was totally incapacitated thereby
from 3rd September 1964 to date and continuing

and, accordingly, made an award in his favour for weekly payments of compensation. (at p29)

2. Briefly the evidence showed that, prior to 3rd September 1964, the respondent was suffering from an advanced infective condition of the spine in the mid-thoracic region which, if left untreated, would have resulted in the collapse of vertebral bodies in the region and, eventually, total incapacity. The fact that he was in this condition was unknown to him, it had not been diagnosed, and, it seems, it was a sequel to a chest infection from which he had previously suffered and from the effects of which it was thought that he had recovered. However, on 3rd September 1964, whilst in the course of performing heavy lifting work, he experienced severe pain in his back and this, it was common ground, was caused by the collapse of his 6th and 7th thoracic vertebrae. One of the medical witnesses, Dr. Paul - and I quote from the reasons of the learned judge - "was of the opinion that at the moment at which the applicant felt pain about his shoulder blades after lifting the bale of paper, was the moment at which there probably was some physical event of a dramatic nature, possibly the collapse of a diseased vertebral body at T6-7 level, and that there was little doubt that the precipitating feature for this dramatic event was the lifting strain in which the applicant was engaged whilst handling the bale of paper. He stated that he was of the view that spread of infection followed this event and finally caused the pressure on the spinal cord, which caused, in turn, paralysis." The other medical witnesses were of the opinion that the collapse of the vertebral bodies was spontaneous and was not related in any way to any incident of his employment. However, all three agreed that if the respondent's condition had remained undetected and untreated the collapse of his vertebrae as the result of disease would soon have followed. (at p29)

3. On the hearing of the appeal argument was mainly focused upon sub-s. (b) of s. 6 (1) of the Act. Sub-section (1) of s. 6, which was a modification of the pre-existing sub-section, was introduced into the Act following the decision in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 , and it is as follows:

"6. (1) 'Injury' means personal injury arising out of
or in the course of employment, and includes -
(a) 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; and
(b) the aggravation, acceleration, exacerbation or deterioration
of any disease, where the employment was a contributing
factor to such aggravation, acceleration, exacerbation, or
deterioration;
but does not, save in the case of a worker employed in or
about a mine to which the Coal Mines Regulation Act, 1912,
as amended by subsequent Acts, applies, include a disease
caused by silica dust, or the aggravation, acceleration,
exacerbation or deterioration of a disease caused by silica
dust." (at p30)

4. Apparently the Workers' Compensation Commission thought - as Sugerman J. in the Full Court also thought - that observations made in Hussey's Case (1) meant that the respondent's claim should be decided "by reference to par. (b) of the definition" and "not on the footing of an injury falling within the opening words of the definition". Accordingly, the immediate finding was that the applicant had on the relevant date suffered an aggravation, acceleration, exacerbation and deterioration of his pre-existing disease, an infection of the dorsal spine. (at p30)

5. But the respondent's claim was not for incapacity produced by an injury constituted merely by an aggravation, acceleration, exacerbation or deterioration of his pre-existing disease. Nor was it a claim for incapacity resulting from an injury in the nature of a disease which was contracted by him in the course of his employment and to which the employment was a contributing factor; on the contrary, it was a claim based upon incapacity resulting from personal injury of a physical nature. In holding that it had been established that it was not mere coincidence that acute symptoms occurred first in the performance of the respondent's work and that his employment had brought about the collapse of diseased vertebral bodies the Commission accepted the evidence of Dr. Paul which was plainly to the effect that the collapse of the two vertebrae was caused by the physical effort involved in the work which he was doing at the time. To my mind this was not the mere aggravation, acceleration, exacerbation or deterioration of an existing disease; it was a personal injury of a physical nature notwithstanding that the respondent was suffering from a disease which made it probable that if the injury had not occurred and the disease had run its course, undetected and untreated, a like condition would, at some time or other, have been produced. (at p31)

6. The form of the definition has altered since Hussey's Case [1959] HCA 55; (1959) 102 CLR 482 and I do not find anything in that case which would deny compensation to a worker, or his dependants, who, though debilitated by disease and, consequently, in some respects more injury prone, suffers a personal injury resulting in death or incapacity for work. And if either event occurs as the result of the injury it is nothing to the point to say that the inevitable progress of the disease would sooner or later have resulted in incapacity or death. This, of course, is not the case here for the evidence is not that the disease from which the respondent suffered would inevitably incapacitate him if he had not suffered the injury; that result, it was said, would have followed only if his disease had remained undetected and, therefore, not treated surgically or otherwise before the final collapse. (at p31)

7. In any event, however, even if the respondent's rights fell to be determined exclusively by reference to sub-s. (6) (1) (b) I would be satisfied that the appeal should be dismissed. Whilst I agree that compensation in respect of incapacity resulting solely from the aggravation of an existing disease must be limited to the incapacity produced by the aggravation it by no means follows that the aggravation of a disease may not, itself, cause permanent incapacity. This could be said to have been the position in the present case for, if what happened on 3rd September 1964 was no more than an aggravation of the respondent's disease, it was the aggravation of that disease which directly resulted in the respondent's incapacity on and after that date. In that case, again, it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease. (at p31)

8. I add that I am satisfied that the finding of the Workers' Compensation Commission was clearly justified upon the evidence and that it was tantamount to a finding that the respondent had suffered personal injury of a physical kind and that this injury resulted in his continuing disability. (at p31)

9. In my opinion the appeal should be dismissed. (at p31)

MENZIES J. In a case where the only "injury" received by a worker arising out of, or in the course of, his employment is the acceleration of an existing disease which would itself in time bring about incapacity for work, it is, I think, a real question whether any award which is made in favour of such a worker should not be limited to incapacity for work resulting from the acceleration of the disease - that is, incapacity during a period between the time when the disease itself, by its natural progress, would have brought about incapacity and the time when incapacity did in fact occur by reason of the "injury". It might be thought that common sense would require an affirmative answer to this question, but it is well to keep in mind that there is no necessary connexion between common sense and the provisions of the workers' compensation legislation. (at p32)

2. The question to which I have referred is, however, not one which, as I see the matter, requires determination in this appeal. (at p32)

3. Here the learned judge constituting the Commission found that the respondent, who had been a waterside worker for years, while working on 3rd September 1964 and using his hook to move a four-hundredweight bale of paper on to a hand truck, received an injury consisting in the collapse of a diseased vertebral body which resulted in immediate incapacity for work and contributed to the paralysis which occurred on or about 21st September 1964 and is still continuing with resulting incapacity for work. The evidence which supports that finding was, I think, the following evidence given by Dr. Paul:

"Q. Is it as a result of collapse the nerves are involved and
paralysis occurs? A. Not directly.
Q. Tell his Honour what in your opinion was the process
here, having regard to the lifting episode on 3rd September
1964 and complaint of pain at the time and the subsequent
development of symptoms leading to paralysis within a period
of ten or twelve days afterwards. A. In my opinion the
lifting strain caused the collapse of the diseased vertebral
bodies, and something dramatic happened; there was pain at
this time. Then the spread of the infection following this
caused - the spread of the infection caused the pressure on
the spinal cord some ten days, two weeks, later.
Q. Does the injury play a part in the ultimate paralysis
in your opinion? A. -
His Honour: Q. In other words, I suppose that means,
that was the collapse of the vertebrae one of the contributing
conditions to the complex from which infection could have
affected the spinal cord, is that so? A. Yes, I think this
is so."

My reading of this evidence is that the paralysis was indirectly the result of the collapse because the collapse brought about a spread of infection which, in turn, caused pressure on the spinal cord resulting in paralysis. (at p33)

4. The collapse of one of the bodies of the vertebrae was "injury" in the ordinary sense without resort to the provisions of the Workers' Compensation Act (N.S.W.) introduced by Act No. 30 of 1960, s. 6 (1) (b), which brings within the definition of "injury" what is there described as "the aggravation, acceleration, exacerbation or deterioration of any disease" in circumstances where "the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration". See Workers' Compensation Act, s. 6. (at p33)

5. It is on this simple ground that, in my opinion, the appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales upholding the Commission's award should be dismissed. (at p33)

OWEN J. This is an appeal against an order of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal against an award of compensation made by the Workers' Compensation Commission in favour of the present respondent. (at p33)

2. On 3rd September 1964 the respondent was employed by the appellant as a wharf labourer and in the course of his employment was handling heavy packages of paper pulp. While lifting one such package he felt an acute pain in his back between his shoulder blades. Evidence was given by a Dr. Paul and accepted by the Commission that the pain was caused by the collapse of one or more vertebral bodies in his spine and that the precipitating cause of that collapse was the strain involved in lifting the package. It was common ground that during the following fortnight the respondent's condition grew progressively worse and that he finally became paralysed. It was ultimately discovered by the doctors who treated him that he had been suffering for some considerable time from an infection in his back which had partially destroyed some of the spinal structure and that as a result of the collapse of the weakened vertebrae on 3rd September 1964 the infection had spread. This in turn had affected the spinal cord and thus produced paralysis. The consensus of the medical opinion was that the infection would, unless his condition had been discovered and treated successfully, in the ordinary course of events have continued and extended and that this would ultimately have produced a collapse of the vertebrae and incapacity. (at p34)

3. Medical evidence led by the appellant was to the effect that the collapse of the vertebral bodies on 3rd September was spontaneous, resulting from the natural progression of the infection, and was unrelated to the work which the respondent was doing on that day. But the learned Commissioner - as I have said - preferred the opinion expressed by Dr. Paul. (at p34)

4. It seems to me to be plain that in these circumstances the respondent was entitled to the award which was made, namely a continuing award based upon total incapacity, since upon the evidence which was accepted he suffered personal injury arising out of or in the course of his employment, an injury which consisted of the collapse of the vertebral bodies due to the strain of lifting a heavy weight. It is not to the point, in my opinion, to say that the respondent's pre-existing condition predisposed him to such an injury or that unless diagnosed and treated in time, that condition would sooner or later have produced such a collapse and resultant incapacity. (at p34)

5. The learned Commissioner regarded the respondent's injury as one falling within the second limb of the definition of "injury" in s. 6 (1) of the Act. Accordingly he treated the case as being one in which there had been an aggravation or acceleration of a disease to which the respondent's employment was a contributing fact. Approaching the matter in this way he found that the strain of lifting the package of paper pulp on 3rd September 1964 had aggravated or accelerated a pre-existing diseased condition of the spine and that this aggravation or acceleration had contributed to what he described as the "final catastrophe" of paralysis. In these circumstances the Commissioner made a continuing award on the basis of total incapacity. (at p34)

6. I do not, however, understand why the learned Commissioner found it necessary to go to the extended meaning of the word "injury". The collapse of the vertebrae was as much an "injury" in the ordinary sense of the word as would have been the fracture of a bone in the respondent's leg, a bone which had been weakened or "honeycombed", as one doctor described it, by some infective process. But the fact that his Honour did apply the second limb of the definition does not, in the light of the evidence which he accepted, prevent the respondent from holding the award made in his favour. The important thing is that the Commissioner found the facts to be as I have stated them and on those facts the respondent was entitled to the award which was made unless it can be said that there was no evidence to support the findings. This was the first submission made to us on behalf of the appellant. It was said that the evidence was incapable of supporting the finding that the strain of lifting the heavy package had caused the collapse of the vertebral bodies. I am unable to agree. Dr. Paul's evidence was plainly capable of justifying the conclusion that the lifting strain had caused the vertebrae to collapse, that this in turn had caused the back infection to spread and resulted ultimately in the injury to the spinal cord and paralysis. (at p35)

7. It was further contended that a continuing award should not have been made because, it was said, the medical evidence, including that given by Dr. Paul, showed that quite apart from any employment injury the collapse of the vertebral bodies and the resulting incapacity would have occurred in any event within a short time after 3rd September 1964 unless of course the infection of the spine had been discovered and successfully treated, and that in these circumstances an award of compensation should only have been made for the period between 3rd September and the time when the natural progress of the infection would, unless arrested, have caused the vertebrae to collapse. I am unable to accept this proposition. It amounts to saying that the Commissioner should have found that after a short lapse of time the employment injury had ceased to produce disabling effects. But in the present case such a finding could not have been made. The employment injury was the collapse of the vertebrae and its incapacitating effects continued. All the medical witnesses were of opinion that it was that collapse that caused the infection to spread and that the paralysis resulted therefrom. The only difference of opinion was whether the strain of lifting a heavy weight operating upon a weakened spine had caused the collapse of the vertebrae, as Dr. Paul said, or whether, as the witnesses called by the appellant thought, the collapse was spontaneous and in no way related to the respondent's employment. (at p35)

8. I would dismiss the appeal. (at p35)

ORDER

Appeal dismissed with costs.