Union Carbide Australia Ltd v McCubbin [1968] HCA 40; (1968) 118 CLR 15 (25 June 1968)

HIGH COURT OF AUSTRALIA

UNION CARBIDE AUSTRALIA LTD. v. McCUBBIN [1968] HCA 40; (1968) 118 CLR 15

Workers' Compensation (N.S.W.)

High Court of Australia
McTiernan(1), Kitto(2), Taylor(3), Menzies(3) and Owen(4) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Injury - Worker suffering coronary occlusion whilst driving home from work - Collision with pole resulting in abdominal injuries - No claim that driving on journey contributed to occlusion - Death of worker - Finding that death due to occlusion and abdominal injuries - Evidence to support - Onus of proof that abdominal injuries a cause of death - Workers' Compensation Act, 1926 (N.S.W.), as amended, s. 6 (1) "injury", s. 8.

HEARING

Sydney, 1968, March 26, 27; June 25. 25:6:1968
APPEAL from the Supreme Court of New South Wales.

DECISION

June 25.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal from a decision of the Court of Appeal of the was evidence before the Workers' Compensation Commission in support of two findings of fact, essential to an award of compensation recovered by the respondent against the appellant. The first finding was that the worker in the case, who was then an employee of the appellant, received injury on an occasion within s. 7 (1) (b) of the Workers' Compensation Act, 1926 (N.S.W.), as amended. The definition of "injury" is in s. 6 (1967) 68 SR (NSW) 169; 87 WN (Pt 2) 1 . It includes the following paragraph:

"(b) the aggravation, acceleration, exacerbation or
deterioration
of any disease, where the employment was a
contributing factor to such aggravation, acceleration
exacerbation, or deterioration."

The second finding determined an issue which arose under s. 8. By this section, compensation is payable by the employer where the death of the worker "results from the injury" - that is, an injury to which s. 7 (1) (b) or some other relevant provision applies. The Commission found that the death of the worker in this case resulted from the injury to which the first finding refers. The Workers' Compensation Commission was constituted by Judge Ferrari, a member thereof, pursuant to s. 31 (6A). His Honour made a survey of all the evidence led before the Commission and his reasons for judgment contain also the conclusions of fact upon which the ultimate findings, now in question, depend. The appeal to the Court of Appeal was brought by the employer, the appellant in this Court, under s. 37 (4) (a) of the Act. Herron C.J., Sugerman J.A. and Jacobs J.A., who constituted the Court of Appeal, decided that there was evidence in support of each finding. Appeals under s. 37 (4) (a) are limited to questions of law. The only question raised by the appeal to the Court of Appeal was whether there was evidence sufficient to support the findings. Their Honours decided this question in the affirmative. They were unanimous. In the present appeal to this Court it is contended for the appellant that the decision was wrong. Their Honours in separate judgments analysed the evidence led before the Commission. They arrived at the conclusion that it was open to Judge Ferrari on the evidence before him to make both of the findings in issue in the appeal. (at p17)

2. The evidence included expert opinion evidence on the medical aspects of the case. There was a strong conflict of opinion among the medical witnesses whether certain severe abdominal injuries contributed to, or accelerated, the death of the worker. The question was complicated because when the worker received the injuries he was undergoing symptoms of the development of a coronary clot, resulting from atheroma of the vessel. The learned judge found that shock caused by the injuries, and shock caused by the development of the thrombosis, both contributed in a material degree to the fatal issue. There was expert opinion evidence that both the injuries, and the progress of the clotting of the artery, could excite ventricular fibrillation. The learned judge found that this condition of the heart was the cause of death. I have studied the evidence, particularly the expert opinion evidence. This is somewhat diffuse and is not easily summarized. The analyses of the evidence made by Sugerman J.A. and Jacobs J.A. are in my opinion both correct. I am satisfied that the judgment of each member of the Court of Appeal is right. (at p17)

3. The worker was forty-two years of age and was apparently in good health. He did not previously have a heart attack. When he suffered this attack he had driven part of the way from the appellant's factory, in which he worked, to his home, and at that stage of the journey his motor car turned across the road and struck an electric light pole, against which it stopped. There was proof that he was alive after the collision - it was objective evidence of the fact. The deceased was then in a state of unconsciousness. The judge found that he was alive, thereby negativing the employer's main case, namely that he died of the coronary thrombosis before the collision. The judge found that death occurred "at some stage later" than the collision, although as his Honour said, he could not tell when. A post-mortem examination disclosed a laceration of about one inch on the under surface of the liver, with two small clots adjacent to the laceration, and another injury namely bruising of the lower bowel. It is a plain inference from the evidence, and not in dispute, that the laceration and bowel injury happened in the collision. The injury mentioned in the findings in question comprises these abdominal injuries. The post-mortem examination disclosed also that coronary thrombosis was present in the anterior branch of the coronary artery and marked coronary atheroma and mitral valvular disease were present. No importance is attached by either side to the mitral valvular disease. The claim of the respondent, before the Commission, was that the abdominal injuries would, of themselves, have resulted in severe trauma, and this was the cause of death or at least would have been a contributing factor to or accelerated death. Dr. Pirie, Dr. Sanecki and Dr. Windrum gave evidence that the trauma was sufficient of itself to cause death. Dr. Kendall in his evidence advanced an hypothesis that the coronary occlusion happened post mortem and the shock resulting from the abdominal injuries was the cause of death. The learned judge did not accept this proposition entirely. He rejected the first part of it. I agree with the view of Sugerman J.A. that "at most Dr. Kendall's evidence may be taken as supporting a proposition that the trauma would have caused death had it stood alone and been preceded by a coronary occlusion". This was in substance, I think, the view of Jacobs J.A. on this matter. (at p18)

4. Dr. Pirie, Dr. Farrell and Dr. Burcher shared the opinion that the occlusion preceded the collision, and in addition, that the deceased was dead when the collision occurred. The post-mortem examination was made by Dr. Pirie. His opinion and that of Dr. Farrell and Dr. Burcher on these questions were formed on the wording of Dr. Pirie's report of such examination. It appeared that this report was prepared for the information of the coroner. A pathologist, Dr. Windrum, in his evidence, said the report did not have sufficient data for the conclusion that death resulted instanter from the heart attack evidenced by the report. It would seem that the learned judge relied strongly on the evidence of Dr. Windrum, for he found contrary to the evidence of Dr. Pirie, Dr. Farrell and Dr. Burcher as to when death occurred. Dr. Farrell said in evidence that ventricular fibrillation was frequently the sequel to the occlusion of a coronary artery, and that was probably the final stage of the heart attack in this case. It would seem that the learned judge was aided by this evidence in forming his conclusion that ventricular fibrillation was the cause of death. Dr. Farrell agreed that the abdominal injuries were of such a nature as to produce shock. He expressed the opinion that the blood pressure would have been so low, due to the thrombosis, that the shock caused by the injuries would have had no cumulative effect in bringing about death. The learned judge was not bound to decide the case in accordance with this opinion (Davie v. Magistrates of Edinburgh (1953) SC 34, at pp 40, 42 ). As the deceased was still alive after the collision occurred, and the occlusion of the artery had not been completed, it was a reasonable inference that the shock caused by the injuries, combining with the heart condition, caused death or accelerated it. On the evidence I can see no basis for the hypothesis of Dr. Farrell that the deceased was at the point of death before the collision and could only have lived a few moments. It cannot be presumed that if the deceased had not suffered the abdominal injuries he would not have survived the heart attack. It was the first time he had such an attack. "In a general sense, a crashing car", as Judge Ferrari stated, "would not suggest itself as a safe place to have an occlusion." And as Jacobs J.A. stated, "the collision and the injuries put the survival of the deceased out of the question". (at p19)

5. It appears from the reasons of Judge Ferrari what the evidence was which guided him to make the findings in question. I am of opinion that it was open to the learned judge, on that evidence, to do so. The award should in my opinion be affirmed. I would dismiss the appeal. (at p19)

KITTO J. I have had an opportunity of reading the judgments of my brothers Taylor, Menzies and Owen. I agree in their Honours' reasons for holding that the appeal should be allowed and shall add but little. (at p19)

2. The point which seems not to have emerged clearly enough in the Supreme Court is that the ultimate conclusion of the Workers' Compensation Commission, that the collision with the pole caused injuries which accelerated the worker's death, being a conclusion which required medical evidence to support it, was preceded by three findings which together made the opinions of the doctors upon whom the Commission relied incapable of supporting it. These were the doctors other than Dr. Farrell. None of them had been asked to express an opinion upon the footing that, as the Commission ultimately found, (a) the coronary occlusion occurred before the collision with the pole; (b) it was by itself sufficient to cause death; and (c) the worker nevertheless did not die until after the collision with the pole. None of them was asked to express an opinion on that triple assumption. Dr. Farrell's evidence would not support any other conclusion than that the coronary occlusion made it inevitable that death should occur at the time when it did occur, that is to say that the injuries which resulted from the collision with the pole, even if sufficient to have caused death had there been no coronary occlusion, did not hasten the process of dying which already was almost complete. The other medical evidence rose no higher than an opinion that the injuries from the collision would have sufficed to cause death had they not been preceded by the coronary occlusion; but once the fact was found that, in truth, the injuries were preceded by a coronary occlusion sufficient to cause the death, these opinions became irrelevant. (at p20)

3. The Commission's award was supported by the Supreme Court on the basis that the medical evidence justified a finding that the potentially fatal effects of the occlusion were joined by the potentially fatal effects of the collision so that both sets of effects operated concurrently to cause the death. But no doctor expressed an opinion that that was what happened. It may be conceded, as was said in the Supreme Court, that Dr. Kendall's opinion, that the occlusion probably did not precede the collision, was not a medical opinion, but was a judgment depending wholly upon logical considerations. It nevertheless formed the basis upon which the doctor's medical opinion as to the cause of death was expressed; and when the basis was destroyed by a contrary finding of fact it was not open to the learned Commissioner to rely upon Dr. Kendall's opinion at all. (at p20)

4. The onus of proving that the worker's journey contributed to his death rested, of course, upon the present respondent, and in my opinion it was not open to the Commission on the evidence to hold that the onus was discharged. (at p20)

TAYLOR AND MENZIES JJ. The facts found by the learned judge, who constituted the Workers' Compensation Commission, upon the hearing of a claim by the widow of a deceased worker, were that, while driving home from work, the deceased worker suffered a coronary thrombosis, causing him to lose control of his car so that it left the road and collided with an electric light pole. In this collision the deceased, while still living, suffered abdominal injuries. He died shortly after the collision. His Honour accordingly found that the deceased received injuries, viz. laceration to the liver and bruising of the lower bowel, upon a periodic journey between his place of employment and his place of abode, and thereupon proceeded to inquire whether there was any causal relationship between those injuries and the death of the worker. Upon this he had the evidence of no less than six doctors. His Honour found:

1. that the coronary thrombosis was itself sufficient to cause
death through ventricular fibrillation and played a part in
bringing about that ventricular fibrillation;
2. that the abdominal injuries were likely to cause a state of
shock which also probably produced the fatal ventricular
fibrillation;
3. that accordingly, the coronary thrombosis and the abdominal
injuries together caused the death of the worker. (at p21)

2. Upon these findings the learned judge found for the applicant, and upon appeal to this Court from the Supreme Court of New South Wales, which dismissed an appeal against the award, the question is simply whether there was evidence to support the finding that the abdominal injuries played some part in causing the death of the deceased when it occurred. (at p21)

3. It appears to us, after a careful reading of the whole of the medical evidence, that the only doctor who was questioned about whether the deceased would have died, as and when he did, without having received abdominal injuries, was Dr. Farrell, to whom the learned judge put the following questions and received the following answers:

"Q. Yes, but doctor, can you say anything on this point,
one way or the other, as to any effect - I will put it this way;
any added effect that there would be, either likely or probably
be, from the liver and bowel injuries, as distinct from the
atheroma and coronary thrombosis? A. I do not think
these liver and bowel injuries would be a cause of death per se,
without any coronary artery disease.
Q. It was not that quite that I asked you, but we are
taking them altogether. Whether there was anything that
you can say or whether the material was insufficient to permit
you to say - anything as to any added effect of the liver and
bowel injuries, over and above the coronary thrombosis ?
A. The only two observations one could make were these,
that an injury to a liver with loss of blood might lead to
circulatory collapse and shock, but here the evidence is that
there were two small clots of blood, so the patient has not
bled greatly. If the patient had already had a coronary
thrombosis and then ran into the pole and lacerated his liver,
and bruised bowel - would this have an effect, if he had a
coronary thrombosis such that he had collapsed - he probably
would have been in a state of shock from that and his blood
pressure would have already dropped, so even if there had
been shock I do not see it could have made any further great
difference, but we have no evidence that there was shock;
the only real point that I can make is that the liver bled very
slightly which is unlikely in itself to produce shock.
Q. You said that if he had had a coronary thrombosis
before the injury to the liver and bowel he would have already
sustained shock, and his blood pressure would already have
dropped ? A. Yes, and well then, even if there was shock -
and we have no evidence of that associated with the liver
injury - I cannot say that it would make a great deal of
difference - the effect itself of course is to lower blood pressure,
and this already would be low.
Q. Is what you are saying this or not, doctor, that even
if the accident had terminated in some way without the liver
and bowel injuries, on the probabilities you see no reason
why there would have been any different end result as regards
the death of the patient ? A. As far as I can tell, from what
is available, yes." (at p22)

4. Counsel for the respondent endeavoured to obtain some comfort from Dr. Farrell's evidence upon the footing that it is implicit in it that the doctor held the opinion that, had the deceased suffered severe shock in the collision, his blood pressure would have fallen sufficiently to have made a significant difference in the circumstances of his death, so that those injuries would have been a material cause of his death. Accordingly, it was argued, that when the learned judge had regard to other evidence to the effect that the abdominal injuries would cause shock likely to bring about a lowering of blood pressure, there was, in the evidence of Dr. Farrell, sufficient to support the finding that the injuries played a part in causing the death of the deceased as and when it occurred. (at p22)

5. In our opinion, however, it is not possible to extract from anything said by Dr. Farrell an opinion that the abdominal injuries, if they did cause severe shock, would have contributed to the death of the deceased in any way. In the evidence quoted, Dr. Farrell says, in effect, that if there was shock associated with the liver and bowel injuries, "I do not see that it could have made any further great difference", and "I cannot say that it would make a great deal of difference", and finally, that on the probabilities "there would have been no different end result as regards the death of the patient". His Honour's conclusion upon Dr. Farrell's evidence was expressed as follows: "As far as he could tell, the deceased would have died even without the liver and bowel injuries." It is, we think, of some significance that the learned judge did not say that he relied upon the evidence of Dr. Farrell to support his conclusion, for his Honour said: "On the evidence of Dr. Windrum, Dr. Kendall and Dr. Pirie I am satisfied that the contribution from the deceased's injuries is likely to have been a substantial one." In our opinion, therefore, Dr. Farrell's evidence is of no assistance to the respondent. (at p23)

6. What happened in the proceedings before the Workers' Compensation Commission was that the applicant made a case that any coronary thrombosis could be disregarded because it followed the collision, whereas the employer's case was that the abdominal injuries could be disregarded because they were suffered after death by reason of the coronary thrombosis. The applicant made no case that coronary thrombosis and the injuries received in the collision operated together to cause death, or the injuries accelerated the occurrence of death, and the learned judge's questioning of Dr. Farrell supra elicited the only evidence upon the matter which has turned out to be of decisive importance. In the Supreme Court the learned Chief Justice stated the inference drawn by his Honour Judge Ferrari as follows: "that the deceased died from injuries received in the collision while in a condition of coronary thrombosis, or alternatively that the terminsl heart condition constituted an aggravation, acceleration, exacerbation or deterioration of the heart disease and the journey, by reason of the collision, contributed to it" (1967) 68 SR (NSW), at p 171; 87 WN (Pt 2), at p 3 but in the view we have formed, the evidence does not support such an inference. (at p23)

7. Dr. Kendall's opinion, which was rejected, was that any coronary thrombosis followed rather than preceded the collision. His evidence was as follows:

"My opinion is that the likelier thing which has happened
is that the deceased sustained severe trauma to the abdomen,
causing the injury described. This produced a state of shock
and ventricular fibrillation, which is a common mode of death,
even in coronaries, incidentally, or a state of cardiac arrest.
Finally fibrillation does lead to arrest. You can get it without
that, and that was the cause of the death. The clot described,
always assuming it was not an old one - and I was not told
whether it might not have been an old one - I presume that
this clot formed in the interval between the trauma, the injury
to the abdomen, and the extinction of life.
Q. In the interval between the trauma to the abdomen
and the extinction of life? A. Yes, and/or during the process
of dying, which takes a few seconds, and post mortem.
As I said, this is what I think is likely, not merely what is
possible.
. . .
The shock produced disturbance to the rhythm of the heart,
or ventricular fibrillation, or ventricular standstill, where the
heart stops beating; this for quite obvious reasons, produces
a marked drop in blood pressure and a state of further shock.
The circulation is either slowed or stopped completely, and
this leads to a formation of a thrombosis or clot." (at p24)

8. When it was found that the coronary thrombosis proceded the collision and it was such, to use the learned judge's own language, "as to make it likely that it was sufficient to cause death", it seems to us that the evidence of Dr. Kendall no longer affords any basis for a finding that the abdominal injuries were a cause of the ventricular fibrillation and ensuing death. (at p24)

9. Dr. Pirie's material evidence was, we think, no more than that the post-mortem examination which he made showed extensive injuries sustained with shock and cardiac arrest. His own opinion was expressed as follows: "I consider deceased suffered a coronary occlusion immediately prior to the accident and that the accident involving his car would have been due to his collapse", and "In my opinion the cause of death was coronary thrombosis (almost immediate) due to coronary atheroma (years)". This opinion Dr. Pirie maintained at the hearing. (at p24)

10. Dr. Windrum gave evidence which had for its only factual foundation the post-mortem report of Dr. Pirie. On this foundation Dr. Windrum said:

"I have a description of the bruised lower bowel and
laceration to the under surface of the liver would indicate an
abdominal injury which would be sufficient of themselves to
cause death.
. . . .
I think in a case like this where there may be some doubt
as to which came first the apparent coronary thrombosis or
the trauma or whether they were related, it would have been
possible by a more complete post-mortem to determine this
and at the time of doing the post-mortem it would appear to
the pathologist that this problem should be resolved and to
resolve this problem would require detailing the cardiac findings
and perhaps further microscopic examinations of the affected
areas. There is no information in this report which allows a
second pathologist to do this.
. . . .
Q. How do you know there was a severe injury to the
abdomen merely from the contents of the post-mortem report
dealing with what was found on examination? A. From
the nature of the injuries described there must have been a
severe trauma.
Q. The mere statement that there was a bruising to the
bowel suggests that it is not sufficient to indicate that it was
a severe trauma to the bowel? (Objected to.)
His Honour: Is your question 'bruised lower bowel
indicating extensive injury'?
Witness: I would say that they do.
. . . .
His Honour: Q. You referred to the injuries in the
post-mortem
report of which some you thought were sufficient to
cause death? A. Yes.
Q. What is the immediate manner of the death that you
consider was so caused? A. That again is a question I
cannot answer without other information.
Q. You were referring to what was said about the lacerations
to the liver and the bruising of the lower bowel were you not?
A. Yes.
Q. When you say they were sufficient of themselves to
cause death, what manner of death was it that you had in
mind that they were sufficient to cause? A. All death
ultimately occurs when bodily processes stop, and severe
trauma causing these injuries may have put the patient into
a shocked state from which they die.
Q. Are you saying that it would be by reason of shock
from the laceration of the liver and bruising of the bowel that
death would follow? A. In the absence of any other evidence
I would make that assumption, that it is a possibility - a
probability. We have no other evidence."

To understand this last statement it is necessary to observe that, as has already been pointed out, Dr. Windrum was speaking merely on the basis of the post-mortem report, and that the learned judge found on other evidence that there was a coronary thrombosis sufficient of itself to cause death. (at p25)

11. We have not been able to find in the evidence of Drs. Kendall, Pirie or Windrum anything to support the conclusion that the injuries suffered in the collision played any part in the death of the deceased worker. (at p26)

12. One thing troubles us. Dr. Sanecki was called, seemingly to produce a report dated 14th August 1962 in which he expressed the opinion that the death of the deceased from coronary thrombosis could be attributed to his work. No case, however, to link the coronary thrombosis with the deceased's work was made. In the course of an unusual second cross examination of Dr. Sanecki, however, counsel for the employer asked the following question and received the following answer:

"Q. What is so extensive about a laceration to the surface
of the liver with two small blood clots, bruises to the right knee,
contusion to the left lower lip and bruising of the lower bowel.
On what part of what I read out to you do you regard a firm
basis that those findings are consistent with extensive internal
injuries? A. Injury to the liver is enough to make you die -
to be a cause of death and is one of the main causes of death
in this case. Injury to the liver and shock are every occurring
to trauma to the liver and is one of the causes of death (sic)."

It appears, however, that no reliance was placed upon this somewhat confused evidence and, in particular, the learned judge did not rely upon it as affording any support for the conclusion which he reached. In these circumstances we think that it would be wrong to give significance to the statement that "injury to the liver . . . is one of the main causes of death in this case", when used by a doctor whose own opinion was that the death occurred from coronary thrombosis attributable to the deceased worker's employment. Had his Honour relied upon Dr. Sanecki the position would, of course, have been different. (at p26)

13. In the Full Court, Herron C.J., while agreeing with Jacobs J.A., does seem to treat as significant statistics showing that death from a first coronary thrombosis is unlikely, as affording some basis for concluding that the injuries sustained in the accident made death, which would otherwise have been uncertain, a certainty. However, the learned judge who constituted the Commission did not follow this course of reasoning. Sugerman J.A. said: ". . . the medical evidence would support the conclusion that after impact and before death, whenever that occurred, two conditions were operative concurrently, each, on medical evidence, potentially capable of causing death and of causing it in the same manner, that is, fibrillation and/or arrest. The deceased in fact died, and although the time of his death is not known, it is obvious that he died very quickly; and it is impossible to determine to what extent each condition contributed, or whether, if either had been absent, he would have died when he did. The fact is that both were present. I think that it was open to the learned member of the Commission to infer that both contributed to the deceased's dying when he did, and that is what his Honour did" (1967) 68 SR (NSW), at p 175; 87 WN (Pt 2), at p 7 . We have already expressed our reasons for coming to the conclusion that Dr. Farrell alone dealt with the question whether or not the coronary thrombosis and the abdominal injuries combined to cause death and that he expressed an opinion contrary to the conclusion which the learned judge reached. The inference, referred to at the end of the passage cited, could only be drawn if there were evidence to support it. (at p27)

14. Jacobs J.A. summarized the findings of the Commission, including a paragraph as follows: "the proper inference was that the shock from collision, adding ventricular fibrillation and cardiac arrest to the coronary occlusion which might also have been producing ventricular fibrillation, contributed to the death" (1967) 68 SR (NSW), at p 178; 87 WN (Pt 2), at p 10 . His Honour thought that Dr. Kendall's evidence that the injuries caused the death could be dissociated from his view that the injuries caused the coronary thrombosis, but for ourselves we do not think that it is possible to do this. His Honour did say: "No one can say now for certain whether, if that collision had not occurred, the deceased would have survived the coronary attack or not. What is certain on the Commission's findings is that the collision and the injury put survival of the deceased out of the question" (1967) 68 SR (NSW), at p 179; 87 WN (Pt 2), at p 11 . The learned member of the Commission did, however, find, as Jacobs J.A. set forth earlier, "that thrombosis was probably sufficient to cause death, but it was not established that it did so; if it did, the actual cause of death would be ventricular fibrillation and cardiac arrest" (2). It seems to us that a finding that the coronary thrombosis was sufficient to cause death leaves no room for a logical inference that the deceased might have survived had it not been for the injuries. That conclusion would require evidence to support it, and, as we have already stated, we have not been able to find evidence which does so. (at p27)

15. In our opinion, the appeal should be allowed. (at p27)

OWEN J. The respondent to this appeal was the wife of one Stanley Maurice Grant who was in the employ of the appellant and who died on 21st March 1962 whilst on a periodic journey from his place of employment to his home. She and the two children of the marriage were partially dependent upon the deceased, and she obtained an award of compensation against the appellant from the Workers' Compensation Commission based upon a finding that the deceased's death resulted from an injury received while on that journey. The appellant appealed to the Court of Appeal on the ground that, having regard to certain other finding made by the Commission, there was no evidence upon which it could have found that the death resulted from an injury received on the journey. The Court dismissed the appeal and from its order an appeal is brought to this Court. (at p28)

2. The facts are that while the deceased was driving home from work in his car in daylight hours, the car suddenly swerved to its right across the road and struck an electric light pole. There was nothing in the state of the car or of the road or of such traffic as was then in the vicinity to explain the course taken by the car. A post-mortem examination made by a Dr. Pirie disclosed that there was a "laceration under the surface of the liver with two small blood clots adjacent to laceration" and a "bruised lower bowel". It disclosed also that there was a coronary thrombosis present in the anterior branch of the coronary artery, and marked coronary atheroma present. (at p28)

3. The case sought to be made by the widow (whom I will call the applicant) before the Commission, was that the death of the deceased resulted from the collision with the pole and she led medical evidence from a number of doctors to the following effect. The abdominal injuries caused by the collision would produce severe shock. This would produce a marked drop in blood pressure resulting in a coronary occlusion which in turn would produce ventricular fibrillation and death. The opinions thus expressed proceeded upon the assumption that the collision with the pole preceded the occlusion of the coronary artery which, on the post-mortem examination, had been found to exist, and were based upon the view that the occlusion had occurred as the result of the abdominal injuries and either immediately before or after death. (at p28)

4. Medical evidence called by the respondent before the Commission was to this effect. The small amount of bleeding from the abdominal injuries pointed to the conclusion that when these injuries were received the deceased was already dead, or at least on the point of death, and it was therefore more probable than not that the coronary occlusion occurred while the deceased was driving his car. This would account for the otherwise unexplained course which the car had taken. The occurrence of the occlusion had caused the deceased to collapse and lose control of the car and thus led to the collision. The effect of the occlusion would have been to lower the blood pressure and this would set up ventricular fibrillation and cause death. In other words, the happening of the occlusion would set up a chain of events leading to death similar to that which might be caused by abdominal injuries such as the deceased had received. (at p29)

5. Since it was conceded by both parties that, if the occlusion had occurred while the deceased was driving, the journey had played no part in its occurrence it was, in these circumstances, necessary for the applicant to show that the abdominal injuries had either caused the death or contributed to it by accelerating its occurrence. (at p29)

6. The Commission found that the occlusion had occurred while the deceased was driving along the road, and that this had caused him to collapse and lose control of the car which had then collided with the pole. It found also that the deceased was alive when the collision occurred and died shortly afterwards. Both these findings were supportable by the evidence, and no attack is made upon them. It went on, however, to find that death occurred partly from the bodily changes set in motion by the occlusion and partly from a similar set of changes which, the Commission considered, had followed the abdominal injuries. It is this conclusion which, it is contended, finds no support in the evidence. (at p29)

7. It is plain that the opinions of the medical witnesses upon which the applicant relied as showing that the abdominal injuries set in motion the changes which led to death, were based upon the supposition that there had been no coronary occlusion prior to the collision, but on the finding made by the Commission this was not the fact. If, as it found, the occlusion had occurred before the collision, then, it was submitted, the changes which would follow an occlusion, namely lowered blood pressure and resultant ventricular fibrillation, would have begun immediately and there may well have been no room for the occurrence of a similar chain of events resulting from the abdominal injuries. If the deceased's blood pressure had dropped as the result of a pre-collision occlusion so as to produce ventricular fibrillation, there was nothing to show that the abdominal injuries had caused or contributed in any way to the death. (at p29)

8. Unfortunately, in adducing the medical evidence, little attention was paid to the state of facts which the Commission found to have existed, namely an occlusion occurring before the collision with the pole, and death occurring after that collision. The only material bearing on the point is to be found in the evidence of a Dr. Farrell. He was one of those who had taken the view that the occlusion had occurred before the collision and that the occlusion, and not the abdominal injuries, had caused death. In the course of his evidence, however, he was asked by the learned Commissioner:

"Whether there was anything that you can say or whether
the material was insufficient to permit you to say - anything
as to any added effect of the liver and bowel injuries, over
and above the coronary thrombosis ?"

and replied:

"The only two observations one could make were these,
that an injury to a liver with loss of blood might lead to
circulatory collapse and shock, but here the evidence is that
there were two small clots of blood, so the patient has not
bled greatly. If the patient had already had a coronary
thrombosis and then ran into the pole and lacerated his liver
and bruised bowel - would this have an effect, if he had a
coronary thrombosis such that he had collapsed - he probably
would have been in a state of shock from that and his blood
pressure would have already dropped, so even if there had been
shock I do not see it could have made any further great
difference, but we have no evidence that there was shock;
the only real point that I can make is that the liver bled very
slightly which is unlikely in itself to produce shock."

The Commissioner then asked:

"You said that if he had had a coronary thrombosis before
the injury to the liver and bowel he would have already
sustained shock, and his blood pressure would already have
dropped ?"

The answer was:

"Yes, and well then, even if there was shock - and we have
no evidence of that associated with the liver injury - I cannot
say that it would make a great deal of difference - the effect
itself of course is to lower blood pressure, and this already
would be low."

This evidence seems to me to be incapable of supporting a conclusion that it was more probable than not that the abdominal injuries - caused to one who was already in a state of collapse due to the occurrence of a coronary occlusion - did in fact contribute to the death. (at p31)

9. For these reasons I would allow the appeal. (at p31)

ORDER

Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof order that the appeal to that Court be allowed with costs, that the award of the Workers' Compensation Commission be set aside and, in lieu thereof, direct that the application to the Commission be dismissed with costs.

Solicitors for the appellant, A. O. Ellison & Co.

Solicitors for the respondent, Walker, Gibbs & Donald.
R. A. H.