Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 (1 April 1976)

HIGH COURT OF AUSTRALIA

FAVELLE MORT LTD. v. MURRAY [1976] HCA 13; (1976) 133 CLR 580

Workers' Compensation (N.S.W.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Stephen(3), Mason(4) and Jacobs(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Injury - Statutory definition including disease contracted in course of employment to &which employment a contributing factor - Employee sent by employer to foreign company to be on continuous call as supervisor of cranes - Viral meningo-encephalitis contracted - Whether injury within ordinary meaning of term - Whether disease to &which employment a contributing factor - Workers' Compensation Act, 1926 (N.S.W.), s. 6 "Injury".

HEARING

Sydney, 1975, November 19, 20; 1976, April 1. 1:4:1976
APPEAL from the Supreme Court of New South Wales.

DECISION

1976, April 1.
The following written judgments were delivered: -
BARWICK C.J. In September 1968 the respondent, Terence Murray, a project New York, to work as a troubleshooter on call at all times, supervising the setting up and functioning of eight of its cranes which had been specially designed for use on the construction of the World Trade Centre building in New York. He was also called upon to service other cranes which the appellant had supplied to American clients. Prior to his departure the respondent had been in good health but, upon his return to Sydney in December 1969, he was ill: it was diagnosed that he had contracted viral meningo-encephalitis; that is to say, that he had been attacked by a virus and, as a consequence, he had developed meningo-encephalitis. This attack has not proved fatal: but he has suffered and is still suffering serious consequential disabilities. (at p582)

2. In the course of making an award in favour of the appellant in an application by the respondent for worker's compensation, Judge Langsworth, the chairman of the New South Wales Workers' Compensation Commission, made the following findings:
1. That the respondent had proved, on the balance of probabilities, that he contracted the disease before returning to Sydney on the morning of 13th December 1969.
2. That the disease was meningo-encephalitis due to an unidentified virus and was not due to herpes simplex.
3. That his employment with the appellant while absent from Sydney was continuous.
4. That the respondent contracted the viral disease whilst in the course of his employment.
5. That the contraction of meningo-encephalitis stemming from exposure to viral infection is a common risk in both Australia and the United States of America.
6. That there was no evidence that the employment especially exposed him to risk of viral infection.
7. That there was no evidence upon which it could be shown that his employment abroad, including the travelling to and from Sydney, was a contributing factor to the contraction of the disease. The learned chairman held that the meningo-encephalitis did not come within the statutory definition of "injury" as set out in s. 6 of the Worker's Compensation Act, 1926 (N.S.W.), as amended ("the Act"), which provides:

' "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.' (at p583)

3. Upon an appeal by the respondent to the Supreme Court of New South Wales, the Court of Appeal Division (Moffitt P., Reynolds and Hutley JJ.A.) was of the unanimous opinion that the respondent had established on the evidence that his employment was a contributing factor to the contraction of the disease and thus allowed the appeal, setting aside the award for the appellant and remitting the matter to the Commission to make an award conformable to the Supreme Court's reasons for judgment. (at p583)

4. From that order the appellant now appeals to this Court seeking the restoration of the award of the learned chairman on the ground that there was no evidence that the respondent's employment was a contributing factor to his contraction of the disease. (at p583)

5. Counsel for the respondent put a primary submission, not argued in the Supreme Court but adverted to by the learned chairman of the Workers' Compensation Commission, that the case did not call for a consideration of either branch of the extension of the definition of "injury". It was submitted that what in fact had been suffered by the respondent was an injury in the ordinary sense of the word. The meningo-encephalitis was neither idiopathic nor autogenous. It was the result of the introduction into the employee's body of a foreign body, the virus. The internal physiological change in the form of a developing meningo-encephalitis was caused by the intruding virus. On this view, this morbid condition of the body was not itself the relevant injury but merely the consequence of the introduction into the body from without of the virus, which though microscopic and innominate, was none the less substantial. This attack by, or reception of, the virus was the injury. If such a submission were to be accepted there would be no need to consider questions of causation which are involved in the inclusive provisions of the definition. The injury would simply have been received in the course of the employment. (at p583)

6. It may be observed at this point that the findings of the learned chairman in his carefully expressed reasons involve the conclusion that the virus entered the respondent's body not only during his employment but, because of the width of the temporal range and of the geographical area of his employment, at a place where he was bound by his employment at that time to be. (at p584)

7. If the only basis upon which an award of compensation could be made in favour of the respondent is the satisfaction of the extension by par. (a) of the definition of "injury" in s. 6(1) of the Act, the matter for decision is whether his employment contributed to the contraction by the respondent of meningo-encephalitis. Clearly, it cannot be said that the nature of anything the respondent was required to do by his employment contributed to cause his morbid physical condition. But it is also quite clear that it is not necessary that this should be so in order that it may be concluded that the employment contributed to the contraction of that condition. There was quite clearly a moment, though not discernible or capable of precise or even approximate identification, when the virus attacked the respondent and entered his body. That, rather than the first manifestation of the meningo-encephalitis, must be regarded as the relevant contraction of the disease, if the case is to be treated as within the extension of the definition of "injury". Not only was he at that time in the course of his employment, but he was at the place where he was endangered by the virus because his employment required him to be there. It is clearly quite immaterial that any member of the public, if at that same place at the same time or for that matter anywhere in the vicinity, might have been similarly attacked by the virus with comparable results. It is sufficient, in my opinion, that the virus attacked the respondent at that place and time. For him, it was for that reason a place of danger or, if you will, of special danger; a place at which he must be in fulfilment of his employment. It is to my mind only the correspondence of the place of his employment with the totality of the area in which he lived that appears to raise a problem in this case. Had he been required by his employment to be at some particular place in a confined area, such as a building, and he was there attacked by a virus with the consequences experienced by him in this case, there would not seem to me to have been the same difficulty in accepting that he received the virus at the place where his employment required him to be and that, in consequence, that obligation of his employment contributed to his injury in the extended meaning of that word. In my opinion, that being for him, as it would have proved to be, the place of danger, the formula contained in the extension of the definition would have been satisfied. I can see no reason why the same conclusion should not follow in the present case where the area in which his employment required the respondent to be was coincident with the entire area in which he lived or worked during his tour of duty abroad. Although some manifestations of the meningo-encephalitis were present during the aeroplane journey from America to Australia, it may be possible that the viral attack occurred during the journey. But, having regard to the findings of the Commission, the journey formed part of the employment and the aeroplane was a place where at the relevant time the employment required the respondent to be. (at p585)

8. Although the former statutory requirement that an injury should arise out of the employment as well as in its course is, in my opinion, more stringent in relation to the causation of the injury than the requirement that in the case of disease the employment should contribute to its contraction, the several expressions of their Lordships in Thom v. Sinclair (1917) AC 127 are, in my opinion, quite apposite in resolving the present situation. I would respectfully agree with the views of Lord Haldane and Lord Shaw to which I now refer. Lord Haldane posed for himself the question "Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment ..." (1917) AC, at p 135 . It is apparent from earlier passages in his Lordship's speech that it was the obligation of the employment to be at the particular place where the injury was received which brought the case within the scope of the formula "arising out of the employment" (1917) AC, at pp 133-134 . The mere chance that the employee was at that place in the course of his employment may be insufficient. Lord Shaw thought that if the nature, condition, obligations or incidents of the employment brought the workman within a zone of special danger, the words of the statute "arising out of the employment" would be satisfied (1917) AC, at p 142 . (at p585)

9. Here, the area of special danger in the sense used by Lord Shaw was the place or area where the virus in fact entered the respondent's system. As I have said, it is nothing to the point that many others, members of the public, were there exposed to the risk of viral attack. Further, the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid. (at p585)

10. If, therefore, the only basis upon which the respondent could succeed in an application for compensation is proof that his employment contributed to the contraction of meningo-encephalitis, I am prepared to dismiss this appeal upon the ground that, upon the findings of the learned Chairman, the respondent did receive an injury by contraction of a disease to which the employment was a contributing factor. Accordingly, the order made by the Supreme Court was, in my opinion, correct. (at p586)

11. However, a question has been raised as to whether the only basis on which disease may constitute an injury is satisfaction of the terms of the extension of par. (a) of the definition in s. 6(1) of the Act. (at p586)

12. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482, at p 492 , Sir Owen Dixon, founding himself on his interpretation of the language of Simonds L.C. in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13, at p 20; (1950) 51 SR (NSW) 1, at p 4 , seems to have accepted the view that this question should be answered in the affirmative: only those diseases are injuries which have been contracted in circumstances in which the employment has contributed to the contraction. Text writers relying on Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 have accepted that proposition. (at p586)

13. Ought the Court now to continue to take that view? In that connexion, there are, in my opinion, several elements for consideration. The first is whether in this Court's view the conclusion is correct: in other words, on the proper construction of the definition, is a disease externally caused an injury within the ordinary meaning of that word or must the employment be a contributing factor to the contraction of the disease though externally caused? The second is whether the Privy Council's reasons in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 can properly be confined to autogenous diseases or must it be accepted that those reasons extended to all diseases whether caused by external excitement or merely autogenous? The third is whether this Court ought, assuming that it concludes either that the interpretation of the reasons in Slazengers (Australia) Pty. Ltd. v. Burnett accepted in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 is in error or that those reasons as so understood are erroneous, none the less, though not technically bound by its own decisions, accept the construction adopted in the latter case in the interest of continuing certainty in the law. The fourth is whether, assuming the Court to think the reasons of the Privy Council as so understood to be in error, this Court, bearing in mind that now and hereafter no appeal can be brought to the Queen in Council from the decisions of this Court in such a matter, ought to regard itself as free to depart from the reasoning of the Privy Council and, if so, whether it should do so in this case. (at p587)

14. I would for myself wish first to consider the proper construction of the statute, for unless upon its true construction an externally caused disease may be an injury, without any contribution to its onset by the employment, none of the foregoing questions other than the first will arise. Apart from any effect of the extension effected by par. (a) of the definition, an external excitement initiating a morbid condition of the body would, in my opinion, be an injury within the meaning of that word in the context of a workers' compensation law. It must be remembered that at the outset of such legislation, i.e. in the original English Act, the injury had to be by accident or, perhaps more accurately expressed, the worker had to suffer or receive an injury by accident. Consequently, the universal character of the word "injury" was to an extent limited by its conjunction with the word "accident". But English courts held that the contraction of a disease by external cause could be the reception of an injury by accident. Brintons Ltd. v. Turvey (1905) AC 230 and cases which followed that case sufficiently evidence that course of decision. The same view has been adopted in New Zealand - see Storey v. Wellington Hospital Board (1932) NZLR 1553 . The removal of the word "accident" from the expression "injury by accident" did not, in my opinion, reduce the connotation of the word "injury". Rather, it increased the occasions on which that connotation could be given effect. In so expressing myself, I am not unmindful that Lord Reid in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1, at p 16 held that, by reason of the particular definition of disease in the Victorian statute there under consideration (Workers' Compensation Act, 1928 as amended to 1946 (Vict.)), an autogenous disease was an injury by accident. But that case must depend entirely upon that particular definition of disease and injury. It may thus be concluded, as I would conclude, that in its normal meaning the word "injury" in the Act itself embraces an externally excited disease. (at p587)

15. The word "disease" is itself a word of some difficulty in this context, particularly in the expression "contraction of a disease". Properly used, disease denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous. Quite clearly, when such a condition is idiopathic or autogenous, it will not qualify as an injury in the normal use of language. The actual decision in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 was an affirmation of precisely that proposition, though the reasons given for it were not those I may venture to suggest. Such a disease is not "received", to use the language of the Act, but it may be contracted in the sense of becoming manifest or being commenced as a morbid condition of the body. (at p588)

16. The question then arises as to the effect of the extension of the connotation of the word "injury" by the inclusive words of par. (a) of the definition. If, as I think, the external cause initiating a morbid condition of the body is itself an injury within the ordinary sense of that word, does the extension of the definition in par. (a) exclude all disease, both disease externally excited and autogenous disease, from the normal connotation of the word "injury" itself and merely add to that connotation disease qualifying within the words of that paragraph? The conclusion to which their Lordships came in their reasons in Slazengers (Australia) Pty. Ltd. v. Burnett was that the terms of par. (a) of the definition did operate to exclude all diseases which did not satisfy those terms. Their Lordships did not reach this conclusion because of any apparent policy of the legislation dictating such a result: indeed, there was no examination of that policy. Their conclusion was arrived at only by reason of the rules of statutory construction. The critical sentence of the reasons of their Lordships read by Lord Simonds and relied upon by Sir Owen Dixon in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 CLR 482, at p 492 was: "But this at least is clear, that in the Act the word 'injury' (unless the context or subject-matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease" (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 . But it seems to me, with unfeigned respect for his Lordship, that there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined. Of course, if the matter included by extension of the definition does not otherwise or in any sense fall within the connotation of the word or expression being defined, the inclusion of such matter will not go beyond the terms in which the inclusion is expressed. Thus, if no reception of any disease falls within the connotation of the word "injury" in the Act in its normal sense, the extension in par. (a) will only include in that connotation such diseases as satisfy the conditions expressed in the extension. In a sense, all other diseases would be excluded, i.e. because not included. (at p589)

17. But if the contraction of a disease by external cause or excitement is within the connotation of the word "injury" in legislation of this kind, an extensive paragraph such as par. (a) is not required by any rule of construction to be read as exclusive of some part of the ordinary connotation of the word whose connotation is being extended by inclusive words. The first question in construction, therefore, in relation to the matter presently in hand, is whether the word "injury" in its ordinary sense would include the reception of a force or influence external to the body which, being received, initiates a morbid condition of the body and thus starts a disease. If it does, I am unable to perceive any reason, either in rules of construction or in point of policy evidenced in workers' compensation legislation, why the addition of par. (a) of the definition should be held to operate to exclude such "injuries". It would not, in my opinion, sort well with the known policy of workers' compensation legislation to read words of extension as effecting a restriction of the area of benefit. (at p589)

18. Consequently, in my opinion, upon the proper construction of the Act, a morbid condition of the body, a disease, externally caused or excited, may be an injury within the meaning of the Act through the employment has not contributed to the reception or contraction of that condition. That means, of course, that the diseases which were included by par. (a) of the definition were diseases which did not otherwise fall within the normal connotation of injury. Autogenous or idiopathic changes in the body, if the employment contributed to their onset - and now by par. (b) of the definition, to their progression - are thus brought within the meaning of injury. I might add here that par. (b) is not limited to autogenous or idiopathic diseases. It expressly extends to any disease so that the aggravation etc. of an externally caused disease may constitute an injury. (at p589)

19. The second question is whether the reasons of their Lordships in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 can be confined to autogenous diseases or idiopathic conditions of the body? It is true that the case itself dealt with such a disease or condition. It is also true that decisions should be read according to the facts with which they deal. But, after consideration and with due respect to those who may entertain a contrary view, I am unable to read Lord Simonds' words otherwise than as embracing all disease, including externally caused or excited disease. His expressed reasons cannot, in my opinion, be confined to autogenous diseases or idiopathic conditions. His Lordship's reliance on what he conceived to be a rule of construction necessitates, in my opinion, the conclusion that he intended to exclude from the range of injury all disease however initiated or commenced unless within the terms of par. (a) of the definition. Sir Owen Dixon, in his reasons for judgment in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 CLR, at p 492 , so read the advice of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 . I would respectfully agree with his Honour's reading of their Lordships' judgment. (at p590)

20. However, as I am clearly of opinion that, upon the true construction of the Act the external cause or excitement of a disease is itself a relevant injury, I would be prepared now not to follow what Sir Owen Dixon, under the compulsion of the judgment in Slazengers (Australia) Pty. Ltd. v. Burnett, relevantly said in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 CLR, at p 492 , i.e. treating the matter as governed solely by a decision of this Court. In a sense, the ultimate conclusion reached in that case could have been arrived at without adopting the reasons given in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 . It could scarce have been said that the aggravation etc. of an existing autogenous condition was an injury in the ordinary accepted meaning of the word: and it could not be brought within par. (a) of the definition, if for no other reason than because of the presence of the word "contracted". But whether necessary to the decision or not, the Court should not lightly depart from such a statement as Sir Owen Dixon made in his reasons for judgment in that case. However, fully convinced of what I conceive to be the true meaning of the definition of injury in the Act, I would see this as a case in which a departure from the earlier expression of opinion in this Court could properly be made. (at p590)

21. But the further question remains. The Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 , as I understand their reasons, decided the construction of the Act in the sense adopted by Sir Owen Dixon. In times when this Court's decisions were reviewable by Her Majesty in Council, there could have been no question but that, whatever we might think to be the true construction of the Act, this Court would have been bound to follow and apply their Lordships' definitive reasons. But no longer may appeals against the orders of this Court be entertained by Her Majesty in Council, saving only the case of a matter within s. 74 of the Constitution in which this Court has seen fit to grant the appropriate certificate. Two relevant questions arise in consequence. Do the reasons for decision which the Privy Council has already expressed continue to bind this Court; that is to say, do they form precedent which the Court is under obligation to follow? Are they, in any case, precedents which so far form part of the body of the law as to the precedents, which the Court, whilst not obliged to follow them, ought to do so as an exercise in stare decisis? It is said to be "an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws of the land - not delegated to pronounce a new law, but to maintain the old - jus dicere et non jus dare": see Broom's Legal Maxims 9th ed. (1924), p. 103. But within this body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law. Outside the area of binding precedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced of the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to that which it is accustomed to accord to the House of Lords. (at p591)

22. There are also decisions which have been accepted and acted upon so as to have become part of the body of the law which a court has to apply. Again, whilst not technically bound to follow them, courts generally do so, in the interest of continuity or certainty. (at p592)

23. The question is whether the reasons of the Privy Council should now continue to be regarded as binding precedents to the point that this Court will continue to follow and apply them as of obligation, even when the Court is firmly convinced that the reasons were erroneous. If the answer to this question is negative, there would still remain the question whether or not the Court would continue to accept them under the doctrine of stare decisis. I am of opinion that the first of these is a question of judicial policy upon which the Court as a whole should pronounce. Consequently, I refrain from expressing here my own view on the matter. Thus, I feel it inappropriate in this case to follow the course of giving effect to my own clear opinion of the true meaning of the definition of "injury" in s. 6(1) of the Act. (at p592)

24. On the ground that at the least the employment contributed to the contraction by the respondent of the meningo-encephalitis, I would dismiss this appeal. (at p592)

McTIERNAN J. The decision of the Workers' Compensation Commission in this case, in my opinion, is not correct in point of law. (at p592)

2. The appeal of the worker (the present respondent) to the Court of Appeal was brought in pursuance of s. 37(4) (a) of the Workers' Compensation Act 1926 (N.S.W.), as amended, ("the Act"). The respondent is entitled by the judgment of the Court of Appeal to an award of compensation under the Act, on the application he made to the Commission, against his employer (the present appellant). We are asked on behalf of the appellant in the present appeal to set aside the judgment of the Court of Appeal and to restore the determination of the Commission dismissing the worker's application for an award. In my opinion the Commission ought, in the first instance, to have made such an award. (at p592)

3. The learned judge constituting the Commission, in his judgment, stated the facts proved by the evidence adduced before him. I found my consideration of the case on those facts. (at p592)

4. The provisions of the Act which justify the making of an award on the application are, the definition of "injury" in s. 6(1), and s. 7(1) (a). The definition includes a legislative declaration that "injury ... includes ... a disease". (This legislative declaration applies to the word "injury" in s. 7(1) (a)). The words of the section are 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;"

The word "injury" would apply to any "personal injury". The disease, meningo-encephalitis, which is the cause of the worker's "incapacity" for work, is an injury caused solely by a virus that entered the body of the worker. The outbreak of the disease was not due to any interior cause - it was not an autogenous disease. There is substantial evidence that the infection occurred "in the course of employment" for the contract of employment between the appellant and the respondent imposed upon the latter a duty of continuous service throughout the period of the contract. Section 7(1) (a) provides:

"A worker who has received an injury whether at or away
from his place of employment (and in the case of the death
of the worker, his dependants) shall receive compensation
from his employer in accordance with this Act."

In my opinion it is a correct application of this provision to hold that the worker "received an injury" when his brain was infected by a virus that resulted in the disease meningo-encephalitis, for the fact is that the virus entered the body of the worker. The disease did not originate from a cause within the body of the worker. (at p593)

5. In my opinion the matter should be remitted to the Commission to make an award of compensation for the respondent, binding on the appellant, that the disease of meningo-encephalitis is an "injury" for which the appellant is liable under s. 7(1) (a) to pay compensation "in accordance with this Act". (at p593)

6. I would dismiss the appeal. (at p593)

STEPHEN J. Having considered this matter I have now had the advantage of reading the reasons for judgment of Mason J., with which I am in entire agreement. (at p593)

2. For the reasons stated by him I am unable to accept the view that the disease from which the respondent worker suffers can be regarded as an "injury" simpliciter. For it to be an "injury" it must be shown to satisfy the requirements of par. (a) of the definition of "injury" in s. 6 of the Act. What was said in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 and in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 to my mind preclude any other view. Indeed, quite apart from these decisions, the presence of par. (a) in its present form appears to me to dictate such a conclusion. (at p594)

3. I also agree that the effect of par. (a) is to call for some causal relationship between the disease which a worker contracts and the worker's employment, that that requirement is not as stringent as is involved in the requirement that injury should arise out of employment and that, in the facts of the present case and for the reasons stated by Mason J., the necessary causal element was present. (at p594)

4. For these reasons I would join in dismissing this appeal. (at p594)

MASON J. The respondent worker in the course of his employment with the appellant company was required in September 1968 to go to New York to supervise the maintenance of cranes supplied by the appellant which were being used in a very large construction project near the Hudson River. The peculiar circumstances of his employment in the United States required him to be on call virtually twenty-four hours a day throughout his stay of approximately fifteen months in that country. At some stage prior to his return to Australia the respondent contracted the disease of viral meningo-encephalitis, a disease affecting the brain and which can prove fatal. Although the disease did not prove fatal in this case it caused the respondent to become gravely ill and has left him with considerable physical and mental impairments. Medical knowledge about such a disease is limited and the medical experts called as witnesses could not say with certainty how the respondent contracted the disease. There was no evidence given as to the most likely means by which the respondent was inflicted with the unidentified virus which caused the disease and thus it cannot be said whether the virus was introduced into the respondent by means of the bite of a mosquito, rodent or other animal or simply by means of the respondent consuming food or drink contaminated with the virus. All that can be said is that the respondent became infected with the virus through one of these means. (at p594)

2. The respondent's right to compensation is dependent upon him bringing his affliction within the definition of "injury" covered in s.6 of the Workers' Compensation Act, 1926 (N.S.W.). The definition, so far as relevant, runs as follows:

"'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 ... and to which the employment
was a contributing factor." (at p595)

3. Judge Langsworth found that the respondent contracted the disease in the course of his employment. However, the learned judge went on to hold that the disease did not amount to an "injury" simpliciter and, moreover, was not one to whose contraction the employment was a contributing factor. Accordingly he dismissed the claim for compensation. On appeal, the New South Wales Court of Appeal found unanimously that the disease suffered by the worker was one which came within the extended meaning of "injury" contained in par. (a) of the definition. It is from that decision that this appeal arises. (at p595)

4. The appellant's primary submission, which I shall leave for later consideration, is that the Court of Appeal was in error in holding that the requirement that the employment be a contributing factor to the contraction of the disease had been satisfied. According to this view the phrase "to which the employment was a contributing factor" is at least analogous to the traditional expression "arising out of the employment", that it is satisfied only if the respondent can show that as a result of his employment he was specially exposed to the risk of contracting viral meningo-encephalitis, a conclusion which, it is said, cannot be supported for there was no evidence that there was a greater risk of contracting the disease in the United States where the respondent was compelled to work or that the respondent was specially exposed to the risk by reason of his employment. (at p595)

5. It is convenient to consider in the first instance the respondent's primary submission: that the disease suffered by him comes within the definition of "injury" simpliciter without the need to resort to par. (a) of the definition. It was submitted that since this injury was found to have arisen in the course of the employment that is sufficient to enable the respondent to recover compensation. Although it seems that this argument was not advanced in the Court of Appeal, it was dealt with by Judge Langsworth and a respondent is entitled to support the decision in his favour by any submission of law open on the findings of fact. (at p595)

6. But for the presence of par. (a) in the statutory definition of "injury" I should have had no doubt that the respondent's disability was compensable on the footing that the disease which he contracted was a "personal injury arising out of or in the course of his employment" although it was not associated with some external wound. (at p595)

7. The decision of the House of Lords in Brintons, Ltd. v. Turvey (1905) AC 230 supports this view. It was held there that a workman who was infected through the eye by an anthrax bacillus suffered an injury although there was no abrasion or outward sign of the entry of the bacillus. Again, in Grant v. Kynoch (1919) BWCC 78 , where a worker died as a result of blood poisoning occasioned by the absorption into his blood stream of harmful bacteria, it was held that the blood poisoning constituted an injury which entitled the worker's relatives to compensation, although the bacteria entered the blood stream through a scratch not associated with the employment. The crux of the reasoning was that the contraction of an infectious disease is an injury: see (1919) 12 BWCC, at pp 82-83, 86, 106 ; esp. (1919) 12 BWCC, at p 89 where Lord Buckmaster said: "when the infection has been found ... to be due to the impregnation of germs acquired by a man in the course of and arising out of his employment ... it becomes impossible to distinguish the reasoning that would establish liability, from that used in the case of Brintons, Ltd. v. Turvey ..." (at p596)

8. Buckley L.J., in Martin v. Manchester Corporation (1912) 5 BWCC 259, at p 262 , and Atkin L.J., in Hutchinson v. Kiveton Park Colliery Co. Ltd. (1926) 1 KB 279, at p 291 , also considered that the contraction of a disease resulting from the invasion of the body by bacillus is in itself an injury which is probably compensable. To the same effect is the decision of the New Zealand Court of Appeal in Storey v. Wellington Hospital Board (1932) NZLR 1553 , where in a factually similar situation to that which occurred in Martin v. Manchester Corporation (1912) 5 BWCC 259 each of the members of the Court came to the view that the contraction of the disease of scarlet fever constituted an injury. (at p596)

9. However, it has been affirmatively established that this construction cannot be placed upon the definition of "injury" in s. 6 of the Act because the extended definition which it contains includes certain diseases only. In Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13, at p 20; (1950) 51 SR (NSW) 1, at p 4 , Lord Simonds in construing the former definition of "injury" in the New South Wales Act (which is basically similar to the present definition with the exclusion of the existing par. (b)) said that "in the Act the word 'injury' (unless the context or subject-matter otherwise indicates or requiries) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease". (at p596)

10. Subsequently, in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 , as I read the judgments, no less than four members of this Court, after referring to Lord Simonds' observations, expressed the opinion that compensation is not recoverable "unless the disease possesses the characteristics prescribed" by the statutory definition, per Fullagar J. (1959) 102 CLR, at p 505 ; see also (1959) 102 CLR, at pp 492, 515-516, 518 . In view of this strong body of opinion I do not think that we are justified in now adopting a contrary view. (at p597)

11. The respondent's first submission must, accordingly, be rejected. (at p597)

12. The appellant's submission that the second limb of par. (a) of the statutory definition is virtually synonymous with the concept of causation expressed by the words "arising out of the employment" was founded on observations made in Smith v. Australian Woollen Mills Ltd. [1933] HCA 60; (1933) 50 CLR 504, at p 516 , where the applicant fell against guard rails in the course of a fainting fit. Gavan Duffy C.J., Rich, Dixon, Evatt and McTiernan JJ. said:

"We think ... the conclusion" (is required) "that, because
the form, nature and extent of the injury sustained when the
appellant fell were determined by a characteristic feature of
the premises where he was obliged to work, a feature, in this
case, characteristic of the conditions of employment and not
to be found in ordinary life, the employment materially contributed
to the injury, which accordingly arose out of it."

These observations were taken to suggest some degree of correspondence between an injury to which the employment contributes and an injury which arises out of the employment and to reflect an approach similar to that taken by the House of Lords to the concept of injury "by accident arising out of his employment" - an expression appearing in similar legislation in the United Kingdom and elsewhere - in such cases as Thom v. Sinclair (1917) AC 127 ; Dennis v. A.J. White and Co. (1917) AC 479 ; Brooker v. Thomas Borthwick & Sons (Australasia) Ltd. (1933) AC 669 , and Dover Navigation Co. Ltd. v. Craig (1940) AC 190 . In these cases a distinction has been drawn between injury occasioned by contact physically with some part of the place where the worker works, when no further casual connexion with the employment need be shown, and injury occasioned by natural forces (with which the contraction of disease has been equated) in respect of which the worker cannot recover "unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury" (Brooker's Case per Lord Atkin (1933) AC, at p 677 ). (at p598)

13. The line of distinction thereby suggested is narrow, as Lord Atkin himself admitted (1933) AC, at p 678 . It is a distinction which flows from the necessity of attributing to the words "arising out of" a requirement additional to that signified by the words "in the course of", and one which, as is later indicated, signifies an association of the employment with the accident which "may be even closer than that of proximate cause" (1933) AC, at p 679 . (at p598)

14. Although par. (a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words "in the course of", the requirement suggested by the words "to which the employment was a contributing factor" is not as stringent as that suggested by the concept "arising out of" the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury. (at p598)

15. This construction of the definition is to be preferred to the appellant's suggestion that the language in par. (a) should be given a meaning identical with, or similar to, the concept expressed by the words "arising out of". There is every reason for giving the statutory definition a different meaning; had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used. (at p598)

16. The English decisions, accordingly, have no application to the question in hand and the observations in Smith's Case [1933] HCA 60; (1933) 50 CLR 504 should be read as saying no more than that an injury at the place of work associated with a characteristic feature of the premises is an injury which falls within the statutory definition. The joint judgment should not be regarded as providing an answer to the question whether the statutory requirement is satisfied by something less than an injury associated with a characteristic feature of the premises, this being a question which did not arise for decision and which was not then considered. (at p598)

17. The issue on the facts as found is: Did the employment contribute to the injury? In my opinion an affirmative answer must be returned to this question. In the circumstances of this case which present some distinctive features I am of the opinion that had it not been for the employment then on the probabilities the respondent would not have contracted the disease. The employment exposed him to the risk of contracting the disease, a disease so rare in its incidence that it is improbable that the respondent would have contracted it had he remained in Sydney. Furthermore, the respondent was employed on what was virtually a twenty-four-hour-day basis in the United States. The consequence was that he was able to prove that he contracted the disease in the course of his employment, a finding often beyond the reach of a worker who contracts a disease. (at p599)

18. In the result I would dismiss the appeal. (at p599)

JACOBS J. The respondent in the course of his employment by the appellant was sent by the latter to the United States of America. He was found by the Workers' Compensation Commission to have been in the course of his employment during the whole of the time for which he was out of Australia. He was found to have contracted during the course of this employment the disease of meningeal encephalitis from infection with a strain of virus which could not be precisely identified. Infection by certain kinds of virus can both in Australia and in the United States of America cause meningeal encephalitis. (at p599)

2. The respondent was incapacitated for work and the question is whether he received an injury within the meaning of s. 7(1)(a) of the Workers' Compensation Act, 1926 (N.S.W.). "Injury" is defined in s. 6(1) to mean

"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;" (at p599)

3. If the infection of the respondent with the disease was an injury within the first words of the definition then on the findings of the Commission the injury arose in the course of the employment and the respondent was entitled to compensation. However, if the infection and its consequences were not such an injury but were nothing other than a disease then the statutory definition of "injury" in s. 6(1) of the Act only includes such a disease when it is not only contracted in the course of employment but is also one to which the employment is a contributing factor. (at p599)

4. It would appear to me that the entry of a virus into the human body is an injury within the first words of the definition. By the infection of more and more body cells the injury leads to what may be described as a disease in the sense that it is a pathological condition in the body cells which results in a morbid physical condition of the body. The minuteness of the initial entry or invasion of a body cell does not change its essential nature. It is said, however, that Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 are authorities to the contrary. It is necessary to say something of those cases. They dealt only with a disease of autogenous origin, in each case cardiac disease. When in the former case Lord Simonds stated (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 that by the definition in s. 6(1) the word "injury" included a disease which satisfied certain conditions and therefore by ordinary rules of construction excluded any other disease, he was so stating in the circumstances of that case where there was a finding of fact that the coronary occlusion was solely due to autogenous causes. In the second case there was a finding that the worker was at the relevant time suffering from a progressive heart disease which was reaching its terminal stages. Both cases were the converse of the present case. In both of them it was claimed that the result of the disease - the terminal occlusion - was an injury. This claim was not upheld and it was in that context that it was stated in the one case and reiterated in the second case that once the cause of death or incapacity was found to be a disease then the conditions of the definition must be satisfied and a disease which did not satisfy those conditions was not within the definition of "injury". In each case the sudden conclusion of life was caused by the disease and it was held that this sudden conclusion was not itself an injury but was the terminal stage of the disease. Therefore the conditions in the definition relating to disease needed to be satisfied and were not in fact satisfied. In the present case the claim is the converse, namely, that the result of an injury was a disease, the injury being the invasion of the body by the virus. The reasoning in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 CLR 482 is only capable of being applied to a disease which does not arise from an injury. Thus death or incapacity from the disease of blood poisoning is compensable if the injury which permitted the invasion of the poisonous bacilli occurred in the course of employment, wherever and whenever and however the result of the injury manifests itself in the disease of blood poisoning. The actual injury may be the tiniest lesion which allows the entry of bacilli. It may be even less. It may be the entry into a cell or cells of the body of the bacillus or the virus itself. It is sufficient to prove that the entry occurred in the course of the employment. The entry of the virus was the actual injury in the present case which led to the disease of meningeal encephalitis. This entry of the virus occurred in the course of the respondent's employment. The respondent is thus entitled to an award. (at p601)

5. Alternatively, the respondent is entitled to an award upon the ground that he received an injury, namely, a disease contracted in the course of his employment and to which the employment was a contributing factor. The nature of the work done in the employment need not be a factor contributing to the onset of the disease. It need only be the employment which is the contributing factor. The employment, if the particular nature of the work done therein be irrelevant, is simply the carrying out by the worker of his duties as directed by the employer at a particular place and at a particular time. The respondent was required by the appellant to be at his work at the particular place and at the particular time. At the place and time he suffered the exposure and infection which led to the disease. It must follow that the exposure and infection which led to the disease were the result of him being engaged in his employment at that particular place and at that particular time. This is to say much more than that he contracted the disease in the course of his employment in a temporal sense. In addition to this temporal factor there was the factor of location, not a casual or chance location but a location imposed upon him by his employment which was the actual source of the disease. I find it irrelevant that he might just as well have contracted the disease at another time or place when he was not in the course of his employment, even if this be assumed to be so. Though it is not sufficient that the disease be contracted in the course of the employment, it is sufficient if the disease invades his body as a result of its presence in his place of employment during the time of his employment; then the employment is a contributing factor. The result is that any disease proved to have been contracted by a worker at the place and during the time of his employment, not being a disease of autogenous origin within his body but being a disease contracted as a result of the presence at the place of employment of the organism or other substance which invades or attacks his previously healthy body falls within the conditions prescribed in the definition in s. 6(1). That being so, there is little, if any, difference in result between categorizing the invasion or attacking of the body by a foreign organism as an injury within the first part of the definition of injury in s. 6(1) or as a disease within the second part of the definition. On either approach there is an injury within the definition of that word in s. 6(1). On either approach, therefore, in the present case the respondent received an injury within the meaning of those words in s. 7(1). (at p602)

6. I would dismiss the appeal. (at p602)

ORDER

Appeal dismissed with costs.