The 'contributing factor' requirement in s 6(1)(a) is satisfied where the employment placed the worker at the location and time of exposure to a disease-causing agent, even where the employment did not specially expose the worker to the risk of that disease.
Later decisions that cite Favelle Mort Ltd v Murray
Decisions cited by Favelle Mort Ltd v Murray
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. 1:4:1976DECISION
1976, April 1.
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] HCA 55; (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 theThe 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:
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;"
"A worker who has received an injury whether at or awayIn 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)
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."
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, becauseThese 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)
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."
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] HCA 55; (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.