Bird v Commonwealth ("Maralinga case") [1988] HCA 23; (1988) 165 CLR 1 (20 May 1988)

HIGH COURT OF AUSTRALIA

BIRD v. THE COMMONWEALTH [1988] HCA 23; (1988) 165 CLR 1

F.C. 88/020

Workers' Compensation (Cth)

High Court of Australia

Mason C.J.(1), Brennan(1), Deane(2), Toohey(1) and Gaudron(2) JJ.

CATCHWORDS

Workers' Compensation (Cth) - Commonwealth employees - Disease due to nature of employment - Employment deemed contributory factor to contracting disease where regulations specified disease as related to specified employment - Specification of disease and employment involving exposure to particular substance - Whether to be established that specified substance caused disease - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 30 - Compensation (Commonwealth Government Employees) Regulations, reg. 12.

HEARING

1988, April 20; May 20. 20:5:1988

APPEAL from the Federal Court of Australia.

DECISION

MASON C.J., BRENNAN AND TOOHEY JJ: A delegate of the Commissioner for Employees' Compensation made a determination pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") with respect to a claim by the appellant for compensation by reason of carcinoma of the posterior third of the tongue which had undergone metastasis to a lymph node on the right side of the neck. The delegate found that the appellant contracted a disease, namely, right cervical node metastasis from carcinoma of the tongue. He found that the appellant's employment by the Department of Defence was a contributing factor to the contraction of that disease "by virtue of s.30" of the Act. The delegate therefore held the Department liable to pay compensation.

2. An application for review by the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) was dismissed by Spender J., but an appeal to the Full Court of the Federal Court (Davies, Lockhart and Neaves JJ.) resulted in an order allowing the appeal, setting aside the orders of Spender J. and the delegate, and remitting the matter to the Commissioner for Employees' Compensation for reconsideration according to law.

3. Before the delegate the appellant had relied upon the fact that when he was a member of the Royal Australian Air Force he had fitted and removed canisters from aircraft which had collected radio-active air and dust samples after a nuclear test which took place on 3 October 1952, and had subsequently serviced the aircraft when they were contaminated and had taken part in their cleansing. The fitting and removal of canisters occurred during a seven day period. The delegate did not make a finding that the appellant's exposure to any radio-active substance was a cause of the appellant's pathological condition. He found simply that the condition existed and that s.30 was sufficient to establish for the purposes of the Act that the employment was a contributing factor to the condition.



Section 30 reads:

Section 29, where-

(a) an employee has suffered or is suffering from

a disease or the death of an employee results

from a disease;

(b) the disease is a disease of a kind specified

in the regulations as a disease that is

related to employment of a kind so specified;

and

(c) the employee was, at any time before symptoms

of the disease first became apparent, engaged

by the Commonwealth in employment of that

kind,

then, for the purposes of this Act, unless the

contrary is established, the employment in which

the employee was so engaged by the Commonwealth

shall be deemed to have been a contributing

factor to his contraction of the disease."

Pursuant to this provision, reg.12 of the Compensation (Commonwealth Government Employees) Regulations ("the regulations") provides:

"For the purposes of section 30 of the Act, a

disease of a kind specified in the first column

of the First Schedule to these Regulations is

related to employment of a kind specified in the

second column of that Schedule opposite to the

reference to that disease in the first column."

The relevant item in the First Schedule is Item 4 of a group of 25 items. The First Schedule provides, inter alia, as follows:

" FIRST SCHEDULE Regulation 12

DISEASES RELATED TO EMPLOYMENT

------------------------------------------------------------

First Column Second Column

Disease Employment

------------------------------------------------------------

2. Ankylostomiasis Employment in or about a

mine

4. Pathological condition Employment involving

caused by- exposure to or contact

(a) radium or another with radium, other radio-active

radioactive substance; substances or

or x-rays

(b) x-rays

5. Pneumoconiosis Employment involving

inhalation of matter

capable of causing

pneumoconiosis

11.Poisoning by carbon Employment involving

bisulphide exposure to or contact

with carbon bisulphide

24.Primary epitheliomatous Employment involving

cancer of the skin exposure to or contact

with tar, pitch, bitumen,

mineral oil, paraffin or

a compound, product, or

residue of any of those

substances"

4. The delegate considered that the appellant's pathological condition was a disease of a kind specified in Item 4. His express finding was:

"It was concluded that the condition suffered by

Mr. Bird was a condition of a kind caused by

exposure to radiation and to that extent

section 30 was satisfied."

Spender J. put the relevant question in a different way:

"Is the pathological condition from which Mr. Bird

suffers a kind of pathological condition that is

caused by radium, another radioactive substance,

or x-rays?"

The reason advanced by Spender J. for this view was:

"In my opinion, the answer to the present question

is to be found in the words of s.30(b), that the

disease be a disease 'of a kind' specified in the

regulations. The words 'of a kind' have a

purpose to serve. The contention of the

Commonwealth is that it is necessary that the

cancer be caused by exposure to radiation and

s.30 would, on that being done, supply the

required linking between the exposure to

radiation which caused the cancer and the

exposure to radiation in the course of Mr. Bird's

employment with the Commonwealth. On that

argument, it seems to me that the disease

suffered by Mr. Bird would be 'a disease

specified in the first column of the First

Schedule', and the words 'of a kind' would be

otiose."

His Honour accepted the submission of counsel for the appellant that Item 4 "does not import a requirement that it be proved that the cancer from which Mr. Bird suffers was caused by exposure to radiation in the sense of proving that exposure to radiation was a contributing factor to his contraction of that disease".

5. Paragraphs (a), (b) and (c) of s.30 set out the conditions upon the satisfaction of which the section operates. When those conditions are satisfied the section deems "the employment in which the employee was ... engaged ... to have been a contributing factor to his contraction of the disease", unless the contrary is established. This in turn brings the employee within s.29 and imposes a liability on the Commonwealth to pay compensation: see s.27(1). The purpose of s.30, like the purpose of a similar provision considered in Connair Pty. Ltd. v. Frederiksen [1979] HCA 25; (1979) 142 CLR 485, is "to enable an employee to recover if he could show that the employment in which he was engaged involved a particular liability to, or a special risk of, contracting the disease from which he suffered, although he could not prove that he contracted the disease in the employment of the defendant employer" (per Mason J., at p.502). An employee who cannot take advantage of the presumption in s.30 may nevertheless be able to bring himself within s.29 by showing that his employment by the Commonwealth was a "contributing factor" to the contraction of a disease or its "aggravation, acceleration or recurrence". But s.30 operates only when the employee has suffered or is suffering from a disease of a kind specified in the regulations. The primary question in this case is whether the disease from which the appellant was suffering "is a disease of a kind specified in the regulations". The kinds of disease specified in the regulations for the purposes of s.30 are the kinds specified in the first column of the First Schedule to the regulations: reg.12.

6. In this case, the question is whether the disease which the appellant was found to have contracted is "a disease of a kind" specified in Item 4 of the First Schedule to the regulations. The words "disease of a kind" in par.(b) of s.30 allow a description in terms more general than those which would identify a particular disease. The kind of disease specified in Item 4 is not a discrete pathological condition. It is any pathological condition which is in fact caused by one or other of the nominated substances; but it does not comprehend all pathological conditions which could be caused by the nominated substances. Unless it is found that the pathological condition was in fact caused by one or other of the nominated substances, condition (b) is not satisfied and s.30 does not operate upon the facts of the particular case.

7. The Act, it is true, is remedial legislation and if there is any ambiguity ought not be construed narrowly. But there is no ambiguity. The respondent's argument requires that Item 4 be read as if words such as "of a kind" or "capable of being" appeared after the word "condition". As Stephen J. commented in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201, at p 251:

"To read words into any statute is a strong thing

and, in the absence of clear necessity, a wrong

thing ..."

There is no compelling necessity to read words into Item 4. The true meaning of Item 4 may be gleaned from the corresponding formulation used by the draftsman in Items 6 to 23. Those items prescribe as the relevant disease "poisoning by" a nominated substance. The corresponding items in the second column refer to "Employment involving exposure to or contact with" the nominated substance. Items 6 to 23 of the First Schedule and s.30 together are thus clearly intended to provide the causal link between exposure to or contact with the substance and poisoning which has in fact been caused by the substance. Similarly, Item 4 of the Schedule and s.30 provide the causal link between exposure to or contact with radium or other radio-active substances or x-rays and a pathological condition which has in fact been caused by those substances. The Schedule does not require that the substances to which an employee was in fact exposed or in contact with during his employment be proved to be the actual cause of the poisoning or pathological condition from which a claimant is suffering. The Schedule and s.30 avoid that necessity. But they do require that the poisoning or pathological condition from which a claimant is suffering be caused by substances of the same description as those to which the employee was in fact exposed or in contact with during his employment.

8. In our opinion, the Full Court of the Federal Court correctly construed s.30 and the relevant part of the First Schedule when their Honours said:

" In our opinion, s.30 does not operate unless

the facts show that the disease suffered by the

employee is a disease of the genus, class or

description specified in the first column of the

First Schedule. That is to say, in respect of a

named disease such as Ankylostomiasis, that it is

such a disease; in respect of poisoning by carbon

bisulphide, that it is such a disease; and in

respect of item 4, that the disease is a

pathological condition caused by radium or

another radioactive substance or x-rays."

And so, while it was not incumbent on the appellant to show that his exposure to radio-active substances some thirty years earlier was the actual cause of his condition, it was incumbent on him to show that in fact he had a pathological condition caused by radium or another radio-active substance or by x-rays. Condition (b) is not satisfied in the present case unless it be found that the appellant's pathological condition was caused by "another radio-active substance". That fact was not found by the delegate but the Full Court remitted the matter to the Commissioner in order that he can find whether or not causal relationship existed. That was the right order to make. The appeal should be dismissed.

9. If, when the matter is reconsidered by the Commissioner, he finds that the appellant's condition was caused by a radio-active substance, it will be necessary for him to address the further question arising under the last paragraph of s.30, namely, whether it is established that the employment in which the appellant was engaged by the respondent was not a contributing factor to his contraction of cancer. The delegate made brief mention of this matter in his reasons but he did so against the background of a view of s.30 which was not in accord with the approach we have taken.

DEANE AND GAUDRON JJ: The background facts and the statutory provisions involved in this appeal are set out in the joint judgment of the Chief Justice, Brennan and Toohey JJ. Except to the extent necessary for meaningful discussion, we shall endeavour to avoid repetition.

2. It is common ground that, at a time before symptoms of the carcinoma of the posterior third of the tongue which underwent metastasis to a lymph node on the right side of the neck ("the carcinoma") from which the appellant suffers first became apparent, the appellant was engaged by the Commonwealth in employment which involved his "exposure to ... radioactive substances". Such employment was included among those specified in the Second Column of the First Schedule ("the Schedule") to the Compensation (Commonwealth Government Employees) Regulations ("the Regulations"). It follows that the provisions of s.30 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") operate to create a presumption that the appellant's employment exposing him to radioactive substances was a contributing factor to the "contraction" of his "disease" (i.e. the carcinoma) if the condition is satisfied that that "disease" is, for the purposes of s.30, "a disease of a kind specified in the regulations as a disease that is related to employment" of that kind. Whether that condition is satisfied constitutes the central issue in the appeal. The appellant contends that it was. The respondent Commonwealth contends that it was not.

3. The directly relevant provisions of the Regulations are contained in Reg.12 and in item 4 in the first column of the Schedule. In terms, Reg.12 provides, in so far as is directly relevant, that, for the purposes of s.30, "a disease of a kind specified in the first column" of the Schedule (which is headed "Disease") is related to "employment of a kind specified" opposite it in the second column of the Schedule (which is headed "Employment"). The "disease" specified in the first column opposite the specification in the second column of "(e)ployment involving exposure to ... radioactive substances" is that contained in item 4 which, so far as is directly relevant, is "Pathological condition caused by ... radium or another radioactive substance ...". It follows that the critical question is whether the appellant's carcinoma is, in the words of Reg.12, "a disease" of that "kind". It is now common ground that exposure to radiation is among the possible causes of the carcinoma. That being so, it seems to us that, in the precise words of Reg.12, the appellant's disease is "a disease of a kind specified" in item 4 and that the critical question to which we have referred should be answered in the affirmative. In other words, the carcinoma is "a disease of a kind specified" in item 4 in that it is among the pathological conditions caused by "exposure to ... radioactive substances".

4. There is nothing in the context provided by the other provisions of the Act or the Regulations which warrants or supports a reading down of what we see as the effect, as a matter of ordinary language, of the words of Reg.12 and item 4. To the contrary, to read the reference in Reg.12 to "a disease of a kind" specified in item 4 as connoting not the "kind" of pathological condition caused by exposure to radium or another radioactive substance but a pathological condition which is shown to have been actually so caused, is to ignore the significance of the heading of the first column of the Schedule, which is "Disease" and not "Kinds of Disease", and of the context provided by s.30 of the Act which operates upon the basis that the regulations will create a relationship between specified kinds of disease and specified kinds of employment.

5. Moreover, it is well to remember that employee's compensation legislation, such as the Act and the Regulations, is remedial in its character "and, like all such Acts, should be construed beneficially" (Bist v. London and South Western Railway Co. (1907) AC 209, at p 211). The "established principle" was correctly identified by Fullagar J. in the course of his dissenting judgment in Wilson v. Wilson's Tile Works Pty. Ltd. (1960) 104 CLR 328, at p 335: "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred". If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case (cf. Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), at pp 137-138). Indeed, in McDermott v. Owners of S.S. Tintoretto (1911) AC 35, a case in which the House of Lords read words into a provision of a Workmen's Compensation Act in favour of the employee, Lord Shaw commented (at p.46) that he regarded it "to be quite unsound, and to be productive of wrong and mischief" to interpret such a remedial statute "in the spirit of meticulous literalism". That comment of Lord Shaw was quoted with approval ("a valuable contribution") by Isaacs J. in this Court in George Hudson Ltd. v. Australian Timber Workers' Union [1923] HCA 38; (1923) 32 CLR 413, at pp 436-437.

6. The overall scheme of the Act clearly supports what we see as the effect of the actual words of Reg.12 and the Schedule. Under that scheme, the relevant question (in a case where an employee or former employee of the Commonwealth has contracted a "disease") is not whether the employee's condition was actually "caused" by his employment by the Commonwealth. It is whether that employment was "a contributing factor" to the contraction of the disease. The operation of s.30 of the Act is merely to create a rebuttable presumption that certain kinds of employment by the Commonwealth constitute "a contributing factor" to the contraction of certain kinds of disease. The effect of the construction which we would give to the words of Reg.12 and the Schedule is that there is a presumption that if a person is suffering from the kind of pathological condition caused by exposure to radiation and his earlier employment by the Commonwealth involved his exposure to radiation, there is a rebuttable presumption that his employment was "a contributing factor" to his pathological condition. The construction favoured by the Full Court of the Federal Court has the effect that the rebuttable presumption that the appellant's employment involving exposure to radioactive substances was "a contributing factor" to his "contraction" of one of the kinds of pathological conditions caused by exposure to radiation, will only arise if the employee establishes that that pathological condition was in fact "caused" by exposure to radiation. In other words, that construction requires that an employee must, to obtain the benefit of the s.30 presumption, undertake the often impossible task of proving that the contraction of "his disease" was actually "caused" by some previous exposure to radiation notwithstanding that the ultimate question to which the presumption is directed does not involve a finding about actual "cause", as distinct from "contributing factor", at all. It seems to us that such a construction tends to unduly confine, rather than give a beneficial effect to, the words of the statutory provisions.

7. There remains to be mentioned a subsidiary submission which was advanced on behalf of the respondent Commonwealth. That submission was that, even if the delegate was correct in concluding that the conditions specified in s.30 of the Act were satisfied in the present case, he had misconceived the effect of the provision of that section that "unless the contrary is established, the employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease". In particular, it is suggested that the delegate mistakenly thought that s.30 had the effect that "the possibility that exposure to radiation was a contributing factor had to be excluded". We are not persuaded that it appears from the material before the Court that the delegate misconstrued the effect of s.30 or fell into that particular error. To the contrary, the material before the Court indicates that the delegate found that the presence of "other possible causal factors" did not eliminate the appellant's exposure to radiation in the course of his employment as a probable contributing factor to his contraction of the carcinoma.

8. We would allow the appeal with costs and substitute for the orders of the Full Court of the Federal Court an order dismissing the appeal to that court with costs.

ORDER

Appeal dismissed with costs.