FEDERAL COURT OF AUSTRALIA

WORKERS’ COMPENSATION – “Injury”- Employee suffered occlusion of cerebral artery followed by stroke in course of employment – Occlusion related to diseased heart valve – Whether incapacity of employee resulted from an “injury” or the progress of a disease – Whether “injury” requires rupture or breaking of tissue – Whether incapacity resulting from sudden physiological change or the progress of a disease constitutes “injury” – Whether inclusive statutory definitions of “injury” should be read to exclude diseases other than those stated within the definition – Workers’ Compensation Act 1951 (ACT), ss 6(1), 7(1).

Workers’ Compensation Act 1951 (ACT), ss6(1), 7(1)

Safety, Rehabilitation and Compensation Act 1988 (Cth), s4(1)

Compensation (Commonwealth Government Employees) Act 1971 (Cth), s5

Kavanagh v The Commonwealth (1960) 103 CLR 547, considered

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, approved and followed

Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486-488, followed

Slazengers (Australia) Pty Ltd v Ivy Phyllis Eileen Burnett [1951] AC 13, disapproved

Peart v Hume Steel Ltd (1947) 47 SR (NSW) 384, considered

Hume Steel Ltd v Peart (1947) 75 CLR 242, considered

Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482, disapproved

Hockey v Yelland and Others (1984-85) 157 CLR 124, disapproved

Accident Compensation Commission v McIntosh [1991] 2 VR 253, at 257, 262, approved and followed

Re Williams and Australian and Overseas Telecommunications Corporation (1993) 17 AAR 308, considered

Re Lott and Comcare (1996) 44 ALD 741, considered

Smith v Attorney-General (1994) 4 TasSR 298, considered

Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302, applied

Commonwealth of Australia v Whillock (1983) 48 ALR 433 at 450-451, per Northrop J, (dissenting), applied

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

VESELA PETKOSKA v KENNEDY CLEANING SERVICES PTY LIMITED

AG 90 of 1997

JUDGES:       HIGGINS, FINN AND MERKEL JJ

PLACE:          CANBERRA

DATE:            12 OCTOBER 1998

                                                                                                     GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA           )

                                                                                         )                                 AG 90 of 1997

CANBERRA DISTRICT REGISTRY                         )

                                                                                         )

GENERAL DIVISION                                                  )

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:           VESELA PETKOSKA

                                    Appellant

AND:                      KENNEDY CLEANING SERVICES PTY LIMITED

                                    Respondent

JUDGES:       HIGGINS, FINN AND MERKEL JJ

PLACE:          CANBERRA

DATE:            12 OCTOBER 1998

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by her Worship, Magistrate Fryar, at first instance be restored.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

                                                                                                     GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA           )

                                                                                         )                                 AG 90 of 1997

CANBERRA DISTRICT REGISTRY                         )

                                                                                         )

GENERAL DIVISION                                                  )

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:           VESELA PETKOSKA

                                    Appellant

AND:                      KENNEDY CLEANING SERVICES PTY LIMITED

                                    Respondent

JUDGES:       HIGGINS, FINN AND MERKEL JJ

PLACE:          CANBERRA

DATE:           

REASONS FOR JUDGMENT

HIGGINS J:

1.                  On the 9^th September 1992, the appellant suffered a stroke whilst at work.  She was then employed by the respondent.  It resulted in incapacity for work.

2.                  She made a claim for compensation pursuant to the provisions of the Workers’ Compensation Act 1951 (ACT) (WC Act).  At first instance an issue was raised as to whether the appellant worker had sustained “personal injury” or had suffered the effects of a “disease” and not “personal injury”.

3.                  If the former, then s7(1) of the WC Act would be applicable and the worker would be entitled to compensation if the injury arose “out of or in the course of” her employment.  It was conceded that condition was satisfied.

4.                  If the latter, then s9(1) of the WC Act was applicable.  The worker would be entitled to compensation only if:

“…any employment of the worker by his or her employer was a contributing factor to the contraction of the disease or the aggravation acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment.”

5.                  It was conceded that the medical evidence did not support that conclusion.

6.                  The term “injury” is defined by s6(1) of the WC Act as meaning:

“…any physical or mental injury…[and] includes aggravation, acceleration or recurrence or a pre-existing injury[1].”

7.                  “Disease” is defined inclusively as:

“…any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease.”

The facts

8.                  The facts were not in dispute.  The medical evidence established that the worker had a pre-existing medical condition being a stenosis, or partial blockage, of the mitral valve.  The mitral valve is one of the valves controlling blood flow into the heart.  That condition could be described as a disease.  A symptom of the diseased mitral valve was cardiac arrythmia.  That followed from dilation of the left atrium.  Such a condition may give rise to the formation of an embolism, or blood clot.  That is what occurred in this case.

9.                  Thereafter the embolism came away and entered the worker’s arterial system.  It travelled to the brain and there occluded, or blocked, a cerebral artery.  That occurred in the left tempero-parietal region of the brain.  Very shortly thereafter whilst at work the worker suffered a stroke which has resulted in her then and continuing incapacity for work.

10.              It is conceded on behalf of the worker that none of the above stated mechanisms was in any way caused or contributed to by the work activity or any aspect of it.

The decision at first instance

11.              Magistrate Fryar delivered her decision on 24 June 1997.  Her Worship identified the issue to be decided as being whether or not the circumstances leading to the stroke suffered by the worker should be characterised as an “injury”.

12.              Her Worship’s finding on that point was succinctly expressed as follows:

“The applicant [worker] has a diseased heart valve, but the applicant’s incapacity is caused by the injury to her brain, the stroke.  Clearly something physical has happened causing an injury to that part of the brain, something that in my view, although probably initiated by the disease of her heart, is not a part of the progression of the disease.

In the words of Justice Kirby in Zickar’s case, “What occurred was a sudden or identifiable physiological change which could probably be described as a personal injury, not being a disease.”

The fact that this applicant’s injury was caused by an occlusion rather tha[n] a rupture is, in my view, in this case, of no moment.”

The appeal

13.              On 10 July 1997, the employer appealed to the Supreme Court.  The sole issue raised, though variously expressed, was whether her Worship had correctly characterised the process leading to incapacity as “injury” rather than merely the progress of a “disease”.

14.              Crispin J delivered his decision on the appeal on 7 November 1997.  The appeal was allowed and the award set aside.  In lieu of it, the application was dismissed.

15.              His Honour acknowledged that the fact that a sudden physiological change has been caused or provoked by disease, does not prevent it from constituting a physical injury.  Nor does the lack of an external cause necessarily exclude the disabling event from being correctly categorised as an injury.

16.              In Kavanagh v The Commonwealth (1960) 103 CLR 547, his Honour noted the worker had suffered a ruptured oesophagus as a result of vomiting induced by some illness or ailment.  That rupture, though a result of that disease, was held to constitute a personal injury.

17.              Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 was the case to which her Worship had referred in her reasons for decision.  As his Honour noted, that case involved the sudden rupture of a cerebral aneurism.  The majority accepted that the rupture was an “injury”, though it was a consequence of a congenital condition.

18.              His Honour accepted that there was little logic in regarding the rupture of the oesophagus which occurred in Kavanagh as “injury” but not asphyxiation if the vomiting had blocked the windpipe instead of rupturing it.

19.              Nevertheless, his Honour considered that the judgments of Toohey, McHugh and Gummow JJ in Zickar:

(13)“…indicate that if a stroke occurs due to the occlusion of an artery by a clot generated as a result of some antecedent disease, none of these events can be regarded as a personal injury.  Some actual physical rupture is required.”

20.              His Honour further concluded that whilst Kirby J had not addressed this issue it was clear from his judgment, (at 352) that he also regarded the sudden tear which caused the hemorrhage (sic) and the clot as the “personal injury”.

21.              In consequence, his Honour was of the view that s7 of the WC Act had no application to cases of occlusion, only to cases of rupture of tissue.

The Appeal to the Federal Court

22.              On 26 November 1997 the worker appealed to this Court.

23.              The issue before this Court was the same as that before the learned magistrate and Crispin J.

24.              Did the process leading to incapacity involve an injury or was it merely the result of the progress of a disease?  That it might also be the result of the progress of a disease would not prevent a finding that the incapacity was also the result of an injury.

25.              Extensive argument was addressed to the issue as to whether, to constitute “injury”, the diseased organ or part of the body must induce, or be subjected to, rupture of tissue.

26.              In both Kavanagh and Zickar there had been a rupture of tissue.  That such a process could be described as “injury” does not logically imply that the “sudden physiological change” referred to by Dixon CJ in Kavanagh could only be a rupture.  That, however, was the respondent’s contention.

27.              In this case, the blood clot travelling to the brain blocked an artery in the brain causing a stroke.  It is difficult to see why the fact that the artery was choked off rather than ruptured should make a difference.

28.              Recently, in Australian Postal Corporation v Burch (1998) 156 ALR 483, a Full Court of this Court considered whether a cerebral artery occlusion resulting in a stroke could be regarded as “injury” within the meaning of s4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).  The definition of “injury” and of “disease” in that Act is not materially different from those appearing in the WC Act.

29.              Dealing with a contention that there had to be some “rupture” or “breaking” of some tissue, their Honours said:

(487)   “However the fact that cases such as Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature.

(488)      Here the stroke was the injury.  There was no contest as to what a stroke was.  It was a disturbance of the normal physiological state (Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252-3) or an ascertainable lesion or dramatic physiological change (McIntosh at 257).”

30.              With respect, I entirely agree.

31.              How then are cases such as Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 to be distinguished?  Slazengers case was a decision of the Privy Council on appeal from the High Court of Australia.

32.              In that case, the worker had suffered from hypertension and myocardial degeneration.  He suffered a coronary occlusion whilst travelling to work.  The occlusion was not caused or contributed to by his work or the journey.

33.              Their Lordships noted that in Peart v Hume Steel Ltd (1947) 47 SR (NSW) 384; affd 75 CLR 242 the detachment of a piece of the lining of a coronary artery, leading to its occlusion, had been held both by a Full Court of the Supreme Court of New South Wales and the High Court to be “injury”, though the detachment was due to a disease process.  That case was distinguished by their Lordships on the basis that in Slazengers case the actual mechanism leading to the coronary occlusion was not known.  It was also distinguished on the basis that the detachment in Peart’s case could be regarded as having been related to the exertion of the journey itself whereas that was not the case with Mr Burnett.

34.              The latter proposition did not form part of the reasoning of Latham CJ when Peart’s case was considered by the High Court.  His Honour held that the coronary occlusion was an “injury” within the usual meaning of that term.

35.              On the other hand, Dixon J noted that, whilst “injury” might also be the result of “a disease”:

(257)“It is not necessary to show that it [the coronary occlusion] was the result of some definite thing he [the worker] did in the course of his work. If in the normal course of his work, owing to imperfect arteries or whatever other internal organ may have been diseased, the workman breaks down and dies, it is sufficient although you cannot point to a specific injury resulting from a specific act.”

36.              His Honour also observed that there was also authority in the Court of Appeal (UK) that:

(258)“unless the weakness or illness of the workman is the sole cause of the accidental injury to, or death of, the workman, the employer is liable.”

37.              Nevertheless, his Honour considered that, as the relationship between the coronary occlusion and the exertion of the journey sufficed to render the death compensable, it was unnecessary to determine whether, absent that contribution, the death could also be regarded as “injury”.

38.              McTiernan J simply stated, at 260:

“The workman in the present case died from a coronary occlusion which was due to a small piece of the lining of the artery having loosened and blocked the artery.  This was an injury within the accepted connotation of physical injury in this field of legislation.”

39.              Thus, in his Honour’s view, it was unnecessary to consider whether the employment - or the associated journey - had contributed to the end result.

40.              The view of Starke J accorded with that of Dixon J.

41.              Rich J agreed with the view of Jordan CJ in the court below that the event in question was an “injury” whether or not it was the result of a “disease”.

42.              It was, therefore, not entirely a fair summary of the effect of the decision, both of the NSW Supreme Court and of the High Court, to say of it, as their Lordships did:

(19)“These points of difference [ie that the occlusion in Peart’s case was the result of physical effort and that the mechanism of the occlusion was known], which at least established a causal connexion (sic) between the injury and the journey, were regarded as material by some at least of the learned judges of the High Court who took part in the decision of Peart’s case.”

43.              Their Lordships clearly did not rest their advice that the appeal in Slazengers case should be upheld on the narrow ground that the cause of the occlusion was unknown.

44.              It is true that Jordan CJ in the Supreme Court had not confined “injury” to particular mechanisms of a disease and its progress towards creating the relevant consequence (see 47 SR (NSW) 384 at 386-7).  Davidson J, did not find it necessary to so decide.  Dixon and Starke JJ took a similar approach on the appeal.  Davidson J based his decision on the operative effect of the exertion.  However, he did acknowledge that if the occlusion had occurred “in the course of employment” it would have been compensable even absent such a connection. Street J concurred with Jordan CJ.

45.              Their Lordships purported to adopt the reasoning of Dixon J in Peart’s case but, in doing so, appeared to misunderstand the effect of his Honour’s reasoning.  They assumed that those judges who had accepted the occlusion as “injury” without reliance on the second part of the definition had given a different meaning to the word “injury” in s7(1)(a) and s7(1)(b) (journey provision).  That was correct but only insofar as the definition in s6 had referred to “injury” in the course of employment.  Sub-section 7(1)(b) had not been expressed in terms of deeming a journey to be “employment”.

46.              Having declined to accept the correctness of the interpretation adopted by Latham CJ of the definition of “injury” in the “journey” provision at s7(1)(b), their Lordships felt at liberty to depart from the reasoning of the majority in Peart’s case.  The reasoning adopted by their Lordships instead seems to have been expressed in the following passage:

(22) “If the injury received by the worker during his journey is some injury other than a disease, eg., a broken limb resulting from a collision, it will be an injury received in the course of his employment and he will be entitled to compensation:  if the injury is a disease “received” (a difficult word in this connexion (sic) to give effect to) during the journey, and if it is a disease to which the employment, including the journey, was a contributing factor, then equally he will be entitled to compensation.”

47.              It will be noted that the reasoning of the majority of the High Court in Peart’s case, did not adopt the wide view of “injury” adopted by Jordan CJ.  Their Honours did acknowledge that there was a difference between getting hurt and becoming sick (the latter would not generally be described as an “injury”).  However, it is abundantly clear that no formulation had been adopted by any of them, for or against the inclusion of coronary occlusions as within the possible scope of “injury”, if the nature of the progression of the disease process permitted the disabling event or stage to be characterised as “injury”.

48.              The Privy Council agreed that not every physiological change suffered in the course of employment or a protracted journey is “injury”.  Their Lordships went further, however, holding that if the disabling condition had been the consequence of disease it could not also be an “injury”, at least so far as the journey provisions were concerned.  That conclusion, if it be what their Lordships intended, is clearly contrary not only to Peart’s case but also to subsequent High Court opinion as expressed in Kavanagh and Zickar.

49.              Slazengers case was followed by the High Court in Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482.  Compensation was denied to a worker who, on a journey to work, had suffered a coronary occlusion.  The occlusion was found to have been caused by a large blood clot.  Medical evidence assumed that the clot had formed, as a result of severe heart disease, in that artery and, it seems, at the place of the ultimate occlusion.  The occlusion was not regarded as having been contributed to by the journey or as a separate disease contracted in the course of the journey.  “Disease” as opposed to injury, Dixon CJ considered, was intended:

(496)”…to cover what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature.”

50.              It is apparent that his Honour was of the view that, absent any new or separate condition attributable to the employment or the journey being found, the claim must fail.  The definition of “injury” in s6 of the NSW Act, as then framed, was regarded, in the light of Slazengers case, as excluding any “disease” not defined as falling within it.

51.              Fullagar J held that the death was only compensable if the disease causing it had been contracted in the course of the journey or had been contributed to by the employment.  His Honour did not regard the blocking of an artery as “injury” within the meaning given that word in the Act.  His Honour considered that Slazengers case required that Peart’s case be overruled.

52.              Kitto J considered that, but for the particular definition of “injury” in the NSW Act, an occlusion suffered as a result of the build up of the blood clot would be regarded as “an injury by accident” (at 509).  The statute in question, however, in his Honour’s view, had defined injury so as to exclude “disease”, unless of the limited category referred to in s6(1) of the NSW Act.

53.              Taylor J commented on the effect of the Privy Council decision in Slazengers case, as follows:

(515) “…their Lordships…did not deny that a worker already debilitated by disease, and with a condition predisposed to some sudden physiological change, may receive an injury within the meaning of the first limb of the definition when such a physiological change is caused or results in some material degree from some incident of his employment or of his daily or periodic journey.”

54.              Taylor J, contrary to the opinion of Fullagar J, was of the view that Peart’s case did not need to be overruled.  He considered that Peart’s case could be distinguished, based on the acceptance of a causal connection between the dislodgment of the fragment of the lining of the artery and the journey in question.

55.              Windeyer J was not prepared to countenance a distinction between particular mechanisms whereby heart disease might lead to occlusion (at 518-522).  In either case, in his Honour’s view, the death was a result of disease and, therefore, not a result of injury.

56.              Two conclusions follow from the above.

57.              First, there is no majority view that the natural and ordinary meaning of the term “injury” does not include sudden physiological change, even if that change is a consequence of disease.  Second, it was the Privy Council’s view of the statutory definition of “injury” under the relevant New South Wales legislation which was accepted as excluding disability or death as a result of disease, unless the disease was of a kind falling within the inclusive words of the definition referring to “disease”.

58.              In Hockey v Yelland (1984) 157 CLR 124, where a burst blood vessel in the brain had led to disability, the definition of “injury” under Queensland legislation was similarly construed so as to include the effect of a disease only if employment was a contributing factor.  The question in that case was whether it had been open to the tribunal of fact, as a matter of law, to determine that the circumstances found to have occurred amounted to disability arising from “disease” rather than “injury”.  It was held that such a conclusion had been open on the facts.

59.              The opinions in that case are, therefore, of no assistance in the present case.  In contrast, the Victorian Supreme Court Appeal Division was able to find, in Accident Compensation Commission v McIntosh [1991] 2 VR 253, that a rupture of blood vessels, such as had occurred in Hockey, was, under the definition in the relevant Victorian legislation, an “injury”, even though it was also a consequence of the progress of a disease.

60.              That definition was, in its opening terms, indistinguishable from that of the ACT Act.  The words of inclusion following, referring to certain categories of disease, were held by Murphy J, with whom Crockett and Cummins JJ agreed, not to exclude from “injury”, diseases, or the effects thereof, if the particular disabling effect would otherwise be regarded as “injury”.

61.              In the view of Murphy J, “injury” in its normal usage would include the rupture of an artery.  His Honour noted, at 257:

“It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change[my emphasis] causing incapacity and occurring during a protected period is an “injury” within the meaning of the Workers Compensation Act (Vic).”

62.              That included a “defined, separate, and observable step in the progress of a disease”, occurring during a “protected period”.

63.              What then of the “climax” or “culmination” of a progressive disease?  When is that an “injury”?  Responding to the contention that if the “observable step” was a consequence of a progressive disease and not contributed to by some external event – exertion for example - it could not be regarded as an “injury”, his Honour said:

(262) “I have the utmost difficulty in accepting such a proposition.  If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur.  An occlusion caused by the distinct flaking off of a platelet, and the blocking of an already narrowed arteriosclerotic artery is quite distinct from the diseased condition of the artery itself.  So also is a rupture distinct from its aetiology, whether progressive or not.”

64.              With respect, that distinction seems to me to be correct.  In those jurisdictions, as in the ACT, where “injury” is not defined so as to exclude a disease and its progress, unless of a limited class, that commonsense distinction between the mere consequence of a disease and an “injury” is, in my view, compelling.  It does not rely on any artificial distinction between a rupture of tissue and an occlusion.

65.              A gradually developing morbid condition may or may not answer the description of an “injury” when it reaches a disabling stage.  It will do so if, as in this case, the disability or death is a consequence of a distinct step or event, albeit precipitated by, and forming part of, the disease process.

66.              That analysis has been previously applied to cases of “injury” resulting from occlusion (see Re Williams and AOTC (1993) 17 AAR 308 and Re Lott and Comcare (1996) 44 ALD 741).  Conversely, where the relevant definition of “injury” has been regarded as excluding the consequence of disease, a burst aneurism leading to disability in consequence of a sub-arachnoid haemorrhage has been held not to be an “injury”.  That was because, as in Hockey v Yelland, under the relevant Tasmanian legislation, it was accepted that the Court had first to be satisfied that the event causing disability or death was not a result of a disease – see Smith v Attorney-General (1994) 4 TasSR 298.

67.              It is noteworthy that the decision in McIntosh was approved by the leading majority judgment in Zickar.  The minority had adopted the previously accepted view of the definition of injury in the NSW Act; that “injury” should be read as if disease and the progression thereof, other than as defined, was excluded.  The majority did not accept that view.  Kirby J was even more forthright than the rest of the majority in rejecting the view that an inclusive definition should be read as if it excluded all but certain categories of disease.  His Honour would have regarded Slazengers case and Hussey as overruled.  Peart, a case of occlusion, was in his Honour’s view, correctly decided.

68.              I would respectfully adopt his Honour’s conclusion, at 352:

“The approach to the definition of “injury” which I favour does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of “personal injury”, primarily so defined.  Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a “personal injury” can be left to determination on a case by case basis.”

69.              That also seems to accord with the view of Murphy J in McIntosh’s case.

70.              It seems to me to follow that the construction adopted of the previous NSW Act should not now be regarded as valid.  Zickar correctly states the law, not Slazengers, Hussey or Hockey.

71.              In the case of the ACT legislation there is even less call to read “injury” as excluding “disease”.  The two definitions are entirely separate.

72.              It follows, therefore, in my respectful view, that his Honour fell into error in assuming that a cerebral occlusion could not be regarded as an “injury”.  In my opinion, her Worship’s decision was correct.

73.              I would, therefore, allow the appeal and restore the orders made by the learned Magistrate at first instance.

I certify that this and the fourteen (14) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins

Associate:

Date:       12 October 1998

REASONS FOR JUDGMENT

FINN AND MERKEL JJ:

1.                  We have read the reasons of Higgins J and agree with the orders proposed.  Given his Honour’s treatment of the issues raised on the appeal we wish only to make the following observations.

2.                  We would preface what we have to say by noting that ss 7 and 9 of the Workers Compensation Act 1951 (ACT) (“the Act”) and the s 6 definitions of “disease” and “injury” are, insofar as presently relevant, similar to ss 27 and 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) and to its s 5 definitions of “injury” and “disease”.  The latter statute and its successor – the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) -  have been the subject of several recent decisions in this Court, including the Full Court, that are germane to the central issues of this appeal.

3.                  The principles established by the decisions may be summarised as follows.

(i)                  The Act treats “injury” and “disease” as “different in nature”:  Australian Postal Corporation v Burch, FCA, 6 February 1998, Northrop J.  A disease as such is not deemed to be an injury unless the requirements of s 9 of the Act are satisfied.

(ii)                A disease in a given instance may itself create a pre-disposing physical condition such that a later physical incident or event, while not an inevitable or inexorable progression of the condition, is nonetheless more likely to occur and to have injurious consequences.  Where such consequences are occasioned they may properly be attributed to that incident or event rather than to the disease that predisposes the person to that incident or event, and so be characterised as an “injury” under the Act:  see Health Insurance Commission v Van Reesch (1996) 45 ALD 302 (a decision of the Full Court on the 1971 Act) and the cases referred to therein;  see also the dissenting judgment of Northrop J in Commonwealth of Australia v Whillock (1983) 48 ALR 433 at 450-451.

(iii)               It is not a prerequisite to the finding of “injury” that is of an internal nature that the event or incident referred to in (ii) above involve a “rupture or breaking”.  An occlusion, such as a stroke, causing a disturbance of the normal physiological state, for example, would suffice:  see Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486-488 (a decision on the 1988 Act which was handed down after the conclusion of argument in the present case) which applied Kavanagh v The Commonwealth (1960) 103 CLR 547 at 553, Accident Compensation Commission v McIntosh (1991) 2 VR 253 at 263-264, Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252-253, and the majority judgment in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335.

3.         The issues in this appeal are those stated in propositions (ii) and (iii) above and, in our view, have been settled by the authorities cited in those paragraphs.  In particular, the conclusion of the Full Court in Burch in relation to the issue of “rupture”, although a decision on the 1988 Act, is equally applicable to the definition of “injury” under the Act.  That conclusion is sufficient to dispose of this appeal in the appellant’s favour and to warrant the orders proposed by Higgins J.

Associate:

Dated:              12 October 1998