2. The appeal was instituted by the Southern Regional Health Board. During the course of the proceedings before me, the parties accepted that the Board had no interest in the matter. At the time that she suffered her injury the respondent was employed at the St John's Park Hospital and as such was an employee of the Crown. The Crown is liable to pay such compensation (if any) which became payable to the respondent pursuant to the Act by reason of her injury. Accordingly, and with the consent of the parties, the Attorney-General was substituted as appellant.

3. As my reasons for concluding that any compensation payable to the respondent is payable by the Crown may well be relevant in other cases of workers employed in the public health system, it is appropriate that I state those reasons briefly.

4. Until the Hospitals Act 1918 was amended by the Tasmanian State Service (Miscellaneous Amendments) Act 1984, s3, a person employed in a hospital under the control of a hospital board was an employee of that board. The latter Act inserted into the Hospitals Act new ss32 and 35(1A). The effect of those provisions was that such a person became an employee of the Crown and that such boards were prohibited from employing persons. Nevertheless, the new s32(3) deemed hospital boards to be the employers of public hospital employees for the purposes of the Workers' Compensation Act 1927. Section 32(3) remained in force when the Act commenced and continued to have application by force of the Acts Interpretation Act, s17. The Hospitals Act was repealed by the Health (Regional Boards) Act 1991 which commenced on 1 July 1991. Section 38 provided that the rights, obligations and liabilities of each former hospital board were transferred to the relevant regional board. Sections 8(4) and 22(3) provided, as to regional boards, in terms similar to those which had been contained in the Hospitals Act, ss35(1A) and 32(3). Subsequently, by the Workers Compensation (Miscellaneous Amendments) Act 1993, s3 which commenced on 23 November 1993, the Health (Regional Boards) Act, s22(3) was repealed. It follows that as to employees in hospitals formerly under the control of a hospital board, until 1 July 1991 the employer for workers compensation purposes was the relevant hospital board, thereafter and until 23 November 1993 it was the relevant regional health board, and thereafter it has been the Crown. Any liability of a hospital board to pay compensation incurred but not discharged at the time of the repeal of the Hospitals Act became the liability of the relevant regional health board.

5. Before a hospital came under the authority of a hospital board, an appropriate Order-in-Council was required (see the Hospitals Act, ss7, 8, 9 and 10). For relevant purposes the Order in force was the Hobart Public Hospitals District Reconstitution Order 1983 which declared certain hospitals within the relevant district to be public hospitals for the purposes of the Hospitals Act. St John's Park Hospital is not one of the hospitals named therein. It was never placed under the authority of a hospital board but was established as an institution under the Public Welfare Institutions Act 1935, s4(1). That Act also was repealed by the Health (Regional Boards) Act but upon the repeal no relevant rights, obligations or liabilities arising under it were transferred to a regional health board. Employees in such institutions always have been employees of the Crown (Public Welfare Institutions Act, s6), although from the commencement of the Health (Regional Boards) Act until it was amended by the Workers Compensation (Miscellaneous Amendments) Act such employees were deemed to be employed by the relevant regional health board for workers compensation purposes. It follows that the liability to pay compensation to persons employed in St John's Park Hospital always has been that of the Crown, except from 1 July 1991 until 23 November 1993 when it was the liability of the Southern Regional Health Board. The respondent's claim is based on an injury suffered on 11 May 1990 so that the proper appellant is the Crown.

6. Where a claim for compensation is referred to the Commissioner, the Act, s42(4) imposes upon him an obligation to determine which persons appear to him to have an interest in the settlement of that claim and to communicate his determination to the Registrar. Such a determination has statutory significance. The persons determined to have an interest are entitled to a notice of hearing (s45(1)) and are to be regarded as the parties to the proceedings (s45(2)). The Commissioner did not determine that the Crown had any interest in the application made by the respondent and accordingly it was given no notice of the proceedings. However, the appellant waived any irregularity which may have attended the proceedings before the Commissioner by reason of any failure to give notice of hearing to the Crown. The parties to the appeal were content that I determine it upon the basis that the Crown had sufficient notice of the reference to the Commissioner. I consider it appropriate to proceed in that way.

7. The respondent made a written claim for compensation dated 23 March 1991 whereby she asserted that she had suffered an injury at her place of employment, St John's Park Hospital at New Town, on 11 May 1990 and that she had given oral notice of injury on the same day. No question of any failure on the part of the respondent to comply with the provisions of the Act, s32(1) arises before me. Such a point originally was taken before the learned Commissioner but later abandoned, presumably upon the basis that there was reasonable cause for the failure to comply with the requirements of s32(1) within the meaning of s38(1). It was common ground before the Commissioner that the respondent had suffered an injury at her place of employment on 11 May 1990 and that incapacity for work had resulted therefrom.

8. No payment of compensation was made consequent upon the claim. On 31 May 1993 the respondent referred the matter to the Commissioner. The form of application obviously was drawn without the benefit of legal advice and its terms are a little obscure. However, the parties are agreed that it is to be taken as an application which effected a reference pursuant to the Act, s42(1) seeking a determination as to whether the respondent was entitled to receive a weekly payment of compensation by reason of the incapacity suffered by her consequent upon her injury. That same approach was taken before the learned Commissioner and he determined the application on that basis.

9. There was no dispute as to the primary facts before the learned Commissioner. The facts as they were found by the Commissioner, or as they appeared from undisputed evidence which was before him, are as follows. On 11 May 1990 the respondent was employed as an enrolled trainee nurse at St John's Park Hospital. On that day she attended a geriatric nursing course at the hospital. She delivered a presentation to the persons attending that course. Upon the completion of her presentation, she sat down and suddenly felt a severe pain in the head. She had suffered an aneurysmal subarachnoid haemorrhage which had occurred acutely and suddenly. That haemorrhage was the result of a ruptured anterior communicating artery aneurysm. The aneurysm was a structural lesion of a type which develops at sites of congenital weakness of the cerebral arterial walls. Such an aneurysm is prone to haemorrhage, generally without there being any specific precipitating factor.

10. The respondent was attended by a neurosurgeon, Mr Hunn. His report of 28 August 1991 was in evidence before the learned Commissioner and in addition he gave oral evidence. In the course of his oral evidence Mr Hunn adhered to what he had stated in that report. The report contained the following:

"Mrs Smith has suffered an aneurysmal subarachnoid haemorrhage. The

incidence of this in a Western population is approximately 10 per

100,000 population per annum. The incidence of cerebral aneurysms

(small, thin-walled, sac-like out-pouchings of the cerebral blood

vessels, usually occurring in the region of the Circle of Willis, at

points of bifurcation) has been suggested in some studies to possibly be

as high as 5% of the population. It appears that not all cerebral

aneurysms will rupture during the course of the lives of the people

harbouring them, but a significant percentage do so. It is felt that

the risk of rupture is approximately 3% per annum (cumulative), and that

the incidence of death or major disability as a consequence of a

subarachnoid haemorrhage is between 40% and 50% at the initial

haemorrhage, with similar risks of catastrophe with ensuing

haemorrhages. Following an initial haemorrhage there is a slightly less

than 5% risk of further bleeding in the initial twenty-four hours, which

decreases only slightly in the subsequent twenty-four hours and

thereafter progressively diminishes.

.........

With specific reference to Mrs Smith, she had mild hypertension which

had been noted to be somewhat labile and smoked 25-30 cigarettes a day.

These factors may have had some bearing on the rupture of her aneurysm,

but cannot be implicated in its development. There is not sufficient

evidence in the literature to conclude that any other factors in Mrs

Smith's lifestyle made her particularly at risk of aneurysm development

or caused the already existing aneurysm to bleed at the particular time

at which her ictus occurred. In particular, the contention that factors

arising from the workplace may have been involved in the precipitation

of her subarachnoid haemorrhage cannot be supported. It must be, I am

afraid, regarded as coincidence in time only that she was at work at the

time of the haemorrhage, and that the haemorrhage itself must be

regarded as a consequence of the natural history of her anterior

communicating artery aneurysm"

11. The determination of this appeal turns on a proper construction of the Act, s25(1) and of the definition of "disease" contained in s3(1). The statutory definition of "disease" contained in s3(1) is that it "means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development". Relevantly, s25(1) provides as follows:

"25 - (1) If in any employment -

(a) a worker suffers an injury, not being a disease, arising out of and

in the course of his employment; or

(b) a worker suffers an injury, which is a disease, arising out of and

in the course of his employment and to which his employment contributed

to a substantial degree,

his employer is, except as is otherwise provided by this Act, liable to

pay compensation in accordance with this Act - "

12. It was common ground between the parties that if the injury suffered by the respondent was a disease, then it neither arose out of or in the course of her employment nor was it one to which her employment had contributed to a significant degree. It also was common ground that if the injury suffered by the respondent was not a disease, then it arose out of and in the course of her employment by virtue of the deeming provision contained in s25(5)(a). The appeal falls to be determined by reference to whether the injury suffered by the respondent was or was not a disease. If it was, the respondent did not become entitled to compensation. If it was not, the respondent became entitled to compensation.

13. By reference to the dictionary definitions of the words "ailment", "disorder", "defect" and "morbid" counsel for the appellant made the bold and startling submission that the definition of "disease" is so wide as to encompass any conceivable injury which a worker might suffer, so that there is no room for the operation of s25(1)(a). That submission must be rejected. Parliament has provided for the division of injuries into two categories. What must be established before an injury gives rise to an entitlement to compensation depends upon the category into which the relevant injury is to be placed. From that it follows that the word "disease" is to be construed in such a way that some injuries are and some are not diseases within the meaning attributed to the word "disease" by s3(1). The construction contended for by the appellant would make a nonsense of the definition of "injury" contained in s3(1) and would mean that s25(1)(a) and s25(5) would be otiose.

14. Counsel for the respondent submitted that a rejection of the appellant's primary submission must result in the appeal being dismissed because any remaining issues are issues of fact. The Act precludes any appeal on a question of fact. I do not accept that submission. There is no challenge to any finding of fact made by the learned Commissioner. The nature and physiology of the injury suffered by the respondent is not in dispute. The respondent relied upon Brutus v Cozens [1972] UKHL 6; (1973) AC 854 but that case readily may be distinguished. It concerned the question whether certain behaviour answered to the description of being "insulting", insulting behaviour being the proscribed conduct. Insulting not being used in any technical sense, then provided that the conduct was capable of being considered to be insulting, a judgment that it was insulting was a question of fact. No such question arises on the present appeal. The appellant's submissions are that the learned Commissioner's conclusion that the respondent suffered an injury which was not a disease was one which he reached by way of an erroneous construction of the Act or was a conclusion which was not open to him on a proper construction of the Act. Those submissions are to the effect that the learned Commissioner's conclusion was attended by legal error. I adopt the dictum of Hope JA in Marney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 3 that "there may be an error of law if the decision on the facts is one which could not be reasonably entertained or supported if the tribunal had properly understood the true construction of the relevant enactment".

15. I am required to determine the true meaning of the word "disease" contained as that word is defined by s3(1) at least to the extent necessary to enable me to determine whether the injury suffered by the respondent is capable of constituting an injury which is not a disease. The artificial distinction drawn by s25(1) between injuries which are and which are not diseases was adverted to in Electrolytic Zinc Company of Australasia Ltd v Maister [1990] TASSC 29; (1990) Tas R 91 at 111-112, but nothing that was said in that case provides any assistance in establishing the dividing line between injuries which are and those which are not diseases for the purposes of the Act.

16. The distinction was considered by the Full Court in Pasminco Australia Ltd v Fairchild A57/1991. That case concerned a worker who for some time had been suffering from the clinical condition known as tinea, initially without that condition giving rise to incapacity for work. As a result of working conditions, the symptoms of the condition became such that the worker became disabled and suffered incapacity for work. Cox J, with whom Green CJ agreed, said, at 4-5:

"Although the worker for some time had a condition clinically known

as 'tinea' which falls within the definition of 'disease' in s3(1), no

question of an entitlement in respect of it could arise in the abstract.

What gives rise to an entitlement is the suffering by him in his

employment of an injury which arose out of and in the course of that

employment. In this case the evidence shows that the injury suffered

was a bout of tinea attended by symptoms of such severity as to

incapacitate him for work. In my view, such condition clearly falls

within the meaning of disease as defined in the Act and is deemed to

have occurred when he became incapacitated for work. ...

The Act does not require proof that the disease was contracted by the

worker in the course of his employment with the appellant. All that is

required is that the disorder or morbid condition (whether of sudden or

gradual development) which constitutes the injury was one which arose

out of and in the course of his employment and to which his employment

contributed to a substantial degree.

... until he was disabled by the symptoms of tinea, the respondent did

not, within the meaning of the Act, 'suffer' any injury and whatever

disorder or defect to which he was subject prior thereto was not a

disease which he suffered. When disability eventuated he was shown, on

the evidence, to be suffering from a morbid condition which could itself

properly be described as a disease and for which he was entitled to

compensation if he could establish that it arose out of and in the

course of his employment and that it was a condition to which his

employment contributed to a substantial degree. ... it is the

condition at the time of disablement which must be classified as a

disease or not ..."

17. That case does not purport to lay down any definitive test as to what is and what is not a disease for the purposes of the Act. However it establishes that the relevant inquiry is to be directed to the condition of the worker at the time of disablement and that a condition which answers to the description of being a disease remains a disease if it becomes disabling by reason of some external occurrence.

18. I consider that the key to the distinction between injuries which are and which are not diseases is to be found in the word "development" appearing in the definition of "disease". That word suggests that the definition is limited to conditions which might be said to develop. It is implicit from the use of that word that the definition is concerned with autogenous conditions and conditions which find their origin in the environment in which a worker finds himself which naturally progress (whether gradually or suddenly) as distinct from physiological change, not related to any such condition, which results from external trauma. The external trauma which made the pre-existing tinea (which in itself was a disease) in Pasminco Australia Ltd v Fairchild (supra) incapacitating did not result in the worker having suffered an injury other than a disease. It remained a disease, namely tinea. On the other hand the physiological change which occurs when a worker falls and breaks his leg is not an injury which is a disease because it cannot aptly be described as having developed in the relevant sense. Where an injury finds its origin in an external traumatic event causing immediate injury and is unrelated to any condition from which the worker is suffering, it is not an injury which is a disease because it cannot be said to have developed. That view is consistent with the approach taken by Crawford J in FAI General Insurance Company v Morrisson A79/1993. Where an injury is suffered by a developing clinical condition becoming disabling, then it is an injury which is a disease, even if some external trauma has caused it to become disabling. I find it unnecessary to further define what is and what is not an injury which is a disease. I have not purported to lay down an exhaustive test. It is preferable to develop this on a case by case basis. What I have said is sufficient to determine the present appeal.

19. The learned Commissioner proceeded upon the basis that the cerebral aneurysm, from which the respondent had suffered for some time, fell within the definition of disease, albeit that prior to the rupture it had not led to any incapacity so that the respondent had not then suffered an injury for the purposes of the Act. In so proceeding the learned Commissioner was clearly correct. However he took the view that the rupturing of the aneurysm ought to be treated as quite distinct from the aneurysm itself and therefore not part of that disease but an injury which was not a disease. In support of that view he relied on Accident Compenation Commission v MacIntosh [1991] VicRp 65; (1991) 2 VR 253 and authorities relied upon by him in an earlier decision of his: Workers Rehabilitation and Compensation Corporation v Ascione (1989) 52 SASR 122; O'Neill v Lumbey (1987) 11 NSWLR 640. I do not consider that those cases are of assistance because none of them concerned a definition of "disease" in the wide terms which appear in the Act.

20. The undisputed evidence of Mr Hunn established that an aneurysm subarachnoid haemorrhage is a common result of having a cerebral aneurysm because it has a reduced capacity to withstand the normal pressures of blood flow. The evidence did not permit a conclusion that the haemorrhage had occurred for any other reason.

21. Even if there had been some identifiable external event which had precipitated the rupture I doubt whether the learned Commissioner could have come to the conclusion that the respondent had suffered an injury which was not a disease. The reasoning of Clarke JA in O'Neill v Lumbey (supra) which is to the contrary turned on the ordinanry meaning of the word "disease". The absence of any external cause for the rupture makes that conclusion entirely insupportable. The symptoms which led to the respondent's incapacity cannot be separated from the clinical condition which made the respondent prone to suffering those symptoms and without which she would not have suffered them. Those cases which have reached a different conclusion ought to be distinguished because they were concerned with statutory provisions which did not deem such a clinical condition to be a disease. The Act does deem such a clinical condition to be a disease. It is not appropriate to separate, into an injury which is a disease and an injury which is not a disease, a clinical condition which, without external intervention, makes the subject prone to suffering, and results in the subject actually suffering, a condition which by spontaneous operation of the body causes disablement.

22. The event causing the disablement must be treated as part of the development of the condition. To hold otherwise would be to hold contrary to what was decided in Pasminco Australia Ltd v Fairchild (supra). The respondent suffered from a disorder which initially manifested itself in a non-disabling way and then upon further development became disabling. Even if it is appropriate to consider the haemorrhage as a separate event it still is a condition which has developed suddenly which comes within the definition of disease. Applying the relevant legal principles the learned Commissioner could not but have come to the conclusion that the respondent suffered an injury which was a disease. In the light of the concessions made by counsel the result must be that the Commissioner's determination must be reversed.

23. The appeal is upheld. The order of the learned Commissioner whereby he determined that the respondent was entitled to be paid compensation pursuant to the Act is set aside. In lieu of that order I order that the application to the Commissioner made by the respondent on 31 May 1993 be dismissed.