Australian Iron & Steel Ltd v Connell

As appears from the evidence the deceased was a man who, immediately prior to his death, was afflicted by a coronary disease which had reached an advanced stage and when the reasons given by the Full Court are examined it is seen that the answers given to the questions raised by the case rested, in a large measure, upon the acceptance of two propositions. The accuracy of these propositions was, it was thought, a matter of common knowledge but, in addition, there was, according to their Honours, some evidence to support them. These propositions were: - "(1) That the greater the exertion which a person undertakes, the greater is the amount of nourishment (to use the word of one of the medical witnesses) which the heart requires"; "(a) That the degree of exertion which may produce death by reason of cardiac insufficiency will vary with the condition of the particular person's heart. Slight exertion in one case might prove fatal, whereas in another case, greater exertion might be required to produce that result."

With respect to the members of the Full Court, however, it seems to me that acceptance of these "valuable generalizations" (as Herron J. regarded them) cannot, alone, justify the conclusion that the act of walking along the road to the railway station "caused injury to the deceased by aggravating a pre-existing heart disease" or "caused injury to the deceased resulting in his death." No doubt acceptance of the propositions in question may justify a conclusion that exertion may hasten the death of a person whose coronary vessels are impaired or diseased but they are of little, if any, assistance when it is necessary to attempt to assess the inter-relation of exertion and a subsisting coronary disease where, in any particular case, death has resulted. In any such case the question is not whether exertion may have been a factor in causing death but whether it is probable that it was and this must fail to be determined by the evidence in the case. No doubt cases have arisen and will continue to arise where the character and sequence of events may strongly suggest that exertion played a material part in bringing about death (cf. Adelaide Stevedoring Company Limited v. Forst [1] ). But this is not such a case and it is necessary to remember that it is for the applicant to make out a case and that liability is not established merely by proving that exertion may have been a material factor.

Upon consideration I am doubtful whether the medical evidence carries the case even as far as this but, if it does, it carries it no further. We are without any precise knowledge of the pre-existing condition of the deceased and, as far as the evidence goes, he had walked some four hundred yards along a level road, with more than ample time to catch any one of several trains which would have conveyed him to Cringello before his starting time. There was, at one stage, a suggestion that he was running or hurrying at the relevant time and the medical evidence was directed to the effect which exertion of that character would, or rather, could produce. But there was no evidence of any exertion other than walking and both the commission and the Full Court dealt with the case on that basis. Dr. Duck, who was the first witness for the applicant, was asked whether, if the deceased had been "hurrying to catch a train," that "could have (had)" any "effect in the death." He answered this question in the affirmative and when asked to explain what effect that could have had he answered as follows: - "In a condition of defective nourishment of the heart wall, the muscle of the heart, death could have occurred at any time but it would be much more likely to occur under stress of excitement or with physical exertion." Later questions and answers concerning the effect of "hurrying" or "walking hurriedly" throw no real light on the problem in this case but even if there is sufficient in the evidence to justify a conclusion that "walking" may or could play some part in bringing about death in some cases there is not the slightest evidence to suggest that the walk which the deceased undertook either could or did result in or contribute to his death. However, even if it be assumed that it could have been a factor this cannot justify a conclusion that it was.

No doubt we are permitted to know that coronary disease is the cause of many deaths and that sometimes death occurs when the victim is at rest. At other times it occurs whilst he is engaged in some activity which calls for a degree of exertion. In the latter category there will, doubtless, be found cases where exertion was a factor contributing to death whilst in other cases the connexion between the exertion and the death will be no more than temporal. Whether there is a causal, as opposed to a merely temporal, connexion may possibly appear, sometimes, from a significant sequence of events. At other times it may be established by more precise evidence but such a connexion must be shown by a balance of evidence in order to establish liability. In the present case no such connexion appears from the evidence and, in my view, the appeal should be allowed and the order of the Supreme Court set aside.

This case was decided by the Workers' Compensation Commission and by the Full Court of the Supreme Court of New South Wales, and the appeal to this Court was argued on the basis that the respondent, who was an applicant for workers' compensation under s. 7 (1) (b) of the Workers' Compensation Act N.S.W. in respect of the death of her husband, was not entitled to recover unless she established some connexion of a causal character between the journey that the deceased was making from his home to the station on his way to work and the so-called injury which then occurred and resulted in his death. I think the decision of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett [1] so requires and denies that in the circumstances of this case it would be sufficient if the injury occurred during the journey. On that appeal, it was held that an application for compensation in respect of the death of a worker in the course of a periodic journey between his place of abode and his place of work failed because the coronary occlusion that then occurred and resulted in his death was solely due to autogenous causes and had no causal connexion whatsoever with the journey. As I see it, therefore, the question, and the only question that need be decided upon this appeal, is whether there was any evidence that the acute cardiac insufficiency which resulted in the death of the deceased and which was relied upon as an injury was causally connected in any way with the journey upon which he was engaged, that is, walking from his home to the North Wollongong station. It was found that he had covered about half the distance, that is, four hundred yards, when he died.

The questions in the case stated leave it in some doubt whether, when it is asked whether the act of walking caused injury, it should be assumed that the deceased was walking without hurry or excitement. I think it should, both from the case stated as a whole and because the third question expressly negatived "any element of hurrying and/or excitement" from which it ought to be inferred that Judge Wall's finding was that the deceased was walking without hurry or excitement.

Whether there was any evidence that his walking occasioned the deceased's death when it occurred is to be ascertained by an examination of the evidence of the three medical witnesses that were called. Dr. Duck and Dr. Calov were called for the applicant and were examined on the hypothesis that did not eventuate, namely, that it would be found that the deceased was not only walking but was hurrying or was excited as well. There is nothing in Dr. Calov's evidence that can be regarded as unconnected with this hypothesis, so his evidence must be put on one side. The respondent claims, however, that it is different in the case of Dr. Duck's evidence. The difficulty about his evidence will become apparent upon quoting the last two questions and answers in his examination-inchief: - "Q. Assuming this man was hurrying to catch a train, having regard to the condition of his arteries as found by you, do you think that could have any effect in the death? A. Yes. Q. Would you explain to His Honour the effect it could have? A. In a condition of defective nourishment of the heart wall, the muscle of the heart, death could have occurred at any time but it would be much more likely to occur under stress of excitement or with physical exertion." Taken in the context, I think the only fair way of understanding the last answer is to read it as though the words "if he were hurrying to catch a train" were inserted between the words "but" and "it" so that the last answer is confined to the hypothesis that the deceased was not merely walking but was hurrying. Dr. Duck's evidence does not, however, stop here. In cross-examination, he said (though in relation not to the deceased's walking but to a hypothetical walk of his own past the Taxation Commissioner's office put to him by counsel) that a hurried walk for a hundred yards on level ground would play a significant part in an acute heart failure in the case of a person liable to sudden death because of sclerosed coronary arteries. The deceased was, without doubt, such a person. Furthermore, in re-examination Dr. Duck stated in effect that if such a person were just comfortably at rest, the odds were that he would not, while resting, suffer a fatal heart attack. Dr. Cobley was called by the respondent and his evidence, as a whole, was quite definite that the exertion of the deceased's walking on the morning when he died, was not sufficient to cause acute coronary insufficiency and that the deceased died because his disease had reached a point incompatible with continued existence. However, at one point in his evidence, Dr. Cobley said: - "It appears to me that there are two means by which the heart muscle can be deprived of oxygen and if it is deprived of enough oxygen an infarction will result. The two means are by an actual occlusion of one of the arteries, one of the coronary arteries, by a clot or thrombus and that is a readily understandable mechanism. The other mechanism would be in a diseased artery, with an increased load put on it by exercise and the heart muscle needing more oxygen, the artery not being thick enough to allow enough blood through it, to deliver sufficient oxygen required by the increased work needed to be done by the heart muscle." It is now said, because the deceased did not suffer an occlusion from a clot, it follows that it could be inferred from this evidence that the increased load on his heart that led to his death was due to "exercise," that is, his walking.

Despite Mr. Larkins' forcible argument, I have come to the conclusion that there was no evidence that the deceased's walking had any causal connexion with his death. It would not be a fair reading of Dr. Cobley's evidence to extract from it any support for the proposition that any exercise would tend to bring about the death of a person in the condition of the deceased. His evidence was to the contrary. A close examination of Dr. Duck's evidence shows that it does support two propositions: (1) that hurried walking would increase the likelihood of the deceased's death, and (2) that if the deceased had been comfortably at rest, it was not likely that he would have died at the time he did. His evidence is, however, silent on the intermediate position which is alone of importance here, namely, whether walking without hurry is likely to have been the occasion of his dying.

In the Full Court, it seems that the medical evidence that was given was eked out by what was referred to as a matter of common knowledge - "that the degree of exertion which may produce death by reason of cardiac insufficiency will vary with the condition of the particular person's heart" (to use the language of Owen J., in which the Chief Justice concurred) - so that it was open to the commission to find "that the deceased was in fact exerting himself by walking and that his heart failed because it was obtaining insufficient nourishment to sustain that exertion." Herron J. said: - "In my opinion a Commissioner of experience in that jurisdiction, taking a common sense approach to the facts and aided by the discussion in evidence by the three medical witnesses was entitled to find as he did namely that the very act of walking caused injury to the deceased by aggravating a pre-existing heart condition."

I do not think this method of approach is sound. Except where a fact is too notorious to require proof or to admit of disproof so that judicial notice is to be taken of it, the Court is confined to the evidence that has been given in the case and, although it can rely upon "experience" or "a common sense approach" in deciding the use it will make of evidence that has been given (see, for instance, Adelaide Stevedoring Co. Ltd. v. Forst [1] ), it cannot supplement expert evidence by resort to such sources: see Hetherington v. Amalgamated Collieries of W.A. Ltd. [2] , per Dixon J. [3] . If the course of reasoning followed by the Full Court were to be adopted, there would be no need for medical evidence to establish a causal connexion between exertion and death where a deceased person with a seriously defective heart is shown to have died from cardiac insufficiency while exerting himself to any degree at all. That such a causal connexion cannot be regarded as a matter of common knowledge is shown by the proceedings in this case, because questions were directed to all doctors about the relationship between some kinds of exertion and cardiac failure, and not only did Dr. Cobley deny there was any causal connexion in this case but, as I have shown, none of the doctors gave evidence that any exertion, however slight, would increase the probability of cardiac insufficiency and so occasion the death of the deceased. If that evidence had been given, the finding would, of course, have been justified, but, without it, the finding cannot in my judgment be supported. I think the three questions in the case stated should each have been answered "No," but the answers to the first and second questions should be regarded as given in answer to questions implying that the act of walking was, to use the language of the third question, "unaccompanied by any element of hurrying and/or excitement".

1. (1940) 64 C.L.R. 538. 2. (1939) 62 C.L.R. 317. 3. (1939) 62 C.L.R., at p. 335.