Campion (Kr Campion deceased) v Workcover/Royal & Sun

3 The learned Deputy President evaluated the evidence of possible employment contribution to the worker's cardiac arrest and death by way of contemporaneous exertion and/or contribution to the aggravation of his diabetic condition. On the totality of the evidence, he found that exertion had played no role. The appellant does not challenge this finding.

4 The learned Deputy President also found there was no evidence, only "surmise and hypothesis", as to there being any connection between the deceased worker's employment and poor diabetic control. He thus concluded that "... It necessarily follows that there is no onus on the respondent to deal with matters of which there is no evidence".

5 The appellant has seized on these words to contend that the learned Deputy President erred in law in reversing the onus of proof by relieving the respondent from rebutting the possibility of a link between the deceased worker's employment and his poor diabetic control. Mr Martin, for the appellant, put it thus:-

"Well, where the onus is on the respondent, surmise and hypothesis is more than enough. Once the possibility is raised - and I am repeating myself here - it is not for the applicant to turn it from surmise and hypothesis into proof on the balance of probabilities. It is for the respondent to rebut that."

6 It is, however, clear enough from the learned Deputy President's judgment that he found the appellant was entitled to the benefit of the presumption given by s 31(5) of the Act. In par 24 of his judgment, for example, he noted "It therefore follows that the applicant has the benefit of s 31(5). It is presumed in the absence of proof to the contrary that the employment contributed to the disability", and at par 40 "The onus on the Respondent: The significant issue is whether the respondent has discharged the onus of proof."

7 It is also clear that the learned Deputy President saw the significant issue in the case as being whether the respondent had discharged the onus of proving that the deceased's employment had not contributed to his cardiac arrest and death.

8 S 31(5), moreover, does not put an onus on the respondent to prove that the deceased's employment did not contribute to his poor diabetic control. S 31(5) raises no presumption that the deceased's employment contributed to his diabetes or poor diabetes control. The presumption it does raise is that the deceased's employment contributed to the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease. The onus of proving to the contrary, on the balance of probabilities, then rests with the respondent.

9 The learned Deputy President found no persuasive evidence of any connection between the worker's employment and his poor diabetic control. That was a finding of fact open to him on the evidence. Contrary to the submission of Mr Martin, there was no presumption operating in favour of the worker in respect of any such connection.

10 Mr Martin did not contend, and nor could he, that there was no evidence to support the ultimate conclusion reached by the learned Deputy President. The learned Deputy President's acceptance of the opinions of Dr Sangster and Dr Hains in preference to the opinion proffered by Dr Craig involved matters of fact that were open on the evidence.

11 This Tribunal, limited as it is in dealing with questions of law, has no jurisdiction to redetermine questions of fact. Such matters rest exclusively with the learned Deputy President at first instance.

12 There is nothing in the learned Deputy President's judgment to indicate any misunderstanding or misapplication of the law.

14 This appeal raises the question of the proper interpretation and application of s 31(5) of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). It is a question of law.

1 15 The appellant is the worker's widow. She seeks compensation on the grounds that her husband's fatal heart attack was caused, in the relevant sense, by his employment. The Deputy President made the following findings about the nature of the deceased's work (AB 170 par 5 - 6):-

"5 The broad facts are that the deceased was employed by the respondent as a coordinator in the Trachoma and Eye Health Program. He had been so employed since 1993.

6 His duties were to visit Aboriginal Communities - some away from Adelaide and provide access for Aboriginal people to Opthamologists and other health specialists. According to his wife, he made trips away from Adelaide every six to eight weeks, of about a week's duration at a time. He coordinated the visits of medical personnel to groups of Aboriginal people. He also coordinated i.e. supervised those Aboriginal people who came to Adelaide for medical treatment."

16 The deceased was required to attend a national conference in Canberra on trachoma problems among Aboriginal people. After the conference he was returning to Adelaide via Melbourne. Whilst in transit at Tullamarine Airport he suffered his heart attack. He died later that evening. The autopsy found the primary cause of death was ischaemic heart disease and coronary artherosclerosis. The Deputy President records as follows (AB 171 par 11):-

(i) That the deceased suffered from type 1 (insulin dependent) diabetes. I accept the opinions of Dr Braund and Dr Watson that type 1 diabetes is associated with a higher than usual rate of coronary heart disease.

(ii) That smoking is also associated with coronary heart disease and coronary thrombosis.

(iii) That the extensive microscopic fibrosis of the deceased's heart (demonstrated in the autopsy) showed the ischaemic disease as much more extensive than normal.

(iv) That diabetes and smoking combined, increased the deceased's chances of dying."

17 The appellant's contentions amount to this. The deceased's failure to quit smoking, on the probabilities, brought forward or hastened his fatal heart attack. So too his failure to sustain proper management of the diabetic condition, on the probabilities, brought forward or hastened the fatal heart attack. This latter aspect is the focus of the appellant's argument in so far as his work may have been partly responsible. I will return to this when examining the medical evidence.

18 The appellant argued the Deputy President was wrong in his approach to the legislation. The relevant legislation is s 31(5) of the Act. That legislation in its current form was introduced to the Act by s 4 of Amending Act 34 of 1990. Its predecessor, s 9(4a) of the Workers Compensation Act 1971 was inserted by s 5 of Amending Act No 94 of 1973. S 31(5) of the Act currently reads as follows:-

(a) a worker's disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease; and

(b) the disability arises in the course of employment,

it will be presumed, in the absence of proof to the contrary, that the employment contributed to the disability."

19 The Deputy President stated his understanding of what the legislation required of him in the following terms (AB 173, 176, 178 par 27 - 28, par 40, par 49):-

"27 Mr Martin submitted (tr 46) that once the applicant raised something as a possible causal issue s 31(5) in practical terms places the onus on the respondent to show on the balance of probabilities that the possible contributing cause was not partially caused by the work.

28 As to that as a general proposition, it is my view that s 31(5) does not have the meaning contended for. The whole of the evidence must be scrutinised. If the applicant raises the possibility of a cause the Tribunal of fact is bound to examine the evidence that is available to support that possibility. It must be persuaded on the balance of probabilities that the alleged fact did have a causal relationship with the fatal event and it can use the reverse onus as an evidentiary device to establish the legal significance of that fact once established.

40 I therefore reject that submission. It necessarily follows that there is no onus on the respondent to deal with matters of which there is no evidence.

49 S 31(5) did not operate so as to presume that a particular event occurred. It operated only to presume that an event which did occur, is presumed to have been causative."

The appellant says this was considered incorrectly by the Deputy President (Appellant's Outline of Argument par 7, 10, tr 2, 3). I turn to deal with the authorities which settle the meaning of provisions such as this.

20 The Full Supreme Court considered an equivalent provision in WorkCover Corporation and Another v Perre (1999) 76 SASR 95. That is s 31(2) of the Act. It contains a presumption in the following terms (par 11 at 98 - 99):-

"However, if a worker suffers a disability of a kind referred to in the first column of Schedule 2 and has been employed in work of a type referred to in the second column of Schedule 2 opposite the disability, the worker's disability is presumed in the absence of proof to the contrary, to have arisen from that employment."

21 That case concerned a worker who suffered hearing loss and sought compensation under s 43 of the Act. His last employment had been with Penna Concrete. He lodged a claim for the hearing loss a month after he resigned from that company. His claim was rejected because in the Corporation's view, the conditions of his work could not have caused noise induced hearing loss. Tests conducted under similar conditions by occupational noise assessors suggested the noise levels were well below the regulatory standard. Also two ENT surgeons who based their opinions on the assessors' reports concluded there was no risk of noise induced hearing loss. On appeal the Tribunal overturned the Corporation's decision and it then appealed to the Full Supreme Court.

22 The focus of the Full Supreme Court's attention was the application of the statutory presumption in s 31(2) of the Act, (see par 25). Mullighan J, with whom the rest of the court agreed, considered the historical context which saw the presumption included in the legislation (par 27). His Honour rejected the Corporation's contention that "employed" in s 31(2) of the Act should be interpreted with the added condition that the work involved noise capable of causing hearing loss, as distinct from work merely involving exposure to noise. His Honour said (par 28):-

"To import the words of limitation contended for by the appellant would necessarily create an additional threshold for workers and would, to some extent, deny the presumption in s 31(2). The worker would not only have to establish that he had the relevant condition, a noise induced hearing loss, and that he was engaged in work involving exposure to noise, he would also have to establish that such noise could have caused the condition. ... The worker is required to prove that he has noise-induced hearing loss and that he has been employed in work involving exposure to noise. The burden of proof then shifts to the Corporation or an exempt employer, as the case may be. I shall refer only to the Corporation. It must prove that the hearing loss could not have arisen from the employment. In the case of employment involving only minimal noise such as employment in a library or some other quiet place, in the absence of any extraordinary circumstances, that task should be discharged without difficulty. In other cases, the task may be difficult, but if it cannot be discharged, the policy of the legislation is that the benefit falls to the worker. ..."

23 In the appeal before this Tribunal, Mr Martin, counsel for the appellant, placed particular reliance on Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 and Evans v Benson (1986) 46 SASR 317. These cases dealt with the correct approach in applying the statutory phrase, "in the absence of proof to the contrary". Crawford Earthmovers concerned s 144(2) of the Road Traffic Act 1961. Evans concerned s 47g(1) of the same Act.

24 In Crawford, Bray CJ (dissenting) (at 133) regarded the word "proof" as the equivalent of the word "evidence". By reversing the onus the prosecutor was merely relieved of leading evidence in respect to that element. However once the defence had led any evidence to the contrary, the statutory presumption was overturned. Then the issue was to be resolved on ordinary principles relating to onus of proof. His comments were made in the context of quasi-criminal offences involving heavy penalties. In that context he stated (at 134):-

"... `Proof to the contrary' means, in my view, proof of something which raises a reasonable doubt."

"I am conscious of some uneasiness about these propositions. They mean that statutes casting the onus of proof on the defence stand in one category, where the defendant has to prove the matter in question on the balance of probabilities, and that statutes making something prima facie proof of something else or deeming something to be proved in the absence of proof to the contrary stand in another and merely cast on the defence the onus of raising a reasonable doubt about the matter. ..."

25 Hogarth and Walters JJ construed the matter differently. They ruled the ultimate onus lay with the defence. They referred to Gabriel v Ah Mook [1924] HCA 42; (1924) 34 CLR 591. Hogarth J stated his conclusion as follows (at 149- 150):-

"... As I understand the judgment the Court meant that the fact averred must be taken to be proved unless it is disproved (on the balance of probabilities) by the defendant's evidence. This interpretation has the not inconsiderable merit of reading the words of the section as meaning what they say. Speaking of the section before the Court in Ah Mook's Case (above cited), Ross J said in Gill v. Mazzoletti [1956] SASR 288 at p 294, that it `throws upon a defendant the onus of disproving the facts averred'. With this I respectfully agree. When the section makes the allegation in the complaint proof of the fact alleged `in the absence of proof to the contrary', I think that this requires something more than evidence which merely raises a reasonable doubt in the mind of the Court. Once the allegation is made in the complaint, then in relation to the fact alleged the onus is cast upon a defendant to prove, on the balance of probabilities, that the truth is different from the facts as alleged.

.... there was an onus upon the appellant to disprove the fact alleged on the balance of probabilities. It was not sufficient for its purpose if the evidence on the question of ownership raised a reasonable doubt to the truth of the fact alleged. If the situation were that the prosecution evidence did not establish the fact alleged; that the defendant called evidence to contradict that fact; and that that evidence was not positively believed, then the presumption would still be operative."

26 Evans v. Benson (above cited), concerned the presumed accuracy of blood alcohol readings. King CJ, in the majority, stated the issue of whether what was involved was an evidential onus or the ultimate persuasive onus. He stated (at 319):-

"... It appears to have overlooked the established proposition that the words `presumed in the absence of proof to the contrary' have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed: Crawford Earthmovers Pty Ltd v. Fitzsimmons (1972) 4 SASR 116. The Court in Golding v. Liddy (1983) 33 SASR 116 did not purport to reconsider Crawford Earthmovers v. Fitzsimmons. It simply did not avert to that case; possibly it was not cited. Crawford Earthmovers v. Fitzsimmons represents the settled law in this Court on the point. There is no reason to depart from it. ..."

27 A similar provision was provided by s 5(4) of the Conciliation and Arbitration Act 1904. It stated that in proceedings for an offence for having dismissed or prejudiced an employee by reason of the fact that he was a shop steward or delegate of a union, it lay upon the defendant to prove it was not actuated by the reason alleged in the charge. In General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Mason J, with whom the majority agreed, provided an analysis pertinent to the case here, (at 617):-

"Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge."

Leaving aside the aspect dealing with the defendant's own knowledge, given the legislative intent is to regard injuries in the nature of the worsening of pre-existing coronary heart disease in the course of employment as work caused unless proved otherwise, the statement by Mason J is instructive.

28 This presumption, referred to often as a persuasive presumption, operates in the context of the judicial task in the following way. The worker has to prove his case. Each properly prepared case contains a list of the matters that must be proved. In the normal case the worker has to prove injury arose out of or in the course of employ (ie the causal or temporal link). In the case of disease or secondary disability (as is the case here) generally the worker has to prove a causal link (ie "arose out of"). But the legislature has intervened and dictated that heart attacks, as described, are to be taken to have been "caused" by the work unless the employer can prove, can establish affirmatively, to use the words of Mason J in Bowling (above cited), that no such link exists. Therefore in the list of matters the worker must prove, those pertinent to cause reduce to (a) the aggravation etc of coronary heart disease and (b) that occurring in the course of employ.

29 These underlying aspects of the method and requirements of proof have been clouded somewhat by procedures that now exist to narrow the hearing to such matters as are genuinely in dispute and making the hearing more of a trial on the documents. But that has not made redundant the requirements of proving the case and the consequences that flow from where the ultimate onus of proof lies. It is the sound understanding of these matters that go to the core of this appeal.

30 Moreover the nature of the proof of causation in workers compensation is critical to the analysis. The employment cause need only be partly responsible. It may be one of a number of causes of the heart attack, and moreover not even a major one, as long as it makes a contribution. That contribution is adequate if its effect is merely to hasten the time of the attack or the extent of the attack when it happens, despite the attack being inevitable because of non employment causes: see the authorities cited in Barber v South Australia Police Department [2000] SAWCT 185 at para 104. Furthermore it is wrong to differentiate between remote and proximate causes ruling only the latter as relevant under the legislation. It is not valid to treat differently for the purpose of causation, the underlying coronary heart disease to which the diabetes unquestionably contributed and the acute event to which the diabetes did not contribute in a narrow sense. Such a distinction is quite artificial. The distinction between mediate and immediate, remote and proximate suggested thereby has been clearly rejected on the authorities: see Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212; Floreani Bros Pty Ltd v Woolscourers (SA) Pty Ltd (1976) 13 SASR 313 at 319; South Australian Housing Trust v Smith (unreported) Full Supreme Court of South Australia delivered 9 November 1990.

31 Instructive of this aspect is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. That case concerned a truck driver who suffered a back injury in 1981. In 1983 he ceased work because the employer was not able to give him work within his remaining capacity. By 1985 he had developed depression due to how he felt about his unemployment and being on workers compensation. By 1987 he was being treated for cardiac disease and his weight gain due to inactivity was a risk factor. In 1991 his back condition became inexplicably worse and stenosis at L5/S1 was identified. By 1992 he was beset by worry that the insurer was about to cease payments of compensation and he would have to sell his house. On 8 June 1992 he died of a myocardial infarction. His widow claimed the death was contributed to by the employ. Her claim was upheld in the New South Wales Compensation Court. An appeal was taken to the Court of Appeal against that result.

32 The insurer argued the death was not caused, in the relevant sense, by the low back injury in 1981. It argued the Judge had confused the notion of predisposing factors which contributed to the myocardial infarction that caused the death and the "causative" factors from which the death resulted. In other words he had failed to distinguish between the stage and the actors, the "causa causans" and the "causa sine qua non" as described by Bray CJ in Rosmini (at 216). The insurer argued the linkage between the back injury in 1981 and death from a heart attack in 1992 was such a far fetched proposition that it demonstrated the error. The argument was rejected. The Court of Appeal found an unbroken chain of causation between the two.

33 Kirby P, with whom Sheller and Powell JJA agreed, stated the correct situation in the following terms (at 463 - 464):-

"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase `results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death `results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death `results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death `resulted from' the work injury which is impugned."

34 I turn to consider the Deputy President's reasoning in the case before us. In so doing I must make every reasonable presumption in favour of upholding the judgment: see The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48 at par 2 - 5; Modbury Public Hospital v Braid [2002] SAWCT 95 at par 24. Leaving aside the alternative contention of Mr Hanus, counsel for the respondent, for the moment I examine the Deputy President's treatment of the worker's contention the employment contributed, in the relevant sense, to the heart attack.

35 At the hearing the applicant contended a causal connection in two ways. The first was a possibility the deceased engaged in some exertional activity at Melbourne Airport that precipitated the cardiac arrest. The second was the disruption the field trips caused over his three years with the respondent to his ability to properly manage his diabetic condition. In respect to the first contention the Deputy President concluded on the basis of the available circumstantial evidence that this was improbable. There was no evidence the deceased had any baggage in his overhead locker. There was no evidence that he had any occasion for raised exertion proximate to the heart attack, being only required to move along the concourse to his next departure gate. Before us the appellant abandoned that contention (see Appellant's Outline of Argument par 1).

36 The Deputy President then examined the second of the two links, namely the diabetes. He noted Dr Watson, the deceased's general practitioner, stated since 1983 the deceased was non compliant with his diabetic management. That is exercise, diet, measuring blood glucose levels, not smoking and having blood lipids tested (AB 28). His last blood sugar test taken five months before his death showed levels within an acceptable range (AB 30). But there could be no doubt diabetes was an important factor in his heart disease.

37 Dr Braund was a general physician and endocrinologist of sixteen years experience (AB 29). His evidence was clearly accepted by the Deputy President. He had no doubt that cigarette smoking and diabetes contributed to the underlying ischaemic heart disease which had already manifested itself by extensive myocardial fibrosis and a previous myocardial infarction. The effects of the cigarette smoking was likely to have contributed to the acute event. As to the diabetes Dr Braund stated (AB 31):-

"While diabetes was a major contributor to the underlying disease and increased his likelihood of death from the myocardial infarction, there is no evidence that it contributed anything acutely at the time of the event. Thus his current blood sugar levels could not have aggravated the pre-existing coronary heart disease. Furthermore, the objective evidence suggests that he had been recently keeping his blood sugars under very good control. We should also bear in mind that some of his poor control may have been induced by the nature of his work.

(a) Both cigarette smoking and Type I diabetes contributed to this man's underlying coronary heart disease.

(b) The disease pre-dated his acute death and there was evidence of a previous myocardial infarction.

(c) The acute event may have been contributed to by smoking, but not by diabetes.

(d) The diabetes increased his chance of dying from the acute event.

(e) The issue of poorly controlled diabetes should be set aside, because the evidence of that is conflicting, and objective evidence points to contemporaneous good control."

38 The Deputy President dealt with the issue of the interference with management of the diabetes by the employment in the following way (AB 175, 176 at par 36 - 40):-

"36 ... It is submitted that the deceased went on field trips to the `outback' as part of his employment duties. It is possible that on those trips he may not have controlled his diabetes as efficiently as he should have. This spectre was raised at TB 34 by Dr Braund:-

`It is worth considering why a person does not comply easily with their diabetes care. There are many difficulties with this compliance: one of them may be that their job does not allow the opportunity to practice strict diabetes care. I understand this man travelled in remote areas of the state for long distances. He could not have afforded to have an unconcious (sic) hypoglycaemic episode and he may have made a deliberate effort to run his blood sugars higher during those trips than he might otherwise have done while in urban Adelaide.'

37 In my view Dr Braund's statement does not rise above pure speculation. There is no real evidence of what level of management the deceased subjected himself to whilst on country trips. There is no evidence whether that level of management and control was any different to that exercised by him in Adelaide. There is no evidence that living in the country or the outback or the Riverland had a propensity to lead to or did in fact lead to poor diabetic management. In fact the connection between the employment and the diabetic control or lack thereof is not established as anything other than surmise and hypothesis.

38 Furthermore I accept the final utterance of Dr Braund at TB 35:-

`The issue of poor controlled diabetes should be set aside, because the evidence of that is conflicting, and objective evidence points to contemporaneous good control.'

39 I do not know that there is sufficient evidence to justify that proposition at least in the terms in which it is stated by Dr Braund, but there is simply no evidence of what the state of control was, other than the blood sugar levels taken three months earlier which do not assist the submission.

40 I therefore reject that submission. It necessarily follows that there is no onus on the respondent to deal with matters of which there is no evidence."

39 The premise that without the requisite management and control the effects of the diabetes would be worse for the worker appears uncontroversial. This proposition was clearly part of the case for the applicant at first instance. The Deputy President acknowledges that (AB 173 at par 25). It had to be negatived by evidence because of s 31(5). S 31(5) was triggered by two facts, namely a heart attack of the requisite type and the occasion of the attack being at work, (presuming for the time being that was so).

40 The worker had been employed by the respondent for some three years up to the time of his death (AB 2, 62). It involved him in extensive country trips (AB 63). His condition brought on occasional hypoglycaemic attacks due to low blood sugar (AB 64). He had been admitted to the Queen Elizabeth Hospital in April of 1993 with an episode of diabetes keto-acidosis. As mentioned above, Dr Watson records he was quite "non-compliant with his diabetic management" over the "ensuing" years (AB 28). That is the years when he was employed by the respondent. Dr Watson confirmed the situation in his statement (AB 85). He stated (AB 89, 90, 91):-

"But certainly the better the diabetes is controlled then the better, or the less likely they are to develop complications. There's never an absolute saying they can't have it, but the chances of developing complications are reduced to a very significant degree. I think the thing with diabetic control is that it's not simply a case of just taking medication or just taking insulin or, you know, if it were tablets or, or whatever, but diabetic control really is a lifestyle matter and it's something which takes effort on the part of the patient and on the part of the Doctor. And the patient and the doctor really have to work as a team to achieve good diabetic control.

Well he should've been measuring his blood sugar levels on a regular basis using a glucometer and keeping a log book on those. And he should've been attending for 3 monthly reviews of his diabetes, various blood tests and urine tests and so on need to be done periodically.

... He, I, in fact actually towards, over the last few months that Mr Campion was alive, in fact he did tend to become a bit more compliant, I must admit. But previously with that he used to attend very infrequently in spite of being, being asked to come back at regular intervals. ...

... I tried to say look you know, really and truly, we need to, we need to work together on this and you need to come back. But you know, he frequently had excuses as to why that was not possible."

"... Well diabetes, and particularly poorly controlled diabetes will accelerate the onset of ischaemic heart disease and coronary atherosclerosis. Smoking with (sic) accelerate the onset of ischaemic heart disease and coronary atherosclerosis and the combination of the two of them is not, is not a good a good combination basically."

"... You know, I think the only thing I'd say is that I think probably if Mr Campion had been a little bit more compliant and had attended for regular diabetic reviews then there's a possibility that there may've been a different outcome to this."

41 Dr Watson also gave oral evidence. In part he stated (AB 144 - 145):-

"Q Doctor, you understand, do you, that for the last few years that you treated him, Mr Campion was employed by the SA Aboriginal Trachoma and Eye Health Program.

Q And it was your understanding that that required him to spend large amounts of time out in outlying communities in South Australia, away from Adelaide.

Q During those last few years was it the fact that the control of his diabetes was poorly controlled.

Q And was that poor control of his diabetes something that would have aggravated his pre-existing coronary artery disease.

Q I think in your statement to the investigator at about page 95 - at the bottom of page 94 and the top of page 95 - you make reference to the fact that he was noncompliant with his diabetic medication and that he used to attend very infrequently - this is at page 95 - in spite of being asked to come back at regular intervals.

Q Then in answer to the next question you say that he frequently had excuses as to why that was not possible. Was one of the excuses in fact that he was often away from Adelaide in outlying areas as part of his job.

42 I have already related the evidence that Dr Braund gave in writing (AB 29). Dr Hains, a Cardiologist, provided an opinion having had no occasion with the deceased. He states (AB 33):-

Diabetes is associated with more extensive and more severe atherosclerosis than non diabetics and there is an increased risk of myocardial infarction in diabetics and in fact the incidence correlates more closely with the duration of the diabetes that (sic) with the severity of the diabetes ie well controlled diabetics still have a significant incidence of atherosclerosis and coronary artery disease. ...

In the case therefore of Mr Campion, I believe that the combination of smoking and diabetes predisposed him to a high risk of developing coronary artery disease and his subsequent heart attack and that the risks posed by the nature of his job were almost negligible."

43 Dr Sangster, a Cardiologist, also reported on the circumstances (AB 38). His initial report focused on the acute phase. In cross examination he gave the following testimony (AB 138 - 139):-

"Q We do know that Mr Campion was a diabetic and it appears that, perhaps not at the time of his death but within the recent past, his diabetes had been poorly controlled. What effect is that likely to have had on his coronary artery disease.

A It is generally recognised that poor diabetic control is a factor that will hasten the development of coronary artery disease or conversely, good diabetic control slows down the progression of an individual's coronary disease.

Q What are the factors leading to poor diabetic control.

A Well, I'm not an expert in diabetes. I think it would be - but in a general sense it would be either non-compliance with diet, non-compliance with medication or a person having a brittle diabetes situation anyway. Some patients are very difficult to control and they may have a very unstable diabetic situation anyway; but I think, by and large, the majority of patients can be controlled by dietary and by medication or insulin methods if they are able to lead a fairly ordered life and have a fairly ordered lifestyle.

Q Am I right in thinking that poorly-controlled diabetes doesn't contribute to the acute event. What it does is it contributes to the underlying condition that ultimately ---

44 Dr Craig, the Cardiologist, gave evidence (AB 34-37, AB 122-123). He confirmed the association between poor control and the progression rate of the diabetes. However the Deputy President did not appear to prefer him.

45 I turn to consider the evidence of the relevant work circumstances the deceased was exposed to, particularly the country trips, and whether these placed him in a situation where he was not able to control his diabetes. The worker is dead and cannot testify on this issue. However the employer has brought no evidence of any type to negative the effect these trips may have had (see Rigney at AB 40, 49, 50). There was no evidence to show that the routine on the trips was at least the same as the routine in the city which would have allowed some basis for inferring that the work in the central lands did not affect the control. In other words, was the lack of control the product of his own indifference rather than the effect of his employment. That does not require some impossible task as suggested by the respondent (tr 46).

46 In the process of considering this appeal I have examined the approach taken in other s 31(5) cases decided by this Tribunal. Counsel has brought our attention to a number of these. In Bell v WorkCover Corporation/NZI Workers Compensation (SA) Ltd (Southern Transport Pty Ltd) JD62/1997 Gilchrist DPJ dealt with the death of a truck driver by heart attack shortly after unloading cattle at Port Adelaide. Two cardiologists gave contrary opinions as to the link between the unloading and the heart attack. His Honour made findings that the time between exertion and death may have been shorter than previously thought. Assuming it was shorter, given the onus, he then preferred the cardiologist who confirmed the link. Thus the Corporation failed to rebut the presumption created by s 31(5) of the Act (see p 7 of the decision).

47 In Howson v WorkCover Corporation/NZI Workers Compensation (SA) Ltd (G & AM Schmidt) [2000] SAWCAT 1 Parsons DPJ dealt with a carpenter's assistant who died of a heart attack while at work. Two cardiologists called expressed contrary views as to the exertion required to contribute to the heart attack. Her Honour made findings that on the balance of probabilities there had been no relevant exertion. In the end result the cardiologist denying the link was preferred. This discharged the onus in s 31(5) of the Act (see par 25 of the decision).

48 In Lewis v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Horwood Bagshaw Australia Ltd) [2001] SAWCT 87 contrary cardiologists opinions were expressed and a need arose to make such findings as could be made on the balance of probabilities from the circumstances and general experience of the workplace. This fact finding process determined whether the premises used by the cardiologists in reaching their respective opinions regarding the absence of a linkage with work were correct.

49 I do not understand Parsons DPJ in Lewis to have utilised the process in the way suggested by the Deputy President in the case before us (see AB 179 at par 57). Rather she had actual material upon which she made a finding on the probabilities that no physical exertion would have occurred prior to the attack. Her Honour then concluded a preference for the views of Dr Sangster that without such exertion no linkage occurred with employment (par 25 of the decision). Thus the Corporation discharged the onus in s 31(5) (par 20 of the decision).

50 In McKay v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Amcor Ltd) [2002] SAWCT 56, the case of a machinist who died next to his processing machine, there were again contrary opinions from cardiologists (par 5 of the decision). Those called to disprove the link were of the opinion that in the absence of extraordinary and proximate exertion the employment did not contribute (par 9 of the decision). Using the same method as used by Parsons DPJ in Lewis' Case, Cawthorne DPJ had material before him to substantiate the conclusion that on balance no such exertion occurred. That finding and the evidence of the cardiologists rejecting a linkage without such an event meant that the respondent had discharged the onus in s 31(5) of the Act (par 18 of the decision).

51 None of those authorities are remarkable nor unsupportive of the appellant's case here. Rather they demonstrate the proper approach and application to the requirements of s 31(5) of the Act. Here, a quite different approach of the Deputy President is implicit in his reasons in par 27, par 28, par 40 and par 49.

52 The Deputy President found the views of Drs Sangster and Hains were to be preferred. That Dr Sangster's opinions are better based and Dr Hains agrees with him (AP 179 at par 59 and 60). But in my opinion this fails to fill the lacuna that exists in respect to the effect of the remote employment on the management of the diabetes. Moreover the comments by Dr Hains that the risk posed by the nature of the job were almost negligible appears clearly addressed to the acute phase only. Furthermore his adjectival usage of "almost" is addressing the extent of contribution rather than the absence of any contribution.

53 The evidence, such as exists, proves the disability consisted of an aggravation etc of pre-existing coronary heart disease and occurred in the course of employ (leaving aside the alternative argument I will deal with later). The evidence is all one way that the deceased's diabetes was a significant factor in the underlying disease that caused his heart attack. The evidence of the effect of poor control must sensibly be understood to establish a hastening of the process of that underlying disease. This is unequivocally the opinion of Dr Sangster, whom the Deputy President preferred. But at best for the respondent it is not refuted by Dr Hains. It is of course the clear opinion of the only endocrinologist Dr Braund and the GP Dr Watson.

54 The evidence of what was involved in management of the diabetes came from Dr Watson and Dr Sangster. That is diet, exercise, medication, blood glucose monitoring, blood lipid testing, avoidance of tobacco. It is hardly surprising some of the management features could have been difficult, if not impossible, in the remote circumstances required of the worker's job. This was a regular aspect for the last three years of his life. Moreover the evidence, not disputed, was that he told Dr Watson his failure to properly manage his condition was due to his field trips. He had poor compliance since 1983 but apparently more so since 1993 after he started with the respondent. As to Dr Braund's final remark, (in (e)), as the Deputy President says, nothing can be made of this, (AB 176 par) unless it is understood as dealing with the acute phase. Otherwise it is of no help either way. Finally no evidence was adduced by the respondent to refute this evidence as to the harmful effect of the field trips on his diabetic control. The presumption in s 31(5) of the Act therefore had to operate. The linkage was not disproved. The chain of causation was intact. The appellant should have succeeded on the issue of causation.

55 An alternative argument has been raised by Mr Hanus and that relates to a contention that at the time of his death the worker was engaged in a journey from his place of employ to his place of residence (s 30(5)(b)(1) of the Act. I reject that argument for the reason explained by the Chief Justice in TransAdelaide v Karanicos [1996] SASC 5536 at par 23, namely that the character to give the journey depends on the context. This was a journey that was part and parcel of the deceased's duties and not a journey, by its nature, caught in the exclusion.