CTHHCA

Commonwealth v Bourne

[1960] HCA 26

High Court of Australia|1960-05-19|Before: Windeyer JJ

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Source facts

Court

High Court of Australia

Decision date

1960-05-19

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

High Court of Australia Dixon C.J. Fullagar, Taylor, Menzies and Windeyer JJ. Commonwealth v Bourne [1960] HCA 26

[2]

ORDER Appeal allowed. Discharge the order of the County Court at Melbourne. In lieu thereof order that the appeal to the said County Court from the determination of the Delegate of the Commissioner for Employees' Compensation be dismissed. Pursuant to the agreement of the appellant Commonwealth order that the said appellant pay the costs of the appeal to this Court of the respondent. No order as to the costs of the appeal to the County Court.

[3]

This is an appeal by the Commonwealth from an order of the County Court at Melbourne exercising federal jurisdiction. The jurisdiction exercised is that conferred by s. 20 of the Commonwealth Employees' Compensation Act 1930-1956. The order appealed from allowed an appeal by the widow of Charles William Bourne, an investigating officer of the Taxation Department, from a determination of the Delegate of the Commissioner for Employees' Compensation rejecting her claim for compensation in respect of her husband's death. Her appeal was upheld by Judge Rapke in the County Court at Melbourne on the ground that Bourne's death had been caused by a disease and the disease was due to the nature of the employment in which he was engaged by the Commonwealth. This ground is to be found in s. 10 (1) (b) of the Act, which provides as follows - "Where (a) (b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment." In s. 4 (1) the word "disease" is defined to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also to include the aggravation, acceleration or recurrence of a pre-existing disease.

[9]

In the first place, I do not think that it sufficiently appears that it was the employment upon which Bourne was engaged that formed the source of any psychological condition that may have borne upon the progress of his cardiac deterioration and failure. It is evident that a degenerative condition of the heart had developed in him progressively over a considerable period and it is more probable than not that the interaction of the deteriorating state of his heart and vascular system with any work or pursuit to which he addressed himself would produce the signs of stress and worry of which those near him speak. It is fallacious to fix upon the investigation to which he had been assigned or the nature of his employment. In the second place, I do not think that it is established upon a balance of probabilities that there was any acceleration by his work or its nature of the progressive degenerative disease from which he suffered and if I am called upon to form an opinion, upon the materials before us I should think it was not so. It must be remembered that this is an appeal upon fact as well as law. In the third place, I do not think the expression in s. 10 (1) "due to the nature of the employment in which the employee is engaged" covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course. The phrase "nature of the employment" is, of course, no novelty in this context in the law of employers' liability: cf. s. 43 (1) of the Workmen's Compensation Act 1925 of the United Kingdom. In the provisions to which the use of the expression is to be traced the purpose of using the words "due to the nature of the employment" and not "due to the employment" was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man. In a not very full form sub-ss. (3) and (4) exhibit the same principle. In Blatchford v. Staddon & Founds [1] Lord Sumner said of the phrase: "In construing the Act effect must be given to the words "to the nature of". Their meaning cannot be the same as if the section had simply said "is due to" any employment. I think they are inserted because this part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers". [1] So in Eaton v. George Wimpey & Co. [2] Mackinnon L.J. for the Court of Appeal said: "It is essential to observe that the words are "due to the nature of" the employment and that they are not "caused by the employment" or "contracted during the employment" [3] " The word "nature" is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the "disease" in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics. The investigation of sales tax cases appears to me to have nothing in its nature to accelerate vascular and cardiac degeneration and if Bourne's employment is defined in the wider terms of an officer of the Taxation Department I know of nothing in the nature of that employment to do so.

[19]

No claim was made in the court below that compensation was payable pursuant to s. 9 of the Act. That is to say, no claim was made that the death of the deceased resulted from "personal injury by accident arising out of his employment by the Commonwealth"; the claim which was advanced was that his death had been caused by a disease, as defined by s. 4, which was "due to the nature of the employment in which" he was engaged. In short, the respondent's case was that the disease from which her husband was "a long standing sufferer" had been accelerated by the worry and anxiety attendant upon his work and that this factor had presumably contributed in some degree to his death on 19th January. But in this Court a somewhat belated attempt was made to support the claim by reference to s. 9. No doubt the attempt was inspired by the fact that the learned County Court judge had found "that the death arose out of the employment". But even if a conclusion stated in these terms is justifiable upon the evidence it cannot support the further conclusion that the deceased's death resulted from "personal injury by accident arising out of his employment" in the sense in which that expression is used in the Act. Even if it be conceded that the deceased's disease was accelerated by the work which he was required to do and, also, that his death on 19th January resulted from personal injury by accident there is, as far as I can see, not the slightest justification for holding that the injury by accident which then occurred arose out of his employment for there is nothing to suggest that there was any relationship between the hypothetical injury by accident and the supposed acceleration of his disease. But, however this may be, I prefer to put my decision on the wider ground taken by Windeyer J. whose reasons I have had the opportunity of considering. I agree with him that the evidence cannot properly be held to establish any connexion between the deceased's death and the duties which his employment required him to perform. Accordingly I am of the opinion that the claim cannot succeed under s. 9.

[30]

The medical evidence leaves no doubt that the late Charles Bourne's death was the result of a heart disease from which he had been suffering for some years, probably for many years before, and which had been steadily growing worse. A deterioration in his health had been obvious for some months before his death. He was easily exhausted by effort, complained of pain, was at times distressed by breathlessness, and seemed worried. His widow's claim under the Commonwealth Employees' Compensation Act 1930-1956 for compensation in respect of his death was disallowed; but on appeal to the County Court this determination was set aside and a declaration made that she was entitled to an award under the Act. From that decision of the County Court the Commonwealth has appealed to this Court. It is natural that the widow of the deceased man should attribute his death to his work, for his work had apparently become a burden to him; a particular inquiry, on which he was engaged at the time he died, had been proving troublesome; and he had become some-what depressed, apparently because efforts to get to the bottom of that particular matter had been unsuccessful. Moreover, his doctor asserted positively that worry could be a factor in producing or accelerating the heart disease which led to his death. But, the Commonwealth having appealed against the County Court's decision, it is necessary for us to consider whether there is any evidence which really supports that decision. Counsel for the respondent sought to support it under s. 10 of the Act. That section provides for the payment of compensation in cases of incapacity or death from disease when "the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth". Its provisions, its place in the general scheme of the Act, and its history indicate that it is concerned with what are commonly called industrial diseases or occupational diseases. And arterio-sclerosis cannot possibly be regarded as an occupational disease of employees of the Taxation Department. Nevertheless, Mr. Lush argued that s. 10 is not confined in its operation to diseases that are the characteristic products of certain occupations, and that it has a more general application. That in my opinion is not correct. But it is not really necessary to determine it here because, in my view, the facts do not bring this case over the threshold which would have to be crossed before entering upon that argument.

[31]

The finding of the learned County Court judge involved the following steps: first, that "worry, tension and distress" was caused to the deceased by his work between May 1957 and January 1958; secondly, that this worry, tension and distress accelerated the progress of the heart disease, from which, as he found, the deceased had suffered for long before May 1957. By acceleration of the progress of the disease he meant that it reached its final fatal stage earlier than it otherwise would have done. There was evidence that the deceased man was worried during the latter months of his life and that this affected him in the performance of his work. There was evidence too that the nervous dyspepsia and ulceration of the stomach for which he had been treated in 1956 and 1957 were caused by or at least related to his worry. That chronic anxiety may induce these conditions is, I shall assume, indisputable. And further, once his bodily health had begun to be affected by his mental state, the one obviously reacted unhappily on the other. There is no doubt that he had become, and remained, concerned and anxious about his health, although his mind was much relieved when an X-ray revealed that his pain was not due to a malignant condition. Evidence was not really needed to establish that there is a close relationship between bodily disorders and chronic anxiety, emotional disturbances and neurotic conditions generally. Some of the medical evidence about the effect worry could have in producing arterio-sclerosis seemed to depend somewhat upon theories which it was said have not received general acceptance. I think however that the learned judge in the County Court was nevertheless entitled on the medical evidence to find that worry aggravated the disease of the heart and thus accelerated the progress of the disease to its fatal conclusion. Whether that was the proper conclusion from the whole of the evidence need not, I consider, be determined by us; because before coming to that question the first step which the applicant had to make good was that the worry, which I shall assume contributed to the progress of the fatal illness of the deceased, was itself caused by his work. In my view the evidence fails altogether to establish this. That his work had begun to worry him and that he found it burdensome may have been, and one would be inclined to think probably was, a manifestation of some anxiety state, or emotional conflict. What engendered this condition we do not know. Worry breeds worry. In the absence of any psychological explanation, it would be too crude and unscientific a conclusion to say that it was merely worry caused by investigating attempts to evade sales tax. The full explanation of his mental and nervous condition would probably be much more complex. The deceased was a sick man. He died from his sickness. His sickness of body was very probably made worse by an unquiet mind; and his bodily sickness troubled his mind. But what really caused the disquiet of his mind is unknown. In my opinion, the appeal should be allowed.

Commonwealth v Bourne - [1960] HCA 26 - HCA 1960 case summary — Zoe