Commonwealth v Bourne

Bourne died on Sunday, 19th January 1958, at Dromana at the age of fifty-one years, the cause of death according to a post mortem report, being coronary sclerosis and myocardial degeneration. He and his family were accustomed to go to Dromana for holidays and on Friday, 17th January, he commenced his annual leave and on Saturday went with his wife and children to stay at a guest house. After a walk in the evening he went to bed. In the early hours he was seized with a great pain in the chest and shortly afterwards collapsed and died.

It does not appear that his heart condition was recognized in his lifetime but his wife and his companions noticed a change in him in the middle of the year and a progressive deterioration. He complained that physically he became very tired and felt run-down and was getting worse. He spoke of a recurrent pain high in the abdomen and in the chest. At small things he became upset and irritable. Mentally he was very worried. He worried a great deal over his work. The particular work upon which he was engaged seemed to cause him great worry and be much on his mind. He was in the Sales Tax Branch and in fact in May 1957 he and a fellow officer had been assigned to a specific task of investigation of magnitude and importance. According to the testimony of his fellow officer as well as of his wife and others the investigation had weighed heavily upon him and he manifested worry, anxiety and feelings of frustration. Three cardiologists were called as witnesses. One of them at least took the view that Bourne's heart condition must have developed over a number of years. They expressed somewhat divergent opinions upon the place of "worry" in the progress and acceleration of cardiac disease. One of them suggested that "with continued stress there is an increasing deposit of atheromatous material in the blood vessel". Further, he put forward the view that in a man "submitted to stress and particularly frustration there is an outpouring of the hormonal factors which could alter the clotting properties of the blood and the depositions in the lining of blood vessels that are already failing but were adequate for ordinary life." As I understand his evidence the view expressed by the witness was to the effect that the hypothetical patient's worrying, his inability to concentrate and to perform work he formerly could carry out, caused an acceleration of the process and predisposed him to a premature death.

The opinion of the second cardiologist was in effect that although there was apparently some relation between anxiety and worry and a cardiac condition, it was difficult to say that worry was more than one of the multiple factors of life which might or might not affect the condition. The third cardiologist considered that Bourne had had a coronary occlusion which led very rapidly to a ventricular fibrillation and death. He knew of no relation of the condition with worry, whether causation, aggravation or acceleration, and in his opinion Bourne's worry over the investigation to which he was put had no relevance to the coronary occlusion.

The learned County Court judge expressed his ultimate conclusion on the evidence in a finding that the worry, tension and distress caused to the deceased by his work between May 1957 and January 1958 did result in the acceleration of the progressive and fatal heart disease from which the deceased was a long standing sufferer in May 1957. Accordingly, his Honour said, he was of opinion that the death arose out of his employment by the Commonwealth and that acceleration of the disease was due to the nature of the employment in which he was engaged.

In my opinion this conclusion cannot stand and for three reasons.

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.

1. (1927) A.C. 461. 2. (1927) A.C., at p. 470. 3. (1938) 1 K.B. 353. 4. (1938) 1 K.B., at p. 360.

Finally, reliance was placed for the respondent on s. 9 (1) and it was said that according to the evidence of the suddenness of the occlusion there had been an accident arising out of the employment. Every step in this argument has its difficulties but it is enough to say that in my opinion the occlusion did not arise out of the employment.

In my opinion the appeal should be allowed: the order of the County Court should be discharged and in lieu thereof the appeal to the County Court dismissed.

The Commonwealth has agreed to pay the costs of the respondent of this appeal and it should be ordered accordingly. There should be no other order as to costs.

In this case the husband of the respondent was employed as an investigating officer in the office of the Deputy Commissioner of Taxation in Melbourne. He died while he was taking his annual holiday at Dromana. His death was found to be due to coronary sclerosis and myocardial degeneration, a morbid condition which had progressively developed over a number of years. The learned County Court judge, from whom this appeal comes, found that his death had been accelerated by "worry tension and stress caused to the deceased by his work between May 1957 and January 1958", in which month he died. His Honour then held that the death "arose out of his employment by the Commonwealth and that acceleration of the disease was due to the nature of the employment in which he was engaged". One would thus infer that his Honour's view was that the case fell both within s. 9 and within s. 10 of the Commonwealth Act. I am of opinion, with respect, that it fell within neither section.

I do not myself think that there was any evidence to support a finding that in any real sense the death "arose out of the employment". (It could not, of course, be suggested that it arose "in the course of the employment".) But, however this may be, the finding was not enough to support a decision in favour of the respondent under s. 9. What had to be proved in order to bring the case within s. 9 was that the deceased man had suffered " personal injury by accident arising out of his employment". For the reasons which I have given in The Commonwealth v. Hornsby [1] I am of opinion that there was in this case no "personal injury by accident", and that is sufficient to dispose of the respondent's claim under s. 9.

So far as s. 10 is concerned, it seems to me impossible to maintain that the death of Mr. Bourne was "due to the nature of the employment in which he was engaged". It was not shown, nor, I should imagine, could it have been shown, that a characteristic or distinctive feature of employment as a taxation investigating officer was a tendency to cause arterial sclerosis or myocardial degeneration, or to aggravate or accelerate an existing condition of arterial sclerosis or myocardial degeneration. Such a tendency, so far as appears, was no more part of the nature of Mr. Bourne's employment than of the nature of any other responsible employment. That employment was not, so far as I can see, of such a nature as to expose Mr. Bourne to a special risk of contracting any particular disease or of suffering an aggravation or acceleration of any particular disease and s. 10 applies, in my opinion, only to cases in which there is such a special risk.

Until his death on 19th January 1958 the husband of the respondent was employed as an investigation officer in the office of the Commissioner of Taxation at Melbourne. But at the time of his death he was taking his annual holiday at Dromana where he had arrived on the previous day. He and his wife had spent the afternoon of that day quietly on the beach and after the evening meal they had gone for a short walk. They went to bed about 10.45 p.m. but shortly after midnight the deceased experienced severe burning pains in the chest and he died soon afterwards. His death was found to be due to coronary sclerosis and myocardial degeneration which had progressively developed over a number of years and of which symptoms had manifested themselves from time to time.

Subsequently to her husband's death the respondent made an application for compensation pursuant to the Commonwealth Employees' Compensation Act 1930-1956 but her claim was rejected by the Delegate of the Commissioner. Upon appeal, however, to a County Court judge she was successful in obtaining a declaration that the Commonwealth was liable to pay compensation. This declaration was based on a finding that the disease which caused the death of the deceased had been accelerated by "the worry tension and stress caused to the deceased by his work between May 1957 and January 1958". In these circumstances the learned judge held that "the death arose out of his employment by the Commonwealth and that acceleration of the disease was due to the nature of the employment in which he was engaged".

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.

In order to recover compensation pursuant to s. 10 it was, of course, necessary for the respondent to show that the disease which caused the death of her husband was due to the nature of the employment in which he was engaged. This, in my opinion, she failed to do for such a relationship is not established by showing that a disease from which a particular individual is found to be suffering has been aggravated or accelerated by the duties which he has been required to perform. Still less is it established by proof that the work of a particular individual has been attended by worry and anxiety which, in turn, has aggravated or accelerated the progress of a particular disease. To hold otherwise would be to treat the relevant condition expressed in s. 10 as satisfied if, irrespectively of the nature of the employment, the "nature" of the employee was such as to subject him to worry and anxiety. To my mind, both the history and substance of s. 10 lead inevitably to the conclusion that it is concerned with so-called "occupational diseases" and on this branch of the case I agree with the observations of Menzies J.

Accordingly, I am of the opinion that the appeal should be allowed and the order of the learned County Court judge set aside.

This is an appeal from a decision of Judge Rapke that the widow of Charles William Bourne, a Sales Tax Investigation Officer, who died on 19th January 1958 while on holidays at Dromana from coronary sclerosis and myocardial degeneration, is entitled to compensation under the Commonwealth Employees' Compensation Act 1930-1956. This decision was based upon some medical evidence that the stress and worry which his work occasioned could well have played an important part in accelerating the progress of the coronary disease that was the cause of his death. For instance, Dr. Rose gave evidence that when a man "is subjected to stress and particularly frustration and inability to see his way through a situation, there is an outpouring of hormonal factors which could alter the clotting properties of the blood and the depositions in the lining of blood vessels that are already failing but were adequate for ordinary life". His Honour found "that the worry, tension and distress caused to the deceased by his work between May 1957 and January 1958 did result in the acceleration of the progressive and fatal heart disease from which the deceased was a longstanding sufferer in May 1957" and it was sought to sustain this decision by reference to s. 10 of the Act upon the footing that the disease which caused his death was due to the nature of the employment in which Bourne was engaged by the Commonwealth.

Section 10, as amended in 1948, departs from its prototype s. 8 of the Workers' Compensation Act 1906 (Imp.) in dispensing both with a schedule of industrial diseases and with the necessity for a certificate of incapacity and in imposing liability to pay compensation when incapacitating or fatal disease "is due to the nature of the employment in which the employee was engaged by the Commonwealth". These changes were no doubt made to liberalize the operation of the section. In keeping, however, with the Act as a whole the process of adapting the section to meet other circumstances has created its own problems. The Act which ought, from its nature, to be simple, straightforward and consistent, is a patchwork in which the difficulties of the legislation from which the scraps have been taken have in general been preserved and to them have been added others almost inevitably arising from trimming those scraps to fit into a different scheme in which the awkward device of treating what is not a spade as a spade for the purposes of the Act has been liberally employed in an unsuccessful endeavour to harmonize discordant elements.

It is typical of the Act that s. 10 is the only operative provision in which the word "disease" is used and yet that part of the definition of disease which includes "the aggravation, acceleration or recurrence of pre-existing disease" (whatever this collection of words may mean) does not fit easily into s. 10. The word "disease" is used four times in s. 10 (1). When used in s. 10 (1) (a) and in s. 10 (1) (b) the words of extension just quoted would seem to be inappropriate; if suffering from a disease causes the incapacity of or a disease causes the death of a worker, it is the disease at the stage of development that it has reached and not its aggravation, acceleration or recurrence that brings about incapacity or death. In the last part of s. 10 (1) where the word "disease" is used twice the incorporation of the definition would seem to require that it is the contraction of the disease either for the first time or as a recurrence, or its aggravation or acceleration that is to be treated as personal injury by accident arising out of or in the course of the employee's employment if the contraction, recurrence, aggravation or acceleration was due to the nature of the employment, and incapacity or death was caused by the disease in the sense already stated. In this case the finding of Judge Rapke, to put it most favourably to the respondent, is that Bourne's death was caused by heart disease and that his work, between May 1957 and January 1958 by reason of the worry it caused him, accelerated his death. Assuming however the evidence as a whole went far enough to justify the conclusion that the deceased's work, because it caused him worry, accelerated his death from heart disease, in my opinion the case would, nevertheless, fall outside s. 10.

"Worry", as defined by the Shorter Oxford Dictionary, is "a troubled state of mind arising from the frets and cares of life" and is part of the lot of man. If death from coronary sclerosis and myocardial degeneration is hastened by worry and in a particular case his work causes an employee who is a sufferer from those diseases to worry so that it can be said his work hastened his death, this would still fall short of showing that the hastened death, when it occurred, was due to the nature of his employment. The words "the nature of the employment" are significant and indicate that the appropriate enquiry is concerned with the nature of the employment and its relationship with the disease which brought about death rather than with how the disease was, in the particular case, contracted or accelerated: Blatchford v. Staddon and Founds [1] . Notwithstanding the disappearance of the schedule of industrial diseases, s. 10 does not cover every case where it can be said that working hastened an employee's incapacity or death from disease.

It does so only when the employment ordinarily involves a risk of the disease so that the disease is "due to the nature of the employment". The evidence here falls far short of showing that the occurrence or aggravation of heart disease is in any way typical of the occupation of tax investigating. In my opinion, there are still cases where compensation for incapacity or death due to disease is recoverable under s. 9 directly, and not under s. 9 merely because of the operation of s. 10. Such a case would occur where a disease is not shown to be characteristic of the employment in which an employee was engaged, but its contraction or aggravation occurs in such circumstances that there is injury by accident arising out of or in the course of the employee's employment. For instance, if a linesman employed by the Postmaster-General contracts pneumonia from working in a storm to restore interrupted communications, he could succeed under s. 9 by showing that his exposure to the elements while at work caused the disease, whereas a case under s. 10 would not require such proof, but would involve establishing something different, that is, that pneumonia is a disease due to the nature of a linesman's employment. The two things are different, as Blatchford v. Staddon and Founds [1] shows. See too: Smith v. Mann [2] . In my opinion, this case does not fall within s. 10.

Notwithstanding that before Judge Rapke it had been conceded that the claim could not succeed under s. 9, Mr. Lush did suggest, as a second argument, that the evidence justified the conclusion that the death of Bourne resulted from personal injury by accident arising out of his employment, thus entitling his widow to compensation under s. 9, but it seems clear that this was just a case of long standing heart disease having progressed day by day to the point of death, even if it be accepted that his work was part of the general burden of life that eventually brought about his death earlier than would have been the case had he given up all activity.

Finally, I think that, in view of the speculative character of the affirmative evidence and the definite character of the contrary evidence of Dr. Davis and Dr. Clark, the learned judge went too far in attributing to worry, as a separate factor, the fatal progress of the heart disease from which the deceased was suffering.

Accordingly, I consider that the appeal should be allowed.

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.

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.