Commonwealth v Hornsby

Commonwealth v Hornsby - [1960] HCA 27 - HCA 1960 case summary — Zoe

Stanley Hornsby, the respondent, was employed by the Commonwealth Bank in the note printing branch. He lived at Newport and his place of work was in Victoria Parade, Fitzroy. He made daily journeys between his home and his work in part on foot, in part by train and in part by tram. On 15th April 1958, as he approached the tram stop at which he would alight he felt sensations in his right hand and foot and as he got out of the tram he tumbled. He had in fact suffered a cerebral stroke resulting in right-sided partial paralysis. It was not a cerebral haemorrhage. In his evidence the physician who acts as medical officer of the Commonwealth Bank said that his findings indicated that Hornsby had a right-sided paralysis of the arm and leg due to a cerebral vascular accident - that is a stroke in common parlance - and this was due to a thrombosis which occurred in an atheromatous blood vessel in a hypertensive obese man. The witness said that by the thrombosis of the blood vessel in his brain a certain part of the brain that would normally receive blood from that vessel was thrown out of function; there was a part of the territory that received no nourishment and died. He went on to say that with that kind of stroke it was common that the part affected would be the motor area of the brain which has to do with gross muscular movements. And that was so in Hornsby's case. From this evidence I take it that the thrombus in the atheromatous and sclerotic but doubtless small blood vessel, perhaps building up rapidly, caused an ischaemia resulting in a necrosis of brain cells and the consequent paralysis. In this there can be seen a physiological change definite and specific, destructive alike of cellular matter and of function, occurring not gradually but with sufficient suddenness to make the phrase "dramatic event" justly applicable, one resulting immediately in some degree of bodily disablement. The question in the case appears to me to be whether it should be regarded as "injury by accident". Section 9A (1) of the Commonwealth Employees' Compensation Act 1930-1956 provides that where personal injury by accident is caused to an employee while he is travelling to or from his employment by the Commonwealth the Commonwealth shall, subject to the Act, be liable to pay compensation as if the accident were an accident arising out of or in the course of his employment. It may for the moment be assumed that as a result of s. 22 this applies mutatis mutandis to employment by the Commonwealth Bank. Hornsby claimed compensation from the Bank but his claim was rejected by the Delegate of the Commissioner. On appeal under s. 20 to the County Court at Melbourne Judge Moore held that the appellant is entitled to compensation. His Honour clearly enough was of opinion that the stroke suffered by the appellant amounted to an injury by accident but his finding was criticized because he applied the word accident to the thrombus. However, as it seems to me, the finding or conclusion must be shown to be wrong before the appeal can succeed. I say this in spite of two views put forward either of which if well founded would for other reasons defeat the respondent's claim. In the first place it is contended that notwithstanding the use in s. 9A (1) of the word "while" in the expression "while he is travelling" the provision means that in some sense the injury must be occasioned by the journey or its incidents. It is said that otherwise s. 9A would be out of harmony with s. 9 (1) which, so it was argued, means or implies that an injury by accident cannot arise in the course of the employment unless but for the employment it would not have occurred. I do not think that s. 9 (1) has this meaning or implication but I would remark that it would be more natural to treat the use of the word "while" in s. 9A (1) as a reason for rejecting such an interpretation of the words "arising in the course of the employment" than to mould the plain word "while" in s. 9A (1) to conform with the meaning ascribed to s. 9.

[6]

I therefore return to the question whether the learned County Court judge's conclusion that Hornsby suffered an injury by accident should be upheld. Had it been possible to attribute the development of the thrombosis, the consequent ischaemia and the resulting paralysis to the travelling or any incident or concomitant of the journey it would doubtless be easy to isolate it as an accidental injury. That perhaps is made clear by applying, mutatis mutandis, to a journey what was said in relation to the employment by Clauson L.J. at the conclusion of the judgment he delivered for the Court of Appeal in Oates v. Earl Fitzwilliam's Collieries Co. [3] and by Lord Atkin in Fife Coal Co. v. William Young [4] . These passages are of course not free from the influence upon the conception of accidental injury of the double condition imposed by the English legislation under which not only must there be personal injury by accident but it must arise both out of and in the course of the employment. But the relation of external causes to physiological change as ground for characterizing it as accidental injury is the point of much that was said by this Court in The Commonwealth v. Ockenden [5] . The physiological disaster, however, which Hornsby encountered, so suddenly from his point of view, as he journeyed to his work was not in any degree attributable to his journey. Its causation, as its occurrence, was entirely an internal matter. Yet its nature and the physiological changes that took place must be considered. There was the sudden operation of the processes upon the man himself and the immediate "injury". The processes meant an internal occurrence that can be clearly distinguished from the pathological conditions leading up to it, one consisting in a definite impairment of a centre of control of bodily movement. My opinion has fluctuated upon the question whether these factors are enough to make it right to characterize the event as injury by accident within the meaning that has been attached to that expression. But after full consideration I have reached the conclusion that the processes leading to Hornsby's "injury" cannot be regarded otherwise than as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus. It too closely resembles physiologically and pathologically the course and incidents of the occlusion of an atheromatous sclerotic coronary artery and its consequences. Upon that we have passed judgment in The Commonwealth v. Mackey [1] , following or rather applying, Ockenden's Case [2] . I therefore think that the conclusion reached by Judge Moore cannot be upheld.

[16]

Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered "personal injury by accident". This statement, however, requires qualification, because the words "injury by accident" (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. Examples are Brintons Ltd. v. Turvey [2] (anthrax) and Miller v. J. W. Handley Pty. Ltd. [3] (tuberculosis), which was discussed in Nash v. Sunshine Porcelain Potteries Ltd. [4] . Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus (Clover, Clayton & Co. Ltd. v. Hughes [5] , Kavanagh v. The Commonwealth [6] ). It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a "sudden physiological change". Examples are found in Hetherington's Case [1] (coronary occlusion) and Sharpe's Case [2] (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged.

[25]

The evidence in the case shows that, whilst travelling on a tram to his place of employment on the morning of 15th April 1958 the appellant experienced the effects of a cerebral thrombosis which has left him with some degree of incapacity. Apparently he had not experienced any previous symptoms of arterial degeneration and he says that when he boarded the tram that morning he felt quite well. But he had not travelled far when he felt a sensation like "pins and needles in the right hand". He began to massage this hand and very shortly afterwards he felt a similar sensation in his right foot. He thought his limbs might "get all right" but when he alighted at the end of his journey he had some difficulty and he slipped and fell on the roadway. It is not suggested, however, that any injury resulted from the fall. Upon being taken to hospital it was found that his blood pressure was very high and that the degree of right-sided paralysis which he had suffered was due to a thrombus which had formed in an atheromatous cerebral vessel. This was the opinion of Dr. Robinson whose evidence the learned County Court judge fully accepted. Dr. Robinson also expressed the opinion that the respondent's cerebral vessels had been affected by atheroma for some time before 15th April and it seems quite clear that he regarded the concurrent existence of atheroma in those vessels and hypertension as a cogent predisposing influence in the formation and development of the thrombus. He was also of the opinion that no incident of the respondent's work or journey had in any way contributed to this event. On the contrary his view was that the gradual progression of his atheroma coupled with his hypertension resulted in the formation and development of the thrombus until the supply of blood to the affected vessel was sufficiently impeded to produce the incapacity which it did on the occasion in question. So regarded the formation and development of the thrombus was part of the natural development of the respondent's disease.

[29]

It is true that in James Patrick & Co. v. Sharpe [7] the Judicial Committee held that "a sudden and unexpected onset of a functional failure of the heart muscle resulting in a functional failure of the vital organs" constituted an injury by accident within the meaning of the Workers' Compensation Act 1928-1946 Vict.. But as their Lordships said the question for decision in that case was whether, by the occurrence in question, personal injury by accident was caused to the deceased "within the meaning of s. 5 (1) of the Act reading into that section the definitions of disease and injury contained in s. 3". The case they said turned "on the extent of the changes made by the enactment of the definitions of "injury" and "disease" and by the substitution of "or" for "and" in the phrase "arising out of or in the course of the employment" ". Now, "injury" was defined by the Act then under consideration to mean "any physical or mental injury or disease and includes the aggravation acceleration or recurrence of any pre-existing injury or disease as aforesaid" and "disease" was defined to include "any physical or mental ailment disorder defect or morbid condition whether of sudden or gradual development and also includes the aggravation acceleration or recurrence of any pre-existing disease as aforesaid". These definitions, it seems to me, could not fail to invest the compound expression "injury by accident" with a completely artificial meaning. Their Lordships observed in the course of their reasons that the obvious purpose of the amending Act of 1946 was to extend the scope of statutory compensation and went on to say that it might well be that the enactment of the definition of injury had altered or widened the meaning of the phrase "injury by accident". Thereafter they set out the substance of the definitions of "injury" and "disease" and added "If the words of these definitions are given their natural meaning then undoubtedly the deceased suffered injury at a time deemed to be in the course of his employment" [1] . The meaning of the word "injury" as used in this passage may, I think, be more fully understood if there is substituted for that expression the relevant parts of the expanded meaning with which the definition section invested both that expression and the expression "disease". When this is done one asks whether by accident any disease, that is to say, "any physical ailment disorder defect or morbid condition whether of sudden or gradual development" including "the aggravation acceleration or recurrence of any pre-existing disease as aforesaid" had been caused to the deceased in that case. How far the width of these definitions extended the scope of the Act may be difficult to discover but one thing that is clear is that the expression personal injury by accident when used in relation to that Act is quite different from personal injury by accident within the meaning of that expression as used in the Commonwealth Act. In the definition of "injury" in the latter Act there is no mention of the word disease; "injury" means any physical or mental injury and includes the aggravation acceleration or recurrence of a pre-existing injury whilst "disease", which bears a similar meaning to that expression in the Victorian Act, is the subject of the special provisions contained in s. 10. As will be seen there are marked differences between the two sets of legislation and the decision in Sharpe's Case [2] does not conclude the question before us. Indeed when the relevant provisions of the Commonwealth Act are closely examined it becomes clear, in my view, that disablement as a result solely of the natural progression of disease is not personal injury by accident within the meaning of that Act. Accordingly I am of the opinion that the appeal should be allowed and the order of the learned County Court judge set aside.

[38]

In considering other authority, it is not necessary, in my opinion, to go back beyond the decision of the House of Lords in Fife Coal Co. v. William Young [7] . There the condition of "dropped foot", which was the injury suffered, not only occurred at work on a particular day, but resulted from the man's work as a packer in a coal mine, but what was treated as decisive on the issue whether injury by accident had been proved was not that the condition was the result of the work, but that it was shown that a definite physiological change for the worse took place in the worker's condition on a particular day. To quote Lord Atkin: "In Lord Fleming's words: "What happened to him on 27th April transformed him from a man who was not suffering from dropped foot into a man who was." " [1] That this was decisive appears from the judgment of Viscount Caldecote L.C. where after referring to Marshall v. East Holywell Coal Co. [2] , Gorley v. Backworth Collieries [2] and Walker v. Hockney Brothers [3] , he said [4] : "There is no reason to doubt the correctness of the decisions in the three cases I have last mentioned. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged. When the workman's claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workmen in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover, Clayton & Co. Ltd. v. Hughes [5] , or heart failure as in Falmouth Docks and Engineering Co. Ltd. v. Treloar [6] ." It is true that there are statements in the Lord Chancellor's judgment which link the change in the worker's condition with the work he had been doing, but that is because the House of Lords was considering a finding that "the claimant's incapacity did not result from personal injury by accident arising out of and in the course of his employment, and therefore the employers were not liable to pay compensation", and to dispose of the case, the Lord Chancellor finally said: "The claimant sustained a definite physiological injury in the reasonable performance of his duties, and as the result of the work he was at the time of the injury engaged in." [7] . This dealt with the three matters the claimant had to prove to succeed. Lord Atkin said, after quoting Lord Fleming's words already set out: "If this be the true result of the findings I cannot see that any doubt that the man suffered an injury by accident can arise." [1] . Perhaps even more illuminating, because it is quite clearly confined to the point whether there was or was not injury by accident, is the observation of Lord Romer made in the course of argument: "The question is, was there a physiological change for the worse in the respondent's condition on a particular occasion while he was at work?" [2] . In Roberts v. Dorothea Slate Quarries Co. Ltd. [3] , Lord Simonds, in considering Fife Coal Co. v. William Young [4] after quoting two passages from the judgment of the Lord Chancellor, said: "The passages that I have cited - to which I would add the pertinent observation of Lord Romer [2] : "The question is, was there a physiological change for the worse in the respondent's condition on a particular occasion while he was at work?" - show that the ratio decidendi in Fife Coal Co. v. William Young [4] was that the workman could there point to a particular physiological change on a particular day." [5] . It was because it was not possible to point to such a change that a different result was arrived at in the case with which Lord Simonds was then dealing.

[49]

The actual contracting of a disease is in some circumstances an injury by accident arising out of or in the course of employment, and thus compensable under s. 9. And incapacity from a disease due to the nature of the employment is compensable under s. 10. But an injury or incapacity that is an ordinary result of the progress of a disease according to its ordinary course is not, I think, an accident. A usual consequence or the normal climax of a progressive malady does not become an accident because it manifests itself suddenly and, to the patient, unexpectedly. I do not think that any authority binding upon us and applicable to the words of the present Act compels such a view. What for present purposes the authorities establish is that if some external event or some act done by the man himself causes a sudden, harmful and unexpected physiological change to occur, that may amount to an injury by accident - and this may be so although the event or act would not have had the same consequences if the man had not been suffering from some predisposing disease. In such cases it is because the injury was not the result of the mere progress of an autogenous disease but on the contrary was unexpectedly precipitated by some external event or definite act that it can be attributed to an accident. But here the respondent would, for all that appears, have had a stroke when he did wherever he was. He happened to be in a tram on his way to work at the time. That does not bring the case within the Act. I would add only that I think we should in all these cases heed the salutary warning Lord du Parcq gave in Roberts v. Dorothea Slate Quarries Co. Ltd. [1] which I respectfully quote: "Your Lordships are engaged in construing an Act of Parliament, and that duty is not to be performed by deducing from dicta contained in earlier judgments principles which may seem to follow from them. The pursuit of such a course of reasoning may take one on an interesting and attractive journey, but it is all too likely to lead to a destination far removed from any end contemplated by the legislature. Each step may be thought to justify a further advance, until at last the border-line is crossed which divides the reasonable interpretation of the statute from an unwarranted extension of its provisions. It is the duty of every tribunal to resist all temptation so to transgress" [2] . I would allow the appeal.

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