Commonwealth v Ockenden [1958] HCA 37

Commonwealth v Ockenden [1958] HCA 37 - HCA 1958 case summary — Zoe

[32]

Upon examination by Surgeon-Commander Armstrong it ws found with the aid of a stethoscope that a murmur could be heard . the region of the respondent's heart. Further examinations of the respondent took place and the medical evidence agrees that this murmur was indicative of aortic regurgitation resulting from some incompetency of the aortic valve. This condition was found tobe accompanied by some thickening of the heart muscle and a 4 enlargement of the left ventricle. Upon the medical evidence there can be no doubt that the respondent's condition was the result, at that time, of cardiac damage initially sustained in the course of an - attack of rheumatic fever during the respondent's childhood or early adolescence. Further, the evidence is unanimous that when aortic valve damage results from rheumatic fever a progressive weakening of the valve with gradual thickening of the heart muscle is inevitable. And so the time comes when the valve will become impaired to such an extent that it will no longer exclude the return to the lef ventricle of some portion of the blood received by the aorta. Then, as the disease progresses, the valve will operate with diminishing - efficiency. First of all it will permit some leakage back into the left ventricle of blood received by the aorta and then, with further _ deterioration, the leakage or regurgitation will gradually increase in intensity until its consequences are fatal. The presence of a murmur, - it is said, is the first physical sign that this stage of the disease has been reached. These brief observations seem to reflect the substance _ of the medical evidence concerning the progress of the disease though 4 Dr. Tallent, when asked in cross-examination whether " the final _ breakdown when it (the valve) ceases and fails to stop the blood from flowing back " was something gradual, said that " the process that produces it is gradual but the actual failure to hold the blood must be sudden". This is the substance of the evidence upon which the respondent relied to establish the occurrence of a distinct and sudden physiological change and to negative the view that his condition at the time of his discharge was the inevitable and gradual product of a degenerative process induced by a disease of the heart which h been affecting him for some time.

[37]

employment is to be distinguished from what arises ' out of t employment'. The former words relate to time conditi reference to the man's service, the latter to causality. Not accident which occurs to a man during the time when he is on employment, that is directly or indirectly engaged on what h employed to do, gives a claim to compensation unless it also out of the employment. Hence the section imports a distin which it does not define" (1). But it cannot be thought that! Lordship intended to suggest in the earlier part of this passage th all accidental injuries sustained by a worker at his place of empl ment must, by virtue of that fact alone, be taken to be sustaine "in the course of his employment". Still less did he mean that: sudden physiological change produced by the inevitable course ofa progressive disease and in no way related to any incident of fl employment, could be so regarded. Again the case is somewh different from the problem dealt with in cases such as Fenton
J. Thorley & Co. Ltd. (2); Falmouth Docks & Engineering 0 Ltd. v. Treloar (3); and Partridge Jones & John Paton Lid. x. James (4) where it was necessary to consider the meaning of expression " injury by accident " in association with the requil that it should arise out of and in the course of the employme As was observed in the course of Sharpe's Case (5) it was, in the cases, "" necessary to prove that some external event or some of the deceased had caused the sudden physiological change toh: when it did (6) " and the question for decision in Sharpe's Case (5) whether the effect of the amending Act then under consideration "to make it no longer necessary to associate the sudden physiol change with any external event or any action by the deceased " (6 In Hetherington v. Amalgamated Collieries of W.A. Ltd. (7) is to! found an intermediate type of case for there the appellant ¥ entitled to succeed if it could be shown that there had be injury by accident arising out of or in the course of the dece: employment. But there is no suggestion in any of the reasons 1 that case that the rupture of the artery which brought about # worker's death could be said to constitute personal injury | bY accident arising in the course of his employment merely b it happened at his place of employment ; on the contrary, the dee ion turned upon the fact that there was evidence capable of ing the rupture with an incident of his employment. Sharpe's ( (5), however, appears to be authority for the proposition

[39]

sudden physiological change in a person's condition may be regarded as an accident whether caused by or associated in any way with any external incident. But it does not, we think, go further and hold that any such change which happens at a worker's place of employment is, by virtue of that circumstance alone, an injury by accident arising in the course of his employment. It is true, of course, that "a long course of judicial decisions has extracted from the expression latent implications which make the test of the employer's liability independent of such things as external mishap, traumatic injury and unusual or unexpected incidents of work or duty " (per Dixon J. ashe then was in Hetherington's Case (1) ) but until Sharpe's Case (2) no judicial tribunal had made the test of an employer's liability independent entirely of incidents associated with the relevant work or duty and, indeed, so to hold now in the circumstances of this case, would be to enter into direct conflict with the actual decisions in cases such as Kellaway v. Broken Hill South Ltd. (3) and with the observations of the Judicial Committee in Slazengers (Australia) Pty. Lid. v. Burnett (4). In the latter case their Lord- ships, speaking of the view taken by Latham C.J. in Hume Steel Ltd. y. Peart (5) said: " This decision leads to the remarkable conse- quences on which the learned Chief Justice himself observes. A worker who, having reached his place of employment, dies of a coronary occlusion, being the result of a disease to which the employ- ment was not a contributing factor, is not entitled to compensation : see Kellaway v. Broken Hill South Ltd. (3), a case clearly decided correctly, though some of the reasoning may be open to criticism. On the other hand, the same worker, if he dies of the same disease, in the course of his journey to or from his place of employment, is entitled to compensation " (6). The acceptance in Sharpe's Case (2) of the view that in Victoria it is now no longer necessary to find an external event of some kind associated with a sudden physiological change rested, essentially, of course, upon the special provisions of the amendment introduced into the Workers' Compensation Acts of that State by the amending Act of 1946. But the decision does not justify acceptance of the same view in cases where it must be estab- lished that the so-called injury by accident arose in the course of the worker's employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment

[48]

But even if this view is wrong it is not possible to say, as his Honour held, that the respondent suffered injury by accident within a period of six months before his medical examination in May 1954. The audible murmur which was then heard may have been present for a much longer period and it seems that his Honour's view on this point was based, primarily if not exclusively, upon the fact that the respondent had undergone a medical examination upon his discharge from the Balmoral Naval Hospital in November 1953. It seems clear, however, that when he was examined at that stage he was examined merely for the purpose of ascertaining whether he had been cured of the disease for which he had been treated during the preceding three weeks. But whether the murmur first developed between November 1953 and May 1954 or at some earlier stage there was not the slightest evidence to enable it to be said that it developed whilst the respondent was engaged in the duties of his employment or even at a time when he was present at his " place of employment". The contrary view entertained by the learned county court judge seems to have rested upon a somewhat tenuous view that the respondent was serving in the Navy and that there was no evidence to establish that during the preceding six months he had been on leave or absent from his ship or station. It was, of course, for the respondent initially to establish that if he had sustained injury by accident he had sustained it in the course of his employment and there is no evidence that he did so. Indeed if - as the fact is - it is impossible to say when the murmur first developed it is, a fortiori, impossible to say whether it developed in the course of his employment or not. It would be stretching common sense too far to assume that he was never absent from his employment or his place of employment particularly when it is borne in mind that in October and November of 1953 he was treated for a disease which must have been contracted in extra-occupational activities.

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Judgment (56 paragraphs)

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