Commonwealth v Rutledge

The first question argued in this case is concerned with how far, if at all, the definition of the word "disease" in s. 4 of the Commonwealth Employees' Compensation Act 1930-1959 Cth can be taken into account in dealing with applications for compensation under s. 10 of the Act. The question arises in the following circumstances. The respondent was employed as a female clerical assistant in the telephone accounts section of the Postmaster-General's Department and on 27th September 1961 she had a complete mental break-down which resulted, as was found on an appeal to a County Court from a determination of the Delegate of the Commissioner, in total incapacity. For some seven or eight days before this occurred the respondent had been relieved of her normal duties and she was carrying out special duties, in accordance with her instructions, relating to an investigation into irregularities in the preservation of trunk-line dockets. In particular, it was suspected that dockets regarding trunk-line calls were being abstracted by some unknown or unspecified fellow employee or employees of the respondent from the bundles of dockets kept in what was described as the "glass-house". The respondent's special duties were described in the following passages from the reasons of the learned County Court judge: "Mrs. Rutledge agreed to a suggestion that she should watch a number of female employees going to and from this glass-house - that she should take a note of the names of the people who went there, the times that they spent inside the glass-house and that she, Mrs. Rutledge, should herself go into the glass-house after such an employee paid a visit, to check on certain files of the particular subscribers' numbers given to her to see whether any dockets had been extracted during such a visit. Mrs. Rutledge was further informed that she was not to tell anybody, amended at a later stage to "not to tell anybody except some very close friend of hers", and that she was to indulge as a subterfuge in continuing to sort, check and file the dockets that were entrusted to her. But that in actual fact she was not to worry about how she performed that work or what results she achieved as a result of performing it because that was only to be used as a subterfuge and she was not to be accountable for that work or the efficiency with which it was done". The respondent commenced these duties on 19th September 1961 and she continued with them until her break-down on 27th September 1961.

It appears that on and prior to the lastmentioned date the respondent was afflicted with a mental disorder described as latent paranoia and her sudden break-down was occasioned by the development of this disorder to the stage of a "psychotic disorder of a severe kind". In substance it is claimed that although the condition of latent paranoia could not be said to be a disease due to the nature of the employment in which the respondent was engaged, the aggravation of that condition resulting, as was alleged, in an incapacitating psychotic disorder, was due to the nature of her employment and, by virtue of the definition of "disease", compensable under s. 10.

Section 10 (1) in its original form in the Act of 1930 gave a right to compensation for incapacity or death resulting from any one of a number of diseases specified in the Second Schedule to the Act. These were, it can safely be assumed, what may be described as occupational or industrial diseases but compensation was conditional on proof that any such disease was caused within the preceding twelve months by the employment in which the employee was engaged by the Commonwealth. The word "disease" was not the subject of definition at this stage so that it is clear that the section did not have any operation beyond that to be gathered from its plain words. In 1944 a proviso was added to sub-s. (1) of s. 10 relating to two specified diseases but this is of no consequence in the present case. Then in 1948 sub-s. (1) of the Second Schedule to the Act was repealed and a new sub-s. (1) enacted in the following form: "10. (1) Where - (a) an employee is suffering from a disease and is thereby incapacitated for work; or (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". This provision, in effect, substituted for a scheduled and fixed list of compensable diseases a description which a disease was required to answer before it could be regarded as compensable under the section. In other words the new sub-section applied to any disease provided that it was a disease due to the nature of the employment in which the employee was engaged by the Commonwealth. This is the form in which the section still stands, and so far there is no difficulty. But at the same time as the new sub-s. (1) was introduced the legislature provided a definition of "disease". By s. 2 of the Act of 1948 this expression was defined as including "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 a pre-existing disease". But the difficulties in the way of regarding the aggravation or acceleration of an existing disease as a disease for the purposes of s. 10 are obvious and were referred to by my brother Menzies in The Commonwealth v. Bourne [1] .

The expression "disease" occurs four times in sub-s. (1) of s. 10 and there are serious difficulties in the way of applying the latter part of the definition at any stage of the sub-section. Likewise difficulties arise in relation to sub-ss. (2) and (4). These difficulties have led the Commonwealth to contend that in the application of s. 10 no regard should be paid to the definition for there is, it is said, to be found in that section the expression of a contrary intention within the meaning of the opening words of s. 4. Indeed the submission goes as far as to suggest that it is impossible to apply the latter part of the definition to the section. Moreover it is pointed out that the definition is in terms which are identical with the definition of disease in the Workers' Compensation Act 1946 Vict. and the suggestion is made, in effect, that this definition has been blindly copied into the Commonwealth Act. But although there is much to be said for the proposition that the expanded meaning of disease does not easily or readily fit into the form of s. 10 or the legislative scheme which it is designed to implement, it appears that the word "disease" is, apart from the general provisions of s. 4 (2) and s. 16 (4) (the latter introduced in 1959), used only in s. 10 and that if the definition be disregarded in the application of that section the definition will have no effect whatever in the construction of the Act. So much is conceded by the argument advanced by the Commonwealth. But it is not an argument to which I am prepared to accede and I find it somewhat strange that this proposition should have been advanced by the Commonwealth. Obviously the definition must be taken to have been intended to have some operation and since, for all practical purposes, the only effect which it can have is in relation to s. 10, I think we are bound to apply that section as far as we can in accordance with its terms. This is not an easy task but irrespective of other difficulties which may arise in relation to the section I think we are bound to hold that an employee afflicted by a non-incapacitating disease is entitled to compensation under the section if by reason of an aggravation of that disease he becomes incapacitated or dies provided that the aggravation is shown to be due to the nature of the employment in which the employee was engaged.

That the aggravation of the respondent's pre-existing disease was due to the nature of the employment in which she was engaged at the relevant time was established to the satisfaction of the learned County Court judge. After discussing the evidence he found "that the particular task (upon which the respondent was engaged) was attended, in its very nature, by the dangers to latent paranoids of a psychotic onset" and relying particularly on the evidence of Dr. Springthorpe, he found the relevant issue of fact in favour of the respondent. This finding was challenged by the appellant but it was one which was fully justified by the evidence and no sufficient reasons why we should disagree with it, or, with the finding that the aggravation of the respondent's disease resulted in total incapacity, have been advanced.

It is necessary, however, before parting with the case to refer to other matters which were raised by the appellant. These concerned the jurisdiction of the County Court and the form of the order under appeal. In the first place, it was contended that the jurisdiction of the learned County Court judge was confined to a reconsideration of the bare question whether the respondent was entitled to compensation under the Act and did not extend so as to enable him, having decided that question in favour of the respondent, to make an order determining the rate of compensation payable. The basis of the contention is, in effect, that s. 20 of the Act provides merely for an appeal from a determination of the Commissioner and that he had not made any determination as to quantum; he had, it was said, merely determined that the respondent was not entitled to compensation and, therefore, this was the only issue open on the appeal to the County Court. I am of the opinion that the argument is misconceived and that the case of Australian National Airlines Commission v. Cassidy [1] , which was relied upon by the appellant, has no relevance to the argument. The so-called appeal for which s. 20 provides is, in my view, intended as a vehicle by which, in the case of claims for compensation which have been determined adversely to an applicant, such claims may be carried to a County Court for rehearing and determination. Further, in disposing of any such appeal that court may determine any issue arising in relation to the claim just as the Commissioner might have done in the first instance. The situation is quite unlike that which was considered in Cassidy's Case [1] where the Court was concerned with an appeal from a determination made by the Commissioner pursuant to s. 16 of the Act. As was pointed out that determination was made in disposing of a substantive matter arising antecedently to any hearing and determination of the claim for compensation itself.

1. (1964) 110 C.L.R. 172. 2. (1964) 110 C.L.R. 172.

The criticism advanced concerning the form of order made in the County Court was, however, well founded. The order contains a declaration "that the respondent is liable to pay the reasonable cost of medical treatment in accordance with the provisions of s. 11 of the Commonwealth Employees' Compensation Act 1930-1959 in relation to the disease from which the appellant is suffering" and a further declaration "that the appellant is totally and permanently incapacitated for work by reason of the said disease". I think that neither of these declarations should have been made. The first of these, with its reference to "reasonable cost of medical treatment", may be thought to be inconsistent with s. 11 of the Act though the following words "in accordance with the provisions of s. 11" may reconcile it with the provisions of that section. It is, of course, quite clear that it is for the Commissioner, at least in the first instance, to fix the amount of the liability of the Commonwealth in accordance with sub-s. (2) of s. 11 and I think that the declaration which was made went too far. As far as the second declaration is concerned it is sufficient to observe that there was no issue either before the Commissioner or the County Court as to whether the respondent's incapacity was permanent and that, therefore, no such declaration should have been made. But as the respondent has no objection to the deletion of either declaration it is unnecessary to say more than that the order should be re-formed. The case is an unusual one as some fifteen months have now elapsed since the order under appeal was made and it is not open to or possible for me to determine whether the respondent has remained incapacitated during the whole of this period. I think, therefore, that the two declarations should be deleted and that the order which preceded these declarations should be partly deleted. In lieu thereof I think it appropriate to make an order that the respondent became entitled to weekly payments of compensation appropriate to total incapacity in respect of the period from 27th September 1961 to 22nd July 1963 and, thereafter, to compensation during her incapacity in accordance with the provisions of the Act.

This is another of the many appeals which have come to this Court involving the construction of that vexing piece of legislation, viz. the Commonwealth Employees' Compensation Act. In an earlier case reference has been made to the difficulty which has been created by the drafting device of defining "disease" as including, in the absence of a contrary intention, "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 a pre-existing disease" when it is only in s. 10 of the operative provisions of the Act that the word "disease" is to be found. In s. 10 (1) the word "disease" appears four times and not always is the definition appropriate. Having considered the section carefully again I adhere to what I said in The Commonwealth v. Bourne [1] . There I said: - "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". Despite the argument to the contrary, it would, I think, be to depart from what was said by Dixon C.J. and Fullagar J. as well as by myself in Bourne's Case [1] to disregard the definition of disease in the construction of s. 10 (1). The Chief Justice said: - "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" [2] . Fullagar J. said: - "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" [3] . The citation from the Chief Justice includes a reference to "disease" in the defined sense and Fullagar J. uses the words of the definition "aggravation" and "acceleration". See too The Commonwealth v. Thompson [4] , per Dixon C.J. [5] and Windeyer J. [6] where in each case the definition of "disease" has been regarded as applicable to s. 10 (1).

1. (1960) 104 C.L.R. 32, at pp. 43, 44. 2. (1960) 104 C.L.R. 32. 3. (1960) 104 C.L.R., at p. 39. 4. (1960) 104 C.L.R., at p. 40. 5. (1960) 104 C.L.R. 48. 6. (1960) 104 C.L.R., at p. 52. 7. (1960) 104 C.L.R., at p. 56.

Applying the sub-section then, as if the words "its aggravation, acceleration or recurrence" followed the word "disease" where it appears thirdly and fourthly therein, the question here seems to be whether the nature of the respondent's employment with the appellant was such as to expose a latent paranoiac to a special risk of being turned into an active psychotic person.

The respondent's ordinary employment with the appellant in which she had been engaged for about four and one half years was to sort out and file trunk line dockets of telephone calls at the Spencer Street Post Office but for about a fortnight from 12th September 1961 her special confidential employment had been to detect suspected malpractices by other employees with regard to bookmakers' telephone calls. On 27th September 1961 she suffered a break-down. It seems that she was a paranoiac person and became an active psychotic person. Dr. Springthorpe, speaking of her spying work, said: "One could hardly have chosen a job more likely to stir up a paranoiac person than the one she had, and it only took some fourteen days, I think, from when she started this special job, before she had this pretty drastic break-down".

Upon this and like evidence, I am not disposed to disturb the finding made by the learned County Court judge that the respondent's conversion from a latent paranoiac, as she was, into an active psychotic person, as she became, was due to the nature of the employment in which she was engaged. It is, of course, not sufficient to attract s. 10 that the appellant's employment brought about the change which occurred; it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.

Mr. Menhennitt, for the Commonwealth, argued that this respondent could not succeed consistently with the decision of the Full Court of the Supreme Court of Victoria in Taylor v. McQueen [1] . I do not think so. In the Victorian Act under consideration in that case, the extended definition of "disease" applied in many provisions other than in ss. 12 to 14 which correspond, though with many differences, with s. 10 of the Commonwealth Act. There was not, therefore, in that case the compulsion which I find here to give the word "disease" its extended meaning in the provisions directly applicable. Furthermore, the majority of the Court in that case placed great reliance upon the construction of the word "disease" in s. 14 of the Victorian Act, the provision corresponding with, although again different from, s. 10 (4) of the Commonwealth Act. I am prepared to read the word "disease" in s. 10 (4) of the Commonwealth Act without the extended meaning, simply because of its use in conjunction with the word "contracted", but this does not help with the construction of the word "disease" in a different context although in the same section. Uniformity in usage is hardly a characteristic of the Commonwealth Employees' Compensation Act and the consideration of uniformity weighs but lightly against the consideration that, unless the definition applies in s. 10 (1), the amendment introducing it makes no difference to the operation of the Act.

Accordingly this case is one where the nature of the work that was given to an employee by the employer was such as to make it probable that an employee who was a latent paranoic would become an active psychotic. This is sufficient to bring the case within s. 10 and to entitle the respondent, who suffered such a change, to compensation. As to the other matters argued upon the appeal, I agree with the judgment of Taylor J. I also agree that the Court's order should be as he proposes.

The respondent to this appeal was employed by the Commonwealth in the Postmaster-General's Department in a clerical capacity. Her normal work consisted of sorting and filing trunk line dockets of telephone calls in a Melbourne Post Office. During 1961 suspicions arose that some employees in the Department were tampering with dockets relating to certain telephone numbers with a view to assisting persons carrying on illegal book-making. As a result, in September 1961, she was directed by one of her superior officers to watch the place where these dockets were kept and to note the names of postal employees who went there and, after they had left, to examine the files relating to these particular telephone numbers to see whether any of the dockets were missing. She was to do this under cover of her normal activities. After six or eight days of this work she developed a serious condition of mental disturbance which incapacitated her for work. She made a claim for compensation under s. 10 (1) of the Commonwealth Employees' Compensation Act which was disallowed by the Delegate of the Commissioner for Employees' Compensation. Against that determination she appealed to the County Court at Melbourne and her appeal was allowed by the learned County Court judge, who set aside the determination of the Delegate and made an award in her favour. From that decision the Commonwealth now appeals upon a number of grounds, some only of which were argued before us. Other submissions which counsel for the appellant wished to make were postponed to be argued at a later stage should the Court reach a conclusion adverse to the appellant upon the questions which were debated.

The medical evidence before the County Court was to the effect that the respondent had long been a "latent paranoiac" and that the work of watching the activities of some of her fellow employees upon which she had been engaged had caused that latent condition to become active, with the result that she had become a "florid paranoiac" seriously affected by irrational beliefs and delusions of persecution. It was said also that, although a development of that kind could be caused by a variety of happenings entirely unconnected with her employment, the investigation work on which she was engaged, albeit only for a few days, was "much more likely to aggravate a latent paranoid condition than almost any other kind of job ".

The first question to be considered is whether, upon its true construction, s. 10 (1) of the Act can have any application to a case of this description. That sub-section is in these terms - "Where - (a) an employee is suffering from a disease and is thereby incapacitated for work; or (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 as if the disease were a personal injury by accident arising out of or in the course of his employment". Sub-section (2) provides that compensation shall not be payable if the employee, at the time of entering the employment of the Commonwealth, wilfully and falsely represented himself as not having previously suffered from "the disease". Sub-section (3) has no relevance to the present question but, by sub-s. (4), if "the disease" is of such a nature as is contracted by a gradual process, the Commonwealth is entitled to be indemnified by any other employers (if those employers are also liable to pay compensation) who employed the employee prior to the incapacity in the employment to which "the disease" is due.

The case sought to be made on the respondent's behalf was that she was at all times suffering from paranoia; that paranoia is a "disease" within the meaning of the section; and that while that "disease" was not due, and could not be said to be due, to the nature of her employment, it had been aggravated and the aggravation was due to the nature of her employment.

Unless the contrary intention appears, "disease" is defined by s. 4 (1) of the Act 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 a pre-existing disease". For the purposes of the present argument, it may be assumed that paranoia is a "mental ailment, disorder, defect or morbid condition" within that definition and the question that then arises is whether the word "disease" in s. 10 (1) includes the "aggravation of a pre-existing disease" or whether, on its true construction, it shows a contrary intention. If the extended meaning is not to be read into the sub-section, I think it follows that the appellant must succeed. If, on the other hand, the word "disease" in s. 10 (1) includes the aggravation of a pre-existing disease, a further question arises whether, in the circumstances of the present case, the aggravation of the respondent's condition of paranoia was due to the nature of her employment.

The conclusion to which I have come is that, following the ordinary rules for interpreting statutes, the extended meaning given to "disease" by s. 4 (1) so as to include the "aggravation of a pre-existing disease" cannot be read into any part of s. 10. As Menzies J. pointed out in The Commonwealth v. Bourne [1] , the word "disease" where used in pars. (a) and (b) of s. 10 (1) refer to the disease itself and not to an aggravation of it. It is the disease at its then stage of development that incapacitates the employee or causes his death and it seems to me to follow that the words "the disease" where used in the latter part of the sub-section must be read in the same way. It is "the disease" to which pars. (a) and (b) refer that is to be deemed to be a personal injury by accident arising out of or in the course of the employment and for which compensation is to be paid if incapacity or death results and "the disease" is shown to be due to the nature of the employment. This view is strengthened by an examination of sub-s. (2) and (4) of s. 10. They cannot, on any view, include the extended meaning and "the disease" with which they deal is, without doubt, "the disease" of which sub-s. (1) speaks. Counsel for the respondent pointed out, however, that this would mean that the extended meaning of "disease" in the definition section would have no effective operation. This appears to be so and his submission that s. 10 should be construed in the way for which he contends is a powerful one. Apart from s. 10, the only other provision that I have found which refers to "disease" is s. 4 (2) which is itself in the nature of a definition provision. Nevertheless, unless accepted canons of construction are to be disregarded I can see no escape from the position that s. 10, when read as a whole, indicates an intention that the words "disease" and "the disease" whenever appearing in it do not include the aggravation of a pre-existing disease. It may be, as counsel for the appellant suggested, that the draftsman's purpose was to bring the definition of "disease" into line with the definition of "injury" which includes "the aggravation, acceleration or recurrence of a pre-existing injury", but that he failed to realize that the terms of s. 10 were inapt to include the case of an acceleration of an already existing disease. It is true that in Bourne's Case [1] there are passages in the judgments which support the view that the word "disease" in s. 10 (1) includes the aggravation or acceleration of a pre-existing disease. But in that case the Court was not directing its attention to the question whether the extended meaning of "disease" was to be read with s. 10 (1). It was concerned with the meaning and effect of the words "due to the nature of the employment" and whether the development of heart disease or its aggravation or acceleration was what Windeyer J. called "a characteristic product" of employment in the Taxation Department.

1. (1960) 104 C.L.R. 32, at p. 43. 2. (1960) 104 C.L.R. 32.

For these reasons I would allow the appeal. My brothers Taylor and Menzies have taken a different view on the matter with which I have already dealt and, in those circumstances, we have now heard argument on the other matters which were raised. I agree with what my brother Taylor has written on this aspect of the case and do not wish to add anything.