Commonwealth v Thompson

The matter came before the learned District Court judge pursuant to s. 20 of the Act which provides that any person affected by any determination of the Commissioner under the Act may within a specified time, appeal to a county court (which term includes a district court) against the determination and that the court shall have jurisdiction to hear and determine the appeal. The Delegate of the Commissioner had previously rejected the respondent's claim and she appealed pursuant to this section. I mention these matters because in the course of the argument before us the contention was somewhat belatedly raised that the appeal to this Court was incompetent. The foundation for this contention was s. 39 (2) of the Judiciary Act 1903-1959 (Cth) which provides that the several courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it and, thereafter, imposes a condition or restriction by the use of the following words: "(2) (b) Wherever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court". That condition or restriction, it is said, is applicable here and since no appeal lay to the Supreme Court from the decision of the learned District Court judge, there is no appeal to this Court. In answer to this proposition it was, however, argued that the condition or restriction is attached only to the investing of federal jurisdiction accomplished solely by force of s. 39 (2). That is to say, it is attached only to the federal jurisdiction with which within the limits of their several jurisdictions that section invests the Courts of the States. Then, it is said, since s. 20 of the Commonwealth Employees' Compensation Act 1930-1956 confers an additional though, albeit, federal jurisdiction, s. 39 (2) (b) cannot be read as a relevant condition or restriction or as qualifying the right of appeal which, otherwise, is granted by s. 73 (ii) of the Constitution. There may be some force in this argument but it is doubtful whether the decision in Goward v. The Commonwealth [1] leaves the question open. However it is unnecessary to pursue the point because the view which the learned District Court judge took of s. 10 makes it necessary that special leave to appeal should be granted.

Approaching the case on this basis it should first of all be observed that the case bears a striking resemblance to the recently decided case of The Commonwealth v. Bourne [1] . As in that case, and for like reasons, I am satisfied that consideration of the evidence should not lead to the conclusion that the work which the deceased's employment required him to perform played any part in accelerating the progress of the disease which had afflicted him for such a long time or in bringing about his death on 9th July 1958. But even if it did, the reasons given in Bourne's Case [1] make it quite clear that his death was not caused by a disease which was due to the nature of the employment in which he was engaged. I should, perhaps, add that it was not suggested and, indeed, there was no ground upon which it could have been suggested, that the deceased's death resulted from personal injury by accident arising out of or in the course of his employment.

1. (1960) 104 C.L.R. 32. 2. (1960) 104 C.L.R. 32.

Accordingly I am of opinion that the appeal should be allowed and the order of the learned District Court judge discharged.

In this case his Honour Judge Lloyd upon an appeal under s. 20 of the Commonwealth Employees' Compensation Act from a determination of the Commissioner for Employees' Compensation found that the death of F. A. S. Thompson, who, at the time of his death, was Deputy Commissioner of Taxation in New South Wales, was caused by the acceleration or aggravation, due to his work over the years in the Taxation Department, of the coronary heart disease from which he was suffering, and that his widow was entitled to compensation under s. 9 of the Act by virtue of s. 10 thereof on the footing that the deceased's death was caused by a disease due to the nature of his employment by the Commonwealth. From the award that his Honour made the Commonwealth has appealed to this Court.

For the reasons which I have given in my judgment in The Commonwealth v. Bourne [1] I consider that, even if the evidence did establish that the responsibilities of the offices which he occupied in the Taxation Department did aggravate or accelerate the coronary disease from which he was already suffering, that disease which eventually caused his death was not due to the nature of his employment, and to those reasons I have nothing to add. The coronary disease which brought about the death of the deceased was not a disease due to the nature of the deceased's employment in the sense that the disease was incidental to that class of employment so that it can be attributed to service therein - to use the language of Viscount Sumner in Blatchford v. Staddon and Founds [1] which was adopted by Starke J. in Smith v. Mann [2] .

1. (1960) 104 C.L.R. 32. 2. (1927) A.C. 461, at p. 470. 3. (1932) 47 C.L.R. 426, at p. 443.

On the question of the jurisdiction of this Court to entertain the appeal, I agree with the judgment of the Chief Justice. Accordingly, I consider that this appeal should be allowed.

I agree that this Court has jurisdiction to entertain this appeal and that it is a full appeal on the facts and the law. The question then turns on the effect of s. 10 of the Act.

Was the death of the deceased caused by a disease due to the nature of the employment in which he was engaged? As I said in The Commonwealth v. Bourne [3] , s. 10 relates to what are commonly called occupational diseases. The definition of "disease" gives a wide meaning to that word; but it does not otherwise affect the meaning of the expression "disease due to the nature of the employment". For a disease to be due to the nature of the employment in which the employee was engaged, the employment must be such that it ordinarily tends to cause that disease. That is to say, it must be a property of that form of employment to produce that disease - so that contracting that disease can be said to be a natural result of being engaged in that employment. Other suggested interpretations of the expression seemed to me to assume that the words "nature of" may be disregarded and the expression treated as periphrastic. H. W. Fowler observed in Modern English Usage that the word "nature" is "a favourite with the lazy writers who prefer glibness and length to conciseness and vigour". We should not assume that the draftsman of the Act was in that class. Moreover, the history of the provision shows clearly enough that the word "nature" is used here with a purpose and in its proper sense. That disposes of the matter, because coronary disease is not a disease due to the nature of the work of tax collectors. Coronary ailments are, unfortunately, widespread in the community. Taxation officers are not more afflicted by them than are persons in other occupations.