Connair Pty Ltd v Frederiksen

[1979] HCA 25

High Court of Australia|1979-07-01|Before: Murphy JJ

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Court

High Court of Australia

Decision date

1979-07-01

Before

Murphy JJ

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Murphy JJ. Connair Pty Ltd v Frederiksen [1979] HCA 25

[2]

In considering the material in the appeal book and the submissions of counsel, I have had the advantage of reading the reasons for judgment prepared by my brother Mason. The relevant facts, evidence and legislative provisions are there to be found. I have no need to supplement them in any respect.

[3]

It is well settled, as my brother Mason points out, that for an applicant worker to obtain compensation under s. 9 (1) of the Workmen's Compensation Ordinance 1949 N.T., the disease from which he suffers or the stage a pre-existing disease has reached during his employment with the respondent employer must be due to the nature of the employment. Because of the extension of the definition of disease in s. 6 (1) to include the aggravation of an existing disease as itself relevantly a disease, I have expressed the recited law in the abovementioned terms. But whether it be the disease itself, or its aggravation, the worker's condition must be due, not to the particular incidents of a particular employment, but to the nature of the class or classification of employment in which he was engaged: perhaps "occupation" is the appropriate synonym for employment in this connexion. I agree that the statutory requirement of the relationship of the nature of the employment and the diseased state of the worker can be expressed by saying that some special risk of the onset or aggravation of the particular disease is inherent in the class of employment or occupation in which the worker was engaged.

[19]

He [the respondent] has to go on working in a situation which is not ideal. He can cope with this for a certain time because of the %y(3)6D everyone has to deal with the difficult situation, but he is working a bit longer hours. He is working under stress, he is having to fly planes with more people in them. He does not see that the planes are as safe as they should be and for this he feels angry at Connair He repeatedly mentioned the stress caused to the respondent by the cyclone and its after-effects, but said that the cyclone was "not the only major stress". He gave the following evidence as to the effect of the incidents that suggested to the respondent that the aircraft were unsafe: Assuming again the obsessive compulsive personality, what significance do you think the sort of incidents about which Mr. Frederiksen told us yesterday, the safety incidents, would have in working towards or in bringing about the phobic condition? I think it would aggravate it. Anybody can break down if the pressures that are put on them are enough. The obsessive compulsive, however, personality is, perhaps stressed a bit more and is more likely to break down than another person. He is going to feel more resentful if these safety factors are not dealt with. He is going to feel that he is not being taken seriously and this leads to the development of the symptoms of tingling, headaches and getting uptight and scared of being in a plane situation. He also said: the fear situation I think is something new, the fear of planes situation, is something which has cropped up since the cyclone. When he was asked whether the respondent would have developed some sort of phobia if he had entered into some other occupation, for example, accountancy, he replied: It might have done if there was sufficient stress put on him, but you are not likely to have the same sort of stresses put on you in accountancy or other occupations as you are as a pilot where you have people's lives dependent on you.

[23]

The source of the relevant words of s. 9(1) appears to have been s. 8 of the Workmen's Compensation Act, 1906 U.K. although the words that appeared in that section were "the disease is due to the nature of any employment in which the workman was employed". It was held by the House of Lords in Blatchford v. Staddon & Founds [6] that those words are not synonymous with the words "due to the employment", and that under s. 8 a workman was entitled to compensation if the disease was "incidental to that class of employment so that it" [could] "be attributed to service therein" [7] . The "employment" referred to in the section meant the work or process in which the workman was engaged, rather than his relationship with a particular employer [8] . The purpose of using the words "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 ": The Commonwealth v. Bourne [9] , per Dixon C.J. In other words, once the workman proved that the employment was "of a nature to cause the particular disease" from which he was suffering, he was not required to prove that the disease in fact resulted from his employment with any particular employer: Hopwood v. Textile Paper Tube Co. Ltd. [10] . The workman was thus relieved of the necessity of showing that the actual employment with any particular employer caused or aggravated the disease. Although the test established by the English legislation was whether the disease was due to the nature of the employment, rather than whether it was due to the employment itself, the authorities are not opposed to the view that the fact that the disease was caused by the employment is in many if not most cases evidence that it was in the nature of the work to cause it. For although the eccentricities of animate behaviour may cause persons and animals to act contrary to their natures, the same is not true of employment, and when it is proved that a disease was caused by (and not merely contracted during) the employment, and it appears, either by proof or as a matter of common knowledge, that the incident, aspect or characteristic of the employment that caused the disease is one that would be expected to occur in employment of that class, it would seem to follow that the disease was due to the nature of the employment. And having regard to the objects of the legislation, and the purpose of using the words in question, it is difficult to believe that the legislature intended to place a workman under the burden of calling evidence either as to the manner in which employment of a particular kind is generally carried on by employers other than his own, or of the extent to which a particular disease is found to accompany the performance of employment of that kind.

[30]

I do not think that the expression "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 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. In the same case, Fullagar J. [23] , suggested that the workman must show that a characteristic or distinctive feature of the employment was a tendency to cause, aggravate or accelerate the disease, and added that the section only applies to cases where there is a special risk of contracting a particular disease or of suffering an aggravation or acceleration of a particular disease. He did not, however, suggest that the risk should be high, or that it was necessary that the employment should frequently or commonly cause the disease. The decision in The Commonwealth v. Rutledge is opposed to any such notion, since it can hardly be suggested that a person serving as a clerical employee in the Postmaster-General's Department runs a high risk of contracting a severe psychotic disorder, or of suffering an aggravation or acceleration of an existing disorder of that kind, or that there are many cases in which service in that capacity results in mental disease. Nor is it suggested that the risk must be one unique to the employment in question, and there is nothing in the words of the section to support such a suggestion. Further, there is no warrant for limiting the section to any particular sorts of disease - the Ordinance now does contain a schedule of what might be called industrial or occupational diseases, but s. 9AA makes it clear that the operation of s. 9 is not limited to diseases of that kind. 1. (1960) 104 C.L.R., at pp. 38-39. 2. (1960) 104 C.L.R., at p. 40.