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[1994] NSWCA 73
Court of Appeal (NSW)
1994-07-19
O'Toole J, Powell JA
Original judgment source is linked above.
"(a) on 8 and 9 January 1987 at the respondent's property at Bungonia, the applicant performed shearing work and strained his back.
IN THE ALTERNATIVE;
(b) the Applicant suffered from lumbar spondylosis and severe spinal stenosis which are diseases of gradual onset and the Respondent was the last person to employ the Applicant in employment of the nature to which such disease were due."
despite which, in that part of the form of Application which required information as to all other employers by whom the Appellant was employed during the 12 months prior to the date of incapacity in any employment to the nature of which the disease was due, the words "not applicable" were inserted.
Insofar as the Application dealt with the Second Respondent, the Application asserted: "From 14 to 17 December 1986 the Applicant performed shearing work on the Respondent's property at Bullamalita as a result of which he strained his back". that part of the form of Application which dealt with former employers also having the words "not applicable" inserted.
Although it is not clear when, and at whose behest, it was done, it would appear that, at some time, one or other of the First and Second Respondents joined as Third Parties to the Application all those by whom, in the 12 months preceding January 1987, the Appellant had been employed as a shearer.
However, to return to the narrative: the myelogram which was carried out in May 1989 showed some narrowing just above the laminectomy which had been carried out in November 1987. However, because the Appellant was reluctant to undergo further surgery, Dr Bleasel attempted to treat his condition conservatively until it became inevitable that an operation should be carried out.
That stage appears to have been reached in August 1989, at which time the Appellant was suffering severe pain, the cause of which was diagnosed by Dr Bleasel as L4 nerve root compression. Accordingly, the Appellant ill August 1989 was admitted to hospital where it was necessary to carry out a wide laminectomy removing the laminae and spinous process of L3, and, when the fourth lumbar
8 UNREPORTED JUDGMENTS
nerve root was exposed, it was found to be very tightly jammed into the lateral recess and was decompressed well out laterally.
Despite the fact that the operation carried out ill August 1989 appears to have eased the Appellant's condition a little, he continued to be subject to severe pain when the Application first came on for hearing before O' Toole CCJ in November 1990. By that time, so it would seem, the Appellant had been examined by a number of medical practitioners who had been retained on behalf of the insurers for the First and Second Respondents.
Despite the number of employers who had been joined as Third Parties, it would appear that arrangements were made between one, or other, or both, of the Respondents and the various Third Parties to the effect that that Respondent, or the Respondents, would protect the interests of the various Third Parties on any hearing.
Accordingly, when the matter came on for hearing before O'Toole CCJ, only the Appellant and the two Respondents were represented on the hearing.
Although the transcript record of proceedings does not deal with the matter in detail, it seems clear enough that, on the first hearing day, counsel for the Appellant sought to amend so much of the particulars contained in the Appellant's Application as related to what might be called "disease injury" by deleting the words "not applicable", the intention being that the Appellant's application would be conducted upon the basis, not that the Appellant had suffered a "frank injury" while working at Bullamalita, or alternatively at Lumley Park, but that the condition from which the Appellant was suffering, and which had caused his disability, was what might be called "an industrial disease" incidental to the work of a shearer, which was the work which the Appellant had been carrying out for the Respondents in December 1986 and January 1987 respectively.
The only witness who gave evidence on the first hearing day was the Appellant whose cross-examination, as I read it, was directed primarily to seeking to establish two facts, they being, first, that any disability from which the Appellant suffered was due, at least in part, to an arthritic condition of the knees, and, second, that the Appellant's evidence as to his past earnings, upon which evidence the Appellant's wage schedule (Exhibit "E" Appeal Book at 234) was based was inaccurate and ought not to be accepted. At the conclusion of the Appellant's evidence the application was adjourned.
The hearing of the application was resumed on 30 April 1991, on which day the only witness to give evidence as Dr Bleasel. Dr Bleasel's evidence in chief was brief, involving little more than his identifying, and confirming the contents of, the two reports (Exhibit "C'" Appeal Book 126 et seq) which he had provided to the Appellant's solicitors in July 1989 and November 1990. Nor was Dr Bleasel's cross-examination particularly extensive - the whole of Dr Bleasel's evidence only occupied 35 minutes - as I read it, the burden of the cross-examination was directed to suggesting, first, that the Appellant's spinal canal stenosis was a constitutional condition, and, second, that the nerve root compression from which the Appellant suffered was unconnected with the spinal canal stenosis, each of which suggestions was rejected by Dr Bleasel who asserted first, that spinal canal stenosis was due mostly to wear and tear, and, second, that there was a complete connection between the Appellant's spinal canal stenosis and the nerve root compression, the former being a cause of the latter. At no stage, as I read his cross-examination, did Dr Bleasel retreat from the
URJ CRISP v CHAPMAN (Powell JA) 9
opinion expressed by him in the report made in July 1989 that the work which the Appellant had done as a shearer was undoubtedly the cause of the deterioration in his spine.
At the conclusion of Dr Bleasel's evidence, the hearing was, once more, adjourned not being resumed until 8th August 1991.
When the hearing resumed on 8th August 1991 Dr Dan was called to give evidence.
On this occasion, Dr Dan was not restricted in his evidence in chief to the report (Exhibit "D" Appeal Book 131 et seq) which he had provided to the Appellant's solicitors. Rather, his attention was directed to the two reports which Dr Bleasel had provided to the Appellant's solicitors and the evidence which the Appellant had given in chief, following which he was asked whether he agreed with Dr Bleasel's diagnosis of the Appellant's condition as spinal canal stenosis. Having expressed his agreement with that diagnosis, Dr Dan then gave the following further evidence:
"Q. What in your opinion would be the cause of that stenosis. A. I think that the stenosis is a direct consequence of many stresses over a considerable period of time. Noting that he was a shearer and had been so for about a quarter of a century at the time of this symptom is relevant I think that it was really an accumulation of the stresses on his back causing collapse of the discs and arthritic changes in the facet joints which caused the narrowing of the spinal canal which is what canal stenosis is.
Q. Would you be able to pinpoint a specific incident - bearing in mind the history that I have related, would you be able to pinpoint a specific incident which might have caused it. A. No, I think that the two last shearing activities that you described may have contributed the final straw, but I think that it is an accumulation of prior events and that the canal stenosis was already at an advanced stage prior to those two incidents. I think that their contribution to the stenosis was merely the final stages rather than the major stages. When I saw him I thought that there was also a soft tissue, a musculoligamentous component, and I thought that they had perhaps contributed that but not the spinal stenosis in any more - in any greater degree, rather, than any previous incident.
Q. Would it have contributed to that stenosis to some extent. A. I think so, I think every shearing activity, at least in the latter years would have contributed to a minor degree.
Q. Is stenosis a constitutional condition. A. No, I think it's an acquired condition. The stenosis occurs because of the stresses which are applied to the spinal canal by and large over a long period of time though occasionally it's related to a single of small number of episodes, but that's really the atypical situation.
Q. In this particular case. A. I think that the very strong likelihood in my view is that it was an accumulation of the years rather than of any single or small number of incidents.
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Q. Bringing you back to this particular case. How would you categorise the spinal canal stenosis in Mr Crisp's case. A. I think that it's a disorder - disease resulting from multiple repetitive stresses. I think that the work of a shearer which involves handling often quite fractious animals and strong animals in a bent posture is about one of the worst stresses that one could apply to a back.
10 UNREPORTED JUDGMENTS
Q. Would you expect Mr Crisp to be able to return to work as a shearer. A. I could see no way that he could.
The nature of the cross-examination of Dr Dan and his response to it is, I think, sufficiently indicated by the following passage in Dr Dan's cross-examination:
"Q. You indicated also that the development of arthritis can create a swelling which narrows the canal. A. Well, I think that's the same process as I was trying to describe as occurring in the facet joints.
Q. Would you agree though the arthritis of itself is a constitutional degenerative condition, leaving aside the question of aggravation, firstly. A. I think that there are really two broad varieties of arthritis and I undoubtedly many subsections, but broadly the constitutional disorder such as rheumatoid arthritis I think undoubtedly are constitutional and fall into a different category to the osteoarthritis which is the type that's indicated here. I think that osteoarthritis is in the majority of people a direct consequence of stresses and trauma.
Q. There was nothing of particular significance in shearing as distinct from other types of manual activity which may place stresses on the spinal canal or on the spine. A. Any physical activity can. I think the factors which put particular strains in shearing are the position in which the person works whilst shearing, particularly the bent forward position with rotation of the spine. That whilst in effect doing heavy lifting really perpetuates the three major stresses that cause damage to the spine. The weight bearing, the bending and the twisting factors and I think that shearing amongst manual activities is one of the worst because of this combination of all three of those factors.
Q. Types of work such as fencing also involve bending and exerting pressure in a bending position. A. Well, certainly, though I don't believe that the forces involved and the maintenance of the bent posture in fencing are comparable to shearing.
Q. But nevertheless the postural aspects would contribute to the process you have been describing. A. I think they could, yes.
Q. Well, not only could they but they would in the same way that as time goes by - I withdraw that. As time goes by any sort of stress on the spine will contribute to the development of the condition, that has to be right, does it not. A. Broadly so. I think inevitably the spine can stand up to a certain amount of stress or we'd all be crippled. I therefore think that the degree of stress is of particular significance whilst fencing as I understand it certainly involves bending, particularly in producing the holes, I don't think that the bending and twisting there is in any way comparable so that I don't really believe that the fencing would contribute necessarily. It may, but I don't think that it's inevitable as I think that shearing is.
At the conclusion of Dr Dan's evidence - which evidence appears as if it occupied no longer than an hour - the Appellant's case was closed.
No evidence was tendered on behalf of either Respondent.
Following the morning adjournment, Mr M S Choat, who then appeared for the Appellant, commenced his submission. It is, I think, clear from his submissions that the case which, on behalf of the Appellant, Mr Choat was putting before Her Honour was, as I have earlier suggested, one of disability due to "an industrial disease", the statutory base for that case being found in the provisions of s4(b)(i), s9, s15(1), s33 of the 1987 Act, despite which fact Her Honour appears to have thought that the case was one based on some incident
URJ CRISP v CHAPMAN (Powell JA) 11
occurring while the Appellant was working as Bullamalita and/or Lumley Park, which incident, or incidents, had the effect of exacerbating the Appellant's pre-existing condition.
That this was so is, I think, sufficiently demonstrated by the following passage in the course of Mr Choat's submissions:
15] "MR CHOAT
16] Your Honour, essentially what the - the applicant essentially argues that the stenosis which has caused the applicant's incapacity and which certainly is the cause of the surgery performed by Dr Bleasel. But that was a disease of gradual process.
17] HER HONOUR 18] In terms of the Act.
19] MR CHOAT
20] In terms of the Act. Your Honour, the meaning of the word 'disease' is to be given a wide meaning.
21] HER HONOUR:
22] Well, I certainly think that canal - somebody might persuade me to a different view, but I would be inclined to think that canal stenosis is precisely the kind of condition which could or might be a disease of gradual onset in terms of the Act. What was it, though, about these two brief periods of employment that caused something which makes those employments relevant to your claim. CHOAT Yes, your Honour. Your Honour, if I could take your Honour to s15 of the 1987 Act - 1 should firstly say, your Honour, that in my submission the 1987 legislation applies to the circumstances of this case in determining whether or not the applicant is entitled to compensation. The 1926 Act has been repealed the transitional provisions contained within the 1987 Act relate to the amounts of compensation which may be payable in relation to workers injured before 30 June 1987. But those transitional provisions do not incorporate or include s15.
S15, your Honour, says that where an injury is a disease which is one as to be contracted by gradual process the injury shall be deemed to have happened at the time of the worker's incapacity. Now your Honour, in my submission the time of the worker's incapacity arose at the time of his employment with Miss Chapman, the first respondent.
The evidence is, your Honour, that whilst employed as a shearer by the first respondent there was an increase in the leg symptoms, there was an increase in the back symptomatology. The evidence is that the applicant ceased work as a shearer upon ceasing work with the Chapmans and has never gone back to work as a shearer.
25] As the applicant has been unable to work thereafter as a shearer, and has been unable t work as a shearer because of the disease of gradual process, it can therefore be inferred that the incapacity arose during the employment with Miss Chapman around that time.
26] HER HONOUR
27] What happened during Miss Chapman's employment to support that assertion.
28] CHOAT 29] Two things, your Honour. Firstly, that the applicant was shearing daily and
secondly that the applicant was shearing the lambs which were more arduous and the applicant has given evidence that this was particularly difficult work and it
12 UNREPORTED JUDGMENTS
was as a result of that that he says the symptoms increased so that he went off work and has never been able to go back to work as a shearer.
30] HER HONOUR
31] What was it about this work, though that affected the course Of the disease
if I accept your assertion that this was a disease of gradual onset. CHOAT
32] Well, to use Dr Dan's expression, it was the straw that broke his back. But your Honour, under s15 - s15(1)(a) is a deeming provision, it deems the date of injury to be that date of the incapacity.
33] HER HONOUR
34] But I have got to find an injury first, have I not.
35] CHOAT
36] Yes, your Honour, you do. The injury is one of a disease, a disease of gradual process, that is the injury. Your Honour, s4 defines injury.
37] HER HONOUR 38] Which part of s4 fits this case. 39] CHOAT
40] S4subs(b), your Honour. A disease which is contracted by a worker in the course of employment to which the employment is a contributing factor.
41] HER HONOUR
42] I-suppose the difficulty I have is understanding in the light of the medical evidence, and particularly in view of Dr Dan's oral evidence in what way, whatever happened in the course of these two brief periods of employment contributed to the disease. In pathological terms, what was it that happened that caused or accelerated or exacerbated the course of this disease.
CHOAT Your Honour, the work with these two employers was part of a train of events, it was work as a shearer, it contributed to the development and consideration of the disease and as I have mentioned, your Honour, the particular work with the Chapmans was work of a particularly arduous nature which brought about an increase in his symptoms and brought about the applicant's incapacity in that it caused him to stop working as a shearer to the extent that he was unable to resume work as a shearer.
43] Your Honour, in my submission the applicant has established that he was incapacitated at a time of ceasing work with Chapmans as a consequence of the back symptoms and leg symptoms which he had. Under s15 it would then cause a finding to be made that the injury is deemed to have happened as at that date.
44] HER HONOUR
45] 9 January 1987, the last of the two days he worked for the Chapman Grazing Company.
46] CHOAT
47] Yes, your Honour. Therefore compensation would be payable by that employer under subs(b) of s15.
48] HER HONOUR 49] I understand that submission, thank you. 50] CHOAT
51] Yes, your Honour. It is clear, your Honour, that the applicant is incapacitated and is incapacitated to a large extent. Although he has worked on occasions on a part-time basis doing work other than as a shearer, it is clear that
URJ CRISP v CHAPMAN (Powell JA) 13
for all material times, your Honour, he was incapacitated on a partial basis if not totally and since surgery he has been totally incapacitated, in my submission.
Your Honour, in my submission he would be entitled to a full award on the basis of total incapacity, such award being payable by the last employer, being Chapman.
That the case which Mr Choat was advancing on behalf of the Appellant continued as one based on disability due to "an industrial disease" is, I think, demonstrated by the following passages which occur during the course of Mr Choat's submissions in reply:
53] "HER HONOUR.
54] __.... But I think you have to argue that the stenosis was the disease, and if you do I would find it very difficult to say that there was a material alteration in that condition because of two days work or three days work on two separate occasions.
55] CHOAT
56] Your Honour, we are not relying on s16, we are not saying that - we are not relying on s16 which applies to the situations where there has been an aggravation or acceleration.
57] HER HONOUR 58] Well, what is it that you are saying. 59] CHOAT
60] Or deterioration of a disease. We submit that the circumstances of this matter fall within s15 of the Act, that the stenosis is a disease of gradual process brought about through the entire period of time that the applicant was employed as a shearer.
(3) 62] HER HONOUR
63] But I have to find more than the co-existence of a disease which might be a disease in terms of the Act and the cessation of employment, do I not. CHOAT
64] We have to find, your Honour, that it is a disease contracted by a worker in the course of his employment as a shearer - in the course of his employment under s4 - Your Honour, we would submit that the evidence here is that the disease was contracted in the course of employment and to which the employment was a contributing factor and the whole period of his employment as a shearer was a contributing factor to the stenosis, and as I have said that includes the period when he was employed by the respondents and I think that is clear from Dr Dan's evidence today, that the shearing over the whole period of time right through up until Chapmans was a contributing factor to the stenosis. Having established that, your Honour, under s15 the injury is deemed to have occurred at the time of the incapacity.
HER HONOUR
Do I not have to find some connection or causation, though, between the employments of which you complain and some development or deterioration or exacerbation in that disease. If a man has heart disease, Mr Choat, he has had it for 20 years and he goes and works for you writing figures in a book and he happens to have a heart attack while he is doing that I have to do more than say, he was working for you at the time that he had the heart attack.
14 UNREPORTED JUDGMENTS
67] CHOAT 68] Yes. Your Honour. 69] HER HONOUR
70] Or he was working for you at the time he became disabled or incapacitated. I have to find a causation and it seems to me that the Act defines what that is in the terms of a disease and that is in s4, aggravation, acceleration, exacerbation or deterioration where the employment was a contributing factor.
71] CHOAT
72] Yes, your Honour, you have to find that the employment was a contributing factor. Well in my submission, your Honour, the employment as a shearer over the entire period that the applicant was employed as a shearer but particularly the period of time that he was employed with Chapmans was a contributing factor. Bearing in mind - "
Despite the basis on which Mr Choat advanced the Appellant s case it is I think, clear from the passages in her Judgment to which I will shortly refer, either, that Her Honour believed that the Appellant's case was that, although his condition was not due to "an industrial disease", it had been caused by some incident occurring either while the Appellant was working on Bullamalita or while the Appellant was working on Lumley Park which incident exacerbated the pre-existing condition; or, alternatively, that even if the Appellant's pre-existing condition was due to "an industrial disease', nonetheless he was not entitled to recover compensation unless he could point to some incident occurring while the Appellant was employed at Bullamalita or at Lumley Park, which incident exacerbated the Appellant's pre-existing condition. That this was the basis upon which Her Honour approached the case is indicated by the following passage in her Judgment (Appeal Book 136)
As I understand the address by the applicant's counsel, he asks me to find that at relevant times, the applicant was suffering from a disease, contracted by the applicant in the course of employment and to which the employment was a contributing factor and that the applicant suffered injury in the course of employment with Bullamalita Pastoral Company and/or in the course of employment with the Trustee of the Chapman Estate; that the 'injury' in question was a 'stenosis' of the applicant's spine.
I understood it to be common ground or ultimately undisputed that for a considerable time and probable (sic) for many years prior to the events of which the applicant complained, his spine was in a degenerative condition which caused stenosis.
As I understand the legislation and the manner in which counsel has presented the applicant's case, to make a finding against one or other of the named respondents, I would have to find that employment for short periods in December 1986 and January 1987, caused a material alteration in the pathology of the disease which is alleged.
and that that understanding was the basis upon which Her Honour founded her conclusion that the Appellant had failed to make out his case is demonstrated by the following passage at the conclusion of Her Honour's Judgment (Appeal Book 140):
'On the whole of the medical evidence, it appears clear that the stenotic condition of the applicant's spine, developed gradually, over a period of many years.
URJ CRISP v CHAPMAN (Powell JA) 15
The medical evidence before me, does not persuade me that the stenosis was materially aggravated, exacerbated or caused to deteriorate, by work performed for 2 days, in December 1986 and for 2 days, in January 1987. In reaching that conclusion, I have had due regard to the applicant's evidence of debilitating and incapacitating symptoms which were probably caused by entrapment or compromise of a nerve root, some time prior to the 2 days' work performed for Bullamalita Pastoral Co, in December 1986.
For those reasons, there will be an award for the first and second respondents."
In his Notice of Appeal (Appeal Book 241-144), the Appellant took three grounds of appeal they being:
"1. That Her Honour was in error in circumstances in which she found that the appellant was incapacitated as a result of the performance of shearing work over a number Of years and that the effects of the aforesaid work constituted a disease of gradual on-set, and not making an award for the applicant.
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Although the only parties joined as parties-Respondents to the Appeal were the Respondents to the original application, we have been informed that, in pursuance of a direction given prior to the Appeal being listed for hearing, all those who had been joined as Third Parties to the application were served with a copy of the Notice of Appeal, and that, as had occurred prior to the hearing of the application, all Third Parties were content that their respective interests would be adequately protected on the hearing of the Appeal by the Respondents. In the circumstances, the Court was content to proceed to deal with the substance of the Appeal.
Reduced to their most simple form, the submissions advanced by Mr B J Gross QC who appeared with Mr R F Wilkins for the Appellant were, first, that the trial before Her Honour miscarried, as Her Honour misapprehended the basis upon which the Appellant's claim was advanced; second, and in the alternative, that, if Her Honour did not misapprehend the basis upon which the Appellant's case was advanced, she nonetheless applied the wrong legal test to determine whether or not the Appellant had made out that case.
While denying that, as Mr Gross had submitted, O'Toole CCJ had misapprehended the nature of the Appellant's case, Mr C R R Hoeben, who, on this occasion, appeared for both Respondents, submitted that, even if the contrary be so, it was of no consequence, first, since Her Honour held that the Appellant's ultimately disability was due to the progression of symptoms which first manifested themselves some days prior to the Appellants commencing to work at Bullamalita; and second, that that finding, being a finding of fact, even if - which was denied - perverse, could not be challenged in this Court having regard to the limited nature of the appeal available in the present case (reference was made to
16 UNREPORTED JUDGMENTS
Azzopardi v Tasman UEB Industries).! It is necessary, first, to deal with the second of Mr Hoeben's submissions for, if Her Honour's Judgment can be read as involving a finding that the Appellant's ultimate disability was not due to "a disease", whether "an industrial disease" or otherwise, then, so long only as there was evidence before Her Honour upon which such a finding might be based, that finding is not susceptible to challenge on this Appeal, and, thus, would be fatal to this Appeal.
With respect, it seems to me that this submission is not well founded first, since, while it is true that Her Honour found that there was a material change in the Appellant's symptoms shortly before he commenced employment at Bullamalita, Her Honour did not find that those symptoms were not related to the stenotic condition of the Appellant's spine, and, second, that even if Her Honour had so found, there would have been no evidence before her upon which such a finding could be based - on the contrary, the evidence, which, as I have earlier noted, was not contradicted by any medical evidence tendered on behalf of the Respondents, was to the effect that those symptoms were symptoms of nerve root compression, which nerve root compression was due to the narrowing of the spinal canal caused by stenosis, which stenosis was the manifestation of the degeneration of the Appellant's spine as a result of stresses and trauma to which the spine was subjected by the Appellant's employment as a shearer.
Whether or not the position be that O'Toole CCJ misapprehended the basis upon which the Appellant's case was advanced at the trial, the passages from the submissions and from Her Honour's Judgment which I have set out above make it clear, in my view, that the test which Her Honour applied in determining that the Appellant had failed to make out his claim for compensation, was, not the test appropriate to be applied to a case based upon the provisions of s49(b)(i), s9(1), s15(1), s33 of the 1987 Act but, rather, was that appropriate to be applied to a claim based on the provisions of s4(b)(ii), 9(1), 16(1)(a), 33 of the Act, for it is and it has long been established (Smith v Mann?) that, where a worker has contracted a disease which is of such a nature as to be contracted by a gradual process, it is not necessary for him, on an application for compensation based upon the former group of sections, to establish that the disease was actually brought about, or contributed to, by the employment undertaken for the employer, or employers, during the 12 months preceding his disablement; it is enough if the disease is incidental to that class of employment so that it can be attributed to service therein.
That this is so is demonstrated by the following passage in the Judgment of Rich J in Smith v Mann3: "In my opinion the provision was not intended to restrict the right of the workers, but to enlarge them. Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving that employer to recover from previous employers subject to the limitation of time expressed in the section. No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer."
URJ CRISP v CHAPMAN (Powell JA) 17
in the following passage in the Judgment of Starke J4: "The Act contains no limitation of time within which the disease must be contracted. It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise 'out of the particular service of the particular employer sued': it is enough if the disease is 'incidental to that class of employment so that it can be attributed to service therein' (Blatchford v Staddon and Founds [1927] AC 461, 470). The compensation can be recovered only against the employer in whose employment the worker is or who last employed him. And the employer by whom such compensation is payable may obtain contribution from the employers who during the 12 months preceding a worker's incapacity employed him in any employment to the nature of which the nature is due. The Commission thus appears to have proceeded upon an erroneous interpretation of the Act."
and in the following passage in the Judgment of Dixon J5 (as he then was):
"The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the subsection is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution. the description of the disease implied in the expression in the second paragraph 'employment to the nature of which the disease was due' may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph 'in whose employment the worker is or who last employed the worker' implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of or last before the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted." In these circumstances, it seems to me inevitable that the Appeal should be upheld. However, as, given the conclusion to which she had come on the question of liability, it was not necessary for O'Toole CCJ to consider, either, the amount of any compensation to which the Appellant was entitled, or, the rights inter se of the Respondents or the Third Parties, it is not open to this Court to do other than to remit the matter to the Compensation Court for reconsideration.
For these reasons, the Orders which I would propose are as follows:
ORDER that the Appeal be upheld.
ORDER that the Award made by O'Toole CCJ on 8th August 1991 be set aside.
ORDER that the Application be remitted to the Compensation Court for reconsideration in accordance with these reasons.
ORDER that the Respondents pay the Appellant's costs of the Appeal.
ORDER that the Respondents, if qualified, have a certificate under the Suitors Fund Act 1951.
Representation:
18 UNREPORTED JUDGMENTS
Counsel for the appellant: B J GROSS QC and R F WILKINS
Solicitors for the appellant: GALLAND ELDER LULHAM (GOULBURN) Counsel for the respondent: C R R HOEBEN
Solicitors for the respondent: DUNHILL MADDEN BUTLER
CRISP
CHAPMAN
(1932) 47 CLR 426
(1979) 53 ALJR 505
(1985) 4 NSWLR 139