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[1959] HCA 55
High Court of Australia
1959-07-01
Windeyer JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. Fullagar, Kitto, Taylor and Windeyer JJ. Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55
ORDER Appeal allowed with costs. Order of the Supreme Court discharged. In lieu thereof answer the questions in the case stated as follows: (1) No; (2) Yes; (3) Yes; (4) No. Order that the costs in the Supreme Court be paid by the respondent to the appellant.
On 1st July 1952 Thomas Albert Hussey of Sinclair Street Wollstonecraft, casual watchman, sixty years of age, collapsed and died at the pick-up centre, 211 Kent Street, Sydney. It was about eight o'clock in the morning and he had just signed his name in the book on the counter in the watchmen's section on the first floor. He turned round and almost immediately collapsed and died. A large clot had formed in the right coronary artery about two inches from the origin of the artery, that is from the aorta. The occlusion resulted in his death. The Workers' Compensation Commission awarded £2000 compensation to his widow, who is the respondent upon this appeal. The award, which was upheld by the Supreme Court [1] was based upon the view that the exertion of the journey to the picking-up place was a contributing factor in bringing about her husband's death. The appellant company was the last employer to employ the deceased in his customary employment of watchman and for that reason falls under the liability to pay compensation. It is not contested that if the widow is entitled to compensation the liability to pay it rests upon the appellant company. What is contested is that the facts of the case give her any right at all under the Workers' Compensation Act 1926-1951 to worker's compensation. Section 7 (1) (b) of that Act is the provision which gives a right to compensation in respect of an injury received by a worker upon "a daily or other periodic journey". What is a daily or other periodic journey is defined by par. (c) of the same sub-section. But par. (b) goes further and gives a right to compensation to a worker who has received injury "on any of the other journeys referred to in par. (d) of this subsection". There are three classes of journey referred to in par. (d) but this case is concerned only with the third, par. (d) (iii), which is "journeys between the worker's place of abode and a place of pick-up". The expression "places of pick-up" is given a definite meaning by sub-s. (14B) of s. 6. The sub-section has since the date of Hussey's death been amended by Act No. 21 of 1953, s. 2 (a) (iii), but the amendment does not apply to this case. In its unamended form sub-s. (14B) of s. 6 provided that where any person is ordinarily engaged in any employment in connexion with which persons customarily attend certain pre-arranged places (in the Act called "places of pick-up") at which employers select and engage persons for employment, any such person shall be deemed, while in attendance at any such place of pick-up before being so selected, or while travelling thereto from his place of abode, to be a worker employed by the employer who last employed him in his customary employment. It will be noticed that this provision is expressed as if confined to establishing, by conclusive presumption, the relation of worker and employer between the person ordinarily engaged in an employment of the required kind and the employer who last employed him in his customary employment, when the conditions are fulfilled which the sub-section provides. It does not in terms go further and say that in those conditions the worker shall be deemed to be "on" or "in the course of" any of the journeys to which s. 7 (1) (b) refers, still less does it say that he shall be deemed to be in the course of his fictional employment. There is nothing expressing an intention to do more than put the worker in the same position as if he were an employee of his last employer and, except in so far as will shortly be mentioned, there is no ground for implying an intention to do more. But of course it follows from sub-s. (14B) of s. 6 that s. 7 (1) (b) and (d) (iii) apply to him on the footing that he is so employed, if he receives injury on a journey between his place of abode and the place of pick-up. In one particular, however, there is a want of correspondence between s. 6 (14B) and s. 7 (1) (d) (iii). Section 6 (14B) includes in the period during which the statutory presumption of employment by the last employer operates the time while he is in attendance at the place of pick-up before being selected. But s. 7 (1) (d) (iii) so far as express words go covers only the journey of which the place of pick-up is the end or the beginning. Nevertheless from a comparison of the two provisions an almost necessary inference arises that it was intended to cover also the period of attendance and it seems proper to interpret s. 7 (1) (b) and (d) (iii) and s. 6 (14B) as intending that the liability should include accordingly that period as if it were part of the journey. This implication meets an argument suggested for the appellant that because he had got to the counter, signed the book and was only "in attendance" Hussey had reached the end of the journey for which s. 7 (1) (b) (c) and (d) (ii) provided before the injury occurred which caused his death, that is if an "injury" was received by him at all within the meaning and operation of s. 7 construed with s. 6 (1). The respondent sought also to meet the argument on the ground that in fact the "injury" resulting in death had been "received" at an earlier stage but that forms part of another and larger question. It should be added that there can be little doubt upon the facts of this case that the watchmen's section on the first floor of 211 Kent Street formed for Hussey the pick-up place within the meaning of s. 6 (14B) and therefore of s. 7 (1) (d) (iii), and the Commission in effect so found.
The decision of the appeal, however, depends in my opinion not on the foregoing points but upon the meaning and application of s. 7 (1) (b) as affected by the definition in s. 6 (1) of the word injury. The interpretation of the provision so far as material to the case appears to me to be established by the judgment of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett [1] . During the argument of the present appeal the effect of that decision was in dispute between the parties but consideration of the reasons of their Lordships has left me with the clear opinion that the decision was that s. 7 (1) (b) does not cover a case of disease unless, within the terms of the definition of the word "injury", it is a disease contracted by the worker in the course of his employment and to which the employment is a contributing factor. I use the word employment here in an extended sense to include a journey covered by s. 7 (1) (b). For I think that their Lordships meant to extend the notion of employment for this purpose to the journeys referred to in s. 7 (1) (b). But however that may be it does not, in my opinion, affect this case because the disease was not contracted "on" or "in the course of" any such journey nor was any such journey a contributing factor to the disease.
Before stating why I so read the decision in Slazengers' Case [1] I shall state shortly what are the medical facts of the present case. Hussey who was a big man was at the time of his death sixty years of age. Three and a half years earlier he had complained of a severe pain in his chest and shortness of breath. He obtained medical advice and it was found that his heart was enlarged and an electrocardiogram showed evidence of myocardial affection. After his death an internal examination of the body showed in the case of the heart advanced atheromatous disease of the arteries. The right coronary artery was occluded by a recent firm red clot about two inches from the origin of the artery in the aorta. His lungs were oedematous. Medical opinion could not determine when the clot formed. But it must have built up as he proceeded upon his journey from home though it perhaps began to form earlier, that is before he left home. The formation and building up of the thrombus until there was an occlusion could not be associated with his work or the journey. On the other hand the exertion of walking down Margaret Street from Clarence Street where he alighted from the tram and up Kent Street had caused him some distress and so had the added effort of climbing the stairs.
Perhaps the effect of the medical evidence called may be summarized by saying that he died of a cardiac insufficiency caused by the thrombus, that as the thrombus formed and grew the effects of the insufficiency would be felt and would increase until the occlusion was complete, and that the exertion would increase the demand and so aggravate the symptoms as the lumen of the artery narrowed. A question was asked of one doctor - "Death finally occurred because the disparity between the demands of the myocardium and the amount of nutriment getting to it was totally inadequate?" To this he answered, "I suppose that is as good a way of putting it as any". Another doctor's evidence was to the effect that Hussey was doomed when the clot began to build up and that process was not affected by exertion but walking up Kent Street and climbing the stairs brought about the death a little earlier. "I would be inclined to think" he said, "that with that amount of clot it" (the effect of the stairs in accelerating death) "would only be minutes rather than hours or days".
The material findings expressed in the case stated are that the exertion of walking to the place of pick-up was an operative factor in bringing about a disorganized heart action and thereby resulted in death. The condition of Hussey's heart was such that it was possible to enter upon a fatal phase of disorganized action at any time whether related to effort or not; but (in the event) there was an actual causal relation between death and the effort of walking. Apart from going up the stairs the exertion in walking along Kent Street was a contributing factor in bringing about his death. The final finding was that Hussey's death resulted from the injury received on the journey between his place of abode and the place of pick-up. The findings of fact are necessarily subject to the question whether they are supported by the evidence.
The judgment of the Privy Council in Slazengers' Case [1] which was delivered by Lord Simonds, turns, as it appears to me, upon the application of the definition in s. 6 (1) of the word injury to the provision contained in s. 7 (1) (b). The definition of "injury" says that the word means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor. Lord Simonds remarks upon the substantial departure made by the Act of 1926 from former legislation in the field and in particular upon the fact that the adoption of the word "injury" simpliciter was a change which made it necessary to define what had previously been undefined. Having referred to the difficulty involved his Lordship says, "But this at least is clear that in the Act the word "injury" (unless the context or subject matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease" [2] . This sentence, in my opinion, contains within it a statement of the ultimate decision which the judgment reaches. That decision is that the ordinary rules of construction prevail and that the definition excludes from the meaning of "injury" any other disease than one which satisfies the conditions it expresses. Having stated the prima facie position the judgment proceeds to show that notwithstanding what was said by Latham C.J. in Hume Steel Ltd. v. Peart [3] the definition applies to s. 7 (1) (b). The judgment points out that without dispute the artificial meaning of the word "injury" applies to s. 7 (1) (a) and that the question is what the word means in the immediately following sub-paragraph, namely, s. 7 (1) (b). Lord Simonds then quotes the material passage from the judgment of Latham C.J. in Peart's Case [1] a passage in which the application of the definition to s. 7 (1) (b) is denied. His Lordship's judgment next deals with the difficulties to which the exclusion of the definition leads and with the incongruity of the consequences. It perhaps should be noticed that what the view expressed by Latham C.J. was directed against is the application to s. 7 (1) (b) of the words "arising out of or in the course of the employment". Lord Simonds refers to the observation I made in Peart's Case [2] as to the principle of s. 7 (1) (b), namely that "in a general way the intention doubtless was to extend the course of the employment to the journeys of the workman between his home and his work. Injury received in the course of his journey is to stand in the same position as injury in the course of his employment" [3] . Lord Simonds then proceeds: "It appears to their Lordships that the implication of this intention is irresistible. The improbability of the word "injury" bearing a different meaning in successive paragraphs of the same sub-section is so great that any legitimate interpretation which avoids this result would appear preferable. It must be conceded that the opening words of s. 6 admit the possibility of the defined meaning being excluded, but this is a general provision covering all the definitions. As a matter of construction it covers the definition of "injury", but the improbability is great that the draftsman should have left the most important word in the whole Act to the hazard of the statutory definition being excluded and some other meaning or meanings, to which no clue is given, being substituted. Moreover, to accord a different and a higher measure of protection to a worker who receives injury during his journey from that accorded to one who receives it in his place of employment is clearly illogical and out of harmony with the whole scheme of workmen's compensation as developed in the relevant legislation" [4] . This passage appears to me to make it quite clear that their Lordships are applying the definition of injury in full to s. 7 (1) (b). That necessarily means that the crucial statement operates which Lord Simonds made and is quoted above, viz. "it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease" [5] . It follows that no disease is covered by s. 7 (1) (b) unless it is contracted in the course of the employment (whatever that may include) and the employment is a factor contributing to it. But there are two other possible consequences, which indeed formed the basis of the objection of Latham C.J. to applying the definition to s. 7 (1) (b). These consequences are met by Lord Simonds. The first is that if the injury must be received in the course of the employment or arise out of it nothing is accomplished by enacting that it may be received on a journey. The second is if the contracting of the disease must be in the course of the employment and the employment must be a contributing factor, what is the use of s. 7 (1) (b) introducing the journey in relation to disease. The first point is met in a passage following immediately. It is a passage in the course of which his Lordship says that no doubt after the words "the worker" where they occur immediately after exception (ii), some such words as "shall be deemed to have received such injury in the course of his employment and he" are by implication to be read into the sub-section. [1] . If one turns to s. 7 (1) (b) and reads in the words implied the material part of the section will run: "Where a worker has received injury without his serious and wilful misconduct on any of the daily or other periodic journeys etc. the worker shall be deemed to have received such injury in the course of his employment and he (and in the case of the death of the worker, his dependants), shall receive compensation from the employer in accordance with this Act". The foregoing makes it clear that while the definition of "injury" is to be applied to the words "received injury" in s. 7 (1) (b) the requirement which this connotes that the accident shall arise out of or in the course of the employment shall be deemed to be fulfilled. But while the first objection is thus removed, by the very manner of its removal it becomes evident that so far as the injury includes disease it will remain necessary that the disease should be one which was contracted by the worker in the course of his employment and to which the employment was a contributing factor. If no extension of the idea of employment were made so as to include the journey the second point would remain unanswered. But the extension is made. What follows in Lord Simonds' judgment appears to me to make all this quite clear. His Lordship says: "The result of this construction is to displace the reasoning on which the decision in Peart's Case [2] was largely founded. The word "injury" will retain its statutory meaning but sub-s. 1 (b) of s. 7 will afford a valuable measure of relief in cases not covered by sub-s. 1 (a). If the injury received by the worker during his journey is some injury other than a disease, e.g., a broken limb resulting from a collision, it will be an injury received in the course of his employment and he will be entitled to compensation: if the injury is a disease "received" (a difficult word in this connection to give effect to) during the journey, and if it is a disease to which the employment, including the journey, was a contributing factor, then equally he will be entitled to compensation" [1] . It will be seen that the employment is treated as being extended to the journey. This is in conformity with the statement [2] that the implication of the intention to which I referred in Peart's Case [3] is irresistible. It is no doubt true that his Lordship does not in this last passage refer to the contracting of the disease in the course of the journey but only to the journey as a contributing factor. But constant repetition of a formula in full is not to be expected and it has been made plain enough that the whole basis of the reasoning is the application of the definition of injury to s. 7 (1) (b) so that no disease which does not satisfy the definition falls within par. (b) of the sub-section. It follows, in my opinion, that Slazengers' Case [4] decides that s. 7 (1) (b) does not apply in the case of a disease unless it is a disease which is contracted by the worker in the course of his employment including the journey and to which the employment including the journey was a contributing factor.
On the facts of the present case I am unable to treat the disease as one which was contracted in the course of the employment or journey or one to which the employment or journey was a contributing factor. It appears to me impossible to treat the disorganized action of the heart as it is called in the case stated as a separate or distinct disease contributing to the death of Hussey or as a separate and distinct disease contracted in the course of the journey. The condition resulted from the insufficiency produced by the thrombus and even if the condition appeared before the lumen of the vessel filled up completely by reason of the increase of the clot and would not have appeared quite so soon had there been no effort on Hussey's part, nevertheless it was merely part of the process involved in the blockage of the artery and cannot be considered a separate or distinct disease contributing to the deceased's death.
The construction given to the Act by the Privy Council appears to me necessarily to exclude such a case as the present. The construction means that a so-called injury forming part of a disease cannot be within s. 7 unless it qualifies under the definition although the definition is extended to include a journey as well as the employment in a strict sense. Hardie J. in his judgment in the Full Court accepted the view that I have taken of the judgment of the Privy Council but reached a conclusion contrary to mine. His Honour said: "The better view would thus appear to be that in a case such as the present the second limb of the definition of "injury" is the relevant provision to apply. There was evidence before the Commission that the disabling stage of the worker's disease, which proved fatal, was "contracted" in the course of his journey and that the journey was a contributing factor to such "contraction" " [1] . It is the separation of what his Honour calls the disabling stage of the worker's disease from the disease considered in its entirety that I am unable to make. It is a step which with respect I do not think is authorized by the medical evidence. But in a sense the matter may be said to depend upon what the definition covers by the expression "a disease". It appears to me to cover what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature. In the present case I find it impossible to discover any new or separate condition attributable to the employment or the journey so that it can be said that there was "a disease" contracted in the course of the employment or journey. Further, I do not think that the journey can be regarded as a contributing factor to anything arising that can be regarded as "a disease".
For these reasons in my opinion the appeal must be allowed. The judgment of the Supreme Court ought, in my opinion, to be discharged and the questions in the case stated answered: (1) No. (2) Yes. (3) Yes. (4) No. The award should be set aside.
The facts of this case are stated in the judgment of the Chief Justice. The case necessitates a consideration of several decisions, the latest and most important of which is that of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett [2] . It seems desirable, however, to begin with certain general observations.
The general formula for expressing the statutory condition of a worker's right to compensation for injury has varied from time to time and from place to place. Originally in England and in the States of Australia the right was given in case of "personal injury arising out of and in the course of the employment". More recent Acts in Australia (though those Acts are far from being uniform) have (a) substituted the word "or" for the word "and", (b) omitted the words "by accident", (c) made special provision for cases of disease as distinct from traumatic injury, and (d) extended the temporal conception of "employment" so as to make it include a worker's journeys between his place of abode and his place of employment and certain other "periodic journeys". The amending Act of 1942 (by which the definition of "injury" now in question was originally adopted) substituted the word "or" for the word "and" in the formula. The pre-existing definition of the word "injury" was that contained in the Act of 1929, which provided that "injury" means personal injury arising out of and in the course of the employment and includes a disease so arising. The new definition of 1942 provides that "injury" means personal injury arising out of or in the course of the employment and includes a disease which is contracted by a worker in the course of his employment and to which the employment was a contributing factor. The words italicized indicate the substance of the alterations made in 1942. There is probably not a great deal of difference in practical effect between the words "so arising" (which meant "arising out of and in the course of the employment") and the corresponding words used in the Act of 1942.
Under enactments which simply gave compensation for "injury by accident", and made no specific provision for diseases - or, like the English Act of 1906, made specific provision only for a special class of disease - no serious difficulty seems ever to have been felt in regarding the contracting of a disease as an "injury by accident": see, e.g. Brintons Ltd. v. Turvey [1] (a case of anthrax). The claimant had, of course, to fulfil the general condition on which the right to compensation depended. That is to say, he had to show that the contracting of the disease arose "out of and in the course of the employment" or "out of or in the course of the employment", as the case might be: see generally The Commonwealth v. Ockenden [2] . But if, as in Brintons Ltd. v. Turvey [1] the necessary connexion between employment and disease could be established by medical evidence, compensation was payable. Such cases as Brintons Ltd. v. Turvey [1] are, but such cases as Fenton v. J. Thorley & Co. Ltd. [3] are not, cases where the disease is the injury for the purposes of the Act.
That the contracting of a disease is an "injury by accident", though it may perhaps be thought to represent an artificial and unintended extension of the scope of the Acts, must be regarded as a long established principle of the law relating to workers' compensation. Under statutes which omit the words "by accident" the case is, of course, a fortiori. It is much easier to say that to contract a disease is to suffer an "injury" simpliciter than to say that it is to suffer an "injury by accident".
Another principle, which it is, I think, important to recognize as a quite distinct and independent principle, was also established at a quite early date. A worker might be suffering from a disease with which no employment in which he had ever been engaged had anything to do, and it might be that that disease was bound sooner or later - perhaps within a very short time - to bring about death or incapacity. Yet, if it were found that some incident of his employment had precipitated, or accelerated, or contributed to, his death or incapacity, he or his dependants would (notwithstanding that he could be truly said to have died of his disease) be held entitled to compensation. This principle is commonly stated in the words of Lord Loreburn in Clover Clayton & Co. Ltd. v. Hughes [1] . His Lordship said: - "It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened and if the accident is one of the contributing causes without which the injury which actually followed would not have followed" [2] . In that case the respondent's husband was suffering from an aneurism of the aorta, which was in a very advanced state, and which might have burst at any time - perhaps in his sleep. The diseased condition of the worker was in no way connected with his employment. The county court judge found, however, on conflicting evidence, that a rupture of the aneurism had occurred when it did occur because of a strain arising out of his ordinary work, and the House of Lords held that his widow was entitled to compensation. Lord Loreburn spoke of an "accident", which word occurred in the statute with which the House was concerned, but the substance of what he said is, of course, equally applicable to cases when the statute speaks of "injury" simpliciter.
Lord Loreburn's statement of principle has been frequently applied. In particular, under statutes which make no relevant specific reference to "disease", it has been applied in those cases, which now unhappily appear so common, where the death of a worker is due to a coronary occlusion, which, in the typical case, is itself the inevitable final result of long standing and progressive arterial disease unconnected with any employment of the worker. Examples will be found in the judgment of Dixon J. in Hetherington v. Amalgamated Collieries of W.A. Ltd. [1] a case which itself affords another example. In Hetherington's Case [1] the Western Australian Act contained no relevant specific reference to disease as such, and the question was simply whether the coronary occlusion was an "injury" arising out of or in the course of the employment of the worker. There was evidence to support the finding of the primary tribunal that exertion in the course of the employment had precipitated or accelerated the final and fatal result of an arterial disease, and, although that disease must soon in any case have caused the death of the worker, this Court held that his widow was entitled to compensation.
The important case of Kellaway v. Broken Hill South Ltd. [2] arose under the New South Wales Act as it stood after the amendments of 1942. That Act, as has been seen, did contain, in the definition of injury in s. 6 (1), specific, and prima facie relevant, reference to "diseases". But in Kellaway's Case [2] the relevant findings of the primary tribunal were that the arterial disease and the occlusion in which it culminated were autogenous, and that no incident of any employment had accelerated, or contributed to, the fatal occlusion. It was held by the Supreme Court of New South Wales that compensation was not payable. In Slazengers (Australia) Pty. Ltd. v. Burnett [3] their Lordships observed that the decision was clearly right, although some of the reasoning might be open to criticism. In fact, the three learned judges who decided Kellaway's Case [2] (Jordan C.J., Davidson and Roper JJ.) gave somewhat different reasons, and the case cannot, I think, be taken as actually deciding more than that on the particular findings of the Commission a claim for compensation must fail. It would seem that on similar findings the claim in Hetherington's Case [1] must also have failed. In the somewhat special case of coronary occlusions a very unsatisfactory position is reached if liability is made to depend on findings of this nature. It has become almost matter of common knowledge that a fatal coronary occlusion is generally a development or final result of a progressive condition of arterial sclerosis or atheroma. But there is a still unresolved conflict of opinion in the medical profession as to whether effort or exertion on the part of the patient plays, or can play, any causative part in the actual creation of the occlusion. And the tribunal of fact is exceptionally ill-equipped to resolve a conflict on such a general question. The difficulties and uncertainties which arise are referred to in the judgment of Dixon J. in Hetherington's Case [1] .
With regard to Kellaway's Case [2] , it is important to note that Jordan C.J. expressed the opinion [3] that all cases of disease must, both under the Act of 1929 and under the Act of 1942, be subsumed under the second part of the definition of "injury", i.e. that part of the definition which deals specifically with diseases. A case of disease could no longer be regarded as a case of injury in the general sense of the first part of the definition. His Honour said: - "The portion of the definition of injury beginning with the words "and includes a disease" was inserted to indicate that injury is no longer, in the Act, to be read, by a somewhat forced construction, in a noncolloquial sense wide enough to include disease generally, but is to include it only when it is "contracted" in the conditions specified. It follows that if a worker originally contracts a not immediately disabling disease from causes to which his employment does not contribute, and, for causes to which also the employment does not contribute, the disease, by its natural progress, grows worse until it reaches a point at which it disables him or causes his death, his employer incurs no liability to compensation" [3] . So far I would agree with his Honour: indeed, I think it clear that the view which he has expressed is correct. His Honour, however, went on to say: "If, however, whilst he is in the course of his employment, the progress of the disease is accelerated or its severity accentuated, by the conditions of the employment, and disability results, he is entitled to receive compensation. In the latter type of case, the disabling stage of the disease is contracted in the course of employment and its occurrence is contributed to by the employment" [3] . (The italics are mine). This second proposition of the learned Chief Justice is on its face open to grave doubt. His Honour's first proposition gives full effect to the reference to "disease" in the definition of "injury". His second departs from the language of the definition. The other members of the court, as I read their judgments, did not express any concluded opinion on the second proposition of Jordan C.J.
The next case to which it is necessary to refer is Hume Steel Ltd. v. Peart [4] . This was another case under the New South Wales Act, and another case in which the death of a worker resulted from a coronary occlusion. If the occlusion had occurred while the worker was engaged in his employment, this case would have raised fairly and squarely the question of the correctness of what I have called the second proposition of Jordan C.J. in Kellaway's Case [1] . In fact, however, the occlusion occurred not while the worker was actually engaged in his employment but while he was travelling from his home to his place of employment. The claimant widow, therefore, had to rely not on the general provision contained in the New South Wales Act for compensation for injury, but on a special provision in the Act relating to what are called "periodic journeys". The general provision is found in s. 7 (1) (a), which provides: - "A worker who has received an injury whether at or away from his place of employment (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act". The special provision relating to journeys follows immediately in s. 7 (1) (b). That paragraph provides (so far as material) that, where a worker has "received injury" on a journey between his place of employment and his place of abode, then, subject to exceptions numbered (i) and (ii), he (and in the case of his death his dependants) shall receive compensation in accordance with the Act. The exceptions are not material. The deceased, a minute or two before he collapsed, had been riding a bicycle uphill, and the Commission found that this exertion "precipitated the occlusion", but a post-mortem examination disclosed that his aorta and coronary arteries were in an advanced state of atheroma, of which the occlusion was the "inevitable end result". The Commission also found that "the disease was not contracted in the course of his employment, and his employment was not a contributing factor thereto".
Now it was plain, as has been said, that the claimant could not succeed under s. 7 (1) (a), because what had happened had not happened in the course of the deceased's employment. On the other hand, if that part of the definition of "injury" which relates specifically to "diseases" were applied to the word "injury" in s. 7 (1) (b), the claimant would be defeated by the Commission's finding that there was no disease which had been "contracted in the course of" the deceased's employment or to which his employment was a "contributing factor". In the Supreme Court of New South Wales Jordan C.J. and Street J. (Davidson J. proceeding on what appears to be a narrower ground) found an escape from the apparent dilemma by holding that the statutory definition of the word "injury" could not be applied in s. 7 (1) (b). A fairly strong reason for so holding was found in the fact that, if the definition were so applied, s. 7 (1) (b) would add nothing to s. 7 (1) (a), which already covered injuries received in the course of employment "whether at or away from the place of employment". The effect of the view taken was (the statutory definition being out of the way) to make it possible to give to the word "injury" the meaning which it had received in Hetherington's Case [1] and a number of English cases, and to apply the principle stated by Lord Loreburn in Clover Clayton & Co. Ltd. v. Hughes [2] and quoted above. The decision of the Supreme Court of New South Wales was upheld on appeal to this Court. Of the five justices who heard the appeal a majority (Latham C.J., Dixon and McTiernan JJ.) rested the decision on the ground taken by Jordan C.J. and Street J. in the Supreme Court.
To my mind, the importance of Peart's Case [3] lies not so much in what it decided as in two fundamental assumptions on which it proceeded. For it appears to me to have assumed, in the first place, that, if the definition of "injury" had been applicable to s. 7 (1) (b), the case would have had to be treated as one of death from disease, so that the relevant part of the definition was the second part to the exclusion of the first part. In other words, it assumes the correctness of the first proposition of Jordan C.J. in Kellaway's Case [4] . But, in the second place, it appears to me also to have assumed that the second proposition of Jordan C.J. was not correct. For, if that proposition had been true, the claimant could have recovered compensation notwithstanding that the disease which resulted in the worker's death fell outside the second part of the definition of injury. Although that disease had not been contracted in the course of employment, she had a finding of the Commission that "because of physical effort occasioned by the journey a change or new stage in the disease was reached on the journey, which proved fatal". If the second proposition of Jordan C.J. had been correct, this would have been enough to entitle her to recover compensation.
The next and last case for consideration is Slazengers' Case - Milligan v. Slazengers (Australia) Pty. Ltd. [5] : sub. nom. Slazengers (Australia) Pty. Ltd. v. Burnett [6] . Here again the deceased worker had suffered a coronary occlusion on a journey from his place of abode to his place of employment. He had been suffering from "hypertension and myocardial degeneration" - a condition which had not been contracted by him in the course of his employment and to which his employment had not been a contributing factor. The case was like Kellaway's Case [1] and unlike Peart's Case [2] in that the Commission had found that the occlusion was solely due to autogenous causes and that no physical effort of the deceased in the course of the journey played any part in bringing it about.
The Supreme Court of New South Wales (which again consisted of Jordan C.J. and Davidson and Street JJ.) held that the case was "completely covered by the reasons of that Court in Peart v. Hume Steel Limited [2] " [3] which they (rightly, I think) regarded as having received the approval of this Court. Because of the difference in the findings of the Commission in the two cases, it is at first sight very difficult to understand its being said that Peart's Case [2] governed Slazengers' Case [4] - especially as Dixon J. had expressly said in Peart's Case [5] . "In the present case we need go no further than to decide that, if exertion or some other incident of the journey is a contributing factor, then coronary occlusion is within par. (b) of s. 7 (1)" [6] . The explanation must, I think, be that the coronary occlusion is itself regarded as a disease distinct from the morbid cardiac condition of which it was the culmination.
Slazengers' Case [4] went on appeal direct to the Privy Council, which reversed the decision of the Supreme Court. The judgment of the Board was delivered by Lord Simonds. Their Lordships rejected the view taken in Peart's Case [5] that the definition in s. 6 (1) of the word injury could not be applied to that word in s. 7 (1) (b). They called attention to the anomalies (which had not gone unnoticed in this Court) which would result from the adoption of that view. They said: - "This decision leads to the remarkable consequences 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 employment was not a contributing factor, is not entitled to compensation: see Kellaway v. Broken Hill South, Ltd. [1] 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" [7] . A construction leading to such consequences should not, they said, be adopted if a more reasonablcould be found. In Peart's Case [5] Dixon J. had said: - "In a general way the intention doubtless was to extend the course of the employment to the journeys of the workman between his home and his work. Injury received in the course of his journey is to stand in the same position as injury in the course of his employment" [1] . Their Lordships proceeded to construe s. 7 (1) (b) in such a way as to give effect to this general intention. They said: - "It is, in their Lordships' opinion, legitimate so to construe the sub-section. This involves, no doubt, that after the words "the worker" where they occur immediately after exception (ii), some such words as "shall be deemed to have received such injury in the course of his employment and he" are by implication to be read into the sub-section. The result of this construction is to displace the reasoning on which the decision in Peart's Case [2] was largely founded. The word "injury" will retain its statutory meaning but sub-s. (1) (b) of s. 7 will afford a valuable measure of relief in cases not covered by sub-s. (1) (a). If the injury received by the worker during his journey is some injury other than a disease, e.g., a broken limb resulting from a collision, it will be an injury received in the course of his employment and he will be entitled to compensation: if the injury is a disease "received" (a difficult word in this connection to give effect to) during the journey, and if it is a disease to which the employment, including the journey, was a contributing factor, then equally he will be entitled to compensation" [3] .
In the present case the worker was clearly, in my opinion, engaged in a journey from his place of abode to a "place of pick-up" - one of the "periodic journeys" mentioned in s. 7 (1) (b) - until he reached the office on the second floor of the building in Kent Street. And the Commission has found that both his walking along Kent Street and his climbing the stairs were "contributing factors to the final condition which brought about his death". I think that Dr. Calov gave evidence sufficient to support this finding, though to my mind it was very flimsy: it is clear from the whole of the medical evidence that the worker was in imminent danger of death before he set out on his journey. The finding being accepted, the question is whether it renders the present case distinguishable from Slazengers' Case [4] , where the finding was that no incident of the journey accelerated or contributed to the coronary occlusion. In my opinion, the reasoning of their Lordships precludes the respondent from recovering compensation in the present case. She must rely upon s. 7 (1) (b), and I think that she could only recover if the statutory definition of "injury" were held inapplicable in s. 7 (1) (b). But Slazengers' Case [1] decides that the definition is applicable in s. 7 (1) (b).
In the course of the judgment their Lordships say: "this at least is clear, that in the Act the word "injury" must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions, and must, therefore, according to ordinary rules of construction, exclude any other disease" [2] . I read these words as giving clear approval to the first proposition of Jordan C.J. in Kellaway's Case [3] . That is to say, it is established that cases of the death of a worker from disease fall within that part of the statutory definition of "injury" which deals with diseases, and compensation is not recoverable unless the disease possesses the characteristics prescribed by that definition. It follows that the dependants of a worker who has died from a disease are not entitled to compensation unless the disease was contracted in the course of his employment or of a periodic journey, and the employment or the journey was a contributing factor to the contracting of it.
It seems to me, further, that the very approval by their Lordships of the learned Chief Justice's first proposition necessarily involves disapproval of his second proposition. If it were permissible to ignore that part of the definition of "injury" which deals with diseases, it would be permissible to say that the physiological event of the blocking of an artery, if some exertion on the part of the worker had contributed to it, was within an artificial but established meaning of the term "injury". This is what was done in Peart's Case [4] . But since Slazengers' Case [1] it is no longer permissible to reason in this way, and Peart's Case [4] must, in my opinion, be regarded as overruled. A case where the immediate cause of death is a coronary occlusion is unquestionably a death from disease. It falls within the second part of the statutory definition, and compensation is not recoverable unless the disease which culminates in the coronary occlusion fulfils the conditions of that part of the definition. Those conditions are not fulfilled in the present case. Slazengers' Case [1] means, in effect, that we must read the relevant part of the definition as if the word "journey" were substituted for the word "employment". But the relevant disease was not contracted in the course of the journey, nor did the journey contribute to the contracting of it.
Cases of coronary occlusion may perhaps be regarded as possessing peculiar features. But in those cases it is wrong, in my opinion, to regard the coronary occlusion as itself the relevant "disease". The disease is the atheroma or sclerosis or other morbid cardiac or vascular condition which culminated in the occlusion. The view expressed in the second proposition of Jordan C.J. can only be reached by saying that there is a "contracting" of a disease within the meaning of the definition if the work (or the journey) has accelerated, or contributed to, the reaching of the final stage of a pre-existing "non-employment" disease. This involves much more than the adoption of a somewhat artificial extension of the ordinary conception of "contracting" in relation to a disease. It seems to me to involve an actual misuse of language. One normally speaks of a patient as contracting a particular disease - not of his contracting an infinite series of stages of a particular disease. The extension involved is very much more drastic than that which is involved in saying that to suffer the blocking of an artery is to suffer an injury, and to my mind it is inadmissible. With the definition in the New South Wales Act may be contrasted the definitions of injury and disease in the Workers' Compensation Act 1958 Vict..
The building known as No. 211 Kent Street, Sydney, is occupied by the Commonwealth as an employment bureau. In it are places for workmen of various kinds to attend for the purpose of being selected by employers for employment. On the ground floor is a place for tally-clerks and a place for sugar-workers. On the first floor is a place for watchmen and one for storemen and packers. This case concerns the death of a person who was ordinarily engaged as a watchman. It was customary for watchmen to attend pre-arranged places at which employers selected and engaged persons for employment, and on the day of his death which was 1st July 1952 the deceased attended at that portion of the first floor of 211 Kent Street which is devoted to the employment of watchmen. His purpose was to seek employment, but while waiting to be selected by an employer he died. His widow who is the respondent here, being wholly dependent on him at the time of his death, took proceedings in the Workers' Compensation Commission claiming, under the provisions of the Workers' Compensation Act 1926-1951 N.S.W., compensation from the present appellant as the last employer of the deceased. An award was made in the widow's favour and an appeal by way of case stated was taken to the Supreme Court. That court answered the questions in the case favourably to the respondent, and the present appeal is against the answers so given.
The case is one which falls within s. 6 (14B). That provision (as it stood at the relevant date) calls the pre-arranged places such as that at which the deceased was waiting for employment "places of pick-up"; and it provides that a person such as the deceased was, while in attendance at any such place before being selected for employment, or while travelling thereto from his place of abode, shall be deemed to be a worker employed by the employer who last employed him in his customary employment. The Commission found that the place of pick-up was not the entire building 211 Kent Street, but the portion of the first floor of that building which was attended by watchmen. One of the questions in the case stated was whether this finding involved error of law. In my opinion it clearly did not.
Proceeding on the footing that the deceased was to be deemed a worker employed by the appellant while travelling from his home to the place of pick-up, the Commission concluded, after making a number of specific findings of fact, that the death of the deceased resulted from an "injury" within the meaning of the Act. Because of the definition of injury in s. 6 (1) as interpreted by the Privy Council in Slazengers' Case [1] such a conclusion would mean in the ordinary case - by which I mean a case not depending on the journey provisions of the Act - that the death resulted either from personal injury (other than a disease) which arose out of or in the course of the employment, or from a disease contracted in the course of the employment and to which the employment was a contributing factor. Sub-section (14B) creates a notional period of employment, but it does not, expressly at least, provide that the activity of travelling from the place of abode to a place of pick-up shall be treated as notionally the work of an employment. If, therefore, sub-s. (14B) stood alone, it might be considered, having regard to the distinction recently emphasized in The Commonwealth v. Ockenden [2] that the Act did not enable an injury received by a worker while travelling from his abode to a place of pick-up to be treated as arising out of or in the course of an employment. But the amending Act which inserted sub-s. (14B) in s. 6 inserted also a new provision, (sub-par. (iii)), in par. (d) of s. 7 (1), making a journey between a worker's place of abode and a place of pick-up one of the journeys referred to in par. (b) of s. 7 (1). Paragraph (b) has been held in Slazengers' Case [1] as I read Lord Simonds' judgment, to operate as an extension of the definition of "injury", so that a personal injury other than a disease, or a disease to which one of the specified journeys is a contributing factor, is to be deemed, if received on one of the specified journeys, to have arisen (in the case of a personal injury) or to have been contracted (in the case of a disease) in the course of the employment. Accordingly, the conclusion of the Commission in the present case must be considered as meaning that the deceased, while travelling from his home to the place of pick-up, received one or other of two kinds of injury, either (a) a personal injury not being a disease, or (b) a disease to which the travelling was a contributing factor, and that his death resulted from the injury so received.
The specific facts found by the Commission must therefore be examined in order to see whether they are sufficient to justify this conclusion. They appear to amount to no more than the following. The deceased, before he left home on the day of his death, was suffering from a progressive heart disease, which was reaching its terminal stage and was such that at any time the heart might enter a phase of irregular action and cease to function. The fatal culmination might have been reached, perhaps even at just as early a point of time, if no exertion on the part of the deceased had taken place; but in fact it was reached as a result of the exertion involved in making the journey to the place of pick-up. The reason why this moderate amount of exertion led to failure of the deceased's heart was not that it brought on or precipitated any sudden or identifiable physiological change which could properly be described as a personal injury not being a disease. It was (to express it in non-technical terms) that the diseased condition of the heart, a condition neither caused nor aggravated by the exertion of the journey, was of such a nature, and had so developed by the time the deceased reached the place of pick-up, that the need of the myocardium for oxygen, a need which the travelling had increased, was beyond the capacity of the arteries to cope with. To be more precise, a clot, which owed its origin to a progressive atheromatous condition of long standing and probably had begun to form before the deceased left home, built up during the journey, not in any way because of the journey but according to its own nature, until it occluded the right coronary artery to such an extent that the efficiency of the heart was reduced to a point below the standard which was necessary for the maintenance of life after the effort of the journey.
Under statutes containing no definition of "injury", findings of this general description may be sufficient to enable the conclusion to be reached that the death of the deceased person resulted from an injury by accident: see Hetherington v. Amalgamated Collieries of Western Australia Ltd. [1] . But under a statute which, in a definition of "injury", uses the expression "personal injury" with a context excluding disease from its denotation, such findings obviously do not go far enough to support a similar conclusion. Whether the conclusion would be warranted if the Commission were to find, on sufficient evidence, that exertion operating upon a diseased condition of the heart caused specific physiological damage, and that that damage in its turn resulted in the death, we have not here to consider. No such finding has been made or, on the evidence, could have been made. The appeal must depend on the question whether the disease which so affected the deceased's heart that it could not respond to the moderate demand which the journey made upon it falls within the second part of the definition of injury as applied to the facts of this case, that is to say whether it was contracted on the journey to the place of pick-up and was contributed to by that journey. The only possible way of putting the case so that an answer favourable to the respondent should be given is to say, first, that the progress of the disease from its inception to its fatal issue involved a contracting of it at every new stage that it reached, including the most advanced stage that it reached during the journey, and, secondly, that the exertion of the journey contributed to its progress to that stage. For the first of these propositions support may be found in the judgment of Jordan C.J. in Kellaway v. Broken Hill South Ltd. [2] where his Honour suggested that the Act shows by the language of sub-s. (4) of s. 7 ("Where the injury is a disease which is of such a nature as to be contracted by a gradual process ") that it uses "contracted" in a sense which produces this result. With respect, I think that that is getting more out of s. 7 (4) than is really there, and that no warrant is to be found either in the Act or in usage for saying on the facts of this case that the deceased contracted a disease on his journey to the place of pick-up. The second proposition is equally untenable. There is neither finding nor evidence that the journey was a factor contributing to the disease. The learned judge who constituted the Commission fell, I think, into the error of supposing that it was enough to find that the exertion of the journey was a factor contributing to the death. Under the statutory definition of "injury" such a finding is not to the point, for death, even when it results from an injury, is not itself an injury. The exertion not having contributed to the disease, the disease cannot be an injury within the statutory definition.
For these reasons I am of opinion that the appeal should be allowed, and that the questions in the case stated should be answered as proposed by the Chief Justice.
On 1st July 1952, Thomas Albert Hussey, the deceased husband of the respondent, collapsed and died at the Commonwealth Employment Bureau in Kent Street Sydney. The deceased's occupation was that of casual watchman on the waterfront and, on the occasion of his death, he had travelled from his home to the bureau - or, as it is called the "pick-up centre" - for the purpose of obtaining employment. He had travelled by tram to Wynyard Railway Station and then proceeded on foot down Margaret Street to its intersection with Kent Street and then along the latter street for about one hundred to one hundred and fifty yards to the "pick-up centre". The last stages of the journey necessitated his walking up a slight incline and then climbing some sixteen or twenty steps to the "pick-up centre" on the first floor of the building in which it was situated. When he arrived at the centre he went to the counter and asked "if there was any work" and when told "there was no work at the moment" he turned away and walked towards a seat. But after he had walked about fifteen feet he fell to the floor and shortly afterwards died.
Some four years before this event the deceased had commenced to complain of chest pains and breathlessness and in 1948 he sought medical advice. It is stated, however, that his condition continued much the same up to the day of his death. On that day, whilst proceeding down Margaret Street, he met the witness Wright, another waterfront watchman, and they walked together to the "pick-up centre". But in Kent Street, whilst they were walking up the slight incline already referred to, the deceased "seemed to be getting short of breath" and stopped for a "couple of minutes" before proceeding. There was a further halt on the stairs on the way to the "pick-up centre" because the deceased "seemed very exhausted and very white and very short of breath". However, he "seemed to have recovered" and they completed their journey upstairs to the centre.
A post-mortem examination revealed that the deceased had been suffering from advanced atheroma and the right coronary artery was occluded by a "recent firm blood clot" about two inches "from its origin" whilst there was evidence of oedema in the lungs. The cause of death was stated as disease of the heart or coronary thrombosis.
Upon the medical evidence called on behalf of the applicant the conclusion is inevitable that the clot commenced to form some time before the deceased left home for the pick-up centre and that his life would shortly come to an end whether he exerted himself thereafter or not. But the evidence itself does not enable one to say whether the ultimate or final cause of death was some movement of the clot creating an occlusion or whether its size and position, were, at the critical time, such as to result in an insufficiency of blood reaching the heart. Yet, apparently, since exertion is said to increase the demand of the heart for oxygen, the opinion was expressed by Dr. Calov - the medical witness called by the respondent - that the deceased's exertions had "caused his death". In cross-examination, it became apparent that this witness was of the opinion that before the deceased set out for work that day he was "a man in danger of death" whether he went to work or not but that the act of walking in the circumstances in question "precipitated his death". This conclusion was disputed by other medical experts in the case but in view of the questions raised by the case it is unnecessary to say more than that on their evidence the deceased's death was the natural and inevitable result of the diseased condition of his coronary vessels and it was not in any way related to any incident of the journey which he made.
The Commission made a number of findings on the evidence before it. First of all it found that the deceased was at the relevant time suffering from a progressive heart disease which was reaching its terminal stages. It then found that the exertion of walking to the place of "pick-up" was an operative factor in bringing about "a disorganized action of his heart" and thereby resulted in death. The condition of the deceased's heart was, it was found, such that it was possible for it to enter upon a "fatal phase of disorganized action" at any time whether related to effort or not; but in the present instance the relationship between death and the effort of walking was not merely co-incidental but was an actual causal relationship. Additionally, the Commission found that the exertion whilst proceeding along Kent Street was, itself, a contributing factor in bringing about the deceased's death. On these findings the Commission held that the death of the deceased resulted from an injury received on the journey between his place of abode and a place of pick-up.
The question of what constitutes an injury in cases where death has resulted from failure of some part of a diseased coronary system has been the subject of discussion in many cases. Sometimes it has been possible to point to evidence of what has been called a "specific injury". (See, for example, Hume Steel Ltd. v. Peart [1] and Clover, Clayton & Co. Ltd. v. Hughes [2] ). In the former case Latham C.J. found it "difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery" which, he said, "is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death" [3] . But if, as is the fact, the formation and movement of a clot, or the displacement in an artery of atheromatous material or the failure of a blood vessel or some other so-called "specific injury" may occur in the natural progression of a disease and without the intervention of some extraneous cause then the mere fact that some such "specific injury" has occurred, cannot mean that some incident of the victim's employment or of his periodic journey has given rise to an injury to him. And, of course, there may be a sudden and indeed, unexpected "disturbance" of a worker's "physiological state" producing physical incapacity or death without the occurrence of any perceptible "specific injury". In my view it would be unreal if these cases were made to turn upon whether or not the evidence in any particular case discloses some such "injury". But the trend of authority does not suggest this as a test. Cases such as Falmouth Docks and Engineering Co. Ltd. v. Treloar [4] , Partridge Jones and John Paton Ltd. v. James [5] and Whittle v. Ebbw Vale, Steel, Iron & Coal Co. Ltd. [6] were all cases in which there was no evidence of any specific injury; all that was established in each case was that exertion on the part of the worker suffering from a disease of the heart contributed to death by precipitating or substantially accelerating its occurrence. Reference was made to these cases by Dixon J. (as he then was) in Peart's Case [1] when he remarked that "if in the normal course of his work, owing to imperfect arteries or whatever other internal organ may be diseased, the workman breaks down and dies, it is sufficient although you cannot point to a specific injury resulting from a specific act" [7] . It is of course essential that it should be shown that some incident of the employment was a material factor in bringing about the death, or, in circumstances such as the present, that some incident of the deceased's journey constituted a factor which, in a material degree, contributed to his death Slazengers (Australia) Pty. Ltd. v. Burnett [1] .
In view of what has been said concerning the decision in this lastmentioned case I should add that I do not understand it to formulate any proposition of law which, in itself, is decisive of the present case. Slazenger's Case [1] was concerned with a claim for compensation where the death of a worker had resulted solely from the coronary disease from which he had suffered for some time. The occlusion which caused his death was "solely due to autogenous causes and had no causal connection with the journey" on which he was engaged when it occurred. That is to say, it had no connexion with his journey except in point of time. In those circumstances the Judicial Committee differed from the Supreme Court of New South Wales and held that compensation was not payable. But they did so because the occlusion, admittedly, was unrelated to any incident of the journey and could not fall within the first limb of the definition contained in s. 6 of the Workers' Compensation Act and because, so far as the second limb was concerned, the deceased had not contracted a disease on the journey which produced fatal results. It is true that their Lordships did not so express themselves in relation to the first limb but they were dealing with a case where no attempt had been made by the respondent to bring it within that limb. Indeed the argument of the respondent was that the definition was quite inapplicable to the provisions of s. 7 (1) (b) since a worker could never say, literally, that he had sustained an injury "arising out of or in the course of his employment" or that he had contracted a disease "in the course of his employment" if, whilst on a daily or periodic journey, he had suffered some physical injury or contracted a disease. This argument had already found favour in the Supreme Court in Peart v. Hume Steel Limited [2] and again in Slazengers' Case (sub. nom. Milligan v. Slazengers (Australia) Pty. Ltd.) [3] . The latter case followed the decision of Peart's Case [4] in this Court where three members of the Court (Latham C.J. [5] , Dixon J. (as he then was) [6] and McTiernan J. [7] ) expressly agreed that in construing s. 7 (1) (b) the terms of the definition should be disregarded.
Accordingly, it was the respondent's submission before the Judicial Committee in Slazengers' Case [1] that the meaning of the word "injury" in s. 7 (1) (b) was at large and that it was sufficient to entitle the respondent to succeed if it appeared that the subsisting disease had produced an identifiable physiological change whilst the worker was engaged on the journey in question. For the appellant, on the other hand, a twofold answer was made. In substance it was said this was a case where the deceased had died solely as the result of his disease. He had suffered no other form of "injury". Accordingly, it was asserted that, if the definition of that expression was applicable to the provisions of s. 7 (1) (b), the vital matter for consideration was the language of the second limb. And, since the respondent could not assert that the deceased had contracted the disease which caused his death "in the course of his employment" - or, it may be added, in the course of his journey - the claim was bound to fail. If, on the other hand, the definition was inapplicable then the word "injury" in s. 7 (1) (b), understood in its general sense, could not be taken to include, merely, "the onset or development of a disease". "Death from autogenous causes" it was asserted "is not an injury within the meaning of the subsection".
In the circumstances of the case it was for the Judicial Committee to choose between these conflicting submissions and it was to this problem, it seems to me, that their reasons were directed. First of all, for the reasons which their Lordships gave, they rejected the submission that in construing s. 7 (1) (b) the terms of the definition contained in s. 6 should be excluded. They were, however, by no means unmindful of the difficulties which flowed from the reference in the definition to a worker's "course of employment". In rejecting the respondent's submission their Lordships referred to the observations of Latham C.J. in Peart's Case [1] and added: "It is to be observed that the learned Chief Justice repudiated the idea that any causal connection between the injury and the journey was necessary. In his view a temporal relation was sufficient, namely, that the injury happened while the worker was on the journey" [2] . But their Lordships were not prepared to give effect to the "remarkable consequences" to which, as they in common with Latham C.J. observed, Peart's Case [3] led and they sought an understanding of s. 7 (1) (b) which would give to a worker whilst engaged upon a daily or periodic journey a measure of protection and relief not unlike that provided for a worker whilst engaged in the duties of his employment. In seeking to equate the one set of circumstances to the other they found a clue to their problem in the observations of Dixon J. which they cited from Peart's Case [1] : "In a general way the intention doubtless was to extend the course of employment to the journeys of the workman between his home and his work. Injury received in the course of his journey is to stand in the same position as injury in the course of his employment" [2] . In thus treating s. 7 (1) (b) as effecting a notional extension of the course of employment to the daily or periodic journey their Lordships indicated that injuries received in the course of such a journey should, for the purposes of the Act, be regarded as injuries received in the course of the worker's employment. Accordingly, they said: "The result of this construction is to displace the reasoning on which the decision in Peart's Case [1] was largely founded. The word "injury" will retain its statutory meaning but sub-s. 1 (b) of s. 7 will afford a valuable measure of relief in cases not covered by sub-s. 1 (a). If the injury received by the worker during his journey is some injury other than a disease, e.g., a broken limb resulting from a collision, it will be an injury received in the course of his employment and he will be entitled to compensation: if the injury is a disease "received" (a difficult word in this connection to give effect to) during the journey and if it is a disease to which the employment, including the journey was a contributing factor, then equally he will be entitled to compensation" [3] . It will be seen that their Lordships rejected the contention "boldly" made by the appellant "that all disease falls outside the expression" [4] of injury as used in s. 7 (1) (b), and they rejected also that of the respondent to the effect that the critical expression is "apt to cover any physiological change which happens during the journey and whether causally connected with it or not" [4] . To my mind the solution to the question raised by these competing contentions was the only problem to which their Lordships directed their attention and, as far as I am able to see, they did not deny that a worker already debilitated by disease, and with a condition predisposed to some sudden physiological change, may receive an injury within the meaning of the first limb of the definition when such a physiological change is caused or results in some material degree from some incident of his employment or of his daily or periodic journey. It is true that their Lordships said that "in the Act the word "injury" must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to the rules of construction, exclude any other disease" [1] . But, as I read their Lordships' reasons, they were speaking as Jordan C.J. was, in Kellaway v. Broken Hill South Ltd. [2] of "disease simpliciter ", and they merely intended to exclude from the definition any such disease "the original contracting of which, and any subsequent accentuation of which, were in no respect caused or contributed to by employment" [3] . Indeed, their immediately prior reference [4] to the fact that in Peart's Case [5] it appeared that a small piece of the lining of the deceased worker's artery had been loosened and had blocked the artery and that this physiological change had taken place as the result of a physical effort made during his journey, at least established a causal connexion between the injury and the journey affords some confirmation of this view. I should, perhaps, add that it is not unreasonable to suppose that if their Lordships had entertained the view that the actual decision in Peart's Case [5] was erroneous and meant to hold that compensation is not payable in such cases they would have said so expressly. Accordingly it is, I think, necessary in the present case to examine the evidence for the purpose of determining whether it is capable of establishing that some incident of the deceased's journey caused or, in any material degree, contributed to some change in his condition which resulted in death.
It should be borne in mind that in cases where, as here, the vital question is whether the evidence is sufficient to justify the finding of a lower court it is not for us to pass upon the critical question of fact; our task is limited to an examination of the evidence to see whether it is capable of supporting the findings of facts already made. Those findings have already been mentioned and it seems to me that, upon authority, they were sufficient to found an award in favour of the respondent. The question, however, is whether they can find sufficient support in the evidence of Dr. Calov. Initially this witness expressed the view that the clot found upon postmortem examination had formed before the deceased left home for work and he said that the exertion which was involved in walking along Kent Street and upstairs to the "pick-up centre" was dangerous for a man in his condition. Thereafter he gave it as his opinion that this exertion caused the deceased's death. But in cross-examination he agreed that the deceased that morning was in danger of death whether he exerted himself or not. Indeed he went so far as to say that before the deceased left home "he was doomed". But he was unable to say what the period of survival would have been had he not exerted himself at all. It might have been "a very short time or a matter of hours or perhaps a matter of days". Yet, holding the opinion that "a man whose coronary artery is almost blocked is much more likely to die of exertion than he is if lying quietly in bed", the witness adhered to his view that the exertion of walking had precipitated the death of the deceased. I should add that in re-examination Dr. Calov agreed with counsel's suggestion that it was possible that if the deceased had rested instead of going to work that morning he might not have died. But if, as seems doubtless to have been the case, the deceased was a doomed man before he left home for work it is a matter of some difficulty to attribute his death to any supervening cause. Particularly is this so when upon the evidence it is impossible to say whether his period of survival after the clot commenced to form was or was not diminished by any exertion involved in his journey. Dr. Calov's opinion that "a man whose coronary artery is almost blocked is much more likely to die of exertion than he is if lying quietly in bed" is a generalization which carries the case no further for it takes no account of the precise condition of the deceased, the stage to which it is likely it had progressed before he left home nor of the fact that the witness, himself, was quite unable to venture an opinion whether in the events which happened the deceased's death was, to any appreciable degree, advanced in point of time. On the whole his evidence is consistent with the conclusion that the deceased's death resulted solely from the natural progression of his disease, and that being so, it is impossible to ascribe his death in any way to the occurrence of an "injury".
In the circumstances the questions raised by the case stated should be answered as follows: - (1) No. (2) Yes. (3) Yes. (4) No.
Australian workers' compensation legislation was originally modelled on the English Act. But in the course of time the words "personal injury by accident arising out of and in the course of the employment" have been amended in various ways in the different States. The result is that the words of the particular Act under which a claim is made are always important, and decisions in cases which have arisen under other Acts may be of limited assistance. The Act with which we are concerned here is the Workers' Compensation Act 1926-1951 N.S.W.. The difficulties of the case arise from the inter-relation of two of its provisions which were introduced by amendments at different dates. First there is the definition of injury in s. 6 (1) - taken with the omission of the words "by accident". It provides that "injury means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor ". Secondly, by s. 7 (1) (b), the Act provides, in effect, for compensation to be paid where a worker has received an injury on the journey between his place of abode and place of employment. The hazards of the journey to and from the place of employment are treated as if they were hazards of the employment itself. It is now settled that injury in s. 7 (1) (b) means an injury as defined in s. 6 (1) set out above.
Compensation can be had for incapacity or death which results from disease, only when the disease is one contracted in the course of employment and to which the employment was a contributing factor. Slazengers' Case [1] makes it clear that incapacity or death caused by other diseases is not compensable. For this reason I think that it is only in unusual circumstances that cardiac failure can give rise to an entitlement to compensation. It is generally recognized to-day that a coronary occlusion, which is the common occasion of heart failure, is but the culmination or climax of a progressive disease, itself unrelated to employment. If a disease be outside the definition of injury then all the stages and episodes in its development and progress and its climax are also excluded. I do not mean to suggest that the phrase "personal injury" in the New South Wales Act has lost all the "latent implications" which it had gathered. But the express reference to the diseases which come within the term "injury" makes inapplicable, in cases like the present, some of the implications or accretions, referred to in Hetherington's Case [2] , which the word has when standing alone. It is not a correct use of language to call the last episode of an illness, or the last stage of an infirmity, the contraction of a disease. It would be an anomaly and inconsistent with the obvious policy of the Act if a man whose death from disease was imminent could have compensation if he were to set out for work and die from the disease on the journey, but not if he had not got beyond his gate when death fastened its grip upon him.
An endeavour is however often made to bring coronary occlusions within the scope of the Act by evidence directed to showing that the occlusion would not have occurred exactly when it did, or might not have occurred at all, if the worker had not engaged in some physical exertion at his work or in getting to his work. There is a body of medical opinion that physical exertion can bring about a coronary occlusion in a man suffering from heart disease; although medical opinion seems to be divided as to the general effect of effort in relation to the prognosis and treatment of such diseases. But it seems to me that, if a coronary occlusion can ever be an injury received by a worker within the meaning of the Act, a decision whether in a particular case an occlusion was such an injury ought not to depend upon inferences from data which can only be disclosed by an autopsy. The rights of workers and their dependents are not to be determined by ascertaining what precisely happened inside a man's heart at the moment of death - whether on post mortem examination it appeared that an atheromatous fragment or a blood clot was the occluding thing. Notwithstanding what might seem to emerge from Peart's Case [1] that would involve, I think, too great a refinement and too nice a distinction. An examination after death may show or confirm the presence of a morbid condition, and thus explain sudden death. In that sense what it discloses may be very important; but that is different from treating the precise physiological mechanism which caused life to cease as the critical matter. There seemed to be some confusion in the argument as to the effect of effort in inducing an occlusion. If a worker's heart were in reality damaged by some strain or exertion, his right to compensation would not be lost because before that injury he was suffering from a cardiac infirmity which may have made him in some way more susceptible to injury. But what is often argued, and was argued here, is that if any effort "precipitates" an occlusion, or "accelerates" or "contributes to" its happening, or if there be a "causal connexion" between effort and an occlusion, or if after effort some "distinct physiological change" occurs and incapacity or death follows, then the case is necessarily within the Act. In New South Wales these phrases do not appear in the Act. They can only be imported into its interpretation from the judgments of various courts. But the clarification and limitation in New South Wales of the circumstances in which incapacity from disease comes within the Act make some generalizations favoured elsewhere no longer entirely appropriate there (see Patrick & Co. Pty. Ltd. v. Sharpe [2] ). Moreover, whether express or imported, phrases and expressions such as those mentioned do not of themselves, without the context of circumstances, have any very helpful meaning. They ought not to be regarded as mere incantations, formulae which if spoken by a witness will satisfy the requirements of the Act. There are often risks in paraphrasing the words in which Parliament has expressed its meaning. And those risks are not removed by selecting as the paraphrase words which courts have used in other cases to explain the application of other statutory language in a different context. In The Commonwealth v. Butler [1] I referred to some aspects of the problem created by expressions used to connote causation in relation to sudden death. Without repeating what I said there, it is enough to say here that, as death comes near, consequence runs so close upon the heels of cause that in the end they run together. And statements about distinct physiological changes often tend to a misconception, because they may mean only that the man concerned has begun to die. Furthermore an existing infirmity, or an increase in its incapacitating effect, may become apparent if upon exertion the limit of bodily tolerance is reached sooner than theretofore. This is the consequence of an existing condition, not the onset of a new malady. It is manifestation not causation, revelation not genesis. Some relationship between the occurrence of death and whatever effort or activity, great or small, immediately preceded it may nearly always be postulated when a man succumbs because some organ has from infirmity due to advancing disease or decay proved at last unequal to the task of further sustaining bodily effort; and it may in one sense be proper to speak of a causal relationship. But it is not I think in this sense that exertion can properly be spoken of as accelerating death or as a contributing factor. It may often be true that if a man doomed or dying had not done this or that, he might not have died exactly when he did; he might have lived a little longer, perhaps some hours, perhaps minutes, perhaps seconds longer. But the Act is not concerned with the abbreviation of life by seconds, minutes or even hours. It is concerned with death or incapacity whereby a worker or his dependents suffer because he cannot continue at work. To say that a man died from exertion simply because he might not have died had he remained at rest doing nothing at all is only to say that he was already incapable of the exertion of work.
In the present case a medical witness called on behalf of the applicant said that he thought the effort of walking along Kent Street and up the steps at the pick-up place "caused his death"; and that he thought "the exertion precipitated his death". But his meaning was made clear by the rest of his evidence. The deceased man, he said, was in danger of death when he went to work that day, and in danger of death whether he went to work or not. The development of the clot, he said, could have led to his death that morning even if he had been at rest; before he left home he had reached the condition where he was bound to die, and before he left home he was doomed. The witness could give no opinion as to whether he might have lived a very short time or a matter of hours or a matter of days longer if he had not gone to work. Another medical witness, who was called for the respondent, said that the effect of walking up the steps would have been to bring about his death a little earlier. The learned member of the Workers' Compensation Commission who tried the case found there was an actual causal relationship between death and the effort of walking; that the effort of walking in the street was a contributing factor in bringing about the death; and that the death resulted from an injury received on the journey. He said that the exertion of walking was an operative factor in bringing about a disorganized action of his heart and thereby resulted in death. He also found that "the death of the deceased resulted from the injury received on the journey", the injury being it seems what he called "the disorganised action of the heart". In whatever sense he used some of these expressions, I can find no evidence which supports the finding that the deceased in any relevant sense received an injury on his journey. The most that can be said is that his heart was so badly impaired that he was incapable of the effort of walking to his work. His heart, damaged by disease, could no longer sustain his bodily effort and he collapsed. I do not think Lord Loreburn's words in Clover, Clayton & Co. Limited [1] or any other observations by their Lordships in that case or similar cases, when read in their context and in relation to their circumstances, make it possible to find on the evidence in this case that the worker received an injury within the meaning of the Act. What happened, stated in ordinary words, was that an unfortunate man who had a very bad heart, and who was in consequence in danger of death when he left home, died from a heart attack. That in the circumstances was not enough to justify an award.
The questions in the case stated should be answered as proposed by the Chief Justice.
Darling Island Stevedoring & Lighterage Co Ltd
Hussey