Darling Island Stevedoring & Lighterage Co Ltd v Hussey - [1959] HCA 55 - HCA 1959 case summary — Zoe

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Darling Island Stevedoring & Lighterage Co Ltd v Hussey

[1959] HCA 55

High Court of Australia|1959-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1959-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (73 paragraphs)

[1]

High Court of Australia Dixon C.J. Fullagar, Kitto, Taylor and Windeyer JJ. Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55

[2]

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.

[3]

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.

[8]

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.

[24]

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.

[26]

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".

[36]

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] .

[47]

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.

[50]

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.

[58]

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] .

[60]

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.

[63]

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.

[65]

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".

[70]

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.

[72]

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.