Favelle Mort Ltd v Murray

For these reasons I would join in dismissing this appeal.

The respondent worker in the course of his employment with the appellant company was required in September 1968 to go to New York to supervise the maintenance of cranes supplied by the appellant which were being used in a very large construction project near the Hudson River. The peculiar circumstances of his employment in the United States required him to be on call virtually twenty-four hours a day throughout his stay of approximately fifteen months in that country. At some stage prior to his return to Australia the respondent contracted the disease of viral meningo-encephalitis, a disease affecting the brain and which can prove fatal. Although the disease did not prove fatal in this case it caused the respondent to become gravely ill and has left him with considerable physical and mental impairments. Medical knowledge about such a disease is limited and the medical experts called as witnesses could not say with certainty how the respondent contracted the disease. There was no evidence given as to the most likely means by which the respondent was inflicted with the unidentified virus which caused the disease and thus it cannot be said whether the virus was introduced into the respondent by means of the bite of a mosquito, rodent or other animal or simply by means of the respondent consuming food or drink contaminated with the virus. All that can be said is that the respondent became infected with the virus through one of these means.

The respondent's right to compensation is dependent upon him bringing his affliction within the definition of injury covered in s. 6 of the Workers' Compensation Act, 1926 N.S.W.. The definition, so far as relevant, runs as follows:

"Injury" means personal injury arising out of or in the course of employment, and includes -

(a) a disease which is contracted by the worker in the course of his employment and to which the employment was a contributing factor.

Judge Langsworth found that the respondent contracted the disease in the course of his employment. However, the learned judge went on to hold that the disease did not amount to an "injury" simpliciter and, moreover, was not one to whose contraction the employment was a contributing factor. Accordingly he dismissed the claim for compensation. On appeal, the New South Wales Court of Appeal found unanimously that the disease suffered by the worker was one which came within the extended meaning of "injury" contained in par. (a) of the definition. It is from that decision that this appeal arises.

The appellant's primary submission, which I shall leave for later consideration, is that the Court of Appeal was in error in holding that the requirement that the employment be a contributing factor to the contraction of the disease had been satisfied. According to this view the phrase "to which the employment was a contributing factor" is at least analogous to the traditional expression "arising out of the employment", that it is satisfied only if the respondent can show that as a result of his employment he was specially exposed to the risk of contracting viral meningo-encephalitis, a conclusion which, it is said, cannot be supported for there was no evidence that there was a greater risk of contracting the disease in the United States where the respondent was compelled to work or that the respondent was specially exposed to the risk by reason of his employment.

It is convenient to consider in the first instance the respondent's primary submission: that the disease suffered by him comes within the definition of "injury" simpliciter without the need to resort to par. (a) of the definition. It was submitted that since this injury was found to have arisen in the course of the employment that is sufficient to enable the respondent to recover compensation. Although it seems that this argument was not advanced in the Court of Appeal, it was dealt with by Judge Langsworth and a respondent is entitled to support the decision in his favour by any submission of law open on the findings of fact.

But for the presence of par. (a) in the statutory definition of "injury" I should have had no doubt that the respondent's disability was compensable on the footing that the disease which he contracted was a "personal injury arising out of or in the course of his employment" although it was not associated with some external wound.

The decision of the House of Lords in Brintons, Ltd. v. Turvey [21] supports this view. It was held there that a workman who was infected through the eye by an anthrax bacillus suffered an injury although there was no abrasion or outward sign of the entry of the bacillus. Again, in Grant v. Kynoch [22] , where a worker died as a result of blood poisoning occasioned by the absorption into his blood stream of harmful bacteria, it was held that the blood poisoning constituted an injury which entitled the worker's relatives to compensation, although the bacteria entered the blood stream through a scratch not associated with the employment. The crux of the reasoning was that the contraction of an infectious disease is an injury: see [23] ; esp. [24] where Lord Buckmaster said: "when the infection has been found to be due to the impregnation of germs acquired by a man in the course of and arising out of his employment it becomes impossible to distinguish the reasoning that would establish liability, from that used in the case of Brintons, Ltd. v. Turvey "

1. [1905] A.C. 230. 2. (1919) B.W.C.C. 78. 3. (1919) 12 B.W.C.C., at pp. 82-83, 86, 106. 4. (1919) 12 B.W.C.C., at p. 89.

Buckley L.J., in Martin v. Manchester Corporation [25] , and Atkin L.J., in Hutchinson v. Kiveton Park Colliery Co. Ltd. [26] , also considered that the contraction of a disease resulting from the invasion of the body by bacillus is in itself an injury which is probably compensable. To the same effect is the decision of the New Zealand Court of Appeal in Storey v. Wellington Hospital Board [27] , where in a factually similar situation to that which occurred in Martin v. Manchester Corporation [28] each of the members of the Court came to the view that the contraction of the disease of scarlet fever constituted an injury.

1. (1912) 5 B.W.C.C. 259, at p. 262. 2. [1926] 1 K.B. 279, at p. 291. 3. [1932] N.Z.L.R. 1553. 4. (1912) 5 B.W.C.C. 259.

However, it has been affirmatively established that this construction cannot be placed upon the definition of injury in s. 6 of the Act because the extended definition which it contains includes certain diseases only. In Slazengers (Australia) Pty. Ltd. v. Burnett [29] , Lord Simonds in construing the former definition of "injury" in the New South Wales Act (which is basically similar to the present definition with the exclusion of the existing par. (b)) said that "in the Act the word "injury" (unless the context or subject-matter otherwise indicates or requiries) 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 constructon, exclude any other disease".

1. [1951] A.C. 13, at p. 20; (1950) 51 S.R. (N.S.W.) 1, at p. 4.

Subsequently, in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [30] , as I read the judgments, no less than four members of this Court, after referring to Lord Simonds' observations, expressed the opinion that compensation is not recoverable "unless the disease possesses the characteristics prescribed" by the statutory definition, per Fullagar J. [31] ; see also [32] . In view of this strong body of opinion I do not think that we are justified in now adopting a contrary view.

1. (1959) 102 C.L.R. 482. 2. (1959) 102 C.L.R., at p. 505. 3. (1959) 102 C.L.R., at pp. 492, 515-516, 518.

The respondent's first submission must, accordingly, be rejected.

The appellant's submission that the second limb of par. (a) of the statutory definition is virtually synonymous with the concept of causation expressed by the words "arising out of the employment" was founded on observations made in Smith v. Australian Woollen Mills Ltd. [33] , where the applicant fell against guard rails in the course of a fainting fit. Gavan Duffy C.J., Rich, Dixon, Evatt and McTiernan JJ. said:

"We think the conclusion" [is required] "that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it." These observations were taken to suggest some degree of correspondence between an injury to which the employment contributes and an injury which arises out of the employment and to reflect an approach similar to that taken by the House of Lords to the concept of injury "by accident arising out of his employment" - an expression appearing in similar legislation in the United Kingdom and elsewhere - in such cases as Thom v. Sinclair [34] ; Dennis v. A. J. White and Co. [35] ; Brooker v. Thomas Borthwick & Sons (Australasia) Ltd. [36] , and Dover Navigation Co. Ltd. v. Craig [37] . In these cases a distinction has been drawn between injury occasioned by contact physically with some part of the place where the worker works, when no further causal connexion with the employment need be shown, and injury occasioned by natural forces (with which the contraction of disease has been equated) in respect of which the worker cannot recover "unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury" (Brooker's Case per Lord Atkin [38] ). 1. (1933) 50 C.L.R. 504, at p. 516 2. [1917] A.C. 127. 3. [1917] A.C. 479. 4. [1933] A.C. 669. 5. [1940] A.C. 190. 6. [1933] A.C., at p. 677.

The line of distinction thereby suggested is narrow, as Lord Atkin himself admitted [39] . It is a distinction which flows from the necessity of attributing to the words "arising out of" a requirement additional to that signified by the words "in the course of", and one which, as is later indicated, signifies an association of the employment with the accident which "may be even closer than that of proximate cause" [40] .

1. [1933] A.C., at p. 678. 2. [1933] A.C., at p. 679.

Although par. (a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words "in the course of", the requirement suggested by the words "to which the employment was a contributing factor" is not as stringent as that suggested by the concept "arising out of" the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury.

This construction of the definition is to be preferred to the appellant's suggestion that the language in par. (a) should be given a meaning identical with, or similar to, the concept expressed by the words "arising out of". There is every reason for giving the statutory definition a different meaning; had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used.

The English decisions, accordingly, have no application to the question in hand and the observations in Smith's Case [41] should be read as saying no more than that an injury at the place of work associated with a characteristic feature of the premises is an injury which falls within the statutory definition. The joint judgment should not be regarded as providing an answer to the question whether the statutory requirement is satisfied by something less than an injury associated with a characteristic feature of the premises, this being a question which did not arise for decision and which was not then considered.

The issue on the facts as found is: Did the employment contribute to the injury? In my opinion an affirmative answer must be returned to this question. In the circumstances of this case which present some distinctive features I am of the opinion that had it not been for the employment then on the probabilities the respondent would not have contracted the disease. The employment exposed him to the risk of contracting the disease, a disease so rare in its incidence that it is improbable that the respondent would have contracted it had he remained in Sydney. Furthermore, the respondent was employed on what was virtually a twenty-four-hour-day basis in the United States. The consequence was that he was able to prove that he contracted the disease in the course of his employment, a finding often beyond the reach of a worker who contracts a disease.

The respondent in the course of his employment by the appellant was sent by the latter to the United States of America. He was found by the Workers' Compensation Commission to have been in the course of his employment during the whole of the time for which he was out of Australia. He was found to have contracted during the course of this employment the disease of meningeal encephalitis from infection with a strain of virus which could not be precisely identified. Infection by certain kinds of virus can both in Australia and in the United States of America cause meningeal encephalitis.

The respondent was incapacitated for work and the question is whether he received an injury within the meaning of s. 7(1)(a) of the Workers' Compensation Act, 1926 N.S.W.. "Injury" is defined in s. 6(1) to mean

personal injury arising out of or in the course of employment, and includes -

(a) 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;

If the infection of the respondent with the disease was an injury within the first words of the definition then on the findings of the Commission the injury arose in the course of the employment and the respondent was entitled to compensation. However, if the infection and its consequences were not such an injury but were nothing other than a disease then the statutory definition of injury in s. 6(1) of the Act only includes such a disease when it is not only contracted in the course of employment but is also one to which the employment is a contributing factor.

It would appear to me that the entry of a virus into the human body is an injury within the first words of the definition. By the infection of more and more body cells the injury leads to what may be described as a disease in the sense that it is a pathological condition in the body cells which results in a morbid physical condition of the body. The minuteness of the initial entry or invasion of a body cell does not change its essential nature. It is said, however, that Slazengers (Australia) Pty. Ltd. v. Burnett [42] and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [43] are authorities to the contrary. It is necessary to say something of those cases. They dealt only with a disease of autogenous origin, in each case cardiac disease. When in the former case Lord Simonds stated [44] that by the definition in s. 6(1) the word "injury" included a disease which satisfied certain conditions and therefore by ordinary rules of construction excluded any other disease, he was so stating in the circumstances of that case where there was a finding of fact that the coronary occlusion was solely due to autogenous causes. In the second case there was a finding that the worker was at the relevant time suffering from a progressive heart disease which was reaching its terminal stages. Both cases were the converse of the present case. In both of them it was claimed that the result of the disease - the terminal occlusion - was an injury. This claim was not upheld and it was in that context that it was stated in the one case and reiterated in the second case that once the cause of death or incapacity was found to be a disease then the conditions of the definition must be satisfied and a disease which did not satisfy those conditions was not within the definition of "injury". In each case the sudden conclusion of life was caused by the disease and it was held that this sudden conclusion was not itself an injury but was the terminal stage of the disease. Therefore the conditions in the definition relating to disease needed to be satisfied and were not in fact satisfied. In the present case the claim is the converse, namely, that the result of an injury was a disease, the injury being the invasion of the body by the virus. The reasoning in Slazengers (Australia) Pty. Ltd. v. Burnett [42] and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [43] is only capable of being applied to a disease which does not arise from an injury. Thus death or incapacity from the disease of blood poisoning is compensable if the injury which permitted the invasion of the poisonous bacilli occurred in the course of employment, wherever and whenever and however the result of the injury manifests itself in the disease of blood poisoning. The actual injury may be the tiniest lesion which allows the entry of bacilli. It may be even less. It may be the entry into a cell or cells of the body of the bacillus or the virus itself. It is sufficient to prove that the entry occurred in the course of the employment. The entry of the virus was the actual injury in the present case which led to the disease of meningeal encephalitis. This entry of the virus occurred in the course of the respondent's employment. The respondent is thus entitled to an award.

1. [1951] A.C. 13; (1950) 51 S.R. (N.S.W.) 1. 2. (1959) 102 C.L.R. 482. 3. [1951] A.C., at p. 20; (1950) 51 S.R. (N.S.W.), at p. 4. 4. [1951] A.C. 13; (1950) 51 S.R. (N.S.W.) 1. 5. (1959) 102 C.L.R. 482.

Alternatively, the respondent is entitled to an award upon the ground that he received an injury, namely, a disease contracted in the course of his employment and to which the employment was a contributing factor. The nature of the work done in the employment need not be a factor contributing to the onset of the disease. It need only be the employment which is the contributing factor. The employment, if the particular nature of the work done therein be irrelevant, is simply the carrying out by the worker of his duties as directed by the employer at a particular place and at a particular time. The respondent was required by the appellant to be at his work at the particular place and at the particular time. At the place and time he suffered the exposure and infection which led to the disease. It must follow that the exposure and infection which led to the disease were the result of him being engaged in his employment at that particular place and at that particular time. This is to say much more than that he contracted the disease in the course of his employment in a temporal sense. In addition to this temporal factor there was the factor of location, not a casual or chance location but a location imposed upon him by his employment which was the actual source of the disease. I find it irrelevant that he might just as well have contracted the disease at another time or place when he was not in the course of his employment, even if this be assumed to be so. Though it is not sufficient that the disease be contracted in the course of the employment, it is sufficient if the disease invades his body as a result of its presence in his place of employment during the time of his employment; then the employment is a contributing factor. The result is that any disease proved to have been contracted by a worker at the place and during the time of his employment, not being a disease of autogenous origin within his body but being a disease contracted as a result of the presence at the place of employment of the organism or other substance which invades or attacks his previously healthy body falls within the conditions prescribed in the definition in s. 6(1). That being so, there is little, if any, difference in result between categorizing the invasion or attacking of the body by a foreign organism as an injury within the first part of the definition of injury in s. 6(1) or as a disease within the second part of the definition. On either approach there is an injury within the definition of that word in s. 6(1). On either approach, therefore, in the present case the respondent received an injury within the meaning of those words in s. 7(1).