Favelle Mort Ltd v Murray [1976] HCA 13;

Favelle Mort Ltd v Murray [1976] HCA 13; - HCA 1976 case summary — Zoe

[20]

7. If the only basis upon which an award of compensation could be made in favour of the respondent is the satisfaction of the extension by par. (a) of the definition of "injury" in s. 6(1) of the Act, the matter for decision is whether his employment contributed to the contraction by the respondent of meningo-encephalitis. Clearly, it cannot be said that the nature of anything the respondent was required to do by his employment contributed to cause his morbid physical condition. But it is also quite clear that it is not necessary that this should be so in order that it may be concluded that the employment contributed to the contraction of that condition. There was quite clearly a moment, though not discernible or capable of precise or even approximate identification, when the virus attacked the respondent and entered his body. That, rather than the first manifestation of the meningo-encephalitis, must be regarded as the relevant contraction of the disease, if the case is to be treated as within the extension of the definition of "injury". Not only was he at that time in the course of his employment, but he was at the place where he was endangered by the virus because his employment required him to be there. It is clearly quite immaterial that any member of the public, if at that same place at the same time or for that matter anywhere in the vicinity, might have been similarly attacked by the virus with comparable results. It is sufficient, in my opinion, that the virus attacked the respondent at that place and time. For him, it was for that reason a place of danger or, if you will, of special danger; a place at which he must be in fulfilment of his employment. It is to my mind only the correspondence of the place of his employment with the totality of the area in which he lived that appears to raise a problem in this case. Had he been required by his employment to be at some particular place in a confined area, such as a building, and he was there attacked by a virus with the consequences experienced by him in this case, there would not seem to me to have been the same difficulty in accepting that he received the virus at the place where his employment required him to be and that, in consequence, that obligation of his employment contributed to his injury in the extended meaning of that word. In my opinion, that being for him, as it would have proved to be, the place of danger, the formula contained in the extension of the definition would have been satisfied. I can see no reason why the same conclusion should not follow in the present case where the area in which his employment required the respondent to be was coincident with the entire area in which he lived or worked during his tour of duty abroad. Although some manifestations of the meningo-encephalitis were present during the aeroplane journey from America to Australia, it may be possible that the viral attack occurred during the journey. But, having regard to the findings of the Commission, the journey formed part of the employment and the aeroplane was a place where at the relevant time the employment required the respondent to be. (at p585)

[27]

14. I would for myself wish first to consider the proper construction of the statute, for unless upon its true construction an externally caused disease may be an injury, without any contribution to its onset by the employment, none of the foregoing questions other than the first will arise. Apart from any effect of the extension effected by par. (a) of the definition, an external excitement initiating a morbid condition of the body would, in my opinion, be an injury within the meaning of that word in the context of a workers' compensation law. It must be remembered that at the outset of such legislation, i.e. in the original English Act, the injury had to be by accident or, perhaps more accurately expressed, the worker had to suffer or receive an injury by accident. Consequently, the universal character of the word "injury" was to an extent limited by its conjunction with the word "accident". But English courts held that the contraction of a disease by external cause could be the reception of an injury by accident. Brintons Ltd. v. Turvey (1905) AC 230 and cases which followed that case sufficiently evidence that course of decision. The same view has been adopted in New Zealand - see Storey v. Wellington Hospital Board (1932) NZLR 1553 . The removal of the word "accident" from the expression "injury by accident" did not, in my opinion, reduce the connotation of the word "injury". Rather, it increased the occasions on which that connotation could be given effect. In so expressing myself, I am not unmindful that Lord Reid in James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1, at p 16 held that, by reason of the particular definition of disease in the Victorian statute there under consideration (Workers' Compensation Act, 1928 as amended to 1946 (Vict.)), an autogenous disease was an injury by accident. But that case must depend entirely upon that particular definition of disease and injury. It may thus be concluded, as I would conclude, that in its normal meaning the word "injury" in the Act itself embraces an externally excited disease. (at p587)

[29]

16. The question then arises as to the effect of the extension of the connotation of the word "injury" by the inclusive words of par. (a) of the definition. If, as I think, the external cause initiating a morbid condition of the body is itself an injury within the ordinary sense of that word, does the extension of the definition in par. (a) exclude all disease, both disease externally excited and autogenous disease, from the normal connotation of the word "injury" itself and merely add to that connotation disease qualifying within the words of that paragraph? The conclusion to which their Lordships came in their reasons in Slazengers (Australia) Pty. Ltd. v. Burnett was that the terms of par. (a) of the definition did operate to exclude all diseases which did not satisfy those terms. Their Lordships did not reach this conclusion because of any apparent policy of the legislation dictating such a result: indeed, there was no examination of that policy. Their conclusion was arrived at only by reason of the rules of statutory construction. The critical sentence of the reasons of their Lordships read by Lord Simonds and relied upon by Sir Owen Dixon in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482, at p 492 was: "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" (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 . But it seems to me, with unfeigned respect for his Lordship, that there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined. Of course, if the matter included by extension of the definition does not otherwise or in any sense fall within the connotation of the word or expression being defined, the inclusion of such matter will not go beyond the terms in which the inclusion is expressed. Thus, if no reception of any disease falls within the connotation of the word "injury" in the Act in its normal sense, the extension in par. (a) will only include in that connotation such diseases as satisfy the conditions expressed in the extension. In a sense, all other diseases would be excluded, i.e. because not included. (at p589)

[34]

21. But the further question remains. The Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 , as I understand their reasons, decided the construction of the Act in the sense adopted by Sir Owen Dixon. In times when this Court's decisions were reviewable by Her Majesty in Council, there could have been no question but that, whatever we might think to be the true construction of the Act, this Court would have been bound to follow and apply their Lordships' definitive reasons. But no longer may appeals against the orders of this Court be entertained by Her Majesty in Council, saving only the case of a matter within s. 74 of the Constitution in which this Court has seen fit to grant the appropriate certificate. Two relevant questions arise in consequence. Do the reasons for decision which the Privy Council has already expressed continue to bind this Court; that is to say, do they form precedent which the Court is under obligation to follow? Are they, in any case, precedents which so far form part of the body of the law as to the precedents, which the Court, whilst not obliged to follow them, ought to do so as an exercise in stare decisis? It is said to be "an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws of the land - not delegated to pronounce a new law, but to maintain the old - jus dicere et non jus dare": see Broom's Legal Maxims 9th ed. (1924), p. 103. But within this body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law. Outside the area of binding precedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced of the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to that which it is accustomed to accord to the House of Lords. (at p591)

[76]

4. 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 (1951) AC 13; (1950) 51 SR (NSW) 1 and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 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 (1951) AC, at p 20; (1950) 51 SR (NSW), at p 4 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 (1951) AC 13; (1950) 51 SR (NSW) 1 and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 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. (at p601)

[77]

5. 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). (at p602)

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 (1 April 1976)

Parties

Legislation Cited (1)

Cases Cited (3)