Federal Broom Co Pty Ltd v Semlitch

The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.

The opinions that I have expressed above agree, more or less, with those expressed by Sugerman and Moffitt JJ. in the Supreme Court, and in a general way with those of Judge Wall in the Workers' Compensation Commission.

The definition of injury in the Workers' Compensation Act, 1926-1960 N.S.W. in its present form was introduced into the Act by the amending Act No. 30 of 1960, which was designed to enlarge its scope, its limitations having been then recently made apparent by the decision of this Court in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1] . Some of the difficulties that it creates were referred to in the judgment of this Court in Amalgamated Wireless (A/sia.) Ltd. v. Philpott [1] . But they do not affect this case. Here the application was put on the basis that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease. I turn therefore to the evidence as it relates to the following questions, formulated having regard to the terms used in the Act -

(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?

(c) If so, was her employment a contributing factor?

(d) If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?

1. (1959) 102 C.L.R. 482. 2. (1961) 110 C.L.R. 617.

If there was evidence which would enable these questions to be answered in the affirmative, the appeal should be dismissed. I have set them out separately for, as a lawyer must regard the statute, they arise for separate consideration. A psychiatrist would probably regard them, although logically distinct, as psychologically involved one with another.

As to the first question. I have already said that a functional mental disorder can be a disease within the meaning of the Act. What degree of abnormality of behaviour, beliefs and feelings demonstrates a morbid condition of the mind is no doubt primarily a medical question. Here the principal medical witnesses were agreed that for some years before 1960 the applicant was suffering from a mental illness. Judge Wall, having heard the witnesses, said in his judgment that he preferred the opinion of Doctor Ellard, who was called for the respondent, to that of Doctor Greenberg, called for the applicant. He said: "The applicant's medical witnesses feel that she is suffering from a neurasthenia whilst the respondent's expert is of the opinion that she suffers from a psychosis. In this regard I feel that the respondent's evidence is to be preferred because the evidence of the applicant's expert Doctor Greenberg was not illuminated by some significant prior history, particularly that relating to the applicant's admission to an institution in 1954". In these remarks his Honour seems to have been under some misapprehension. The two psychiatrists who gave evidence, Doctor Greenberg and Doctor Ellard, seem to me to have been in substantial agreement on most matters of importance, although in explaining their opinions, within the limits that the processes of examination and cross-examination allowed them, they used somewhat differing language. And Doctor Greenberg was not in fact ignorant of, nor in giving his opinion did he overlook, what he called "the acute mental illness" and "the acute psychotic illness" which had led to the applicant being an inmate of Callan Park Mental Hospital for some months in 1954. Moreover, although one of the medical witnesses called for the applicant described her as "neurotic", I have not noticed that Doctor Greenberg used the word "neurasthenia". Whether on ultimate analysis there is a valid and clear-cut scientific distinction between a person who is neurotic and one who is psychotic I do not pretend to know. I assume the difference in meaning between the two words lies principally in the patient's understanding of and attitude to his environment - the psychotic person living to a greater or lesser extent in an unreal world of fantasies, the neurotic person not being removed in his mind from the real world, but being unduly troubled in adjusting himself to it. But I can see no need for the Court to put a label upon the applicant's illness, or to be concerned because witnesses labelled it differently.

The applicant recovered from the acute phase or episode of her illness in 1954 and resumed her activities. But according to the medical evidence her illness remained with her, latent it seems, although manifesting itself in hypochondriasis and capable of being precipitated so as to exhibit itself in a more serious form.

The next question then is, was there in December 1960 "an aggravation, acceleration, exacerbation or deterioration" of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word "acceleration" probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. If the word "accelerated" stood alone, I would be inclined to agree with the view that Else-Mitchell J. took in his judgment in this case, and think that it was only to such progressive diseases that the relevant part of the definition of "injury" in the Act could apply. But the word does not stand alone; and I think, with respect, that the application of par. (b) of the definition cannot be confined as he suggested. Schizophrenia is according to the evidence progressive in that it produces delusions which may tend to become chronic. But in the present case the words "aggravation" or "exacerbation" are more apt than "acceleration" to describe the matters on which the case for the applicant depends.

The essential facts may be summarized. On 1st December 1960 the applicant apparently hurt herself in some minor way while at work - or thought that she did - and thereafter she, for no ascertainable reason, suffered pain in her right side. This pain is, without doubt, delusional. It is, however, intensely real to her. She is persuaded, irrationally but none the less really, that there is something wrong with or in her right side - that the pain or discomfort, or "soreness" or "nastiness" as she calls it, which she for no objectively discernible reason feels, is caused by some physical thing that is "wrong" inside her. At times she is persuaded that she can actually feel with her hands something in her side that is the source of her discomfort. She gave evidence at the hearing; and her pathetically irrational statements in the box revealed the delusions under which she laboured and also her withdrawal from reality and her inability to see that her fantasies were the creatures of her own disordered thoughts. She said at one point: "The pain is not so much, but there's a nastiness. The thing that does not belong to me in there is annoying". Asked "what do you say causes this pain in your side?", she said "something must be out of place". At another time she said, "It's always loose". There was much more of a like pitiable kind. As a result of these delusions she firmly believes it is impossible for her to work. And because she is persuaded that she cannot go to work, in fact she cannot. That is undisputed. She was at the time of the hearing able to do some housework; but what she could do was severely restricted by her delusions. Her state of incapacity and maladjustment was said by one of the medical witnesses to be "part of her total illness". None of the witnesses was asked directly for his opinion whether her disease had become worse or been aggravated. Doctor Greenberg, however, discounting the idea that a physical injury was the cause of her mental condition, said in a report that was tendered: "At the most it can be said that the incident at work in December 1960 aggravated a pre-existing condition". Doctor Ellard spoke of people having "acute flare-ups of schizophrenia". The "flare-up" from which she suffered in 1954 (an "acute paranoid psychosis" it was called), which had apparently been precipitated then by domestic discord, anxiety and homesickness, having subsided, what occurred in 1960 was described by Doctor Greenberg as "a new episode". Her condition thereafter he described as less acute but more chronic than, from what he was told, he considered it had been during the brief episode in 1954. It seems to me that there was in all this definite evidence of a deterioration in her mental condition after December 1960. The degree of maladjustment to her environment had become greater. "The basic illness" was, to use Doctor Ellard's words, "unchanged". She was still a schizophrenic. But her irrational beliefs were continuously disturbing her, and were incapacitating her to a much greater extent than formerly. Apparently they had become a fixed idea and were persistent. Her disordered state had seemingly become chronic. In short, judged by comparison with the attitudes and capacities of a normal person she had become more abnormal.

I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way: it was a cause of her condition only in the sense that it acted as a precipitant. That may be true: nevertheless, Doctor Ellard agreed that "something obviously happened in December to her to cause a change in her way of life".

The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.

The last question is, Did a total or partial incapacity for work result from the aggravation or deterioration of her condition? There is no doubt that, aggravation, exacerbation or deterioration having been found to have occurred, incapacity resulted.

For these reasons, and without endorsing everything that was said in the Supreme Court, I think that the appeal should be dismissed.

But there is a further matter to which I should refer. During the hearing of the appeal in this Court an alternative approach to the case was suggested. This was that on 1st July 1960 the applicant sustained a physical injury and that, using the words of s. 9 of the Act, her "incapacity for work results from the injury". It has, of course, been common in workers' compensation cases to treat as an incapacity resulting from a physical injury the total disability that follows from it whether it be attributable only to the anatomical damage or to associated psychological and neurasthenic factors. The applicant's case might therefore have been put as follows. A minor bodily injury suffered by the applicant, a person of unstable mentality, had serious psychological consequences; and thus it resulted in incapacity for work. So put, the case would not depend upon the statutory provisions concerning disease but on the general word "injury".

But the questions are questions of fact whichever way the matter be regarded. The difference lies in the emphasis of one factor rather than another among the multiple causes of an incapacity. One factor answers to one part of the statutory definition of injury, the other to another. To a psychiatrist, the physical injury naturally appears as secondary or auxiliary to the pre-existing mental state in the production of the ultimate consequence. To adopt a phrase used by Jordan C.J., it would be "the catalyst which precipitates disability in a medium of disease": Salisbury v. Australian Iron & Steel Ltd [1] . Law when concerned with fixing responsibility upon persons often seeks for the "effective cause" or the "proximate cause" of an event. But here all that the statute requires is "a contributing factor". The condition of the applicant could be regarded as the morbid psychological consequence of a small physical hurt or as an aggravation, exacerbation or deterioration of a morbid psychological state resulting from a small physical hurt. Either way was open. That taken was the one to which the evidence of the medical witnesses was, understandably and I venture to think correctly, directed.

1. (1943) 44 S.R. (N.S.W.), at p. 162; 61 W.N., at p. 91.

For the reasons given by Kitto J. I agree that the appeal should be dismissed.