Hawkins v Commonwealth

(3) That the appellant's costs of the appeal to the Special Magistrate taxed on the Local Court scale appropriate to a claim for $700 to $1,100 be paid by the respondent.

The Court delivered the following written judgment: -

The appellant took proceedings to recover compensation under the Commonwealth Employees' Compensation Act 1930-1964 Cth claiming that as from 1st February 1966 he had been partially incapacitated for work by personal injury by accident arising out of or in the course of his employment. His claim was refused by the Delegate of the Commissioner for Employees' Compensation and against this determination he appealed under s. 20 of the Act. The learned Special Magistrate who heard the appeal dismissed it and from that order of dismissal this appeal is brought.

The appellant was at all material times an employee of the Commonwealth and in November 1954 was appointed Senior Recovery Officer in the Weapons Research Establishment of the Department of Supply. In that capacity it was his duty to direct operations concerned with the search for and recovery of guided missiles fired at the Woomera Range and this involved long and frequent journeys in a Landrover over rough and rugged country. In April 1957, while recovering a missile, he hurt his back and was incapacitated for work for a few weeks. It appeared later that he had injured an intervertebral disc and it is not disputed that this was an injury by accident arising out of or in the course of his employment. He returned to work after a short period off duty but in 1962 his back and left leg began to cause him considerable pain which became progressively worse so that he was only able to carry out his duties with difficulty. By September 1963 the pain in his leg had become so great that he was unable to walk and was compelled to stop work. The trouble was diagnosed as sciatica resulting from the disc injury and on 15th October 1963 an operation was performed on his back. This showed that the disc had been ruptured and that the ruptured fragments were pressing on the root of a nerve and thus causing the pain in the leg. The ruptured fragments were removed and this relieved the pain. He returned to his work a few weeks later but apparently did not have to drive over rough country until 1964. Early in that year, however, he had to make two journeys to recover missiles and to do this he had to travel in the Landrover between the Range head and a target area some two hundred miles away, much of the distance being over "barren harsh dreadful country" which was "very rough". This led to a recurrence of the pain in his back and leg which had been relieved by the operation in October 1963. He felt that he could no longer undertake journeys of this kind and asked to be relieved of the necessity to make them. At the request of the Department of Supply he was examined by a doctor who certified that he was not physically fit to carry out the full duties of a Senior Recovery Officer. He continued, however, to make journeys to recover missiles until October 1965 when he was ordered to cease doing so and during this time he was able to do his work satisfactorily although at the cost of much pain. In that month he was informed that he would be relieved of his duties as soon as possible and appointed to a position which would not involve activities likely to strain his back and, on 1st February 1966 when a suitable person to take his place had been found, he was transferred to another position at a salary lower than that which he had been receiving as a Senior Recovery Officer in 1963 when his operation took place and lower than that paid to him between 1963 and 1st February 1966, but higher than the salary that he was receiving when he injured his back in 1957.

The case put forward on the appellant's behalf was that his incapacity to continue to work as a Senior Recovery Officer from 1st February 1966 onwards was due to a combination of factors, the original accidental injury which occurred in 1957 and left him with a defective intervertebral disc and a series of accidental injuries occurring during 1961, 1962 and 1963 caused by the constant jolts and stresses on his back involved in driving long distances over rough country. Alternatively it was said that if the appellant had not suffered further injuries during those years nevertheless his work during that period had aggravated the pre-existing condition of his back and ultimately caused incapacity and that in considering whether he was entitled to compensation it was to his salary in 1963 that regard should be had and not to his salary as it was when his back was injured in 1957. But for some reason which we do not understand little or no attention seems to have been paid to the fact that after the operation in 1963 which had relieved the pain in his back and leg and enabled him to take up his duties again, he had between early in 1964 and October 1965 continued to travel over rough country in the Landrover for the purpose of locating and recovering missiles and during those journeys was subjected to the physical stresses and strains which they involved.

Before dealing, however, with the Magistrate's reasons for refusing to award compensation it is convenient to refer to the relevant provisions of the Act. Section 9 provides that if personal injury by accident arising out of or in the course of his employment is caused to an employee, the Commonwealth shall be liable to pay compensation in accordance with the First Schedule to the Act and by cl. (1) (c) (i) of the Schedule, the amount of compensation shall be "where the employee is partially incapacitated for work by the injury - a weekly payment during his incapacity - (i) of the amount (if any) by which the weekly amount that he is earning after the injury is less than his weekly pay at the date of the injury ". Under s. 4, unless the contrary intention appears, "injury" includes "the aggravation, acceleration or recurrence of a pre-existing injury".

The learned Magistrate thought that it was "impossible to find that in 1963 the appellant suffered a fresh injury in the primary sense of that word". He went on to find that the "exacerbation of the appellant's sciatica which took place in 1963 was an aggravation of the earlier injury", that is to say the injury in 1957, and that this aggravation, "although not due to one definite and specific incident, was due to a series of accidents, namely the jolts, jars, bumps and lurches that the appellant experienced on each of the numerous occasions during the years 1961, 1962, 1963, upon which he went out with the Landrover on missile recovery jobs". He thought, however, that the argument put by counsel for the Commonwealth that "if the 1963 aggravation and incapacity were due to some accident or series of accidents which took place after the 1957 accident then the 1963 operation cured the aggravation of the 1957 injury and that the appellant's remaining incapacity is due to the 1957 accident, in short that after the operation the aggravation disappeared" was soundly based. In the result he found that the appellant was not entitled to "an award of weekly compensation on the basis of partial incapacity, for any partial incapacity which exists is not caused by, or contributed to, by that aggravation".

The case is concerned, however, with the appellant's incapacity to work as a Senior Recovery Officer from February 1966 onwards and even if it was the fact that the operation in 1963 had "cured" whatever aggravation of the 1957 injury had been caused by the appellant's work up to the date of that operation, it is necessary to have regard to the fact that between the date of the appellant's return to work after that operation and February 1966 when he ceased to do the work of Senior Recovery Officer a further "series of accidents" had occurred in the course of his missile recovery missions similar to those which had occurred before the operation was performed in 1963. If, as the Magistrate thought - and in our opinion rightly thought - the jolts and bumps to which the appellant was exposed during his journeys in the Landrover could fairly be described as a series of accidents, precisely the same description should be given to the series of similar happenings which occurred between 1963 and February 1966 and it seems to us to be reasonably plain that it was the cumulative effect of the accidental injuries thus occasioned after 1963 operating on a pre-existing defective disc that resulted in the appellant becoming incapacitated in February 1966 from earning his salary as a Senior Recovery Officer. We think the medical evidence points to the fact that, as a result of these occurrences, he sustained injury by accident in the "popular and ordinary sense" of the phrase, to use the words of Lord Macnaghten and of Lord Shand in Fenton v. Thorley & Co. Ltd. [1] . "Each journey", it was said by one of the medical witnesses, "would make his back a little bit worse than it was before the journey started", or, as another doctor put it, "You would say it" - that is the journeys and the resulting stresses and strains on his back - "wore out his back a little more each time the same as it wore out the tyres on his car a little more after each trip". And it is immaterial that the ultimate partial incapacity was caused or at least contributed to by the cumulative effect of a series of accidental injuries and not by one specific and definite accident: Burrell v. Selvage [2] ; Fitzsimons v. Ford Motor Co. Ltd. [3] . In these circumstances, it seems to us to be wrong to say that, for the purposes of cl. (1) (c) (i) of the Schedule, it is to the date when the disc was ruptured in 1957 that one must look to find what was the salary that he was being paid at the date of the injury. The injury to which the clause refers is the incapacitating injury and in the present case the appellant's partial incapacity for work from February 1966 onwards resulted from a series of accidental injuries between 1963 and February 1966 causing further damage to an already damaged disc. It is possible that what on its true construction the Schedule requires is a comparison between the amount that the employee was earning at the time when his injuries produced partial incapacity - because it is not until then that the injury becomes an incapacitating one - and the amount that he is earning or able to earn after he has become partially incapacitated but in the present case it is unnecessary to decide whether this is so or not because the appellant's salary between 1963 and 1966 was at all times higher than that which he earned or was able to earn from 1st February 1966 onwards.

1. [1903] A.C. 443, at pp. 448, 451. 2. (1921) 90 L.J. (K.B.) 1340. 3. [1946] 1 All E.R. 429.

In our opinion the appellant is entitled to succeed and in that event the parties are agreed that the weekly payment of compensation which should be awarded as from 1st February 1966 is $10.53.

We would allow the appeal with costs, set aside the order of the Special Magistrate and in lieu thereof order (1) that the appeal from the Delegate of the Commissioner for Employees' Compensation be allowed and his determination set aside and (2) that an award for the payment of compensation at the rate of $10.53 per week as from 1st February 1966 be made in favour of the appellant. The appellant's costs of the appeal to the Special Magistrate taxed on the Local Court scale appropriate to a claim for $700 to $1,100 should be paid by the respondent.