HEALTH INSURANCE COMMISSION v JEANETTE MARGARET VAN REESCH and COMCARE AUSTRALIA

Federal Court of Australia|1996-12-20|Before: Wilcox J, John JJ, Northrop J, Nicholson JJ

e employment of Mr Whillock was a contributing factor to the aggravation of the disease. Northrop J expressed the opinion that the Commission did not err in law in finding that Mr Whillock suffered "personal injury" within the meaning of subsection 27(1) of the 1971 Act and for that purpose it was sufficient that there be a temporal connection between his employment and his death. In other words, it was an injury case, not a disease case. In Zickar, the High Court had to consider the construction and application of the Workers' Compensation Act 1987 (NSW) ("the 1987 Act"). There, Mr Zickar had collapsed at work. A cerebral aneurism had ruptured. It resulted in severe brain damage. He made some recovery but it was unlikely that he would be able to return to work. The aneurism was a congenital weakness and thus a disease. The Compensation Court of New South Wales held that an injury occurred in Mr Zickar's brain when the aneurism ruptured and that the rupture was not a disease. The Court awarded compensation without deciding whether there was any causal relationship between Mr Zickar's employment and the rupture. The temporal connection was sufficient by itself. By a majority Toohey, McHugh, Gummow and Kirby JJ, Brennan CJ, Dawson and Gaudron JJ, dissenting, held that there had been no error by the Compensation Court. In other words, the majority treated the matter as an injury case, not a disease case. In Whillock, Northrop J at 448 expressed a warning when considering authorities based upon different defined statutory provisions. A similar warning was given in Zickar by Brennan CJ, Dawson and Gaudron JJ at 158. Their Honours gave a detailed consideration to varying legislation provisions, including Commonwealth legislation. From a consideration of their Honours' reasons, it is apparent that on its proper construction the relevant provisions of the 1987 Act have the same effect as the 1971 Act. Nevertheless it is necessary to make some reference to the statutory provisions which illustrate the legal effect as being the same. Reference is made first to the 1971 Act. Section 27 provides that if personal injury arising out of or in the course of the employment of an employee is caused to the employee, the Commonwealth is liable to pay compensation. The word "injury" is defined in subsection 5(1) to mean: "... any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease." Section 29 of the 1971 Act is long and complex. It provides, in substance, that a disease is to be deemed a personal injury if, and only if, the disease or its aggravation, acceleration or recurrence was contributed to by the employment of the employee. In those circumstances the deemed personal injury results in the liability of the Commonwealth to make compensation to the employee under section 27. In each case the compensation to be paid is to be determined according to the same provisions of the 1971 Act. As a result, a disease or its aggravation, acceleration or recurrence is deemed to be an injury if and only if there is the contributing factor between the employment and the disease or its aggravation, acceleration or recurrence. There is no similar limitation with respect to an injury. It follows that if an incident or event occurs to an employee which is not the inevitable consequence of a disease from which the employee is suffering, that incident or event may be a personal injury without any reliance on the definition of disease and of section 29. By statutory construction, the same result follows from the wording of the definition of the word "injury" in the 1987 Act. There, section 4, for present purposes, reads:- "In this Act - 'injury' - (a) means personal injury arising out of or in the course of employment; (b) includes - (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and (c) ........" In Zickar, Brennan CJ, Dawson and Gaudron JJ considered this definition as expressed in earlier legislation and at 162 said:- "The Privy Council construed the 1942 definition as excluding diseases from the category of injuries covered by the opening words of the definition: Slazengers (Australia) Pty Ltd v Ivy Phyllis Eileen Burnett ([1951] AC 13). Delivering the advice of the Judicial Committee, Lord Simonds said at 20: "[I]n 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." In Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482, Dixon CJ regarded Lord Simonds' statement as containing the ratio of the decision. His Honour said at 492: "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." " This construction applies with respect to section 4 of the 1987 Act. The 1971 Act excludes "disease" from the definition of "injury" but a disease or the aggravation acceleration or recurrence of a disease is, by section 29, deemed to be an injury. Their Honours then referred to a number of other authorities concluding with Hockey v Yelland (1984) 157 CLR 124. Their conclusions appear at 166-167:- " By judicial decision, the consequence of a progressive disease had been excluded from the cover of "injury by accident" if there were no cause of the consequence other than the progress of the disease. It did not matter that the consequence was gradual or was a sudden and distinct physiological change. If there were no underlying disease, however, a sudden and distinct physiological change could amount to "injury by accident" even though there were no external cause for the change. When liability was made to depend on a definition in the terms to be found in the 1926 Act - at least from the time of the insertion of the 1929 amendment - diseases and their consequences were removed from the category of "personal injury" in the opening words of the definition of "injury" and were covered exclusively by the forerunner or equivalent of the provisions now found in sub-paras (i) and (ii) of s4(b) of the 1987 Act. The steps in the reasoning which lead to this conclusion appear in Hockey v Yelland. They are these:

Diseases and their consequences are added to the categories of "injury" covered by para (a) where the particular disease is contracted "in the course of employment and to which the employment was a contributing factor" or "where the employment was a contributing factor" to the consequence.
Diseases and their consequences are not otherwise included in the definition.
Hence a consequence solely of a progressive autogenous disease is not an "injury". There seems to be no substantial difference between the statutory definition of "injury" in s4 of the 1987 Act and the judicial interpretation of "injury by accident" arising in the course of employment. The change in the drafting of the definition of "injury" in the 1987 Act and its separation from the general definition section are said by the appellant to warrant a departure from the interpretation of "injury" attributed in the cases above cited. Nothing in the revised drafting warrants such a departure. It can be accepted that, by introducing para (b) with the word "includes", the categories of "injury" are extended beyond and do not contract the categories of "personal injury" in para (a) (See per Barwick CJ in Favelle Mort (1976) 133 CLR 580 at 588-589). But, as a matter of construction, diseases and their consequences are covered exclusively by sub-paras (i) and (ii) and their inclusion within the meaning of the term "injury" is conditioned on their possessing the characteristics therein expressed. Indeed, the insertion of "and" after para (b) of the definition and the division of the definition into paragraphs and sub-paragraphs makes it clear that the components of the definition of "injury" are to be ascertained by reference to the distinct and mutually exclusive categories contained in paras (a), (b) and (c). If the worker were to succeed in the present appeal, it could be only on the footing that a rupture of his aneurism did not fall within any of the categories of "aggravation, acceleration, exacerbation or deterioration" as those categories appear in sub-para (ii) of para (b). That construction is difficult to accept. It would mean that a gradual deterioration in a disease to which employment was not a contributing factor would not be compensable but a sudden deterioration without that contributing factor would be compensable. So adventitious an operation of the 1987 Act should be rejected. As the rupture of the appellant's aneurism falls within the concepts of "aggravation, acceleration, exacerbation or deterioration" as those categories appear in para (b)(ii) of the definition, the Court of Appeal was right to remit the matter for determination of the question whether his employment was a contributing factor to the rupture. We would dismiss the appeal."

In their reasons, Toohey, McHugh and Gummow JJ considered the same authorities. Their Honours distinguish Hussey's case. At 173 they said:- "In Darling Island Stevedoring and Lighterage Co Ltd v Hussey the Court held that the effect of the decision in Slazengers' case was that the definition of injury in the 1926 New South Wales statute did not cover a case of disease unless employment was a contributing factor. But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within para (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon para (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury. The word "disease" has been considered by this Court in a number of decisions, including Favelle Mort Ltd v Murray where Barwick CJ said ((1976) 133 CLR 580 at 587): " The word 'disease' is itself a word of some difficulty in this context, particularly in the expression 'contraction of a disease'. Properly used, disease denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous." But the word must be seen in the context in which it appears and be related to the circumstances of the case. To say that the aneurism was a disease does not answer the question whether the rupture itself can fairly be described as an injury." Their Honours referred to a number of other authorities and concluded at 174 as follows:- "In Accident Compensation Commission v McIntosh [1991] 2 VR 253 the Appeal Division of the Supreme Court of Victoria held that it was open to the Accident Compensation Tribunal to find that the sudden rupture of blood vessels and consequent cerebral haemorrhage, arising from a arteriovenous malformation was a "physical injury" under the relevant Victorian statute. Murphy J, with whom Crockett and Cummins JJ agreed, pointed out that there was general agreement that if some external agency precipitates a rupture, it is a physical injury. But, as his Honour observed (at 262): "If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture - something quite distinct from the defect, disorder or morbid condition, which enables it to occur." We respectfully agree with this observation and, in our view, nothing in Hockey v Yelland or in any other decision of this Court precludes its acceptance. We would allow the appeal, set aside the decision of the Court of Appeal and dismiss the appeal to that Court." In his reasons, Kirby J considered that Slazenger's case and Hockey's case should be reconsidered. His Honour held that they should not be followed. His Honour proposed the same orders as Toohey, McHugh and Gummow JJ. At 187 his Honour said:- "The result is that this Court should reject the reasoning adopted by the Privy Council in Slazengers. Subsequent authorities which have accepted that reasoning should be reconsidered. If leave is required, it should be given. No longer is there a dichotomy between "personal injury" in its full sense and "disease injury" within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a "disease", is whether, notwithstanding that manifestation, the case falls within the primary definition of "injury" as a "personal injury arising out of or in the course of employment". In that context, the word "injury" should not be given a narrow meaning. It should have an ample application, in no way read down because parliament, additionally, has provided a separate head of recovery for cases of work-related diseases. It is not to the point to complain that this will lead to adventitious outcomes depending upon the nature of the precise "injury". That is inherent in the definitions contained in the 1987 Act. As Powell JA pointed out in the Court of Appeal, it has been a feature of workers' compensation law virtually since the first statute was enacted." Conclusion From a consideration of the reasons for judgment in Zickar, it follows that the first matter that should have been determined by the Tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the Tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a "right S1 nerve root compression due to extended nucleus L5-S1" arising out of or in the course of her employment with the Commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and section 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury. In the same way, the conclusion of Kirby J can be applied. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a "disease", is whether, notwithstanding that manifestation, the case falls within the primary definition of "injury" as a personal injury arising out of or in the course of employment. In that context, the word should not be given a narrow meaning. It should have an ample application, in no way read down because Parliament, additionally, has provided a separate head of recovery for cases of work-related diseases. In the present case, the Tribunal concentrated on the disease aspect of the claim and the application of section 29 of the 1971 Act and in particular subsection 29(3). As a result, the Tribunal gave no proper consideration to the primary claim being made, a claim based upon personal injury irrespective of disease. The Tribunal should have considered whether the disc prolapse suffered by Mrs Van Reesch constituted personal injury arising out of or in the course of her employment. The provisions of section 29 of the 1971 Act have no relevance to that question. If the answer was in the affirmative, then section 27 imposed a liability on the Commonwealth to pay compensation to her in conformity with the 1971 Act. If the answer to the question was in the negative, the Tribunal should have considered whether the disc prolapse was a disease or the aggravation, acceleration or recurrence of a disease which came within the provisions of section 29 of the 1971 Act. This would involve the question whether the employment was a contributing factor to the contraction, aggravation, acceleration or recurrence of that disease. If the answer to that question was in the negative, the disease was not a deemed injury. If the answer was in the affirmative, the Tribunal then should have considered whether subsection 29(3) had any application. In the present case, the Tribunal concentrated on this last question long before it became an issue. As a result it was led into error. Further, in considering that question it formed and expressed strong views as to the truthfulness of Mrs Van Reesch, views which might have no relevance to the consideration of the first question. Accordingly, on the remit, the Tribunal should be constituted differently. The appeal should be dismissed with costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop. Associate: Date: 20 December 1996

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) NO. ACT.G20 OF 1996 DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HEALTH INSURANCE COMMISSION Appellant AND: JEANETTE MARGARET VAN REESCH First Respondent COMCARE AUSTRALIA Second Respondent CORAM: NORTHROP, WILCOX and R D NICHOLSON JJ PLACE: SYDNEY DATE: 20 DECEMBER 1996 REASONS FOR JUDGMENT WILCOX J: This is an appeal from a decision of a Judge of the Court (Finn J) allowing an appeal brought to the Court against a decision of the Administrative Appeals Tribunal. The case concerned a claim for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") made by Jeanette Margaret Van Reesch, the first respondent, against her former employer, Health Insurance Commission, the appellant ("the Commission"). Comcare Australia was named as second respondent to the appeal but took no part in the argument.

The factual background Ms Van Reesch was born in 1954. She married in 1982 and, shortly afterwards, bore her first child. On 9 January 1984 she commenced part-time employment with the Commission as a customer services officer at its Woden branch. Later that year, she consulted Dr Moorhead, her general practitioner, concerning lumbosacral back pain. X-rays were taken but she continued to work. On 2 December 1985 Ms Van Reesch's employment was converted into a full-time appointment. Her duties remained unchanged. About the same time she again consulted Dr Moorhead about lumbosacral back ache. He noted a narrowing of the L5/S1 aperture and referred her to a specialist orthopaedic surgeon. However, Ms Van Reesch did not follow up the referral at that stage. On 27 August 1986, Ms Van Reesch was examined by Dr Rajasingham, a Commonwealth Medical Officer, for the purpose of ascertaining her medical fitness for permanent employment in the Commonwealth Public Service and entry into the Commonwealth Superannuation Scheme. The Tribunal subsequently determined that she gave false answers to questions asked during this examination. This was the reason for its rejection of her claim for compensation. Ms Van Reesch gave evidence of intermittent back pain during mid-1986. She said in evidence that this increased dramatically in October and that, on the Monday, Tuesday and Wednesday of the week commencing 13 October, "the backaches were there the whole time". On the Thursday, "it went from a bad backache to an excruciating pain". When she finished work that day, she went straight home to bed. The next morning she "took a lot of pain killers" and went to work but she felt "poorly". During the day, she noticed the pain going down her leg and phoned her doctor to see if she could get an appointment to see the specialist. She was told she would have to wait ten days. On the following Sunday, Ms Van Reesch was visited by a locum who noted: "Back problems for last 3 months. Now pain in back and down R. Leg over last few days - mostly bad". Ms Van Reesch rested at her mother's home until the following Thursday, when she was admitted to hospital for a L5/S1 disc excision. The operation diagnosis of the treating surgeon was of a "right S1 nerve root compression due to extended nucleus L5-S1." Ms Van Reesch was off work until mid-December. She was paid compensation in respect of her time off work. This was done pursuant to a claim signed by her that identified her "injury or disease" as "back condition". Ms Van Reesch did not return to her former duties until March 1987. Shortly thereafter she fell pregnant. On 10 December 1987, Ms Van Reesch left work on maternity leave. In January 1988 her daughter was born. On 25 March 1988 she resigned her full-time position in order to revert to part-time employment. On 24 May she resigned her part-time employment, effective from 31 May 1988. On 1 December 1988, the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act") replaced the 1971 Act. The procedures prescribed by that Act applied to claims for events arising during the currency of the 1971 Act. However, by virtue of s 124, entitlements to compensation in respect of events that occurred during the currency of the 1971 Act continued to be governed by the terms of the 1971 Act. On 24 August 1992, Ms Van Reesch wrote to Comcare in these terms: "In 1986 when employed by the Health Insurance Comm [sic]. I aggravated my lower back, which required an operation. I had been advised that after some time I might recover. I resigned in 1988 due to this injury. To this day I still have back pain and I am unable to work. I am also restricted in many ways. I request that enquiries be made as to what compensation I am entitled to as fault was accepted by the Health Insurance Commission."

After obtaining a medical report, on 16 August 1993 Comcare issued a determination approving payment of compensation for medical expenses, but disallowing her claim for incapacity payments in respect of the period since her resignation in 1988. Ms Van Reesch requested a reconsideration of this determination. Further medical reports were obtained and, on 19 April 1994, a Comcare delegate made a further determination. Its essence was stated in this paragraph: "Accordingly, my decision is to vary the finding of liability in the determination of 13 October 1987 from 'aggravation of lower back pain' to 'lower back pain resulting from an aggravation of disc degeneration at the L5/S1 which culminated in a disc prolapse at the L5/S1 level' and also to vary the determination of 16 August 1993 to find that the employee is entitled to the payment of compensation for her incapacity for work since her resignation from Commonwealth employment on 31 May 1988." The Commission appealed to the Tribunal against this decision. The hearing of evidence extended over five days, at the end of which the Tribunal directed the parties to provide written submissions. On 29 March 1995 the Tribunal handed down its decision. It set aside the determination of 19 April 1994 and remitted the matter to Comcare with a direction that Ms Van Reesch was not entitled to payment of compensation under the 1988 Act. The Tribunal's reasons for decision The Tribunal commenced its reasons for decision with a summary of the facts (paras 1 to 18). It then dealt at some length (paras 19 to 37) with Ms Van Reesch's credibility, concluding with a finding that none of her evidence should be accepted unless it was otherwise corroborated. Paragraphs 38 to 55 of the reasons were entitled "Wilful and False Statement". They contained a finding that Ms Van Reesch had intentionally and knowingly returned incorrect answers to a questionnaire completed by her at the time of her examination by Dr Rajasingham. There is no doubt that the reason why the Tribunal addressed this issue was because of the terms of s 29(3) of the 1971 Act. That subsection removes the Commonwealth's liability to pay compensation in relation to a disease, or an aggravation, acceleration or recurrence of a disease: "if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease."

The term "disease" is defined by s 5 of the 1971 Act in this way:

"'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development" There are two reasons why I think there is no doubt that s 29(3) was the cause of the Tribunal considering the answers to the questionnaire. First, at the outset of its discussion of that matter, in para 39, the Tribunal quoted s 29(3) and the definition of disease in the 1971 Act. In para 40 it referred to a decision of a Full Court of this Court (Commonwealth Banking Corporation v Percival (1988) 20 FCR 176) relating to that definition. Second, there is no provision similar to s 29(3) in s 27 of the 1971 Act, the section that imposes liability on the Commonwealth in respect of an injury, as distinct from a disease. Liability in respect of an injury is not excluded by an earlier wilful and false representation. Having regard to these circumstances, it must be concluded that paras 38 to 55 were written by the Tribunal upon the basis that Ms Van Reesch's condition constituted a disease, as defined in s 5 of the Act. The Tribunal ended this part of its reasons by stating that its finding in respect of the answers to the questionnaire "is enough to dispose of this matter, however, we consider it appropriate to discuss the medical evidence as to causation, albeit briefly". It proceeded to do so in paras 56 to 79, concluding with a finding "that her (Ms Van Reesch's) work conditions did contribute to her disc prolapse and has continued to contribute to the pain she suffers in her back". In paras 80 to 83 the Tribunal dealt with Ms Van Reesch's fitness to work. It found that, notwithstanding she suffers back pain, "she is not incapacitated for work". The Tribunal obviously had in mind selected light sedentary work, because it immediately referred to evidence from two medical witnesses about her ability to undertake such work. In para 84 the Tribunal announced the decision it proposed to make. It then dealt with costs (paras 85 to 87). In the course of doing so, it summarised its conclusion in this way: "... (Ms Van Reesch) has succeeded in so far as the Tribunal recognising that the disease from which she now suffers was contributed to by her employment. Liability has been denied because of wilful and false representations made by her at the time of her medical examination for permanent employment in the Commonwealth Public Service."

The primary judge's decision On appeal by Ms Van Reesch, Finn J set aside the Tribunal's decision and ordered that the matter be remitted to the Tribunal to be heard and re-determined by a differently constituted Tribunal. The essence of his Honour's reasoning was that the Tribunal had failed directly to address what he called "the applicant's primary submission", namely that her incapacity arose out of a personal injury, rather than a disease, and so fell to be determined under s 27 of the Act, not s 29. If that were so, of course, s 29(3) would have no application to her case. As the Act contained no counterpart to s 29(3) governing cases of personal injury, Ms Van Reesch's claim would not have been open to rejection on the basis of her answers to the questionnaire. Finn J recognised that the Tribunal's decision was open to challenge only on the basis that it contained an error of law: see s 44 of the Administrative Appeals Tribunal Act 1975. But he said the Tribunal's reasons disclosed a failure to consider a material issue and referred to Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446. He said the Tribunal's failure to consider the claim of personal injury was more than a mere lack of courtesy, as the Commission had contended: "... there was here an error of law and one which has given rise to a clear miscarriage of justice: the claim principally relied upon by the applicant has not been addressed, though pressed upon the Tribunal, and she has received no explanation at all as to why it was lacking in merit. At the very least in such circumstances, justice has not been seen to be done. It is not to the point that the Tribunal may, after evaluating the evidence, have been justified in rejecting an injury-based claim in favour of a disease-based one. The Reasons do not disclose that the Tribunal even adverted to the question let alone resolved it adversely to the applicant. She was entitled to have her principal claim considered and passed upon. She has been denied this."

Finn J noted a submission by the Commission that, when properly evaluated, "the medical evidence could only support a disease regime claim". He said he had been invited to evaluate the evidence for the purpose of reaching that conclusion, but he declined to do so. He said: "The applicant was - and still remains - entitled to a proper consideration of the injury claim by the Tribunal. The matter must be remitted to it for rehearing." His Honour also considered some other arguments. I need not set them out. They were not pressed before us. As mentioned, he concluded by remitting the matter to the Tribunal for rehearing.

The arguments on appeal In argument before us, counsel for the Commission accepted that it would have been an error of law for the Tribunal to fail to deal with a contention that it should make a particular finding of fact, if the contention had been squarely put to it and the finding was open on the evidence. But they said it was never squarely put to the Tribunal that Ms Van Reesch's incapacity was caused by injury rather than disease. They argued that her claims for compensation, and the whole of her case before the Tribunal, were presented as a case of aggravation of a disease. Even so, counsel said, the Tribunal did not fail to consider this question; it expressly found that the incapacity resulted from disease, and this finding necessarily excluded the view that the incapacity resulted from an injury. Counsel emphasised the terms of the definitions of "disease" and "injury" in s 5 of the 1971 Act. They pointed out that the definition of "injury" specifically excludes a disease or the aggravation, acceleration or recurrence of a disease. Accordingly, they said, the Tribunal was correct to commence its reasoning by considering whether the incapacity resulted from "disease", as defined. If it did, there was no point in considering whether or not, in the absence of the exclusion of disease from the definition, it would also have answered the definition of "injury". Counsel added that, in any event, there was no evidence that Ms Van Reesch sustained an injury. They said it would be pointless to send the matter back to the Tribunal; the conclusion would be the same. Counsel for the respondent disputed each of these submissions. They submitted there was evidence before the Tribunal that would have entitled it to find that the cause of the incapacity was an injury, rather than disease; this was presented by Ms Van Reesch as her primary case; and it was left unaddressed. Even if the Tribunal's reasons can be read as indicating a finding of disease, rather than injury, they do not explain why the Tribunal made that finding. Conclusion I am of the opinion that the appeal should be dismissed. My reasons are essentially the same as those of the primary Judge. But in deference to the careful and comprehensive argument put to the Court by counsel for the appellant, it is necessary to say more. There are difficulties about the definitions of "disease" and "injury" in the 1971 Act. The word "injury" is defined, subject to any indication of a contrary intention, as meaning "any physical or mental injury" and including "the aggravation, acceleration or recurrence of any physical or mental injury" but, subject to s 29, as not including "a disease or the aggravation, acceleration or recurrence of a disease".

I have already quoted the definition of "disease". It is framed in extremely wide terms. The word "disease" is said to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". A broken femur is a physical ailment, disorder or defect. Read literally, the definition would compel the conclusion that a broken femur sustained by an employee falling off a ladder while working should be regarded for the purposes of the Act as a "disease" rather than an "injury". The same position would apply to the injuries suffered by an employee in a motor vehicle accident. On this approach, the concept of "injury" would be superfluous. Anything that met the opening words of the definition of "injury" - that is, "any physical or mental injury" - would also be a disease and thus excluded from the definition by its concluding words. Section 27 of the Act would be redundant. There would be no situation in which an employee sustained "personal injury arising out of or in the course of" employment by the Commonwealth, as distinct from contracting a "disease". The courts have not interpreted the definitions in this way. Before the 1971 statute was enacted, it was authoritatively established that, for the purposes of the previous (1930) Act, there was a clear distinction between injury by accident and incapacity through disease. The leading case was The Commonwealth v Hornsby (1960) 103 CLR 588, a case in which the employee had suffered a stroke while travelling to work. At 593 Dixon CJ remarked that: "... there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration." Implicit in this statement is the view that an injury may be an "injury by accident" even though entirely internal. Fullagar J made that point explicit. At 596-597 he said: "Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered 'personal injury by accident'. This statement, however, requires qualification, because the words 'injury by accident' (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. ... Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus ... It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a 'sudden physiological change'... Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled. Cases of the first and third classes are, of course, cases of disease."

Counsel for Ms Van Reesch pointed out that the Tribunal found their client sustained a disc prolapse. They contended there is evidence to suggest that this was an actual internal physical injury, so falling within Fullagar J's second class of case. Compare Kavanagh v The Commonwealth (1960) 103 CLR 547, where the High Court held that a rupture of the oesophagus was a personal injury by accident arising in the course of the deceased employee's employment. The applicability of Hornsby and Kavanagh to cases arising under the 1971 Act was considered by a Full Court of this Court in Commonwealth of Australia v Whillock (1983) 48 ALR 433. The deceased employee died from a myocardial infarction caused by an occlusion of his right coronary artery by a thrombus of recent origin. He had been suffering for some time from a disease of the arteries, in the course of which the coronary artery became thickened and internally roughened. But for that, it was improbable that the thrombus would have occurred. After stating these facts, Smithers J (with whom St John J agreed) observed at 437 that it was apparent that: "the finding of the Commissioner that the deceased died from injury will support his conclusion that the respondent was entitled to compensation if it is understood as referring to an injury which was not a disease".

He concluded that there was evidence that the thrombus and occlusion were incidents of aggravation of a pre-existing coronary artery disease and remitted the matter for reconsideration on that basis. There was a division in opinion amongst the members of the Court in Whillock whether the myocardial infarction which killed the deceased was an injury or a disease. For present purposes, that difference does not matter. What is important is that it was accepted by all members of the Court that the case had to be dealt with under s 27 if the evidence indicated that the death occurred as a result of a physical injury that was not part of a disease. The definition of "disease" was not read in such a way as to cover the field and exclude the notion of "injury" or the operation of s 27. Evatt J referred to Whillock, and other authorities, in Commonwealth of Australia v Pisani (1987) 12 ALD 299. The question there was whether the employee's claim should have been dealt with under s 27 or s 29. Evatt J referred at 303-304 to a suggested distinction "between the manifestation of an autogenous disease on the one hand and the development of an employee's depressive disease ... following an external stimulus which was clearly a work 'injury' on the other". He said this distinction, which was based on cases brought under the New South Wales and Queensland legislation, was irrelevant to matters under the 1971 Commonwealth Act. He explained: "The latter type of case, that is, the aggravation or recurrence of a disease following an external stimulus should, where Commonwealth employees' compensation legislation is involved, be considered under s 29 of the Act with the provisions of that section applying. This must be so because such a disease is expressly excluded from the definition of 'injury' in the Commonwealth legislation."

It is clear that Evatt J thought s 27 applied in cases where the incapacity stemmed from an external stimulus not constituting an aggravation or recurrence of a disease. I am not aware of any decision under the 1971 Act that is at odds with the approach taken in Whillock and Pisani. I think that approach applied to the present case. As I have indicated, there is no doubt that, in framing their reasons for decision, the members of the Tribunal worked on the basis that Ms Van Reesch's incapacity was caused by disease rather than an injury. But they did not find this as a fact or give any reasons for rejecting her claim that her disc prolapse constituted an injury. There is nothing in the reasons to indicate that the members of the Tribunal were aware of the approach taken by this Court to cases arising under the 1971 Act, as exemplified in Whillock and Pisani, or to the necessity of addressing the question posed by Smithers J in Whillock: whether the (incapacity) resulted from the disease or from a physical injury, considered as not part of a disease? Counsel for the Commission reminded us of the numerous cases in which members of this Court have cautioned against over-critical scrutiny of the reasons of bodies such as the Administrative Appeals Tribunal. Sackville J recently collected some of the cases, in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 94-95. See also the comments of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 505-506. I bear these cautions in mind. Nonetheless, the parties are entitled to be told why the case went as it did. In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 483, I suggested that the then respondent Tribunal had an obligation to "set out in short and measured, but specific, terms its findings" on the critical issues. That approach was endorsed by a Full Court in Rich Rivers Radio Pty Limited v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444 and the comment was made that it echoed - "what has been said in a number of cases concerning s 13 of the Administrative Decisions (Judicial Review) Act 1977 and provisions such as s 43 of the Administrative Appeals Tribunal Act 1975 which require that Tribunal to give reasons for its findings". In his written submission to the Tribunal, after conclusion of the evidence, counsel for Ms Van Reesch identified four principal issues which he suggested the Tribunal had to determine. The first of them was whether his client "sustained an injury within the meaning of s 27 of the (1971 Act)". He went on to put detailed reasons why this question should be determined affirmatively. Although it is appropriate to read the Tribunal's reasons in a generous, non-pedantic way, the fact remains, as submitted by counsel for the respondent, that they fail to disclose whether the members of the Tribunal considered this submission and, if so, why they rejected it. In this situation it is apparent that the matter must be remitted to the Tribunal for reconsideration unless the appellant is correct in submitting that there was no evidence upon which the Tribunal could have found the occurrence of an injury giving rise to a s 27 claim. In my opinion there was such evidence. I have in mind the evidence concerning the events of the week commencing 13 October; especially Ms Van Reesch's claim of a change in the nature of the pain on the Thursday and its extension to her leg on the Friday. The view that she sustained a prolapsed disc that week gains support from some of the medical evidence, especially that given by Dr Olsen. Of course, it is for the Tribunal to determine whether it accepts all or any of this evidence. If it does, the Tribunal will need to address the further question whether the prolapse resulted from disease or from a physical injury, considered as not part of a disease. I express no view about these issues; they are matters for the Tribunal, not the Court. I say only that I believe there is material upon which the Tribunal could base a finding of personal injury, if that is the view it takes of the situation. That being so, the appropriate course is that indicated by Finn J: the matter should be remitted to the Tribunal for further consideration. For the reasons given by his Honour, it would be preferable for the rehearing to be undertaken by a differently constituted Tribunal. Since the above reasons were written, the High Court has delivered judgment in Zickar v MGH Plastic Industries Pty Limited (1996) 140 ALR 156. By majority, the Court held that a rupture of a cerebral aneurism should be regarded as an injury rather than a disease. The actual result is in line with Northrop J's dissenting view in Whillock but the decision is of limited assistance in relation to the interpretation of the 1971 Act. It turns on the definitions of "injury" in the Workers Compensation Act 1987 (NSW). However, the decision demonstrates once again that an "injury" may take the form of an event arising out of an autogenous disease. This was pointed out by Toohey, McHugh and Gummow JJ at 173: "But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within para (a) is based on the rupture which occurred ... If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon para (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury."

As I understand her case, Ms van Reesch would contend that these words apply equally to her, with the substitution of a reference to her back condition for their Honours' reference to an aneurism, a reference to her disc prolapse for their reference to a rupture and a reference to s 29 for their reference to para (b) of the definition. As it seems to me, that contention would be well-founded if, as a matter of fact, there was a disc prolapse that constituted an injury within the meaning of that word as explained by Fullagar J in Hornsby. The appeal should be dismissed with costs. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.

Dated: 20 December 1996 APPEARANCES Counsel for the Appellant: D M J Bennett QC and P S Jones Solicitors for the Appellant: Minter Ellison Counsel for the First Respondent: J S Coombs QC and D Campbell Solicitors for the First Respondent: Scott Shiels & Glover Counsel for the Second Respondent: G C McCarthy Solicitors for the Second Respondent:Australian Government Solicitor Date of hearing: 31 October 1996

IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. ACT G20 OF 1996

B E T W E E N: HEALTH INSURANCE COMMISSION Appellant and JEANETTE MARGARET VAN REESCH First Respondent

COMCARE AUSTRALIA Second Respondent CORAM: NORTHROP, WILCOX and R D NICHOLSON JJ DATE: 20 December 1996 PLACE: SYDNEY

REASONS FOR JUDGMENT R D NICHOLSON J: I agree with the reasons of Northrop J and Wilcox J and have nothing to add. I certify that this page is a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson. Associate: Date: 20 December 1996

Counsel for the Applicant: Mr D M J Bennett QC and Mr P S Jones Solicitors for the Applicant: Minter Ellison

Counsel for the First Respondent: Mr J S Coombs QC and Mr D Campbell Solicitors for the First Respondent: Scott Sheils & Glover Counsel for the Second Respondent: Mr G L McCarthy Solicitors for the First Respondent: Australian Government Solicitor

Date of Hearing: 3 October 1996 Date of Judgment: 20 December 1996

Workers' Compensation Act 1987(NSW)

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