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[1984] HCA 72
High Court of Australia
1984-11-22
Original judgment source is linked above.
HOCKEY v. YELLAND [1984] HCA 72; (1984) 157 CLR 124
Gibbs C.J.(1), Mason(2), Wilson(3), Brennan(4) and Dawson(5) JJ.
Workers' Compensation (Q.) - Injury - Statutory definition including disease contracted in course of employment to which employment a contributing factor - Autogenous disease manifested in course of employment - Subarachnoid haemorrhage - Whether injury within statutory definition - Workers' Compensation Act 1916 (Q.), s. 3(1)"Injury".
Certiorari - Error of law on face of record - What constitutes record - Determinations of medical boards "final and conclusive" - Whether review by certiorari for error of law on face of record excluded - Workers' Compensation Act 1916 (Q.),s. 14c.
GIBBS C.J. On 12 May 1982 the appellant, a labourer, submitted an application for workers' compensation under the Workers' Compensation Act 1916 (Q.), as amended ("the Act"). In his application form he described the nature of the injury as "strain to neck" and that the injury occurred on 6 April 1982. He described the manner in which the injury occurred as follows:
flight of stairs & I slipped because of the feeling
cerebral haemorrhage and on 23 February 1983 the General Manager of the Workers' Compensation Board of Queensland referred the appellant's claim to the Neurology Board pursuant to s.14C(4) of the Act. The reference bore the number 3/81-106479/2, and was in the following terms:
The abovenamed, aged 55 years, claimed
compensation on 12th May, 1982 in respect of a
condition certified as 'Cerebral haemorhage i.e.
subarachnoid haemorhage' (sic) which he attributed
to an incident sustained on 6th April, 1982 whilst
employed as a Labourer by Costain Australia Ltd.
Photostat copies of Medical Certificates
Forms 5 dated 14th April, 1982 and 7th December,
1982 and the Claimant's Application for
Compensation Form 4 dated 12th May, 1982 are
attached.
The claim has not been accepted up to the
present date.
The claim is now referred to the Board in
accordance with Sub-Section 14C(4) to determine in
terms of Sub-Section 14C(6):
A (1) Whether or not the matters alleged by the
Claimant constitute an injury within the
meaning of the Act, and, if so;
(3) The extent of the incapacity for work in
the employment in which the Claimant
alleges he was engaged at the time of the
injury; and
(4) Whether the incapacity is permanent or
temporary."
The medical certificates mentioned in the reference, both given by Dr G.S. Merry, certified respectively that the appellant "is suffering from Cerebral Haemorrhage - i.e. Subarachnoid Haemorrhage which he states is caused by carrying bricks & a bucket of cement 6.4.82 at 11.30 am", and that the appellant "is suffering from ruptured cerebral aneurysm which he states is caused by lifting & carrying at work 6.4.82". Each certificate states that "the signs and symptoms were consistent with the stated cause" and that the appellant would be totally incapacitated for work for a stated period. The Board sat on 17 March 1983 to hear the reference. The appellant was represented by counsel and the Board received documentary material and questioned the appellant and, it appears, physically examined him. On the same day the Board issued a document in the following form (omitting formal parts):
Name: Charles Henry HOCKEY
No.: 3/81-106479/2
Claim presented by Mr Mathews, Barrister,
instructed by Jack Woodward
& Partners.
The Medical Board after hearing evidence and
examining the claimant determines that the claim be
as under.
It is the determination of the Board that the
matters alleged by the Claimant do not constitute
an injury within the meaning of the Act."
2. The appellant obtained from the Supreme Court of Queensland an order nisi for a writ of certiorari directed to the three members of the Neurology Board (the present respondents) for the purpose of quashing the Board's determination or so much of it as purports to decide that the haemorrhage sustained by the appellant was not an injury within the meaning of the Act. The Full Court of the Supreme Court discharged the order nisi and this appeal is brought from that decision.
3. By s.9(1) of the Act a worker who has received an injury arising out of or in the course of his employment is, subject to the Act, entitled to compensation. Injury is defined, in s.3(1), as follows:
"'Injury' means (without in any wise limiting the
operation and scope of section nine of this
Act) personal injury arising out of or in the
course of employment, and includes -
(a) a disease which is contracted in the
course of the employment, whether at or
away from the place of employment, to
which the employment was a contributing
factor; and
(b) the aggravation or acceleration of any
disease where the employment was a
contributing factor to such aggravation
or acceleration,
but does not include those diseases as
specified in section 14B of this Act;
Loss of hearing caused by the condition
known as industrial deafness shall be deemed
to be personal injury for the purposes of this
definition".
4. Under the Act claims for compensation are allowed or rejected in the first instance by the Workers' Compensation Board, but that Board, or a claimant dissatisfied with the ruling of the Board, may "require the matter to be heard and determined by an industrial magistrate": s.13(1). There is a right of appeal from the magistrate to the Full Bench of the Industrial Court, and "unless the Court orders that additional evidence shall be taken, the appeal, which shall be by way of rehearing, shall be heard and determined upon the evidence and proceedings before the industrial magistrate concerned": s.13(2).
5. However, ss.14A, 14B and 14C introduce exceptions to the procedure provided by s.13. They provide for the determination of some, but not all, of the questions arising under a claim by specialised boards comprised entirely of medical practitioners. Section 14C, when first inserted in the Act in 1960, provided for the constitution of a medical board in respect of cardiac disease. Its scope has now been expanded to provide for the constitution of a general medical board and six specialised medical boards, including a neurology board. By sub-s.(4) the General Manager (of the Workers' Compensation Board) may refer to the appropriate medical board any claim for compensation under the Act in respect of any alleged injury. The functions of the medical board under such a reference are stated in sub-s.(6) which is in the following terms:
"Upon a reference under subsection (4) of this
section, the Medical Board concerned shall
determine whether or not the matters alleged by the
claimant constitute an injury under and within the
meaning of this Act and, if so, the nature thereof
and the extent of the incapacity for work in the
employment in which the claimant alleges he was
engaged at the time of the injury, and whether such
incapacity is permanent or temporary.
Where the General Manager has admitted that
the matters alleged by the claimant constitute an
injury under and within the meaning of this Act and
the nature thereof the Medical Board concerned
shall determine the extent of the incapacity
occasioned by the injury and whether such
incapacity is permanent or temporary and, where the
worker has suffered any permanent partial
disability as a result of the injury, the nature
and extent of that disability."
Subsection (9) provides, in effect, that the medical board shall have no power to determine whether the person in respect of whom the claim was made was or was not a worker at any material time. By sub-s.(10), the claimant is entitled to appear before and be heard by the medical board and to be represented by counsel, solicitor or agent, and the medical board is empowered to make or arrange for the making of a personal medical examination of the claimant. By sub-s.(13), regulations may be made for the taking by the board of evidence on oath. Subsection (11), so far as material, provides as follows:
"The determination by the Medical Board
concerned -
(a) upon a reference under subsection (4) of
this section, as to whether or not the
matters alleged by the claimant
constitute an injury under and within the
meaning of this Act and, if so, the
nature thereof and the extent of the
incapacity for work in the employment in
which the claimant alleges he or the
person in respect of whom the claim has
been made was engaged at the time of the
injury, and whether such incapacity is
permanent or temporary;
shall be final and conclusive, and the claimant or
person in respect of whom the claim has been made
or, as the case may be, the worker in question
shall have no right to have any of those matters
heard and determined by an Industrial Magistrate,
or, by way of appeal or otherwise, by any Court or
judicial tribunal whatsoever."
"Save as prescribed by subsection (11) of this
section, this section applies so as not to limit in
relation to a claim for compensation or the matter
of the fitness for work referred to a Medical Board
under this section the jurisdiction of an
Industrial Magistrate or, in respect of the
decision of an Industrial Magistrate, the right of
appeal had by either party under section thirteen
of this Act."
6. It was correctly conceded that the provisions of s.14C(11) do not oust the jurisdiction of the Supreme Court to issue writs of certiorari. It is a well recognized principle that the subject's right of recourse to the courts is not to be taken away except by clear words. If the subsection had provided that the determination should not be "quashed or called in question" it would have been effective to oust certiorari for errors of law not going to jurisdiction (S.E. Asia Firebricks v. Non-Metallic Products (1981) AC 363; Houssein v. Department of Industrial Relations and Technology [1982] HCA 2; (1982) 56 ALJR 217), but although that formula is by no means unfamiliar to the Queensland legislature, it is not used in s.14C(11). The provision that the board's determination shall be final and conclusive is not enough to exclude certiorari. It has been held in Reg. v. Medical Appeal Tribunal. Ex parte Gilmore (1957) 1 QB 574, and in S.E. Asia Firebricks v. Non-Metallic Products, at pp 369-370, that a provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words "and conclusive" does not have that effect. The words of the further provision that the worker shall have no right to have any of the matters which have been determined by the medical board "heard and determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or judicial tribunal whatsoever" are in my opinion quite inapt to take away from the Court its power to issue certiorari for error of law on the face of the record. The words "heard and determined" echo the words of s.13, and although sub-s.(11) excludes any other hearing or determination of the matters the subject of the board's determination, it does not affect the power of the court to decide whether that determination was reached in accordance with law.
7. Certiorari was therefore available to correct an error of law on the face of the record. Some aspects of the law as to what constitutes the record for this purpose remain open to debate, but in this case I have no doubt that the determination, the reference and the documents attached to the reference (the medical certificates and the application) constitute the record. A reference initiates, and is necessarily the basis of, a determination under s.14C, and the coincidence of the numbers on the two documents identifies the reference of 23 February 1983 as that on which the determination is based. The determination is meaningless unless it is known what were the matters alleged by the appellant, and that appears from the reference. The documents which were not merely specifically referred to in, but also were attached to, the reference, form part of it. These conclusions derive support from Reg. v. Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15, at pp 27-28; Glenvill Homes Pty. Ltd. v. Builders Licensing Board (1981) 2 NSWLR 608, at p 610, and Reg. v. Patents Appeal Tribunal. Ex parte Swift & Co. (1962) 2 QB 647, at pp 653-654. However, I do not accept that the fact that the determination states that the Neurology Board made its determination "after hearing evidence and examining the claimant", and the reference in the determination to "the matters alleged by the Claimant", incorporated into the record all the material which was before the Neurology Board or so much of it as revealed the nature of the appellant's allegations. Assuming that an adjudication incorporates every document referred to in it (see Reg. v. Medical Appeal Tribunal. Ex parte Gilmore, at p 582) a precise reference to a specific document is required to bring about its incorporation.
8. Counsel for the appellant, in support of the submission that the record discloses an error of law, advanced the following propositions: first, that the Neurology Board was bound to accept, and did accept, the correctness of the allegations made by the appellant, and then proceeded to determine whether the matters alleged by the appellant constitute an injury within the meaning of the Act, and secondly, that the determination of the Neurology Board that the matters alleged do not constitute an injury within the meaning of the Act was erroneous in law. In other words, it was said, the Neurology Board accepted that the appellant was carrying bricks and cement or mortar up a flight of stairs in the course of his employment as a labourer when he slipped, and that it was found that he had suffered a subarachnoid haemorrhage, and made its determination on that basis.
9. It is convenient to assume, for the moment, that the first of those submissions is correct, and that the Neurology Board therefore did not determine that the appellant's allegations should be rejected as untrue but, accepting them as correct, nevertheless concluded that the matters alleged do not constitute an injury within the meaning of the Act. It was submitted that such a conclusion was wrong, because the subarachnoid haemorrhage was an injury, and it is unnecessary, under the Act in its present form, that there need be any causal connexion between the employment and the injury.
10. The definition of "injury" in s.3(1) of the Act comprises three categories - (1) personal injury arising out of or in the course of employment within the opening words of the definition, where the word "injury" is used in its ordinary or unextended sense; (2) a disease within par.(a) of the definition; (3) the aggravation or acceleration of a disease within par.(b). The opening words of the definition do not require that an injury in the first category should be causally related to the employment. The meaning of the expression "arising out of or in the course of employment" is well understood. The words "out of" express causality, and require that the injury had its origin in the employment, but the words "in the course of" require that the injury must occur "whilst the worker is doing something which is part of his service to his employer or master or incidental to the employment, or, in other words, whether the workman was at the time of the injury about his own business or that of his master": South Maitland Railways Pty. Ltd. v. James [1943] HCA 5; (1943) 67 CLR 496, at p 502. That case was decided when the phrase was conjunctive and required two conditions to be fulfilled, but the meaning of the words has not altered now that in more liberal legislation the expression is disjunctive: see Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547, especially at pp 556-557, 558-559, 576; The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353, at pp 359, 362, 366; Weston v. Great Boulder Gold Mines Ltd. [1964] HCA 59; (1964) 112 CLR 30; and Bill Williams Pty. Ltd. v. Williams [1972] HCA 23; (1972) 126 CLR 146, at pp 154-155 and 158. Something that is an injury within the ordinary meaning of that expression will therefore come within the definition although it was not causally related to the employment. However an injury will not answer the description of the words in par.(a) or par.(b) of the definition unless the employment was a contributing factor.
11. In the present case, clearly the subarachnoid haemorrhage occurred in the course of the appellant's employment. The question then arises whether the haemorrhage was necessarily an injury in the unextended sense of the definition. The importance of this question lies in the fact that the Neurology Board may have taken the view that the subarachnoid haemorrhage was autogenous and that stress or exertion was not a contributing factor in causing it. So to decide would not be an error of law on the face of the record.
12. In many cases decided under workers' compensation legislation in both England and Australia, a wide meaning was given to the expression "injury", or "injury by accident" as it more usually appeared in the earlier legislation. The expression was held to include physiological harm, such as the tearing of a muscle or the destruction of a blood vessel, and the contraction of some disease, although under the legislation in the earlier form it was necessary to show that the physiological harm or the contraction of the disease arose out of and in the course of the employment. The cases in which this broad meaning was first given to "injury" were decided under legislation which made no specific provision for diseases, or provided specifically only for a special class of disease: see Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482, at p 497, per Fullagar J. In Hume Steel Ltd. v. Peart [1947] HCA 34; (1947) 75 CLR 242, at pp 252-253, Latham C.J., after saying that an injury may be either external or internal, continued:
"It appears to me to be difficult to draw any
satisfactory distinction between the breaking of a
limb and the breaking of an artery or of the lining
of an artery. One is as much an injury to the
body, that is, something which involves a harmful
effect on the body, as the other. Each is a
disturbance of the normal physiological state which
may produce physical incapacity and suffering or
death. Accordingly, in my opinion the detachment
of a piece of the lining of the artery in the
present case should be held to be an injury."
As a statement of the effect of the word "injury" where it appears in workers' compensation legislation and is not specifically defined, those remarks are no doubt correct. Where, however, the legislation defines the expression, its meaning must depend on the words of the definition. Because the definitions were different, cases like James Patrick & Co. Proprietary Ld. v. Sharpe (1955) AC 1 and Kavanagh v. The Commonwealth, which were decided under the Workers' Compensation Act 1928 (Vict.), as amended, and the Commonwealth Employees' Compensation Act 1930 (Cth), as amended, respectively, are of no relevance to this aspect of the case. Hume Steel Ltd. v. Peart was decided under the Workers' Compensation Act 1926 (N.S.W.), as amended, ("the N.S.W. Act"), and the definition of "injury" which appears in s.6(1) of that Act is in all material respects the same as that in s.3(1) of the Queensland Act, although at the time when Hume Steel Ltd. v. Peart was decided, par.(b) did not appear in the definition. In that case a worker died while on a journey from his place of employment to his place of abode as a result of a coronary occlusion to the occurrence of which effort on the journey was found to have contributed. The provision which governed the right to compensation where a worker received injury on such a journey was s.7(1)(b) of the N.S.W. Act, which has no exact counterpart in the present Queensland Act. It was held that the coronary occlusion was an injury within s.7(1)(b). Three members of the Court (Latham C.J., Dixon and McTiernan JJ.) held that the definition of "injury" was not applicable to the word where it appeared in s.7(1)(b). Starke J. said (at p.255) that it was unnecessary to decide whether there must be a causal connexion or association between the injury and the journey, because there was in fact clearly such a connexion or association. Latham C.J., on the other hand, considered that it was immaterial that effort on the journey had produced the coronary occlusion: see at p.253.
13. In Slazengers (Australia) Pty. Ld. v. Burnett (1951) AC 13 the Judicial Committee in effect overruled Hume Steel Ltd. v. Peart. It was held that the definition of "injury" did apply to that word where it was used in s.7(1)(b) of the N.S.W. Act. The worker in that case, while on a journey from his place of abode to his place of employment, had suffered a coronary occlusion to the occurrence of which effort had played no part. It was held that he was not "injured" within the definition. Viscount Simonds said, at p.20:
"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."
If this statement, which forms part of the reason for the decision, is applied to the definition in s.3(1) of the Act, it means that a disease is only included in the definition if it comes within the words of par.(a) or par.(b).
14. Viscount Simonds' interpretation of the definition was not novel. The same interpretation had been given to the definition by Jordan C.J. in Kellaway v. Broken Hill South Ltd. (1944) 44 SR(NSW) 210. And it appears to have been assumed, in Hume Steel Ltd. v. Peart, that this view of Jordan C.J. was correct, for otherwise it would have been immaterial whether or not the definition applied to s.7(1)(b): see Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey, at p 502.
15. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey this Court followed the decision of the Judicial Committee in Slazengers (Australia) Pty. Ld. v. Burnett. A worker had suffered a coronary occlusion just after he had arrived at a pick-up centre from his home for the purpose of seeking employment; he had been suffering from a progressive heart disease and the journey was not a contributing factor to the coronary occlusion. It was held that his widow was not entitled to compensation. At that time par.(b) did not appear in the definition of "injury", and all the members of the Court agreed that a disease would come within the definition only if it was contracted in the course of employment and the employment was a contributing factor to it; for the purposes of s.7(1)(b) of the N.S.W. Act, however, "employment" had to be given an expanded meaning to include "journey". The Court further held that the coronary occlusion was a disease, since that expression covers "what would ordinarily be regarded as a pathological condition continuing to operate according to its pathological nature" (see at p.496), as distinct from a "sudden or identifiable physiological change which could properly be described as a personal injury not being a disease" (see at p.508); it rejected the notion also that a worker contracts a disease when a disease progresses to a new disabling stage (see at pp.496, 505-506, 509 and 518). There was some difference of opinion on the question whether a worker, already debilitated by disease, and with a condition predisposed to sudden physiological change, may receive an injury when such a change results from his employment (cf. pp.505 and 515) but that question is now answered by par.(b) of the definition.
16. The effect of the definition was again considered in Favelle Mort Ltd. v. Murray [1976] HCA 13; (1976) 133 CLR 580. In that case the whole Court held that a worker who had contracted meningo-encephalitis in the course of his employment had contracted a disease to which his employment was a contributing factor, and so had suffered an "injury" within par.(a) of the definition. However there was a difference of opinion as to the interpretation of the definition. Stephen and Mason JJ. followed Slazengers (Australia) Pty. Ld. v. Burnett and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey, and held that the contraction of an infectious disease could only be an "injury" if it came within par.(a) of the definition. Jacobs J. pointed out, at p 600, that Slazengers (Australia) Pty. Ld. v. Burnett and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey dealt only with a disease of autogenous origin and said that the reasoning in those cases is capable of being applied only to a disease which does not arise from an injury. He concluded that the invasion of the body by a foreign organism, such as a virus, was itself an injury within the introductory words of the definition although also a disease within par.(a): see at p.602. Barwick C.J. also took the view that an external excitement initiating a morbid condition of the body would be an injury in the ordinary sense, although an autogenous disease would not (see at pp.587-589) and thought that the judgments in Slazengers (Australia) Pty. Ld. v. Burnett and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey were erroneous, since they treated all diseases, whether autogenous or externally caused, as excluded from the introductory words of the definition. However, because of the doubt then existing as to whether decisions of the Judicial Committee should be regarded as binding precedents, he did not give effect to that view. The fifth member of the Court, McTiernan J., appears to have taken a view similar to that expressed by Jacobs J.
17. I respectfully agree with the opinion of Stephen and Mason JJ. that Slazengers (Australia) Pty. Ld. v. Burnett and Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey establish that the definition of injury in s.6(1) of the N.S.W. Act, which is indistinguishable for present purposes from that in s.3(1) of the Queensland Act, includes a disease only if it falls within par.(a) or par.(b), and so only if employment was a contributing factor. I see no reason to doubt the correctness of the construction placed upon the definition in those cases, but even if, contrary to my present view, a disease which is not autogenous, but is caused or exacerbated by an external stimulus, can come within the description of injury simpliciter and so within the opening words of the definition, it is clear that an autogenous disease which happens to manifest itself in the course of employment is only an "injury" if it comes within par.(a) or par.(b).
18. Counsel for the appellant in the present case placed particular reliance on Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson [1967] HCA 10; (1967) 117 CLR 19. In that case, a worker had, unknown to himself, been suffering from an infection which had partially destroyed some of his spinal structures. Whilst lifting a heavy package at work, he felt an acute pain in his back. The pain was caused by the collapse of infected vertebrae and the collapse was caused by the physical effort involved in the work. The infection was such that, unless detected and treated, it would have eventually caused the collapse of the vertebrae. It was held that the worker had suffered a personal injury within the introductory words of the definition: the collapse of the vertebrae was itself an injury. Indeed the Court regarded this as almost too clear for argument; the point in the case was whether the words "in the course of employment" imported an element of causation. This decision is not inconsistent with the other authorities to which I have referred. On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition: if the incapacity is to be compensable it must fall within par.(a) or par.(b). On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment.
19. Ogden Industries Pty. Ltd. v. Lucas [1967] HCA 30; (1967) 116 CLR 537 (affirmed [1968] UKPCHCA 1; 118 CLR 32), a decision of this Court on the Workers' Compensation Act 1958 (Vict.) (which is materially different from the earlier legislation considered in James Patrick & Co. Proprietary Ltd. v. Sharpe), and Tonkin v. Federation Insurance Ltd. (1981) 27 SASR 153, a decision on the South Australian legislation, are completely consistent with this view. The definitions there considered, although not identical with that now in question, were substantially similar to it.
20. It follows from what I have said that if the Neurology Board decided that the subarachnoid haemorrhage was merely "the culmination or climax of a progressive disease, itself unrelated to employment", to use the words of Windeyer J. in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey, at p 518, or that the haemorrhage was otherwise autogenous, and that the work which the appellant was doing played no part in causing it, it was quite right to determine that it was not an "injury" within the meaning of the Act. If they took that view, the haemorrhage was not an injury within the opening words of the definition, and was not within par.(a) or par.(b) because the employment was not a contributing factor. There is nothing on the record to show that they did not take such a view.
21. It is not necessary to decide exactly what is meant by the words "the matters alleged by the claimant" in s.14C(11) of the Act, because whether the Neurology Board was required to find the facts for itself, or whether it was required to accept the allegations of the claimant as true, there was no error of law on the face of the record. At first sight it might seem nonsensical that the Neurology Board should be required to make a determination as to the effect of the claimant's allegations, whether it regards them as true or not. However, upon consideration, it appears to me that there are good reasons why the subsection should be literally construed. In 1960, when s.14C was inserted in the Act, there was doubt and controversy as to the entitlement to compensation of victims of cardiac seizures. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey, decided in 1959, Fullagar J. said, at pp 499-500:
"In the somewhat special case of coronary
occlusions a very unsatisfactory position is
reached if liability is made to depend on findings
of this nature. It has become almost matter of
common knowledge that a fatal coronary occlusion is
generally a development or final result of a
progressive condition of arterial sclerosis or
atheroma. But there is a still unresolved conflict
of opinion in the medical profession as to whether
effort or exertion on the part of the patient
plays, or can play, any causative part in the
actual creation of the occlusion. And the tribunal
of fact is exceptionally ill-equipped to resolve a
conflict on such a general question."
The intention of the legislature in enacting s.14C, which then applied only to Cardiac Boards, may well have been to allow a specialised medical tribunal to resolve conflicts of this kind, not on evidence but from its own professional knowledge. Thus if it were alleged by a claimant that the worker had suffered a coronary occlusion while bicycling to work, or running for a tram, or walking up stairs, or carrying a load, the Cardiac Board, accepting the allegations of fact as true, would determine what causative part, if any, the effort or exertion had played in the creation of the occlusion. If it decided that the coronary attack was an "injury", it was called on to determine the nature of the injury and the extent of the incapacity for work: questions also within the special capacity of medical boards to decide. If there proved to be a dispute as to whether in fact the worker had been doing what it is alleged he had been doing at the time the cardiac attack occurred, that remained as a question of fact to be decided by the Workers' Compensation Board under s.13. The same position now exists in relation to the other medical boards under s.14C. Subsection (12) of s.14C tends to support this construction, whereas sub-s.(9) perhaps tends against it, but the whole section is very inartistically drafted. As I have said, however, this is not a decisive question in the present case, because if the Neurology Board accepted the truth of the allegation that the subarachnoid haemorrhage occurred while the appellant was walking upstairs carrying bricks and mortar, or when he slipped, it was not bound to find that the exertion or the fall in any way caused or contributed to the occurrence of the haemorrhage. It may have found that the haemorrhage was autogenous and that the employment was not a contributing factor to it; if so it was not an injury within s.3(1) of the Act. On any view of the effect of s.14C(11), there was no error of law on the face of the record.
22. In my opinion certiorari was rightly refused and the appeal should be dismissed.
MASON J. Assuming, without deciding, that s.14C(11) of the Workers' Compensation Act 1916 (Q.), as amended, does not deprive the Supreme Court of jurisdiction to issue certiorari for error of law on the face of the record, for the reasons given by Gibbs C.J. I consider that there was no error of law on the face of the record here and that certiorari was rightly refused by the Full Court of the Supreme Court.
WILSON J. This is an appeal from the unanimous refusal of the Full Court of the Supreme Court of Queensland to make absolute a writ of certiorari directed to the respondents in their capacity as members of a specialist Neurology Board ("the Board") constituted in accordance with the provisions of s. 14C of the Workers' Compensation Act 1916 (Q.), as amended ("the Act"). The appellant was the prosecutor. He had made a claim for workers' compensation in respect of personal injury allegedly suffered by him at his place of employment on 6 April 1982. At that time he was employed as a labourer on a building site. The claim was not accepted by the Workers' Compensation Board of Queensland. On 23 February 1983 the General Manager of the Workers' Compensation Board, acting pursuant to the provisions of s. 14C(4) of the Act, referred the claim to the Board. The reference stated that Mr. Hockey,
"aged 55 years, claimed compensation on 12th May
1982 in respect of a condition certified as
'Cerebral haemorhage (sic) i.e. subarachnoid
haemorhage' (sic) which he attributed to an
incident sustained on 6 April, 1982 whilst employed
as a Labourer by Costain Australia Ltd."
There was annexed to the reference photostat copies of two Form 5 medical certificates dated 14 April 1982 and 7 December 1982 respectively, together with the claimant's application for compensation. The Board was asked to determine the matters prescribed in s. 14C(6).
2. The Board held a hearing into the reference on 17 March 1983. The appellant was represented by counsel, who tendered in evidence a number of additional medical reports and supplementary information concerning the history of the case. The appellant was questioned by the Chairman of the Board and then submitted to a personal medical examination by the Board. The Board determined that "the matters alleged by the Claimant do not constitute an injury within the meaning of the Act".
3. Thereafter the appellant secured the issue of an order nisi calling on the respondents to show cause why a writ of certiorari should not issue for the purpose of quashing the determination of the Board on the ground, inter alia, that a haemorrhage is an injury within the meaning of the Act and the haemorrhage sustained by the prosecutor was sustained in the course of his employment and in finding otherwise the Board made an error of law apparent on the face of the record.
4. Before turning to a consideration of the issues raised on the appeal, it is convenient to set out the relevant provisions of the Act. Section 3(1) contains a definition of "Injury" which, so far as material, reads as follows:
"'Injury' means ... personal injury arising out of
or in the course of employment, and includes -
(a) a disease which is contracted in the
course of the employment, whether at
or away from the place of
employment, to which the employment
was a contributing factor; and
(b) the aggravation or acceleration of
any disease where the employment was
a contributing factor to such
aggravation or acceleration, ..."
Section 14C provides for the constitution of a General Medical Board and six Specialty Medical Boards, one of which is described as a Neurology Board. The following subsections of s. 14C are material:
"(4) The General Manager may refer to the
appropriate Medical Board any claim for
compensation under this Act in respect of any
alleged injury.
(6) Upon a reference under subsection (4) of this
section, the Medical Board concerned shall
determine whether or not the matters alleged
by the claimant constitute an injury under and
within the meaning of this Act and, if so, the
nature thereof and the extent of the
incapacity for work in the employment in which
the claimant alleges he was engaged at the
time of the injury, and whether such
incapacity is permanent or temporary.
Where the General Manager has admitted
that the matters alleged by the claimant
constitute an injury under and within the
meaning of this Act and the nature thereof the
Medical Board concerned shall determine the
extent of the incapacity occasioned by the
injury and whether such incapacity is
permanent or temporary and, where the worker
has suffered any permanent partial disability
as a result of the injury, the nature and
extent of that disability.
(10) The claimant or worker in receipt of
compensation shall be entitled to appear
before and be heard by the Medical Board
concerned and to be represented by counsel,
solicitor or agent."
5. Subsection (10) further provides for a personal medical examination of a claimant by or on behalf of a Medical Board. Subsection (11) provides that a determination by a Medical Board upon a reference under sub-s. (4)
"shall be final and conclusive, and the claimant
... shall have no right to have any of those
matters heard and determined by an Industrial
Magistrate, or, by way of appeal or otherwise, by
any Court or judicial tribunal whatsoever."
It should also be mentioned that sub-s. (9) expressly denies the power of a Medical Board to determine whether or not a claimant is or was a worker at any material time.
6. In the course of argument on the appeal the question was raised as to whether sub-s. (11) of s. 14C had the effect of ousting judicial review of a determination of a Board by way of a writ of certiorari for error of law on the face of the record. Counsel for the respondents declined, both in the Full Court and before this Court, to argue that the subsection had that effect. The question goes to the jurisdiction both of the Full Court and of this Court and since jurisdiction cannot be acquired by consent it is necessary to examine the point briefly. In Houssein v. Department of Industrial Relations & Technology [1982] HCA 2; (1982) 56 ALJR 217 this Court had occasion to consider the effect of s. 84(1)(a) of the Industrial Arbitration Act 1940-1977 (N.S.W.), which provided that decisions of the Industrial Commission shall be final and "no award and no order, ... shall ... be liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatever". The Court held that the words I have quoted deprived the Supreme Court of New South Wales of jurisdiction to make an order in the nature of certiorari quashing a decision of the Commission for error of law on the face of the record. A similar view was taken by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union (1981) AC 363, at p 370 of a provision that a decision was not to be "quashed or called in question in any court of law". However, I agree with counsel for the respondents that the provisions of s. 14C(11) do not go as far as the two cases I have mentioned. Judicial review will only be excluded if a clear legislative intent to that effect is shown. The words of critical importance in the subsection are the words "heard and determined". These words are not ambiguous. They can refer only to a proceeding the purpose of which is to substitute another determination for that of the Board. The phrase "by way of appeal or otherwise" is to be construed, consistently with the words "heard and determined", as referring to a proceeding which is an appeal or in the nature of an appeal. A similar effect is to be given to the statement that a determination "shall be final and conclusive": Regina v. Medical Appeal Tribunal. Ex parte Gilmore (1957) 1 QB 574. In my opinion, therefore, the subsection is directed to securing the finality of a determination on the merits of a claim and is not apt to deny the supervisory jurisdiction of the Supreme Court by way of the prerogative writ.
7. However, the exercise of that supervisory jurisdiction by way of a writ of certiorari to quash the decision of a tribunal because in the exercise of its jurisdiction it has made an error of law is strictly limited. The appellant accepts that in order to succeed he must show that the error of law is apparent on the face of the record of the proceedings: R v. Nat Bell Liquors Ltd. (1922) 2 AC 128. The next step is to determine what constitutes the record. There is no fixed rule which requires the same answer to be given in every case. It is for the court undertaking the review to determine what constitutes the record in the particular case but this is not in any way to countenance a roving commission through the materials in a case in an attempt to discover an error of law. The procedure is not to be assimilated to a right of appeal for errors of law. Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication. It will not include the evidence or any reasons that may be given for the decision unless the determination itself incorporates them by reference. See, generally, R v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 KB 338, at pp 351-352; Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663.
8. In my opinion, the members of the Full Court were correct in confining the record to the letter from the General Manager to the Board making the reference, the documents accompanying that letter and the determination of the Board. Counsel for the appellant submitted that the record should also include all the medical reports tendered by the claimant and the notes of his oral examination by the Board. The basis of the submission was the Board's use of the expression "the matters alleged" in its determination. The use of that expression, so it is said, reflected an intention to incorporate all that material in the determination. I am unable to construe the determination in that way. The expression merely repeats the way in which both the General Manager's reference and s. 14C(6) of the Act stated the issue which the Board was required to determine. In any event, even if the concept of the record was expanded to embrace this additional material it does not advance the appellant's case. The material merely repeats or confirms the information which may be gleaned from the documents accompanying the reference. It does not enable the conclusion to be drawn from the face of the record that there was no evidence in opposition to the claim.
9. The difficulty confronting the appellant is to find an error of law on the part of the Board and to do so without taking the Court beyond the record into all the circumstances of the case. No reasons for the determination were given and even if they were they would not form part of the record unless incorporated into the determination. Consistently with the legislative intent reflected in s. 14C(11), which is designed to preclude any review of the merits by way of appeal or otherwise, a Board is not required to give reasons for its decision. There is no general rule of common law that reasons must be given for administrative (or indeed judicial) decisions: see, for example, Reg. v. Gaming Board; Ex parte Benaim (1970) 2 QB 417. This is not a case where, supposing the Court has the power to require the Board to supplement the record by including a statement of its reasons, it should exercise it. To do so would conflict with the legislative intent to which I have referred.
10. It is argued for the appellant that the determination itself exposes an error of law because it declares that "the matters alleged" by the claimant do not constitute an injury within the meaning of the Act. The argument proceeds on the premise that, whether or not it is obliged to do so, the Board has accepted as fact the alleged circumstances that attended the occurrence of "the injury" as they appear in the claim and medical reports the subject of the reference. Those circumstances were that whilst carrying some bricks and mortar up a flight of stairs in the course of his employment he had a sudden feeling in his neck which was later diagnosed as due to a ruptured cerebral aneurism resulting in a subarachnoid haemorrhage. The appellant's submission is that if those matters are accepted as true then it must follow as a matter of law that the employer is liable to pay compensation. This is because the rupture of an aneurism which occurs during the time when the worker is at work is said to constitute "personal injury arising ... in the course of employment" within the meaning of those words in the definition of "Injury" in s. 3 of the Act. Counsel for the appellant relies upon the authority of three decisions of this Court to make good his proposition. In Hume Steel Ltd. v. Peart [1947] HCA 34; (1947) 75 CLR 242, at pp 252-253, Latham C.J. found it difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery. He continued, at p. 253, to say:
"One is as much an injury to the body, that is,
something which involves a harmful effect on the
body, as the other. Each is a disturbance of the
normal physiological state which may produce
physical incapacity and suffering or death.
Accordingly, in my opinion the detachment of a
piece of the lining of the artery in the present
case should be held to be an injury."
The question in the case was whether a worker who, whilst pedalling a bicycle uphill on a journey between his place of abode and place of employment, suffered a coronary occlusion due to a small piece of the lining of the artery having loosened and blocked the artery had received "injury" so as to be entitled to compensation under s. 7(1)(b) of The Workers' Compensation Act 1926 (N.S.W.) as amended ("the N.S.W. Act"). The Court unanimously answered the question in the affirmative. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson [1967] HCA 10; (1967) 117 CLR 19, a wharf labourer whilst lifting a heavy bale of paper at work suffered the collapse of one or two of the vertebrae in his back in consequence of which he later became paralysed. It appeared that unknown to the worker his back had become weakened by reason of a spinal infection. All five members of the Court expressed the view that the infection was irrelevant and that the worker had suffered personal injury due to the strain of lifting a heavy weight. Each of these decisions calls for comment but it is convenient first to mention the third decision on which counsel relies. It is Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 which undoubtedly establishes that a mere temporal connexion with the employment at the time when personal injury is suffered is sufficient to satisfy the requirement as to "the course of the employment". So much may be accepted. But the firstmentioned cases cannot assist the appellant. The case of Hume Steel Ltd. v. Peart must now be read in the light of the decision of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13, a case which was also concerned with the concept of "injury" in s. 7(1)(b) of the N.S.W. Act. Their Lordships found it necessary to construe that concept by reference to the definition of "injury" in s. 6(1) of the Act. That definition was in the same terms as the provision with which we are now concerned save that it did not include par. (b). Their Lordships decided that since the definition in par. (a) dealt specifically with disease the ordinary rules of construction required the exclusion of disease from the general concept of personal injury. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482 a majority of the Court applied Slazengers' Case in holding that a worker who collapsed and died from a coronary occlusion just after he had arrived at a pick-up centre for the purpose of seeking employment was not entitled to compensation for the reason that the progressive heart disease from which he had suffered was not contracted in the course of the employment or journey nor was it one to which the employment or journey were a contributing factor. Both of these cases, like Hume Steel Ltd. v. Peart, were cases of autogenous or idiopathic disease. Hankinson, on the other hand, was a case which is readily distinguished from the present as the Court was inclined, notwithstanding that in the earlier proceedings it had been treated as a case of disease which was aggravated by the employment, to regard it as a case of personal injury to which any question of disease was irrelevant.
11. There may remain a question as to whether Slazengers' Case should be confined to cases of autogenous diseases or applied to all diseases, however induced; different opinions on that question were expressed in Favelle Mort Ltd. v. Murray [1976] HCA 13; (1976) 133 CLR 580. But here we are concerned with an autogenous disease and therefore it follows, on the authority of Slazengers' Case and Hussey, that for the appellant to succeed he had to persuade the Board that he had suffered a disease which satisfied either par. (a) or par. (b) of the definition of "injury". The question has only to be stated in that way for it to spell the fate of this appeal. It was clearly open to the Board, assessing the appellant's medical condition and having regard to the circumstances of the occurrence as alleged by him, to conclude that the employment did not contribute to any aggravation or acceleration of the cardiac disease from which he suffered. Indeed, I think it was accepted by counsel for the appellant that if his primary proposition, based on the opening words of the definition of "injury" and the view expressed by Latham C.J. in Hume Steel Ltd. v. Peart, was rejected then his appeal must fail.
12. To this point in my consideration of the matter I have accepted the appellant's submission that having regard to the reference in the determination to "the matters alleged" the Board must be taken to have accepted the matters of fact advanced by way of claim. There may be a question as to whether the Act intends a Specialty Medical Board to resolve disputed questions of fact touching the alleged suffering of an injury or whether it is to take the circumstances as alleged by the claimant and proceed simply to test them against his medical condition as established by it. It is unnecessary to answer that question for the purposes of this case but I may say that as at present advised I see no reason why a Specialty Medical Board should not be required to determine all the questions that are in dispute. It was said in the course of argument that a Board has no power to summon witnesses or to examine persons on oath but the contrary would seem to have been in the contemplation of the legislature because s. 14C(13) empowers the Governor in Council to make regulations, inter alia, "for ensuring attendances before such Boards of persons thereunto required by the General Manager or the claimant or worker concerned" and "the taking by such Boards of evidence on oath". Furthermore, s. 14C(11) makes it clear that if a reference is made to a Board under s.14C(4) then, subject to s. 14C(9), all matters covered by the reference must be finally determined by the Board.
13. There is nothing in the record to show that the Board did accept as true the matters alleged by the claimant. We do not know what evidence was placed before the Board and we are not entitled to know. We do know that when referred to the Board the claim had not been accepted by the Workers' Compensation Board. In those circumstances, the Board was required to determine whether or not the matters alleged by the claimant constituted an injury within the meaning of the Act. The first step in that process must be for the Board to satisfy itself as to the acceptability of the matters alleged because in substance it is required to determine whether the claimant suffered "injury" as defined in the Act. The matters alleged include not only the circumstances surrounding the event but also a description of the harm suffered. The Board must be expected to verify by personal examination if necessary that some harm was suffered before it could determine that the matters alleged constituted an injury. Furthermore, it must examine the circumstances of its occurrence in order to determine whether the injury satisfied the definition in the Act. It may be inferred from the fact that the claim was not accepted by the Workers' Compensation Board that some uncertainty surrounded either the facts of the occurrence or the medical consequences or both. It may seem strange that a Specialty Medical Board should be given the task of resolving a conflict of fact as to the happening of an event. Ordinarily, one might expect that the adjudication of a claim based on contested fact not involving medical expertise would be made the responsibility of an Industrial Magistrate pursuant to the procedure provided by s. 13 of the Act. However, the procedures contemplated by s. 13 and s. 14C respectively appear to be mutually exclusive. In the case of an injury such as that allegedly suffered by the appellant the consequential matters required to be determined in accordance with s. 14C(6) are clearly such as could most conveniently be determined by a Specialty Board. Medical skill and judgment play a large part in resolving questions such as the nature of the injury and the degree and permanency of incapacity. In such circumstances, it is not inappropriate to require the Board to determine the likelihood of the injury occurring in the manner described by the claimant.
BRENNAN J. I agree with the reasons of the Chief Justice for dismissing the appeal.
DAWSON J. For the reasons given by the Chief Justice and Wilson J., I agree that s.14C(11) of the Workers' Compensation Act 1916 (Q.), in providing that the determination of the Neurology Board shall be final and conclusive and give rise to no right of appeal, does not exclude the remedies available by way of a writ of certiorari. I also agree, for the reasons given by them, that there is no error on the face of the record of the proceedings before the Board, which comprises the reference to it, the documents attached to the reference and its determination. The conclusion that "the matters alleged by the Claimant do not constitute an injury within the meaning of the Act" was consistent with the Board's having found, as it was entitled to do, that the subarachnoid haemorrhage suffered by the appellant was an autogenous disease which manifested itself during the course of the appellant's employment, but because it was not a disease to the aggravation or acceleration of which the employment was a contributing factor, its manifestation was not an injury within the meaning of s.3(1) of the Act. The appellant was, for that reason, not entitled to the relief which he sought.
# Hockey
Yelland \[1984\] HCA 72;
(1984) 157 CLR 124
(1982) 56 ALJR 217
(1980) 147 CLR 15
(1981) 2 NSWLR 608
(1943) 67 CLR 496
(1960) 103 CLR 547
(1962) 107 CLR 353
(1964) 112 CLR 30
(1972) 126 CLR 146
(1959) 102 CLR 482
(1947) 75 CLR 242
(1976) 133 CLR 580
(1967) 117 CLR 19
(1967) 116 CLR 537
(1981) 27 SASR 153