Hume Steel Limited v Peart [1947] HCA 34

Hume Steel Limited v Peart [1947] HCA 34 - HCA 1947 case summary — Zoe

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train is smitten with acute appendicitis, is taken to hospital and dies. In s. 6 (1) " injury" is defined as meaning personal injury "arising out of" and "in the course of" the employment and includes disease. Therefore the words appearing after " personal injury" cannot include any type of disease because disease has been confined and limited to a particular type of disease, namely, that which is contracted during the employment. Section 7 (1) (b) has no connection with employment - on the face of it it is directed to extra-employment periods - and the word " injury" is used in

that paragraph in a way which must exclude any conception of disease. As so used it should be given the meaning of any harm or detriment suffered by a worker on a journey but excluding disease or physiological change. The "harm or detriment" would be such a type as the legislature could reasonably have had in con- __ templation that a worker might sustain while travelling. A physio- logical change is not necessarily an injury (Hethe rvington v. Amal-
gamated Collieries of W.A. Ltd. (1) ). " Injury " as defined in s. 178, inserted in 1944 by the Workers' Compensation (Bush Fire Fighters) _ Act 1944, includes a disease, but it is limited to a disease which was contracted in the course of fighting a bush fire, or a journey to or from a bush fire and to which such fighting or journeying was a contributing factor. [Dixon J. Tt was said in the judgment of Isaacs and Rich JJ. in McGuire v. Union Steamship Co. of New Zealand (2) that the _ expression "injury by accident" means accidental injury. The whole of that judgment was directed to showing that the word Sy "accident " does not qualify the word " injury " to exclude disease. | In the circumstances, the definition section is clearly not applic-
able to the word " injury " (Kellaway v. Broken Hill South Ltd. (3) ). _ That section contains a statement or condition which automatically epee it, other than the opening words, from being applied to _ 8. 7 (1) (b) because it includes a disease contracted in the course of the employment and, ex hypothesi, s. 7 (1) (b) deals with cases which cannot possibly have any connection with the employment. If the definition in s. 6 (1) is used for the purpose of the word " injury " 's. 7 (1) (b) then it means there cannot be compensation for an jury under s. 7 (1) (b) unless in addition to " arising out of " or in j i If those words be

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McClemens K.C. (with him Wall), for the respondent. crucial findings by the Commission are the findings numbered and 10 respectively. The decision by the Commission depe upon the assumption of the effort of the journey and the result, and the decision of the court below should be limited those facts. It is not argued on behalf of the respondent in case that any death or injury, however happening, on a jout is necessarily compensable. Illustrations by way of suppositious cases are not to the point and are of no assistance in view of the fact that there are for consideration particular circumstances which arise from a finding of fact that on this occasion there y an internal injury due to the effort by the deceased of riding bicycle. The real basis of the decision of the court below is sho in the judgment of Davidson J. (Peart v. Hume Steel Ltd. (1). The deceased suffered " harm or detriment " while proceeding on the journey to his employment. When he commenced the jour he was in relatively good health. The effort required by journey caused certain things to happen and as a result of happenings he died. The " fire fighting " provisions inserted into the Act in 1944 are not applicable to this case. Throughout the original Workers' Compensation Act 1897 (Imp.) the phrase * perso) injury" was used. The phrase "the injury" which was used in s. 2 (1) of that Act was taken over in New South Wales by Act of 1910 in which Act the word " injury " became the quali word. Of course, it was personal injury by accident but throu out the Act was to be found the use of the word " injury," similarly in the Act of 1916 and the Act of 1926. It flows that that the legislature intended, so far as New South Wales concerned, to maintain that particular conception of " inj Injury from certain diseases was included. A worker must taken as he is found. Even if his condition be such that he likely to die and there be added to that some injury, some vation connected, however slightly, to the employment, that injury within the meaning of the Act (Fenton v. Thorley & C

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has received injury without his own default or wilful act on a daily . journey. Section 6 as amended by Act No, 13 of 1942 provides that, unless the context or subject matter otherwise indicates or requires, " injury " means " personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912-1941, applies, include a disease caused by 'a dust." This " definition " does not really define the word " injury " because _ it ineludes the word " injury " itself in the statement of the meaning assigned to the word. The effect of the definition is that the meaning of " injury" (whatever this meaning may be) is limited for the purposes of the Act to certain injuries. Only injuries which satisfy certain requirements are to be regarded as injuries for the purposes of the Act - they must be personal ; they must arise out ~ of or in the course of employment or be a disease contracted in the course of the employment to which the employment is a contri- buting factor, with a special provision as to certain workers in coal mines, This "definition" is inapplicable to s. 7 (1) (b). If "injury " in s. 7 (1) (b) were given the meaning which is ascribed to the word in s. 6, then the periodic journey provisions in s. 7 (1) (b) would apply only in cases where there was an injury within the mean- ing of s. 6, that is, where the injury arose out of or in the course of the employment &c., or was a disease of the kind mentioned in the definition. If these conditions were satisfied, then the worker would be entitled to compensation under s. 7 (1) (a) of the Act, and it would never be necessary for any worker to have recourse to s. 7 (1) (b), which would have no possible field of operation. Accordingly, the context and the subject matter of s. 7 (1) (b) exclude the application of the definition of " injury" to the word where it appears in that section.

The Workers' Compensation Act deals with injuries resulting in _ incapacity or death. Death is not treated by the Act as itself an injury, but as something which may result from an injury. I refer, for example, tos. 7 (2): " Compensation shall be payable in respect of any injury resulting in the death or serious and permanent disablement of a worker." Section 8 contains four sub-sections, each of them introduced by the words, " Where death results from the injury." In the present case, therefore, the question _ is not whether the death of the worker on his periodic journey was

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an injury, but whether he " received an injury" on his peric journey which resulted in his death. Many cases have been decided in English courts on the wo "personal injury by accident" which appear in the Workmen's Compensation Act 1925, s. 1, and corresponding earlier legislati Cases such as Fenton v. J. Thorley & Co. Ltd. (1) ; Clover, Clayton & Co. Ltd. v. Hughes (2) and many other cases have dealt with the subject of accident, and have resulted in the establishment of th proposition which I quote from Fenton v. J. Thorley & Co. Ltd. that the " expression ' accident' is used in the popular and ordinay sense of the word as denoting an unlooked-for mishap or an unto- ward event which is not expected or designed," that is, is not expected or designed by the worker: Trim Joint District Schoo Board of Management v. Kelly (4). In many cases the relation the conception of " accident " to that of disease has been discuss But the word "accident " is not found in the New South Wal legislation and these authorities are in my opinion of no assistai in determining the question which arises in the present case. The cases in which the question was whether the contraction aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employm all assume that a disease is an injury. What are described idiopathic diseases are outside the English Act (Brintons Ltd. Turvey (5) ). The plaintiff's atheromatous condition, according the findings of the Commission, was such a disease - it was a morh condition of which the cause is unknown. But these diseases excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word " accident " as defin in Fenton v. J. Thorley & Co. Ltd. (3). Thus in England it has been held that if the death of a workman is attributable solely disease, then it cannot be said to be due to accident. In sucl case there is nothing unexpected. But the exclusion of such ca: from the category of accidental injury does not show that the are to be excluded from the category of injury. There is a distinction, according to the common use of language between getting hurt and becoming sick. The former would described as an injury and the latter would generally not be described. But it requires little analysis to show that an inju may be either external or internal. It appears to me to be diffic

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Judgment (121 paragraphs)