Johnston v Commonwealth

The forensic history may be summarised in this way. The Commissioner rejected the claim. Mrs. Johnston then requested, pursuant to s. 76 of the Act, that the matter be referred to a Compensation Tribunal for reconsideration. In this proceeding she succeeded and the Tribunal made a determination in her favour. That determination was final except so far as an appeal, on a question of law only, might be made to the Federal Court of Australia (ss. 94, 95). The Commonwealth instituted such an appeal, which came on for hearing before Davies J. That appeal was dismissed and the order of the Tribunal was affirmed. That decision was the subject of a further appeal by the Commonwealth, pursuant to the Federal Court of Australia Act 1976 Cth as amended, to the Full Court of the Federal Court. By majority (Brennan and Keely JJ., Evatt J. dissenting) the Full Court allowed the appeal, and restored the determination of the Commissioner dismissing the claim [6] . Mrs. Johnston then applied to this Court for special leave to appeal and leave was granted. So begins the final round.

As we have indicated, the primary findings of fact made by the Tribunal are final, so long as there is any evidence to support them. It is by reference to those findings that the present questions must be answered. They are of the utmost importance and may be stated shortly as follows:

Andrew sought medical treatment at Vung Tau in 1970 for pain in his bowel region, which he was told was due to haemorrhoids.

The pain of which he complained in 1970 was due not to haemorrhoids but to a developing cancerous condition.

The cancerous condition could have been detected at Vung Tau in 1970 had a proper examination then been made.

He complained of pain in the bowel region continuously from 1970 to 1974, during which period he followed the advice given to him at Vung Tau.

If the cancerous condition had been detected in 1970 then on the probabilities it would have responded to treatment as a result of which his life would have been prolonged.

In 1970 servicemen were expected, though not obliged, to obtain their medical treatment from service doctors. Naval regulations imposed a duty upon them to seek medical treatment when the need arose.

We have included the fifth point as a finding, although it was stated by the Tribunal as a matter which was not in issue. The reference to a prolonged life draws its significance from the provisions of s. 31(3), which reads as follows: The death of an employee shall be taken for the purposes of this Act to have been contributed to by a disease or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be, the death of the employee would have occurred at a significantly later time. It was not suggested before us that the evidence fell short of establishing that proper treatment would have postponed Andrew's death for a significant period; indeed, the evidence of one medical witness was to the effect that he could have had a normal life expectancy.

The success of Mrs. Johston's appeal depends upon whether the Tribunal was entitled, having regard to the evidence, to determine that "the employment of the deceased by the Commonwealth contributed to the aggravation of his cancerous condition and the death of the deceased resulted therefrom". It is convenient to isolate the three aspects of that determination upon which submissions were made on the hearing of the appeal to this Court. First, was there "an aggravation of a disease" within the meaning of the Act? Secondly, if there was such an aggravation, did the employment by the Commonwealth contribute to it? Finally, is Mrs. Johnston correct in claiming that the case comes within the operation of the Act, which commenced on 1 September 1971, or does it fall to be determined under the provisions, which are somewhat more strict, of the preceding Act, the Commonwealth Employees' Compensation Act 1930 Cth, as amended?

We shall discuss the first two of these aspects on the basis that the Act does apply to the case. They both depend for their resolution on s. 29 of the Act. Its application depends upon sub-s. (1). The section is to apply where an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease, and any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to its aggravation, acceleration or recurrence, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of the employment. There is no suggestion here that the employment contributed to the contraction of the disease. Mrs. Johnston claims that it contributed to the aggravation of the disease. If she succeeds in establishing so much, then sub-s. (2) provides in substance that if death results from the aggravation of the disease then that aggravation shall be deemed to be personal injury to the employee arising out of the employment, and provision is made for ascertaining the deemed date of the injury. No problem requiring consideration arises from sub-s. (2).

The issue between the parties on this question emerges quite clearly. Mr. Castan, counsel for Mrs. Johnston, argues that the word includes a worsening of the disease through neglect. He cites as an example the keeper of a lighthouse who suffers an attack of appendicitis during a storm which prevents his treatment, and says that the consequent deterioration in his condition could accurately be described as an aggravation of it. He relies on a number of English decisions, delivered shortly after the second World War, on claims arising out of injuries suffered as a result of war service. These claims were made under the Royal Warrant (Statutory Instruments 1964 Pt III, s. 2, p. 5257). InLee v. Minister of Pensions [No. 2] [7] , Denning J. (as he then was) discusses the question of the aggravation of cancer through war service. His Lordship says [1] :

This case raises directly for consideration the question of aggravation of cancer by delay in diagnosis or treatment. Cancer has been proved to be not attributable to or aggravated by war service except in special circumstances. This question of delay is a special circumstance. His Lordship then describes as an example of aggravation by delay [2] , Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service. there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service. A similar approach was taken in other cases, both by Denning J. and by Ormerod J.: see the cases referred to by Evatt J. in his dissenting judgment in the Federal Court [3] . 1. (1948) 3 War Pensions Appeals R. 1901. 2. (1948) 3 War Pensions Appeals R., at p. 1913. 3. (1948) 3 War Pensions Appeals R., at p. 1914. 4. (1980) 43 F.L.R., at pp. 355-356; 31 A.L.R., at p. 455.

On the other hand, Mr. Burchett, counsel for the Commonwealth, argues that there must be some external stimulus which exacerbated the disease before it can be said that there has been an aggravation of it. There is no aggravation in the case of an autogenous disease which simply takes its natural course. He relies on the views expressed by Brennan and Keely JJ. in the Federal Court, and claims the support of dicta of individual Justices in earlier decisions of this Court. In Ogden Industries Pty. Ltd. v. Lucas [4] Windeyer J., when considering whether an oedema suffered by the worker could be described, within the meaning of the Workers Compensation Act 1958 Vict. as amended, as the aggravation or acceleration of a pre-existing disease, said:

It seems to me that it cannot be said that it was. "Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. "Acceleration" I have previously said and venture to repeat "probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli": Federal Broom Co. Pty. Ltd. v. Semlitch [5] . To this view I adhere. On the facts as stated, it may I think be accepted that the deceased worker's employment before 1st July 1965 hastened the progress of his heart disease. But I do not think that the facts as stated can support a finding that the oedema which occurred on 7th July was the consequence of an acceleration then occurring and to which the employment was then a contributing factor. The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury. In the present case the disease was running its course when the worker entered hospital. There is nothing, I think, to show that after 1st July any incident of his employment - assuming the employment to be then still subsisting - further accelerated his disease so as to bring his death nearer. It is unnecessary to detail the other cases to which Mr. Burchett referred because, apart from Semlitch the relevant passage of which is repeated in the judgment of Windeyer J. which we have set out, we do not think they have any relevance to the present case. There is some force in the comment of his Honour in Lucas that "aggravation" signifies "making worse" rather than "becoming worse", a comment reflected in the remarks of Brennan J. in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb "aggravate" than when it is applied to the noun "aggravation", especially when it is used in a passive sense in the expression "suffers an aggravation". "Aggravation" may mean "An increasing in gravity or seriousness" as well as "being increased, in gravity or seriousness". Indeed, the Shorter Oxford English Dictionary gives the two meanings in the order in which we have stated them. Furthermore, the facts in Lucas did not call forth the distinction. The oedema occurred some time after the worker's admission to hospital. It was a distinct episode having no connection with the employment, its occurrence being unrelated either to external stimuli or to neglect in treatment. 1. (1967) 116 C.L.R. 537, at p. 593. 2. (1964) 110 C.L.R. 626, at pp. 639, 640.

The Commonwealth's case on the aspect of aggravation is seen at its strongest in the statement by Brennan J. [6] that " it is common ground that the death of the deceased was caused by the cancer, an autogenous disease, taking its natural and fatal course, unimpeded by timely treatment. There was no external stimulus which exacerbated the disease or which accelerated its progress to its fatal conclusion." As one would expect, the accuracy of this statement is impeccable, and at first sight it leads naturally to a conclusion that there could have been no aggravation of the disease. But, with respect, that conclusion depends on the way in which the initial premise is expressed. The concept of aggravation implies a worsening and therefore predicates a starting-point with which the end result is to be compared. The starting-point which the Commonwealth seizes upon in the passage we have cited from the judgment of Brennan J. is "the cancer, an autogenous disease, taking its natural and fatal course". Given that premise, there was no worsening, in the sense of aggravation, in Andrew's case. However, we have difficulty in accepting the initial premise in the form stated. The evidence is that if the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down, if not entirely stopping, the "natural and fatal course" of the disease. The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease "taking its natural and fatal course, unimpeded by timely treatment", but a disease capable of effective medical management. If that be chosen as the starting-point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken. We accept the reasoning of Denning J. and Ormerod J. in the post-war English cases as relevant and persuasive in the present case and more in tune with s. 29 of the Act.

1. (1980) 43 F.L.R., at p. 366; 31 A.L.R., at p. 463.

The object of the statute is to provide for the payment of compensation to employees who suffer injury or disease occurring in circumstances connected with their employment by the Commonwealth. Section 29 makes specific provision for the payment of compensation in cases of incapacity in which an employee contracts a disease or "suffers an aggravation, acceleration or recurrence of a disease", when employment by the Commonwealth is a contributing factor, by deeming the contraction of the disease or the aggravation, acceleration or recurrence to be a personal injury to the employee arising out of his employment by the Commonwealth. In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease. It would scarce conform to the broad policy underlying the statutory provisions to confer an entitlement to compensation in the first case but not in the second.

We therefore prefer the approach of Davies J. and Evatt J. to that of the majority in the Full Court, and conclude that Andrew Johnston suffered an aggravation of the disease of cancer due to the lack of treatment during the period from 1970 to 1974.

2. Did the employment contribute to the aggravation?

Mr. Burchett argues for a negative answer to this question. He points to evidence that the hospital at Vung Tau was a good hospital, with excellent medical facilities. In failing to diagnose the presence of a cancerous condition the doctor merely made a mistake. It was a mistake that could have been made had Andrew sought advice in San Francisco or Sydney or anywhere else. The fact that it was Vietnam under war conditions was immaterial. In our opinion, it would not matter whether the wrong diagnosis which led to the aggravation of the disease was made in Sydney or San Francisco. The significant facts are that at all material times Andrew was serving in the Navy, he was subject to regulations which imposed a duty upon him to keep himself fit, medical facilities were provided within the armed services to keep servicemen fit and healthy, and in the ordinary course of events servicemen were expected to use those facilities rather than to seek medical attention outside the service. It was entirely appropriate that Andrew, suffering from pain in the bowel region while in Vietnam, should present himself to the hospital at Vung Tau for treatment. He was told that he was suffering from haemorrhoids and given medical supplies with which to alleviate the discomfort. Mr. Burchett sought to weaken the link between the employment and his condition by relying on the fact that he did not seek any further advice until 1974. However, the evidence is that the condition from which he was told he was suffering was not uncommon in the Navy. The fact that Andrew persevered with the advice he was given in 1970, until giving thought to having an operation in 1974, does not rob the initial erroneous diagnosis in 1970 of any contribution which it may be found to have made to the worsening of his condition.

We are unable to accept the Commonwealth's submission. Whatever might have been the course of events if Andrew had remained a civilian, it seems plain to us, on the basis of the findings of the Tribunal, that the course taken by the disease between 1970 and 1974 was a direct consequence of the failure in 1970 to diagnose its presence and thereafter to provide appropriate treatment. That failure occurred in the course of his employment and in our opinion was related directly to it. No further conclusion is necessary to establish that the employment was a contributing factor to the aggravation of the disease.

Although, as urged by Mr. Burchett, we have considered the questions of aggravation and contribution separately, it may well be that the proper application of the Act calls for the postulation of a composite question: Did the employee suffer an aggravation of the disease to which the employment contributed? Given the findings of the Tribunal that the employee's resort to the medical services supplied by the employer led to a failure to detect and treat a cancerous condition at a time when it would have responded to treatment, an affirmative answer must in our opinion be given to that question. Such an answer in the circumstances is wholly congruent with the policy and purposes of the Act.

The conclusion to which we have come on the aspects of aggravation and contribution may not enable Mrs. Johnston's claim to succeed unless the 1971 Act applies to it. This Act replaced the Commonwealth Employees' Compensation Act, which adopted a different criterion for compensation for death resulting from an aggravation of a disease. Under that Act the relevant question was whether the aggravation was contributed to by the nature of the employment (s. 10(1)): see The Commonwealth v. Bourne [7] ; The Commonwealth v. Thompson [8] ; The Commonwealth v. Rutledge [9] . With respect, we agree with the comment of Brennan J. [10] in this case that

It may be that under the 1930 Act, a claimant, relying on circumstances similar to those found in the present case, would have had to prove nothing less than that the deceased's employment in the Navy was of such a nature that there was a particular tendency on the part of naval doctors negligently to fail to detect and treat autogenous diseases from which their patients might be suffering. On the other hand, the present Act directs attention to the actual employment of an employee by the Commonwealth rather than to the general nature of the employment. 1. (1960) 104 C.L.R. 32. 2. (1960) 104 C.L.R. 48. 3. (1964) 111 C.L.R. 1. 4. (1980) 43 F.L.R., at p. 368; 31 A.L.R., at p. 465.

As we have indicated, the 1971 Act, so far as is relevant, commenced to operate on 1 September 1971. Section 104 is a transitional provision. It reads as follows:

(1) Subject to this Part, this Act other than section 120 applies in relation to an injury sustained, a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee before the proclaimed date as it applies in relation to an injury sustained, a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee on or after that date.

(2) The last preceding sub-section does not entitle a person to receive compensation under this Act in respect of an injury sustained before the proclaimed date, or in respect of a disease, or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent before that date, if compensation was not payable in respect of that injury, that disease or that aggravation, acceleration or recurrence, as the case may be -

(b) in any other case - under the Commonwealth Employees' Compensation Act 1930, or that Act as amended, as in force at the time when the injury was sustained or symptoms of the disease, or of the aggravation, acceleration of recurrence, first became apparent.

It will be seen that the Act does not entitle a person to receive compensation under the Act in respect of an aggravation of a disease the symptoms of which first became apparent before the proclaimed date (that is 1 September 1971) unless compensation was payable under the preceding Act. The Tribunal took the view that the relevant symptoms became apparent when diagnosed in August 1974. Evatt J. took the same view. Davies J. took a different view, holding that the symptoms of the disease itself were apparent in 1970 when Andrew sought treatment, even though they were not then recognized for what they were. However, he proceeded to observe that they were the symptoms of the disease, whereas the relevant consideration for the purposes of s. 104 was the date at which the aggravation of the disease became apparent. As to this, he was satisfied that the symptoms were not apparent until after the proclaimed date. It seems to us that there is much to be said for the view taken by the Tribunal and Evatt J. that in the context of a remedial Act such as the one under consideration, symptoms do not become apparent until they are recognized for what they really are, namely, as symptoms evidencing the presence of the disease or the aggravation as the case may be. However, it is unnecessary to decide the point because, even on the alternative view, we agree with Davies J. that the probabilities are that the symptoms evidencing the aggravation of the disease did not become apparent until after the proclaimed date. There was no finding by the Tribunal that would support a conclusion that there were symptoms discernible prior to 1 September 1971 to show that the disease was getting worse. Although Mrs. Johnston in her evidence spoke of Andrew complaining in early January 1971 of bleeding from the rectum, that evidence clearly did not convince the Tribunal. Whether or not Mrs. Johnston's evidence was overlooked, it is much too late in the day for such a question to be agitated now.

In any event, in considering the time at which the symptoms of an aggravation first became apparent, it must be remembered that the aggravation in this case did not occur once and for all at a particular point of time. The aggravation consisted of a steady worsening of the disease over a period of four years. The symptoms which were apparent at any particular time in that period could reasonably be said to be the first appearance of symptoms of the worsened state of the disease.

In our opinion, therefore, the claim rightly falls to be determined under the present Act.

We would allow the appeal, and restore the decision of Davies J.

I agree with the conclusions of the Chief Justice and Mason and Wilson JJ., and generally with their reasons, but adhere to what I said in Connair Pty Ltd v. Frederiksen [11] . The respondent urged the adoption of a hair-splitting, over-technical interpretation of the Compensation (Commonwealth Government Employees) Act 1971 which ill accords with the remedial nature of this legislation, and should be rejected. The dissent by Evatt J. and the primary judgment of Davies J., in the Federal Court of Australia, were correct.

The appeal should be allowed and Davies J.'s decision restored.