Johnston v Commonwealth

[1982] HCA 54

High Court of Australia|1982-07-01|Before: Wilson JJ, Davies J, Keely JJ, Evatt J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1982-07-01

Before

Wilson JJ, Davies J, Keely JJ, Evatt J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

High Court of Australia Gibbs C.J. Mason, Murphy and Wilson JJ. Johnston v Commonwealth [1982] HCA 54

[2]

ORDER Appeal allowed with costs. Judgment of the Full Court of the Federal Court of Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

[3]

Andrew Johnston enlisted in the Royal Australian Navy in 1968. He was then 17 years old. In 1970 he was serving in H.M.A.S. Jeparit when that vessel spent some time in Vietnamese waters. Whilst there he reported to the Military Hospital at Vung Tau complaining of pain in the region of the bowel. He was told he was suffering from haemorrhoids, and was supplied with cream and suppositories. Thereafter he continued until 1974 to suffer pain and discomfort, with some bleeding from the rectum in the later stages. Apparently he did not seek further medical advice in the intervening years, but continued to draw cream and suppositories from naval stores in the belief, apparently, that his only problem was haemorrhoids. In August 1974 in Melbourne he was examined by doctors who found him to be suffering from cancer of the bowel. The disease by that time had such a hold on him that nothing could be done and he died in January 1975, at the age of 23 years. Andrew's mother, having been partially dependent on him, sought compensation from the Commonwealth in respect of his death pursuant to s. 43 of the Compensation (Commonwealth Government Employees) Act 1971 Cth, as amended ("the Act"). It may seem surprising that a sad but simple story such as this should require the time and attention not only of the Commissioner for Employees' Compensation, but of a Compensation Tribunal, a judge of the Federal Court, the Full Court of the Federal Court and the Full Court of the High Court over a period of more than five years. The explanation must lie in the difficult questions of law which Mrs. Johnston's application has raised, difficulties which have led to the expression of a diversity of judicial opinion.

[18]

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.

[19]

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.

[33]

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.