Kavanagh v The Commonwealth

The Tribunal's decision The Tribunal was constituted by Mr B G Gibbs AM, Senior Member. At the outset of its reasons for decision the Tribunal noted the competing contentions that were advanced by counsel on behalf of Mr Burch and the appellant respectively. Mr Burch's contention was that he suffered an injury that arose out of or in the course of his employment, that injury being a stroke. This, his counsel contended, was an "injury simpliciter". Counsel asserted that Mr Burch did not suffer incapacity due to any disease. In the alternative, counsel contended that factors relating to Mr Burch's employment contributed to a material degree to the aggravation of an ailment which resulted in his incapacity for employment. Thus Mr Burch's case was, primarily, that he suffered an injury in the ordinary sense of that word which, because it arose in the course of his employment (this never being an issue), was within par (b) of the definition of "injury" in s 4(1) and therefore an "injury" for the purposes of s 14(1). Alternatively, his case was that his incapacity for work or impairment had resulted from a "disease", that is to say an ailment which had been contributed to in a material degree by his employment. The case of the appellant was that Mr Burch suffered from a disease either of the heart and/or the cerebral vessels and this was an ailment that was not contributed to in a material degree by his employment.

The Tribunal's decision After a review of the authorities and before discussing the evidence in detail the Tribunal summarised its approach. Referring to the exclusion "(other than a disease)" in pars (b) and (c) of the definition of "injury" the Tribunal said: "41. … However, because an ailment does not become a disease unless 'contributed to in a material degree by employment', that exclusion does not necessarily exclude an injury, which is also the aggravation of an ailment, from the definition of injury, if that aggravation involves 'actual internal physical injury'. 42. In the event that I am satisfied that Mr. Burch does not suffer incapacity due to any disease, but rather that he suffers incapacity due to an injury which happened by accident in that he experienced a physiological disturbance, then because an ailment or the aggravation of an ailment does not become a disease unless it was 'contributed to in a material degree by the employee's employment', it is open to Mr. Burch to assert that he suffered an injury (simpliciter) …". The detailed findings of the Tribunal are summarised in the following paragraphs: "101. From the material before me I find that at some indeterminate time Mr. Burch suffered a myocardial infarction. I am likewise satisfied, and indeed it was conceded by Ms. MacTiernan [counsel for Mr Burch] that it was probably so, that on 29 September 1994, Mr. Burch suffered a degree of cardiomyopathy. On the evidence the cardiomyopathy did not, however, give rise to any incapacity or impairment, neither was the condition demonstrated by any signs or symptoms. The evidence available does not lead me to the conclusion that having suffered a myocardial infarction, Mr. Burch as a result developed cardiomyopathy. The latter condition appears to be an underlying one of no known cause. 102. I am further satisfied that the disease was not such on the 29 September 1994 that, as a matter of inevitability, Mr. Burch would experience complications. 103. As stated by Ms. MacTiernan, the great majority of cases in which the question of injury simpliciter has been raised have involved a dichotomy in terms of medical opinions. This present case is no exception. However, from the evidence before me I consider that it would not be safe to conclude that at the relevant time Mr. Burch had a protein C deficiency. I believe Professor Salem's evidence in this connection to be particularly cogent. 104. In conclusion, I find that on 29 September 1994 Mr. Burch experienced a sudden disturbance of his physiological state, being the occlusion of his right middle cerebral artery, which resulted in a stroke. The stroke, which has given rise to a degree of incapacity, did not occur as a result of disease. Rather, it was an injury in the primary sense, being an 'injury simpliciter' in the context already explained in these reasons. As uch, Mr. Burch's stroke was an injury within the meaning of section 4(1) of the Act. 105. In the circumstances, although I have set out the relevant evidence, I do not consider it necessary to proceed to determine the alternative proposition advanced by Ms. MacTiernan. 106. The decision of the Tribunal will be to set aside the decision made on 26 October 1994, affirmed by the reviewable decision made on 5 July 1995, and to substitute therefor the decision that, pursuant to section 14(1) of the Act, the respondent is liable to pay compensation to Mr. Burch pursuant to section 19, in respect of an injury within the meaning of section 4(1) and which resulted in his incapacity for work."

Arguments on the appeal The case of the appellant on the appeal to this Court was entirely taken up with an attack on the decision of the Tribunal rather than that of Northrop J. Indeed it is not at all clear that the principal arguments were in fact advanced before his Honour. But in any event the case put on appeal was as follows. First, in the expression "(other than a disease)" in par (b) of the definition of "injury", "disease" is not used in the statutorily defined sense (ailment materially contributed to by employment) but in the ordinary sense of an ailment, whether or not connected with employment. Mr Burch suffered a disease in that sense; therefore he could not have suffered an injury within the meaning of par (b). Necessarily involved in that argument is the contention that not only was Mr Burch's condition properly characterised as a "disease" (in the ordinary sense) rather than an "injury" (in the ordinary sense) but, notwithstanding his alternative case advanced before the Tribunal, his disease (in the ordinary sense) was not contributed to in a material degree by his employment. Secondly, there was no basis for the finding that Mr Burch suffered an injury in the ordinary sense, or at any rate there were insufficient findings of fact to support this conclusion.

Conclusion on the appeal As to the first argument, we do not accept the appellant's construction of the expression "(other than a disease)". The word "disease" in that expression is used in its statutorily defined sense. The matter can be approached in this way. In lay terms injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury. Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury. The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection. Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment. Such a claimant may, as an alternative, again like Mr Burch, seek to show that if what was suffered was not an injury in the ordinary sense, then it was a disease in the ordinary sense, and that there was contribution to a material degree by employment to that disease. This Mr Burch also attempted to do. He gave evidence as to alleged harassment in the workplace by fellow employees which contributed to his condition. But because he won on the first issue of injury (in the ordinary sense), it was not necessary for the Tribunal to reach any conclusion as to this alternative claim. The definition of "injury" in s 4(1) is consistent with this analysis, although some confusion is caused because the alternative meanings of "injury" are set out in a somewhat illogical sequence. It would make more sense if the first possible meaning of "injury" was injury (in the ordinary sense) arising out of or in the course of employment. If an employee satisfied this lower test of work connection there would be no need to go any further. However, it is we think reasonably clear that the expression "(other than a disease)" is inserted to make it clear that par (b) of the definition, which requires only the lower level of work connection, is referring to something different from disease (in the statutory sense) referred to in par (a) which requires the higher level of work connection (contribution to a material degree). As to the second argument, counsel for the appellant accepted that an injury in the ordinary sense did not necessarily require something external to the body. Such a concession was obviously correct. In Kavanagh v The Commonwealth (1960) 103 CLR 547 at 553 Dixon CJ said a rupture of the gullet was an "injury by accident". Such an episode was "… a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection." However the appellant's counsel in the present case argued that there could not be an injury in this sense without some "rupture" or "breaking" of some tissue. Here, counsel said, there was merely an occlusion, that is to say a blocking. However the fact that cases such Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature. In Accident Compensation Commission v McIntosh [1991] 2 VR 253 there is an extensive discussion of the concept of accident (in the ordinary sense) by Murphy J, a judge of great experience in workers' compensation. In a judgment in which Crockett and Cummins JJ concurred his Honour said (at 263): "Long before the inclusion of these references to 'disease' in the definition of 'injury' [in the New South Wales legislation considered in O'Neill v Lumbey (1987) 11 NSWLR 640], claims for coronary occlusions, cerebral haemorrhage, ruptured aneurysms, aorta, oesophagus etc. had commonly been made and had succeeded if occurring during a protected period, on the basis that they were 'injury by accident', being clearly a physical injury - and accidental - being unexpected by the worker at the time that they occurred: cf. Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242." His Honour went on to observe (at 264): "It is a remarkable development that today it is being suggested that in an Act which has consistently demonstrated a widening of cover to a worker, (being in the nature of social insurance or security) the inclusion in the definition of 'injury' of references to disease contributed to by the employment has prompted argument that mishaps, formerly accepted without debate to be 'injury', are no longer to be so considered, but are rather to be characterised as the very disease to which they are due, and excluded, unless work contributes to them." (Emphasis in original) McIntosh was approved by Toohey, McHugh and Gummow JJ who were members of the majority in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 335. (Of course under the Act it is only necessary to show injury (in the ordinary sense), not injury by accident: Zickar at 319.) Here the stroke was the injury. There was no contest as to what a stroke was. It was a disturbance of the normal physiological state (Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252-3) or an ascertainable lesion or dramatic physiological change (McIntosh at 257). In our opinion the appeal should be dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Heerey, Sundberg and North.

Counsel for the Applicant: Mr M O'Loghlan QC with Mr M Croyle

Counsel for the Respondent: Mr R Gorton QC with Mr C Colman