KELLY v GLENROC PASTORAL CO PTY LTD

(1) A finding that K was not employed as a shearer was not open on the evidence in the court below.

(2) Under s15 the applicant worker needed to prove only that the gradual process disease causing his incapacity was due to the nature of his employment with the respondent employer, his last employer. K was not required to establish that the disease had any other connection with his employment (Smith v Mann (1932) 127 CLR 426). However, (per Powell JA) s4, s33 and s15 do not each provide separate causes of action. (Coates v Commissioner for Railways (1959-1960) 78 WN 377 not followed on this point). The language of s4 refers to "a disease which is contracted in the course of employment" (s4(b)(i)). The back injuries do not come within this definition as there is no gradual process or industrial disease 'due' to employment as a shearer, because either (per Meagher JA and Powell JA) his lumbar spondylosis was congenital; or (per Sheller JA) it was a degenerative disease not relevantly caused by employment. Medical reports tendered below did not support a cause of action under s15.

Cases referred to Smith v Mann (1932) 427 CLR 426, applied. Coates v Commissioner of Railways (1959-1960 78 WN 377) O'Neill v Lumbey [1987] 11 NSWLR 640. Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482. Slazengers (Aust) Pty Ltd v Burnett [1951] AC 13 Fisher v Hebburn (1960) 105 CLR 188. Workers' Compensation Act, 1987. Workers' Compensation Act, 1926.

Meagher JA This is an appeal by the worker, Mr Kelly, who unsuccessfully sought orders from her Honour Judge O' Toole in the Compensation Court against the first respondent, and alternatively against the second respondent. His case, which was constantly reformulated, in its final form sought orders (a) under s33 and s4 of the Workers Compensation Act, 1987 for a frank injury, (b) s15 of the Act, and (c) s16 of the Act.

S33, of course, provides as follows: "33. If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity."

(a) means personal injury arising out of or in the course of employment;

(i) A disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration... "

"15(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process

(a) the injury shall, for the purposes of this Act, be deemed to have happened

(b) compensation is payable by the employer in whose employment the worker is or who last employed the worker.

(2) any employers who, during the 12 months preceding a worker's... incapacity... employed the worker in an employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as...may be determined by the Compensation Court.

"16(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease

(a) the injury shall, for the purposes of this Act, be deemed to have happened

(b) if the worker's employment with 2 or more employers has been a contributing factor to the aggravation, acceleration, exacerbation or deterioration

• compensation is payable by the employer who last employed the worker in that employment.

(2) Any employers who, during the 12 months preceding a worker's...incapacity... employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contribution as... may be determined by the Compensation Court."

Mr Kelly, who was born in 1934, is now in a poor state of health. Principally, but by no means exclusively, his poor health is due to lumbar spondylosis and disc protrusions at L4/5 and L5/S1. His occupation was, and had been for some decades, shearing. On that day he finished work for the first respondent, and has never worked since. As I have said he failed in his various applications before her Honour. With the greatest respect to her Honour, it is not easy to see, from a perusal of her judgment, why this is so. No judge who sat on the appeal understood her judgment, and it was all too evident that Counsel were in the same position.

However that may be, some findings of fact are tolerably clear. These include the following: (a) he was working under contract for the first respondent from 14/7/88 to 26/7/88; (b) he worked for the second respondent immediately before that; (c) he gave up working on 26/7/88; (d) although in one formulation of his applications, some specific injury-causing event was alleged to have taken place

URJ KELLY v GLENROC PASTORAL CO PTY LTD (Meagher JA) 3

at 4.00pm on 26/7/88, there was no such event; (e) over the decades his health had continuously been declining; (f) by December 1987 he was quite unfit for shearing work; (g) he probably had not done a full day's work for over twenty years; (h) his state of health after he left the first respondent's employment was no worse than his health before he commenced employment with the second respondent; (i) his employment with neither the first nor the second respondent had in any way aggravated his condition, and had no causal connection with his physical condition; (j) his lumbar spondylosis was congenital, although obviously, in a general sense, aggravated by this lifetime's experience of shearing; and (k) his disc protrusions were probably caused at some unidentifiable time by a specific incident which occurred during the course of shearing.

On these findings it is obvious enough that any claim made under s33 (as expanded by s4) must fail, and fail it did. The appellant did not seek to resuscitate it. It must also follow, I think, that once the finding which I have lettered (i) was made, and that no attack was made on that finding, any claim under s16 must fail because it cannot be said that the employment of Mr Kelly with either of the respondents was a "contributing factor" to any aggravation. Even Mr Gross QC, senior counsel for the appellant, conceded that this must be so.

It was Mr Kelly's case under s15 which, on appeal at any rate, attracted the closest attention. it is impossible to discover on what basis her Honour dismissed this claim. There are passages in her Honour's judgment which seem to suggest that her finding that employment with the respondents had no causal connection with Mr Kelly's physical condition negatived, as a matter of law, any application for compensation under s15.

This, on the face of it, would appear to contradict the High Court's decision in Smith v Mann (1932) 47 CLR 426, a decision which, indeed, her Honour held in little respect, for the curious reason that Professor Mills disliked it, a reason rendered the more curious when one considers the wholly irrational grounds of the Professor's dislike. Smith v Mann, (ibid) although it was decided on a predecessor of s15 of the present Act, is obviously binding, is obviously sound, and in my view merely repeats what the statute says. In my opinion, counsel for the appellant was correct in submitting that her Honour's view of s15 was incorrect. He submitted that all which it is necessary to show in order to make a case under s15 is that:

"(a) the Applicant was incapacitated by a disease of such a nature as to be contracted by a gradual process (I might interpolate that asbestosis could be an example of such a disease);

"(b) the Respondent employed the Applicant in an employment to the nature of which the disease was due; and

"(c) the Respondent was the employer in whose employment the worker is or who last employed the worker in an employment to the nature of which the disease was due."

It will be noticed that none of these three ingredients requires the finding of any causal nexus between the respondent's employment of the applicant and the applicant's disease.

The appellant's submission is also correct, in my opinion, that insofar as her Honour found that during the employment of the applicant by the respondents he was not a shearer at all, but an odd-jobs man, it was a finding which was both unfounded on the evidence and irrelevant to the issues before the Court. Whilst, somewhat oddly, there is no evidence of exactly what work the appellant did for

either respondent during his employment with them, he was engaged as a shearer, the pleadings (if such they may be called) concede that he was at all times working as a shearer, and it was never put to him that he was not. A piece of evidence that he also did odd jobs cannot be converted into a finding that he did nothing else. However, the argument is, in my opinion, of no relevance.

The reason is that, as Mr Webb QC, senior counsel for the first respondent, submitted, s15 is limited to "diseases" of gradual process which were wholly contracted in the employment in question. In other words, if spondylosis, the principal disease from which Mr Kelly suffered, had been contracted because of shearing, ie because of "the nature of his employment", s15 would be satisfied. But her Honour found as a fact, and all the medical evidence supported her, that Mr Kelly's spondylosis was congenital. It is not like the asbestosis which I have mentioned. The statute talks of an "employment to the nature of which the disease was due". In my view, in this context "due" means "solely due". When a statute indicates a remedy if a particular state of affairs is "due" to a particular cause, the prima facie meaning of "due" is "solely due". I appreciate that a plaintiff can successfully sue at common law in negligence if he can prove that the defendant's conduct was partly responsible for a plaintiff's mishap; and that a plaintiff can sue successfully in fraud, or for misrepresentation, if the fraud or misrepresentation was materially but only partially responsible for the damage complained of by the plaintiff. That seems to me to be entirely irrelevant, because it is a far cry from the present statute.

Applying this analysis to the facts of the present case, it is clear that Mr Kelly's spondylosis was not solely "due" to his occupation of shearing. It was congenital. It existed, no doubt in an embryonic form, before he even started shearing for anyone. Nor does this analysis yield any result which is surprising from a policy point of view. In other words, ingredient (b), and possibly also ingredient (a), identified by Mr Gross QC, are missing. There never was, and I see no reason why there ever should be, a right to compensation in a worker who simply retires

• no doubt with good reason - from his occupation because he does not feel able or willing to continue labouring in it.

In my view, the appeal should be dismissed with costs.

Sheller JA The material facts and sections of the Workers Compensation Act 1987 are set out in the judgment of Meagher JA which I have had the benefit of reading. The worker's appeal was limited to his claim under s15 of the Act. If an injury is a gradual process disease due to the nature of the worker's employment, s15 provides that compensation is payable by the employer in whose employment the worker is or who last employed the worker. In Smith v Mann (1932) 47 CLR 426 at 449 Dixon J, as he then was, said that similar language in s7 (4) of the 1926 Act referred to the employer who employed or had employed the worker in an employment to the nature of which the disease was due. S15 is to be contrasted with s16 which concerns an injury consisting in the aggravation, acceleration, exacerbation or deterioration of a disease. This would include aggravation of a pre-existing disease unrelated to work; compare s4(b)(ii) of the 1987 Act. If the worker's employment with two or more employers has been a contributing factor to the aggravation, acceleration, exacerbation or deterioration, compensation is payable by the employer who last employed the worker in that employment.

The appellant suffered from lumbar spondylosis and lumbar disc protrusion. From 14 to 26 July 1988 he was employed as a shearer by the first respondent, Glenroc Pastoral Co Pty Ltd. He had not subsequently been employed in

URJ KELLY v GLENROC PASTORAL CO PTY LTD (Sheller JA) 5

shearing. From 28 June to 13 July 1988 he had been employed as a shearer by KW and MA Armour, the second respondent. His claims for compensation under the Act were rejected by O'Toole CCJ in a judgment given on 20 September 1991. Her Honour disposed of the claim under s16 of the Act because she was not satisfied that shearing performed by the appellant while employed by the respondents was a contributing factor to the disease. This conclusion is not challenged. It is not clear to me whether a general claim for a frank injury was pressed. If it was it was rejected. Her Honour said:

"T think it unlikely that ' the lumbar disc protrusion occurred during the course of the applicant's employment in June or July 1988'."

Her Honour's approach to the appellant's claim under s15 presents difficulty.

"Successive reductions in the applicant's capacity to work as a shearer, may have occurred as a consequence of shearing work performed at one time or another, prior to 1985 or may have occurred because of the progression of the applicant's 'disease' or may have occurred for both those reasons. If it were necessary for me to determine the issues in this case by choosing between Dr Newcombe's opinion that'... the lumbar disc protrusion at L5-S1 level was a specific incident (which occurred) during the course of shearing...' or Dr Eagleton's view that '....(b)oth... lumbar spondylosis and disc protrusion at L4/5 and LS/S1... are degenerative diseases, brought about by wear and tear to the (applicant's) lumbo-sacral spine', I would prefer Dr Newcombe's opinion."

Her Honour referred to dicta in a number of cases including Smith v Mann. She disposed of the claim under s15, it seems to me, on the basis that while employed by the respondents the appellant was not employed in shearing and hence in any employment to the nature of which the appellant alleged the disease was due. Her Honour said:

"T have difficulty concluding that either of the named respondents, employed the worker in an employment to the nature of which either lumbar spondylosis or the lumbar disc protrusion, was due.

As I understand the authorities, in order to make an award against one or other of the named respondents in the case I have heard, I would have to find that physical activity, performed by the applicant between 28 June 1988 and 13 July 1988 for Glendale or physical activity, performed between 14 July 1988 and 26 July 1988 for Glenroc, was......... employment to the nature of which the disease was due....'."

I agree with Meagher JA that on the evidence and in the way in which the case was presented her Honour's conclusion that the appellant was not employed by the respondents as a shearer was insupportable. But the appellants argument did not persuade me that her Honour misunderstood s15 and thought, wrongly, that the appellant was required to prove that the appellants gradual process disease was caused or contributed to by the work he performed for the respondents during the periods in question. Her Honour simply thought that the appellant was not employed by the respondents in shearing.

"On the facts as I have found them and on my understanding of the authorities, it seems to me that the applicant has not succeeded in establishing entitlement against either of the respondents, pursuant to s4 and s15 of the 1987 Act."

The difficulty with the judgment on the claim under s15 is that it proceeds upon the insupportable finding that the respondents in June and July 1988 did not employ the appellant as a shearer. If the medical evidence established that lumbar spondylosis or lumbar disc protrusion were diseases contracted by a gradual process and due to the employment of the appellant in shearing O'Toole CCJ's award would have to be set aside and the application reconsidered.

Her Honour referred to a division between the opinion of Dr Eagleton that both lumbar spondylosis and disc protrusion at L4/5 and LS5/S1 were degenerative diseases, brought about by wear and tear to the appellant's lumbo sacral spine, and the opinion of Dr Newcombe that the lumbar disc protrusion at L5/S1 was a specific incident which occurred during the course of shearing. Her Honour preferred Dr Newcombe's opinion. I note that her Honour had also before her a report of Dr Gonski, a consultant neurosurgeon, and of Dr Luba Eikens, a rehabilitation physician, which as I read them support the conclusion of Dr Eagleton that the conditions were degenerative in nature accelerated or exacerbated by the appellant's work as a shearer. However on either of the views to which her Honour refers it does not seem to me that the appellant can bring his case within s15. That section is concerned with an occupational or industrial disease contracted by a gradual process. Dr Eagleton, as I understand him, would accept that both lumbar spondylosis and disc protrusion are gradual process diseases. But they are degenerative diseases and as such not shown to be due to shearing although as Dr Eagleton acknowledged the appellant's work as a shearer played a major role, over a long period of time, in causing the degenerative changes. The medical witnesses described an aggravation, acceleration, exacerbation or deterioration of degenerative disease such as is covered by s16.

S16 elucidates the language of s15. S15 is concerned not with the worsening of a degenerative disease but with diseases due to the nature of the employment in which the worker was employed. Fisher vy Hebburn (1960) 105 CLR 188 stands for the proposition that to recover under s15 against the last employer for a gradual process disease the worker must prove that the disease was contracted in the course of employment, though not necessarily by the last employer, and was one to which employment was a contributing factor, language taken from the definition of injury in s6(1) of the 1926 Act which corresponds relevantly, with s4(b)(i) of the 1987 Act. In Fisher v Hebburn the worker suffered from pneumoconiosis, a gradual process disease, which was certified to be due to the effects of dust inhaled at his work in coal mines. Such is to be contrasted with Dr Eagleton's description of lumbar spondylosis and disc protrusion as degenerative diseases.

On the other hand if the opinion of Dr Newcombe that the lumbar disc protrusion was a specific incident which occurred during the course of shearing is to be preferred it is not a disease which is of such a nature as to be contracted by a gradual process. In my opinion on the medical evidence the appellants claim under s15 against the respondents must inevitably fail.

Accordingly I agree that the appeal should be dismissed with costs.

Powell JA Although I agree with both Meagher JA and Sheller JA that this appeal should be dismissed with costs, the fact that the process of reasoning which leads me to that conclusion seems to me to differ from that adopted by each of their Honours suggests to me that I should explain that process of reasoning, albeit but shortly.

For present purposes, the only facts which, in my view, need to be noted are as follow:

URJ KELLY v GLENROC PASTORAL CO PTY LTD (Powell JA) 7

the primary condition which has led to the Appellants' incapacity for the work of (inter alia) a shearer is lumbar spondylosis, a degenerative condition which was congenital in origin;

by no later than December 1987, the Appellant's condition had degenerated to a stage where he was no longer able to work as a shearer:

although, in March 1988, the Appellant was advised to undergo remedial surgery to alleviate his condition, he declined to do so;

even if he had done so, and his condition was thereby ameliorated, it would have been unlikely that he would thereafter have been fit to return to work as a shearer, or to undertake any form of work involving repeated or prolonged bending or heavy lifting;

by his own admission (Appeal Book at 41), the reason for the Appellant's return to shearing in June 1988 was "that (he) wanted to see was (his) back better", which it was not (Appeal Book at 42), a fact which led the Appellant to admit that he should not have attempted to return to shearing;

as Meagher JA has recorded in his Judgment, the Appellant's employment with neither Respondent caused, or aggravated, his condition.

Despite these facts, the Appellant claimed that he was entitled to an award of compensation under the provisions of the Workers Compensation Act 1987 ("the 1987 Act") that claim, as Meagher JA has recorded in his Judgment, being described by Mr BJ Gross, who appeared with Mr BW Kops and Mr M Scott for the Appellant, as "a claim under s15".

While it may be that to describe a claim which is authorised by me combined operation of s4 ("injury" - (b)(i)) s15, s33 of the Act is a convenient form of legal shorthand, it seems to me that, if that be done uncritically, and without regard to me fact that me source of the relevant worker's entitlement is to be found in the combined operation of s4, s33 - s15 being procedural, or evidentiary, in nature, identifying, for the purposes of a claim, the time at which the incapacity is to be taken as having arisen, and the employer against whom the claim may be made one is apt to be led into confusion of thought. Such confusion of thought, I suggest, is reflected in the argument advanced on the Appellant's behalf on this appeal and also in the decision of the former Full Court (Kinsella and Collins JJ; McClemens J diss) in Coates v Commissioner for Railways ((1959-1960) 78 WN 377) which is relied upon to support that argument, and in the course of the joint Judgment of Kinsella and Collins JJ in which decision their Honours expressed the view "that injuries under s7(4) indicate and require that the word 'injury' as used 'in that subsection cannot be given the meaning assigned to it in s6 of the Act" - (s6(1) "injury" of the Workers Compensation Act 1926 ("the 1926 Act") being the predecessor of s4 "injury" - s4(a), s4(b)(i) - of the 1987 Act; s7(1)(a) of the 1926 Act being the predecessor of s33 of the 1987 Act; and s7(4) of the 1926 Act being the predecessor of s15 of the 1987 Act) - or, to put the matter in another way, that s7(4) of the 1926 Act - (s15 of the 1987 Act) - conferred upon a worker a right to compensation independent of s6 - and, semble, of s7(1)(a) - of the 1926 Act.

While I accept that, in a situation to which the provisions of s4 ("injury" - s4(b)(i)), s15, s33 of the 1987 Act apply, an applicant worker needs only to establish that his employment with the respondent employer was his last employment to the nature of which the disease causing his incapacity was due and that he is not required to establish that the disease had any other connection with his employment (Smith v Mann (1932) 427 CLR 426) it remains, in my view, clear that, in order to bring himself within the operation of s4 ("injury") -

s4(b)(i)), 15, s33 of the 1987 Act the applicant worker must establish, not merely that the disease which has caused his incapacity is of such a nature as to be contracted by a gradual process, but also that the relevant disease is one which might be called "an industrial disease" incidental to that class of employment in which the applicant worker is, or was, employed by the employer in whose employment the applicant worker is, or who last employed him, and who is the respondent to the relevant application.

That this is so is, I suggest, readily apparent from the language of s4 ("injury"

• (b)(i)), s15, s33 of the 1987 Act; but, if more be thought necessary to demonstrate that this is so, that extra demonstration is, I suggest, provided by the history of the legislation (as to the relevance of the history of the legislation, see, for example, O'Neill v Lumbey [1987] 11 NSWLR 640, 642-643 per Kirby P.)

A consideration of the history of the legislation reveals, first, that, s7(4) of the 1926 Act - (the predecessor of s15 of the 1987 Act) - had been in the 1926 Act from the outset; and, second, that, at all times prior to the coming into operation of the provisions of the Workers Compensation (Amendment) Act 1960 ("'the 1960 Act'') - the provisions of which were directed (in part) to amending the definition of "injury" contained in s6 of the 1926 Act so as to overcome the decision of the High Court in Darling Island Stevedoring and Lighterage Co Ltd v Hussey ((1959) 102 CLR 482) - that definition required a causal connection between the "injury" in question and the employment, that causal connection being defined successively, in the original definition - "'injury' means personal injury and includes a disease which is contracted by the worker in the course of his employment... and to which the employment was a contributing factor"; next, in the definition substituted by the 1929 amending Act - "'injury' means personal injury arising out of AND in the course of the employment and includes a disease SO ARISING" (my emphasis) - and, finally, in the definition substituted by the 1942 amending Act - ""injury' means personal injury arising out of OR in the course of the employment and includes a disease WHICH IS CONTRACTED BY THE WORKER IN THE COURSE OF HIS EMPLOYMENT.. and to which the employment was A CONTRIBUTING FACTOR" (my emphasis).

A consideration of the history of the legislation further reveals that, during such time as the definition of"injury" in the 1926 Act was that substituted by the 1942 amending Act, it was authoritatively determined, first, that a worker who, whilst in the course of a "daily or other periodic journey" died as a result of a coronary occlusion which had no causal connection with the journey did not receive an injury within the meaning of s7(1)(b) of the 1926 Act - (the predecessor of s10(1), s(3)(a) of the 1987 Act) - (Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13; (1950) 51 SR 1); and, second, that in a case in which a worker died of a coronary occlusion suffered just after he arrived at "a pick-up centre" (see s6(14B) of the 1926 Act - (the predecessor s10(1)(3)(f), CL14 of Sch 1 of the 1987 Act) - since his heart disease, not being one contracted in the course of his employment - including the journey to the pick-up centre - nor one to which the employment, or journey, was a contributing factor, did not fall within the definition of "injury" in s6(1) of the 1926 Act - no injury had been suffered with s7(1)(b) of the 1926 Act (Darling Island Stevedoring and Lighterage Co Ltd v Hussey (supra)).

A consideration of the history of the legislation further reveals that, notwithstanding the subsequent amendment - in 1960 - of the definition of "injury", in the 1926 Act so as to include "(b) the aggravation, acceleration, exacerbation or deterioration OF ANY DISEASE, WHERE THE

URJ KELLY v GLENROC PASTORAL CO PTY LTD (Powell JA) 9

EMPLOYMENT WAS A CONTRIBUTING FACTOR to such aggravation, acceleration, exacerbation or deterioration; " (my emphasis) - a related amendment being made, at the same time, to the provisions of s7(4A) of the 1926 Act (the predecessor of s16 of the 1987 Act) - the view continued to be held, that, if his application were to succeed, an applicant for compensation for incapacity caused by disease must show that the employment was a contributing factor, either, to the contracting of the disease, or, to the aggravation, acceleration, exacerbation or deterioration, of it (O'Neill v Lumbey (supra)).

These being the concepts which, relevantly, were incorporated in the 1926 Act, and those concepts, and the language by which they were expressed, having been translated from the 1926 Act and incorporated in the 1987 Act, it follows, in my view, that, in a case, such as this, on the appeal,was, in which an applicant worker seeks to found his claim for compensation upon the provisions of s15 of the 1987 Act, his application will fail unless he is able to demonstrate that the relevant employment contributed to his contracting the disease which is alleged to have caused incapacity.

Since, in the present case, it has been found by the trial judge, first, that the Appellant's incapacity has been brought about by lumbar spondylosis; and, second, that the Appellant's lumbar spondylosis is congenital in origin; it follows that the Appellant failed to discharge the onus which,in my view, the 1987 Act cast upon him, and that, accordingly, his application was rightly dismissed.

It is for these reasons that I agree that the appeal should be dismissed with costs.

Counsel for the Appellant: B GROSS QC/ BW KOPS/ M SCOTT Instructed by: CARROLL AND O'DEA

Counsel for First Respondent: P WEBB QC/ T KAVANAGH Instructed by: LEIGH VIRTUE AND COLLINS