31 In Bird, the delegate found that Mr Bird had contracted a disease, namely right cervical node metastasis from carcinoma of the tongue. The delegate found that Mr Bird's employment by the Department of Defence was a contributing factor to the contraction of that disease "by virtue of s 30" of the 1971 Act. Mr Bird had been a member of the Royal Australian Air Force and had fitted and removed canisters from aircraft which had collected radioactive air and dust samples after nuclear testing. He had subsequently serviced aircraft used in the testing and took part in their cleaning. The delegate did not make a finding that Mr Bird's exposure to any radioactive substance was the cause of his condition, but simply found that the condition existed. The delegate proceeded on the basis that s 30 was sufficient to establish for the purposes of the 1971 Act that Mr Bird's employment was a contributing factor to the condition.
32 The High Court majority (Mason CJ, Brennan and Toohey JJ) found that this involved error. The error is identified in the following extracts from the majority's judgment at 5 to 6 (footnotes omitted, but emphasis added):
Paragraphs (a), (b) and (c) of s. 30 set out the conditions upon the satisfaction of which the section operates. When those conditions are satisfied the section deems "the employment in which the employee was ... engaged ... to have been a contributing factor to his contraction of the disease", unless the contrary is established. This in turn brings the employee within s. 29 and imposes a liability on the Commonwealth to pay compensation: see s. 27(1). The purpose of s. 30, like the purpose of a similar provision considered in Connair Pty. Ltd. v. Frederiksen, is "to enable an employee to recover if he could show that the employment in which he was engaged involved a particular liability to, or a special risk of, contracting the disease from which he suffered, although he could not prove that he contracted the disease in the employment of the defendant employer" (per Mason J). An employee who cannot take advantage of the presumption in s. 30 may nevertheless be able to bring himself within s. 29 by showing that his employment by the Commonwealth was a "contributing factor" to the contraction of a disease or its "aggravation, acceleration or recurrence". But s. 30 operates only when the employee has suffered or is suffering from a disease of a kind specified in the regulations. The primary question in this case is whether the disease from which the appellant was suffering "is a disease of a kind specified in the regulations". The kinds of disease specified in the regulations for the purposes of s .30 are the kinds specified in the first column of the First Schedule to the regulations: reg.12.
In this case, the question is whether the disease which the appellant was found to have contracted is "a disease of a kind" specified in Item 4 of the First Schedule to the regulations. The words "disease of a kind" in par. (b) of s. 30 allow a description in terms more general than those which would identify a particular disease. The kind of disease specified in Item 4 is not a discrete pathological condition. It is any pathological condition which is in fact caused by one or other of the nominated substances; but it does not comprehend all pathological conditions which could be caused by the nominated substances. Unless it is found that the pathological condition was in fact caused by one or other of the nominated substances, condition (b) is not satisfied and s. 30 does not operate upon the facts of the particular case.
33 The majority noted at 7 that the respondent's argument required that Item 4 be read as if words such as "of a kind" or "capable of being" appeared after the word "condition". This was impermissible in the absence of the clear necessity to read words into that item. Having regard to the terms of Item 4 and the corresponding formulation used in Items 6 to 23, the majority found that Item 4 and s 30 "provide the causal link between exposure to or contact with radium or other radioactive substances or x-rays and a pathological condition which has in fact been caused by those substances". The majority said that the Schedule did not require that the substances to which an employee was in fact exposed or in contact with during his employment be proved to be the actual cause of the poisoning or pathological condition from which a claimant is suffering. That necessity was avoided by the Schedule and s 30. But the majority held that the Schedule and s 30 required that the poisoning or pathological condition from which a claimant is suffering be caused by substances of the same description as those to which the employee was in fact exposed or in contact with during his employment.
34 Accordingly, while Mr Bird did not need to show that his exposure to radioactive substances in 1952 was the actual cause of his condition, he had to show that in fact he had a pathological condition caused by radium or other radioactive substances or by x-rays.
35 Justices Deane and Gaudron dissented. The essence of their reasoning is captured at 8:
There is nothing in the context provided by the other provisions of the Act or the Regulations which warrants or supports a reading down of what we see as the effect, as a matter of ordinary language, of the words of reg. 12 and item 4. To the contrary, to read the reference in Reg.12 to "a disease of a kind" specified in item 4 as connoting not the "kind" of pathological condition caused by exposure to radium or another radioactive substance but a pathological condition which is shown to have been actually so caused, is to ignore the significance of the heading of the first column of the Schedule, which is "Disease" and not "Kinds of Disease", and of the context provided by s. 30 of the Act which operates upon the basis that the regulations will create a relationship between specified kinds of disease and specified kinds of employment.
36 There is no basis for distinguishing the majority's reasoning in Bird. Even if it were accepted that the AAT found that the disease suffered by Mr Riley was not simply bladder cancer, but could be described more broadly as "cancer" or "malignant tumours", there was no evidence that this broader description of the disease suffered by Mr Riley was in fact caused by exposure to beryllium. The highest evidence rose was that of Professor Fox, namely that exposure to beryllium may cause an increased risk of lung cancer. There was no evidence that Mr Riley had ever suffered lung cancer.
37 The central flaw in the AAT's approach is that, applying Bird, the AAT had to be satisfied that the disease suffered by Mr Riley was caused by beryllium or its toxic compounds. As Heerey J stated in Moffat at [7], Bird requires that "before obtaining the benefit of the statutory reversal of onus under s 7(1) the respondent would have to show that his admitted mesothelioma was in fact caused by asbestos" (emphasis added). Accordingly, applying Bird, the proper construction of s 7(1)(b) required that the disease suffered by Mr Riley not merely be "a malignant tumour", but a malignant tumour caused by exposure to beryllium or its toxic compounds. That provides a sufficient basis to allow the appeal.
38 I reject Mr Riley's contention that the first question of law is not truly a question of law. In particular, I do not accept that the Commission's challenge is properly characterised as a "fundamental disagreement with the basic facts found". It is well established that the question whether or not facts fully found fall within the terms of a statutory provision, properly construed, is a question of law (see Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 7 and Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232; 7 FCR 205 at 214 per Sheppard, Wilcox and Everett JJ).
39 If necessary, I would also uphold the second question of law, noting that, as the Commission correctly pointed out in its reply submissions, grounds 1 and 2 are "closely entwined". This is because the AAT asked itself the wrong question. Rather than asking whether the disease suffered by Mr Riley was in fact caused by exposure to beryllium or its toxic compounds, it asked whether such exposure may cause a malignant tumour situated elsewhere in the body. Mr Riley acknowledged that the second question of law was "really a variation" on the first question of law.
40 Having regard to the applicant's success on both questions of law 1 and 2, it is unnecessary to determine the third question of law, which relates to procedural fairness.