1 The nature and history of these proceedings and the relevant statutory provisions appear in the reasons for judgment of Cox J

2 In my view the appeal from the Commissioner's decision was competent. The only construction that can be put upon the Commissioner's findings and conclusions is that they constituted a determination that the employer was liable to pay compensation and although he made no final order that is a sufficient determination to ground an appeal under s63. I record that no submission was made to the judge who heard the appeal that the appeal was not competent.

"The employer's representative submitted that it had not been shown that the disease of tinea in this case arose out of and in the course of the employment and was contributed to substantially by his employment as required by Section 25(1)(b) of the Act.

As I understand it, the fungal disease is commonplace and dormant in most people. In this case it is impossible to say where the claimant contracted the disease. I cannot find he contracted the disease in the showers at work. However I accept the claimant's evidence as to his working conditions. I accept that the wet working conditions aggravated the disease to the point where he became incapacitated for work as certified by his doctor. Although the words aggravation, exacerbation and recurrence have been omitted from the definition of the word disease in the new Act, I think that the concept of disease in the new Act includes the aggravation of a pre-existing disease. It must always be shown of course that the disease arose out of the employment and was substantially contributed to by the employment. In this case it did in my opinion, having regard to the history given to me by the claimant in evidence taken together with the medical evidence."

4 In s3 of the Act the word "disease" is defined as meaning any "ailment, disorder, defect, or morbid condition, whether of sudden or gradual development." That definition is exhaustive and thus in order to determine whether a worker is entitled to compensation the sole issues are whether he has suffered such an ailment, disorder, defect or morbid condition, whether it arose out of and in the course of his employment and whether his employment contributed to it to a substantial degree. Neither the aetiology of nor the clinical label that might be attached to his condition is determinative of the worker's entitlement. In this case the fact that at some stage the respondent had contracted a condition which was medically labelled a "disease" called "tinea" was largely irrelevant and did not tend to establish or defeat the respondent's claim. Counsel for the appellant relied upon passages from the reasons for judgment of Dixon CJ and Fullagar J in Darling Island Stevedoring and Lighterage Company Limited v Hussey [1959] HCA 55; (1959) 102 CLR 482 at pp496 and 506 in support of his submission that "the suffering of a disease cannot refer to a stage of the disease, including the stage which causes incapacity, but must refer to the disease as a whole". However in Hussey's case the word "disease" was not defined in the legislation under consideration and it is clear that their Honours were regarding the disease with which they were concerned as the clinically defined heart disease from which the worker suffered whereas for the reasons which I have given I am of the view that whether a condition is a compensable disease for the purposes of the Workers' Compensation Act 1988 depends upon its nature and effects not its clinical label.

5 It follows that the Commissioner's findings that it was impossible to say where the respondent contracted the tinea was not determinative of the claim. The critical finding is that the respondent suffered an incapacitating condition which fell within the definition of "disease" and which in the Commissioner's opinion "arose out of the [respondent's] employment and was substantially contributed to by the employment". I appreciate that the Commissioner did not in that part of his reasons expressly record that he found that the respondent suffered the disease "in the course of his employment" but in my view that finding is implicit in the Commissioner's finding that the respondent's "working conditions aggravated the disease to the point where he became incapacitated for work" particularly when it is read in the context of his specific reference to the requirements of s25(1)(b) and with due regard to the fact that in the part of his reasons in which that finding appears the Commissioner was giving his reasons for rejecting the employer's submission that it had not been shown that the disease "arose out of and in the course of the employment".

6 For these reasons and for the reasons given by Cox J I am of the opinion that the appeal should be dismissed.

PASMINCO AUSTRALIA LIMITED v HOWARD JOHN FAIRCHILD

7 The respondent worker sought periodic payments of compensation pursuant to the Workers Compensation Act 1988 ("the Act") in respect of a period of incapacity for work occasioned by a bout of tinea. The Commissioner appointed under that Act conducted a hearing and in a written document published by him determined (or so it would appear) that the respondent was entitled to such payments, but made no final determination as to the amount to which he was entitled, leaving it to the parties to settle that question by agreement and reserving leave to refer the matter back to him in default of agreement. Being aggrieved by the result, the appellant/employer appealed to the Supreme Court under s63 of the Act claiming that the learned Commissioner had erred in treating the condition which precipitated the incapacity for work as a disease within the meaning of the Act and/or a disease which arose out of and in the course of his employment and to which his employment contributed to a substantial degree. The learned judge who heard the appeal upheld the contention that the learned Commissioner had erred in this manner, but nevertheless dismissed the appeal, holding that on the facts found by the Commissioner, the worker had established an entitlement to compensation by virtue of having suffered in his employment an injury, not being a disease, arising out of and in the course of his employment and from which incapacity for work resulted. From this decision the appellant appeals to the Full Court.

"63-(1) If any party to a proceeding before the Commissioner is aggrieved by any determination, order, ruling, or direction of the Commissioner in point of law, that party may appeal to the Supreme Court.

(2) An appeal under this section shall be instituted, heard, and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act."

9 Counsel for the respondent submits that the appeal from the learned Commissioner was not competent. It appears that at the conclusion of the original hearing the Commissioner reserved his decision and told the parties that they would be notified of it in writing. By s61(1) the Commissioner is, where he makes a determination in respect of a claim for compensation referred to him, required to make an order that gives effect to that determination. By subs.(3) thereof he is required to provide a statement in writing of his reasons for making the determination to which the order relates (save where the order is made by consent). In the present case what purports to be a "Notice of Order" under s61 addressed to Pasminco Metals (sic) was, in substance, in the following terms:

"TAKE NOTICE THAT the above claim has been determined by the Commissioner following the hearing of the matter on the 13th day of March 1990 when the Commissioner made an order as shown herein REASONS FOR DECISION AS PER ATTACHED DECISION

Dated this 26th day of March 1990

Signed W. Worsey,

Registrar."

An examination of the reasons for decision attached to that document reveals that the Commissioner either expressly or impliedly made a number of findings of fact including the following:

1 The respondent was a labourer in a zinc production plant operated by the appellant.

2 A medical practitioner examined the respondent on 10 December 1989, found him to be suffering from tinea of both feet, and certified him as being unfit for work and prescribed treatment which was successful.

3 The respondent was wholly incapacitated from working as a result of his condition for a period of about ten days.

4 It was not possible to find that the respondent contracted tinea at work.

5 Whilst engaged in his employment with the appellant, the respondent was required to work in wet conditions which caused his feet to sweat, aggravating the tinea to the degree that the respondent became wholly incapacitated from working.

10 The learned Commissioner did not expressly determine that the worker was entitled to compensation but concluded the document attached to the "Notice of Order" with this paragraph:

"At the hearing I informed the parties I would notify them of my decision in writing. I will leave it to the parties to settle the amount of compensation due. Failing agreement the dispute can be referred to me."

11 With respect, the documentation fails to adequately record the discharge of the learned Commissioner's functions. There is no record of his having made any order as required by s61, the "Notice of Order" signed by the Registrar not purporting to record any order made by the Commissioner, and referring only to an attached document containing some findings of fact. Nowhere in that document does the learned Commissioner purport to make any order. While no doubt the new Workers Compensation Act procedures are intended to be conducted with less formality than was hitherto the case, the need for precision and certainty is obvious, even leaving aside the obligations imposed by s61. Nevertheless I think a fair reading of the document described in the "Notice of Order" as reasons for decision and attached to it makes it clear that the Commissioner did make a determination that the appellant was, by virtue of the facts he had found, liable to pay to the respondent compensation in accordance with the Act, although the quantum was not yet settled and that this determination is sufficient basis for the appeal under s63.

12 The appellant's liability to pay compensation to the respondent is created by s25(1) of the Act which provides:

"25-(1) If in any employment -

(a) a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or

(b) a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree,

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

(c) to the worker; or

(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."

"(1) In this Act, unless the contrary intention appears -

.....

'disease' means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development;

.....

'injury' includes a disease;

.....

(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred -

(a) on the day on which the worker became totally or partially incapacitated by reason of that injury; or

(b) if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury.

(6) Where a medical practitioner is unable to certify as to the day on which a worker was first incapacitated by reason of an injury referred to in subsection (5) or where there is a dispute as to the day on which such an injury occurred, the matter may be referred, as prescribed, by the worker or his employer, to the Commissioner for determination as to the day on which the injury occurred and the day so determined by the Commissioner shall be deemed to be the day on which that injury occurred."

14 Whether or not the injury the subject of any claim is a disease within the meaning of the Act, compensation is only payable for that injury if it is first established that in the relevant employment the worker suffers that injury and that injury arose out of and in the course of his employment.

(a) Tinea is a disease within the meaning of the Act;

(b) The respondent sought weekly payments of compensation during the period of his disability resulting from the tinea from which he was suffering;

(c) The injury suffered by the respondent was therefore a disease;

(d) It followed that the respondent did not fall within s25(1)(a);

(e) As the learned Commissioner did not find, and could not have found, that the disease of tinea was contracted by the respondent in the course of his employment with the appellant, the respondent did not fall within s25(1)(b); and

(f) It followed that the respondent was not entitled to weekly compensation.

16 I think the fallacy of this argument lies in the focus given to the nature of the disease, its clinical description and how it was contracted. In my view the starting point is to look at the nature of the injury. In Coates v Commissioner for Railways [1964] NSWR 1292, a case dealing with industrial deafness, Walsh J said, at pp1295-1296:

"But the argument here being considered seems to me to rest upon a mistake as to the way in which the term 'injury' should be understood and upon confusion between an injury and the causes which, according to expert evidence, have produced it. In relation to a case such as the present, I think it can properly be said that an injury occurs when, and not until, there has been a significant and measurable diminution of hearing. We are concerned with an Act which provides compensation for injury. An injury may result from many small causes, but it is not until these have had an appreciable effect that it can be said that an injury has occurred. Of course, the stage which must be reached to attract compensation was fixed formally (sic) in all cases, and now in many cases, by reference to incapacity."

For present purposes, the stage at which an injury which is a disease is deemed to have occurred and thus have been suffered by the worker is the date of incapacity, notional or otherwise, as established in accordance with s3(5) or (6).

17 Although the worker for some time had a condition clinically known as "tinea" which falls within the definition of "disease" in s3(1), no question of an entitlement in respect of it could arise in the abstract. What gives rise to an entitlement is the suffering by him in his employment of an injury which arose out of and in the course of that employment. In this case the evidence shows that the injury suffered was a bout of tinea attended by symptoms of such severity as to incapacitate him for work. In my view, such condition clearly falls within the meaning of disease as defined in the Act and is deemed to have occurred when he became incapacitated for work. Furthermore the learned Commissioner found that it arose out of the employment. Being an injury which has the added characteristic of being a disease, it fell outside s25(1)(a) and was compensable if it complied with the further condition laid down in s25(1)(b), namely that it was a disease to which his employment contributed to a substantial degree.

18 The Act does not require proof that the disease was contracted by the worker in the course of his employment with the appellant. All that is required is that the disorder or morbid condition (whether of sudden or gradual development) which constitutes the injury was one which arose out of and in the course of his employment and to which his employment contributed to a substantial degree. The learned Commissioner so found, even though he described the condition as the aggravation of a pre-existing disease.

19 In the Workers' Compensation Act 1927, which the Act replaced, "disease" was defined in these terms:

"'disease' means any disease or condition specified in Schedule II, and includes the aggravation, acceleration, or recurrence of any such disease or condition".

The diseases and conditions specified in Schedule II ranged from conditions specifically identified by their clinical names (eg brucellosis and pneumonokoniosis) or more generally identified by reference to their cause (eg "diseases resulting from exposure to, or inhalation of, asbestos fibres or asbestos dust, including, without prejudice to the generality of the foregoing words, asbestosis and mesothelioma"). Entitlement to compensation for such a disease depended upon proof that the worker in any employment "is disabled or dies as the result of a disease, arising out of and in the course of his employment." The need for a specific reference to the aggravation, acceleration or recurrence of a disease was therefore readily understandable and the failure of Parliament to re-enact such words as part of the definition of the much broader concept of disease in the 1988 Act cannot justify the conclusion that the aggravation of a pre-existing recognisable clinical condition falls outside the definition of "disease" in that Act.

20 The learned judge who heard the appeal from the Commissioner expressed the view that the disease from which the respondent was suffering was tinea and "one cannot consider various stages or various levels of seriousness of that condition as constituting separate or distinct diseases". With respect, however, until he was disabled by the symptoms of tinea, the respondent did not, within the meaning of the Act, "suffer" any injury and whatever disorder or defect to which he was subject prior thereto was not a disease which he suffered. When disability eventuated he was shown, on the evidence, to be suffering from a morbid condition which could itself properly be described as a disease and for which he was entitled to compensation if he could establish that it arose out of and in the course of his employment and that it was a condition to which his employment contributed to a substantial degree. If it improved and the respondent, being subjected to the same working conditions, had suffered a further outbreak whether of greater or less severity which again disabled him, he would again have suffered an injury which could properly be described as a disease even though it may have taken a slightly different form or level of seriousness. As it is the condition at the time of disablement which must be classified as a disease or not, reference to aggravation, acceleration, recurrence or exacerbation or the like of a pre-existing disease is neither necessary nor helpful.

21 In my opinion, the hurt or injury suffered by the respondent amounted to a disease, and having, on the findings of the learned Commissioner, satisfied the requirements of s25(1)(b), was compensable as such. For many years, there has been debate as to whether disease, not falling within extended definitions of injury in the various Workers' Compensation Acts in Australia because the condition was not proved to have been contracted by the worker in the course of his employment or one to which the employment was a contributing factor, may yet be treated as an injury simpliciter and be compensable as such (see, in particular, the cases reviewed by Gibbs CJ in Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124). To my mind the present Act seeks to avoid such controversy by defining disease without reference to its cause or manner of contraction. The primary question in each case is whether or not the injured condition of the worker at the time the injury is suffered is properly described as a disease. If it is then, notwithstanding that under some legislation such a condition might also have been described as an injury simpliciter, it is only compensable under the Act if in addition it is proved that his employment contributed to it to a substantial degree.

PASMINCO AUSTRALIA LIMITED v HOWARD JOHN FAIRCHILD

23 My learned brother Cox has set forth the relevant facts and legislation in his reasons and there is no need for me to repeat them. I agree with him that the appeal is competent.

24 As previous judgments in this Court have demonstrated, the terminology employed in the 1988 Workers' Compensation Act is both confused and confusing. It may be argued that it is reasonably apparent that the intention of Parliament was to provide compensation to a worker who is incapacitated by disease whether or not the disease originally develops as a consequence of his working environment, provided that environment contributes substantially to his disablement. If this was Parliament's purpose, why it could not have been stated more simply than it is in s25(1)(b), is a mystery to me.

25 The plethora of litigation in this and other jurisdictions dealing with similar legislation over many decades should have produced greater clarity in expressing such a concept than is to be found in s25 of the 1988 Act. I go so far as to say that, whatever its meaning, s25 is in need of urgent revision if the workers of this State are not to be severely disadvantaged by legislative provisions which, in respect of diseases in general, are no more beneficial than those contained in the repealed Workers' Compensation Act 1927 and which, in respect of Schedule II diseases specifically mentioned in that Act, are far less beneficial. I say this because it is plain that under the present Act, in the case of "an injury, which is a disease" (itself almost a contradiction in terms in my opinion), the worker must show that it is an injury "arising out of and in the course of his employment". The meaning of this phrase is clear. As stated by Gibbs CJ in Hockey v Yelland [1984] HCA 72; (1984) 56 ALR 215 at pp220-221:

"The meaning of the expression 'arising out of or in the course of employment' is well understood. The words 'out of' express causality, and require that the injury had its origin in the employment, but the words 'in the course of' require that the injury must occur 'whilst the worker is doing something which is part of his service to his employer or master or incidental to the employment, or, in other words, whether the workman was at the time of the injury about his own business or that of his master': South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 at 502. That case was decided when the phrase was conjunctive and required two conditions to be fulfilled, but the meaning of the words has not altered now that in more liberal legislation the expression is disjunctive."

26 It will be noted that the "liberal legislation" referred to by his Honour has not been adopted in Tasmania and that the phrase is still used conjunctively in the 1988 Act. In addition, we have the requirement that the employment must have "contributed" to the injury to "a substantial degree". This is no doubt a hangover from the "aggravation, acceleration or recurrence" provision which was included in the definition of "disease" in the 1927 Act.

27 However under the 1927 Act a worker did not have to show that he was "injured" by the disease. If he could show "disability" (or his relatives could show "death") resulting from a Schedule II disease or from its aggravation, acceleration or recurrence, compensation could be recovered provided that it could be shown that the disease, its aggravation, acceleration or recurrence arose out of and in the course of his employment.

28 The 1988 Act defines injury as including "a disease" - a definition which in the context of the Act creates considerable difficulty. See the comments of Underwood J in The Electrolytic Zinc Co of Australasia Ltd v Maister Serial No 23/1990 at p13 ([1990] Tas R 91) and the comments of Zeeman J in dealing with the present matter at first instance at p4 of his reasons for judgment. The difficulties of construction created and perpetuated by this legislation may well have been overcome by adopting or adapting the terminology of s6(1) of the New South Wales Act as it stood at the time it was considered in Darling Island Stevedoring and Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19.

29 In my opinion there are substantial difficulties in reaching a conclusion favourable to the respondent either by the path adopted by Zeeman J at first instance in regarding the respondent as having sustained an injury and thus having established an entitlement under the provisions of s25(1)(a), or by the alternative path adopted by Cox J under s25(1)(b). I must say however that I agree with both my learned brethren's rejection of the approach adopted by the learned Commissioner. To find so many difficulties of construction in a section of such recent origin and of such fundamental importance to legislation which had such a prolonged and public period of gestation is a saddening experience.

30 In my opinion there is little room for doubt that if the respondent's claim is to have any prospect of success, it must be brought within s25(1)(b) and cannot be accommodated under s25(1)(a). I share my learned brother Cox's reasons for so concluding and cannot usefully add to them.

31 However the respondent has to demonstrate that the injury which he suffered, i.e. the incapacitating event or condition was one "arising out of and in the course of his employment". Because s25(1)(a) cannot apply, the assistance provided by s25(5) in respect of "an injury not being a disease" is of no avail, and, because tinea, its manifestations or sequelae, are not referred to in Schedule 4, s26 cannot be called in aid.

32 The respondent must be able to show a causal relationship between the morbid condition producing his incapacity and his employment. Gibbs CJ said in the passage quoted above, "The words 'out of' express causality, and require that the injury had its origins in the employment". It is plain from Smith v Australian Woollen Mills Ltd [1933] HCA 60; (1934) 50 CLR 504, especially at p516; Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 and Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482, that so long as the employment was a contributing cause to the relevant condition the causal relationship required by the Act is sufficiently established. Upon this basis the learned Commissioner was entitled to find, as he did, that the respondent's condition "arose out of" his employment.

33 Whether he was entitled to find that the second and cumulative requirement that the disabling event occurred "in the course of his employment" or, to use Gibbs CJ's words, "whilst the worker [was] doing something which [was] part of his service to his employer" is less clear cut. Whilst it is now unnecessary to establish that "an accident" precipitated the disease, it is still necessary to show that the compensable disease occurred when the worker was performing his employment - not necessarily that he was actually engaged in some specific task that he was required to carry out - but still that it came about during the currency of his attendance at his job. To look for such a factor in respect of a disease which is usually of gradual or even imperceptible onset and which may fluctuate between disabling and non-disabling phases, is a difficult, if not well nigh impossible, task. To say when the compensable event actually occurred will often be as difficult as defining when day becomes night or hot becomes cold. Nonetheless that is the task which has been cast upon the Commissioner.

34 Regrettably the learned Commissioner did not advert to the necessity of making a finding on this issue and did not do so. Furthermore, there was little or no evidence directed to this particular issue during the hearing before him. Neither of these omissions surprises me. They are hardly sensible factors for anyone to have to consider. One's natural inclination is to regard the question of whether or not the worker's employment contributed substantially to his injury as the real issue for resolution. Unfortunately this is not the case as s25(1)(b) positively requires a finding that the incapacitating disease arose "in the course of" the worker's employment before the worker can succeed.

35 A requirement such as this is entirely understandable in the case of an injury arising from accident or other sudden and identifiable cause. In circumstances such as the present it is nonsense, but I can see no way around it. The problem is in no way alleviated by the provisions of s3(5):

"(5) For the purposes of this Act where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred -

(a) on the day on which the worker became totally or partially incapacitated by reason of that injury; or

(b) if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury."

36 To find that a disease occurred on a particular day goes only part of the way to showing that it occurred in the course of the sufferer's employment. Zeeman J, at p6 said, "The disabling event could be categorized as arising out of and in the course of the respondent's employment in that it arose out of and was activated by, the wet conditions in which the respondent was required to work." With due respect I think that this observation fails to make the distinction which I feel compelled to make. I have the suspicion that the words "arising out of and in the course of his employment and ..." in s25(1)(b) found their way into the Act by oversight or error, but at the very least, I would have expected these requirements to be expressed disjunctively.

37 However whilst they are in the Act and must be given some meaning, I am driven to the very reluctant conclusion that the present appeal must succeed and that the claim must be remitted to the Commissioner for further consideration.

38 In light of this conclusion there is no need for me to express a final view as to whether or not the disabling phase of the respondent's tinea could or should be regarded as a separate or distinct disease or injury, a view which it was submitted was contrary to the approach taken by Dixon CJ in Darling Island Stevedoring and Lighterage Co Ltd v Hussey (supra) at pp495-496, although Dixon CJ's approach was not followed by Barwick CJ in Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 8 ALR 649 at pp565-657.

39 I should say however that I have no doubt that the learned Commissioner was entitled to find as in fact he did find, that the respondent's employment contributed substantially to his condition.