Redmayne v Comcare Australia (Unreported AAT Decision No 10950) Re Hairis and Comcare (1991) 23 ALD 379 Hume Steel Limited and Peart [1947] HCA 34; (1947) 75 CLR 242 The Commonwealth and Another v Hornsby [1960] HCA 27; (1960) 103 CLR 588 Kavanagh and The Commonwealth [1960] HCA 25; (1959-60) 103 CLR 547 The Darling Island Stevedoring and Lighterage Co Limited and Hankinson [1967] HCA 10; (1967) 117 CLR 19 Hockey v Yelland [1984] HCA 72; (1984-85) 157 CLR 124 O'Neill v Lumbey (1987) 11 NSWLR 640 Ogden Industries Pty Limited and Lucas [1967] HCA 30; (1967) 116 CLR 537 Casarotto v Australian Postal Corporation [1989] FCA 116; (1989) 17 ALD 321 Hatzimanolis and ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626 Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369 Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 82 ALR 54 Re Ellis and Commonwealth of Australia (1985) 3 AAR 146 Westgate v Australian Telecommunications Commissions (1987) 17 FCR 235 O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154 Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321 Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533

Solicitors for the Applicant: MacMahon Drake Balding

Solicitors for the Respondent: Australian Government Solicitor

G. ETTINGER, M.E.C. THORPE and M.M. McGOVERN 1. The matter before the Administrative Appeals Tribunal ("the Tribunal") concerned a decision of Comcare dated 20 February 1995 (T10/30), which affirmed its previous decision dated 9 December 1994 (T5/21) to disallow the Applicant's claim for compensation in relation to a fracture to the Applicant's upper right first premolar tooth. The fracture had occurred while he was working, and eating peanuts at his desk on 31 October 1994.

2. The Applicant was represented by Mr G Johnson of Counsel and the Respondent by Mr R Derrington of Counsel. The Applicant gave oral evidence before the Tribunal. Dr Mahshad Habibi, the Applicant's dentist, gave oral evidence by telephone.

3. The Tribunal accepted into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") (T1 - T10) as Exhibit R1 and the following: Report of Dr M Habibi 17 May 1995 Exhibit A1 Report and clinical notes 21 July 1995 Exhibit R2 of Dr M Habibi

4. The issues before the Tribunal were: (a) whether the Applicant suffered an "injury" within the meaning of section 4(1) of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"); (b) whether the Applicant is entitled to compensation pursuant to section 14(1) and section 19 of the 1988 Act for time lost from work and for expenses in relation to a claim for dental restorative work pursuant to section 16 of the 1988 Act.

5. The relevant legislation in these proceedings is the Safety, Rehabilitation and Compensation Act 1988, in particular sections 4, 14(1), 16 (1) & (2), 19 and 67(8).

6. The 1988 Act as relevant follows: "14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. (2) to (3) ..." (Omitted) 16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. (2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment. (3) to (9) ..." (Omitted) 19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies. (2) to (14) ..." (Omitted) 4. (1) In this Act, unless the contrary intention appears: "injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment; "disease" means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; "ailment" any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); "aggravation" includes acceleration or recurrence;"

APPLICANT'S EVIDENCE 7. The Applicant told the Tribunal that he had been working with Comcare since December 1986. He said that he had held his current position as an Administrative Service Officer, Grade 5, in October 1994. His duties included looking after Comcare's interests in cases where workers compensation and common law matters had come together. He also said that he recovered workers' compensation from award settlements, and instructed the Australian Government Solicitor in relation to the settlement of common law claims.

8. The Applicant said that on 31 October 1994 he was going about his duties and was nibbling some nuts throughout the day when he experienced "a sensation of something not quite right". He explained this as follows: "...I bit down and I couldn't tell immediately what I'd done. I thought I'd broken a tooth but I wasn't sure that that's what happened... I thought it was the gold crown that was on the tooth had come loose. I could still chew. It wasn't painful, but it just felt loose. I thought maybe... the whole tooth had come loose... I thought it might have just been a nut that I'd bitten on and not my tooth that had given me this sensation..."

9. The Applicant also said that he heard "a different sort of crunching sound". He told the Tribunal that he tried to continue eating, but could not. He said that "it wasn't painful to bite but it was certainly not comfortable..." The Applicant did not agree with Mr Derrington's suggestion that his tooth might have cracked earlier, and had only come free at this stage, as: "Teeth are pretty sensitive and ... I knew straightaway it was that instant."

10. The Applicant said that he looked in a mirror to try and ascertain what had happened. After checking, he said "it still wasn't obvious", and believed "it was merely the crown that had come loose..."

11. The Applicant told the Tribunal that he attended Dr Habibi, a dentist, after work on that day. He said that she examined the tooth he thought he had broken, and told him it was fractured. He said that she removed some of the old filling, and put in a sedative dressing.

12. He said he subsequently visited Dr Habibi with regard to that tooth on about ten occasions. Dr Habibi's practice was in Warriewood, Sydney, near where the Applicant lived he said. The Applicant confirmed that he was absent from work the following times due to the tooth: (a) 9 November 1994, from 2.30 pm to 4.51 pm (b) 17 November 1994, from 8.30 am to 11.30 am (c) 29 November 1994, the entire day (d) 30 November 1994, from 8.30 am to 10.30 am (e) 6 December 1994, from 8.30 am to 12.00

13. The Applicant told the Tribunal that since the incident on 31 October 1994, he had incurred expenses totalling $490 for ten visits to Dr Habibi. He also indicated that he intended to have another crown on his tooth, the likely cost of which would be between $500 and $700.

14. The Applicant said that he attended Dr Habibi on 20 December 1994 and received treatment, but could not remember whether he took time off work as a result. The Applicant said that he had not received further treatment since that visit.

15. The Applicant was then asked about his dental treatment prior to the incident at work on 31 October 1994. He said that a crown was installed "quite some time ago... years before this injury". He also said that he had root canal therapy on the upper right premolar, removal of the nerve, and a filling in 1993 by a dentist in Dr Habibi's practice. During cross-examination, the Applicant said that he had had two other root canal therapies and fillings.

16. The Applicant indicated that he had been eating nuts at work for "the last couple of years..." He told the Tribunal that he probably bought a half kilogram bag of nuts every two months from a warehouse near the office, and would nibble a few every day while working. He told the Tribunal that there was no formal tea break, and that he would eat when hungry.

17. He said that other people in the office would also eat his nuts, including his supervisor, Mr Glen Marks. He said that no-one ever told him that he could not eat nuts in the workplace.

18. The Applicant said that he was not aware that eating peanuts might have caused damage. Since the incident on 31 October 1994 he said he continued to eat peanuts at work, and was not worried about fracturing other teeth. He said that once his tooth was fully repaired, "it felt great."

19. Dr M Habibi, dentist, gave telephone evidence to the Tribunal. She told the Tribunal that Mr Epple had been seen by her colleague at the surgery in March 1993, and had undergone root canal therapy. Dr Habibi said that she examined the Applicant for the first time in July 1993, and had seen him subsequently. She said she had treated an upper right pre-molar tooth on a number of occasions from 31 October 1994 to 20 December 1994, and the Applicant's other teeth thereafter.

20. Dr Habibi told the Tribunal that when she examined the Applicant on 31 October 1994 she found that he had suffered a complete fracture of his upper right first pre-molar, which went below the gum. She described it further as an "oblique fracture... extending from the crown (diagonally) across the tooth, involving part of the crown and part of the root..." Dr Habibi said in response to questioning that she was not certain when the fracture occurred but that given the gingival condition of the Applicant's teeth, she estimated it would have been "fairly recent" and within two days of the visit.

21. In Dr Habibi's opinion the tooth had fractured as a result of eating or, specifically, chewing nuts. However, she indicated that there were various factors which made the Applicant's tooth more susceptible to fracture. The first was that the tooth had undergone root canal treatment which had reduced the blood supply and had made it more brittle. This was because the procedure involved cleaning out the tooth, and endodontic treatment.

22. The second factor referred to by Dr Habibi was the Applicant's habit of bruxing or grinding his teeth. This, she explained, had caused cracks on his vital teeth, which made them more susceptible to fracture. Nothing could be done to repair these cracks unless further damage occurred. Dr Habibi noted: "Anything could cause a fracture of a tooth, if the tooth is already cracked... It could be just something very soft (such as eating) a sandwich."

23. When asked about the Applicant's overall dental condition, Dr Habibi indicated he had "a lot of wear on his teeth." She noted that certain teeth had been fractured and repaired previously. She estimated that the Applicant had attended her surgery with a fractured tooth about three times.

24. Dr Habibi also pointed out that the Applicant had an inlay in one cusp of the tooth which had fractured on or about 31 October 1994. The Applicant described it in lay terms as a crown.

25. Dr Habibi told the Tribunal that it was possible for the tooth to be fractured but for there to be no movement initially. However, she said "usually if it is fractured... you do feel something. You would feel either the movement in the tooth or pain on the ligament by the fractured pieces." She said she would have expected a person to notice movement in a broken tooth fairly soon afterwards.

26. Dr Habibi said that the pain associated with a fracture of the tooth depended on the level of fracture. She indicated that it tended to be painful if the tooth had broken below gum level and the broken pieces of the tooth had not completely separated.

27. Dr Habibi said that when she saw the Applicant on 31 October 1994 she removed the gold inlay and put a temporary one in its place. She said that she planned to do a reconstruction on the tooth, a crown but had not been able to proceed immediately because the tooth was infected. Dr Habibi explained that some pus had drained from the tooth. She said that while this infection could have been related to the fracture, she thought that it was probably present but dormant at the time of the root canal treatment. This conclusion was based on her observation that "the infection had become so apparent".

28. After treatment of the tooth, Dr Habibi intended to put on a crown which could cost between $600 to $800 she said. She indicated that she also intended "to do a bit of gingival surgery just to expose the level where the tooth has been fractured, but that's all."

29. The Tribunal notes that written and oral submissions were made both in this matter and the matter of Redmayne and Comcare (unreported AAT Decision No 10950) (heard the previous day, 3 October 1995), and that many of the arguments advanced were submitted as being common to both cases. The Tribunal has as a matter of course considered all the submissions made in reaching its conclusion although each has not been detailed below.

30. Mr Johnson on behalf of the Applicant, drew the Tribunal's attention to section 4 of the 1988 Act which defines what "injury" means in terms of the 1988 Act in its paragraphs definition of "injury" (a), (b) and (c). Both Counsel cautioned the Tribunal with regard to applying authorities arising under legislation employing different definitions for injury. Both Counsel then cited authorities from other jurisdictions extensively.

31. Mr Johnson drew attention to the exclusions with regard to disciplinary action, failure to obtain promotion, transfer and benefit, none of which applied in this case he submitted. This was not disagreed by the Respondent and the Tribunal so finds.

32. The Tribunal is mindful that in this case, the parties agreed that a temporal connection existed between the breakage of the tooth and the workplace so that if an injury simpliciter were to be a finding by the Tribunal, the Applicant would be compensated.

INJURY SIMPLICITER OR AGGRAVATION OF AN INJURY 33. Mr Johnson submitted that "injury (other than a disease)", as defined in section 4 of the 1988 Act was "injury (other than a disease) suffered by an employee being a physical or mental injury arising out of, or in the course of the employee's employment." Applying this to Mr Epple, he submitted that in this case the breakage of the Applicant's tooth could be characterised as an "injury" simpliciter or an "aggravation of an injury" (not a "disease" or "aggravation" of a "disease"), and that it was "in the course of Mr Epple's employment." Only a temporal connection with the employee's employment was necessary to attract the liability of the Respondent. He told the Tribunal that the evidence, tested and unrefuted, was that Mr Epple had been at his desk working on the morning of 31 October 1994 when he had fractured his upper right first pre-molar tooth whilst eating peanuts.

34. Mr Johnson submitted that "injury" was anything within the normal meaning of the word "injury" defined in the Macquarie dictionary, he said, as "harm of any kind done or sustained" or "a particular form or instance of harm." Mr Johnson referred to the decision Re Hairis and Comcare (1991) 23 ALD 379 where at 384 he said, the Tribunal had observed that "...the word 'injury' bears its normal meaning of harm or hurt as well settled by case law." He submitted that passages from Hume Steel Limited and Peart [1947] HCA 34; (1947) 75 CLR 242 at 252 per Latham J and The Commonwealth and Another v Hornsby [1960] HCA 27; (1960) 103 CLR 588 at 597 per Fullagar J were referred to in Hairis (supra), which he said, offered some indication of the reach of the concept of "injury" simpliciter not being a disease.

35. Mr Johnson submitted that the above authorities dealt also with "injury by accident" which could be internal as well as external. In this connection he cited Kavanagh and The Commonwealth [1960] HCA 25; (1959-1960) 103 CLR 547.

36. Mr Johnson said that it had been held that cases of internal physical injury such as the rupture of an aneurism, breaking of an artery, and breaking of a leg were not properly to be regarded as cases of disease, but that these were cases of injury within the normal acceptance of that word (Hornsby (supra), and O'Neill v Lumbey (1987) 11 NSWLR 640). Mr Johnson drew the attention of the Tribunal to a passage in O'Neill v Lumbey (supra) at 655C-D where Clarke JA had said: "... In ordinary language, a disease is understood as connoting an ongoing process which is to be distinguished from a structural defect which can be repaired or removed. In the case under discussion the weakness was effectively repaired after the rupture..."

37. The Tribunal does not find the discussion regarding "internal injury" entirely relevant to Mr Epple's case as the evidence demonstrates that the fracture to his tooth occurred through an external force, crunching peanuts.

38. Mr Johnson sought also to rely on The Darling Island Stevedoring and Lighterage Co Limited and Hankinson [1967] HCA 10; (1967) 117 CLR 19 where the injury to the worker suffering from an infection which had partially destroyed some of his spinal structures suffered the collapse of certain infected vertebra after lifting a heavy weight at work, and was found to have suffered an "injury" simpliciter.

39. In this connection, Mr Johnson also referred to a passage of Gibbs CJ in Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 where in addition to discussing other cases, his Honour referred to Hankinson (supra). The Tribunal notes that in Hankinson (supra), (unlike in the case of Mr Epple), the Applicant was lifting a heavy weight as part of, and in the course of his duties.

40. Referring to O'Neill v Lumbey (supra), Mr Johnson submitted that the damage suffered to Mr Epple's tooth was structural, albeit to a tooth weakened by previous root canal therapy, and that it was capable of mechanical repair by his dentist. Having considered all the evidence, the Tribunal does not accept that it was a question of simple mechanical repair as the tooth could not be restored completely, and had in fact broken due to the fact it was weakened by previous dental work and infection.

41. Mr Johnson also submitted that even if the breaking of Mr Epple's tooth were found by the Tribunal to be an "aggravation" of an injury, that is if it had been "made worse", a mere temporal connection sufficed. In support he cited, Ogden Industries Pty Limited and Lucas [1967] HCA 30; (1967) 116 CLR 537 and Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331. He also referred the Tribunal to the judgment of Hill J in Casarotto v Australian Postal Corporation [1989] FCA 116; (1989) 17 ALD 321 where Hill J commented on distinguishing "acceleration" from "aggravation" in terms of the Act. Mr Johnson submitted on behalf of the Applicant that the work incident in Mr Epple's case worsened the state of his tooth, and that he needed treatment and some time off work.

42. Mr Derrington submitted to the Tribunal that Mr Epple's tooth was weak due to the root canal therapy it had undergone; it had poor blood supply, a previous infection, and it had cracks probably as a result of grinding. The tooth had an underlying predisposition to fracture and a physical defect which could be characterised as a disease and thus an ailment. He submitted that the word disease was framed widely in the 1988 Act but that where a person is diseased or suffers a disease within the meaning of the legislation, the Commonwealth does not become an insurer for every aggravation of that disease. For it to be compensable, an aggravation suffered at work would have to be shown to arise out of the employment. "The philosophy of the Act is to provide compensation for aggravations which are contributed to, even in a marginal degree, or a material degree, it is said, but even in a very small way by the employment."

43. Mr Derrington continued by saying that a line was drawn to identify the contributing factor to the aggravation of a disease, and to some incident or state of affairs to which the worker was exposed in the performance of his duties. It was a matter of whether the exposure at work was greater than it would otherwise have been. In Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321 he said, which dealt with a worker's melanoma, it was held that the worker there had a greater exposure to the sun than he would otherwise have had, due to his work. Referring to Mr Epple, Mr Derrington said that he had no greater exposure simply because he was at work. The fracture of his tooth was of mere temporal passive connection with the employment. The pressure on Mr Epple's tooth which caused it to fracture would have occurred at any time when he felt hungry and chose to eat peanuts. A food taster might be exposed to more eating than others, and might have the eating of food as part of her or his duties, but there was no evidence that the Applicant was required even peripherally to eat peanuts at work. (Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126)

44. The Tribunal has considered the submissions of the parties with regard to the Applicant's fracture of his tooth and whether it can be regarded as an injury simpliciter within the legislation. There is no doubt that Mr Epple was at his place of work, and were this to be regarded as an injury simpliciter, his presence at work, in the course of employment would automatically attract liability of the Commonwealth. The Tribunal is satisfied that in Mr Epple's case, the eating of peanuts was tolerated and did not attract any sanctions.

45. There is no disagreement that the Applicant's evidence and that of his dentist demonstrate that there was a predisposition to fracture of the right upper premolar when it broke on 31 October 1994. Dr Habibi informed the Tribunal, which accepts her evidence, that the tooth had had root canal treatment. The Tribunal accepts from Dr Habibi's evidence that the tooth had an infection, it was diseased and was brittle due to the reduced blood supply. The tooth thus had a physical defect, an ailment when one considers the definitions in the legislation and principles established by the relevant case law.

46. The Tribunal finds that the fracture was not an injury simpliciter, and therefore a mere temporal connection does not suffice to attract the liability of the Commonwealth. To be compensated, the Applicant would have to show a causal or contributory connection.

47. In the alternative, the representatives of the parties also made submissions with regard to the aggravation of an injury. To attract liability of the Commonwealth, the legislation requires that aggravation arise out of or in the course of employment. The implications of aggravation within the legislation have been established in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 and Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 17 ALD 321. Having heard the evidence regarding Mr Epple's tooth, subject of this claim, the Tribunal cannot accept that the breakage was an aggravation of an injury. Dr Habibi's evidence was that the tooth was weakened through having undergone root canal therapy and was infected. The Tribunal will therefore consider Mr Epple's case in terms of "disease" or "ailment" which require that a material contribution by the employee's employment occur before compensation may be attracted.

DISEASE - AILMENT - AGGRAVATION 48. In the alternative, Mr Johnson raised the definition of "disease", as defined in section 4(1) of the 1988 Act, noting that "disease" was defined as "ailment or aggravation of such ailment". The Tribunal notes that to invoke liability of the Commonwealth, material contribution to the ailment or aggravation has to be contributed by the employee's employment.

49. The Tribunal notes the definition of "ailment" in section 4(1) of the Act as meaning "...any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)." Some dictionary definitions of some of the above terms were also drawn to the attention of the Tribunal.

50. Mr Johnson then posed the question whether the expression "other than a disease" operated to exclude the Applicant from paragraphs (b) and (c) of the definition of "injury" in section 4(1) of the Act. Mr Johnson submitted in studying the definitions of disease, injury and ailment that there was some circularity in the definitions. He continued by analysing the other words used in the definitions (b) and (c) of "injury."

51. Mr Johnson referred to Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 in which Windeyer J in Semlitch (supra) was cited by Davies J as follows: "When the Act speaks of 'the employment' as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or of the conditions in which it was performed." "... the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it..."

52. Mr Johnson also drew to the attention of the Tribunal the approval Davies J gave to Pincus J in O'Neill v Commonwealth Banking Corporation (1987) 75 LR 154. Davies J had said there: "...It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself...."

53. As to Mr Epple; Mr Johnson submitted that "the contribution (from the employment) had been significant, and included production of pain and creation or hastening of the need for corrective dental treatment."

54. Mr Derrington, Counsel for the Respondent, submitted that Mr Epple's situation was that of a "disease." He relied on Semlitch (supra), and Clarke JA in O'Neill v Lumbey (supra). He submitted that Mr Epple's tooth in its "rehabilitated" state was structurally unsound and more susceptible to aggravation than a "normal" vital and healthy tooth. He continued, "...There can be little doubt that the physically defective tooth was 'aggravated' by its collapse on the eating of a peanut." Mr Derrington submitted to the Tribunal that he was in his submissions relying on Semlitch (supra), Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369, Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 82 ALR 54.

55. Mr Derrington continued saying that once aggravation of an ailment or disease is found and that aggravation has not been contributed to in a material degree by the employee's employment, the incident falls outside the definition of "injury." (Re Ellis and Commonwealth of Australia (1985) 3 AAR 146).

56. The Tribunal has considered the submissions of the parties with regard to the Applicant, and finds that Mr Epple suffered a "disease" pursuant to the definition of "injury" in paragraph (a) in section 4(1) of the 1988 Act. The uncontroverted medical evidence was that his tooth was weakened by root canal therapy which had been conducted earlier, and by his bruxing. It had fractured whilst he was eating peanuts, and whilst further dental work could restore the tooth, it could not be characterised as a structural fault which could be repaired. Rather the tooth suffered a defect or morbid condition, an ailment. It could not return to its original condition. Therefore to attract liability of the Commonwealth, it was necessary to consider the contribution of the employee's employment.

THE EMPLOYEE'S EMPLOYMENT 57. Both Counsel made submissions about the phrases "arising out of or in the course of the employee's employment" and "contributed to in a material degree by the employee's employment" which form part of the definition of "injury" in section 4(1) of the 1988 Act.

58. Mr Johnson submitted that the expression "in the course of (the employee's) employment", denoted no more than a temporal (rather than causal or contributory) connection between the "injury" and the "employment". He submitted that this included "activities authorised or allowed or growing out of the employment" or things "incidental" to what the worker was employed to do as well as the actual work that he was employed to perform. Relating this to Mr Epple, Mr Johnson submitted that eating nuts at his desk could not be contended to have taken him out of the course of his employment. He said further in his written submission: "It was not misconduct let alone gross misconduct, and indeed eating nuts (or other snacks) at his desk while working was in fact something which he was (and still is) authorised or expected to do." He emphasised that other people also ate the nuts, including Mr Epple's supervisor.

59. Referring the Tribunal to Kavanagh (supra), Hockey (supra), Hatzimanolis and ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 and other leading cases, Mr Johnson submitted that "in the course of employment" had been interpreted increasingly beneficially over the years.

60. Mr Derrington submitted that Hatzimanolis (supra) had not considered the concept of "the employee's employment by the Commonwealth." Rather, what had been considered there, had been "the course of employment." He submitted that the leading decision with regard to the concept of "the employee's employment" was Semlitch (supra). Mr Derrington drew the Tribunal's attention to statements made by their Honours in that case, quoting from Windeyer J at 641 -2 as follows: "The requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributory factor, it refers not to the fact of being employed but to what the worker in fact does in his employment.."

61. Mr Derrington also drew attention to the fact that the definitions in Semlitch (supra) were applied by the Full Court of the Federal Court in Treloar (supra), a decision which arose under the Compensation (Commonwealth Government Employees) Act 1971 "the 1971 Act"). He submitted that Treloar (supra) emphasised the correlation between the concept "the course of employment" and "the employment."

62. Mr Johnson submitted on behalf of the Applicant, that if the Tribunal was not minded to consider the incident an injury simpliciter, or an aggravation of an injury, then in the alternative, the Applicant may have suffered an aggravation of an ailment which was contributed to in a material degree by his employment with the Commonwealth. He quoted their Honours in Treloar (supra) as follows: "All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth be part of the cause....it matters not that the contribution is large or small..."

63. Mr Derrington emphasised that arising out of Semlitch (supra) and Treloar (supra) was the concept that the event causing the aggravation of the ailment had to be one of the characteristics of the work to be performed or some state of affairs to which the Applicant was exposed and to which he would not otherwise have been exposed. He submitted that it was clear that eating was not one of those characteristics of the work performed or the conditions in which it was performed to which the Applicant would not otherwise have been exposed. Mr Epple was not a professional taster, neither was he required to eat during his work time.

64. Mr Derrington submitted that no characteristic of "the employment" contributed to the force against the defective tooth, neither was the risk of force on the structurally defective tooth something to which the Applicant was not otherwise exposed. The Applicant's "employment" was merely passive and not a contributing factor in the circumstances whereby the aggravation of the disease occurred.

65. The Tribunal having reviewed the submissions made, and considered the legislation and the case law, prefers the submissions of the Respondent. The Tribunal has considered Mr Epple's situation and accepts that his eating of peanuts was not unlawful. The Tribunal notes that the eating of peanuts, the event which precipitated the breakage of the Applicant's tooth, can hardly be characterised as arising out of or incidental to his duties. It accepts that the breakage of the tooth occurred during Mr Epple's workday. The Tribunal is mindful of Mr Johnson's additional submission where he drew the Tribunal's attention to an interpretation of the material contribution of an "employee's employment" in relation to aggravation of a disease. He submitted that the Applicant was relying on Westgate (supra) at 238 and 240 and Semlitch (supra) referred to therein, submitting that the test for "material" there was envisaged at a lower level than the "course of employment".

66. However, having considered Treloar (supra), Westgate (supra), Semlitch (supra) and the other authorities, the Tribunal finds that it would be impossible to establish the nexus between eating peanuts and any material contribution that work made to the fracture in Mr Epple's tooth. It could not be said that Mr Epple was at work exposed to a state of affairs to which he would otherwise not have been exposed, as the Applicant in Treloar (supra) had been. There was no condition in which the Applicant's work was to be performed which created an exposure contributing to the fracture of his tooth. Eating peanuts could not be said to have added anything to the performance of Mr Epple's duties. The causal connection between eating peanuts, work and a breakage of Mr Epple's tooth could not be established even taking the current wide beneficial view of what material contribution means.

67. Therefore the decision under review is affirmed.

68. The Tribunal having considered section 67(8) of the Safety Rehabilitation and Compensation Act 1988 does not make an order for costs.