Reed v Commissioner of Police

CITATION : Reed v Commissioner of Police [2001] NSWCC 182 PARTIES : Raymond John Reed Commissioner of Police MATTER NUMBER(S) : 7166 of 1999 JUDGMENT OF: Burke J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/02/01 DATE OF JUDGMENT: 02/26/2001

FOR APPLICANT: M J Walsh instructed by Oates & Smith appeared for the appellant.

LEGAL REPRESENTATIVES: FOR RESPONDENT: M S Spartalis instructed by Legal Services - NSW Police Service appeared for the respondent.

JUDGMENT:

1. The appellant, a former Detective Sergeant of Police, appeals to this Court pursuant to s21 of the Police Regulation (Superannuation) Act 1906 (PRS Act) against a decision of the Commissioner made 5/8/99 pursuant to s10(3)(a) of that Act. The Police Superannuation Advisory Committee (PSAC), as delegate of the State Authorities Superannuation Board, on 28/7/99 had certified that the appellant was incapable of discharging the duties of his office by reason of the infirmity of "Severe emphysema and asthma; Major depressive disorder in remission". Consequent upon that certificate the appellant was medically retired from the Police Force.
2. On 5/8/99 the Delegate for the Commissioner had determined that such infirmity was not caused by the appellant being "hurt on duty" (HOD). The latter phrase is defined in s1(2) to mean "injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987, entitle him to compensation under that Act". That definition imports all the provisions of the latter Act (WCA) relating to causality and nexus to employment.
3. The appellant seeks that the determination of the Delegate for the Commissioner be reversed and that the Court find that the specified infirmities were caused by the then member being hurt on duty within the meaning of the PRS Act.
4. The parties are agreed that the infirmity certified by PSAC is conclusive before this Court. While it may be subject to challenge elsewhere within specified time limits no such challenge had been advanced in this matter and this Court must accept that the appellant suffers the relevant conditions. The relevant justiciable issue is whether the conditions have the requisite nexus to the employment as a police officer.
5. While there is a multitude of incidents and matters canvassed in the evidence it appears to me that the appellant, principally but perhaps not exclusively, relies on a number of broad matters as causing or contributing to the relevant infirmities.
6. As far as the conditions of "emphysema and asthma" are concerned these are: (a) The appellant's smoking in the course of his service to the Commissioner: (b) The appellant's exposure to passive smoking in that service; (c) The defective air-conditioning at the Springwood police station, and (d) The effects on the appellant's respiratory condition of various employment psychological stressors.

7. As far as the depressive condition is concerned these are: (a) The contact with and threats by specified criminals; (b) References to him before the Independent Commission against Corruption and the Police Royal Commission and consideration of complaints concerning him by Internal Affairs; (c) Failure of the Commissioner to arrange suppression of access to particulars of his address through the Roads and Traffic Authority; (d) Gruesome experiences in the course of his service; and (e) A contact with a fellow officer on 22/10/96, sometimes hyperbolically referred to in submissions as "the gunfight at the OK corral".

8. Perusal of the substantial body of medical material in evidence makes it obvious that the major incapacitating factor is (or at least was at the time) the respiratory condition rather than the psychiatric condition. Indeed the certificate of PSAC noting the psychiatric condition to be in remission lends emphasis to that fact. That is similarly emphasised by Dr Subhas, the appellant's treating psychiatrist from 30/5/96, in his report of 22/7/98, just shortly before the appellant last worked: As you know, he does function very well when he is not depressed. He has been coping well since he went back to work after that long period of absence because of his depression.
9. In a further report of 19/7/00 he commented: I must say that I had sufficient grounds to state that his depression was in remission at the time when he was medically discharged from the Police Force. People who have suffered Major Depression and once they have responded to medications and when they are in remission, they are capable of performing full duties. In answer to a question framed by the appellant's solicitor as whether the depression would not be in remission should the appellant resume duty the doctor replied: I do not think it is the case that if a person returned to duties his depression would not be in remission, in fact, the word remission I would interpret as being recovered. But as far as that particular depressive episode is concerned, whether the person is going to decompensate again or not if he returned to work is something I can say and believe that nobody can predict.
10. It would therefore seem that the element of "major depression in remission" in the PSAC certificate was more anticipatory than actual as far as any incapacity at the time of discharge was concerned. It was a factor in possible future incapacity though not then an active contributor to the inability of the appellant to discharge his duties other than perhaps within s47 WCA. That superficial impression is likely erroneous. The bulk of the lay and medical evidence, notwithstanding that impression, is directed to the genesis and evolution of the depressive condition. The appellant's case has been primarily presented as relying on the psychiatric rather than the physical element.
11. The word "remission", in this context, usually indicates abatement or diminution in intensity rather than extinction or abolition. Such a condition would continue to exist though in a state where at least temporarily it contributed little, if anything, to present incapacity though being a factor which incipiently could regress and so impinge upon an ability to work. In a case of non-Hodgkinson's lymphoma, for instance, one will often have the treating specialist report it as in remission. That merely connotes that, for the time being, the condition is asymptomatic and not that it will not ultimately be fatal.

21. It can be interpolated that the above prognosis was quite astute the appellant undergoing bilateral lung transplantation in mid-2000 even though the professor resiled from the opinion expressed above shortly later.
22. By 6/2/92 Professor Bryant noted improvement in air flow with treatment though there was marginal deterioration of lung function compared with 1988 test results. If the appellant continued to observe recommended care he doubted the need for transplantation need ever arise. The 1988 test results are not in evidence nor is there any indication of their source. However the fact of such existing suggests active investigation of the pulmonary condition at least three years before the consultations with Dr Choon Lee and Professor Bryant.
23. The appellant remained virtually stable through the following few years. By 29/3/95 air flow (FEV1 2.12 litres) is 50% of predicted. When seen by Prof Bryant on 27/3/96 the appellant gave a history of an awareness of increasing dyspnoea in the last year or two. The professor found this confirmed by respiratory function tests showing substantial deterioration in the patient's emphysema. He again added a prognostic caution: I have warned him that, if his current rate of deterioration continues, consideration may need to be given to transplantation within the next few years. He understands this although greeted the news with reluctance.
24. By 9/4 /96 there had been quite marked improvement with treatment, or independent thereof. By 13/3/97 Professor Bryant notes air flow (FEV1 1.9 litres) is down to 47% of predicted normal and had been so for the past twelve months. He also relevantly commented: He is naturally apprehensive about the prospect of further deterioration of pulmonary function and of the need for more aggressive surgical treatment with either lung reduction surgery or possible transplantation but his pulmonary function is too well preserved for these to be likely within the next year or two.
25. Again seen by Professor Bryant on 30/9/97 the appellant was fairly stable and on 25/11/97 lung function tests were also stable. Much the same pertained at a consultation on 28/8/98. However, following further consultation on 11/12/98 Professor Bryant furnished a note on 15/12/98 patently related to the appellant's application for medical retirement. He records: This letter is to state that Mr Reed is a patient of mine. He suffers from severe emphysema (FEV1 1.55 litres, 41% of predicted). He requires regular and daily treatment with broncho-dilating drugs, both by inhalation and by mouth, as well as daily treatment with steroid tablets and inhalations. Because of the severity of his emphysema, he is no longer fit for either full time work or light duties and I believe that he should be retired on medical grounds.

He saw his fair share of the gore and gristle of police work which was by no means pleasant but which somehow he was able to take in his stride. 82. While the appellant describes nightmares which seem based on some of these events it does not seem that the events themselves were the causes of any depressive illness. When depressed for other reasons it seems that they form an experiential basis for unpleasant dreams. The gun-locker incident 83. This was related in [64] above. It occurred on 22/10/96. It was the obvious precipitant of the appellant ceasing work that day and remaining off for approximately six months being treated for major depression. It is referred to in the report of Dr Canaris at para 27 (Ex L) and also in the report of Dr Subhas of 29/1/97 (Ex F and Ex 16). It is the first historical event of importance recorded by Dr Hill, psychiatrist, seeing the appellant on 19/5/99 (Ex K) and the Royal Commission (mentioned as ICAC by the doctor) seems to be of secondary importance though patently seen as an aetiological factor as were the threats and intimidation of criminals. It was not a feature of the history recorded by Dr Smith in his report of 8/8/00 (Ex M and Ex 17) nor that of Dr Lewin in his report of 16/5/97 (Ex G). Psychiatric opinions regarding causes 84. Dr Subhas patently regards the appellant's psychiatric illness as deriving from a concatenation of employment circumstances and particularly the naming in the Royal Commission. He clearly conceives the gun locker incident as the precipitant of the appellant ceasing work on 22/10/96. 85. Dr Lewin, seeing the appellant on behalf of the Commissioner shortly before his return to work after that six months off, isolates two matters as of importance in the genesis of the depressive illness: Mr Reed's depressive reaction most probably occurred as a response to two events. Firstly, the false accusations of corruption made against him in the Royal Commission and secondly his increasing alarm and fear relating to a series of accusations made by a criminal against whom he had previously brought serious charges. Mr Reed believes that this man was vengeful, clever and very wealthy. He summarises his overall opinion: The depressive reaction occurs as a consequence of matters relating to Mr Reed's employment as a policeman. 86. Having recorded a lengthy history, which incidentally the appellant regards as the most accurate and comprehensive elicited by any psychiatrist, Dr Canaris considers a variety of factors, firstly: It is significant, however, that he appeared to tolerate all this quite well until he found himself subjected to the very personally directed threats from Squires. It would appear from the history that he gives that the very personal nature of the threats have been the principal precipitating factor in his decompensation. He proceeds: A second very substantial factor is the lack of support he received during this period of his police career. And he returns to his major theme: I have the distinct impression that his adverse mention in the Royal Commission even though apparently eventually proven to be groundless was a relatively minor element in his illness which arose principally in the context of the direct threats made against himself and his family. The Royal Commission was I think the icing on the cake. Its significance, I think, lay far more in its relation to Squires and his activities than in the fact of the Royal Commission as such. 87. The allegations made against the appellant in the Royal Commission did emanate from his transactions with Squires. Dr Canaris postulates that the significance of being mentioned in that venue was that it re-inforced the appellant's perception that he was vulnerable to attack by Squires on many fronts and not just to physical violence. 88. Dr Hill, psychiatrist, seeing the appellant on 19/5/99 at the instance of the State Authorities Superannuation Board, doesn't actually formulate a concise opinion on the genesis of the depression but clearly regards it as arising from employment circumstances. He had recorded the gun locker event, the mention in the Royal Commission (referred to as ICAC), exposure to mutilated bodies, harassment and threats to kill or "set him up". He concludes that the appellant had suffered a major depressive disorder though not clinically depressed at the time of examination but having a realistic anxiety of possible attack by certain criminals. His view of nexus to employment is clear in his prognostic comment: In my view he would be psychologically challenged if he returned to his duties resulting in a return of depressive symptoms of a Major Depressive Disorder. Dr Hill is the sole psychiatrist aware of the appellant's pulmonary condition contemporaneously with his continuing service in the police force and in discussing return to work comments:

I know he is considerably physically handicapped by the presence of emphysema and employment demanding physical effort would not be tolerated

The doctor had access to a report of Professor Bryant dated 14/8/97. That report is not in evidence. In the prior March Dr Bryant had reported the appellant's air flow reduced to 47% of predicted normal. Presumably the report available to Dr Hill did not paint a rosy picture of the appellant's pulmonary condition. 89. The appellant was seen by Dr Smith, psychiatrist, at the instance of the respondent on 8/8/00. He records the gamut of events and circumstances involving the appellant's employment. His ultimate summary is encapsulated in his report at page 6: It is my opinion, that his naming or involvement with the Royal Commission and potential fears of harm by Mr Squires and others and the lengthy period before the matter was clarified were sufficient stressors that did produce psychiatric turmoil of the type I would regard as an Adjustment Disorder with depressed and anxious mood. …On a balance of medical probability however he was exposed to significant emotional stress due to a combination of fears of harm and challenges to his professional integrity. This is predominantly a result of allegations made against him. 90. The ongoing effects of the diagnosis of "Major depressive disorder in remission" are adverted to by several of the specialist psychiatrists. The view of Dr Hill is noted at [88] above. Dr Canaris shares that view: I cannot see your client ever returning to policing. Although my diagnosis differs somewhat from that on his infirmity certificate, I don't think this is a matter worth disputing. I certainly cannot see factors outside his police service contributing in any substantial way to his illness. His ultimate comment on the matter is: It is a moot point whether a man in his 50's who has suffered a very major psychiatric disorder is likely to be able to return to the workforce in the foreseeable future. 91. The contrary view of Dr Subhas is noted at [9] above. The appellant worked on for going on 18 months after the consultation with Dr Lewin so it was not then a particularly relevant subject. Dr Smith gives his opinion very tersely: From a practical point of view, his ability to serve with the NSW Police Service in his former role would not be practicable. Emphysema as a factor in depression 92. The virtually unmentioned element in regard to the aetiology of the depressive illness is the appellant's intercurrent pulmonary disease. This was a chronic and progressively life threatening condition which ultimately, after retirement, required total lung transplantations. It is a condition which one could have contemplated as having depressing effects on the sufferer. 93. The comments of Professor Bryant regarding the appellant's psychological reaction to the condition and proposed treatment have been cited at [24], [25] and [28] above. The comments of Dr Subhas cited at [69] confirm such a reaction. The appellant in evidence conceded that he was distressed at various times by the disability and limitations and by the daunting prognostic comments of the doctors. He even conceded that it may have been a factor in his depression. 94. The one psychiatrist who was aware at a fairly critical time before retirement of the severity of the appellant's pulmonary condition was Dr Hill and he is patently aware of fairly grave physical limitations resulting from that condition as mentioned at [88] above. Notwithstanding that he still doesn't appear to have regarded that intercurrent condition as aetiologically relevant to the depressive illness. That is perhaps more impressive that DrSubhas discounting any relevance of the emphysema when he ultimately appears to become aware of it after the appellant's medical retirement and but shortly before fairly heroic surgery. 95. Overall, I would feel that the progressive lung condition was an element in the genesis of the certified psychiatric disorder, even though rather a minor factor. Conclusions re causes of the emphysema and asthma 96. In my view the major factor in development by the appellant of emphysema was the established alpha-1 antitrypsin deficiency. Of itself it could account for the entire condition. The appellant's personal smoking contributed to the emphysema but not the asthma. I do not accept that his personal smoking was employment related. 97. The deficient air conditioning at the Springwood police station, which certainly existed, contributed to neither. I do not accept the ex cathedra opinion of Dr Burns that it affected the asthmatic component or certainly not in any material way. As Professor Bryant indicates there was no indication of any allergic diathesis nor any account of intercurrent chest infections. The reaction of the appellant to house dust mite on testing by Dr Burns to a standard battery of allergens seems irrelevant the appellant making no complaints of any symptoms in any situations where he may have been exposed to that stimulus. He gave an account to Professor Bryant of being unaware of any allergy to anything either at home or at work. 98. The appellant's intercurrent psychiatric condition also played no part in the evolution of either the emphysema or the asthma. I accept the evidence of Professor Bryant on that matter in regard to the emphysema. Dr Burns concurred in that view. I find the assertion of Dr Burns that psychological factors would affect the asthma as unconvincing in the absence of any explanation of why it would be so. 99. I view the appellant's exposure to passive smoking in the course of his employment after he ceased smoking himself in 1987 as quantitatively small, being quite intermittent and mostly on occasions when sharing a police vehicle with an officer who smoked and did so at the time. The appellant has deposed to at least one officer who refrained from smoking in a police vehicle while the appellant was present. I would think it likely that the appellant was so exposed, probably in much the same degree, in the non-work situations of daily life. I accept the evidence of Professor Bryant and Dr Burns that passive smoking can aggravate established emphysema. In general I agree with Dr Burns that the effects of passive smoking would be dose related - lesser exposure would have lesser effect, greater exposure would greater effect. The comparative dose in the course of employment seems relatively small. Having regard to the very indefinite evidence of the degree of such exposure either at or away from work I agree with Professor Bryant that any effects of such exposure as there was would be "insignificant" and make no clinical difference to the progress of the condition. I do accept, since there was some rather minimal work exposure, that there could be a somewhat minuscule contribution to the emphysema. Conclusions re causes of the Major depressive disorder in remission 100. The naming at the Royal Commission looms very large when the appellant first consults Dr Subhas. It remained the principal event inducing the depression in that doctor's view. The appellant's account in evidence makes it clear that he was considerably upset when made aware of what had occurred. Dr Lewin. Dr Smith and Dr Canaris all conceive it, in one way or another, as relevant in the genesis of the depressive illness. 101. Dr Lewin notes regarding the naming at the Royal Commission that: He became very distressed in the aftermath and was quite markedly fearful for his safety. He goes on to record a history that in the appellant's belief the mention in that venue was orchestrated by Squires. That would explain the fear element on which Dr Lewin places some emphasis. In this he has much in common with the analysis of Dr Canaris who rather discounts the mentioning before the Commission per se and stresses the element of fear generated by what the appellant conceives as a ploy by Squires to "set him up" as he had threatened to do in the past. 102. DrSmith also implicates this event and he too joins it with the appellant's fear for his personal safety. Dr Subhas also places some stress on the appellant's fear of reprisals by Squires and others. He also patently regarded the threats made to the appellant as quite relevant in suggesting that the best thing the police force could do for the appellant was to take those threats seriously and investigate them. That therapeutic advice connotes a view that the threats were a matter of importance in the genesis of the depression. 103. If, as appears the case, the allegations of WS 14 were untrue and implicated the appellant as involved in corruption one could understand the appellant's immediate distress on being made aware of what had transpired. That would be a perfectly normal reaction. Being innocent of alleged misdoings would usually be expected to provoke anger when the allegations are made rather than depression unless one felt that evil forces were at work and innocence might not be an efficacious defence. 104. I believe the anxiety and concern long felt by the applicant in regard to these threats crystallised with the allegations being made public and that this was the substantial factor in the onset of the symptoms complained of by the appellant immediately following his awareness of what had transpired. He saw it as a manifestation of Squires proclaimed aim to set him up and feared that it could be successful. This over the ensuing months was the substantial factor is his ultimate decompensation. 105. Having decided that the appellant's employment was or could be a factor, in markedly varying degree, to the evolution of various elements of the infirmities determined by PSAC it became apparent that whether the Commissioner's determination that the conditions did not result from the appellant being hurt on duty was correct could depend upon whether or not the requisite nexus existed. That could well depend upon the categorisation of the injury in terms of s4 WCA, the date of injury and the then applicable law. Injury and nexus 106. This was not an area dealt with to any substantial extent in prior oral or written submissions of the parties. Since it appeared potentially quite critical to the resolution of this appeal I sent a note to counsel for each party on 5 January 2001 raising six questions on which I would seek their further assistance. These questions were: 1 Are the conditions suffered by Reed diseases? 2 If so, when did he receive injury within s 16? 3 Is the date of injury the same in respect of all components? 4 Which portion of the definition in s 4 applies in respect of each component? 5 If the date of injury in any case is after 9/1/97 does s 9A apply? 6 If so, in respect of which element/s of the claim? The last submission in response to that inquiry was received on 14 February 2001. 107. I had also inquired of counsel in regard to a prior claim for HOD benefits by the appellant in respect of that lengthy absence because of depression in 1996 -97. Jurisdiction to determine any dispute regarding that claim was vested in the Industrial Relations Commission. I was concerned that, perhaps, such had been determined and thereby give rise to issue estoppels. Both counsel have assured me that any such proceeding, if it exists, has not been determined. 108. Mr Walsh for the appellant has submitted that all elements covered by the certificate of PSAC are diseases. Mr Spartalis for the respondent agrees. Mr Walsh submits that it would be found that the emphysema was a pre-existing disease which had been aggravated by the employment within s 4(b)(ii) WCA but that it was more likely that the asthma component and the depression were diseases contracted in the course of the employment within s 4(b)(i) WCA. Mr Spartalis suggests all would fall within s 4(b)(ii) WCA, if injury at all, with the concession that, perhaps, it could be found that the depressive element was contracted in the course of the employment within s 4(b)(i) WCA. 109. For the purposes of determining the date of injury both sections 15 and 16 provide identical bases. It is therefore immaterial for that purpose whether any particular element of the appellant's infirmities is either contracted in the course of the employment or was a pre-existing condition aggravated by the employment. 110. In their supplementary written submissions both parties have suggested that the last day of employment would be the deemed date of injury. It is unclear as to when the appellant actually ceased active work. Dr Canaris and Dr Hill both record a history of him not working since October 1998. The sick leave records forming part of Ex 4 suggest that the appellant continued to work after that time. Those records show absences in relation to the condition of emphysema on 8/10/98 and from 15/10/98 to 20/10/98 and lastly from 1/3/99 to 20/3/99. The precise date is legally inconsequential the applicable law being the same at any potentially relevant time. 111. In the context of this claim the application for medical discharge would be the nearest equivalent of a claim for compensation since this appeal arises from the consequent medical discharge and the determination of its aetiology. That application is dated 20/10/98. For all relevant purposes that would appear to be the deemed date of injury within s15 or s 16. The application of Section 9A (Part 1) 112. That date, or any likely variant, being after 12 January 1997 s9A potentially requires the appellant to establish that the employment was a substantial contributing factor to the contracting of, or aggravation of, the pulmonary condition. The word "aggravation" is used in this judgment, except where clearly differentiated, to compendiously include the concepts of acceleration, exacerbation and deterioration. 113. Mr Walsh is quite antipathetic to any suggestion that the application of s9A could be invoked in this matter. This he made clear from the time the subject was first canvassed in address by the respondent. He emphasises that at the heel of the hunt, in addresses, the respondent sought and was given leave, to amend the answer filed to include reliance upon s11A and s14 as defences. (I might interpolate that neither matter was ever raised again). But at no time did the respondent seek to amend to rely upon s9A. This is undoubtedly true. The answer filed does not rely upon that provision as any defence to this appeal and leave has not been sought to amend to do so. 114. CCR Part 11, r. 3 provides, inter alia: (1) A respondent to proceedings may, not later than 28 days after service on him of the originating process in the proceedings, file, and serve on all other parties to the proceedings, an answer setting out " (a) any grounds on which he intends to deny wholly or partially the applicant's claim Any defence relying upon s9A would certainly fall within the ambit of the rule and, not being raised, prima facie should not require determination.

115. The failure to plead the defence is a prima facie waiver. Waiver is a rather "ornery beast". It is discussed at considerable length by the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394 and more recently by the Court of Appeal in North Broken Hill v Vockins (1999) 19 NSWCCR 193. The former concerned a defence under the Limitation Act, at least now but perhaps not then, regarded as a substantive rather than procedural matter - (vide John Pfieffer P/L v Rogerson [2000] HCA 36) - and the latter compliance with the former s106E WCA, a procedural matter. The provisions of s9A I would regard as substantive in nature.
116. In regard to the psychiatric condition any purported defence relying upon s9A seems fruitless. The only possible non-employment factor suggested by the respondent is the involvement with the Royal Commission it being submitted that such was an event independent of the employment. For reasons set out above [99] to [104] I regard that involvement as intimately connected with the employment. No other non-employment factor has been suggested. In any event the major element inducing the depression was the fear of reprisals by Squires. Of itself that would satisfy the requirements of s9A.
117. In regard to the asthma condition reliance upon s9A is unnecessary. I would not be satisfied that the employment was a contributing factor in the genesis of that condition let alone a substantial contributing factor. Dr Burns assumes an allergic diathesis evidenced by the positive response to house dust mite. The applicant's twenty years of personal smoking did not appear to have induced any symptoms of asthma. In so far as it could appear that his reaction to passive smoking in latter years was compatible with asthma I would be satisfied on the evidence that it was mere revelation of any underlying allergic diathesis and not a factor which aggravated, other than very transiently, the asthma condition.
118. It is in the context of the condition of emphysema that the application or otherwise of s9A could be critical. I have determined above [98] that the only potentially relevant employment factor was exposure to passive smoking in the course of the employment. I accept the evidence of Professor Bryant such exposure could reduce lung function by between 1% and 3%. Neither he nor Dr Burns, who was clearly of the same opinion, recorded any history as to the degree of exposure to passive smoking. The effects of passive smoking would depend upon the degree of exposure - Dr Burns has affirmed that. The appellant had relatively small employment exposure. The decrement in lung function thereby induced, if any, would therefore have been at the lower end of the suggested range and probably even less.

122. The question now posed is whether the clinically and symptomatically insignificant increase in the degree of emphysema constitutes an "aggravation, acceleration, exacerbation or deterioration" of the appellant's pre-existing pulmonary condition. That brings to mind the words of Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 concerning those terms: The words have somewhat different meanings: one may be more apt that another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. Kitto J (with whom Taylor and Owen JJ concurred) at 634 appears to follow the same path albeit differently expressed: The four substantives are not synonymous with each other and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse. Of the word "exacerbation" he echoed the opinion of Windeyer J when he said: As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than the advance of the disease itself to a more serious stage of its development. Kitto J also cited with approval the comment of Moffitt J in the Full Court of the Supreme Court of New South Wales, the decision in that Court being the subject of the appeal: There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. In regard to "exacerbation" the Court was unanimous that it was the effects on the sufferer rather than any effect on the disease itself which was the critical determinant.
123. There is possibly a superficial appearance of conflict between the views of Windeyer and Kitto JJ, the former emphasising a test of whether it is made worse and the latter negating a test of whether it has been made worse. They speak of different "its". The former of the manifestations of a disease and the latter the disease itself. Both agree that it is the effects on the patient that is critical not the effects on the disease. In Semlitch the finding at first instance had been of "exacerbation" of the worker's disease and not any of the other elements of the definition and what passed from Windeyer and Kitto JJ could be said secundum subjectam materiam. Nonetheless, as phrased, each suggests that it is the subjective effects on the person rather than objective effects on the disease that is the ultimate test in respect of the existence of each element of the definition.

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