Zickar v MGH Plastic Industries Pty Ltd

Zickar v MGH Plastic Industries Pty Ltd - [1996] HCA 31 - HCA 1996 case summary — Zoe

[17]

It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection. In reference to the passage last cited from Ockenden [14] , his Honour said [15] : It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency. I say this because I do not think that it is consistent with s 9(1) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the "employment", including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof. Fullagar J held [16] that the English cases above cited established that the rupture of the oesophagus was a "personal injury by accident". He said of changes resulting solely from disease [17] : The true position in such cases is that compensation cannot, in the absence of some special provisions be recovered unless the "physiological change" was associated with some episode or incident in the worker's employment - such as lifting a heavy weight or hurrying up a steep slope. It is therefore literally true to say that, in the absence of any such episode or incident, the worker fails to establish "personal injury by accident arising in the course of his employment". But the real truth in such a case is expressed not by saying that the worker has suffered personal injury by accident outside the course of his employment, but by saying that the worker has not suffered personal injury by accident at all. A minority of the Court (Taylor J [18] and Windeyer J [19] ) would have denied recovery to the worker on the ground that no incident in his employment contributed to the rupture. But the majority held [20] it to be sufficient that the rupture occurred in the course of the worker's employment. All judgments distinguished the facts of that case - the onset of vomiting followed by the rupture - from the case where the relevant event was "nothing more than the sole and inevitable result of the ravages of a disease". Windeyer J said [21] : It was quite unlike an episode that is an ordinary consequence of the progress of a disease, such as we have had to consider in other cases. It was not an accident arising out of the deceased's employment; but the Commonwealth Employees' Compensation Act, like some other Australian workers' compensation statutes, is satisfied when injury by accident arises either out of or in the course of the employment. 1. (1960) 103 CLR 547. 2. Kavanagh (1960) 103 CLR 547 at 553, per Dixon CJ; at 558, per Fullagar J; at 561-562, per Taylor J; at 576, per Menzies J; at 578, per Windeyer J. 3. Kavanagh (1960) 103 CLR 547 at 553. 4. (1958) 99 CLR 215 at 224. 5. Kavanagh (1960) 103 CLR 547 at 555. 6. Kavanagh (1960) 103 CLR 547 at 558. 7. Kavanagh (1960) 103 CLR 547 at 560. 8. Kavanagh (1960) 103 CLR 547 at 568-569. 9. Kavanagh (1960) 103 CLR 547 at 586. 10. Kavanagh (1960) 103 CLR 547 at 557, 558-559, 576. 11. Kavanagh (1960) 103 CLR 547 at 578.

[24]

"injury" means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912-1941, applies, include a disease caused by silica dust. The Privy Council construed the 1942 definition [30] as excluding diseases from the category of injuries covered by the opening words of the definition [31] . Delivering the advice of the Judicial Committee, Lord Simonds said [32] : [I]n the Act, the word "injury" (unless the context or subject matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease. In Darling Island Stevedoring & Lighterage Co Ltd v Hussey [33] , Dixon CJ regarded Lord Simonds' statement as containing the ratio of the decision. His Honour said [34] : That decision is that the ordinary rules of construction prevail and that the definition excludes from the meaning of "injury" any other disease than one which satisfies the conditions it expresses. Fullagar J noted that, although the 1942 amendment changed the requirement that a disease arise out of and in the course of employment to a requirement that the disease be contracted in the course of employment and the employment be a "contributing factor", the change probably did not produce a great deal of difference in practical effect [35] . He then cited the judgment of Jordan CJ in Kellaway's Case [36] on which he commented as follows [37] : With regard to Kellaway's Case, it is important to note that Jordan CJ expressed the opinion that all cases of disease must, both under the Act of 1929 and under the Act of 1942, be subsumed under the second part of the definition of "injury", ie that part of the definition which deals specifically with diseases. A case of disease could no longer be regarded as a case of injury in the general sense of the first part of the definition. His Honour said: "The portion of the definition of injury beginning with the words "and includes a disease" was inserted to indicate that injury is no longer, in the Act, to be read, by a somewhat forced construction, in a non-colloquial sense wide enough to include disease generally, but is to include it only when it is "contracted" in the conditions specified It follows that if a worker originally contracts a not immediately disabling disease from causes to which his employment does not contribute, and, for causes to which also the employment does not contribute, the disease, by its natural progress, grows worse until it reaches a point at which it disables him or causes his death, his employer incurs no liability to compensation" [38] . So far I would agree with his Honour: indeed, I think it clear that the view which he has expressed is correct. Fullagar J thus excludes all diseases and their consequences from the definition of "injury" provided the employment has not been a contributing factor. He then discounts the observations of Jordan CJ with reference to acceleration and exacerbation of a disease whilst in the course of employment [39] : His Honour, however, went on to say: "If, however, whilst he is in the course of his employment, the progress of the disease is accelerated or its severity accentuated, by the conditions of the employment, and disability results, he is entitled to receive compensation In the latter type of case, the disabling stage of the disease is contracted in the course of employment and its occurrence is contributed to by the employment" [40] . (The italics are mine.) This second proposition of the learned Chief Justice is on its face open to grave doubt. His Honour's first proposition gives full effect to the reference to "disease" in the definition of "injury". His second departs from the language of the definition. In the same case, Windeyer J said [41] : Compensation can be had for incapacity or death which results from disease, only when the disease is one contracted in the course of employment and to which the employment was a contributing factor. Slazengers' Case makes it clear that incapacity or death caused by other diseases is not compensable. Hussey's Case was one of a fatal coronary occlusion suffered while on a work-related journey. The occlusion was the consequence solely of a progressive heart disease. The claim for compensation failed. 1. (1960) 103 CLR 588 at 607. 2. Workers' Compensation (Amendment) Act 1929 NSW, s 2. 3. Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942 NSW, s 2. 4. The definition was held to be imported into s 7 (the journey provision) of the 1926 Act: see Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 at 22. 5. Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13. 6. Slazengers [1951] AC 13 at 20. 7. (1959) 102 CLR 482. 8. Hussey (1959) 102 CLR 482 at 492. 9. Hussey (1959) 102 CLR 482 at 497. 10. Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210. Kellaway was a case of a fatal coronary occlusion the consequence of arterial disease. It was decided on the 1942 Act and the decision to deny compensation was approved in Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 at 21. 11. Hussey (1959) 102 CLR 482 at 500. 12. Kellaway (1944) 44 SR (NSW) 210 at 216. 13. Hussey (1959) 102 CLR 482 at 500. 14. Kellaway (1944) 44 SR (NSW) 210 at 216. 15. Hussey (1959) 102 CLR 482 at 518.

[29]

but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912, as amended by subsequent Acts, applies, include a disease caused by silica dust, or the aggravation, acceleration, exacerbation or deterioration of a disease caused by silica dust. Speaking of decisions in other jurisdictions in which it had been held that the contraction of a disease resulting from an invasion of the body by bacillus is an injury [44] , Mason J said [45] : However, it has been affirmatively established that this construction cannot be placed upon the definition of injury in s 6 of the Act because the extended definition which it contains includes certain diseases only. His Honour referred to Lord Simonds' dictum in Slazengers' Case and added [46] : Subsequently, in Darling Island Stevedoring & Lighterage Co Ltd v Hussey, as I read the judgments, no less than four members of this Court, after referring to Lord Simonds' observations, expressed the opinion that compensation is not recoverable "unless the disease possesses the characteristics prescribed" by the statutory definition, per Fullagar J [47] . In view of this strong body of opinion I do not think that we are justified in now adopting a contrary view. Stephen J, who agreed with Mason J, added [48] the observation that - For it to be an "injury" it must be shown to satisfy the requirements of par (a) of the definition of injury in s 6 of the Act. Barwick CJ agreed that that view was compelled by authority, although he would otherwise have favoured an interpretation that "an external excitement initiating a morbid condition of the body" would be an "injury" apart from the extension of the definition by par (a) [49] . In identifying the diseases which, in his Honour's view, were referred to by par (a), he said [50] : Autogenous or idiopathic changes in the body, if the employment contributed to their onset - and now by par (b) of the definition, to their progression - are thus brought within the meaning of injury. I might add here that par (b) is not limited to autogenous or idiopathic diseases. It expressly extends to any disease so that the aggravation etc of an externally caused disease may constitute an injury. Jacobs J [51] accepted that the actual entry of the virus was an "injury" either within the opening words of the definition or within par (a) of the 1926 definition (par (i) of the 1987 definition) and McTiernan J [52] held that, in contracting meningo-encephalitis, the worker received an injury but did not find it necessary to discuss whether pars (a) and (b) of s 6(1) removed all diseases from the definition of injury unless they possessed the characteristics prescribed by that definition. It was immaterial to the result in Favelle Mort whether the contracting of the disease, as distinct from its progress or consequences, was covered only by par (a) of the definition or fell within the general conception of "personal injury" in the opening part of the definition. The contraction of the worker's disease was "in the course of his employment" and, as he was required to be at the place where the disease was contracted, his "employment was a contributing factor". What is important, however, is the view that the consequences of a disease mentioned in par (b) of the definition are covered, if at all, exclusively by that paragraph. 1. (1976) 133 CLR 580. 2. Workers' Compensation (Amendment) Act 1960 NSW, s 2. The definition was subsequently amended in relation to dust diseases in 1967 and 1975 but those amendments are irrelevant to the present discussion. 3. cf Hornsby (1960) 103 CLR 588 at 596, per Fullagar J. 4. Favelle (1976) 133 CLR 580 at 596. 5. Favelle (1976) 133 CLR 580 at 597. 6. Hussey (1959) 102 CLR 482 at 505; see also Hussey (1959) 102 CLR 482 at 492, 515-516, 518. 7. Favelle (1976) 133 CLR 580 at 593. 8. Favelle (1976) 133 CLR 580 at 586-587. 9. Favelle (1976) 133 CLR 580 at 589. 10. Favelle (1976) 133 CLR 580 at 600-601. 11. Favelle (1976) 133 CLR 580 at 593.

[31]

I see no reason to doubt the correctness of the construction placed upon the definition in those cases, but even if, contrary to my present view, a disease which is not autogenous, but is caused or exacerbated by an external stimulus, can come within the description of injury simpliciter and so within the opening words of the definition, it is clear that an autogenous disease which happens to manifest itself in the course of employment is only an "injury" if it comes within par (a) or par (b). His Honour contrasted the natural progression of an autogenous disease with an injury which is externally caused to a worker who suffers a weakness occasioned by a disease. He said [57] : On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition: if the incapacity is to be compensable it must fall within par (a) or par (b). On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment. (Emphasis added.) This echoes the observation of Fullagar J in Hornsby in the context of a different definition. Mason J [58] and Brennan J [59] agreed with Gibbs CJ. Wilson J was of the same view, saying [60] : There may remain a question as to whether Slazengers' Case should be confined to cases of autogenous diseases or applied to all diseases, however induced; different opinions on that question were expressed in Favelle Mort Ltd v Murray. But here we are concerned with an autogenous disease and therefore it follows, on the authority of Slazengers' Case and Hussey, that for the appellant to succeed he had to persuade the Board that he had suffered a disease which satisfied either par (a) or par (b) of the definition of "injury". The question has only to be stated in that way for it to spell the fate of this appeal. Dawson J [61] agreed with Gibbs CJ and Wilson J. Certiorari did not go to the Board because, as Gibbs CJ said, it was open to the Board to decide, irrespective of the terms of the medical certificates, that the ruptured aneurism - was merely "the culmination or climax of a progressive disease, itself unrelated to employment", to use the words of Windeyer J in Darling Island Stevedoring & Lighterage Co Ltd v Hussey [62] , or that the haemorrhage was otherwise autogenous, and that the work which the appellant was doing played no part in causing it, it was quite right to determine that it was not an "injury" within the meaning of the Act. If they took that view, the haemorrhage was not an injury within the opening words of the definition, and was not within par (a) or par (b) because the employment was not a contributing factor. There is nothing on the record to show that they did not take such a view. [63] 1. (1984) 157 CLR 124. 2. (1984) 157 CLR 124 at 127. 3. Hockey (1984) 157 CLR 124 at 128. 4. Hockey (1984) 157 CLR 124 at 136-137. 5. Hockey (1984) 157 CLR 124 at 137. 6. Hockey (1984) 157 CLR 124 at 139. 7. Hockey (1984) 157 CLR 124 at 147. 8. Hockey (1984) 157 CLR 124 at 145-146. 9. Hockey (1984) 157 CLR 124 at 147-148. 10. (1959) 102 CLR 482 at 518. 11. Hockey (1984) 157 CLR 124 at 137-138.

[57]

In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection. Fullagar J said [76] : "It is not, I think, open to serious question that the rupture of the oesophagus was a "personal injury by accident"." His Honour went on [77] to construe the phrase "personal injury by accident" which differs from the definition with which this case is concerned, by referring to "a special class of case", such as a coronary occlusion, which is a development or culmination of an antecedent morbid condition. He said that the physiological change constituted by the occlusion must be associated with some incident or episode in the worker's employment, such as lifting a heavy weight, before it can be said the worker has suffered a personal injury by accident arising in the course of his employment. Menzies J said [78] : "There is no doubt that the rupture was personal injury by accident." We do not understand the dissenting judges, Taylor and Windeyer JJ, to have thought otherwise. Thus, Windeyer J said [79] : The rupture which was the unlikely and untoward result of vomiting caused by some sudden indisposition was, I have no doubt, an "injury by accident" in the sense that expression has in this branch of the law. It was quite unlike an episode that is an ordinary consequence of the progress of a disease. Their Honours' dissent was because they did not think there had been personal injury by accident in the course of the deceased's employment. 1. (1960) 103 CLR 547. The Court construed the definition of injury in s 4(1) of the Commonwealth Employees Compensation Act 1930 Cth, and s 9(1) thereof which provided that, if personal injury by accident arising out of or in the course of employment by the Commonwealth was caused to an employee, the Commonwealth was liable to pay compensation in accordance with the Schedule. 2. Kavanagh (1960) 103 CLR 547 at 553. 3. Kavanagh (1960) 103 CLR 547 at 558. 4. Kavanagh (1960) 103 CLR 547 at 560. 5. Kavanagh (1960) 103 CLR 547 at 569. 6. Kavanagh (1960) 103 CLR 547 at 578.

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