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Re Frederick Thomas Willis and Australian Telecommunications Commission and Commonwealth of Australia [1990] AATA 270 (9 November 1990)

COURT

CATCHWORDS

Administrative Appeals Tribunal Act 1975 - Sections 29, 37

Compensation (Commonwealth Government Employees) Act 1971 - Section 65

Commonwealth Employees' Compensation Act 1930 - Sections 9, 10, 12, 14, 16

Commonwealth Employees' Rehabilitation and Compensation Act 1988 - Section 124

The Commonwealth v. Bourne (1959-1960) 104 CLR

The Commonwealth v. Thompson (1959-1960) 104 CLR 481

The Commonwealth v. Rutledge [1964] HCA 63; (1964) 111 CLR 1

The Commonwealth v. Hornsby [1960] HCA 27; (1959-60) 103 CLR 588

HEARING

ORDER

Adjourns further consideration.

DECISION

2. Mr Willis's application has been considered in three stages. In the first, the Tribunal decided that he is not disentitled, by reason of the provision of section 16 of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") to compensation (as that term is used in section 124 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") ((1989) 10 AAR 382, Hartigan J, President, S A Forgie, Deputy President and K J Lynch, now Senior Member). During the second stage, the Tribunal considered whether, to show an entitlement to compensation in this case Mr Willis must satisfy the entitlement provisions of the 1930 Act and not the entitlement provisions of the 1988 Act. The Tribunal decided that his
"entitlement to compensation comes about by virtue of

s.124(1) of the 1988 Act. That entitlement is, by virtue
of s124(2) of the 1988 Act, to be decided on the basis of
whether or not the applicant was entitled to compensation
under the provisions of the 1930 Act as it applied at the
time the injury was suffered."

3. Insofar as is relevant, section 9 of the 1930 Act provides:

"9.(1) If a personal injury by accident arising out of
or in the course of his employment with the Commonwealth
is caused to an employee, the Commonwealth shall, subject
to this Act, be liable to pay compensation in accordance
with the First Schedule to this Act.
(2) ...
(3) If it is proved that the injury to an employee is
attributable to his serious and wilful misconduct, any
compensation claimed in respect of that injury shall,
unless the injury results in death or serious and
permanent disablement, be disallowed."

5. Only Mr Willis gave oral evidence as to what may be described as the "background facts" in this case. That was corroborated by the affidavit evidence to which we have referred above as well as the material in the T documents. No evidence was led in contradiction and Mr Willis's evidence was not shaken in cross examination. We regard him as a truthful and accurate witness and we accept his evidence. Based on that evidence, we make the following findings.

6. Mr Willis was born on 19 February, 1938 and left school at the age of 14 to take up employment as a telegram boy with the Post Master General's Department ("the PMG"), some of the functions of which were later incorporated in the Australian Telecommunications Commission ("the Commission"). He lived with his mother who had been widowed when he was 12 years of age and went to work to help to support her. He was the youngest of nine children. In 1955, he commenced training at the PMG Training School at Chermside as a Lineman in Training. As part of that course he was required to play sport such as cricket and rugby league football in competition with the instructors or with trainees from the Technicians School. Such games were part of the curriculum of the Training School and were played within working hours. The boundaries of the rugby field were marked by a trench. Mr Willis gave evidence that he was injured on this field in 1956 and we will return to that evidence shortly.

7. Upon completing the training course, Mr Willis obtained a position in the Primary Workers Aerial Camping Parties and was sent to work outside Brisbane in 1957. One of the camps at which he worked during this period was situated at Tangorin which is approximately 100 kilometres south of Hughenden. It was while in that position that Mr Willis was injured in 1957 and, again, we will return to the evidence on that shortly. Mr Willis spent some eighteen months to two years in the country before returning to Brisbane in 1959. He continued to work for Telecom but began suffering pain in approximately 1976. He endeavoured to ensure that he was fit to work and, although he had some time away from work, worked until 1978 when he was invalided out of Telecom. He has not worked since then, either on a paid or unpaid basis. From approximately 1981 to 1983, he was President of the Harness Racing Association but he has never driven harness horses. His only hobby is growing a small variety of orchid.
The Evidence

8. Mr Willis gave evidence that he was injured while playing rugby league. He was tackled and slid along on his back. His head went into the boundary trench. In his affidavit sworn 15 December, 1988, Mr Willis said

"The force of my body sliding along caused my head to
jerk back giving my neck and shoulders a sever (sic) jolt."

9. Mr Willis gave evidence that he was injured in 1957 at Tangorin when he was involved in the recovery of large sized galvanised wire. The method that was employed was as follows. One set of the dual wheels of the line truck would be jacked up and a specially designed wire barrow attached. The wire would then be fastened to the barrow and the truck started in gear thus winding the wire onto the roll. The speed with which the wire was wound onto the barrow would depend on the degree of acceleration of the truck. Two men were engaged in this task, one as truck driver, with the other, Mr Willis on this occasion, down on the ground guiding the wire. Guiding the wire required Mr Willis to stand with a six foot crowbar placed one end on the ground, its weight being used to direct the wire. The crowbar was in the applicant's left hand with the barrow on his right. He was required to keep his eyes concentrated on the barrow as the shortest lapse in his guidance would mean that the wire could run over the edge of the barrow and become tangled between the barrow and the truck wheel.

10. Mr Willis described the accident as described in his affidavit sworn on 9 December, 1988 in this manner:

"During the operation described in the previous
paragraph, there was a large twist sleeve in the wire
which caught the crowbar causing it to strike me
violently in the back of my head behind my left ear,
knocking me unconscious. After recovering, I took a
number of aspros for a violent headache but could not
seek medical attention as I did not consider the incident
to warrant such a long journey to Hughenden."

11. The applicant reported the incident to Alan Douglas, the party leader. After the accident, Mr Willis initially suffered a severe headache which had settled down to a dull headache after a couple of days. By the time he next went to Hughenden, on one of the regular once fortnightly visits, his headache had gone. In his affidavit sworn on 15 December he states at paragraph 11:

"At Tangorin, tent camping and working conditions were
rough. Alan Douglas who was in his late 40's was a party
leader of the "old school". All of the linesmen were
young people of about my own age. The camp was run on
the basis that whingers were not tolerated. I expected
to put up with rough conditions and did not want to make
a fuss about being knocked out, since I had no reason to
believe I had suffered any bodily injury."

13. The T documents show that on 22 January, 1976 Mr Willis complained of a pain in his upper back mid-way between his shoulders after he attempted to lift a steel framework one handed. He reported the accident on the same day (T43) and made a claim for compensation (T46). Dr Ridgway, as the doctor who had issued medical certificates to Mr Willis, was requested by Telecom to provide a medical report. In particular, Telecom asked for his opinion as to whether there was any relationship between the injury of 1976 and a back injury sustained in 1962, when the applicant was handling a cable drum.

14. In his report of 16 June, 1976 (T48) Dr Ridgway stated:

"X-rays showed that he has osteo-arthritis of the
cervical spine with degeneration of disk between C5/6.
The lifting of steel framework would have aggravated the
situation which is of course a chronic condition."

15. Mr Willis suffered recurrent periods of back pain and made various claims for compensation after that. On 28 September, 1978 Dr Ridgway again wrote a report on Mr Willis (T55) in which he stated:

"He has a narrowed disc between the 5th and 6th cervical
with degenerative changes and signs of osteo-arthritis at
this level.
Whether this disc legion was caused by his Telecom duties
-no one will ever know. Certainly some of the duties he
performs there will aggravate the disability."

"He has quite a deal of degenerative spondylitic change
in his cervical spine ...
There was an exacerbation of symptoms as a result of an
accident in 1976. In my opinion his degenerate condition
has been present for a long time and he is currently
suffering symptoms that includes the period from July to
September, 1978 as a result of the natural progression of
the disease."

"Clinically there is a marked neck tenderness over the
C5/6 interval. Neck movements are restricted by pain
particularly rotation and lateral flexion the latter
movement readily produces pain in the left arm. X-rays
of his cervical spine show gross degenerative changes and
narrowing in the C5/6 disc with huge posterior
osteophytes encroaching on the spinal canal. There is no
other abnormality."

"At all events it seems to me that herein lies an
explanation of his extraordinarily advanced cervical
spondylosis."

"In summary he has advanced cervical spondylosis far in
excess of normal for his age. I do not believe any of
the recorded incidents could be blamed for this. I
believe it far more likely that the more severe, more
direct neck injury which occurred in the middle fifties
is the cause for his trouble."

"An x-ray taken early this year shows quite advanced
spondylosis as described previously."

"Incidentally I have viewed x-rays of his neck taken in
1976 and these show gross changes at the C5-6 level."

21. Mr Murdoch referred Dr Watson to his comment in relation to the football incident that "at all events it seems to me that here in lies an explanation of his extraordinarily advanced cervical spondylosis" (see paragraph 8 above). Dr Watson explained that he held that view because:

"Put very simply, the time interval - the injury itself
sounded sufficiently violent to have started something;
secondly, there were twenty years interval between that
incident and the x-ray of `76." (transcript page 23)

"Well, the degenerative state is a natural process with age.
What the injuries do is to accelerate the natural progress
of the condition and brings it on earlier on occasion."
"The degenerative process involves a disintegration of a
substance called collagen. It is a long chain - wriggly
molecule that provides tensile strength to ligaments.
When it is damaged, it fragments and when it fragments it
loses its tensile strength and it ruptures easily and
wears easily."

23. In cross examination Dr Watson asked whether he was satisfied on the balance of probabilities that the incidents of 1956 and 1957 caused the degenerative condition. He said that if they were the only violent stresses to which the applicant's neck was subject then "certainly on the balance of probability they certainly caused it ..." In giving his history, the applicant had not related to him any other incidents of violent stress to his neck. He saw no significance in the fact that the applicant did not take any time off from work after either of these incidents. That Dr Blue had found established C6/7 disc degeneration in an x-ray taken in 1987 in no way altered his opinions. Such degeneration did not suggest that the C5/6 disc degeneration was the product of normal ageing as opposed to trauma as all people of the age of 45 would have some degenerative changes at C5, C6 and C6/7. What was important was the advanced state of degeneration in 1976.

24. Dr Blue, orthopaedic specialist, was called to give evidence on behalf of the respondent. He had prepared two reports, one on 17 December, 1980 (T86, page 140) and the second on 1 June, 1990 (Exhibit 2). In the first report he noted the C5/6 disc degeneration and discounted any link between that degeneration and the reported injuries in 1960, 1961, 1962 and 1976.

25. In the second report he went through Mr Willis's history and stated the results of his examination.

"X-rays of his neck taken in January of
1976 confirm C5/6 disc degeneration which has progressed
when x-rays were taken in June of 1981. X-rays of his
neck taken in February 1987 confirm further degenerative
change in the C5/6 disc with anterior subluxation plus
well established C6/7 disc degeneration."

"I believe that he does suffer significant disability due
to naturally occurring cervical disc degeneration. I
have no doubt that the disc degeneration is in no way
related to either incident of 1956 when he was playing
football or 1957 when he was struck by the crowbar.
Neither injury as demonstrated and explained to me would
be expected to produce the type of derangement required
to initiate cervical disc degeneration. Furthermore,
there has been quite marked advancement in the dsc (sic)
degeneration, not only the C5/6 disc, but also the C6/7
disc between x-rays of 1981 and 1987, leaving no doubt in
my mind that the degenerative changes are age related and
will continue to progress. If the injuries of 1956/57
or in fact the subsequent injuries that he sustained in
1960 61 and 62 none of which are in any way suggestive of
initiating cervical disc degeneration, had in fact
initiated disc degeneration, then I believe the changes
would have been well established by 1976 and certainly
not revealing the rapid progress that is demonstrated in
his more recent x-ray of 1981 and 1987."

27. The second reason Dr Blue had for discounting the influence of those injuries, was the accelerating rate of progress in the degeneration. He said that when the 1987 x-ray was taken there had been a further degenerative change in the C5/6 disc together with C6/7 disc degeneration. Had the `56, `57 incidents were responsible for Mr Willis's condition, he would have expected there to have been rapid degenerative change from 1956 through to 1964 with the rate of change then tapering off.

28. In cross examination, Dr Blue disagreed that the x-rays taken in 1976 showed advanced signs of spondylosis. He agreed that it would not be unusual for trauma to produce disc degeneration at one level and age then causing it at another level. In cross examination it became clear that, on Dr Blue's understanding of the football incident, Mr Willis's head had been in a small hollow or depression when he received the jolt. He conceded that if the depression had been sufficiently deep such that the applicant's neck could have been taken to the extreme of his range of cervical extension then that incident could be responsible for his present cervical degeneration. He said that the trench would have had to have been around 10 inches in depth to allow a full range of extension. This he said, would be a fairly unique sort of football injury. Footballers, he said, did sustain neck injuries but usually when they were in scrums.

29. Further, he said that, in his experience, people who worked for an employer, would, if they suffered an injury sufficient to induce cervical degeneration, take some time off from work. Self-employed persons, on the other hand, were usually back at work straight away. This, he said, was human nature. He said that if the injury suffered was sufficient to induce cervical disc degeneration then Mr Willis as a person who was not self-employed should have taken around a week off from work.
Consideration

30. The applicant impressed us as an honest and reliable witness. His evidence was not seriously challenged in cross examination and it was supported in all material respects by the affidavits filed. Consequently we accept his evidence and make the following findings. We accept that the playing of sport was part of the curriculum of the PMG Training School at Chermside and that he was required to take part in. We accept that Mr Willis was injured in the manner in which he has described in a match of football played at the Chermside Training School, in 1956. We accept that he did not report the incident because he thought that it was minor and because he did not wish to appear "sissy". We also accept that he was injured at Tangorin in 1957 in the manner in which he has described. Furthermore, we accept that such were the conditions and environment of the camp at Tangorin that he did not wish to make a fuss about having been knocked out. We accept that he considered that whingers would not be tolerated.

31. We accept that the incidents that occurred in 1956 and 1957 are the only incidents in which Mr Willis has suffered direct injuries to his head or neck. The difference in the medical evidence, and consequently between the parties, revolves around whether the incidents that occurred in 1956 and 1957 caused the applicant's cervical disc degeneration.

32. The medical evidence differed in two main areas. The first was the extent of degeneration in 1976. Dr Watson believed that there was, in 1976, an extreme degree of degeneration and his view is supported by the reports of Dr Gallagher and Dr Bendeich (see paragraphs 16 and 17 above). The major conflict in the medical evidence is between that of Dr Watson and that of Dr Blue. Dr Watson's assessment of the condition of Mr Willis's spine in 1976 as showing an "extreme degree" of degeneration was supported by the written reports of Dr Ridgway who was the only doctor who saw him in 1976 (and from when we have a report). Dr Ridgway described his condition as "chronic" in 1976 (paragraph 14 above). Dr Gallagher and Dr Bendeich saw him in 1978 and 1979 respectively. Dr Gallagher described him as having a "great deal of spondylitic change in his cervical spine" in 1978 (paragraph 16 above) and Dr Bendeich as showing "gross degenerative changes" in 1979 (paragraph 17 above). Dr Blue saw him shortly after, in 1980, and also identified disc degeneration but did not specify the degree.

33. Dr Ridgway wrote his reports assuming that the reason for Mr Willis's condition would never be known. Dr Bendeich saw it as a degenerative condition as did Dr Gallagher. None of them turned their minds to considering when the condition may have first manifested itself. None of them was asked to consider the injuries which we have found occurred in 1956 and 1957. Nor were they called to give evidence so that their views could now be before us. It follows that their reports have not assisted us in determining whether Mr Willis's condition was, in any way, caused by the 1956 or 1957 injuries. Only Dr Watson and Dr Blue have considered that issue.

34. Having considered the evidence of Mr Willis and the evidence of both Dr Blue and Dr Watson, we have concluded that we prefer the evidence of Dr Watson to that of Dr Blue on several grounds. Each has started from a different premise. Dr Watson that there must be a reason for Mr Willis's condition and Dr Blue that it is "naturally occurring" (Exhibit 2). Dr Watson has displayed a willingness to consider the possible causes of the condition. Dr Blue has not, either in his report or in his oral evidence even when further details were put to him during his oral evidence. He has two reasons for refusing to do so. First, it is his view that the nature of the injuries could not have caused the disc degeneration. Second, if they had, he believed that the changes would have been well established in the x-rays in 1976 and certainly not revealing the rapid progress demonstrated in more recent x-rays of 1981 and 1987. This is not consistent with the medical reports written in 1976 by Dr Ridgway who described his condition then as "chronic", in 1978 by Dr Gallagher who described him as having "quite a deal of spondylitic changes" and in 1979 by Dr Bendeich who said his cervical spine showed "gross degenerative changes".

35. Dr Blue also places considerable emphasis on the fact that Mr Willis failed to take time away from work after each injury and uses that fact to support a view that he could not have regarded them as very serious. We have had the advantage of hearing Mr Willis's evidence on the reasons why he did not report the 1956 accident. We accept that he did not wish to be regarded as a "sissy" and that this prevented him from complaining about the injury. In reaching that conclusion we have accepted that he was still a young lad living in rough conditions. Similarly, in relation to the 1957 incident which he did report the injury to his party leader, we accept that the conditions were rough with lads of his own job living together and that whingers were not tolerated. These seem good reasons why a person would not be looking to take time off work. It follows that we agree with Dr Blue's assessment that Mr Willis did not regard the injuries as serious at the time they occurred, but that, in our view, the next step which is implicit in Dr Blue's proposition (namely that they were not serious) does not necessarily follow. Mr Willis did not treat them as serious but that does not mean that they were not serious. In view of the evidence before us, we cannot accept Dr Blue's general proposition as to the likelihood or otherwise of employed people taking time away from work as opposed to the self-employed.

36. Taking all of the evidence into account, we prefer the evidence of Dr Watson and find that the injuries in 1956 and 1957 caused Mr Willis's degenerative cervical spondylosis.

37. Mr McKay argued that Mr Willis's condition is a disease, a term used by Dr Blue to describe it. In this case, he argued section 9 was not the section to which we should have regard but to section 10. That section provides:

"(1) Where -
(a) an employee is suffering from a disease and is
thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in
which the employee was engaged by the Commonwealth, the
Commonwealth shall, subject to this Act, be liable to pay
compensation in accordance with this Act as if the
disease were a personal injury by accident arising out of
or in the course of his employment.
(2) If the Commissioner is satisfied that the employee,
at the time of entering the employment of the
Commonwealth, wilfully and falsely represented himself as
not having previously suffered from the disease,
compensation shall not be payable.
(3) A claimant for compensation under this section
shall, if so required, furnish the Commissioner with such
information as to the names and addresses of other
employers of the employee as the claimant possesses.
(4) If the disease is of such a nature as is contracted
by a gradual process, the Commonwealth shall be entitled
to be indemnified by any other employers (if those
employers are also liable to pay compensation) who
employed the employee prior to the incapacity in the
employment to which the disease is due, and all questions
as to the right to, and amount of, any such indemnity
shall in default of agreement be settled by arbitration
or by action in any County Court."

39. Mr Murdoch submitted that section 10, to which Mr Mckay referred, and section 12 are not relevant. Section 12, he said, is referable to the specific injuries set out in the Third Schedule e.g. loss of both eyes, loss of hands etc. Section 10 is referable to the occupational diseases in the Second Schedule e.g. anthrax associated with wool combing and sorting. Diseases are not only dealt with in section 10 but also in section 9 by virtue of the interpretation by the courts of the meaning of "injury". An extended meaning has been developed so that certain injuries inclusive of diseases have been compensated under section 9. Consequently, if a person suffered from a disease by which he or she was incapacitated, and that disease arose out of an injury a work, that disease was compensable as an incapacity arising out of an injury. In support, he relied upon a decision of the High Court in The Commonwealth v. Hornsby [1960] HCA 27; (1959-60) 103 CLR 588 (Dixon C.J., Fullagar, Taylor, Menzies and Windeyer JJ) and referred in particular to passages from Fullagar J's judgment at page 596-7 when he said:

"Under Acts, such as the Commonwealth Act, which do not
expressly equate death or incapacity resulting from
disease to death or incapacity resulting from traumatic
injury, it is generally true to say that a claimant who
proves that death or incapacity resulted from a disease,
or the development of a disease, does not thereby
establish that he has suffered "personal injury by
accident". This statement, however, requires
qualification, because the words have received an
extended meaning in a large number of cases. The cases
which require consideration in this connexion fall, I
think, into three classes. In the first place, there are
the cases in which a disease has been actually contracted
through exposure to infection or other risk attendant on
the conditions of employment. It has been said that the
entry of a harmful bacillus constitutes an injury by
accident. Examples are Brintons Ltd v. Turvey (1905) AC
230 (anthrax) and Miller v. J W Handley Pty Ltd (1948) 2
WCD (Vict) 134 (tuberculosis), which was discussed in
Nash v. Sunshine Porcelain Potteries Ltd (1959) 101 CLR
353 at pp 363, 364, 378, 379. Then there are, secondly,
the cases where there is actual internal physical injury
such as the rupture of an aneurism or of an oesophagus
(Clover, Clayton and Co Ltd v. Hughes (1910) AC 242,
Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547). It has
been said, naturally enough, that the breaking of an
artery cannot be distinguished from the breaking of a
leg. Then we have finally the class of case in which
death or incapacity results not from an actual physical
injury, external or internal, but from the development or
culmination of a pre-existing and progressive morbid
physical condition. In these cases the final occurrence
which results in death of incapacity is commonly referred
to as a "sudden physiological change". Examples are
found in Hetherington's case [1939] HCA 36; (1939) 62 CLR 317 (coronary
occlusion) and Sharpe's case (1955) AC 1 (auricular
fibrillation). In the heart cases it is common to find
that the morbid condition (usually arterial atheroma or
sclerosis) has existed for a substantial number of years
and would inevitably have caused early death or
incapacity apart altogether from any employment in which
the worker was engaged."

41. We have considered Hornsby's case to which Mr Murdoch made reference. It seems to us that the case before us falls within the third class to which Fullagar J referred, as did the case before him. That case concerned a claim for compensation by an employee who had suffered a stroke while travelling between his home and work. Fullagar J said at pages 597-598

"With regard to this class of case, and so far as
statutes framed as is the Commonwealth Act are concerned,
the rule to be applied is now, I think, well established.
It may be stated, for present purposes, in terms limited
to heart cases. If, as in Kellaway v. Broken Hill South
Ltd (1944) 44 SR (NSW) 210 61 WN 83 the arterial disease
and the thrombosis or other occlusion in which it
culminated where "autogenous", and no particular incident
or activity of the worker accelerated or contributed to
the occlusion, it cannot be said that there was any
personal injury by accident. If, on the other hand, as
in Hetherington's case [1939] HCA 36; (1939) 62 CLR 317 (where the
worker had just walked up a steep slope) it can be found,
and is found, that some particular incident or activity
of the worker did contribute to or accelerate the
occlusion, then the worker must be held to have suffered
personal injury by accident. When this position is
reached, a further question may or may not arise as to
whether the particular incident or activity was in the
course of the worker's employment."

43. Consequently, we:
1. set aside the decision under review and substitute a decision that Mr Willis is entitled to compensation for degenerative cervical spondylosis; and
2. adjourn further consideration.