Petkoska v Kennedy Cleaning Services Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Kirby J,Gaudron J,McHugh,Gummow,Hayne JJ,Callinan J
• Judgment Date: 31 August 2000
• Neutral Citation: [2000] HCA 45
• Date: 31 August 2000
• Docket Number: C16/1999

[2000] HCA 45

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

C16/1999

Kennedy Cleaning Services Pty Limited

Appellant

and

Vesela Petkoska

Respondent

Workers' Compensation Act 1951 (ACT), ss 6(1), 7(1), 9, 9A, 9B.

Workers Compensation Act 1987 (NSW), s 4.

Kennedy Cleaning Services Pty Limited v Petkoska

Workers' compensation (ACT) — Injury — Personal injury arising in the course of employment — Employee had diseased heart valve and suffered a lesion caused by a blood clot which resulted in a stroke — Whether mutually exclusive statutory regimes for ‘injury’ and ‘disease’.

Words and phrases — ‘injury’ — ‘disease’ — ‘lesion’.

1 Gleeson CJ and Kirby J. This is an appeal from the Full Court of the Federal Court of Australia1. It concerns the conclusion of that Court that a worker who had suffered a stroke in the course of her employment was entitled to benefits under the Workers' Compensation Act 1951 (ACT) (‘the Act’) because she had suffered a ‘personal injury’ as provided by s 7(1) of the Act. The Full Court applied the reasoning of the majority of this Court in Zickar v MGH Plastic Industries Pty Ltd2. In our view, the Full Court was correct to do so and the appeal should be dismissed.

Gleeson CJ

The facts

2 Mrs Vesela Petkoska (the respondent) was employed by Kennedy Cleaning Services Pty Ltd (the appellant). On 9 September 1992, in the course of her employment, she was cleaning rooms at the Australian National University in Canberra. Her husband was working with her but on another level of the same building. He went looking for her and discovered her sitting in a chair, crying and unable to speak. She was taken to hospital by ambulance and underwent various tests. She was incapacitated for work. When she made a claim for compensation under the Act, liability was declined. In February 1994, she brought proceedings in the Magistrates Court at Canberra.

3 Because, at the time of the hearing, the respondent was still unable to communicate, the sole evidence in the Magistrates Court comprised that of her husband, deposing to the uncontested circumstances of her collapse whilst working and various medical reports which were received into evidence without objection. The main issue for determination was whether the respondent was entitled to compensation under the Act in respect of her undisputed incapacity. To succeed, the respondent had to show that such incapacity resulted from a ‘personal injury’ within s 7(1) of the Act or from her contracting or suffering an aggravation or acceleration of a disease to which her employment was a contributing factor within s 9(1) of the Act.

4 The medical reports provided a description of the pathological events that preceded the condition suffered by the respondent which was described, in general terms, as a ‘stroke’.

5 For some years before September 1992, the respondent had been diagnosed as suffering from rheumatic mitral valve disease. This is a condition of the heart that, in some cases, manifests itself with bouts of quivering

(fibrillation) that may lead to the release of a clot (embolism) into the bloodstream. According to Dr R M McCredie, the rhythm of atrial fibrillation carries a significant risk of emboli release, even in an otherwise normal heart. Dr McCredie considered that the respondent had moderately severe mitral stenosis as a result of previous exposure to rheumatic fever. However, the first serious manifestation of her illness was when the embolus was produced which caused her stroke. The doctor described what had happened: ‘[A] blood clot … [formed] in the left atrium and [broke] off, and on this occasion happened to pass directly to the left [temporo-parietal] region of her brain.’ Dr McCredie was of the opinion that this process was ‘precipitated by her paroxysm of atrial fibrillation’. Dr McCredie stated that it was ‘a common phenomenon for the onset of atrial fibrillation to produce the first recognisable symptoms of mitral stenosis, either by producing shortness of breath, or, in fact, by producing an embolus, as in this case’.

6 After her removal to hospital, an echocardiograph was performed on the respondent under the supervision of Dr C R Ashton. This confirmed mitral stenosis with a dilated left atrium. A CT scan was also undertaken. It showed ‘a lesion in the left parieto temporal area’. Dr P French, a cardiologist, observed that the ‘CT scan revealed evidence of a left-sided lesion which was felt to be responsible for the stroke’. He described the stroke as ‘due to a cerebral embolus secondary to the valvular heart disease’.

7 The medical opinions were unanimous that the employment of the respondent was not a contributing factor to the contraction of the underlying mitral stenosis found in the respondent's heart. Nor did her employment with the appellant aggravate or accelerate this underlying condition. The magistrate dismissed the respondent's claim to compensation in so far as it was based on s 9(1) of the Act. That conclusion is not now in contest. If the respondent's entitlements under the Act fell to be decided in terms of s 9(1) as a case for ‘[c]ompensation for … incapacity through disease’, it was accepted that the respondent would fail. However, that left her alternative claim which was that she was entitled to recover compensation for ‘personal injury’ within s 7(1) of the Act.

8 The course which the proceedings took at trial, involving no oral evidence on the part of medical witnesses, although economical and perhaps understandable, imposes on the judiciary an obligation to give meaning to the expressions used in the medical reports, some of which are technical. The word ‘lesion’, for example, in its ordinary use, connotes primarily an injury, in the sense of a sudden impairment of the function of affected tissue or a morbidchange in the functioning of the body3. But medical4 and forensic5 dictionaries indicate that the word is sometimes used in modern medical parlance to include changes in organs and tissues through a disease process. There was no clarification by oral evidence of the way in which the particular medical experts were using the word in this case. However, having regard to the whole of the medical evidence, the way in which the proceedings were conducted, the sudden and dramatic consequences of the ‘stroke’ and the findings of the magistrate at first instance, it is appropriate to conclude that the word ‘lesion’ in the medical reports here meant a sudden change or disturbance to the physiological state of the respondent. It was localised in a particular part of her brain. It immediately rendered her incapable of speech and incapacitated her for work.

The history of the proceedings

9 Magistrate Fryar upheld the respondent's entitlements under s 7(1) of the Act. She found that6:

‘The applicant has a diseased heart valve, but the applicant's incapacity is caused by the injury to her brain, the stroke. Clearly something physical has happened causing an injury to that part of the brain, something that in my view, although probably initiated by the disease of her heart, is not a part of the progression of the disease.’

10 By reference toZickar7, her Worship concluded that what had occurred was a ‘sudden or identifiable physiological change’, which was properly classified as a ‘personal injury’8. She was unable to distinguish the injury to part of the brain (the ‘lesion’) that was shown to have occurred in this case from the rupture which had been held to be an ‘injury’ in Zickar. On that basis, she found that the respondent was entitled to an award of compensation.

11 The appellant appealed to the Supreme Court of the Australian Capital Territory. The appeal was heard by Crispin J9. He upheld the appeal. After referring to past authority of this Court and the decision in Zickar, Crispin J concluded10:

‘In the present case there is no evidence that the respondent suffered any rupture. Indeed, the mechanism which had led to her hemiplegia was described in contra distinction to “the usual form of stroke which is a cerebral [haemorrhage] or bleed”. In these circumstances I am obliged to find that the respondent did not suffer an injury within the meaning of section 7 of theWorkers' Compensation Act.’

12 A further appeal was then taken by the respondent to the Full Court of the Federal Court. That Court unanimously upheld the appeal and restored the magistrate's award. Although the approaches of the judges constituting the Full Court differed as between that favoured by Higgins J, on the one hand, and that accepted by Finn and Merkel JJ, on the other, all of the judges approached the matter as one requiring the application of the principles stated by the majority of this Court inZickar11. Whilst importance was attached to the precise definitions of ‘injury’ and ‘disease’ appearing in different workers' compensation legislation12, all of the judges also derived assistance for the approach which they favoured from the decision of the Appeal Division of the Supreme Court of Victoria in Accident Compensation Commission v McIntosh13. That decision had, in turn, been approved by the Justices of this Court constituting the majority in Zickar14.

13 At the hearing of the application for special leave, the appellant disclaimed an intention to invite this Court to reopen its decision inZickar15. Instead, it was made clear that the appellant's position was that Zickar could be distinguished, most notably because of the different terms of the legislation considered in that case (the Workers Compensation Act 1987 (NSW)) and the provisions of the Act presently applicable. Had the appellant signalled an intention or need to reopen and reverse the holding in Zickar, this might have presented significant difficulties for the grant of special leave having regard to the...