Asioty v Canberra Abattoir Pty Limited

[1989] HCATrans 124

~

~ . -~--~~

IN THE HIGH COURT OF AUSTRALIA

Registry No C25 of 1988

B e t w e e n -

FADEL ASIOTY

Appellant

and

CANBERRA ABATTOIR PTY LIMITED

Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Asioty(2)

AT CANBERRA ON THURSDAY, 1 JUNE 1989, AT 10.09 AM

(Continued from 31/5/89)

Copyright in the High Court of Australia

C?Tl/1/DR 25 1/6/89

MASON CJ:	Yes, Mr Gyles.
MR GYLES:	Can I firstly take up the question of notice of
contention under Order 70 rule 6. It is my submission
that my learned friend's point on this is without
substance.  The rules deal with a notice of contention
in Order 70 rule 6(5):

It is not necessary to give notice of cross~ap~eal

if a respondent contends that some matter of fact

or law has been erroneously decided and does not

seek a discharge or variation of a part of the

judgment, decree, order or sentence actually

pronounced or made, but he shall file and serve,
within the time limited by sub-rule (1), a

notice of such contention in the form numbered

67 in the First Schedule.

Now, Your Honours, we won entirely below and

we do not seek any discharge or variation of part

of the judgment, nor do we contend that some matter

of fact or law was erroneously decided by the

Full Bench. My learned friend's endeavour

to make that relate back to the judgment

below,the Full Bench, in our submission, is

without substance.

The High Court Riles do not have the equivalent of the New South Wales Rules,which my learned friend

may have in mind when he made his submission, which

provide an obligation to give notice of intention

where you wish to advance a reason for the decision

which was not advanced by the court· from the appeal

lies. That is no part of the High Court Rules. So

that we submit there is no inhibition upon us taking

all available arguments to support our position or

support the judgment below, subject, of course, to

any abandonment of points either below or in the

Full Court.

MASON CJ: Well, that is a real problem.

MR GYLES:  Which brings me to that point. Now, Your Honours,

overnight, or this morning, we obtained a copy of

the transcript of the argument of the Full Bench

and, Your Honour, there is certainly no agreement
of the parties referred to in that argument at all

and that accords with my learned junior's

recollection.

(Continued on page 27)

C2Tl/2 /DR	_	26	1/6/89
Asioty(2)

MR GYLES (continuing):  May I remind Your Honours of the

following circumstances before coming to what

the Full Court had to say. The application by

the present respondent is to be found at page

6 to 8 of the appeal book and it will be

observed that at page 7, point 7, the nature

of the injury alleged is dermatitis and the
particulars of incapacity is total incapacity
for work, alternatively partial incapacity

for work.

The answer by the respondent put everything

in issue. Your Honours, the case proceeded before

the magistrate on an all grounds basis - chere

were no concessions at all before Mr Justice Kelly,

and Your Honours will appreciate that before the

magistrate the present respondent made a case,

one, that he was totally unable to work because

of the condition that he had and two, that before

the incident occasioned by his work at the

slaughterhouse, he had no dermatitis.	Now that
case fell down arotmd him	through the mouth

of his own expert witness, the doctor, who gave
evidence of earlier dermatitis. There was an

adjournment and the matter came back before the

magistrate.

And in the end the magistrate found partial

incapacity.	Now against that decision, we appeal~d~
and said there was no relevant incapacity.	The

present respondent appealed saying there should have

been total incapacity. The nature of the appeal

to Mr Justice Kelly was not a. rehearing in the de

novo sense, it was however a full appeal on fact

and law.

(Continued on page 28)

C2T2/l/CM	27	1/6/89
Asioty (2)

MR GYLES (continuing): That was an all-grounds appeal in which

everything was in issue. His Honour, as Your Honours

know, found total incapacity. From that we appealed

to the Full Bench of the Federal Court taking all

grounds. Before the Federal Court one ground of appeal

was not pursued,which was ground 4 of the grounds

of appeal, which raised the question of injury by

accident. That was not pursued. Every other ground

of appeal was pursued. Now, the only agreement

which is referred to in the argument below related

to the period for which payment had been made and I

do not imagine that that forms the basis for what the

Full Court have had to say.

Your Honours, having read, I must say fairly

quickly this morning, the argument below, one thing

is abundantly clear and that is that the argument

which appears in paragraph 5 of our written submissions
before Your Honours was pressed from beginning to end

of the argument and probably formed the most

significant basis of the argument on liability.

As to the argument in paragraph 4, there is a degree of ambiguity which may have lead the Full Court to saying what they did. It will be apparent when we

go back to the evidence, and Your Honours may have

already got this from looking at the doctorls evidence

yesterday briefly, there is no question but that

the present respondent suffered, or prior to taking

up his occupation as a slaughterman, either had

active dermatitis at the time or a proneness to

dermatitis.

At the time of the application there was no

active dermatitis but the proneness to dermatitis

remained.

(Continued on page 29)

C2T3/l/HS	28	1/6/89
Asioty(2)

MR GYLES (continuing): That was always described by our side i...-i putting

questions and submissions, as far as I can see,

as an underlying condition. It was not conceded

to be a disease. An "underlying condition" is the

way it was always described by my learned junior

so far as I can see.

Now, His Honour Mr Justice Kelly, in a passage

to which we will refer in a moment, stated the
question at issue, perhaps I should take Your Honours

to that, page 114, point 4:

So far as the appellant's medical

incapacity is concerned, the question to be

asked is whether the pre-existing disease

(the basic dermatitis) was so aggravated

as a result of the nature of the appellant's

employment by the respondent that in its
present quiescent state it constitutes an
aggravation, acceleration or recurrence of
the pre-existing disease which causes the

incapacity from which the appellant suffers.

And then His Honour goes on to deal with that issue.

McHUGH J: That is identical with what appears at page 135?

MR GYLES: Yes, Your Honour. That is the passage which is

picked up at 135. Now, wha4 it appears to me,

happened during the course of the argument was that

one of the judges on the Full Court Bench said to

c,Junsel separately, "Do you agree that that was

the issue?" and each of them at different times

said, "Yes". Now, Your Honours, the - - -

MASON CJ: Is that recorded in the transcript?

(Continued on page30)

C2T4/l/FK	29	1/6/89
Asioty(2)

MR GYLES:  Yes, in the argument below. However, when the

argument as a whole is read, two things, as I say

are apparent. The first is that it had nothing to

do with the argument which was put and pressed on

our side that the position post the episodes of

dermatitis at work was, so far as capacity for work was concerned, precisely the same before and after.

So that what was said could not in any sense be

taken as abandoning that argument. Secondly, as far
as the acceptance of that as an issue, it would be

seen on a proper understanding of it, in my submission,

that the acceptance of that question was not an

acceptance or an admission that there was an
underlying disease. It was an acceptance that there
was an underlying condition and that is something
which can only be gleaned, I take it I suppose, by

reading the whole of the transcript of the argument

but, Your Honours, in any event, as I put yesterday,

this matter - and I have put this morning - proceeded

before the magistrate as a full, all-issues case -

dispute which was determined; went to the first appeal,

then to the second appeal and what was said in answer

to the question from the member of the bench about

what fell from Mr Justice Kelly would not, in my

respectful submission, limit our ability to say,

taking the evidence at its best for the respondent -

that is, taking his expert- can that condition be

properly described as a disease within the ordinance.

Now, it is a short point and I do not want to

over-labour it, Your Honours, but let it be so against

me for the purposes of this exercise that, on that

issue, my learned friend, Mr Nock, agreed that the

question was as Mr Justice Kelly posed it. The focus

there was on the question of aggravation not upon

whether it was a disease or not.

(Continued on page 31)

C 2r5/l/SH	30	1/6/89
Asioty(2)

MR GYLES (continuing): Indeed, my learned friend,

Mr Nock, put precisely the question - I think I

have taken it down word for word - whether the

predisposition to aggravation of the condition

is, in itself, an aggravation. That, in my

respectful submission, is near enough to precisely

the point we wish to argue under paragraph 4.

But as I say, we strongly deny any abandonment

of what was the principal point argued below

and which - - -

McHUGH J: It is not quite the same as in paragraph 4,

is it? It is quite different, is it not, because

as formulated it is a question whether the

predisposition constituted an aggravation?

MR GYLES:	Yes, that is so, Your Honour.
McHUGH J:	Whereas in paragraph 4 of your written submissions
the question was whether he had a disease.
MR GYLES:	I appreciate that, Your Honour, but I say it

is near enough, we say, in substance. It is

not precisely the same but the emphasis in each
case is - what we are really asking the Court

to do is to examine the concept of a predisposition

condition, a condition which predisposes to what

is, admittedly, an incapacitating disease, whether

that, in itself, is a disease or not.

MASON CJ:  But why should we do that when it is an issue

that was not argued before the court below?

And one of the problems, Mr Gyles, and it is

a very real problem in this Court, is that we

are faced with a judgment which says that there

was one question only for determination before

that court. Now, it may be that in some cases

a record of that kind, incorporated in the judgment

of the court below is not correct but in considering

whether or not special leave ought to be granted,

naturally, this Court takes account and acts

on the basis of what appears in the court below

have thought that if a party is complaining	as to the conduct of proceedings. But I should	that there is an incorrect description of the
issue or of what transpired in the court below
it ought to ask that court to reform its judgment.

(Continued on page 32)

C2T6/1 /ND _	31	1/6/89
Asioty(2)

MR GYLES: Well, Your Honour, can I deal with that in two ways.

First of all, at the special leave application,

the point which is now to be found in paragraph 5

was raised, as an argument by counsel appearing

for my client, without demur. Now Your Honours,

this appeal was brought on more quickly than had been thought - it was listed for some later time. Whether, with the opportunity of greater reflection,

there may have been some other procedure adopted to

deal with this question which is now raised -

MASON CJ: Special leave was granted in December, was it not?

MR GYLES:  Yes, Your Honour. I am not suggesting that there

has not been time , Your Honour, but the matter

was specially fixed for September and it was

brought back. Now, we are not complaining about

that, Your Honour, but as the matter is - - -

MASON CJ:	I do not think cases are" specially fixed" in
this Court - an indication is given perhaps that it ~ay be listed at a particular time, but that
is all it amounts to.
MR GYLES:	Your Honour, there is certainly no complaint on
our side about it at all. It is just an
explanation, Your Honour, that perhaps - - -

MASON CJ: Yes, all I am doing is insisting on accuracy, that

is all, in the statements that are made.

MR GYLES: Well, may I then go back to the point that on the

special leave application this point was fairly

and squarely raised, without demur: Now it is hardly surprising, that when we come to argue the

appeal, we wish to pursue that. Now, I have

conceded a certain ambiquity about paragraph 4

of our submissions. I submit that it is not an

ambiquity which would normally lead to this Court

not hearing argument on the affect of an admitted
body of evidence, and the only question is,

whether that body of evidence leads to a finding

that the statutory description is at stake.

C2T7/l/CM	32	1/6/89
Asioty(2)

MR GYLES (continuing):  Your Honours, as to paragraph 5, that

issue had been adumbrated from day one of the case

at all times and has been maintained and it would be

a gross injustice if the appellant were not permitted
to put that, and if there is any doubt about that I

would ask that the appeal be adjourned and matters

put on affidavit, Your Honour. It has been a

fundamental point in the employer's approach to the

whole case and, as I say, was raised at the special

leave application.

Your Honours, that is the procedural position

as it stands and I submit that there is no barrier to

me putting either of these arguments, and certainly

no barrier to me putting the argument in paragraph 5.

MASON CJ:  On what you have said, Mr Gyles, you may have a

stronger case for putting argument on the incapacity

issue than on the disease issue.

MR GYLES:  Yes. I concede that, Your Honour. I do not -

as Your Honours understand as to the first issue, the
disease, I submit that even if there were no ambiguity

below, even if there were a formal concession, if there

were a withdrawal of an argument, if there were a

withdrawal of a ground of appeal, I would suggest,
with respect, that the point at issue is one where

this Court would grant leave to reopen, but that was

not the case. This is not a situation where a party

has before the appellate court abandoned any argument.

The most that can be said is that counsel accepted a particular framing of a question.

McHUGH J:	One difficulty from this Court's point of view is that we are deprived of the benefit of the Full Court's
reasons on the point.
MR GYLES:	Your Honour, but why, because they found for us on

another point. It was not - and this is no doubt

what has happened, with respect - the Full Bench were

persuaded for the reasons they have outlined and we,

of course, support those reasons in any event, but

they did not in terms discuss the arguments that

had been put to them for the employer which is

essentially a very simple argument, Your Honours.

It was, and remained, very simple and based upon the evidence at its highest for the respondent, so there

is no disadvantage procedurally to anybody if that is

now argued, I would respectfully submit.

MASON CJ:	Mr Bennett, before Mr Gyles proceeds further, do you wish to make any submission to the Court on the
question whether it should receive argument from the respondent on the two issues that he has identified.

MR BENNETT:  Yes, Your Honour, very briefly. On the first

issue may I refer Your Honours to one additional

-passage in Mr Justice Kelly's judgment, and that 1s

C2T8/l/HS	33	1/6/89
Asioty(2)

at page 113 where at point 3 His Honour says:

There is no suggestion that the

condition from which the appellant suffered

at any time was other than a disease.

MASON CJ:	That goes to the disease argument.
MR BENNETT:	That goes to the disease argument, yes. The

other matter is this, Your Honour. We would submit

that it is important, where a number of points occur

in a case and only one of them is determined by the

appellate court immediately below this Court, that

if the other issues are to be raised they be dealt with by notice of contention so the Court can take

that into account in setting its times, and so

people can take it into account in their preparation,

and so on. In this case, we would submit, the issue

was a short and simple one. The other issues are

fairly complicated factual issues which involve
going back and going through the facts, and facts

which have been determined in the appellant's favour

by two courts, by Mr Justice Kelly and by the

magistrate.

(Continued on page 35)

C2T8/2/HS	34	1/6/89
Asioty(2)

MR BENNETT (continuing): My friend, really, has not only

the difficulties of the absence of a notice of

contention and of the remarks in the Full Court,

whether strictly accurate as a matter of agreement

of not, my friend also has the problem that he

needs to persuade the Court that two courts which have concurrently determined the facts were wrong

on the facts and that is a burden which is not

lightly undertaken and when that factor is taken

into account that, we would submit, is an additional

reason why this Court should not permit the arguments

to be put.

TOOHEY J:  But, Mr Bennett, if we are considering the

extent to which issues were raised, both in the

Full Court and before Mr Justice Kelly, there

seems no doubt that before Mr Justice Kelly,

as appears on page 113, that:

The critical question -

for him -

is whether the residual incapacity -

was -

due to the nature of the employment.

MR BENNETT:  Yes, that issue was certainly debated.

TOOHEY J: Well, now, is. it suggested that somehow that

argument got lost before the Full Court?

MR BENNETT:  It seems to have been argued before the Full

Court, Your Honour, as far as one can tell.

I am in a weaker position on that argument than

on the other argument, there is no doubt of that.

TOOHEY J:  Yes.

MR BENNETT:  Your Honours, those are my submissions.

MASON CJ:  Thank you, Mr Bennett. Mr Gyles, the Court

will hear argument from both these issues but
upon the footing that we leave it open to

Mr Bennett to develop an argument in response,

if he is so minded, thatyou are shut out on both

these points by reason of the course of proceedings

in the courts below.

MR GYLES:  Yes, if Your Honours please. May I just make

this submission that as to the passage at

page 113 point 3 that my learned friend read,

I think I had read that myself and I submit that

C2T9/l/SH_	35	1/6/89
Asioty(2)

it is correct, that that was relating to the

dermatitis which, on any view, was suffered as

a result of his work injury. There was no doubt

but that he was entitled to be compensated for

that dermatitis which my learned junior called

"industrial dermatitis" in the course of his

submissions below.

Your Honours, as to the two questions, may I ask the Court to go to the evidence of Dr Heeler.

In-chief, it starts at page 19 of the book.

MASON CJ:  But what is this going to go to?

MR GYLES: It is going to both issues, Your Honour; both

as to whether the underlying condition can be

described as a disease and, secondly, whether

there was any evidence at all to indicate that

the underlying condition was worse later than

before in any respect which related to capacity

to work. Now, Your Honours, at the foot of page 19,

there is the first version given by the respondent

to the doctor; that is, that there was "no personal

or family history of previous skin troubles"

and I might remind Your Honours, he had, of course,

been in employment for very many years in a number

of occupations, mainly as a waiter. He concluded

that dermatitis was of contact origin and then,

the second answer on page 20:

Dermatitis, yes. This condition .had been present, originally it was estimated at

10 months, but subsequently considerably

longer. But it had got worse after he had

started working as a slaughterman ..... I

could not put an exact label on it -

and so on. Now, Your Honours, that bit of evidence

caught the respondent's lawyers by surprise and

it led, ultimately, to an adjournment because

the case which the respondent had presented was

no dermatitis before going to work as a slaughterman.

He indicates that salt might have been the

substance which was relevant as an irritant;

says what he prescribed and the treatment and

then, at the top of page 23 - and Your Honours,

this is in-chief:

HIS WORSHIP:	Your op1n1on was that his
hands had ·
That is.right.	just straight out dermatitis?---

And then he says there was no connection between the legs and the hands and, at the foot of that page, the fourth-last question:

C2T9/2/SH.	36	1/6/89
Asioty(2)

When you last saw him how close to normal

were they?

"They" were the hands -

There were only a few minor splits in the

ends of the fingers.

But -

Did he still have the dermatitis?---On the

hands, no.

What is his - at the time that you last

saw him, what was his fitness for his former

occupation as a slaughterman?---From the

history and what I have seen of him, I would

say he cannot go back to slaughtering.

Why is that?---Because whenever he does

go back to work his hands flare up.

(Continued on page 38)

C2T9/3/SH	37	1/6/89
Asioty(2)

MR GYLES (continuing):

Does he have any continuing condition, that is

relevant to whether or not he returns to being

a slaughterman?

---Not at the moment.

What would you expect to happen if he did return

to his former occupation?---As a slaughterman I

would expect his hands to flare up again.

And he says, at point 4 on the page:

I would say he should avoid any sort of

occupation that involves having his hands

constantly wet or handling potentially

irritant chemicals like acids, alkalines,

strong solutions, and similar sorts of

preparations.

Salt.

Would occupations in which he had to perspire excessively, would they be suitable?---Perspiration

involves getting the hands wet, yes. It is a

similar sort of situation.

And then he again confirms that the legs are a

separate matter.

MASON CJ:	By the way, is the description of the disease like
Amyloidosis Cutems  a description of the condition
of the legs, not of the hands?

MR GYLES: Legs. Not of the hands. So, Your Honours, will

pardon me for putting this submission, but on that
evidence in-chief there is no evidence at all of

made of any difference between his position before

any disease apart from dermatitis when it flares up.

and after the subsidence of the dermatitis.

MASON CJ:	Why is not a susceptibility, or proneness, to
dermatitis a disease itself having regard to the
statutory definition of disease?
MR GYLES:	Your Honour, I submit that the answer is that it is
not. That a mere proneness or disposition does not
amount to a constitutional - does not answer the
description in the extended definition of section 6.

MASON CJ: Well, the word "defect" is there.

MR GYLES:  It is, Your Honour, but reading it in context: physical ailment, disorder, defect or

morbid condition,

C2Tl0/l/DR	38	1/6/89
Asioty(2)

and bearing in mind that it is, after all, a

description of "disease" I respectfully submit that

it would not be said in ordinary parlance or, indeed,

any parlance, that the fact that your skin may be

such that it is more prone to dermatitis than the

person next to you is hardly, with respect, a

disease.

MASON CJ: Is there any expert evidence in this case as to, as

it were, the underlying factors behind an eruption

or outbreak of dermatitis?

MR GYLES:	No, Your Honour, there is not. Certainly not from
Dr Heeler, who is the doctor that the magistrate
who decided the matter accepted. And, Your Honours,
yesterday I referred to the analogy of a pilot that
has an obsessive personality which predisposes him
to phobia, held not to be a disease. The phobia,
when it emerges, of course, is. That is the
incapacitant.

McHUGH J: Yes, but questions of so-called diseases of the

mind are different. For 200 years the law has

spoken about disease of the mind and probably I am

obtuse but I must say I have never understood it

myself. It is talking in metaphors.

MR GYLES:	Your Honour, I, of course, am not saying that one
could not have an underlying condition which could
be described as a disease. If there was some defect
which led to the proneness that may well be described
as a disease but not, with respect, the fact that A's skin is more sensitive than B's.
MASON CJ:	But does not Dr Heeler constantly speak here of this being a congenital or constitutional condition?
MR GYLES:	I think he mentions "constitutional" twice,
Your Honour, but usually he is speaking about it
in relation to the legs.  But constitutional - - -

MASON CJ:	But he does speak of it as constitutional in relation
to the hands.
MR GYLES:	I think that is fair, Your Honour.

MASON CJ: Well now, if it is a defect and it is a constitutional

defect, there cannot be any question but that it is a

disease.

MR GYLES:	But, Your Honour, does that mean that the person who
is of Scottish descent and gets sunburn when he goes
out into the sun, has a disease? - With respect?
MASON CJ:	I will ask my wife when I return home this evening.
MR GYLES:	Your Honour, with respect, I would suggest that that would be laughed at by anybody who is -

C2Tl0/2/DR 39 1/6/89

Asioty(2) (Continued on page 39A)

BRENNAN J: It depends on what is the range of normalcy, does

it not?

MR GYLES: Yes, Your Honour, it does. It does indeed.

BRENNAN J:  How do you distinguish this condition from an

allergy?

MR GYLES:	Your Honour, I cannot answer Your Honour's question
because there is simply no evidence about it. I
can speculate, I can offer Your Honours my view about
it, but that is of no value.

BRENNAN J:  I will put it another way. If somebody is allergic

to house dust, pollen, milk,	whatever it might be -
u:: :.c.: s they go to work where	they encounter the

f -, house dust or milk there is nothing wrong

w :em.

(Continued on page 40)

C2T10/3/DR ·	39A	1/6/89
Asioty(2)

MR GYLES:	Your Honour, there may be none, I do not know
whether one would describe what Your Honour has
called "an allergy" as being a disease. I mean
certainly, once the condition emerges, it can be
described as a disease. But, one would need to know a lot more, with respect, about the pathology of it
to know whether it is - as Your Honour put your finger on it, it is a question of what is normal.

You cannot say, surely, that because A is more

prone to sunburn than B, he has a disease.

McHUGH J:	No, but if you are like Mr Gruzman and you have got
to wear a hat whenever you are outdoors, you would
say  he had a disease, would you not - at least,
had a physical defect?
MR GYLES:	I would submit, not a disease, Your Honour. I would
say not a disease because the human body varies
enormously from person to person, and the fact that I cannot play rugby league like Wally Lewis does not mean that I have a physical defect. I certainly have a number of physical defects, but one would
not describe them as a disease.

BRENNAN J: That would be testing our credibility too far.

MR GYLES:  Your Honour, I have been thinking of, of course,

all sorts of examples to put to Your Honours but

really they are just this case, I mean - - -

MASON CJ: Is there any discussion of defects in the context

of statutory definitions?

MR GYLES: Not that I have been able to find, Your Honour.

MASON CJ: This question is not discussed in the cases on

workers compensation?

MR GYLES:	I have not found any authority on "defect" Your Honour,
as an element of this extended definition.
MASON CJ:	Can I ask you, have you looked for them?

MR GYLES: Well, I have read the cases that deal with it

Your Honour. I confess, I have not looked at the

indexes under "Defect", and that is why I am a

little bit guarded in my reply.

MASON CJ:	The statement that you have not found any does not
carry a great deal of persuasion.
MR GYLES:	No. It is not as strong, Your Honour, as it might
be, but I am not aware of any, and I submit -

MASON CJ: Well, you have developed this point, there is not much

more that could be said about it, is there?

C2Tll/l/FK	40	1/6/89
Asioty(2)

MR GYLES:	I think any other examples I give will be no better or worse than the present case. It is a fairly good
example of the problem.  I will briefly take
Your Honours to the CONNAIR case, or refer Your Honours to it, but that is all - perhaps I should do that
now.  May we hand up copies of that decision,
Your Honour?  CONNAIR PROPRIETARY LIMITED V FREDERIKSEN,
142  CLR 485. Your Honours, at the foot of 491,
Mr Justice Gibbs sums up the evidence - this is the last few lines on that page:

The respondent had an obsessive and compulsive personality which predisposed him to the

condition of phobia which he developed. This

was a completely new condition, and it was

caused by the displacement of an inner fear,

of which the respondent was unconscious, so

that it became consciously related to an outward

object, viz. flying.

And then that is elucidated. And then at page 497,

the first full paragraph, His Honour says:

In the present case, it is clearly established

on the balance of probabilities that the

respondent had a personality which predisposed

him to the anxiety state from which he now suffers.

It is unimportant to decide whether that

pre-existing condition was itself a disease, but

in my opinion it was not.

MASON CJ: This does not help us very much. This is in the

context of mental as opposed to physical.

MR GYLES:	Your Honour, I notice Your Honours have put that
to me, but the question must be asked, "What is the
distinction in principle?". If it is correct to say, as the doctor here did, that there was a predisposition, and that constitutes the condition, what, in principle,
is the difference?  We would submit, none.

Your Honours, other examples .....

might be - SEMLITCH's case itself is not really in

point. There the delusions were sparked by what was,

admittedly, a disease, an underlying disease of

schitzophrenia, and RUTLEDGE's case, for example,

was a latent paranoia. They are not good examples.

(Continued on page 42)

C2Tll/2/FK 41 1/6/89

Asioty(2)
MR GYLES (continuing): In the physical sphere we have not

found any case which throws any light on this

point. Usually the debate, Ybur Honours, is

whether what the worker is actually suffering

from can be correctly described as a disease,

not whether the precipitating or predisposing

factor is a disease.

Now Your Honours, I return to the transcript.

As I have said, at the end of examination in-chief, we would suggest that both our arguments were

made good. As far as cross-examination is

concerned, which proceeded thenfor the whole of 25,

there is nothing which detracts from that at all.

He was asked, at the foot of the page, whether

it was superimposed on another condition, and

his answer is ambiquous. He said that he had had

dermatitis in the hands for a "considerable period",
which did not come out immediately, but had

been going for some while; a -

considerable period ..... The original history

was for 10 months. But on a subsequent

occasion I gather it had been going for two

years or longer.

Before he went to work as a slaughterman?---

That is right.

And then, point 4 of the page:

If he stopped working as a slaughterman how

long would it last?---It would settle in

about a week, one or two weeks.

Then he would be left with the underlying

condition?---Yes.

And if he went back to that sort of work or

the work involved in wet hands and that sort

or thing, then it would flare up again?---

Yes.

Not necessarily abattoir work at all?---No.

So as far as his capacity for work was concerned when you were issuing these certificates

for him to be off work that was to keep away

from the abattoir work rather than other

forms of employment?---That is right, yes.

He was not totally incapacitated?---No.

And that has been the case all the way, has it not, doctor?---Yes.

C2Tl2/l/CM	42	1/6/89
Asioty(2)

Then I think you said on July 6 his hands were normal but the legs were still

giving him problems on July 6 1982,

I think?---Yes, 1982.

And as far as any restrictions on the type
of work that he does now, that is solely
related to the underlying condition of

his hands or his legs or both?---The

hands particularly.

Which has not been caused by the abattoir

work?---Not caused. But I consider

aggravated.

But aggravated by it?---Yes.

Aggravated by it which after he stops doing it ceases and he goes back to the

underlying condition?---Yes.

And then there are the answers	which I read
to Your Honours yesterday, which	I will not
read again, about the underlying	proneness and
then the re-examination which I	think Your
Honours were taken to yesterday	in a fair
amount of detail, but I did not,	I think,then
read to Your Honours the answer	at the top of
page 27:

So what is the present status of the underlying condition compared to what it

was before he went to the slaughter house?

---I cannot really comment on that. I

did not see him before he went to work at the slaughter house. Certainly his hands

were a lot better than when I first saw him.

Then he goes on with"lichenification" and so on.
Then there are the questions about "flare up"

and the third last question on the page:

Would he react now to environments that he

had previously not reacted to?---I cannot

say definitely. It is probable that

if he had not gone to work as a slaughterman

but had taken on some other job involving

handling chemicals or getting his hands

wet that he would have reacted similarly

to the way he did after he became a

slaughterman but I cannot be absolutely

certain.

So you are not saying it was just the

slaughtering job, as it were, but any job

where he is likely to come into those

categories you mentioned earlier?---That

is correct.

C2Tl2/2/CM 43 1/6/89

Asioty(2) (Continued on page 43A)

Your Honours, those answers on that page, in

our respectful submission, are decisive of the

question as to whether there is any difference

from a work point of view between the conditions

before and after.

BRENNAN J: Are you not running together two separate

concepts which section 9 keeps independent

one or the other, namely disease on the one

hand; incapacity on the other?

MR GYLES:	Your Honour, it is true that in going through
this evidence I have read it with two arguments
in mind, but 1 will, I hope, disentangle that in a moment.

BRENNAN J: But if you put it from the work point of view,

you are conflating two notions.

MR GYLES:	Well Your Honour, I think what I am endeavouring
to do is take the words of section 9 of the
statute - the ordinance - where a workman is
suffering from a disease, that is present tense,
and is thereby incapacitated for work, and the disease is due to the nature of the employment
in which he was employed and so on.
Now Your Honours, first of all we say, now, no disease, and we have put my argument about that.

(Continued on page 44)

C2Tl2/3/CM-	43A	1/6/89
Asioty(2)

MR GYLES (continuing): If I am wrong it is because the

"underlying condition" is a defect and can be

thus described as a disease. Question 2, is

he thereby incapacitated for work and the disease
is due to the nature of the employment in which
the workman was employed? Your Honours, to

establish those propositions you must find a

disease which is due to the nature of the

employment in which he was employed. In the

present case the underlying condition is not

the responsibility - it had nothing to do with

the work at all.

DAWSON J:	Why not, if it has been aggravated?
MR GYLES:	May  I come to that, Your Honour. The basic

underlying condition was not the result of work,

it was just there.

MASON CJ:  But then you ought to meet the question whether

there is an aggravation and if it is the cause

of the incapacity.

MR GYLES:  I agree, Your Honour. What is put against us

at the highest is, having had a flare-up caused

by work, from now on that condition will flare up

more often - or it may flare up ~ore often - and when

it flares up it will be harder to get rid of.

Your Honours, that, let me assume for the purposes

of this argument, adds or aggravates the underlying

condition. Let me assume against myself that that

is the case. The question that must then be

asked and answered is: when you add that aggravation

to the underlying condition, that does not have

the consequence that the underlying condition

can ever be said to be the result of work.

BRENNAN J: Is that not exactly what Mr Justice Gibbs was

saying in CONNAIR? It does not matter about

the original condition, the question is, "What

of the aggravation?".

MR GYLES:  Yes, Your Honour, but in that case it was not,

with respect, an aggravation, His Honour said,

"No disease beforehand" - in fact, it is precisely

what he did not say. There is no disease beforehand,

that was a predisposition but the neurosis which

developed - or the phobia which developed - was

disabling - no question about that - and persisted.

BRENNAN J: Apart from disabling, which has to do with

incapacity, it is a disease.

MR GYLES:  Yes, Your Honour.

BRENNAN J: Then why is it that the enhanced sensitivity of

the workman here is not a disease.within the

statutory definition?

C2Tl 3/1 /ND	44	1/6/89
Asioty(2)

MR GYLES:  Your Honour, looking .at it at the present time,

and you ask yourself, "From what is he suffering?",
and assuming that the underlying condition can

be described as a disease, you would, I agree,

look at the total, not just one part of it.

BRENNAN J: Why do you not look at the enhancement; not

the total, the enhancement?

MR GYLES. Yes, but, Your Honours, having got to that point,

and this is what the case, with respect, has

always been about, the doctor has said, "As he

was before he went to the slaughterhouse, his

condition was such that he would develop dermatitis

in a range of situations and he was thus unfit

to work in those occupations". He went to work,

he had a condition which emerged, that very condition

may recur and it may be more difficult to cure

when it does recur but it does not, in any sense,

expand the work which he cannot do.

It would be different, Your Honours - and

this is probably the correct explanation of what
the Full Court have said, it would be different

if the condition having been aggravated, to take

that word, meant that not only could he not work

as a slaughterman but he could now no longer work in another range of occupations. That,

Your Honours, is a very different case to the

one which we are fighting.

The absurd result of this case, Your Honours,

is - if it is carried through to other examples -

is that a person who has an allergy - to take

Your Honour's example - has something at work which -

the allergy he has with him, he goes to work
and the flower on the table sparks the allergy

and he suffers the manifestations or the disease

for a week and he is off work and he come back

again and there are still flowers on the table

and they always have flowers on the table. (Continued on page 46)

C2Tl3/2/NU-	45	1/6/89
Asioty(2)

MR GYLES:  So he goes off work and stays off work and says,

11 I am tota.lly incapacitated, not because of my

underlying allergy, but because I can't go near

flowers, and I've had an incident at work", because

there is no respect in which what has happened makes

him any less able to do a range of things. The fact

that he may go to a prohibited occupation or an

unsuitable occupation and get dermatitis more quickly,

or in a form which is more serious says nothing about

his capacity to work.

TOOHEY J:  But if he had had a condition that was symptomless

before he went to work, accepting for the moment that

it was a condition that answers the description of

disease, and by reason of the employment in which he

engages syptoms are produced which, while they may

abate once he is not working at that job, will recur
if he returns to that employment, why is not there
then an incapacity relating to the disease which he

contracted at his former employment?

MR GYLES:  But, Your Honour, he did not contract the disease.

He had the disease, Your Honour has said, with respect.

TOOHEY J:	Yes, but I was inviting you to take it as granted for the purpose of this exercise that it was
symptomless.

MR GYLES:  Yes. I am accepting, Your Honour, for the purpose

of this argument that there is a symptomless disease.

TOOHEY J:  Let me put it to you another way. Why is not the

incapacity the result of the aggravation produced by

the employment in which he is engaged?

MR GYLES:  Your Honour, that is, with respect, the question

here.	Mr Justice Kelly found just that, and the
answer is this.	As the person - the person in their

condition before they went to that employment or
before the incident happened at work was that they

had a disease which predisposed them to having that

happen to them if they went to that work or a series
of other places, let us say.	It did flare up at that

work and it then resolved itself. There is no change

in the type of work which that person can undertake
thereafter. Whilst it may be accepted for the purposes

of the argument that the underlying condition has

altered to make the onset of symptoms more likely,

that was the inherent nature of the condition in

any event. He should never have been in the

slaughterhouse.

TOOHEY J:  Maybe, but why is not the enhanced susceptibility

itself a disease?

MR GYLES:  It may be, Your Honour. It may be that that is a

disease, but it does not mean that it is that disease

which incapacitates for work. It is the underlying

C2Tl4/l/HS	46	1/6/89
Asioty(2)

condition and certainly that is not due to the nature

of the employment. You cannot have a situation where

before the incident the medical situation was that if

you went into a range of situations you would have a

condition emerge and we know that even though asked

he was unable to say that there was any difference

before and after.

If there were a difference, if, for example, he

could not, thereafter - let me take this example,

Your Honour. Let me take it that the evidence - not

in this case, but in another case - said this having

happened he has developed a proneness to get

dermatitis not only from a slaughterhouse but from

a chemical plan~ that did not exist before, the

sensitization now means he will get it from a

chemical plant.

(Continued on page 48)

C2Tl4/2/HS	47	1/6/89
Asioty(2)

MR GYLES (continuing): That would lead to a conclusion of

partial incapacity to work in a chemical plant.

It would not lead to partial incapacity to work

in the slaughterhouse. He has never been able

to work in the slaughterhouse.

BRENNAN J: This seems to me to have shifted the ground

entirely from where this case started because

once you accept that it may be that the enhanced

susceptibility is a disease, the passage on page 141

stands without defence. We then shift from

disease to incapacity and the point that you

have been making in answer to Justice Toohey

is that that enhanced sus~eptib~lity has no relevant

role to play because it does not affect capacity.

MR GYLES:  Yes.

BRENNAN J: That is a different point, is it not?

MR GYLES: It is a different point. It is not the disease

point, Your Honour, it is the capacity point.

BRENNAN J:	No, it is not the disease point, and so you now place your case, as I understand it, firmly
on the capacity point which gives rise to problems
that we have discussed earlier today.

MR GYLES: Capacity in connection with employment. That

is the critical question.

BRENNAN J:	Yes.
MR GYLES:	Can you say, assuming against myself for a moment, that there was an aggravation of the
underlying disease in the sense that you are more prone to have the condition emerge but in
precisely the same circumstances whether that
has any relation to workers' compensation. Why?
Because there is no link - you are not now less
able to work than you were before.

Now, Your Honours, with respect, that lies

at the heart of workers' compensation and may

I remind Your Honours of the decision of this

Court - I think the most recent decision has looked at the general principles - of ARNOTTS

SNACK PRODUCTS PROPRIETY LIMITED V YACOB, (1983)

155 CLR 171 and I will hand this up, Your Honours.

I have not photostated the whole report but if

I could hand up to Your Honours the headnote

and then the passages at pages 178 and 179, from

the joint judgment. His Honour Mr Justice Brennan

gave a separate judgment.

C2T15/l/SH	48	1/6/89
Asioty(2)

Now, Your Honours, the facts are set out in the second part of the headnote:

A clerical worker, whose work called

for climbing and lifting, fell from a chair

and injured his back. He could not then

climb or lift. While recuperating, and

still able to perform clerical duties, he

sought but was denied suitable employment

and his job was allocated to another worker.

He claimed compensation as if totally

incapacitated. The employer argued that incapacity within the meaning of the Act

meant physical incapacity resulting in

actual economic loss.

Now, Your Honours, I might say that this was

an 11(2) case but it was necessary for the purposes

of the argument to decide what the expression

"incapacity for work" meant in the New South

Wales Act. So, 11(2), whilst a feature not present

in the present case, did not detract from the

necessity to examine the notion of	the expression
"incapacity for work".	At pages 178 and 179

in the joint judgment after, I should tell Your Honours,

the previous authorities had been examined:

It follows that the concept of partial

incapacity for work is that of reduced physical

capacity, by reason of physical disability -

in this case, disease -

for actually doing work in the labour market

in which the employee was working or might

reasonably be expected to work.	Under
s.11(1) -

and this is the equivalent of the provisions here

an applicant's entitlement to compensation

will depend on his loss of earning power.

This flows, not from the concept of partial

incapacity for work, but from the nature

of the express limitation -

et cetera. Then:

As Fullagar J. indicated in THOMPSON,

the references in the judgments to an incapacity
for work which reduces the employee's ability

to sell work for wages on the open market

have had as their purpose the rejection

of the erroneous view that a worker is not

partially incapacitated if he can do all

the things that he could do before the injury.

C2Tl5/2/SH 49 1/6/89

Asioty(2) (Continued on page 49A)

So, in BALL V WILLIAM HUNT & SONS LTD,

the worker, who had been blind in the left

eye, sustained an injury requiring removal

of the eye. Although he was able to do

all that he had done before the injury,

employers were unwilling to employ him.

It was held that he was partially incapacitated by injury. It is illegitimate there fore

to use the references to reduced ability
to sell work for wages as an argument for

diminishing the content of incapacity for

work.

(Continued on page 50)

C2Tl5/3/SH	49A	1/6/89
Asioty(2)

MR McHUGH J:  Why is not the principle in HUNT's case

against you?

MR GYLES:  I would submit it is very much for me, Your Honour,

because in HUNT's case- - -

McHUGH J:  I mean, the worker could do everything he could

before in HUNT's case.

MR GYLES:	Yes.
McHUGH J:	But people were less likely to employ him. Now,

you have a worker who, as a result of the aggravation, has an underlying condition which is more difficult to

treat and more likely to flare up.

MR GYLES:  Your Honour, the underlying condition is not more

difficult to treat. That was a mistake

Mr Justice Kelly made. It is the symptoms	when they
emerge which are more difficult to treat.	But,
Your Honour, take BALL's case - - -

McHUGH J:  I am not sure that that is right, is it? If the

underlying condition has been aggravated, in the sense

that something has happened to it which now makes it

more difficult to treat when the symptoms appear,

it means he is going to be off work longer.

MR GYLES:  That may be so, Your Honour. I am not denying that.

But it is not correct to say that the underlying condition is more difficult to treat, because there

is no evidence it was being treated. There is no

evidence of any treatment of it. When the symptoms

emerge, the doctor said they would be more difficult

to clear up. But, Your Honour, take BALL's case, in
that case, as Your Honour has correctly said, the

argument was, "Here you are with sight, able to do all
that you could do before; therefore no incapacity."

The answer was no, because he was vulnerable in a way

he was not vulnerable before. In this case, the

vulnerability is precisely the same. If you go to

work - - -

McHUGH J: No, it is not, because he has an increased

vulnerability. It is more likely to flare up.

MR GYLES:  But of precisely the same thing happening. Does it

matter - - -

McHUGH J: He can go and work for the Abattoirs. Beforehand

he could go and work for the Abattoirs for maybe two

or three days before it would flare up.	Now he might
be only able to go for one day.

MR GYLES:  But, Your Honour, if to go to an abattoir or a

chemical plant, knowing that you will very likely get

dermatitis within a couple of days, surely means that you

C2Tl6/l/RB	50	1/6/89
Asiroty(2)

are unfit for that occupation, in any sense of the

word. There is an area of forbidden or unsuitable

occupations beforehand; not the case in BALL, and

the same area of unsuitable occupations after.	Now,
Your Honours, a moment's thought as to the
consequences, if my learned friend is correct - I

mean it is extraordinary enough in this case, that a

person whose condition predisposes him beforehand and

after to precisely the same thing, although more often

and perhaps more difficult when it emerged - - -

DAWSON J: But this is to treat the causes of dermatisis as

being precisely identifiable. I know that Dr Heeler's

evidence is not as precise as one would want it to be,

but is it not a fair inference that the causes are

not identifiable in that way and whatever his

occupation, it may be that the thing will flare up if

he strikes something which may well be present in that

occupation?

MR GYLES:  Your Honour, what the doctor did do was to define clearly a range of occupations which he should not do.

DAWSON J: But he did not say that that was the limit of it?

MR GYLES:  Your Honour, with respect, did he not both in two

places - both in-chief and in re-examination define

the occupations for which he was unfit.	Now my
point, and it can be simply put- - -

DAWSON J:  But is that the whole story or is it just by way of

example. One would think - - -

MR GYLES:  No, Your Honour, that is the evidence led to

establish his incapacity. That is what I am endeavouring

to put in answer to Mr Justice McHugh's question.

TOOHEY J: If that is right, Mr Gyles, the appellant should not

have been paid compensation at any time.

MR GYLES: Oh yes, Your Honour.
TOOHEY J:	Why?

~ontinued on page 52)

C2Tl6/2/RB -	51	1/6/89
Asioty(2)

MR GYLES:  Because the dermatitis was disabling and it

was, in the relevant sense, due to the nature

of the employment.

MASON CJ: That is while the condition wasmanifested in

the form of eruptions.

MR GYLES:  Yes, whilst it is there there was never any

argument in the case and that is what distinguishes

this case from SEMLITCH and many other cases.

There was never any debate but that he was entitled

to compensation for the full period when the

dermatitis was present. Our argument was, once

that dermatitis goes, that, for the various reasons

we have endeavoured to advance, the obligation

to pay compensation goes. And the evidence of

the doctor in-chief and in re-examination is

that the range of occupations for which he was

unfit is the same before and after.

MASON CJ:  You put this argument with such vigour here

it is surprising that there is no trace of an

echo of it in the judgments in the courts below.

MR GYLES:  Your Honour, all I can say is that it was put

with equal vigour below and it may well have

been the spark for the Full Bench's decision.

After all, what they have said is that an

aggravation is not an aggravation for the purposes

of this Act unless it increases the symptoms

or intensifies them. And we respectfully support

that and certainly support it on the basis that

if they mean to say that that has an effect upon -

you have got to find an effect upon your capacity

to work. Section 9 says so, all of the traditional

cases in workers compensation which are analysed

in YACOB's case say so.

I submit there is a basic falacy involved in the matter which - I mean, it should not be

assumed that the underlying condition can be
properly described as dermatitis.	On the medical

evidence we would submit it is not described as dermatitis. It may have another name but

it is not dermatitis.

McHUGH J: The doctor, himself, at .26 referred to it as

dermatitis, did he not? He spoke about the

underlying constitutional dermatitis.

MR GYLES:	That is for the leg, Your Honour.
McHUGH J:	No, it is not.
MR GYLES:	At the top of page 26?

C2Tl7 /1 /ND	52	1/6/89
Asioty(2)

McHUGH J:  No, the bottom of 26:

It made the underlying condition more

recalcitrant. If you have an underlying

constitutional dermatitis, the more you

make it flare up, by whatever means, the

more recalcitrant it becomes -

MR GYLES:  Your Honour, how that stands with what is at

the top of the page I just - - -

DAWSON J: There are lot of inconsistencies in his evidence,

are there not, but - - -

MR GYLES:  In any event, the particular point, we would

respectfully submit, which ·illustrates where

Mr Justice Kelly went wrong is identified at

page 114, under paragraph numbered 2, and 116,

under lettered paragraph (e). May I take the

second of those to analyse where we say the error

occurred:

the pre-existing disease rendered more

recalcitrant by the episodes of aggravation -

and let me assume that against myself -

now prevents the workman from working in a

large range of occupations because such

work will cause a similar aggravation - And, Your Honours, it is for that which

Mr Justice Kelly granted total incapariity.

When that paragraph is read, is it not apparent

that there is a premise there that that range

is now larger than it was before and we submit

that that is the assumption which needs to be

established before there is a compensible injury.

After all, section 9 ·merely enables you to go

back to section 7 and you have got a deemed injury.

DAWSON J: That is not right. It may always have been

as large as that but now it is worse, not because

it is larger but because he is more prone to

suffer the disease.

MR GYLES:  But, Your Honour, why is that? You may have

another condition which gives you hay fever or

asthma or some other form of condition. The

fact that you may have it more intensely when

you get it does not mean that you have a larger

range of occupations that you cannot now - - -

DAWSON J: Certainly not,but the range may always have

been large but now, of course, there is an aggravation

of the underlying condition. That seems to be so.

C2T 17 / 2 /Nff	53	1/6/89
Asioty(2)

MR GYLES:	As a medical fact, let that be so.
DAWSON J:	You see, he was suffering this before he became

a slaughterman.

MR GYLES:	Yes, quite.
DAWSON J:	We do not know what his occupation was before that,

except it seems he had been a waiter.

MR GYLES:	We do know a lot about that, Your Honour.
DAWSON J:	Well, it seemed he had been a waiter.
MR GYLES:	A waiter - we do not know all of his occupations,

but he certainly says no dermatitis before. That

is shown to be not accurate because his doctor had

a history of two years, I think, rather than 10 months,

but certainly no evidence at all of any apparent

problems. He probably had not been in the occupation,

as it were, of the type that he has mentioned.

BRENNAN J:  But why is not this a finding that he has a

larger range now; waiter once, no more washing up

as a waiter?

MR GYLES:  Your Honour, there is no suggestion that a wai washes up. r

I mean, there is just no evidence about

it. Waiters do not wash up, waiters wait. Washer-

uppers wash up. There is simply no evidence here

which would entitle the judge to have made a finding

of a larger range and one would not assume that he

did.

BRENNAN J:  Why would not one assume that he did in the light

of that paragraph (e)? It rray be we come back then

to a question of fact.

MR GYLES:  Because, Your Honour, with very great respect, there

has just been a very large blind spot about this.

BRENNAN J:  I do not know about blind spot, but the word "now"

is used.

MR GYLES:  Yes. But Your Honours read the evidence of the

expert that was accepted by the trial magistrate.

After all, His Honour was sitting on appeal. He was

not sitting to make his own findings and there is

certainly no finding about that by the magistrate

below and the use of the word "now", in my submission,

reveals His Honour's error or reasoning and the

defect in reasoning which has led to this

extraordinary result. The magistrate's decision,

Your Honours, on the relevant point. runs from

page 6 7 through to page 69 .point 6., and there is nothing

in any of that which suggests that the range ot

occupations or the type of work is greater now

than it was before and, in my submission, it is a

C2Tl8/l/HS	54	1/6/89
Asioty(2)

basic principle that with no consequence so far

as capacity to work is concerned equals no

compensation. Your Honours, I fear I will be

repeating myself if I try and put that again.

BRENNAN J:  If one looks at page 62, the evidence of

Mr Kinnane is that with the condition that he has

got, as put to him there, about point 3 of the page:

I do not think there would be any

jobs available to him.

MR GYLES:  Your Honour, that is, if I may say so, with

respect, another point which I have to now come to,

and that is on the evidence the only conclusion that

can reasonably be come to is that he was partially

incapacitated, even finding everything against us,

because the doctor's evidence was that he could not

do a particular range of things. This is not a

totally disabled situation at all.	He is partially
incapacitated at the highest against us.	There is
a range of occupations he cannot do.	Now, the

magistrate below, deciding the matter as a question

of fact, held that the partial incapacity was

quantified at $40 a week. He took into account

Mr Kinnane's evidence, and applied what we would

respectfully submit is common sense to the matter,

where you have some occupations out and a great

number in, including work that he had done before,

within the cases which are referred to in ARNOTTS V

YACOB, k is plainly only a partial incapacity

case and the magistrate was placed in a difficult

position because the applicant before him was going

hell for leather for a total incapacity case.

That was his case - - -

BRENNAN J:  That may be so, but the question

MR GYLES:  - - - and did not provide, with respect, a proper

body of evidence from which the differential could

be calculated. The magistrate said that,as appears

in the transcript.

(Continued on page 56)

C2Tl8/2/HS	55	1/6/89
Asioty(2)

MR GYLES (continuing):  However, he did his best and assessed

it at that rate. Now, Mr Justice Kelly has said,

sitting on appeal, he was bound to find that Kinnane

was correct and gave him total incapacity although

it is perfectly obvious that there is a great range

of occupations still left to him including the

occupation which he had done for many, many years

as a waiter. Now, Your Honours, Mr Justice Kelly -

BRENNAN J: Mr Gyles, I am finding this difficult to follow.

Your are dealing with page 116 and the finding which you were attacking on that page.

MR GYLES:  Yes.

BRENNAN J: The question was whether or not there was a "blind

spot" as you put it, or any evidence to support a

view that the aggravation was such as to prevent a

person from having now, and as a result, a

diminished working capacity?

MR GYLES:	Yes, Your Honour.	Diminished compared with what,
though?

BRENNAN J: Diminished compared with what his position was before

he first suffered a flare up of the condition at the

Abattoir.

MR GYLES:	I accept that is the question, Your Honour, and I
maintain our submission there is no evidence on that.

BRENNAN J:  So you say. If the fact· is that before that event

he had employment in Canberra and after that event

there were no jobs available to him by reason of his
then condition, why is that not evidence which
justifies the inference that he suffered a diminution

of capacity?

MR GYLES:  Your Honour, may I put it this way. Mr Kinnane gave

his evidence on the footing of the inability of the

worker to undertake the range of jobs which were
off limits because of his condition.	He was simply

accepting that as being trelimitation and being asked

what jobs are there available. Now I pass over, for

the purposes of the argument Your Honour is putting
to me, the problem with Mr Kinnane's evidence which is:

there are no jobs for a non-English speaking person.

Now that is, in our submission, an irrelevant

consideration for partial incapacity. That is why

his evidence is irrelevant. But dealing with it in

the way Your Honour has asked me to deal with it,

Mr Kinnane was not asked by anybody, certainly not

by the respondent who you would expect to

ask him, "Would you compare, please, the work he
could have done beforehand and the work he could have

done after.

C2Tl9/l/DR	56	1/6/89
Asioty(2)

Because connnon sense tells us, Your Honour, there

would be no difference between the two. Because he would have been asked the question - assume before

the injury, ~e was unable, because of his constitutional

defect to work as a slaughterman, in a chemical factory,
in any occupation which would cause him to heavily

perspire and any occupation which brought him into

contact with liquids on his hands.	I want you to
assume that was what he could not do.	I want to

assume after the deemed injury he was in precisely

the same position - "What do you say about the

difference in jobs available?" It is a non sequitur.

BRENNAN J: What happened to the prospect of employment as a

waiter?

MR GYLES:	Your Honour, the difficulty is that the applicant himself did not - he said, "I cannot do anything."
There was no evidence that he could not be a waiter
from any of the doctors, no evidence at all. It is
his case, he does not call any evidence to suggest
he could not work as a waiter.  Now, Mr Kinnane
cannot fill that gap.  I mean, that potentiality
remained.  Now, in fact, the magistrate made his
assessment on the basis that he could work, in effect, as an odd-job person but that is merely an example
for quantifying partial incapacity.

This particular statute does not lay down any

criteria and, therefore, the magistrate was at large

as to how he fixed the economic amount. We submit

that Mr Justice Kelly was plainly wrong in interfering

with that. More importantly, to answer Your Honour's

question, Mr Kinnane's evidence provides no basis

upon which it can be said there was a larger range

out of bounds after than before. Now, as I think in

answering that question I have virtually put the

argument we wish to put on the second limb which is

that in the event that the Court is against us on capacity and the question arises as to what order

should be made, Mr Justice Kelly's setting aside of

the magistrate's decision was, in our respectful

submission, not open to him in the evidence.

(Continued on page 58)

C2Tl9/2/DR ..	57	1/6/89
Asioty(2)

MR GYLES (continuing): It was not a matter which the Full Court

had to deal with because they found for us on the

basic question of liability. I think the only authority

I would refer to there is ARNOTTS V YACOB, and the

cases which are referred to in that decision.

If Your Honours please.

MASON CJ: Thank you, Mr Gyles. Yes, Mr Bennett.

MR BENNETT:  I just might deal with my learned friend's last

point first, which is the question of evidence of

incapacity. There are a number of problems with

my friend's submissions. First of all there is a

short, simple, factual answer to what he says, which

is a matter of fairly clear inference. It may

well be that waiters at elegant restaurants wear
white gloves and do not put their hands in the

dishwashing, but one is dealing with a 53 year old

gentleman, who does not speak english, whose hands

have an unsightly condition, even when there is no

flare-up, and one wonders, as a matter of pure
common sense, what sort of job he would get as a

waiter, and if he did get one as a waiter, whether

it would be one which involved keeping his hands

out of the kitchen sink.

I mention that simply because it illustrates

the problem my learned friend has. He is seeking

to upset concurrent findings on a range of matters,

and he seeks to do that by going to the evidence and

seeking to raise inferences and arguments in relation

to the facts. And, in my respectful submission, that

is an exercise this Court should not permit.

If I may just show Your Honours. very briefly

the two recent decisions of this Court dealing with

concurrent findings - I hand those to Your Honour.

The first is BAFFSKY V BREWIS,

(1976) 51 ALJR 170, and the second is a brief passage

in MUSCHINSKI V DODDS,160 CLR 583. In BAFFSKY V BREWIS,

in the very last paragraph of the judgment of

Sir Garfield Barwick, His Honour said:

In relation both to whether or not

the respondent acted honestly in making the
loan and to whether he ought fairly to be

excused, the trial judge and the Court

of Appeal have reached the same conclusion.

I find no error in either of those conclusions and for that reason would

dismiss this appeal. But it may not be

inappropriate to add that where there have

been concurrent findings of fact or concurrent

views as to the exercise of a discretion, an

appellant has in this Court at least a

difficult task in persuading it that

nonetheless it ought to set aside such

findings or that exercise of discretion.

C2T20/l/FK	58	1/6/89
Asioty(2)

This Court must necessarily give weight

to such concurrent findings though, of

course, in a proper case able to depart

from them.

That was agreed in by the other four Justices who

sat in that case. The matter was mentioned by

Sir Harry Gibbs in MUSCHINSKI V DODDS in slightly

narrower terms. I have simply given Your Honours

pages from that and - at the bottom of page 590,

after referring to BAFFSKY V BREWIS, five lines

from the bottom - perhaps eight lines from the

bottom:

Although there can be no doubt that where

there have been concurrent findings of

fact an appellant will have a difficult

task ..... this Court has not adopted the

rule of practice of the Judicial Committee,

which will not review the evidence for a

third time when there are concurrent findings -

He discussed the origin of developments of the rule in the Raja's case from India, and:

For a similar reason, the rule was later

extended to appeals from all parts of the

Empire.

And that reason did not exist here.

But that does not detract from the proposition

which His Honour accepts, that an appellant has a

difficult task, and, we submit, that is an

important consideration in looking at this evidence.

(Continued on page 60)

C2T20/2/FK -	59	1/6/89
Asioty(2)

MR BENNETT (continuing):  I should also take Your Honours

very briefly to the way the causation and the

incapacity was found by Mr Justice Kelly and

by the magistrate. The ultimate finding of fact

which was made at both levels was a very simple

one. It was that the man had an underlying

proneness to flare ups on his hands. That can

be described as a dermatitis - I will come in
a moment to the question of whether it was a

disease. That was aggravated by the work at

the slaughterhouse in the manner which I described

in opening, in two respects: it became more

liable to occur and harder to get rid of when

it did occur, although the actual symptoms, when

it did occur, were the same.

The effect of that was that it became undesirable

for him to engage in a range of work where there was

a lesser degree of contact with liquid, whether
it was sweat or other minor contact with liquid,
than there had been before. Before, certainly,

as my friend said, he ought not to have worked

at a slaughterhouse and that remained the same,

although perhaps there was more reason for not

working at a slaughterhouse but, in relation

to other matters, now that the condition was

one that was more likely to recur, more likely

to be induced by minor events, his incapacity

thereby increased and that was the finding.

Now, that finding was deduced by·the magistrate

and by Mr Justice Kelly from a range of evidence,

from a large number of statements by Dr Heeler

which had to be put together and I will take

Your Honours to those in a moment, plus there

was evidence from his wife, from his daughter

and from a workmate about prior condition and

about the extent to which events occurred and

how his life was affected and so on, plus the

evidence from Mr Kinnane as to prospects of employment

context of a series of cases in this Territory which	in the Australian Capital Territory and this is in the
have taken the view that where you have a labourer
who becomes incapable of ~the.only '!:We of labouring
he is really able to do, one does not answer
that in a total incapacity case by saying, "Well, you could learn to obtain clerical work". There
may be some sort of work, one can imagine he
can do ,of a totally different nature and so on.

TOOHEY J: 

Mr Bennett, is there any clear statement by

any medical witness that, by reason of the flare
up that occurred while working as a slaughterman,
the prospects of further flare ups was enhanced?

MR BENNETT:  Yes, Your Honour. Yes, that is in a few

places. If Your Honour goes to Dr Heeler's evidence,

C2T21/l/SH	60	1/6/89
Asioty(2)

MASON CJ:  Page 26, a little more than half-way down the

page.

MR BENNETT:  Yes, page 26 is the clearest one, Your Honour.

I was trying to find a previous one but, perhaps, if - it is really the whole of page 26, the whole

of the re-examination. At point 3:

I think you said in answer to a question

by learned friend that he had an underlying

condition of his hands and that the dermatitis

at work aggravated it?---Aggravated it,

yes.

In what way did it aggravate --Something

was handling ..... causing .. flare

more than it was or to a gr ':: extent

_nat it was before.

Did it make the underlying condition worse

or just create a temporary exacerbation
of it?---By creating an exacerbation.

That seems to be a question -

Did it aggravate it on a long term basis?---

No.

Create any long term aggravation of it?---

In general principles any sort of dermatitis which is aggravated by any mat~~rs at all that

will tend to become more chron1_ -

that is number one -

and difficult to get rid of.

Two.

(Continued on page 62)

C2T9/2/SH	1/6/89
Asioty(2f
MR BENNETT (continuing):

Does that mean it is more liable to a

flare up?---Yes, that is correct.

that is the direct answer to Your Honour Justice Toohey' s

question -

Well, is it the case that the aggravation

at work made that underlying condition

worse?---Yes.

In what way did it make the underlying

condition worse?---I am not quite clear

what you mean.

There was a temporary - there was a flare up, what you have described as a flare up at work and that caused a flare up of an

underlying condition?---It made the
underlying condition more recalcitrant -

that is number two -

If you have an underlying constitutional

dermatitis, the more you make it flare up,

by whatever means, the more recalcitrant

it becomes and difficult to treat. It

tends to resist treatments which could have

got it under control.

One might well say, "I'm prepared to take the risk

of having a temporary flare up in the course of work

which will go down with creams and with minor

treatment and a few days off. I'm not prepared to

undertake work which has the risk of a flare up which

is harder to get rid of and which is more likely to

recur".

MASON CJ:  Mr Bennett, it should be noted too that those

questions and answers seem to relate to hands

because they are prefaced by the question a third

of the way down:

I think you said in answer to a question by my learned friend that he had an

underlying condition of his hands.

Now the following discussion seems to relate to that and then at the top of the next page the answer again

relates to hands.

MR BENNETT:  Yes, it does, Your Honour, and in relation to

other employments he says on page 27 point 4:

Does the condition make it more likely

that there will be flare ups if he went

back to his former work?---Yes.

C2T22/l/HS	62	1/6/89
Asioty(2)

Would it increase the severity of the

flare up ..... ?---No, I would not say so.

The severity would probably be similar

each time -

that is the point the Full Court dealt with -

And is that the case for other environments other than the slaughter house environment

that he had not previously reacted to?---Yes -

in other words, there were now other environments

where he would have a problem, and that no doubt

relates to the statement that it is more likely to

occur than it was before -

Would he react now to environments that he

had previously not reacted to?---I cannot say

definitely. It is probable that if he had

not gone to work as a slaughterman but had taken on some other job involving handling chemicles ..... he would have reacted similarly

..... but I cannot be absolutely certain.

The description of work as a slaughterman - I will

not subject Your Honours to it - but there is some

fairly dramatic evidence describing the Islamic

method of killing which he had to use and which

involved him being sprayed with blood and urine and

other substances over his hands and his body when

he did it and, of course, there is the evidence

about the salt and the use of salt in· relation to

it. One can well understand as a matter of

inference and common sense from this evidence that

if those matters caused major flare-ups which
otherwise would not have occurred the effect of that,
as the doctor says, would be to have the effect on

the other matters.

There was a reference in my learned friend's

submissions to whether the predisposition to
aggravation is, in itself, an aggravation.	It is

not the predisposition to aggravation which is an

aggravation. It is the increase in the predisposition

to aggravation which is an aggravation and that

distinction needs to be borne in mind. There is

one answer my learned friend relied on on page 23 point 8

the short question and answer:

Did he still have the dermatitis?

---On the ~ands, no.

My friend reads that as meaning that the underlying

condition is not a dermatitis.

C2T22/2/HS	63	1/6/89
Asioty(2)

MR BENNETT (continuing): That, we would submit, is making

that answer do a lot more work than it can do.

DAWSON J: Dermatitis is not really a term of art, is it?

MR BENNETT:  No, Your Honour, it is not.

DAWSON J: It really just means "skin conditions".

MR BENNETT:  Yes, and all this answer means is - it is

the word "on" that one has to place the emphasis

on. What the doctor is saying is, "He didn't

have some visibile condition on his hands."

He is not saying there was no underlying conditions.

He has made very clear elsewhere that there is

an underlying condition.

My friend's submission that the underlying

condition is not a disease is one which we would

submit flies in the face not of medical evidence

but of logic.

MASON CJ:  We need not trouble you on this aspect of the

case, Mr Bennett.

MR BENNETT:	If Your Honour pleases. Your Honours, the only other aspects then on the second matter
my friend raises, if I could remind Your Honours
very briefly of what was said by the magistrate
in his judgment. It is pages 67 to 69 - I will
not read the whole passage to Your Honours and
I would ask Your Honours to look at it in due
course. It starts really at 67 point 4, but
the key passage is at 69 point 5 where he says:

So on the questions, the formal questions

have to be answered. I am satisfied that

he is a workman to which the ordinance applies

and he suffered a disease in the course

of his employment that can be regarded as

contact dermatitis, which is also an

aggravation of underlying dermatitis condition

basically related to his hands and it is

that particular clause -

that word "clause" should be "cause", of course -

that results in a degree of medical

incapacity.

So there is a specific finding that it is the

aggravation. which has resulted in the incapacity.
And he then goes on to talk about the labour

market and Mr Kinnane's evidence and the difficulty

in employment and so on.	And, at the bottom
of page 70, point 8:

C2T23 I 1 /Nff	64	1/6/89
Asioty(2)

his lack of English, his lack of ability

perform on a reasonable.basis without any

to read and write would be handicaps .....

problem .....

So, in brief, I am satisfied then that he

did suffer an aggravation of his pre-existing

condition. The aggravation and its effect

on the evidence before me continues up to

date and appears unlikely that he will ever

be able to overcome that limitation.	I
am satisfied, for the reasons I have

indicated, that there is a causal relationship

of that disease to his employment and it

did arise out of the course of his employment.

I am satisfied that he remains partially

incapacitated ..... I am satisfied that he

is not totally incapacitated although I

must say that I do not have material before

me to give precise figures.

McHUGH J:	But is not the defect in that passage the problem, at page 70, the second-last paragraph,
when His Worship says:

that he could perform on a reasonable basis

without any problem with the condition that

is caused his employment, that condition

being the recurrence of the dermatitis to

his hands.

The "recurrence of thedermatitis to his hands"

is not caused by his employment, is it?

MR BENNETT:  It is a shorthand expression. He sets it

out more fully elsewhere but in view of the

sophistification of the concept he elides it

where he is summarizing. But, of course, that

paragraph was, in a sense, what was set aside

by Mr Justice Kelly because Mr Justice Kelly

found, and we support his decision that, really,

on the evidence, one would be satisfied that

there was nothing left that he could do.

That is what Mr Kinnane said and there would

be fairly obvious reasons why he had difficulty

getting the job as a waiter, without any English

and in the manner I have described.

His previous positions as a waiter, I should

say, were with the Egyptian Ministry of Foreign

Affairs in Cairo, then with the Egyptian Embassy

here and then with the Jordanian Embassy here. in the Hyatt Hotel.

C 2 T 2 3 / 2 / ND- 65 1/6/89

As i o t y ( 2)

MR BENNETT (continuing):  And it is Mr Justice Kelly's

judgment, we would submit, is clear in

relation to that and - - -

McHUGH J:	But you have got to show a lot more than .that
he cannot get any work now.  You have got to
show, have you not, that this aggravation has
brought about incapacity for work.
MR BENNETT:	Yes. Well, Your Honour, the inference which was drawn by both the magistrate and
Mr Justice Kelly was that the effect of the
aggravation was to limit the other possibilities
which would have previously been available to
him. Whereas there were positions which he
might have been prepared to take beforehand,
because the risk of the flare up was less,
and the flare ups were easier to treat, now
with the very serious exposure and the result of that, those positions would result in a
greater likelihood of a flare up and the flare up would be harder to treat.

And that deterrent effect was what

provided the incapacity. The incapacity, in

other words, came from the deterrent effect.

It may well be that a man is physically

capable of doing a job, but if that job is

necessarily or is more likely than before

to produce some serious disability, then, one

would not in ordinary parlance say he· is fit

for that work, and it was the acceleration

which made the difference.

He had previously been a waiter - he had

managed as a waiter beforehand, in those

other positions, but now he was not able to

do so. He had managed as a waiter beforehand,

first of all - - -

McHUGH J: Well all this had fallen into place if there

had been no evidence of dermatitis before

the Abattoirs, but unfortunately for your
case, there was this history of dermatitis

before he started at the Abattoirs.

MR BENNETT:  Yes Your Honour, but dermatitis which was

less likely to recur - less likely to be

caused to flare up, is the word I should use -
and dermatitis which,when it did flare up,

could be treated more easily.

McHUGH J: It may well be - at the moment the evidence

may support this proposition - that he would

not have been able to work in a variety of
occupations, even before he went to work at

·the Abattoirs, because of his underlying condition.

C2T24/l/CM	66	1/6/89
Asioty(2)

MR BENNETT:  We would submit not. We would submit the

way the evidence was put together by

Mr Justice Kelly and by the magistrate, and

correctly so, we would submit, as a matter of

inferrence from the whole of the evidence, was

this. That, there were~ one might call low

water-contact occupations and high water-contact

occupations, sunnnerizing it in slightly

different language to make the point clearer -

this is not the language they used. the

Abattoir was a high liquid-contact occupation,one where

they therefore were likely to have more of a result.

Prior to going to the Abattoirs he could

take low liquid-contact occupations with

slight risk of flare ups which would be easy

to treat if they occurred. After the Abattoir

he was still in the same position, vis~a-vis

working in an Abattoir, he should not do

it; but he now, in relation to low water-contact
occupations, had a higher risk of contracting

the flare ups, and such flare ups would be

more difficult to treat. There was therefore

a greater deterre.nt reason why he could not

engage in low water-contact occupations.

Now that sunnnerizing is the finding which

was made by the magistrate and by

Mr Justice Kelly. They differed on the precise

extent of the otherwise available occupations

and Mr Justice Kelly, we would submit, is

closer to what Mr Kinnane said and therefore

more in line with authorities such as RUIZ

and BAKER which he refers to.

(Continued on page 68)

C2T24/2/CM	67	1/6/89
Asioty(2)

McHUGH J: What is put against you is that he was not fit

for the low risk occupations anyway.

MR BENNETT:  There is no evidence of that, Your Honour.

The evidence is that he engaged in them before

and there is no evidence suggesting that being
a waiter at the embassies had caused any flare up.

I should say there was no evidence whether that

involved washing up or not but, certainly, he

had engaged in those occupations before.

McHUGH J:	Yes, but there was no evidence that he had any underlying condition at that stage; but there
is evidence that he had an underlying condition
for several months before he started at the Abbatoirs.

MR BENNETT:  Your Honour, I think the chronology is a

bit more precise than that. I have to get all the

evidence into order to answer that because there is

a considerable body of evidence as to when it

started. For example, his daughter, Sophia Ruzik,

at page 54, said there was nothing wrong with

his hands before started at the Abbatoirs in

1980, observed things after two and a half months.

The evidence of Mr Asioty himself - - -

McHUGH J:  But that is quite wrong, it it not, having regard to the history that was taken from - - -

MR BENNETT:  Yes. I have not collected together all the

evidence on that, Your Honour. It is one of the

difficulties when one is met with a new argument

at this stage and one has not prepared the analysis

of the whole of the evidence to meet with it.

But my understanding of it was that the history

given - at page 19:

He gave a history of an eruption affecting

his hands and his legs of about 12 months

duration ..... no personal or family history

of previous skin troubles ..... his skin complaint

had probably been going on for longer than
the 10 months.

That seems to fit in with the 12 months he is referring to - I am not sure where the two years

comes from - he says, at page 20:

This condition had been present, originally

it was estimated at 10 months, but subsequently

considerably longer.

I do not know where that comes from. Yes, page 25:

On a subsequent occasion I gather it had been

going on for two years or longer.

C2T25/l/SH	68	1/6/89
Asioty(2)

Now, if one looks at the chronology, on

page 29, he worked at the Minister of Foreign Affairs
in Cairo in 1959; came to Australia in June 1969;
continued in that job until March 1976; then

left the Egyptian Embassy and worked at the Jordanian

Embassy as a waiter also, that was about nine

months; then unemployed for a while; then Canberra

Abattoir and that was October 1980. So, it is

not clear whether or not there was an overlap

between acting as a waiter and any dermatological

condition but, certainly, the evidence does not

establish that it was impossible for him to have

these other jobs before the aggravation and it

is a question of judgment.

One has to say if you put one man on the labour market who has a slight proneness to the

condition and it will be easily treated, he can

take such jobs; another man, this man after the

incident, has a greater proneness to it; it is

easier for it to develop and it is harder to

treat when it develops; he has a higher deterrent.

(Continued on page 70)

C2T25/2/SH	69	1/6/89
Asioty(2)

MR BENNETT (continuing): In looking at that evidence, the

magistrate, looking at the whole of the material,

came to the conclusion that that gave rise to a

relevant incapacity. In my respectful submission,

that should not now be upset. The question of

how far the incapacity is, you simply say that

Mr Kinnane's evidence is more consistent with
Mr Justice Kelly's finding than with the magistrate's

findings. Insufficient reason has been shown where

that should upset.

We submit, simply, that my friend's submission

that there was no change in the type of work he is
able to do is just not made out and there are

concurrent findings against him on that and the

inference is open on the evidence. Your Honours, there

are two cases - I will not take Your Honours to them,

I will only give Your Honours the reference, which

are referred to in the judgments which show the case is RUIZ V CANBERRA REX HOTEL PTY LTD - the
approach taken to total incapacity in the Australian

decision of Mr Justice Woodward in (1974) 5 ALR 577.

And there is an unreported decision which is in

BAKER V CANBERRA ABATTOIR which is a decision of

the Full Federal Court, unreported and delivered on

20 May 1982. It is matter No G35 of 1981.

I can arrange for a copy to be supplied to the

registrar.

MASON CJ:  I think we have copies, Mr Bennett.

MR BENNETT:  Those are the leading authorities on that area and

we would submit	that they are fully consistent with
the result that	was reached. For those reasons
we would submit	that the appeal should be allowed.

MASON CJ: Thank you. The Court will consider its decision in

this matter.

MR GYLES:	Your Honour, my learned friend in reply mentioned a
couple of cases. Could I just put something about
those very briefly?

MASON CJ: Yes.

MR GYLES:  Number one were concurrent findings of fact. May I

remind Your Honours that his problem lies in the

fact that there are no concurrent findings of fact

on the critical issue; that is, what was the effect

upon his employability?

MASON CJ: This is not a reply on the cases, is it?

MR GYLES:  I would submit it is, Your Honour, is it not?

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MASON CJ: It is a reply to an argument, but it is not a reply

on the cases.

MR GYLES:  I accept what Your Honour says.

Secondly, the cases my learned friend has just referred

tc,RUIZ and BAKER, in my respectful submission, if they

depart from the approach of this Court in ARNOTTS and

that line of authority are wrong, I secondly submit

that they throw no light upon the approach of the

witness in the case here who said that there was -
that his inability to speak English and his general
appearance detracted from his capacity to get work.
The question is not the capacity of the individual
to get work, it is the effect of the injury upon his

capacity to obtain employment generally. If

Your Honours please.

MASON CJ:  Yes. The Court will consider its decision in this

matter-,

AT 11.55 AM THE MATTER WAS ADJOURNED SINE DIE

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