Asioty v Canberra Abattoir Pty Limited

[1989] HCATrans 122

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 WEDNESDAY, 31 MAY 1989, AT 3.34 PM

Copyright in the High Court of Australia

Cl T 57 /1/SH 1 31/5/89

MR D.M.J. BENNETT, ~C:  May it please the Court, I appear with

my learne friend, MR G.J. LUNNEY, for the appellant.

(instructed by Messrs Pamela Coward & Associates)

MR R.V. GYLES, QC: If the Court pleases, I appear with my

learned friend, MR D. G .. T. NOCK, for the respondent.

(instructed by Messrs Macphillamy Cummins & Gibson)

MASON CJ: Yes, Mr Bennett.

MR BENNETT:	I hand up an outline of submissions, Your Honour.
MASON CJ:	Thank you.
MR BENNETT:	Your Honours, it is a very short point.

Paragraph 3 of the submission sets out the statutory

provision which defines "disease" as any physical or mental ailment, disorder, defect or morbid condition and the aggravation of a pre-existing disease.

The question set out in paragraph 2 is whether

there is an aggravation which is really the relevant

word,: where (a) there is a chronic disease which manifests

itself from time to time when certain conditions occur;

and the effect of employment is either to render it

harder to control when it occurs or more likely to

recur in the future.	Both those were present in the
instant case.

(Continued on page 3)

ClT57/2/SH	2	31/5/89
Asioty(2)

MR BENNETT (continuing):  The appellant succeeded before

the Magistrate; he succeeded before

Mr Justice Kelly in the Supreme Court; he

failed in the Full Court. The ratio of the Full Court is contained in three sentences.

If Your Honours go to page 141, Your Honours

will see eight lines from the bottom, against
the words "as an aggravation in the margin",

Their Honours say this:

It does not follow, in our view, that once

those worsened or intensified symptoms had
abated the likelihood of a return of the

symptoms,or the fact that the condition

may be harder to control at some time in

the future, amount to an aggravation of

the pre-existing condition. An aggravation

involves the onset of additional symptoms or the intensifying of existing symptoms.

Really, that sentence, we submit, is very shortly what is the error. The next sentence repeats it,

on page 142:

A return of the symptoms of the disease

if Mr Asioty resumed certain types of work

could amount to a further aggravation or

recurrence df the pre-existing disease, but
the likelihood of a return of the symptoms
could not be described as an aggravation or

recurrence -

Your Honours, there is no helpful authority

on this question. It has never occurred to anyone

to put that proposition before. We simply say

two of the characteristics of a chronic recurrent

disease are the likelihood of its recurrence

and the difficulty of controlling its symptoms

and if one makes those worse, one has aggravated

the disease. Your Honour, those are my submissions.

MASON CJ: Well, it really is the shortest argument I

have heard in support of an appeal, Mr Bennett,

apart from withdrawing the appeal.

MR BENNETT:  There is really nothing more one can say,

Your Honour. It is as simply as that. When

one talks about aggravating something, one must

be talking about something more than its symptoms.

One is talking about all of its relevant

characteristics and they must include the

likelihood of its recurrence and the difficulty

of controlling it.

BRENNAN J: Which is the relevant section which confers the

right to compensation?

MR BENNETT: Section 9, I think, Your Honour.

CIT58/l/JM	31/5/89
Asioty(2)
McHUGH J:	How do you bring in the notion of incapacity,
Mr Bennett, in the case of a condition which
has not manifested itself?
MR BENNETT:	Your Honour, that really does not arise

in this case because we succeeded on that before

the m~gistrate and the supreme court and there
has been no notice of contention. It was not

dealt with by the Full Court. But the way it

arises is this, Your Honour,that if the effect

of the condition of Mr Asioty's hands - if
the effect of the aggravation is that his

condition is more likely to occur and more

difficult to cure when it does occur and

that aggravation has the effect of making it

undesirable for him to undertake_work of

certain kinds because of the inrrnediate risk

of that recurrence, the increased risk of recurrence,

then one has a relevant incapacity. That is, in

effect, what was found. He was doing the relevant

work before. After the work ~aused the

aggravation, in the sense 1 have referred to in the

submissions, the evidence was he could not do

the work without far more serious risk of that
recurrence, or other work of a type he had been
doing before which involved the risk of increased

exposure to liquids and matters of that sort.

(Continued on page 5)

CIT58/2/JM	4	31/5/89
Asioty(2)

MR BENNETT (continuing): It arose that way but, Your Honour,

as I say, it does not arise on this appeal because

there is no notice of contention.

McHUGH J:  Can you point to me what the findings of fact on the

evidence are that support the propositions in 2(b)(i)

and 2 (b) (ii) .

MR BENNETT:  Yes, Your Honour. In the judgment of

Mr Justice Kelly at - it is in a number of places -

first of all, page 114, at about point 7, against the word "incapacity" in the left-hand margin; it

is page 114 point 7 where His Honour says:

Two aspects of the medical evidence accepted by the learned arbitrator, that of Dr Heller,

are important. The first is that under any

circumstances the appellant is unable to engage

in a range of occupations. The second is that,

as Dr Heller put it, any sort of dermatitis

which was aggravated by any matters at all

tended to become more chronic and difficult

to get rid of, the underlying condition

becoming more recalcitrant.

Then, on page 116, His Honour sets out the five

conditions which constitute part of His Honour's ratio.

He says:

If -

(a) a workman has a chronic, non-incapacitating

pre-existing disease;

(b) the nature of his employment causes for

the first time a temporary incapacitating

aggravation of the disease;

(c) the aggravation ceases when the workman

stops work;

(d) the aggravation is renewed when he again

starts work in the same employment; and -

this is the important one:

(e) the pre-existing disease rendered more
recalcitrant by the episodes of aggravation now

prevents the workman from working in a large

range of occupations because such work will

cause a similar aggravation~

it seems to me that the nature of the employment

has aggravated the pre-existing disease to the

point where it is incapacitating. It is a

combination of the nature of the employment

ClT59/l/SH	5	31/5/89
Asioty(2)

plus the pre-existing disease which has led

to the incapacity.

I therefore accept that the ageravation

was due to the nature of the employment as

those words are properly to be understood.

It follows that, on the evidence accepted

by the learned arbitrator, the appellant is at

least partially incapacitated. Whether he is

totally incapacitated depends upon whether the

residual capacity left in him is saleable in any

market reasonably available to him.

Now, that is an issue on which the magistrate

found partial incapacity. Mr Justice Kelly found

total incapacity and it was not interfered with by

the Full Court and, again, there is no notice of

contention. So, leaving aside the concurrent findings,

difficulties my friend would have to overcome, they

do not seem to be subject to challenge in this Court.

BRENNAN J:  Mr Bennett, am I reading section 9(l)(a) incorrectly

if I were to regard the problem in this case as being

whether the particular aggravation is causally related

to the incapacity?

MR BENNETT:  That is not as we understand the issue in this case,

Your Honour.

BRENNAN J:	Why is it not?
MR BENNETT:	What we understand the issue to be, the remaining

issue to be, is simply the meaning of the word
"aggravation" where the aggravation which has occurred
is not any alteration of the symptoms but an increase
in the frequency of a recurrent condition recurring
and an increase in the difficulty of getting rid of

those symptoms when they occur.

BRENNAN J: Well, however you may understand it, if one has

regard to the terms of the statute, is there any

question arising but the one which I have just put to

you under 9(l)(a)?

MR BENNETT:  I am sorry, I may have misunderstood Your Honour's

question.

(Continued on page 7)

ClT59/2/SH	6	31/5/89
Asioty(2)

BRENNAN J:  One has to identify what is the aggravation, in

order to come within the definition of disease. case looking for that aggravation which thereby

incapacitates for work.

MR BENNETT:  I am sorry. Your Honour, that was an issue and

it was resolved favourably to us and it is no

longer in issue, as we understand it.

BRENNAN J:  I do not find that very clearly from what you

have shown us so far.

MR BENNETT: Well, Your Honour, as I understand it, the

magistrate, or the arbitrator, as I think he is called, found all the elements made out, but to

partial incapacity. Mr Justice Kelly then found

all the elements made out, but increased it to

total incapacity. The Full Court then said they

were wrong because there was no aggravation of a

pre-existing disease. The reason there was no

aggravation is that what occurred, which has

been found to cause the relevant incapacity, was

merely the two things I have referred to in the

submissions, and that was not, as a matter of

law, capable of being an aggravation.

McHUGH J:	Is it right to say that the court found that what
caused the incapacity was something which, in turn,
the court held not to be an aggravation? I only
ask that in the sense of wondering whether the
court focused on the question of incapacity at all, because it seems to have directed its attention to
whether there was a disease, and having rejected
the disease because the condition was not an aggravation in the view of the Full Court, but did
it go any further than that?

MR BENNETT:  The Full Court did not, Your Honour. There are

no relevant findings by the Full Court on the

other questions.

McHUGH J: Well, I wonder then, if you made good your case,

might the matter not have to go back?

MR BENNETT: Well, Your Honour, if we succeed on issues

determined in our favour in the two lower courts,

as we do, and if there is no overthrowing of those

findings by the Full Court because it does not

decide those issues, then the only basis on which

it would go back is, if there were a subsisting

challenge to those findings before this Court.

There having been no notice of contention and, we

assume, no challenge to them, the issue simply does

not arise in this Court.

McHUGH J:	But it is a bit hard to see how a notice of contention
could have been filed, is it not, because the matter
was not one to which the Full Court directed it attention.

C1T60/l/FK	7	31/5/89
Asioty(2)

MR BENNETT:	Your Honour, we would submit that in Order 70 when Order 70 rule 6(5) deals with that, it
is dealing with all judgments below, all
operative judgments below.  What it says is this:

It is not necessary to give notice of cross-appeal if a respondent contends

that some matter of fact or law has been

erroneously decided -

it does not say by whom -

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 -

So, where one challenges either a part of the

Full Court's reasoning which would have supported

the decision, but was not necessary to it, or where

one challenges something decided by a lower court, which was left by a Full Court, that rule requires

that to be done, and, in that event, this Court would consider that question itself

although, of course, there would be the
difficulty of the concurrent findings approach
which, while on the authorities it does not seem
to be an absolute rule, as we understand the
authorities, makes it very hard to upset findings

of fact which have been made in two courts.

(Continued on page 9)

ClT60/2/FK 8 31/5/89

Asioty(2)
McHUGH J: Is this the way the Full Court reasoned, that they

said, "During a period,as a result of the nature of

his employment,he had symptoms."

MR BENNETT:  Yes.

McHUGH J: Secondly, uTL1e underlying disease now became harder

to control", thirdly, "It was more likely to recur

but by the date in August the symptoms were spent,

therefore there was no aggravation".

MR BENNETT:  No, Your Honour. If they had said that that would

have been erroneous for a different reason. That

would have been erroneous because if the effect of

the underlying disease is to prevent one working for

fear of getting it, then that is sufficient to give

rise to an incapacity. If one has, take an extreme
case, a disease which has the consequence that if one
leaves a swimming pool in which one has to be suspended

all the time and touches any object there is

excruciating pain. Now, one might say, as long as the

person is in the swimming pool he is not suffering

any symptoms or any disease. Disease only occurs

when he comes out and does something.

But one simply would not reason that way. If

the condition incapacitates you by making it undesirable

to do something, that is sufficient. But, in fact, what
the Full Court said was something quite different.

What they said was,	"When you look at the word
'aggravation' you are only looking at aggravation of	II
symptoms.

McHUGH J: Well that is what I was putting to you, that they did

not deal with the other two matters.

MR BENNETT:  No, they did not Your Honour. No, they did not get

to it.

TOOHEY J: Well, on the way in which the Full Court approached it,

it might well have been the result that the Court said,

"Well there is no aggravation, but there was a

recurrence." What the Court is really saying is that

the symptoms which previously existed and which abated

once the appellant ceased work would recur but would

not be intensified by a resumption of work and,

therefore, there was no aggravation. I am not sure

why it would not have been a recurrence.

MR BENNETT:  It would have been then, Your Honour, yes. I

suppose it is an anticipatory recurrence rather than

an actual recurrence in one sense.

TOOHEY J: Well it is an anticipatory aggravation because until

the man returns to work there is no - that is not

right?

C1T61/l/DR	9	31/5/89
Asioty(2)
MR BENNETT:	No,	we submit it is not. We

would submit it is not an anti~ipatory- that is

che difference Your Honour. We would submit it is

not an anticipatory aggravation in the sense we use

it because one has a disease of which there are no

visible symptoms at the moment but which one has.

The disease is incapacitating in the sense that it operates as a deterrent to almost all available types, or all available types of work which this man is

capable of doing. Now he has that disease.

DAWSON J:  I do not want to interrupt you but that is clear,

is it, that it is within the definition of "disease"?

In other words, I might have a tendency to eczema,

I do not have it at the moment but if I get hot or

get into certain conditions it may occur. But you would

not say that that underlying condition was"disease".

I see they have given a name to the underlying

condition here and called it something.	But is it a
disease?

MR BENNETT:  Yes, Your Honour. The definition includes any

physical ailment, disorder, defect or morbid condition.

TOOHEY J:  So a constitutional tendency is a defect, I suppose.

MR BENNETT:  At the very least a defect, Your Honour. It may

fit within others of those phrases but certainly

defect.

McHUGH J:  Mr Justice Kelly spoke of the basic dermatitis as

being the pre-existing disease.

MR BENNETT:  Yes. We would submit that is correct. The

fallacy lies in identifying the condition	with the
symptoms and in failing to recognize that	the condition
has other characteristics.

DAWSON J: It is something called Amyloidosis Cutis.

MR BENNETT:  Yes. In answer to what Your Honour

Mr Justice Toohey was putting to me, we would submit

that the aggravative condition is that condition,

with the super added characteristic that one is

more likely to have a recurrence of the symptoms.

Plus the fact that if they occur they will be harder

to cure.

(Continued on page 11)

ClT61/2/DR	10	31/5/89
Asioty(2)

TOOHEY J:  But is· it not the position - or is it the

position that on a resumption of work
pre-existing symptoms are likely to recur or is

it the position that they are likely to be

exacerbated?

MR BENNETT:  The symptoms will be the same except that

they are more likely to occur and when they occur

they are more difficult to get rid of but the

same symptoms will occur as occurred before.

TOOHEY J:  Why is that not a recurrence, why is it an

aggravation?

MR BENNETT: It is a recurrence when it occurs, Your Honour,

but the incapacity arises not from the individual

recurrence; t'he individual recurrence only gives,

I suppose, a short term incapacity but the

aggravation of the underlying condition is what

has caused the overall incapacity by making it

more difficult to control and making it more

likely to recur. And it is that underlying

aggravation which gave rise in this case to the

real incapacity.

TOOHEY J:  Yes, thank you.

MR BENNETT: If Your Honours please, those are our submissions.

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

MR GYLES:  Your Honours, I do not think I can quite match

the brevity of my learned friend.

MASON CJ: No, I thought it was - - -

MR GYLES:	Too good to last?
MASON CJ:
MR GYLES:	May I hand up to Your Honours our outlines of

argument.

MASON CJ: Thank you.

MR GYLES:  The critical paragraphs are 4 and 5, Your Honours.

And may I commence submissions by going to the only evidence which really bears upon the issues

before the Court and that is the evidence of

the doctor which the magistrate accepted.

MASON CJ:  What are you doing that for, Mr Gyles? Can

you let us know in advance.

MR GYLES:  I am doing it for two reasons: first of all,

so Your Honours can follow what is said by, A,

1 1 31/5/89

Asioty(2)

the magistrate, B, Mr Justice Kelly, and, C,

the Full Bench of the Federal Court. It is our

respectful submission that there is a great

degree of cross purposes in all of this and that

there is, indeed, no underlying disease.

MASON CJ:	No underlying disease?
MR GYLES:	No underlying disease.
McHUGH J:	But you need a notice of contention for that,

do you not?

MR GYLES:  I heard what my learned friend, Mr Bennett,

said about that.	I would like to think of that
overnight, if I could.	I must say that, as he

says, we have not filed one.

TOOHEY J:  But that was in relation to the concept of

incapacity.

MR GYLES:  Your Honour, we say two basic things: first

of all, no underlying disease at all - - -

TOOHEY J:	Why do you use the expression "underlying disease"?
MR GYLES:	That is a phrase that is used to have an aggravation

engrafted upon, if I may put it that way. The

notion appears to be - Mr Justice Kelly, at least,

makes it fairly clear that he saw the position

as what he called a "basic dermatitis'which was

present at all times and then there was the

superadded contact dermatitis which was sparked

off by what happened at work and then diminished,

leaving, he thought, the underlying basic

dermatitis worse at the end than it was at the

beginning.

(Continued on page 13)

C1T62/2/ND	12	31/5/89
Asioty(2)

MR GYLES (continuing):  Now we submit that is just a total

misunderstanding of the evidence -

McHUGH J:	The Full Court hearing proceeded on the basis
that there was an underlying disease. If you look
at page 135 in the last paragraph:

It was mutually agreed on the hearing of

the appeal ..... that the Supreme Court had correctly
identified the issue to be whether the pre-e.usting

disease (the basis dermatitis) was so aggravated -

et cetera.

MR GYLES:	Well, Your Honours, if that requires a notice of
contention and some leave, then I would be seeking
it.

·McHUGH J: Well it needs more than that, does it not? You

seem to be attacking the basis upon which you

conceded in the Eull eourt.

MR GYLES:  Well,that is why it may be necessary to get

the leave of the Court to do so. It is not a

SUTTOR V GUNDOWDA or	COULTON V HOLCOMBE
point because that was the second appeal.	But

Your Honours, the second point, if I may go to it,

is that in any event, there is simply no evidence

and no finding that there is any incapacity for
work, occasioned by whatever it was, underlying,

basic or superadded, and it is necessary in order to make that good to show how the matter was dealt with by the other witness that was accepted and

by the magistrate below.

It is a fairly fundamental proposition that

the section 9 and section 7 combined, only

compensate where there is incapacity for work.

Now, put very simply,Your Honours, before he went to work as a slaughterman the position was that

if he entered certain occupations, including

slaughterman, he was at risk of contracting

dermatitis. That position remains precisely the

same afterwards.

In other words, as far as capacity for work

is concerned, there is not a jot of difference

between the position before and after.

McHUGH J:	Mr Gyles, this is the one thing I am not quite
clear of from Mr Bennett's submissions. Is
there any evidence_ in this case orwas there
any specific finding, that the effect of the
employment with the respondent was to render the underlying disease, (a) harder to control and
(b) more likely to recurr.

CIT63/l/CM	13	31/5/89
Asioty(2)

MR GYLES:  Your Honour, there is evidence of a type,

which I will take Your Honours to, dealing with

that topic, yes.

MASON CJ: Well there is clear evidence at pages 26 and 27,

is there not?

MR GYLES:  Well Your Honour says "clear evidence" - - -

MASON CJ: Well, it looks clear to me on the face of it. Admittedly

there are a couple of answers at the top of page 26 that
seem to go your way, but then re-examination

seemed_ to bring - - -

MR GYLES: Well, re-examination was bedevilled, in my

submission, by a great degree of cross purposes

between the re-examiner, one would pardon for

thinking he was a cross-examiner,	looking at
the questions,	on the one hand and the

witness on the other, because what the witness is

saying at those answers that Your Honour is talking

about is that once they emerge, the symptoms are

more difficult to treat. Now let that be so.	That
says nothing about the capacity for work of the appellant.

MASON CJ: But that is not the point that Mr Justice McHugh

put to you.

MR GYLES:  No,it is not,Your Honour, I agree, with respect,

but. the matter that was put to me was the
evidentiary foundation for the findings-that the
underlying condition, if I could put it that way,
or that the symptoms are more likely to recur or

that they may be more recalcitrant when they recur.

McHUGH J:	But why is that not an aggravation just in the
language? If the employment has done something to
the disease which makes it harder to control when
it occurs in the future, or makes it more likely
to recur in the future, why is that not an aggravation of the disease?

MR GYLES: Well, Your Honour understands that our two points are:

ooe, no underlying disease, if I am permitted to

put that. Two, even if there is an underlying

disease and even if that is an appropriate finding

fact about it, there is no evidence in this case that

that affects his capacity to work.

CIT63/2/CM	14	31/5/89
Asioty(2)

MR GYLES (continuing): Before he ever became a

slaughterman, he was in the position where he

was at risk of contracting dermatitis if he

worked as a slaughterman or in a range of other

activities which the doctors refer to. After
the clearing up of the symptoms he is in

precisely the same position in terms of the

work he may undertake.

McHUGH J:	But that cannot be so, can it, on the hypothesis you are operating on because now if he works
as a slaughterman, dermatitis is more likely
to recur than it was before he connnenced working
as a slaughterman and secondly, the dermatitis
is likely to be harder to control when it occurs?

MR GYLES: True, Your Honour, but from the point of view

of incapacity, his position at all times has

been that he is not fit to, work as a s laughterman, never has been. That was revealed once he went

to work as a slaughterman. He has never been

fit for that occupation, nor a series of other

occupations in which his hands will - - -

McHUGH J:	He may be unfitter now than he was before.
MR GYLES:	Your Honour, with respect, he never gets there
and that is the fallacy, with respect, which
underlies the case.  I mean, if by going to
work as a slaughterman you will, almost inevitably,
or probably, or perhaps even possibly, contract dermatitis which is disabling, you are unfit
for work as a slaughterman.

BRENNAN J: That is rather like saying that a one-handed

person is not very good as a pianist, and if

they have the misfortune to lose both, it makes

no difference.

MR GYLES:	Your Honour, indeed one of the issues in
workers compensation law has been just that
question. The person with one eye - it may
be said the person with one eye can go back
to work on the lathe, or whatever the situation
is, just as well as a two-eyed person and that
is correct. But the courts have said, "No,
there is a disability because that person, only
having oneeye, the risk that  injury will remove
all sight is a compensable incapacity."

(Continued on page 16)

CIT64/ 1/JM	15	31/5/89
Asioty(2)

MR GYLES (continuing)-:  And thus it is that you must,

with respect, find a difference between before

and after not in the severity of symptoms or

even in the increased likelihood of contracting

the condition but you must ask yourself, "What

is it after the episode which he cannot do which

he could do before?".

McHUGH J:  But it might be said against you that whereas

it would take two days for the symptoms to appear

before he started working with the respondent,

now as a result of this condition it will recur

in a day?

MR GYLES:  But, Your Honour, he should not be there.

He should not be there at all;	he is not fit
for that occupation.

DAWSON J: But it is a condition which occurs when he

perspires severely or when he comes into - where

there-it is a wet occupation he is engaged in -

not just slaughterman's - - -

MR GYLES:  Indeed, Your Honour, but precisely the same

position existed prior to - - -

DAWSON J:	No, it flares up more easily.
MR GYLES:	With respect, Your Honour, I understand what

Your Honour is putting to me but, if you ask

the question, "What can he not do now that he

was able to do before by way of work?", the answer

is "Nothing. He could not do it before,he cannot do it now." In other words, there was

no increase in the range of incapacity for work

assuming - - -

TOOHEY J:  Are you accepting then, Mr Gyles, that the

man is suffering from a disease?

MR GYLES:

No, Your Honour. I am answering these questions

on that premise that he is and this is our second

answer.

TOOHEY J: Well, he is, is he not, by any view of the

matter. He has a disease. I mean, it may be

that he is not thereby incapacitated, it may

be that the disease is not due to the nature

of his employment?

MR GYLES:  No, Your Honour, it is not accepted on our

side that there is an underlying disease of the

hands at all.

C1T65/l/SDL	16	31/5/89
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TOOHEY J: Well, I am not sure what is meant by ''underlying

disease". Do you mean a disease that is symptomless

at a particular time?

MR GYLES:  No, Your Honour. I do not mean that because

one may have a symptomless disease, as

Your Honour puts to me,but here the matter is summed up very well by the doctor at the top of page 26.

(Continued on page 18)

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MASON CJ: Twenty-six?

MR GYLES:  Twenty-six. And this is the magistrate putting it

to him:

So what you are saying, doctor, just to

make sure I understand that, you say that

he t,as got this what you call a constitutional

congenital type condition in relation to the

legs?---Yes.

And they stop there, Your Honours. There is no

suggestion - in fact, the doctors are agreed that the

legs are different from the hands.

MASON CJ:  We are concerned with the hands.

MR GYLES: Indeed, and then:

He has also got an underlying proneness to

dermatitis?---Yes.

Which is going to flare up if he goes back to wet occupations or occupations where he has

contact with chemicals or perhaps even

occupations where he perspires severely?---

That is correct, yes.

Now, Your Honours -

TOOHEY J: Well, just before you leave that, is that saying

any more than that the person has, in terms of

section 6, some physical ailment, disorder, defect

or morbid condition which is going, in the event of

his contact with water, for instance, by working in

a wet occupation, to produce some sort of symptoms?

MR GYLES:  No, Your Honour, with respect. The doctor is not

saying that; he is saying he does not have dermatitis,

he has an underlying proneness to dermatitis.·

A very similar sort of distinction that is drawn in

the case of the pilot who developed a phobia or a fear

of flying arising out of a personality which was

disposed to that problem,held not to be - the proneness

to that phobia held not a disease.

McHUGH J: But the proneness must be the result of some

pathological condition, must not it?

MR GYLES: Well, Your Honour, there is no evidence of that, none

at all. I mean, it is just not - - -

BRENNAN J:  If he gets involved in working with

wet hands, his hands flare up.·

MR GYLES:  Yes.

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BRENNAN J: And there is nothing wrong with him? No disease?

MR GYLES:  No, Your Honour. Every time his hand flares up,

of course he has a disease.

BRENNAN J: But, you mean

MR GYLES:	And it is then compensable, assuming - - -
BRENNAN J:	- - - a person who is in such a condition that

if he works in a wet environment, his hands flare

up has not got a disease.

MR GYLES:	He has a disease when they flare up.
BRENNAN J:	But has not otherwise?

MR GYLES:  No. He has a proneness to it, a predisposition to

it, if you like.

(Continued on page 20)

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TOOHEY J:  I have a lot of difficulty with that. I can

understand the argument that there is a disease

but it is not due to the nature of the employment because you might say, "Well, if Mr Asioty simply put his hands in the bath" - - -

MR GYLES:	Did the washing up.
TOOHEY J:	- - - "for a couple of hours he is going to

end up with exactly the same symptoms as if he
worked as a slaughterman for a day or so". That

takes you to the area of the disease being due or not due to the nature of the employment but

to say that there is no disease until the hands

go in the water seems - - -

MR GYLES:  Your Honour, after all, with respect, the

evidence which the magistrate below accepted

was the evidence of Dr Heeler. There was no

report and his evidence starts at page 19 and

goes through to page 27. So, in eight pages

we have the whole of the relevant evidence.

And whilst Your Honour's conjectures about this may be right they may also be wrong and, more

importantly, they would not be based upon the evidence. And it is my respectful submission

that there is no support in this evidence for
the view from the expert that there is anything

which can be described as a disease until the

symptoms appear.

BRENNAN J:  I can only say that at page 25, point 4, where he says that if:

the work involved in wet hands and that

sort of thing, then it would flare up again?

I understand what you say that that is not a

disease but at the moment I am far from being

convinced that your submission is right.

MR GYLES: Yes, Your Honour,it would be fair to say that the

witness did not always express himself in precisely

the same language.

BRENNAN J:	He expressed himself in that language anyhow.
MR GYLES:	Your Honour, yes, but it will be read as a

whole and, in my respectful submission, the

answers that he gave at the top of 26 sum up

his view about it. An~ in addition to the answers

I have read at the top of page 26, there were

the answers in the middle of page 26, again in

this rather extended and leading re-examination:

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Did it make the underlying condition worse

or just create a temporary exacerbation

of it?---By creating an exacerbation.

Did it aggravate it on a long term basis?

---No.

(Continued on page 22)

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McHUGH J:	But the point is that both on pages 25 and 26
the witness is talking about an underlying condition which is aggravated by the work.
MR GYLES:	But he describes the condition as "an
underlying proneness to dermatitis".
McHUGH J:	He did not describe it that way; it was - - -
MR GYLES:	He assented to that description and I submit
it is a good one, Your Honour.

MASON CJ: Now, Mr Gyles - - -

MR GYLES:  At page 23, I am sorry, Your Honour.

MASON CJ: Yes, you can go on.

MR GYLES:	At page 23, the third last answer - this is
after recovery, as it were:

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

hands, no.

The question would have to be asked - I withdraw

that. The Court would have to draw a conclusion

as to the existence of a "disease" from material

which, in my submission, would not support that

conclusion. As with the pilot in the phobia

case, which I will take the Court to tomorrow,
it was not correct to describe the predisposition
of his personality as a disease, even though it

is, in my respectful submission, no different in principle to the situation here. You have

no disease; the doctor does not suggest it

is a disease. It amounts at the most to a

proneness to, or a predisposition to a disease.

MASON CJ:	Can I direct your attention to page 135,
the last paragraph on b.hat page?
MR GYLES: Yes, Your Honour.
MASON CJ:	Does that not demonstrate that it has been a
common assumption throughout this litieation,
that there was a pre-existing disease?
MR GYLES:	I would submit not, Your Honour, although what
appears there is a problem that I must meet.

MASON CJ: It is aninsuperable hurdle, is it not, unless

what is said there is incorrect in terms of

a mutual agreement?

MR GYLES:	Your Honour, it would not be aninsuperable hurdle
because after all, as I have already put, that
was the second appeal. There is no barrier to
a different position being taken provided the Court

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is persuaded that is an appropriate position

to take.

McHUGH J:	Mr Gyles, it not only seems to be an answer to the question about the underlying disease
but it is also an answer to paragraph 5 of
your submissions as well as to the question of
incapacity, is it it?

(Continued on paged 24)

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MR GYLES:  Wel1 that does not immediately follow, Your Honour.

McHUGH J: Well,if the only issue is whether there is aggravation

which seems to be the argument before the Full Court

that seems to preclude you without the Court's

leave - - -

MR GYLES:	I am sorry. Your Honour is saying that that excludes
the other argument. It does not answer it.

McHUGH J: Yes, both arguments.

MR GYLES:	Well, I must confess I had not thought that through,
Your Honour.
MASON CJ:	But it is correct, is it not? That the mutual
agreement, before the Full Court, excluded both these
issues.

MR GYLES: Well, Your Honours, I see it is a quarter past four

and I would like to raise that with my junior,

Your Honour, as to what the - I mean, certainly,

if that was the only issue argued, then it implicitly

exludes other issues.

MASON CJ: Well you had better direct your attention to what was

in issue earlier on the case as well. But on the face

of it that seems to present a real obstacle to the

two submissions you want to make to the Court.

MR GYLES: If Your Honour pleases.

MASON CJ:  The Court will now adjourn until 10.15 tomorrow.
I think we will vary the adjournment until 10 o'clock
tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 1 JUNE 1989

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