Asioty v Canberra Abattoir Pty Ltd

[1988] HCATrans 319

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IN THE HIGH COURT OF AUSTRALIA

Registry No CS of 1988

B e t w e e n -

FADEL ASIOTY

Applicant

and

CANBERRA ABATTOIR PTY LIMITED

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J TOOHEY J

Asioty

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1988, AT 11.50 AM:

Copyright in the High Court of Australia

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MR B,T, SULLY	QC:	May it please the Court; I appear with

my 1earned friend, MR P.G. MAHONY, for the

applicant. (instructed by Messrs Pamela Coward &

Associates)

MR J.A. McINTYRE:  If it please the Court, I appear for

the respondent. (instructed by Messrs MacPhillamy

Cunnnins & Gibson)

MASON CJ:	Mr Sully.
MR SULLY:	We have prepared a short outline of the submission

in the hope that it might assist.	May we hand it
up?

MASON CJ:  Yes, certainly. Now, Mr Sully, can we extract

from you some more clarification of this notion

of recalcitrancy?

MR SULLY:	Yes, Your Honour.
MASON CJ:	What does that expression mean according to

your submission?

MR SULLY:  What it comprehends is this, Your Honour. The

evidence that is relevant for present purposes was

this. First, the applicant was suffering from

an underlying constitutional condition; secondly,

exposure to certain conditions of employment had

caused that condition, previously asymptomatic and

not incapacitating, to flare up so that it became

both symptomatic and incapacitating; three - - -

MASON CJ:	Whilst exposed to those conditions?
MR SULLY:	Whilst exposed. Three, the applicant having then

ceased that employment the condition subsided again,

flaring up again when he returned to the employment;

four, the abatement of the overt symptoms and the

incapacity going with them, according to the accepted

medical evidence, meant that the underlying condition	did not revert simply to what it had been before
exposure to the employment conditions had made it
symptomatic and incapacitating, but reverted to a
condition in which although on the surface of things quiescent it was more likely to recur because it had
once been activated.

MASON CJ:	In other words there was a greater proneness to flaring up than there had been before-exposure to the problem in the course of the employment?
MR SULLY:	Yes.
MASON CJ:	Now, have you got findings of fact that support

you on that?

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Asioty

MR SULLY:	Well, we submit yes, Your Honour.
MASON CJ:	Can we see them?
MR SULLY:	By all means, Your Honour, and may we take you

first - may I ask, are the pages of Your Honours'

books paginated? The index does not have paginations

in it.

MASON CJ:  Yes. The index is not paginated but the pages

are.

MR SULLY:  Thank you, Your Honour. May we take you to page 29.

WILSON J:	29?
MR SULLY:	29, Your Honour. That is page 13, I hope, in

Your Honours' books, of the judgment of

Mr Justice Kelly. His Honour is dealing with his

surmnaries of the findings, at the foot of the page,

if Your Honours please.

In summary the findings which the learned arbitrator made on the medical issue are as follows:-

1.        The appellant is unable to work in -

(a) jobs that involve -

(i) contact with blood

(ii) persistent contact with water

(iii) wearing of leather or rubber gloves

(iv) his coming into contact with acids or

chemical substances which might cause skin

irritation;

(b) "wet type jobs"; and

(c) jobs involving heavy manual work which
might cause perspiration.

2.        The appellant is unable so to work because

he has suffered a contact dermatitis by an

aggravation of an underlying dermatitis

condition.

3.        The aggravation and its effect continued

to the date of the learned arbitrator's
finding and it appeared unlikely that the

appellant would ever be able to overcome the

limitation caused by it.

So far as the appellant's medical incapacity

is concerned, the question to be asked -

and may we pause to tell Your Honours that that

question as now formulated was accepted by consent

in the Full Court as the question to be addressed -

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

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constitutes an aggravation, acceleration

or recurrence of the pre-existing disease

which causes the incapacity from which the

appellant suffers. Two aspects of the

medical evidence accepted by the learned

arbitrator ..... are important. The first

is that under any circumstances the appellant
is unable to engage in a range of occupations.

The second is that ..... 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.

His Honour then goes on to say, at the foot of page 30 and over on page 31, that he apprehends the correct

statements of principle to be those that appear in

SEMLITCH's case in the supreme court. May we,

for the moment, not detain Your Honours to read

the fine detail of that but rather proceed to the

way in which His Honour applies those principles

to the factsas His Honour saw them.

Applying that statement -

His Honour says -

to the findings of fact made by the learned
arbitrator, findings which ought not, in

my opinion, to be disturbed because they

were supported by the evidence accepted by

the learned arbitrator, I am satisfied that

there was an aggravation of the pre-existing disease and that that aggravation continued. It is nothing to the point that the immediate
disabling manifestations of the disease eventually
disappeared on each occasion that the appellant
ceased work for the respondent.

His Honour then sets out on page 32, as Your Honours

see, a series of interrelated propositions which

draw together, as it were, what His Honour saw as

the process of reasoning appropriate to the application

of the relevant law to the facts as they had been

found. His Honours says:

If -

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

pre-existing diesease;

(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

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(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

plus the pre-existing disease which has led

to the incapacity.

I therefore accept that the aggravation

was due to the nature of the employment as

those words are properly to be understood.

MASON CJ:  Well, now, that seems to be a finding that the

employment and the exposure to the risks involved

in the employment make the flare-ups more stubborn

and more difficult to get rid of than they were

before?

MR SULLY:  Yes, they do three things really. First of

all the exposure causes a flare-up to begin with.

Secondly, as Your Honour, says - - -

MASON CJ:  But that is temporary and he is no longer in

the employment?

MR SULLY:  Quite. Secondly, in so far as further exposure

causes further flare-ups, as Your Honour says,

they become, to that extent, more difficult to

control, but superimposed upon all of that is

what happens to what on the evidence was previously

an asymptomatic incapacitating underlying condition,

that is to say, it becomes much more prone than

it previously had been to flare into life.

MASON CJ:  Yes, I had not quite picked that up from what His Honour said in the passages that you were

referring to.

MR SULLY:  His Honour draws that from the - as we understand

it - frcm the findings to -which he refers at

the foot of page 30, that is to say, that as

Dr Heeler put it, he was a specialist dermatologist

of whom - Your Hon.ours can be assured that for the

moment - his version was accepted both by the

arbitrator, and as already indicated in the passages

read by Mr Justice Kelly:

any sort of dermatitis which was aggravated
by any matters at all tended to become

more chronic and difficult to get rid of -

because -one might perhaps more happily have put

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Asioty

it - the underlying condition itself has therefore

become more recalcitrant.

MASON CJ:	Yes.
MR SULLY:	Now, where, in our respectful submission, the Full Court fell into error, may be seen if one
proceeds, bearing in mind those passages which we
have cited from Mr Justice Kelly's judgment, to
pages 53 and following of the application book
where the relevant parts of the judgment of the
Full Court - and it was, if Your Honours please,
a unitary judgment of the three members of the
court - appears. May we tell Your Honours that by the time the Full Court reached this point in
its exposition it had looked at SEMLITCH's cas.e
both in the supreme court and on appeal to this legislation with which SEMLITCH's case was
concerned comprehended four apparently different concepts of recurrence and exacerbation and
aggravation and acceleration, I think were the four.

-

Their Honours had taken note of the fact that

in this Court in particular on appeal the view was

expressed that one could not simply regard all

those words as synonymous, that there must be

attributed to them shades of different meaning.

Having said all of that Their Honours then go on

to sa.y at the top of page 53:

A disease of the chronic type, not subject

to any perceptible progress if some external

simulus is applied, may produce additional

symptoms or an intensifying of existing
symptoms which are incapacitating,

although perhaps only temporarily. This incapacity may be said to arise from the

"deterioration" or "aggravation" of the

disease.

By contrast may we tell Your Honours, parenthetically,

with the notion of acceleration with which

Their Honours had dealt on the previous page.

They then go on:

The evidence before the Court of Petty Sessions

established that Mr Asioty was suffering from

a disease of the chronic type which was not

caused by his work as a slaughterman. It was

a constitutional condition ..... That condition

was not subject to any perceptible progress if
some external stimulus was applied.

Nevertheless the evidence established that the congenital condition was aggravated by

Mr Asioty's work as a slaughterman, in that

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Asioty

the work produced additional symptoms or

an intensifying of existing symptoms which

were temporarily incapacitating. Thus

the worsening or intensifying of existing
symptoms may properly be described as an

aggravation.

With respect, we, at least, would not quarrel with

any of that to that point. But Their Honours then,

as it were, go off on a tangent which does lead

them to an erroneous conclusion. They go on to

say:

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.

They go on to say, as Your Honours will see at the

top of page 54:

A return of the symptoms of the disease if

Mr Asioty resumed certain types of work

could amount to a further aggravation or

recurrence of the pre-existing disease,

but the likelihood of a return of the

sumptoms could not be described as an

aggravation or recurrence within the meaning

of the definition of "disease". The fact

that it may be inadvisable for Mr Asioty to

return to his work as a slaughterman is due

to the nature of the congenital disease

itself and not to the aggravation which

incapacitated him until -

the relevant date -

and which was the basis of compensation payments

to that date.

Now, in our respectful submission, that does not

come to grips with the very particular situation

which the facts in this case, as accepted by all

the antecedent courts, clearly established and that

was that the employment:- related impact upon this
man manifested itself in two quite discrete and

very important ways, the one of which was to provoke

overt symptoms which might be attenuated or, indeed,

alleviated finally in whole by ceasing the relevant

employment but as well had an impact on the underlying

condition itself, the nature of that impact being

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Asioty

to make it worse in practical terms as relevant

to the man, than it had previously been. In other

words, it was not a simple case of an underlying

condition followed by the provocation of symptoms,

followed by the removal of that provocation and

the resolution of those overt symptoms and a return

simply to the underlying pre-existing condition.

WILSON J:  Was it found in the court below, in the p-rimary court,

that the disease was not a progressive one?

MR SULLY:  I think it was, Your Honour. I think Your Honour

can take it that the findings that we have put

from Mr Justice - - -

WILSON J:  Yes. So we have got a non-progressive disease and

what the Full Court said, you cannot have a lasting

aggravation beyond exposure to the conditions which

provoke the symptoms unless you have a symptomatic

development of symptoms that inure? ?

MR SULLY: That seems to be the reasoning, Your Honour.

WILSON J:	Yes.
MR SULLY:	Now, in our respectful submission, and in the end,

we cannot put the point any more succinctly than

this. If it was reasonable to draw from that

medical evidence to which we have taken the Court,

the conclusions which were drawn by the primary

court and by ,His Honour Mr Justice Kelly and, we

submit, that the one does reasonably follow from

the other, then the evidence itself, not having been

questioned in the Full Court - as for our part

we cannot see that it was, or criticized or departed

from in any way - then the different conclusion is
wrong because it does not correctly take hold of

what is meant by an aggravation in legislation of

this kind when applied to a very particular situation

of the type here in question.

MASON CJ:  Well, what is the origin of this line of thinking

that seems to draw a distinction between progressive

and non-progressive diseases in terms of aggravation?

MR SULLY:  The origin of it seems to be the juxtaposition in

legislation like the old section 6 of the New South

Wales Act - you will find it set out, if Your Honours please, on page 50 of the book - of a number of

separate concepts such as - and you will see it at

page 50 point 5:

aggravation, acceleration, exacerbation or

deterioration -

and authority, as I think I put it earlier - - -

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MASON CJ:  No mention of recurrence, for example, which you

often find?

MR SULLY:  No. But there is, I think, reference to that

in the Commonwealth legislation.

MASON CJ:  I think recurrence is mentioned in the Commonwealth

legislation.

MR SULLY:  Yes, Your Honour, and it is referred to in the

Workmens Compensation Ordinance of the Australian

Capital Territory, which is the particular Ordinance

here in question. But the reasoning seems to have

been that based very largely upon the judgments,

especially in this Court in SEMI.ITCH, that one starts

with a juxtaposition of those four descriptions.

One proceeds to the view that they cannot fairly

be regarded as simply different ways of saying the
same thing in the context in which they appear,

therefore one has to proceed to define as best one

can the differences of nuance that characterize the

one as distinct from the others and that that is

to be found, in part at least, by attributing to

acceleration the kind of contextual meaning set

out at the foot of page 52 of the application book
and to the concept of deterioration or aggravation,

the kind of nuance which is set out in the passage

which we have already cited from the top of page 53. process of reasoning which over time has drawn

that sort of approach out.

MASON CJ:  Mr Sully, I can see how you put it. On the

other hand, of course, one sees that there is a real
difficulty in terms of what might be described as
continuing incapacity. Continuing incapacity, you

say, resides in the potentiality for future

exposure to the relevant risks?

MR SULLY:  Which potentiality has itself been made worse

than it was by the supervening events.

MASON CJ:	Yes.
MR SULLY:	Now, two things need to be asked perhaps. The

first is whether as a matter of law the concept

of aggravation, in the relevant context, is wide

enough to catch that sort of situation of fact

at all. The second question is, if yes to the

first, were the facts there in the particular case

which justified such a finding and its treatment

according to the notion of aggravation so

interpreted. Our submission is that the second

of those questions could certainly be answered yes
for the reasons to which we have sought to take
the Court and that the first at least is a fairly

arguable point. It is very important because the

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applicant cannot be thought to be the only person
unfortunate enough to suffer from this kind of
underlying condition and therefore to be interested

in an exposition of the law as to aggravation which

might well comprehend his particular and peculiar

case.

MASON CJ:  Yes. Well, this question would relate to any

non-progressive diseases?

MR SULLY:	Yes, it would, Your Honour, it would.
MASON CJ:	Yes.
MR SULLY:	May it please the Court.
MASON CJ:	Yes, Mr McIntyre.
MR McINTYRE:	May it please Court, my principal. submission

is that on the medical evidence as disclosed in

the application book, the current incapacity of

the worker is solely due to the underlying

constitutional condition which predated his

exposure to work with the respondent. My learned

friend refers to the findings by Mr Justice Kelly

and the initial tribunal in relation to the ·

effect long term which has been said to have been

made upon the underlying condition by the exposure

to substances at the abattoirs. If I could take

Your Honours to the judgment of Mr Justice Kelly

at page 23 of the application book, His Honour

deals there in some detail with ,the evidence from

the treating specialist of the worker. At about

point 5 on the page His Honour quotes the

transcript in relation to the evidence given by

Dr Heeler. The question was asked:

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.

Now, His Honour then went on to say this:

He then agreed that the appellant had an underlying "proneness to dermatitis" which was

going to flare up if he went back to wet

occupations or occupations where he had

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contact with chemicals or perhaps even

occupations where he perspired severely.

Asked whether his work for the respondent

made the underlying condition worse or just created a temporary exacerbation,

he replied that it created exacerbation but

dit not aggravate it on a long term basis

except -

and this, in my submission, is the important part -

that on general principles 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.

MASON CJ: Well, that obviously provided the basis for the

findings of fact made by Mr Justice Kelly to which

Mr Sully has referred us.

MR McINTYRE:  Yes. Your Honour, in my submission, that does

not establish what is being put forward as being

a tendancy whereby the condition can be more easily

or more often provoked. It seems to relate simply

with a potential greater difficulty in treating

the condition if it were to recur. In my submission,
that on the evidence and the findings of the tribunal

and the supreme court is the only extent to which

it could be said in this case that the work

exposure had had any adverse effect on the nature

of the underlying congenital chronic condition.

It is my submission - - -

WILSON J:  Except that the doctor says the fact of aggravation

during the employment tended to make the underlying

disease more chronic and difficult to deal with,

or difficult to get rid of.

MR McINTYRE:  Yes, Your Honour.

WILSON J:  And presumably more easily aroused if exposed

to any of the wrong circumstances.

MR McINTYRE:  Well, Your Honour, that, in my submission,

does not appear anywhere in the findings of the

tribunal at first instance or in the supreme court.

The evidence has not been quoted verbatim in relation

to Dr Heeler's answer in Mr Justice Kelly's judgment,

but he deals with it in quite a deal of detail and

his summary, or his findings, in relation to the

future consequences of a return to that work only

advert to the possible difficulty, or added

difficulty, in treating the condition if it were

to recur. There is never any suggestion in any
of the findings at first instance or in the Supreme Court

in the ACT that what in fact had occurred was not

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only a possible greater difficulty in treatment
but a greater likelihood of recurrence when exposed
to the particular substances or environments which

apparently caused it to recur.

WILSON J:  On what basis did Mr Justice Kelly find total

incapacity, that is, after he had left the work?

MR McINTYRE:  Well, Your Honour, that, as I understand it,

is based upon a finding that in the ACT if you

have those kinds of restrictions in practical terms

there is no work available as a matter of fact. incapacity in a medical sense.

WILSON J:	It was a question of availability?
MR McINTYRE:	Yes, Your Honour, that is as I understand his

decision there.

MASON CJ:  But if an underlying condition becomes more

recalcitrant, more deep seated, more difficult to

eliminate, why is that not aggravation?

MR McINTYRE: Well, if that is the case, Your Honour, in

my submission it is not an aggravation in the
sense of the condition at the time that the

aggravation has ceased and the condition is again

quiescent because what one is looking at then is

a possible - and in this case it could only be

possible - future recurrence of a condition which
has not yet recurred and in that sense, in my
submission, there can be no aggravation at the

time that· the symptoms of the eruptions on the

skin have subsided because on the evidence it has

returned to the state whereby it is the same

congenital chronic non-incapacitation condition.

MASON CJ: There are two different questions, are there not?

The question whether there has been aggravation

of a disease and, secondly, a question whether that

aggravation of a disease results in incapacity?

MR McINTYRE:	Yes, Your Honour, yes.
MASON CJ:	Now, if in fact an underlying condition becomes

more recalcitrant, has not that underlying condition

been aggravated?

MR McINTYRE:  If that has occurred, yes, Your Honour.

MASON CJ: Well, is that not what Mr Justice Kelly has found?

MR McINTYRE: Well, he has found, in my submission, what the

doctor said and that was that an aggravation in the
course of work tended to make the condition more

recalcitrant. It was not a positive finding that

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Asioty

this man's work has, in fact, caused that and it

could not go any more than to reflect what the

treating specialist, Dr Heeler, said in his evidence.

But, Your Honour, I cannot argue with the proposition

that if, in fact, work exposure makes a condition

more difficult to treat that that in a sense involves

a change in the medical condition and could come

within the concept of aggravation.

MASON CJ:  Yes.

It just may be that the Full Court has taken too narrow a view of aggravation.

MR McINTYRE:  Well, Your Honour, in my submission, looking

at the evidence as set out by Mr Justice Kelly,

they did not fall into error and particularly

if one looks at the concomitant question of

whether any incapacity was present after the date

when compensation payments ceased.

MASON CJ:  Could I ask you one other question, Mr McIntyre,

that is, what rights of appeal are there under

the legislation from the decision of the abitrator

and then through to the Full Court?

MR McINTYRE:  There is a right of appeal to the supreme

court which is by way of rehearing and involves

an ability to reconsider questions of fact and

findings of fact and the appeal - - -

MASON CJ:  I see. So there is no relevant limitation

on Mr Justice Kelly's ability to find facts?

MR McINTYRE:	No, Your Honour, as I understand the legislation.
MASON CJ:	Now, what about on the appeal from Mr Justice Kelly to the Full Court?
MR McINTYRE:	I believe that also was an appeal which could

have involved a review of factual findings. It

was an appeal by way of rehearing on the evidence
as it appeared before the Full Court.	In my

submission, Your Honour, even if the evidence

supports a finding that there was, to some extent,

a possible aggravation by virtue of a difficulty

in treating at a latter time, that that could not

be found to have produced any incapacity after

the time when the relevant compensation payments

ceased and the issue was joined between the parties

because, in my submission, at that time the worker's

ability to obtain employment and to retain it is

in no way different from the ability which he had

to perform work prior to the work with the
respondent. The restrictions in fact which this
condition places upon him are quite substantial.

They not only include a restriction from - performing work in abattoirs but a restriction

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which prevents him from working in wet occupations

or indeed where he is required to perspire
severely. In my submission that restriction was
always with him prior to the work with the

respondent. The restriction remained with him

after the aggravation ceased and that restriction

has in no way, in my submission, been changed by

his employment and the incapacity for work is

when the range of duties is exactly the same that

identical after the aggravation has ceased with

the incapacity for work which predated the employment.

he is permitted to perform after the aggravation

has ceased and, indeed, the symptoms have subsided.

TOOHEY J:	You mean he cannot show any incapacity at all?
MR McINTYRE:	Well, he cannot show any added incapacity,

Your Honour, because the restrictions which he has

had placed upon him by virtue of this condition are restrictions which, on the medical evidence
and the findings in both courts, were restrictions

which at all times were restrictions which were

applicable to him. In other words, his inability

to work in wet occupations, or occupations where

he is required to perspire heavily, were restrictions

which were clearly relevant and applicable to him

prior to commencing work with this employer.

(Continued on page 15)

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TOOHEY J: But the arbitrator treated him as partially

incapacitated, did he not?

MR McINTYRE:  Yes, Your Honour.

TOOHEY J: And regarded that partial incapacity as continuing?

MR McINTRYE:	Yes, Your Honour.
TOOHEY J:	On what basis, Mr McIntyre?

MR McINTYRE:  I could not easily find that, Your Honour. I

assume it was on the basis that His Honour

Mr Justice Kelly found, that in fact there was an

added difficulty in future treatment as a possibility

and that mi~ht have been relevant to what the magistrate

determined 1n his initi~l ,hearin2. but I could

not. from looking at his reasons for iudgment.

discern anv particular findin2 which related to

the finding of partial incapacitv to anv ongoing

consequence from th~ effects of the employment.

MASON CJ: Now, you seem to be saying now not that there was no aggravation from a pre-existing disease

but rather that, even if there was an aggravation

of a pre-existing disease, it did not result in

compensable incapacity.

MR McINTYRE:  Yes, Your Honour, that is the submissions I

make - - -

MASON CJ:  In other words, there were no economic consequences

at all of the aggravation of the disease.

MR McINTYRE: It is more than that, with respect, Your Honour.

In my submission, there are no physically

incapacitating consequences from the aggravation

which had to be said to have changed after the

employment compared to before the employment.

MASON CJ: That does not seem to be right if the underlying

condition has been made more recalcitrant.

MR McINTYRE:  Yes, Your Honour, but that recalcitrant - or

that tendency for the condition to be more

recalcitrant does not have any effect, in my submission,

upon the physical restrictions under which he labours

after the employment and before the employment

because it relates to a future possible event and

does not have any relevance, in my submission,

to the range of work which he is able or unable

to perform.

MASON CJ: Exactly. That is what I was putting to you.

It is not producing a relevant incapacity, that

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is it is not restricting the range of employment

that he can undertake.

MR McINTYRE:	Yes, Your Honour.
MASON CJ:	So it is not a compensable incapacity.
MR McINTYRE:	Yes, Your Honour, but the submission is on

two bases, firstly. that there is no added medical restriction on his work capacity and as a consequence,

no economic incapacity. But it is really a mixture

of physical and economic incapacities and the economic

incapacity is solely a result of the medical condition

and that medical condition, in practical terms,
in terms of what the man can or cannot do, has
not changed by virtue of the exposure in the workplace
to whatever chemicals it was that caused the sysmptoms

to first arise. And in my submission in that - - -

MASON CJ:  Can I just ask you this: where do we find in

the judgment of the Full Court this aspect of the

matter dealt with? Is it that passage on page 54

that Mr Sully drew our attention to?

MR McINTYRE: It is principally, I think, page 53 and yes,

they are both the passages that my learned friend

referred to, Your Honour. They simply find, at

the bottom of page 53, that the likelihood of return

of symptoms o~ more importantly, if I could say

the fact that condition may be harder to control

at some time in the future does not amount to an

aggravation of the pre-existing condition. An

aggravation involves the onset of additional sysmptoms.

Now, Your Honour, they do not make a definition - - -

MASON CJ:  I have some difficulty in detecting, on page 54,

that the Full Court were treating what they said

on page 54 as going to any issue other than the

issue they were dealing with on page 53, ie, was

there an aggravation of a pre-existing disease?

MR McINTYRE:	That would be correct, Your Honour.
MASON CJ:	So they did not turn to this second aspect of

the case at all.

MR McINTYRE:  Not in specific terms, Your Honour. All I

could say is that it must be implicit in what

Their Honours deal with there that what they are looking at is not only the fact of the alleged

aggravation is a greater tendency to be more

recalcitrant but also the fact that there has been

no change since the aggravation ceased in the man's

actual capacity to perform work. I cannot point

to any area in the judgment where that is dealt
with in specific terms but, in my submission, it

has to be a concomitant of that.

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WILSON J:  Perhaps it might be that they did not nee9 to

go beyond a finding that there was no ongoing

aggravation. It all gets back to this word	11 recalcitrant". If you look at the words at the
top of page 24, that is the docto~•~ evidence that
there was a tendency for the cond1t1on:

to become more chronic and difficult to get

rid of, the underlying condition becoming

more recalcitrant.

On one view, is that saying any more than that

when he is back in the workplace, exposed to those .

conditions that provoke the symptoms of the underlying

disease it is harder to get rid of those symptoms

and the:efore the period of incapacity associated

with the aggravation that occurs on his exposure

to the workplace extends for a longer period.

It is more recalcitrant.

MR McINTYRE: That, with respect, is all His Honour could

be finding by adopting those doctors' views because

that, with respect, I would think is the essence

of it.

WILSON J: It does not necessarily mean that there is an

ongoing latent aggravation after the worker's

incapacity directly associated with his employment

has ceased.

MR McINTYRE:  Not in terms of an aggravation causing incapacity.

The only sense that there could be an aggravation

is that at some time in the future there may be,

as a matter of possibility or general principles,

a greater difficulty to treat the condition if

it were to recur.

WILSON J:  And if he goes back to or gets exposed to any

circumstances, it will be more - his incapacity

flowing from it is likely to be lengthened.

MR McINTYRE:  That is all, in my submission, that the finding

could be, that the opinion could be.

WILSON J:  It is one appr~ach. It may·be what the Full Court had

in mind.

MR McINTYRE:  All I can really say in summary is that if

the tendency to be - for the condition to be more
recalcitrant in the future is regarded as an

aggravation of the general disease, in my submission,

that cannot, on the facts of this case, be shown
to have caused any incapacity after the relevant

period and that even if Their Honours were incorrect in not themselves forming the view that the tendency

to recalcitrance was an aggravation, the second

step would be a fatal step which the worker could

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not successfully achieve because it could not be

shown that even if there was an aggravation in

the sense of the legislation, that any incapacity

flowed from it.

MASON CJ:  I think we follow that. Yes, Mr Sully.

MR SULLY:	There is no additional material to which we can
take the Court except, and subject to answering
any particular questions that might assist Your Honours, to repeat that if the view of what
is meant by aggravation taken by the Full Court
is untenably narrow and, in our respectful
submission, that is at least a seriously arguable
proposition, then the importance of the situation
that results, if that is a wrong view, is such
that the matter ought to be considered and if
appropriate, corrected by this Court. If the Court
pleases.
MASON CJ:	The Court will· announce its decision in this matter at 2 o'clock or 2.15.

AT 12.29 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.05 PM:

MASON CJ:	The Court will grant special leave to appeal 1n
this matter.

AT 2.06 PM THE MATTER WAS ADJOURNED SINE DIE

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