Canberra Abattoir Pty Limited v Asioty
[1988] FCA 831
•26 April 1988
Re: CANBERRA ABATTOIR PTY LIMITED
And: FADEL ASIOTY
No. ACT G18 of 1987
FED No. 831
Workers' Compensation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Sheppard(1) and Neaves(1) JJ.
CATCHWORDS
Workers' Compensation - disease - aggravation - disease a pre-existing constitutional condition not due to nature of employment - Nature of employment causing aggravation of disease and temporary incapacity - Range of occupations denied to employee because of likelihood of return of symptoms - Whether likelihood that symptoms may return and that condition may be harder to control in the future amounts to an aggravation of the disease - Onset of additional symptoms or intensifying of existing symptoms necessary to constitute aggravation.
Workmen's Compensation Ordinance 1951 (A.C.T.), ss.7, 9
HEARING
CANBERRA
#DATE 26:4:1988
Counsel for the applicant : Mr D.G.T. Nock
Solicitor for the applicant : Macphillamy Cummins and Gibson
Counsel for the respondent : Mr G.T. Lunney
Solicitor for the respondent : Pamela Coward and Associates
ORDER
The appeal be allowed.
The orders made by the Supreme Court of the Australian Capital Territory on 20 February 1987 be set aside and, in lieu thereof, it be ordered that, in matter numbered SC 1312 of 1984, the appeal be dismissed with costs and, in matter numbered SC 1325 of 1984, the appeal be allowed with costs, the award made by the Court of Petty Sessions on 13 December 1984 be set aside and, in lieu thereof, an award in the following terms be made:
1. That the applicant, Canberra Abattoir
Pty Ltd, cease payments of compensation to the respondent, Fadel Asioty, as and from 18 August 1983.
2. That in proceedings No. WC 6 of 1983 the
respondent, Fadel Asioty, pay the costs of and incidental to the application by the applicant, Canberra Abattoir Pty Ltd.
3. That in proceedings No. WC 55 of 1983
the applicant, Fadel Asioty, pay the costs of the respondent, Canberra Abattoir Pty Ltd.
The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Canberra Abattoir Pty Limited ("the company") has appealed to this Court from a judgment of the Supreme Court of the Australian Capital Territory given on 20 February 1987 in proceedings in that Court between the company and Fadel Asioty under the Workmen's Compensation Ordinance 1951 (A.C.T.) ("the Ordinance"). Both the company and Mr Asioty had appealed to the Supreme Court from an award made by the Court of Petty Sessions of the Australian Capital Territory on 27 November 1984 that Mr Asioty ceased as and from 18 August 1983 to be totally incapacitated for work and was, as from that date, partially incapacitated for work.
At all relevant times prior to 30 December 1983, the Ordinance provided that compensation was payable where a workman suffered personal injury by accident arising out of or in the course of his employment and total or partial incapacity for work resulted (s.7). Where a workman was suffering from a disease and was thereby incapacitated for work and the disease was due to the nature of his employment, his employer was liable to pay compensation as if the disease were a personal injury by accident arising out of or in the course of his employment (s.9) "Disease" was defined to include the aggravation, acceleration or recurrence of a pre-existing disease.
Mr Asioty was born in Egypt in 1931. He attended a local school in Cairo but left school at age 12 years. He then worked with his father on his father's farm. Eventually, in about 1959, he was employed as a waiter in the Ministry of Foreign Affairs in Cairo. He worked at that job for a number of years. During the course of it he came to Australia in June 1969 and continued to work at the Egyptian Embassy until March 1976. He then left to work at the Jordanian Embassy, again as a waiter, for about nine months. He was then unemployed for a time. He began to work with the company on 10 October 1980 as a slaughterer of lambs. Subsequently, he developed a dermatitis and was off work at intervals. He was paid compensation by the company in respect of the disease he had contracted, it being acknowledged by the company that the nature and conditions of his work with the company on or prior to 15 April 1982 caused or aggravated an injury in the nature of a disease being dermatitis to his hands and feet. Compensation was paid on the basis that he was totally incapacitated for work from 13 April 1982.
On 12 January 1983 the company filed an application for arbitration under the Ordinance. The application sought an order "that the agreed amount of compensation be terminated as of 30 June 1982 and that an order be made for the stay of any payments from 30 June 1982". The company alleged that Mr Asioty ceased to be totally incapacitated for work from 30 June 1982. Alternatively, it alleged that, if Mr Asioty remained totally incapacitated for work after that date, that incapacity did not arise in circumstances imposing a liability on the company to pay compensation under the Ordinance.
On 11 March 1983 Mr Asioty filed an answer denying that the company was entitled to terminate the payment of compensation.
On 22 July 1983 Mr Asioty filed an application under the Ordinance alleging that he was totally incapacitated for work or, alternatively, partially incapacitated and claiming compensation accordingly.
In accordance with the provisions of the Ordinance, the company's application proceeded to arbitration before the Court of Petty Sessions. It came on for hearing on 17 August 1983. The evidence adduced by the company to support the proposition that Mr Asioty was not incapacitated for work by reason of a disease, or an aggravation of a disease, due to the nature of his employment was that of Dr Clive Robinson, a highly qualified and very experienced specialist dermatologist.
Dr Robinson's evidence was that he examined Mr Asioty on 7 June 1982. He was then informed that Mr Asioty had developed a rash for which he had been treated by his family doctor and that he had seen Dr William Robert Heeler in October 1981 with a history of a rash of ten months' duration. Dr Robinson was also informed that the rash improved with treatment when Mr Asioty stopped work but when he returned to work it relapsed in one or two weeks. On examination, Dr Robinson found small modules and elevations of the skin of the legs but no sign of any active rash on Mr Asioty's hands. In relation to his legs, Dr Robinson said that the dermis, the skin under the top layer, showed signs of Cutis Amyloidosis, a disease of unknown origin. There were no signs of aggravation. In a report dated 9 June 1982 he expressed the following opinion:
"Amyloidosis Cutis or Collagen disease of the skin accounts for the itch. If he relapses on return to work he must have a microscopical examination of his skin made by Dr Musso, a Histopathologist Dermatologist, to help confirm the constitutional findings. Present Diagnosis, Aggravation Industrial Dermatitis itself aggravating a Pre-existing Non Industrial condition and we must decide when has the combination ceased and the disability is no longer of industrial causation."
Dr Robinson accepted a certificate given by Dr Heeler, who was Mr Asioty's treating specialist dermatologist, that Mr Asioty was unfit for work until the end of June 1982.
Dr Robinson again examined Mr Asioty on 13 April 1983. In a report of that date he expressed the following opinion:
"The condition present today is not caused by his work as a Slaughterman and Physically he is fit for employment.
Mentally, it will be difficult because he is firmly convinced, that all work makes the rash 'itch'.
On his Doctor's report, there was a time when his work caused an Industrial rash on a Pre-existing Non Industrial Condition. But I repeat, the skin condition seen by me today, is not causally related to his work as a Slaughterman and is a Constitutional Condition called Amyloidosis Cutis. He cannot speak English. He cannot find a job. He was brought to Australia by the Embassy. They, I suppose, think they are no longer responsible. Re: Cutaneous Amyloidosis - one of the theories is, that there is a Genetic Factor and there is nothing in the literature to prove that it was causally related to his work."
In the course of his evidence Dr Robinson said that there were no restrictions that he would have placed on the type of work that Mr Asioty was able to perform. He also said that Mr Asioty's underlying constitutional condition was slowly progressive. He was satisfied that his constitutional condition was not due in any way to his work environment.
Dr William Robert Heeler was called as a witness on behalf of Mr Asioty. He said he had examined Mr Asioty for the first time on 19 October 1981. Mr Asioty gave a history of an eruption affecting his hands and his legs of about ten months' duration. On examination, Dr Heeler observed inflammation, redness, scaling, cracking and subcutaneous blistering of the hands. Mr Asioty was found to have dermatitis particularly of the hands but also affecting the legs. There was no personal or family history of previous skin troubles. Dr Heeler said, however, that he subsequently found out that Mr Asioty's skin complaint had probably been going on for two years or longer but had become worse after he started working as a slaughterman. At that stage he concluded that his dermatitis was probably due to something he was handling and either of an allergic or irritant type. He thought that it had begun as a constitutional condition of unknown cause which had been aggravated by something he was handling at work. Dr Heeler considered that Mr Asioty could not continue working as a slaughterman. He prescribed treatment.
Dr Heeler next saw Mr Asioty on 14 December 1981. Mr Asioty gave a history that his hands had been quite good until two weeks before the consultation when it had flared up. He attributed this to his having resumed work as a slaughterman. Dr Heeler altered the treatment he had prescribed.
Dr Heeler again saw Mr Asioty on 13 April 1982, 17 May 1982 and 1 June 1982. On the last of those dates Dr Heeler noted that Mr Asioty's hands had improved a lot with only minor cracking and inflammation. His legs were, however, still showing signs of considerable inflammation, a condition for which Dr Heeler could not account. A further examination on 6 July 1982 disclosed that the hands were virtually back to normal but his legs were much the same as before. Dr Heeler concluded that Mr Asioty was not suffering from the same condition in his hands and legs. The condition in his legs was diagnosed as lichen amyloidosis, a disease of unknown origin. That condition was not present in his hands.
Further examinations by Dr Heeler took place on 18 August 1982 and 7 March 1983. The first of these examinations disclosed that the hands were almost back to normal. On 7 March 1983 there were only a few minor splits in the ends of the fingers. Dr Heeler considered Mr Asioty could not return to slaughtering because whenever he did so his hands flared up, although they would settle in one or two weeks. He also thought there were other types of work which he should avoid. The condition of Mr Asioty's legs had remained stationary for about eighteen months. Dr Heeler considered that the condition in his legs bore no relationship to the dermatitis that he contracted at work.
At the conclusion of Dr Heeler's evidence, the arbitration was adjourned until the following day, 18 August 1983.
When the hearing resumed on that day, counsel for Mr Asioty sought an adjournment of the application on the ground that he had been taken by surprise by the evidence of Dr Heeler to the effect that Mr Asioty had a dermological condition of the hands that preceded his working as a slaughterman. That evidence clearly did not support the case which Mr Asioty proposed to make, namely that he had no history of dermatitis to the hands prior to commencing work as a slaughterman and that the condition from which he suffered was due solely to the nature of his employment in that occupation. Counsel stated that he wished to have an opportunity to investigate further Mr Asioty's medical history and wished to have the matter adjourned for that purpose. He also sought an order that Mr Asioty's application filed on 22 July 1983 be consolidated with, or at least heard together with, the company's part heard application.
The application for an adjournment, although strenuously opposed, was granted but on terms that the company be permitted to cease making any payments of compensation under the Ordinance to Mr Asioty. The company's application was adjourned to a date to be fixed and it was ordered that Mr Asioty's application be listed for hearing on the adjourned date.
The two applications again came before the Court of Petty Sessions on 18 November 1983. Evidence was then given by Mr Asioty, Medina Asioty (his wife), Sophia Ruzik (his married daughter) and Moussa Ghalaini (a fellow employee at the company's abattoir). The applications were then further adjourned to a date to be fixed. That date was, in fact, 6 April 1984. On that date evidence was given on behalf of Mr Asioty by Kenneth Kinnane, an officer of the Commonwealth Employment Service. No medical evidence, additional to that given by Dr Heeler was adduced on behalf of Mr Asioty. A report by Dr Ian Dawson dated 18 November 1983 was received in evidence on behalf of the company. In that report Dr Dawson expressed the following opinion:
"The condition of his legs is clinically consistent with the diagnosis of Lichen amyloidosis which is an uncommon condition of unknown origin. There is little to see on his hands or feet to help the diagnosis but the history of an outbreak of vesicular eruption in the summer of 1980-81 which cleared up with treatment and which recurred, sometimes after fairly long intervals of freedom from skin trouble whilst at work, is in my opinion against a diagnosis of primary irritant contact dermatitis and in favour of the basic condition being a constitutional eczema. He would have had a claim on the grounds of aggravation but after eighteen (18) months off work I would not consider there was any remaining element of this aggravation and I think his present condition is a minimal degree of his basic constitutional condition. I think that his future employment would have to avoid irritant substances, prolonged wet work and probably high temperatures and any job requiring the wearing of rubber or leather gloves."
On 27 November 1984 the Court of Petty Sessions announced its decision. It found that Mr Asioty had suffered an aggravation of his pre-existing condition. The formal award, which was signed on 13 December 1984, was as follows:
"1. That the applicant, CANBERRA ABATTOIR PTY LTD, cease payments of compensation to the respondent, FADEL ASIOTY, as and from the 18th day of August 1983 on the basis that the respondent FADEL ASIOTY has not been totally incapacitated for work as and from that date.
2. That the respondent, CANBERRA ABATTOIR PTY LTD, do pay to the applicant, FADEL ASIOTY, the weekly sum of Forty dollars
($40.00) as compensation for personal injury caused to the said FADEL ASIOTY by accident arising out of and in the course of his employment as a workman employed by the said respondent such weekly payment to commence as from the 18th day of August 1983 and to continue during the partial incapacity of the said FADEL ASIOTY for work, or until the same shall be ended, diminished, increased or redeemed in accordance with the provisions of the above-mentioned Ordinance.
3. That in proceedings No. WC 6 of 1983 the respondent, FADEL ASIOTY, pay the costs of and incidental to the application by the applicant, CANBERRA ABATTOIR PTY LTD.
4. That in proceedings No. WC 55 of 1983 the respondent, CANBERRA ABATTOIR PTY LTD, pay the costs of and incidental to the application by the applicant, FADEL ASIOTY".
As has been mentioned, both the company and Mr Asioty appealed to the Supreme Court. Mr Asioty appealed on the grounds that the Court of Petty Sessions erred in finding that he was partially incapacitated and in awarding costs against him, his contention being that he was and continued to be totally incapacitated for work. The company's grounds of appeal were that the Court of Petty Sessions erred in law in holding that there was evidence to support a finding that any incapacity after 18 August 1983 arose out of or in the course of Mr Asioty's employment by the company, in finding that there was evidence upon which an award for partial incapacity could be quantified and in finding that after 18 August 1983 Mr Asioty was suffering from a disease due to the nature of his employment. No evidence was adduced before the Supreme Court, the appeals proceeding upon the basis of the evidence adduced before the Court of Petty Sessions.
On 20 February 1987 the Supreme Court gave judgment in the matter, allowing Mr Asioty's appeal, setting aside the award of the Court of Petty Sessions and substituting a finding that Mr Asioty was totally incapacitated to 18 August 1983 and continuing. The company's appeal was dismissed. It is from that judgment that the company has appealed to this Court.
It was mutually agreed on the hearing of the appeal to this Court that the Supreme Court had correctly identified the issue to be whether the pre-existing disease (the basic dermatitis) was so aggravated as a result of the nature of Mr Asioty's employment by the company that in its then quiescent state it constituted an aggravation, acceleration or recurrence of the pre-existing disease which causes the incapacity from which Mr Asioty suffers.
The Supreme Court followed certain statements of principle by Moffitt J. (as he then was) in Semlitch v. Federal Broom Co. Pty Ltd (1963) 80 WN (NSW) 1603 and held that there was an aggravation of the pre-existing disease and that that aggravation continued. The Supreme Court went on to say:
"It is nothing to the point that the immediate disabling manifestations of the disease eventually disappeared on each occasion that the appellant ceased to work for the respondent. 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
(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."
It was submitted on behalf of the company that the Supreme Court fell into error in holding that in its then quiescent state Mr Asioty's pre-existing disease constituted an aggravation, acceleration or recurrence. It was submitted that the Supreme Court failed to recognise that a likelihood of a return of the symptoms of the disease if Mr Asioty resumed certain types of work and, in that event, that the condition might be harder to control, both related to future possibilities rather than to conditions existing at the date of the award by the Court of Petty Sessions. In other words, so it was said, the Supreme Court should have had regard to the fact that the reason for Mr Asioty's non-return to certain types of work was because of his underlying constitutional condition and not because of any aggravation caused by his employment, any such aggravation having abated no later than August 1982 (not 30 June 1982 as claimed in the company's application). However, whilst counsel for the company contended that the effects of any aggravation were spent by August 1982, the amended notice of appeal filed by it in the Supreme Court and its notice of appeal filed in this Court complained only of a finding of aggravation beyond 18 August 1983, that being the date on which, upon the findings of the magistrate, the respondent ceased to be totally incapacitated for work, albeit that he continued to be partially incapacitated therefore. In those circumstances we propose to treat the case as one where the issue is whether there was any incapacity, total or partial, after 18 August 1983 rather than August 1982. From a practical point of view that seems an appropriate course because the respondent was in fact paid compensation up to 18 August 1983.
The contrary argument on behalf of Mr Asioty was that he was still suffering an aggravation of the pre-existing condition because that condition was permanently made worse by the frequency of acute phases precipitated by the employment conditions and the increased difficulty in treating the pre-existing disease.
In Semlitch v. Federal Broom Co. Pty Ltd, (supra) the Full Court of the Supreme Court of New South Wales was concerned with so much of the definition of injury in s.6 of the Workers' Compensation Act, 1926-1960 (N.S.W.) as was contained in para. (b) thereof. The paragraph is as follows:
"(b) The aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration."
Moffitt J. said (pp 1609-1610):
"A disease which is progressive according to its nature may, by reason of external stimuli, have its progress accelerated. Before such acceleration can be found to have caused incapacity there must be more severe or additional symptoms arising from the acceleration which have produced an incapacity which would not otherwise have existed. In this event there is an incapacity caused by an acceleration of the disease. Symptoms in the case of a progressive disease however may be only evidence of the acceleration without producing in themselves any harmful effects, in which event there may be an acceleration of the disease with no present resultant incapacity. On the other hand a disease once contracted may be of a chronic type not subject to any progress or any perceptible progress. If external stimuli or the general nature of the disease, or both, cause the disease from time to time to produce symptoms which incapacitate then in ordinary language at that time the disease is said to be worse even although the worsening may be temporary only. The production of incapacitating symptoms, or the intensifying of existing symptoms to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease. There is none the less a deterioration or an aggravation of a disease even although similar symptoms of the same severity had been produced by other causes in the past, and even although after the symptoms subside it can be said the chronic condition of the disease is as it was before, and even although it can be said the qualitative condition of the disease has remained the same throughout, and even although the deterioration or aggravation may turn out to have been, or apparently to have been, only temporary. There is no justification for reading into the words 'aggravation', 'exacerbation' or 'deterioration' of a disease, limitations which exclude incapacities which are not associated with some type of irreversible progressive disease."
Semlitch's case went on appeal to the High Court (Federal Broom Co. Pty Ltd v. Semlitch (1964) 110 CLR 626). The High Court approved the judgment of Moffitt J. in which Sugerman J. (as he then was) had agreed in the Supreme Court (p 1603). Kitto J. at p 634 observed that the four words used in the definition of "injury" are not synonymous with each other and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all.
Windeyer J. observed at p 639 that the four words have somewhat different meanings. One may be more apt than another to describe the circumstances of a particular case, but their several meanings are not exclusive of one another. The question that each poses is whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. Windeyer J. also said (p 641):
"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
Semlitch's case has been considered by Full Courts of this Court in Commonwealth of Australia v. Beattie (1981) 35 ALR 369 and in Kirkpatrick v. Commonwealth of Australia (1985) 62 ALR 533. Those cases involved different factual situations from that in question here but both recognized the authority of the judgment of Moffitt J. in Semlitch's case.
The combined effect of the judgments of Moffit J. in the Supreme Court and the members of the High Court (especially the judgment of Windeyer J.) in the Semlitch case on the meanings of the four words seems to be that "acceleration" is most appropriate to a disease which is progressive in its nature and "acceleration" occurs when the rate of progress is hastened by some external stimulus. A disease of the chronic type, not subject to any perceptible progress if some external stimulus 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.
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 called Amyloidosis Cutis. 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 the work produced additional symptoms or an intensifying of existing symptoms which were temporarily incapacitating. Thus the worsening or itensifying of existing symptoms may properly be described as an aggravation. 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.
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 symptoms 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 18 August 1983 and which was the basis of compensation payments to that date.
In our respectful opinion the Court of Petty Sessions fell into error in finding that Mr Asioty had suffered an aggravation of his pre-existing condition and, likewise, the Supreme Court was in error in upholding that conclusion and finding that Mr Asioty was totally incapacitated for work due to the nature of his employment with the company.
The appeal is allowed with costs. The orders made by the Supreme Court are set aside and, in lieu thereof, it is ordered that, in matter numbered SC 1312 of 1984, the appeal be dismissed with costs and, in matter numbered SC 1325 of 1984, the appeal be allowed with costs, the award made by the Court of Petty Sessions on 13 December 1984 be set aside and, in lieu thereof, an award in the following terms be made:
1. That the applicant, Canberra Abattoir
Pty Ltd, cease payments of compensation to the respondent, Fadel Asioty, as and from 18 August 1983.
2. That in proceedings No. WC 6 of 1983 the
respondent, Fadel Asioty, pay the costs of and incidental to the application by the applicant, Canberra Abattoir Pty Ltd.
3. That in proceedings No. WC 55 of 1983
the applicant, Fadel Asioty, pay the costs of the respondent, Canberra Abattoir Pty Ltd.
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