Commonwealth of Australia v Bullivant, M.K.
[1988] FCA 167
•4 Dec 1988
CATCHWORDS
WORKERS' COMPENSATION - Commonwealth employees - Dlsease - Vasomotor rhinitls - Whether employment a contrlbutlng factor
to the contraction or aggravation of the dlsease - No
patholoqical change employee's in ba ic underlylng
constitutlonal condltion - Whether aggravation temporary and recurrent - Review by Administratlve Appeals Trlbunal - Whether Tribunal bound to conslder whether the materlal before It other than expert medical evldence enabled It to reach a concluslon
favourable to employee - Whether evidence to support the Tribunal's concluslon.
THE COMMONWEALTH OF AUSTRALIA v. MARJOHIE KIMRALL B t J L L l m
No. ACT G 10 of 1987
Canberra Neaves J.
12 April 1988
.
IN THE FEDERAL COURT OF AUSTRALIA
) )
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 10 of 1987
REGISTRY DISTRICT 1 ) GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
B E I W X N : THE COMMONWEALTH OF AUSTRALIA Applicant
AND: MARJORIE KIMBALL BULLIVANT Respondent
MINUTE OF ORDER
JUWE MAKING 0HL)ER : Neaves J.
DATE OF ORDER : 12 April 1988
WHERE MADE : Canberra THE COURT ORDERS THAT:
1. The appeal and cross appeal be dismissed.
2 .
There be no order as to costs. Note: Settlement and entry of orders is dealt with m Order 36 of the Federal Court Rules.
IN THE FEDEFSL COURT OF AUSTRALIA
) )
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 10 of 1987 DISTRICT REGISTRY
) )
GENERAL DIVISION 1 ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: THE COMMONWEALTH OF AUSTRALA Applicant
A N D : MARJORIE KIMBALL BULLIVANT
Respondent
CORAM: Neaves J.
m: 12 April 1988
REASONS FOR JUDGMENT
In this matter the Admlnistrative Appeals Tribunal
("the Tribunal") reviewed two determinations under the
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
("the Act") in respect of claims for compensation made by Marjorie Kimball Bullivant, formerly Marjorie Kimball McCumber
( "the respondent" ) . By the first of those determlnations,
which was made on 4 May 1976, It was determined that the respondent had contracted a disease, rhinitis, to which her
employment In the Pollce Force of the Australian Capital
Territory was a contributing factor, that the disease was
deemed to be a personal in~ury to the respondent arising out of
7
I -.
her employment and that the respondent's employer was llable to
pay compensation In respect of incapaclty for work arislng from
that personal injury. The second determination was made on 21 September 1978. It determined that the respondent's employment
"was not a contributing factor to the contraction of the condition suffered by her and which caused incapacity for work
and required medical treatment on and subsequent to 16 October 1977 or to the aggravation, acceleration or recurrence of that conditlon" and that compensation was not payable in respect of any period of incapacity, OK in respect of medlcal treatment received, subsequent to that date.
The Tribunal set aslde both determinations and
remltted the matter to the Commissloner for Employees'
Compensation for econsideration with directions to the following effect -
the employment of the respondent by the Commonwealth Australia of ( the
Commonwealth") was a contributing factor
to the aggravation of rhinitis and sinusitis;
total incapacity for Work resulted
therefrom up to but not after her
retirement from her employment on 2 May 1980; and
the respondent wasitled to compensation in respect of any periods
of incapacity for work prlor to 2 May 1980 for which she had not been paid.
The Tribunal remitted the matter to the Commissioner because
It did not have before it full detalls of the periods durlng
Commonwealth
incapacity arising from the aggravatlon of the condition
from which she suffered.during whlch the her employment by the
respondent was absent from work, unpaid, because of From that decision the Commonwealth has appealed to
this Court pursuant to sub-s.44(1) of the Adminlstrative
Appeals Trlbunal Act 1975 (Cth) contending that the decision
should be set aside and the determination made on 21 September 1978 conflrmed. Pursuant to Order 5 3 , rule 13 of the Federal Court Rules the respondent has filed a notlce of cross-appeal. The respondent's primary contention is that
the Tribunal erred in law in failing to find that the disease from which she suffered was caused by her employment
by the Commonwealth
and
respaident was thereby totally, or alternatively partially,
incapacitated for work, such incapacity continulng after sheIn failing to find that the
ceased to alternatlve, it is contended that,
be
mployed
by
the
Commonwealth.
In
the
if it be correct to say
that the employment of the respondent by the Commonwealth aggravated, but dld not cause, the disease from which she
suffered, the aggravatlon led to a permanent worsenlng of her condition for which the Commonwealth is llable to pay compensatlon under the Act.
The respondent was born on 30 March 1951. She
spent her formative years at Mildura In the State of Victorra and, after completing her schooling at secondary
level, attended a nursing course at the Mlldura Base Hospital. Her evldence was that the hospltal itself was
.
served by a ducted air system, the air being heated In
wlnter and cooled in summer; that she lived in the part ofthe nurses quarters which had no alr conditlonlng system of
any sort; and that she suffered no relevant illness durlng that perlod.
The respondent came to Canberra in 1969 and joined
the Commonwealth Public Service. She was employed as a
clerk in the Department of Supply. From 1969 to 1972 she worked in an office building known as Anzac Park West whlch had an air conditioning system whlch forced heated or cooled
a l r through the building by means of a fan. Durlng this perlod, according to the respondent's evidence, she had no
difficulty with her nose or her breathing. On 10 February 1972 the respondent jolned the Army Reserve. This involved her attending nightly parades once
a
week. On 11 September in that year she joined the Pollce Force of the Australlan Capital Territory. After initial recrult training of some 16 weeks' duration while based at
Woden Pollce
Station, probationary constable and was assigned to the Women Pollce
the
respondent
was
appolnted
a
Section at Police Headquarters, London Clrcuit, Canberra
City. The Tribunal accepted that the Police Headquarters
building had a similar air conditioning system to that installed at the buildlng known as Anzac Park West. The
respondent considered that her duties in the Women Pollce
Section required her to spend, on average, about 50 per
cent. of her working hours In the building. Early In 1973
L
she began to have trouble with headaches and a stuffy nose
and she consulted Dr Peter Hoare, a general prsctltioner.
After a period of about 12 months in the Women
Police Sectlon, the respondent was transferred to the
General Dutles Division which was located in the same
building but on a lower floor. In that Division she spent considerably less tlme (only 20 per cent. on average) in the
building. She said that while the symptoms were still
present, they did not seem as bad. Later she worked in the
Information Sectlon in the same building. Her symptoms, she said, then became worse.
Dr Hoare referred the respond1 ent to Dr A . J.
BrirlgPr an ear, nnse and throat speclalist. Ir! a report
dated 31 March 1980, Dr Brldger stated that on 31 May 1973 the respondent was seen by him, having been referred wlth a history of chronic nasal obstruction and periodic sinus
problems. He stated that exammation of the nose showed
conslderable septal deviation to the right, possibly of atraumatic origin; that there was evidence of an atoplc nasal
mucosa; and that an X-ray of the paranasal sinuses was
clear. He said that on 10 April 1974 septoplasty was carried out and the septum re-aligned to the mld position.
The doctor reported that, post-operatively, the respondent
had made a good recovery but that there were intermlttent
bouts of allergic rhinitis requiring control with
medication. The respondent's last vlslt to Dr Brldger was
recorded as having been on 25 July 1974.
'
Prior to 1974 the respondent had lived in varlous suburbs of Canberra. In that year she married and she and
her husband moved to a 42 acre farm at Hall. In 1981 they purchased a farm of 711 acres at Jerrawa near Gunning. In 1983 they moved to a small farming property of 9 acres at
Yass while still retaining the property at Jerrawa.
In May 1975 the respondent was seen by Dr S.P.
Trenerry, a specialist in allergic diseases. In a report dated 15 May 1975, Dr Trenerry said:
"Thank you for referring Miss Marlorie McCumber,
a police woman who complains of a blocked nose
and post nasal drip whilst working in her
air-conditioned office. She is symptom free after a day or two on the farm. She develops a slight cough and a wheeze when the nose is bad,
but no asthma. As a child she suffered hives
from 'white cats only' and chocolate. She is sensitive to a number of foods and I have advised her to try eliminating these, but her problem is mainly due to the air-conditioning
and there is no solution to this, other than transfer to a non-airconditioned building.
I have asked her to come back in a month's time to report what progress she might make with e diet.
I will write again."
Although the application was not available to the
Tribunal, it appears that towards the end of 1975 the respondent submitted a claim for compensation in respect of
"chronic rhinitis/sinusitis". In accordance with a request
a
Compensation, Dr Trenerry completed a form of questionnaire
in March 1976 stating that the respondent was sufferlng fromdelegate of the Commissioner for Employees' made by
rhinitis. He answered In the affirmative the question whether her condition was due to the contractlon of a
disease to which her employment was a contributing factor and supplemented that answer by saying that the contrlbutlng
factor was "air conditioning in the office". The avoidance
of air conditioned buildings was recommended: outdoor employment was said to be desirable.
On 4 May 1976 the determination under the Act to
whlch I have already referred was made. It seems clearly to
have been based upon what Dr Trenerry had said in answering the questlonnaire. Further determlnations under the Act
were made determination made on
from
tlme
to
time,
consequential
upon
the
4 May 1976, providing for the payment
of compensation in respect of specific periods of incapacity for work and for the payment of medlcal expenses incurred by
the respondent. It may be noted at thls point that the Commonwealth undertook, as a condition of being permitted,
notwithstanding the lapse of time, to challenge the
determination made on 4 May 1976, not to seek reimbursement
of any amounts paid by way of compensation or for medlcal treatment pursuant to that determinatlon.
The respondent was referred by her then general
practitioner, Dr P. Grant, to Dr J.H. Lancken, an ear, nose
and throat speciallst. Dr Lancken furnished a report dated 11 June 1976. That report reads:
“Many thanks for referring Miss Marjorie
McCumber, the 25 year old patient who has suffered from intermittent nasal obstruction.
This is worse in the winter and in cold weather
and she rJets occasional headaches. The headaches would seem to be of the migraine type
and are worse when she is in brlght light. If she is in an air-conditioned room, her headache
appears.
She tends to eat a lot of chocolate and drinks a
milk.
headaches of a similar type.
She herself works in the Federal police forceHer mother apparently gets
lot of
and there do not seem to be any allergic factors. She had an allergy survey in 1975 but
all tests were neqative.Examination showed the nasal mucosa to have an allergic appearance, but I could find no other significant abnormality. RAST tests to try and
determine increased pres nce the of
concentrations of ICE CImmunoglobulin E3 in the blood were negative and did not suggest any
marked hypersensitivities to the allergens tested.
However, I feel sure that this patient does in fact have vasomotor rhinitis associated with migraine, and that many factors including diet as well as physical conditions (such as temperature, etc.) and air conditioning make a difference to such a person’s nose. I know of no satisfactory medical or surgical treatment
for the condition, except for an avoidance of
the foods that will sometimes bring on the problem. I tried to point this out to her. ”
The material before the Tribunal showed that the
respondent had a number of short periods of incapacity for
work because November 1976. On several occasions incapacity for work
of
the
disease
in
September,
October
and
followed immediately upon a period uring which the
respondent MS off duty or working outdoors.
.
The respondent was seen by Dr A. Howard Marsh, the
Australian Capital Territory Police Medical Officer, who, in a report dated 19 January 1977 said: "I recently interviewed Constable McCumber as
she continues to suffer from headaches and soreeyes and as she considers these disabilities are
brought about or aggravated by the air conditioning in this building.
Constable McCumber signed an authorisation for me to discuss her case with Dr Trennery Esicl who has investigated her case from the allergy point of view.
Dr Trennery Csicl said he had been unable to
find any evidence of allergy but stated that
some people get eyestrain from fluorescent
lighting, and that changes in temperature may also affect the upper respiratory tract. He
thought Constable McCumber came into this category - i.e. sensitivity to physical factors
in the environment.We are therefore confronted with a s i t u a t ~ c c =f trial and error in attempting to find suitable
employment for her.
Because of the severity of her headaches, Constable McCumber uses analgesics regularly and
I have intimated that this is undesirable.If no suitable employment can be found she would be better to give up Police work altogether and seek employment elsewhere."
It is not clear to which building Dr Marsh was referring in the opening paragraph of that report. However, at some time
prior to 20 May 1977 the respondent had been transferred
from Police Headquarters to the Woden Police Station. It will be necessary to return to the question whether the
Woden Police Station was at the relevant time served by an
air conditioning system and, if so, the nature of that system.
.
During her time at the Woden Police Station the
respondent spent 20 - 50 per cent. of her time out of the building but much of this was spent o patrol duty m an alr conditioned shopping centre. She remained at Woden Pollce
Station until her retirement. From time to tlme the
respondent was
absent supported by certificates from her general practitloner,
from
work,
her
absences
being
Dr
Grant.
A further report on the respondent's condltion was
sought from Dr Trenerry. His report dated 20 May 1977 reads as follows:
"This policewoman reports that since being
transferred to Woden in January where she is
mainly on patrol duty, she has been 'a lot better since then'. She did have some trouble
at Woden last Winter when lecturing on the top floor which is 'very hot and stuffy'.
I believe Constable McCumber's sinusitis
problems are aggravated by air conditioning.
As noted by you 'on several occasions she has been either on outslde duty or rostered off duty on the day immediately prior to her absences due to this illness'. This is because, to quote her
words 'it may take several days to build up to an attack'. She may be ill off duty and stlll
ill when due to
go back on duty.
To answer specifically your questions in
paragraph two of your letter of 6th December,
1976, the effects of the rhinitis are temporary
though recurrent. effects The of
air-conditioning ceases Csic3 within a few days. She has sinusitis related to air-conditioning as previously declared both prior to and subsequent
to the 24th September, 1976. I feel it should be noted that since her transfer to Woden she has had less trouble according to your reports
as she declared to me at this interview." On 24 August 1977 Dr Marsh reported as follows:
"I saw Constable McCumber this morning and have
had two discussions with her doctor.
She said her sinuses have been good since her
transfer to getting a lot of backaches over the past twelve
Woden.
However,
she
has
been
months and it has been worse this winter. She also gets pains in her hips and legs and puts it down to the cold. These aches and pains affect
her sleep. Her trouble occurred first at homeand wakes her up. Has lived in present house
for three years and it is cold and drafty on account of alterations and no electricity till
ago.
suggesting a renal origin of her trouble and she
has not noticed any swelling of any joints.There are no symptoms
two m nths Her hands go cold and white in cold weather and
her feet are cold even in bed. She has a long history of sore throats and this should be checked out with a Rheumatologist.
Her skin is dry and she doesn't perspire readily.
Her troubles began when she first came to
Canberra but was O.K. with an electric blanket
on the bed. She is worried because her
condition seems to be getting worse and
financial commitments make it necessary to work for another two years. I have raised the question of hypothyroidism
andlor of a rheumatic aetiology with Dr Grant who will see her again and arrange further
investigation and report. Meantime she should
continue duty."
Periods of incapacity occurred in August and
October 1977 and January 1978. One of those periods of incapacity, from 16 to 20 October 1977, occurred after the
respondent had returning from recreation leave, such work being carried out
been
working
for
only
four
days
after
was air-condltioned. described as an office that was not
in what The materlal before the Trlbunal, however,
does not identify where the respondent was then performlng
duty. The period of incapacity in January 1978 followed
immediately upon the respondent being off duty for sevendays.
Dr Trenerry was asked for his further comments. He
examined the respondent on 12 and 20 July 1978. He also referred a blood sample for pathology. On 21 July 1978 he reported: "Constable McCUMBER has no evidence of allergic disease. All my tests proved this. She states that she I s affected by air conditioning. There
is no way that I can prove or disprove this.
This tendency which she has, has not been brought on by work and should not be compenslble
in my opinlon.
Following receipt of that report the second of the
determinations before determination, which is dated 21 September 1978, is in
the
Tribunal
was
made.
That
the
following terms:
"DmMINATION
1. On the vidence before me, including
specialist medical opinion, I am unable to find that the condition suffered by the sald
Marjorie Kimball McCumber and which caused
incapacity for work and required medlcal
treatment on and subsequent to 16 October
1977 is the result of the contractlon of a disease or the aggravation, acceleration or
recurrence of a disease to which er
employment was a contributing factor. 2. NOW THEREFORE in pursuance of the provlsions
of the Compensation (Commonwealth Government
Employees) Act 1971, as amended including
section 29, and further the o
determlnations prevlously made In thls matter I herebv determine:-
(a) the employment of the said Marjorie
Kimball McCumber was not a contributlng
factor to the contraction of the condltion suffered by her and which
caused incapacity for work and requiredmedical treatment on and subsequent to
16 October, the 1977, t or aggravatlon, acceleration or recurrence
of that condition;
(b) the A.C.T. Police is, therefore, not liable to pay compensatlon in respect
of the condition suffered by the said
Marjorle Kimball McCumber and which caused incapacity for work and requlred
medical treatment on and subsequent to
16 October, 1977. "
It is apparent that that determination was based on Dr Trenerry's further report.
On 11 October 1978 the respondent requested that
the determlnation be
reconsldered. supported by the report of Dr Lancken dated
That
request
was
11 June 1976,
the text of which has already been set out. On reconsideration, the determlnation made on 21 September 1978 was confirmed.
At the request of the respondent's solicitors,
reports dated 27 November 1979 and 11 December 1979 were furnished by Dr Hugh Wllliams, an ear, nose and throat surgeon. At their request a report dated 23 December 1980 was furnished by Dr W.J. Bishop, a general practitloner.
Dr Williams' report dated 27 November 1979 was in
the following terms:
"I know this woman as Mrs Marjorie Bullivant. I initially saw her on the 25th September of this year. She 1s troubled by chronic nasal
obstruction attributable to anasal septal deflection associated with a compensatory vas0
motor rhinitis. With the nasal congestion, there develops obstruction to the sinus drainage
polnts with consequent s m u s headaches.
The problem she notices much more frequently in the presence of air conditioning. For the relief of these problems, on the 17th November, I performed a septoplasty operatlon a projecting to the left in the valve region. of the septum resecting d splacement A t
the same time, bilateral intranasal antrostomies were fashioned and hypertrophic turhinates of the nose cauterised and outfractured.
I have not seen her post operatlvely yet but it
is to be hoped that her symptoms will be considerably improved by these procedures."
His further report dated 11 December 1979 was as follows:
"Thank you for your letter dated 7th December.
I believe the answer to the two questions both A and B is in the affirmative.
You state that it is Miss McCumber's contention
that the air conditioning caused the condition
and the only way which relief could be bought
about was by being away from the office. If that is how she found the situation, I am not going to dispute the matter."
The questions referred to in that report as A and B were:
"(a) Could the vas0 motor rhinitis have been caused by or contributed to by the air conditioning In the office in whlch MS McCumber worked?
(b) If the condition could not have been
caused by air conditloning, could it
have been maintained or irritated by the alr conditioning?"
Dr Blshop reported:
"Mrs McCumber first consulted me on 30th
January, 1980, with a history of Chronic Sinusitis for which a septoplasty and antrostomy
operation had been carried out on 19th November, 1979.
I treated her medically during the perlod January to July. krlng this period she
suffered currences of sinusitis, nasal
congestion, and headaches. She responded to
treatment with antibiotics, mainly Mysteclin,
but also Septrin on two occasions. She also
required treatment with Sinutabs, Sandomlgran and Tobispray. Her headaches became controlled
but she occaslonally required Mersyndol for
severe headaches, and Sudafed to clear the
congestion. Ergodryl was also used f o r migraine headaches. She suffered frontal headaches which she stated
were severe conditioning system, and also aggravated
and
incapacitating
in
the
air
by wind
and dust.
I understand that she was separated from the Police Force on 13th May, 1980, and her symptoms
in June and July were fairly mlld. I have not
seen her since 24th July, 1980.
Some air conditioning systems are known to
clrculate organisms which might initiate
allergic responses such as allergic rhinitis or sinusitis. I have no knowledge of the air
conditioning system operated in the premises where Mrs McCumber worked, nor if others were affected. Certainly Mrs McCumber's symptoms worsened when she was exposed to that system,
and improved when not so exposed. It could be claimed that the air conditioning aggravated her
symptoms.
When last seen by me. her symptoms were quite mild and controlled, so that at that time (24th July, 1980) prognosis could be said to be favourable. "
The Police Medical Officer, Dr Marsh, obtained a
further report from Dr Hugh Williams dated 7 January 1980. That report reads as follows:
"On the 17th November C19791 , I performed a
septoplasty operation for Mls McCumber and at
the same time intra nasal antrostomies werefashioned.
Since that time, she has developed a full blown
maxillary sinusitis which is causing her considerable discomfort and radiology confirms
the presence of considerable mucosal thickening
in each maxillary sinusltis Csic3 indicative ofmaxillary sinusitis.
This sinusitis has proved resistant to
antibiotics and decongestant therapy and I have
arranged perform to bilateral radical antrostomies at which stage the diseased mucosa
shall be excised from the cavity of each sinus.It is to Cbe3 hoped that these procedures will provide adequate relief of her sinusitis so that she can again work without undue discomfort."
On 10 April 1980 the respondent was examined by a
Commonwealth Medical Officer, Dr Bromhead, who recorded the following brief history of the respondent's condition:
"Sinusitis since 1973 - operation 1974 improved but relapsed - allergy tests both in
and later in Sydney have all been negative. Canberra Second operation 1979 - failed and now has chronic infective sinusitis which may require
further operation, so far not accepted by
member. Basic condition appears to be due to
air conditioning which explains member's reasonable health while away in Army camp."
His prognosls was as follows:
"Poor for any type of office work but may if a third operation I s successful, tolerate a few hours per day office work.
Dr Bromhead concluded that the respondent was unfit for
contlnued employment and should be retired on the grounds of
invalidity but that she might, in due course, partlally or
completely recover and become fit for some form of Commonwealth employment. He recommended review in from s1x
to twelve months. The respondent was, in fact, retired on the ground of invalidity on 2 May 1980. Between 17 November 1979 when Dr Williams performed the septoplasty operation and the date of her retirement, the respondent worked on only one or two days.
According to the respondent, her condition improved
slowly after her retirement and by the end of l9@0 she was no longer taking medication. Durlng this period she was
living on the farm and was out of doors most of the time.
She had recurrences of the symptoms from time to time but
these were
not respondent's belief was that the longer she was away from
as
bad
as
before
her
retirement.
The
air conditioning the better she was. Between 1981 and 1984
she felt reasonably well but the symptoms would recur If she
spent any length of time in an air conditioned club,
restaurant or cigarette smoke. For example, the symptoms recurred three
shopping
mall
or
if
she
was
exposed
to
or four times during 1981 but she was able to control them
with antibiotic or antihistamine tablets. She said she
would feel slightly unwell for short periods of time but would recover quite quickly. During the perlod 1981-1984
she continued her activities in the Army Reserve, attending two camp periods each of approximately 16 days each year.
During 1982 the respondent began to work as a
waitress at the Total Service Station at Yass. She worked,
on average, two shifts a week each of eight hours' duration
for about twelve months. "here was no air conditioning butshe began to have problems with her sinusitis and gave up
the position because she "did not think it was worth letting the situation get back to the way it was". She attributed her symptoms to her exposure to smoke and heat at the
service station.
In 1985 she commenced to keep the books for a motor
vehicle.wrecking business which was being operated by a
company owned by her husband and herself. This occupled her for about five hours a week with additional work at the end of each month. She also assisted her husband in running the farming properties which they operated in partnership.
On 17 September 1982 a further request had been
made for reconsideration of the determination made on 21 September 1978. On 25 November 1982 the solicitors for the
respondent were informed that the determination made on 21 September 1978 would not be revoked or varied.
Yet another request for reconsideration of the
determination dated September 1984 but that request was also unsuccessful. That
21
September
1978
was
made
on
19
request was accompanied by a copy of a letter dated 5 July, 1984 written by the respondent's solicitors to Dr Hugh Williams and the doctor's response dated 11 July 1984. The
solicitor's letter had referred to the respondent's
attendance on DK Williams on 8 May 1984 and asked for confirmation that the respondent's condltion "was. or most
probably was a reaction to alr condltioning both In the buildings and in motor vehicles". DK Williams expressed the
following opinion:
"I believe that MKS Marjorie McCumber suffers
with a severe vas0 motor rhinitis causing her nasal congestion and discharge and at tlmes
sinusitis. This problem is considerably aggravated by working in an air conditioned environment and in answer to your letter, I do reaffirm that I believe your client's condition
is most probably a reaction to air conditioning both in buildings and motor vehlcles."
Dr Willlam specialising In internal medicine, saw the respondent on 3
Coupland,
consultant
a
physician
July 1986 at the request of the Commonwealth. His report
dated 9 July 1986, after reciting the history given to him by the respondent, reads:
"At the time that I saw her, her general health was good. She was not suffering from any Sinusitis or
Rhinitis and her nasal airway was clear.Her chest also was clear without any rales nor rhonchi.
In answer to your questions, the followlng are my replies.
1. From the evidence supplied it does appear that flrs Marjorie Bulllvant has suffered from Sinusitis and Rhinitis.
It seems likely that she still suffers from episodes that are treated with Antlbiotics and nasal mucosa constrictor drugs.
2 . I
do injuries and dlsabilities have been caused by
not
believe
that
the
applicant's
air conditioning in the work environment. I
believe that Rhinitis and Slnusltis are a disorder caused by partlcular susceptibilities
in the individual to such lnflammations or possible allergies. It could well be that Mrs
Bullivant has an Allerqic Rhinitls that has not
been detected by current techniques.3 . Vasomotor Rhinitis is likely to be permanent
once it has become established, but varlable in its severlty.
4 . It is possible that further medical or
surgical treatment may be necessary but it appears from the patient's symptoms, that the
condition is less a problem now than it was at
an earlier tlme. Certamly further medical treatment is likely to be required as Upper Respiratory Tract Infections are likely to set off an Inflammatory Sinusltis in somebody so predisposed.
5. I belleve the applicant did have a
pre-exlsting condition or susceptibility to
Sinusitis and Rhinitis. Some patients who
suffer from simple common colds wlll develop Bronchitis, whereas others will repeatedly have attacks of Sinusitis and it 1 s simply related to the constitutional makeup of the person.
6. I don't believe that any particular course
of treatment will eradicate this susceptibllity.
Any acute attack should be treated as it is
being treated now with Antibiotics and mucosal nasal constrictor drugs.
7. I do not believe that the applicant's condition is a result of, or was aggravated by air conditioning, in the work place. W1 th
respect to the latter, I think it is most unlikely that air conditioning per se would aggravate the condition. If she worked in a smoke filled environment, then one could easily
understand aggravation and this may have been
the case but it is not stated in the materlal
provided to me.
.
21.
Dr Coupland also furnished a report dated 27
November 1986 to the Australian Government Sollcitor. The report reads: "You asked whether I would comment upon whether Mrs Bullivant's condition could arise after these periods of not being in an air-condltioned environment due to a delayed reaction to working
In an air-conditioned environment prior to these periods.
I am of the opinion that Mrs Bullivant's
condition could not arise after periods of not
being in an alr-conditloned envlronment due to a
delayed reaction worki g an in o
air-conditioned environment prior to those periods. If one experiences aggravatlon of vasomotor rhinitis or allergic rhinitis as a
result being of a in air-conditioned
environment, then one would expect that
aggravation to occur immediately upon exposure to the air-conditioned envlronment or to occur
within a matter of 24 hours after exposure to such an air-conditioned environment.
It would not occur after some period of absence of exposure to an air-conditioned environment."
Dr Hilton Stone, an ear, nose and throat surgeon,
examined the respondent on 9 October 1986. His report, dated 10 October 1986, reads:
"I saw this lady at your request on 9 October 1986. The history is well documented up untll the time of her discharge from the Police Force
and I will not reiterate it here. For the pastfive or s1x years, that is since belng retlred,
she feels that her upper respiratory tract is satisfactory as long as she stays out of 'an
artificial envlronment'. There may be the
occasional flare-up of symptoms but these seem to be readily controlled with antibiotics and
antihistamines.
On examination I found her to be a well-looking
person and specifically there was a falrly stralght nasal septum with minimal mucosal thickening of the left inferior turbinate and a
slight spotting of fresh blood in the right nasal cavity. The rest of the upper resplratory
tract was clear. The documents that accompanied
her indicated that here had been sinus pathology radiologically in the 1970’s and I
took the liberty of ordering a repeat sinus X-ray. This X-ray was normal.
With respect to the specific points you have raised in your letter: (1) This lady does not suffer from sinusitis
now, but there is evidence that she dld in the 1970‘s. It would appear that the
nature of her problem is vasomotor
rhinitis. A few words of explanation may be helpful. Nasal functions include
humidification and warming of inspired
air. Obviously the degree of secretion
put out by the nose will vary depending
on the relative humidity of the inspired
air. Also the amount of blood whichmust be directed to the nasal lining or
mucosa to warm the air will be
influenced by the environmental temperature. In the condition of vasomotor rhinitis, there is excessive
secretion and excessive blood flow ith
consequent nasal di charge and
congestion of the nose. These events are a result of excessive response to
the changes in temperature and humidityof the envlronment, that is the nose is
hypersensitlve. The affects on the nasal lining of vasomotor rhinitis are
that infection has a greater chance ofbecoming superimposed.
(2) An ideal nvironment would be approximately 70% relative humidity and
about 21 degrees C. If airconditioning created this environment then clearly
the vasomotor rhinitis response wouldnot be triggered. If however, the relative humidity dropped considerably, as often does occur in airconditioning,
then I think It is reasonable to say that the airconditioning aggravated the
response. If there were pollutants in
the envlronment such as smoke and thiswere being recirculated then again, it
could be said the airconditionlng
aggravated the response. I do not
believe however it 1s fair to say that
the vasomotor rhinitls is caused by airconditloning.
( 3 ) The vasomotor rhinitis is permanent, the
sinusitis has resolved.
Medical treatment as alluded to above
may be required from tlme to time,
however it is unlikely that further surgery would be required. I believe the onset of the vasomotor
rhinitls was co-incidental to her employment. Avoiding any irritative factors In the environment would be beneficlal.
That has been answered above.
The final point you raised in your letter was whether the condition could arise as a delayed reaction to working in an airconditloned
environment. In my opinion, it would be
unlikely there would be a delayed reaction." In a supplementary report dated 19 November 1986,
Dr Stone said:
"1. From the history Mrs Bullivant's vasomotor
rhinitis became symptomatic in the early 1970's; from the nature of the problem I
would have xpected the onset be o insidious rather Cthanl clear cut.
2 . As alluded to in my letter of 10 October,
any environmental condition which devlates from the ideal would tend to exacerbate the
symptoms, thus of relevance would be
air-conditioning with low a relative
humidity and as quoted in Dr Marsh's report, a cold house."
Drs Williams, Coupland and Trenerry were called as
witnesses before the Tribunal. Dr Williams was called by
the respondent, Drs Coupland and Trenerry by the
Commonwealth. The Tribunal expressed itself as attaching little weight to Dr Trenerry's views. It regarded the ear, nose and throat specialists as the relevant experts. Of the
.
24.
doctors speciallsing in that field, partlcular rellance was
placed on the views of Dr Williams. The Tribunal also regarded Dr Coupland’s experience as being In point. Welght
was also given to the report of Dr Bromhead to which reference has already been made.
In his oral evidence before the Trlbunal, Dr
Williams expressed the opinion that when he flrst examlned
the respondent on 25 September 1979 she was sufferlng from a
recurrent function of the operation rhlnosinusitis. He said that the
chronic or he performed In November 1979 was
to clear the nasal airways and facilitate drainage from the
sinuses into the nose. He explained that deviation of the
nasal septum is common throughout the community at large and that, generally speaking, It is related to nasal trauma and may occur without the person belng conscious of the damage
bemg caused. Common sltuations in which It may occur
include falling while learning to walk, playlng sport and motor vehlcle accidents. Deviatlon of the nasal septum was,
he said, a considerable predisposing factor to vasomotorrhinitis.
According to Dr Williams, the operation helped to
alleviate the problem but it was not a cure: the
respondent’s basic
reaction of the lining of the nose, the nasal mucosa, that
appeared to be severely disturbed by exposure to an air
conditioned environment. He said that he used the term “air
conditioning”, to refer, in relation to a building in whichunderlying problem was a tremendous the windows were sealed, to any form of treatment of the air whlch helped regulate body temperature and sustained the
flow of oxygen. He expressed the opinlon that the history given to him showed that when the respondent was away from her air conditioned work envlronment her condition settled down with no resultant dramatic long term disturbance. He expected, however, that she would have recurrences if she worked in an air conditioned environment, an envlronment
was environment in which dust or other organisms were
tobacco
smoke
or petrol fumes or an
where there
b e m g
carrled in the air. He agreed that the respondent might be a person who could not tolerate being indoors very well. Dr Williams certified the respondent as fit for
work on 10 January 1980. He did not see her agaln until May
1984 when her condition had improved. He thought the respondent was always suited to work anywhere away from crowded environments where she might be exposed to smoke or air conditioning. He agreed, in cross-examination, that he
had not attempted to analyse what It was about alr
conditioning, or the types of air conditioning, which
affected the respondent. However, he regarded it as well documented that air conditioning may result in the production of symptoms In patients suffering from vasomotor rhinitis. He agreed that there were other factors, such as stress elther at home or at work, changes in temperature and
matters of diet, which could result, in a particular case, in the aggravation of symptoms in a person who had a basic vasomotor Instability. Dr Coupland, in hls oral evldence, explalned that
vasomotor rhlnltis 1s an excessive reactlon of the nasal and
sinus mucosa
undefined allerqlc state probably precipltatcd the condltlon
and that the chronlc overreactlve muscosa then responds to
several different stlmuli. If the musosa 1s hyper-actlve,
congestlon IS caused in the sinuses and other areas and theto various stlmull. He thought that an
conditlon may become entrenched as chronlc hyper-reaction followed by chronic mfcctlons.
According to DK Coupland's evldence, vasomotor
rhmitis or slnusltls 1s a constltutlonal condltion whlch 1s
precipitated by some external stimull to be found In the
environment or In what 1s ingested m t o the body. While he
agreed that the coincldence of the onset of symptoms wl-th the respondent's commencmg to work In a particular envlronment suggested that there mlght be something in that work envlronment that precipitated the symptoms, he thought
that the precipitation of those symptoms might equally be explained by some change which occurred at that tlme m her
home nvlronment. He afflrmcd his opinion that air
conditioning per se was not the cause of the respondent's
problems. He also
aggravate vasomotor rhlnltis unless the air condltlonlng
were set at too low a temperature.consldered it unllkely that alr conditionlng, belnq a controlled nvlronment, would Dr Coupland consldered that any improvement In the respondent's condition durlnq perlodn of recreatlon leave
.
2 7 .
might be due to the circumstance that during that period she
rested.
still improved, one might draw the conclusion that there was
something in her work environment that was responsible for
aggravation of her vasomotor rhinitis.He agreed that, if she
may have relaxed laboured on the farm during that period and
and
her conditlon
The accepted the evidence given by
Tribunal
also
expressed
itself
as having
Mr Ronald John Edwards,
District Manager, Department of Housing and Construction,
that the klnd of air conditioning in the building known as Anzac Park West, where the respondent was free of symptoms, and that in the Police Headquarters building, where she said that the symptoms first became manifest, were the same. The Tribunal continued:
"We see no aggravating factors carried through forced alr
reason
to
suppose
that
ny
heating or cooling would be any worse in the one building than the other. This is consistent with the fact that at the hearing the alr
conditioning was off yet the applicant Crespondentl felt worse. The conclusion we draw
is not that we disbelieve the applicant but that
there was a change in the applicant's underlying
condition which accounted for the different reaction to similar exposures."
Paragraphs 33-37 of the Tribunal's decision should be set out in full. Those paragraphs read:
" 3 3 . Dr Williams supports the view that the applicant's employment aggravated but did not
cause the rhinitis and the sinusitis. The only evidence to support a causatron view is to be
found in Dr Trenerry's initial report. We are
not prepared to base our findings on this in the
.
2 8 .
face of his later reports, his evidence and other medical evidence. Welght must also be given the CMO's report not because the CM0 1s an expert but because his report together with the decision of the Commlssioner of Police to retire the applicant effectively caused her to stop
work. The determination of 4th May 1976 finding that the applicant's employment was a contrlbuting factor to the contraction of the disease Cshouldl be set aside.
34. Turning then to the question of aggravation this is really a matter where the facts concern aggravation of symptoms by employment rather than the aggravation leading to any pathological change. Dr Stone found the applicant's septum
'fairly straight'; this lndlcates some success in the two operations. It could also be
relevant to the fact that her condition now is
improved. There are other factors, such as that
she has not worked full t m e since leaving the Force and is engaged in an out door lifestyle
which she finds congenial. We have found that
the applicant' S employment was not a contributing factor to the contraction of the
rhinitis or the sinusitis. We are of the view that any continued incidence of the rhinitis and
sinusitis has no bearing Con3 the applicant's employment with the Force. 35. This matter arose from a claim arising from exposure to air conditioning.
However evidence
has been given of no problems from exposure to the same type of air conditioning at the Anzac West Offices as is said to have caused problems
at the City Police Station. The applicant also
felt symptoms when in a hearing room which is
normally air conditioned when the air conditioner was not in fact working. Dr Williams' evidence about the carrlage of smoking Csicl and dust through air conditionmg was not
challenged. We have been referred to Blshop and the Commonwealth of Australia 8 ALN NZ19 by
counsel. We find the applicant to be a basically truthful and well motivated person; we
do not think there is a psychiatric component. It seems to us that the explanation of her problem is that her sinusitis and rhinitis were autogenous diseases, which she did not have
while working at Anzac West, that these diseases commenced after she ~oined the Force and that thereafter matter transmitted through the air
conditioner and air conditioning Itself
aggravated the disease bringing on symptoms at the time; these symptoms prevented the applicant
continuing work.
36. In the Commonwealth and Beattie 35 ALR 369
it was said by Evatt and Sheppard JJ. at p.378:- 'It does not follow
in every case that a
worker with a pre-existing in~ury, who carries out work and as a result suffers pain, will have suffered an aggravation of
his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain or other disability. But that is not a case of aggravation. In such a case any incapacity
for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation
of a pre-existing in~ury, even though no pathological change takes place.'
37. It seems to us applying this dicta to all the evidence, and giving weight to the evidence of Dr Williams, that the applicant is entitled to compensation for periods of incapacity while
she remained a member of the Force. We note
that Dr Williams saw the applicant on or about the 10th January 1980 and then thought she was €it Lo work. On all the evidence we ccjnslGsr It
reasonable that compensation be paid for continued incapacity resulting from the aggravation by her employment in the Force up
until the applicant was retired on the advlce of the CM0 on the 10th April 1980 Csicl."
The Commonwealth, respondent suffered from vasomotor rhinitis, submitted
while
accepting
that
the
that
there was no material before the Tribunal to support its
finding that her condition was aggravated as a consequence
of her coming into contact with air conditioning in the
course of her employment at the Woden Police Statlon. It was accepted by counsel for the Commonwealth that symptoms of the disease first manifested themselves during the period when she was employed at the Police Headquarters building, London Circuit, Canberra City prior to her transfer to the Woden Pollce Station. It was said to be common ground that
the headquarters building was air conditioned but it is by no means clear to me that the expresslon "air condltioned"
in relation to buildings was used by the partles and by the witnesses in the same sense. As I have already noted, the Tribunal accepted the evidence of Mr Edwards. His evidence was to the effect that the system installed in the Pollce Headquarters buildlng at the relevant time was a closed
ventilation system whereby air was forced through the
building by means of a fan; that before being reticulated
through the building the air was passed over coils to heat it in winter and cool it in summer; that the returned air was mixed with a minimum percentage (usually 20 per
cent.)
of fresh air before being again retlculated through the building; and that there was no humidity control except in some special areas which are of no relevance to the present proceeding.
The submission bore two aspects. First, It was sald
that there was no evidence to support the conclusion that the respondent during the period she worked wlthin the Woden
Police Station
was environment. Counsel pointed to the evidence given
working
in
an
air
condltioned
by Mr
Kevin John Reiher who had held the position of Director of the Building and Property Branch of the Australian Federal Police since 1984. Mr Reiher said in his evidence in chief that the records available to him showed that - "there certainly was no air conditionlng before November 1985 with the exception of one small free-standing unit whlch was actually put Into the breathalyser unit in the summer of 1983-84”.
Mr Reiher was unable to say whether, at the relevant time,
the windows in the building could be opened. In
cross-examination, he was unable to say how the buildlng was ventilated prior to air conditioning being installed in 1985. He was, however, prepared to assume that the building
was heated in winter by warmed air being forced through a ducting system and that in summer fresh alr was reticulated
through the ducting system without being cooled. He
regarded the absence of a cooling system as the feature
differentiating ventilating a system from an ir conditionmg system.
Secondly, it was said that, although there was
medical evidence that exposure to air condltioning could be a factor precipitating symptoms of the disease, the material
before the Tribunal went no further than to show that the
respondent‘s symptoms became manifest whilst she was at work. That finding, it was submitted, was not sufficlent to
lustify the conclusion that her mployment was
contributing factor to the aggravation of the dlsease constituted by the onset of those symptoms.
Thirdly, it was said that, although there was
material before the Tribunal showing that the respondent spent periods of time on foot patrol duty in the shopping centre adjacent to the Woden Police Station and that that
.
3 2 .
shopping centre was air conditioned, the material fell far
short of establishing any relevant relationship between the
periods spent in the shopping centre carrying out those
duties and the manifestation of symptoms of the disease.
Indeed, it was said, no such case had been put to the Tribunal by the respondent.
For the respondent it was argued that the method by
which the Tribunal reasoned to its concluslon that the
respondent's employment by the Commonwealth was not a
contributing factor vasomotor rhinitis was erroneous in law.
to
the
contractlon
of
the
disease
It was submitted
that, if the Tribunal had approached the matter according to
law, it would have first put to one side the expert medical
evidence ald asked itself the question whether the other
material which it accepted, partlcularly the evldence of therespondent, demonstrated an observable sequence of events
leading, by a combination of common sense and the
application of logic to the facts, to a reasonable
conclusion that there was a causal connection between the
contraction of the disease and her work environment as a
police officer. According to the submission, it was only if the Tribunal, upon a proper consideration of that question,
was unable to reach the conclusion that there was causal
connection between the respondent's employment by the Commonwealth and the contraction of the disease that the
Tribunal was entitled to weigh in the scales such of the
expert medical evidence as it was prepared to accept. That
approach to the resolution of the issue before the Tribunal
was said to be required by the decision of the High Court in
Tubemakers of Australia Ltd v. Fernandez (1976) 10 A.L.R.
303. Reliance was also placed on a passage in the reasons for decision of Davies
J.
in Welsford and Commonwealth
Banklns Corporation (Administrative Appeals Tribunal - 3 April 1984 - unreported). It was further submitted that the Tribunal should not, in the circumstances of this case, have had regard to
the xpert medical
evidence consideration of the other material before it which
because,
upon
a proper
it
accepted, no other rational explanation was open than that
the necessary causal connection between the respondent's
employment and established. This was said to follow from the
the
contraction
of
the
disease
was
circumstance
that the evidence of the respondent (whom the Tribunal found
to be a basically truthful person) established -
that prior to her employment as a police officer she had not suffered from an
act lve condition vasomotor of rhinitislsinusitis;
that she first developed that active condition while so employed; and that such development had occurred in
circumstances which overwhelmingly
suggested that the effect upon the respondent of air conditioning at her
place of employment was the trlggerlngcause of such development.
It was submitted that the respondent, in speaking of air
conditioning, was to be understood as speaking, not of a
m
34.
. narrowly visualised method by which ordlnary ambient alr is condltioned in a particular way, but of any system in whlch
amblent alr is treated artificially wlthln the confined
space of a building. The evidence, so it was said, drew a
distinction between, on the one hand, a situation in which
the air is artificially so treated and, on the other, a
situation in which the ambient air is not treated
artificially in any way. Notwithstanding that his primary submission was
that a conclusion favourable to the respondent as to the contraction of the disease was the only conclusion open to the Tribunal on the lay evidence before it, counsel referred
to certain of the evidence given by Dr Coupland and Dr Williams which, he submitted, supported that conclusion. He referred, in particular, to the evidence of Dr Coupland that
the respondent had a constitutional predisposition to the
condition which first became manifest in 1973 and the evidence of Dr Williams that it is well documented that, wlth the problem of rhinitis, air conditioning may cause considerable disturbance.
In the alternative, the respondent submitted that
there was material before the Tribunal sufficient to support
its finding that the respondent's employment by the Commonwealth was a contributing factor to the aggravation of the disease.
I turn, first, to the primary submission put on behalf of the respondent that the method of approach adopted
.
by the Tribunal disclosed manifest error of law.
I have carefully considered the judgments in
Tubemakers of Australia Ltd. v. Fernandez (supra) but I find nothing in them to support the argument advanced on behalf
of the respondent. The question before the Hiqh Court was whether the trial judge and the Court of Appeal Division of the Supreme Court of New South Wales were correct in holding that there was evidence on which the jury could find that the condition known as Dupuytren's contracture from which Mr Fernandez suffered after he sustained an injury to his right hand in consequence of the company's negligence, and its subsequent recurrence, was caused by that negligence. In
dismissing the company's appeal, a majority of the Court held that it was open to the jury, having before it expert medical evidence which was capable of being understood as a statement that trauma in the form of a blow to the hand, or
in the form of manual work, was a possible cause of
Dupuytren's contracture, was entitled, in determinlng
whether it was prepared to infer, on the probabilities, that
Mr Fernandez's condition was causally connected with his
employment, to have regard to non-expert evidence of a
sequence of events which tended to support the probability of such a connection.
I am equally respondent's argument in the passage cited in argument from
unable
to
find
support
for
the
the reasons for declsion of Davies J. in Welsford and
. I . .
36.
.
- Commonwealth Bankins Corporation. The passage relled upon reads:
"It is sufficient that the employment
contributes to the contraction, aggravation,
acceleration or recurrence of the disease. The
contrlbuting factor need o no more than
contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all
that 1s required is that one such factor
exhibits the necessary connection with the
worker's employment. See Federal Broom Company Ptv Limited v. Semlitch (1964) 110 C.L.R. 626 at 641-3, per Windeyer J., and Favelle Mort Limited v. Hurray (1976) 133 C.L.R. 580 at 598,
per Mason J. 'I
That passage is directed to identifying the issue which
arises in a case such as the present. It is not concerned wlth the method of which such an issue is to be resolved.
In my opinion, the suggested error of law on the
part of the Tribunal has not been demonstrated. I can see no justification for concluding that the Tribunal was bound
to ask itself the question whether the necessary connection
between the respondent's employment by the Commonwealth and
the contraction or aggravation of the disease was established by a consideration of the material before it other than the expert medical evidence. Indeed, to approach the matter in that way would, in my opinion, have been quite
inappropriate. The issue before the Tribunal was one which
clearly lay outside the realm of common knowledge and
experience and one which fell to be determined by reference to, inter alia, expert medical opinion.
, ., , 37
.
It follows that, In my new, no sufficient basls
has been shown for the Court to interfere with the finding of the Tribunal that the respondent's employment by the
Commonwealth was not a contributing factor to the contraction by her of the dlsease vasomotor rhlnitls. That
finding was clearly open o the whole of the materlal before it. It is necessary, then, to turn to the questlon of
aggravation.
The material before the Tribunal establlshed that
the respondent had an underlylng constltutlonal condition in whlch the nasal mucosa was hypersensitive, a condition whlch was asymptomatlc until she commenced to work In the Pollce Headquarters building. Thereafter, symptoms became manlfest
and over a period of time they varied in Intensity and frequency. As a result, the respondent was from time to time incapacitated for work. Transfer to the Woden Police
Station led to the respondent gaining some relief, the onset
of symptoms being less frequent and less Intense. This
situation, however, did not last and she continued to have
perlods when ultimately, to her retirement. she was lncapacitated for work leadlng, It is clear on the medical evidence accepted by the Tribunal that, to some extent, the respondent's problems had
their origin in a nasal septal deflectlon, posolbly of
traumatic orlgin, a conditlon which, as DK Willlams
. , I . . - 38.
explained, was a predisposing factor to vasomotor rhinitis. That condition was not shown to be in any way connected with the respondent's employment by the Commonwealth. That clrcumstance, however, did not preclude the Tribunal from
concluding that the respondent's employment by theCommonwealth was a contributing factor to the onset of
symptoms of the disease and, thus, to an aggravatlon of the disease within the meaning of that expresslon in S. 29 of the Act entitling the respondent to compensation in respect of resultant periods of incapacity for work: Federal Broom Co. Ptv. Ltd. v. Semlitch (1963) 80 W.N. (N.S.W.) 1603; (1964) 110 C.L.R. 626; The Commonwealth v. Beattie (1981)
35 A . L . R . 369.
The Tribunal havlng determmed that issue
favourably to the respondent, the question is whether there was material before it upon which it could properly do so. For the Commonwealth it was argued that the material before
the Tribunal established no more that that there was a
temporal coincidence between the onset of symptoms and the
respondent's employment by the Commonwealth. However, in my
view, the Tribunal was entitled to take the vlew that the
material before it justified the inference of a causal connection between the onset of symptoms and the employment.
As has already been mentioned, Dr Willlams sald
that It was well documented that air conditioning may result in the production of symptoms in patients sufferlng from vasomotor rhinitis. The Tribunal clearly accepted that
_I
? 0 , . 39. .
evidence. Dr Coupland aqreed that the coincidence of the onset of SyUlptOms wlth the respondent working In a particular enivronment suggested that there might be something in the work environment that precipitated the symptoms though he thought it unlikely that air conditioning
would aggravate the conditlon. His evidence, however, considered as a whole, supports the view that air conditioning could be a trlgger produclng symptoms of the disease.
There being, then, expert medical evidence which,
being accepted, could sustain the view that air conditioning was a posslble cause of the onset of symptoms of the disease, the Tribunal was entitled to infer from that evidence and from the other material before it, Including the evidence of the respondent as to the circumstances in which the symptoms became manifest, that a causal relationship between the employment and the aggravation of
the disease was probable: Tubemakers of Australia Ltd. v. Fernandez (supra).
I am unable to accept the submission on behalf of
the Commonwealth that there was no material before the Tribunal sufficient to entitle it to conclude that the respondent was exposed to an air conditioned environment while working at the Woden Police Station. Reference has
already been made to the evidence of Mr Reiher on the polnt. That evidence was inconclusive, being largely based, not on the wltness’ own experience or on material contained in
relevant Department records, but on what he assumed to be the position. His evidence was clearly not accepted by the
Tribunal. There was, however, evidence given by the respondent which, if accepted, equated the system in operation at the Woden Police Station with that which had operated at the Police Headquarters building. The Tribunal
was entitled to accept, as it clearly did, that, at the relevant time, the Woden Police Station was served by a
forced ventilation system circulating warmed air in the
winter and cooled air in the summer.
The Tribunal was also, in my view, entitled to
conclude, on the material before it, that the effects of the
aggravation of the condition from which the respondent suffered and to which her employment by the Commonwealth was
a contributing factor were temporary, though recurring
during the period of such employment. Any incapacity
arising from the onset of symptoms after her retirement
could, I think, properly be attributed, not o any aggravation of the condition to which the employment by the
Commonwealth was a contributing factor, but to the reaction
of her hypersensitive nasal mucosa to a stimulus present in the environment which she was then experiencing. By way of
illustration, the material before the Tribunal would in no
way support a finding that any incapacity for work arisingfrom the onset of symptoms while the respondent was working
as a waitress at the Total Service Station at Yass in 1982 was causally connected wlth her previous employment by the
Commonwealth. Nor would the materlal sustain a finding that
S . . .
I 41.
her mployment by the Commonwealth resulted in a pathologlcal change in her basic underlying constitutional
condition.For these reasons, the appeal and cross-appeal are dismissed. There will be no order as to costs.
I certlfy that this and the preceding 4 0 pages are a true copy of the Reasons
for Judgment herein of the Honourable Mr Justice Neaves . Associate f
Dated: 12 April 1988
Counsel for the Commonwealth : Mr P.J. Newman P.C. and Mr K.J. Crispln
Solicitor for the Commonwealth : Australian Government Solicitor
Counsel for Solicitor for the respondent
the
respondent
: Mr B.T. Sully Q.C. and
Mr G.J. Lunney
: Snedden Hall & Gallop
he ring Date of : 12 June 1987
0
0
0