Commonwealth of Australia v Dare, K.J

[1986] FCA 297

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CATCHWORDS

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Commonwealth Emplovees Compensatlon - whether the Commonwealth

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$ liable t o pay compensatlon in respect of an employee whose

employment as a linesman brought on the symptoms of cold

3 d urLlcaria, the aetiology of that disease bemg unknown - whether

1	aggravation	of	that	disease	occurred	- whether	employment a	I	.
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i	contributing	factor	thereto.
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Administrative Decisions (Judicial Review) Act 1977

Compensation (Commonwealth Emplovees) Act 1971 ss. 29, 46

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r	Commonwealth v.	Beattie	(1981) 53 FLR	191.
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i	THE COMMONWEALTH OF AUSTRALIA v KEITH JOHN DARE
NO. VG 42 OF 1986
Sweeney , J.
Melbourne
23 July 1986

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IN THE FEDERAL COURT	OF AUSTRALIA	)
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VICTORIA	DISTRICT	REGISTRY	)	NO. VG 42 of 1986
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1	GENERAL DIVISION	)
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

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BETWEEN: THE COMMONWEALTH OF AUSTRALIA Appellant

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AND: KEITH JOHN DARE Respondent

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THE COURT: Sweeney, J.

DATE : 23 July 1986

PLACE : Melbourne

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MINUTE OF ORDER

THE COURT ORDERS THAT:

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* i The appeal 1 s dlsmlssed with c o s t s .

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Note: Settlement and entry of orders 1s dealt wlth in

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i Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT	OF	AUSTRALIA	)
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VICTORIA	DISTRICT	REGISTRY	)	NO. VG 42 of 1986	i
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DIVISION GENERAL 1

ON APPEAL FROM THE AJ3MINISTRATIbE APPEN;S TRIBUNAL

BETWEEN: THE COMMOPIWEALTH OF AUSTRALIA Appellant

AND: KEITH JOHN DARE Respondent

THE COURT: Sweeney, J.

: 23 July 1986

PLACE : Melbourne

REASONS FOR JUDGMEXT

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This 1s an appeal from a decision of the Admlnistrative

Appeals Tribunal ("the Tribunal") constituted by Mrs Rosemary

Balmford (Senior Member), Mr G.A. Brewer (Member) and Professor

R.W. Webster (Member) given on 13 February 1986 at Melbourne.

The Tribunal was reviewing determinatlon a of the

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'Commlssloner for Employees Compensation ("the Commissioner") made

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on 12 December 1984 that the Commonwealth was not liable to make

weekly payments to the respondent In respect of partlal incapaclty	!
for work smce 1981.
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In Its reasons for declsion, the Tribunal sald:

"It is not in issue that Mr. Dare suffers from cold

urtlcarla, a rare condition In which, when confronted by

cold, as for example a cold wind or a cold lavatory

seat, the area affected by the cold breaks out in weals

which swell and itch and cause him considerable

t	dlscomfort. He descrlbed an occasion in 1979, early in
the onset of the condition, when he had to be
hospitalised after havlnq a swim. The frequency of
'.	events has increased, and he now finds it necessary to keep the temperature of his house at 70 degrees
Fahrenhelt all the time. Even touching a cold bench
will produce the reactlon. The aetloloqy of the
condition 1s unknown.
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Mr. Dare commenced work at the Department of Aviation as
a lineman in 1971. He worked in Tasmania and Victoria
and also in Papua New Guinea. His work involved him in
bulldlng towers on mountain tops, and mstallinq
navlqational aids around airports. He was from time to tlme required to work at nlqht because of the need to allow for aircraft movements. He worked In temperatures
ranqmq from below zero to 48 degrees Celsius. He began
to notice the development of the symptoms of cold
urticarla after his return from Papua New Gulnea in
1977. "

Following examination by a Commonwealth Medical Officer in or

i about February 1981 it was recommended that the respondent be

redeployed on the basis that he was no longer fit for work as a

linesman and should be given a job indoors	as a	storeman	or
clerical asslstant.

With the respondent's agreement he was redeployed as a

clerical asslstant, wlth a	loss	In salary,	with	effect from
February 1982.

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The relevant statutory provisions, sections 29 and 46 of the

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Compensation (Commonwealth Employees) Act 1971 ("the Act"), are In

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the followlng terms -

"29 . (1) Where -

an employee contracts a disease or suffers an

aggravation, acceleration or recurrence of a

disease; and

any employment of the employee by the Commonwealth

was a contributing factor to the Contraction	of the
disease or to the aggravatlon, acceleration or

recurrence, as the case may be, whether or not the

disease was contracted or the aggravation,

acceleratlon or recurrence was suffered in the

course of that employment

succeeding provlsions of this section have effect.

If -

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the total o r partial incapacity for work of the
employee, results from the disease, or from the
aggravation, acceleration or recurrence of the
disease, or the employee obtained medical treatment in relatlon to the disease. or the aggravation.
acceleratlon or recurrence of the disease, as the
case may be, then, for the purposes of this Act,

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unless the contrary Intention appears

The contraction of the disease, or the aggravation,

acceleratlon or recurrence, as the case may be,

shall be deemed to be a personal injury to the

employee arlsing out of the employment of the

employee by the Commonwealth; and

the date of the death, the date of the loss, the

date of the commencement of the Incapacity or the

date on whlch the medical treatment was first

obtained, whichever is the earlier, shall be deemed !

to be the date of the Injury.

(1) Where an ~ n ~ u r y to an employee results In the

employee being partially incapacltated for

work;

the succeeding provlsions of this section have

effect.

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Sub~ect to thls section, compensation is payable to the employee, during the period of the incapacity,

of an amount per week equal to -

the lesser of the following amounts, namely -

(i) $90 or such higher amount as is prescribed; or I

(ii) the amount (if any) by which the average

weekly earnings of the employee before the

injury exceeds from time to time the amount I .

per week that he 1s able to earn In some

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suitable employment or buslness; or

(b) the amount (if any) by which the amount per week !

that would be payable to him under the last i

preceding section. disregarding sub-sections ( 2 A )

and ( 7 ) of that section, If he were totally

incapacltated for work exceeds from time to time

the amount per week that he is able to earn in some

i suitable employment or buslness,

whichever 1s the greater."

The Tribunal considered the meanlng the of word

"aggravatlon", in the light of the Full Court judgments in

Commonwealth v. Beattie (1981) 53 FLR 191. It cited from the

~udgment of Evatt & Sheppard JJ. (at 201) the passage:

"paln brought on by work activlty may constitute an

aggravation of a pre-existing inpry, even though no

pathological change takes place."

and from that of Kelly J the words:

"Using the ordinary meaning of the word 'aggravatlon',

it seems to me to be entirely proper and accurate to

say, adapting the words of Moffitt J (as he then was)

quoted with approval by Kitto J: 'There is an

(aggravation) of an (injury) where experience of the

(injury) by the patient 1 s increased or intensified by

an increase or intenslfying of symptoms. The word is

directed to the indivldual and the effect of the i

(injury) upon him rather than being concerned	with the
underlymg mechanlsm."

In reaching Its decision the Tribunal said -

"Mr. Dare's employment wlth the Commonwealth exposed him

to cold. Cold brlngs on the symptoms of the disease

from whlch he suffers, giving him p a m and discomfort.

That is an aggravation of his disease. A delegate of

the Commlssloner determined on 6 November 1984 that hls

employment was a contributing factor to "temporary flare

ups" of his condition. It was not suggested that the phrase "temporary flare ups" was intended to descrlbe

anything other than outbreaks of symptoms brought on by

exposure to cold, i.e., aggravatlon of his disease. In

February 1981 a Commonwealth Medical Officer had stated

that Mr. Dare was no longer fit for work as a linesman,

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the princlpal reason being his condltion of cold

urticaria and a subsidiary reason belng his cataract,

and had recommended that he should be given a job Indoors. Following that recommendation, he was

redeployed as a clerical assistant, wlth a resultant

loss In salary, as from February 1982. It was not

suggested that there was any basis for the redeployment other than that recommendation that he should be given a

]ob indoors prlncipally because exposure to cold in the

outdoor work caused aggravatlon of his disease.

Thus, Mr. Dare‘s employment by the Commonwealth was a contributing factor to the aggravation of his disease.

That aggravation 1s therefore, by vlrtue of section 29

of the Act, deemed to be a personal injury arising out

of his employment by the Commonwealth. A s the

respondent recognised by accepting the medical

recommendation anbd redeploying him to an indoor

posltion wlth a resultant loss in salary, that deemed

injury resulted in his being partially incapacitated for

work, in that he could no longer perform the higher paid

outdoor duties lineman. a of Accordingly the

Commonwealth 1s liable to make payment to Mr. Dare under

section 46 of the Act. The determination under review

wlll be set aslde and the matter remitted to the

Commissioner for reconslderation in accordance with	an
appropriate direction.“

In Beattie’s case, the Full Court posed for itself (at 197)

the question

“Can incapacitating pain brought on by actlvlty

undertaken In the course of employment constitute an

aggravation of a physlcal injury, notwithstandlng that

such	pain 1s not	brought	about	by	any	further	!
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pathological change?”

and went on to answer the question in the affirmative. In that

case, the claimalnt, while on leave, had strained muscles and

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f	ligaments in the lower abdomen and upper thigh. When she returned
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!	to work, she found that the performance of her duties caused pain.
The case was decided upon the footlng that the performance of
those dutles dld not lead to any further pathologlcal change.

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I In Beattle's case, the Commonwealth had conceded that. if the

question of law were resolved in favour of the claimant, the

Tribunal was entltled upon the evldence which it accepted to reach

its ultimate conclusion that there was In fact an aggravation

causlng Incapacity. In the Court's opinion, tat ~2011,

"Clearly, upon the basis of the evldence in this case,

the concesslon was rlghtly made".

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In the present case, the Tribunal found, as It was entitled I

to do upon the evldence. that when the respondent encountered cold

conditions In his work as a linesman, "the area affected by the

cold breaks out In weals which swell and Itch and cause him

considerable discomfort". These weals were described in the

medical report of Dr Kelly, a dermatologist who was called by the i.

appellant as	a witness	before	the	Tribunal,	as	"urticarial
leslons".

In my opinion, Beattle's case provlded ample authorlty for

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the Tribunal's declsion. I am satisfied that it made no error of

law. Accordingly, the appeal is dismlssed, with costs.

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I certlfy that this and the

preceding five (5) pages are a

true copy of the Reasons for

Judgment herein of The

Honourable Mr. Justice Sweeney.

Dated: 23 July , .

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Assoclate

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NO. VG42 of 1986

THE COMMONWEALTH OF AUSTPJlLIA AND KEITH JOHN DARE

Date of Hearing 14 July 1986

Date ~udgment dellvered 23 July 1986

Counsel for Appellant	Mr. I.A. Miller
Solicitors for Appellant	Australian Government Solicitor
Counsel for Respondent	Miss S. Cohen

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Sollcitors for Respondent Ryan Carlisle Needham Thomas

R.W. Evans

Associate to

Sweeney, J.