Gallagher, W.G. v Commonwealth of Australia

[1989] FCA 401

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Ju'Lul -3cpAENT No. ...!ito. !.!L&

CATCEWORDS

ADMINISTRATIVE LAW - Appeal from decision of AAT not to award compensation - whether there was a fallure to take evidence lnto account

- whether disease or injury - meaning of "aggravation" - meanlng of
"incapacity for work" - whether age a relevant factor - whether issues

raised of fact or of law.

Compensation (Conrmonwealth Government Employees) Act 1971 - ss 5, 26, 27

and 29.

Administrative Appeals Tribunal Act 1975 - S 44(1).

WILLIAM	GEORGE G W A G H E R	Appellant
- v -

COMMONWE?iLTB OF AUSTRALIA Respondent

PLACE :	Sydney
C O W	:	Einfeld J
DATE :	31 July 1989

IN TEE E'EDERAL COURT OF AUSTRALIA	1
1
NEW SOUTH WALES REGISTRY	1
1
GENERAL DIVISION	1 NO. G 342 of 1988

WILLIAM GEORGE GALLAGEER

Appellant

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM: Einfeld J
DATE: 31 July 1989

PLACE: Sydney

MINUTE OF ORDERS

1.       The appeal is upheld.

1. The case is referred back to the Tribunal to be considered according to law.

2. The respondent to pay the appellant's costs.

NOTE:  Settlement and entry of orders are dealt with in accordance with
order 36 of the Federal Court Rules.

I S

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IN TEE FEDERAL COURT OF AUSTRALIA

1

NEW	SOUTH W A L E S REGISTRY	)
)
GENERAL DIVISION	1	No. G 342 of 1988

WIUIAM GEORGE G W A G E E R

Appellant

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM: Einfeld J
DATE: 31 July 1989

PLACE: Sydney

REASONS M R m

This is an appeal from a decision of the General Administrative Division of the Administrative Appeals Tribunal (the Tribunal) constituted by Mr B.J. MacMahon Senior Member given on 8 February 1988 in which the Tribunal held that the Department of Defence was not liable to pay	~om~ensation,;~ to the appellant. Mr Wllliam Gallagher, under the Compensation (Cornonwealth Government Employees) Act 1971 (the Act).
The appellant seeks orders that the determination be set aside. In the notice of appeal he asks that a decision be substituted that he is entitled to compensation as if he were totally incapacitated, but at the hearing his counsel advocated that the matter should be remitted to the Tribunal to consider the matter further.
TEE FACTS
The appellant, who was born in 1930, was employed at the Garden Island Navy Base for two relevant pcriods - 17 July 1985 to 20 August 1985 (the first period) and 18 June 1986 to 25 June 1986 (the second period).
The Tribunal found the following facts as to the first period of employment when the appellant was a cleaner:

He comnenced work on 17 July 1985 in an enclosed machlne shop Here various metals inc1cd:dlng almniun, copper and iron and other substances, lncludlng fibreglass, were ground by mchines in conditions that dld not include the best use of the ventilation systems available After about 5 weeks, he noticed an irritation in hls throat, running eyes and congestion in his nose He said tnat the most important thing to him was the throat Irrltatlon His general

practitioner, Dr. Vilo, certlfled that in his opiruon the

applicant was suffering from a "continuing airborne upper respiratory allergy triggered by repetitive exposure to allergies in his work place" Yavlng considered the available evidence, a delegate appointed under the Ccanpensation (Cmnwealth Government Rqloyees) Act 1971 ("the Act") issued a detemnation on 26 September 1985 finding the respondent llable to pay compensation in respect of that respiratory allergy Weekly payments of conpensation were made as Dr Vilo continued to certify the applicant unfit for work These certifications continued over a period of approximately 10 rronths

The award of compensation during that first period was not challenged

before thqTribuna1 and is not in issue in these proceedings.

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%l.'

In his second period of employment at Garden Island, the appellant was employed in a light duties capacity as a clerk. This position was given to the appellant as a result of a report prepared by Dr Seymour, an acknowledged ear, nose and throat specialist. Dr Seymour was of the opinion that the appellant was suffering not from a specific nasal allergy, but from an irritation caused by the inhalation of particles in his working environment. The facts as to the second period of employment were stated by the Tribunal as follows:

The respondent found a clerical posltion for the applicant as a stock taker m an airco~tloned bulldlng The applicant took up this enrployment on 18 June 1986 It was to last only for five working days Durlng that t m , he left the airconditioned enviromnt on a couple of occasions wlth his supemsor in them stock taklng duties His main complaint however was that one of the wlndows was left open and that as the building was located some 70 yards from a grlt blasting operation, some of the dust from that work rnay have filtered into the bulldng At any event, he complained of a return of hls irritated throat He left

that lob on 25 June 1986 Uabllity for coqxnsatlon was

not accepted and his employment was finally temnated on 25

February 1987 Gut of a total of some 19 months with the respondent, he had worked for approximtely 6 weeks

The appellant's claim before the Tribunal was that on and after 17 July 1985, he was working at Garden Island as a cleaner employed by the Department of Defence and was exposed to airborne partlcles wlthout adequate protection. When subsequently exposed to these and other substances such as cigarette smoke, he would have a reactlon in the nature of an allergy. The symptoms would recede when he was not exposed to these substances. It was alleged that when he returned to work on 18 June 1986 the exposure to dust caused the symptoms to reappear and aggravated his condition to such an extent that he had to leave and has been unable to work, or to find suitable work. since.

TEE ISSUES,

This appeal is under section 44(l) of the Administrative Appeals

Tribunal Act 1975 which provides:

A party to a proceeding before the Tribunal m y appeal to the Federal Court of Australia on a question of law from any decislon of the Tribunal in that proceedlng.

The appellant submits that the following questions of law arise for determination:

a	)	The meaning of "injury" for the purposes of section 5 of the Act.
b)	The meaning of "incapacity" for the purposes of the Act.
C	)	The meaning of the words "all reasonable steps" for the purposes of section 2 6 ( 2 ) of Act.

The notice of appeal lists the following grounds in support of the application:

a	)	That the Tribunal erred in finding that the appellant did not suffer an injury arising out of or in the course of his employment with the Department of Defence.
b	That the Tribunal erred in finding that the appellant was not suffering an incapacity within the meaning of the Act.
C	)	That there was no evidence to support the finding that the appellant did not suffer any injury within the meaning of the Act.
d)	T h e there was no evidence to support the finding that the
ap&snt	was not suffering from any incapacity within the

meaning of the Act.

e)	That the Tribunal misdirected itself as to the meaning of the word "injury" in the Act.
f)	That the Tribunal misdirected itself as to the meaning of the word "incapacity" as used in the Act.

1. That the Tribunal misdirected itself as to the meaning of the words "all reasonable steps to obtainw within the meaning of sectlon 26(2 ) of the Act.

On their true construction as argued, several of these matters raise questions of fact, not of law.

TBE LEGISLATION

Section 27 of the Act provides:

27(1) If personal lnjury arising out of or in the course of the employment of an employee by the Cmnwealth is caused to the employee, the Cmnwealth is, sublect to thls

Act, liable to pay compensation in respect of that inlury in

accordance with this Act

The term "injury" is defined in sectlon 5 as follows:

"Injury" mans any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mntal injury but, subject to sectlon 29, does not include a disease or the aggravation, acceleration or recurrence of a &sease

Section 29 of the Act deems a disease to be	an injury in certain cases.
It states (ao far as is here relevant):

,(*<

29 (l i' Were:

(a)	an employee contracts a &sease or suffers an aggravation, acceleration or recurrence of a disease, and
(b)	any employrent of the employee by the Cmnwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case m y be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employrent, the succeeding provisions of this section have effect.

(2) If -

(a)	. .
(b)	. .
(c)
(d)
(e)	the total or partial incapacity for work of the employee

results from the disease, or from the aggravation, acceleration or recurrence of the disease . , then for the purposes of this Act, unless the contrary intention appears:

(f)	the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deen-ed to be a personal injury to the employee arising out of the employment of the employee by the Commnwealth; and
(g)	the date of the comnencerent of the

incapacity . shall be deemed to be the

date of the inlury

Section 26 then deems a partially incapacitated employee to be fully incapacitated in certain circumstances. The relevant subsections for

this case are ( 2 ) and ( 5 ) . They provlde:

26(2) Subject to sub-section ( 4 ~ , where:

(a) an employee who is partially incapacitated

for work as a result of an injury has taken all reasonable steps to obtain, but has failed to obtaln, suitable employment, and

(b) but for this sub-section, compensation in accordance mth section 46 would be payable

to the employee in respect of that inlury

then-

(c)	compensation in respect of that injury is payable to the employee in accordance wlth section 45 as lf the employee were totally Incapacitated for work as a result of that injury, and
(d)	ccanpensation in accordance with section 46 in respect of that inlury is not payable to the employee

Sub-section 4 is not here relevant.

( 5 ) In detemning for the purposes of thls sectlon whether an employee has taken all reasonable steps to obtain suitable employment, regard shall be had t0:-

(a)	the state of the labour-market at the relevan; tlme
(b)	where there are disadvantages m the employee having to change his or her town or other place of residence in order to obtaln suitable employment - those disadvantages, and
(c)	any other relevant ratter

Section 26 was amended in 1985 and there is no dispute that the present section is applicable in this case. Sections 45 and 46 provide for the quantum of compensation payable in cases of total and partial incapacity.

THE TRIBUNAL'S FINDINGS

The interpretation given by the Tribunal to this legislation is set out in paragraph 19 of its determination as follows:

m this evidence three questions arlse for decision.	The
a@4+cant must first show that he has suffered a deemed

in* in the sense that the five day per~od of employment aqgnhted, accelerated or caused a recurrence of a disease (which is defined in wide tern under the Act). If he can show this then he must show that he is incapacitated for work as a result of that injury. Then assuning success so far, he must show the extent of his incapacity and demonstrate whether it is partial or total.

The Tribunal's conclusions on these questions are found in paragraph 20:

In my view the applicant has not demonstrated the flrst requirement, namely that he suffered a deemed inlwy. Hls case depended upon the fact that his symptoms had receded before the office job and that he felt a return of the symptm~ on resqtion of employcent Much time and effort

was spent in establishing the geographical relationship of the building to the grit blastlng area and the possible interaction between the two of them At the most, such evidence can only show whether it was probable, in the case of an average person, that the dust from the grit blastlng operation would have caused the effects complained of In fact what has to be decided 1s whether this particular

applicant, nth hls particular constltutlon, was so

affected. In my mew the preponderance of medical evldence, where it was based on a full understanding of the facts, fails to support such a connection. Certainly, there is nothing in the evidence to support the cigarette smoke sensitivity connection with grit blasting. The mere fact that a disease becomes apparent at work does not m k e it cornpensable (Re Ellis 8 AIN NI). The applicant must establish a health-employment nexus (Comnwealth v Whillock

48 ALR 433 at 443) and show that hls employment contributed

(Re thebasis of "cornnon exprience" or "comn knowledge", it must be proved through expert evldence (Tubemakers of

in a material way to the aggravation of his &sease

Australia Ltd v Fernandez 10 AIR 303 at 312 per Murphy J)

Paragraph 21 of the Tribunal's determination goes on:

Here there is no presmptive influence favourable to the applicant's case that arises from the observed sequence of events relating to the developnent of an aversion to cigarette smoke. Applying the tests of " c m n experience" or " c m n knowledge" there is simply no logical connection, so far as the layman is concerned, between exposure to the residue of grit blastlng operations some 70 yards distant and the developnent, some tune later, of a reaction of nausea to cigarette smoke. Thus the success of the

applicant's case depended entirely on medical evidence

1 M n g the two events Apart from evidence of a general,

n- specific, nature from Dr Scoppa, there was nothing to that link (cf Re Pryor Decision 3186, 4 February	1967.,at paragraph 26). However, ~f I am wrong in thls
conclusion, it seems to me that the evidence of incapacity is even weaker.

The Trlbunal appears to have considered the alleged sensitivity to cigarette smoke separately from the general symptoms. This is seen in the lines:

In fact what has to be decided is whether this particular

applicant, with his particular constitutlon, was so affected. In my view the preponderance of medical evidence when based on a full understadng of the facts, fails to support such a connection. Certamly, there 1s nothing in

the evidence to support the cigarette smoke sensitivity

connection nth grit blasting

TEE EVIDENCE ON A POSSIBLE SECOND INJURY AND INCAPACITY TEEREAFTER

The evidence given by the appellant as to his incapacity can be summarised in this way:

(1	When he stopped work after the first period, he noticed that his symptoms gradually receded, but that he had developed a mayor sensitisation to cigarette smoke and dust.
(ii)	Be noticed the symptoms returning during the second period in the form of an irritation of the throat, a watering of the eyes and a general malaise.
(iii)	The symptoms receded once again following his cessation of work
after the second period, but the sensitisation was still present.

The Tribunal heard expert medical evidence on the condition which in

brief was as follows: 

1. Dr ltendall, a consultant physician retained by the appellant's

solicitors, did not believe that the appellant was suffering from an allergy in the strict sense. He preferred the term "hypersensitivity". The Tribunal found, however, that Dr Kendall made some factual assumptions not supported by evidence and did not know some other relevant facts proved by evidence. His evidence was therefore

significantly discounted.

2. Dr Seymour, consulted by the delegate of the Commissioner for Employees' Compensation (the delegate), eventually preferred the term "irritation" to "hypersensitivity". He disavowed allergy and suggested a variety of possible causzs of the appellant's condition not related to his work, such as hormonal or emotional causes, the inhalation of

irritating vapours or dust, and others. He added that the appellant's

deviated septum, a result of an earlier inlury unconnected with employment, could also be a cause of most of the appellant's throat and nose symptoms. Dr Seymour did not think that the second period had caused anything other than temporary irritation. Permanent change would have required much longer exposure.

3. Dr Lee, called by the respondent, believed it impossible for the appellant to have become sensitised over such a short period. His view was influenced by the absence of objective tests and the dependence on a subjective history from the appellant which he generally doubted. Be described the appellant's condition as a "non-specific irritability" which would have disappeared when the cause of irritation was removed. Dr Lee believed it possible that the sources of irritation could be found in polluted streets and in the general atmosphere of a clty like

Sydney.

4. Dr Scoppa, an ear nose and throat surgeon qualified by the appellant's solicitors, diagnosed a typical pattern of vasomotor rhinitis, also called a non-specific irritation. There was no allergy.

5. The appellant's general practitioner, Dr Vilo, supported the claims of aggravation, incapacity and causation, largely accepting the appellant's history and the fact that his symptoms recurred during the second period while he was attending the place of work.

As to Dr Vilo's evidence, the Tribunal found:

18. Dr Vilo may have had nustaken mews ahut the

meaning of the phrase "incapacity for work" applicant to be unflt for work over a perlod of 10 months, and notwithstanding the fact that he has glven smlar certlflcates since 25 June 1986 to enable the applicant to collect appropriate soclal securlty benefits, he agreed that Mr Gallagher is not unfit for work in a general sense In fact he gave evidence that he had advlsed the applicant to try any type of employment to see how he coped. He also agreed that the applicant was qulte n o m l by 7 January 1988 when he last saw hun It is difficult, in the light of that evidence, to understand why certlflcates are (presmably) still being issued for slckness benefit purposes In hls opmlon, he sald, allerglc rhlnitls and vasmtor rhinitis are the same thlng and both are the sam as hypersensitlvity He also added that the condition, however described, leads to allergy In n e w of the evidence of qualified specialists on both sides of the record, I must reject thls evldence The balance of the medical evldence appears to pant towards a non-speclfic irritation at most and a subsequent manifestation of sensitivity to cigarette smoke The latter may be continuing. The evldence that the former is permanent is quite unsatisfactory.

TEE EVIDENCE LINKING INCAPACITY WITH FIRST PERIOD

On the issue of the possible relationship between the injury in the first period and the incapacity whlch followed the second, the medical

evidence in surmnary was: 

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1. Dr Kendall

Report (17 November 1986) (after outlining hlstory of original exposure, injury and incapacity)

This m, with a clear farmly and past medcal history, developed upper respiratory tract synptoms compatible with and suggestive of an allerglc response He was seen by a colleague in the industrlalmediclne fleld and he as well as the allergist to whom the patient was referred attributed his reaction to work exposure

. . . .

.. if there was docwnted signlfzcant adverse response to

inhalants at work, then I would accept such a nexus .

The fact that the patient's condition fluctuated par1 passu with exposure to and mthdrawal from the xork environment is highly suggestive. Unf?rtunately, as is often the case, hls respiratory mucosa seems to have become sensltlsed in a more non-specific way so that he now reacts even when he is away f r m the origlnal exposure and partlclllarly when exposed to smoking. It is an empirical fact chat thls sometimes happens

. . Needless to say, in the present econormc clmte, it

m y be difficult for h m to flnd a :ob to replace the one

which he has lost because of his exposure to dust and fumes

at work.

Evidence

Dr Kendall's opinion was that during the flrst perlod of employment, the appellant developed a non-specific hypersensitivity to dust from grinders, various metals and fibreglass. His subsequent complaints about adverse effects of cigarette smoke and dust suggested to Dr Kendall that the appellant's mucous membrane had become sensltlsed to irritants which were not the original cause of the hypersensitivity. Dr Kendall was asked:

Doctor, thls man's sensitivity, havlng persisted since 1985 would you consider it mre llkely to be a temporary or a

pnnanent problem?-Well, when I saw h ~ m in November 1986

assrming that the positlon has not altered very much

think it is likely to be chronlc ana likely to be

reactivated on any further exposure
And that would be on the balance of probablllties?---Yes.

In re-examination Dr Kendall gave this evidence:

Doctor, what do you say is the cause of thls man's atmsph!xe in which he had to work

sensitivity?--I think it is exposure to substances in his
environment whilst at work. I thlnk I have put these on
page 2
That is the work as a cleaner you are referring to'---Yes.

. . .

Doctor, just how long an exposure does one need to start to feel those symptoms?--ace you nave developed the sensitivity

In this appllcant3---Sometmes lust a few nunutes. Sometimes it is longer There 1s not necessarily a llnear relationship, you how, you cannot graph it in a llnear fashion.

2 .   Dr Seymour

First Report (11 October 1985)

Patient stated that he comnenced employment as a cleaner at Garden Island m the workshops on the 17th July, 1985 Soon after cmncing work he stated that he began to suffer from continuous sore throats and eplsodes of nasal irritation and sneezing. These occur only whllst he is actively working and either disappear or b e c m slgnlflcantly relieved during periods of absence from work (slck leave and during weekends). He stated that there are approximately thirty people working in the same environment as hmelf but none appear to have had a similar problem

He gave no history of any prevlous upper respiratory tract problems or allergy

Dr Seymour's opinion, given in response to specific questions from the delegate, was that the appellant had vasomotor changes in his nose, that he suffered from an irritation from the Inhalation of particles in his working envlronment. and that this was a direct result of and solely

caused by 'his employment at Garden Island as a cleaner. The opinion 'S ,.

included the "words :

. . . . . I think it is reasonable to attribute the dust in his working environment to be the cause of hls symgtoms.

Be added:

Regadng further management, I advise transferring Mr Gallagher to another branch of Garden Island, possibly clerical, where he would not be exposed continuously to

irritating dust, particularly as hls present occupation is

that of a cleaner in which he would be probably exposed to dust inhalation greater than any of the other workers in the

area by the nature of his work

Second Report (25 March 1986)

Again Dr Seymour's views were transmitted in response to a letter from

the delegate. That letter (appeal book p 8 0 ) Included this history:

Mr Gallagher has not resumed duty s;r.ce hls inltlal absence on 21 August 1985. Alternative dutles of a clerlcal nature have been offered to Mr Gallagher, but were refused, as he said his general practitioner, Dr Znn Vllo, did not consider him flt enough to undertake them

Although Dr Seymour does not seem to have re-examined the appellant at this time, he felt able to express the view that the appellant was then suffering from vasomotor rhin~tis not "directly related" to his employment as a cleaner in the flrst perlod but that the employment contributed to "the aggravation of a pre-existing condition". This pre- existing condition was not identified, but the aggravation was said to be temporary and only present whilst the appellant was working in an

excessively dusty environment. The aggravation would cease, or not be present, if and when the appellant was not exposed to excessive dust such as those encountered by a cleaner. He was fit for clerical work not involving exposure to excessive levels of dust.

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Third Report '"(18 August 1986 )

This followed a re-examination of the appellant and a letter from the delegate of 11 July 1986. Both the letter and the doctor's report which followed it focus on the second period of employment only and Dr Seymour says nothing relevant to the first perlod except perhaps the conclusion that the appellant in the second period suffered a minor temporary aggravation. Of what is not stated, especially whether it was of a

pre-existing condition or the condition diagnosed in the first report

Evidence

Dr Seymour said that although he accepted the appellant's orlginal claims of disability, he was (appeal book p 174):

not prepared to accept that any disability relatlng to this incident as lnltially described should contlnue on for such a long perlod of tune

Dr Seymour could not remember whether the 1986 history was that the appellant had had continuing symptoms since 1985 and that the appellant had thought himself fit for work in other than a dusty and smoky environment. Dr Seymour presumed but could not remember whether he concluded that the effect of the original exposure caused and left a sensitivity to smoke and dust. The doctor's use of the term "aggravation" to describe what had occurred during the second perlod was explained in this way (appeal book pp 178-9):

MR PEARCE: And doctor, the aggravation you man is the physical symptoms, the cor,gestion and the sore throat and Q@$e sods of thmgs7---I mean the man's symptoms %,

MR hcMMON: You are not referrlng to the underlying pathology? You are referrlng to mnlfestatlons and symptoms?---Well, I am referrlng to both really. Put it this way; if you are going to get pement changes from inhaling lrrltating particles in the atmosphere, it has got to be present for a prolonged perlod of tune, like months

Unless it is a gross thlng like - I mean people that get m k e inhalation in flres - they walk Into this m k e fllled room and they inhale the m k e , they get lrritatlon as well

But even a gross lrrltatlon llke that, on a temporary basls, would only last for a short perlod of time afterwards and the nasal mucosa would recover satlsfactorlly

Doctor, you are talklng about physlologlcal changes Is that right'---Yes

And once the physiological changes have gone, the underlying

sensitivity remains3---I am not prepared to agree wlth you
on that.

?-R PEARCE: Doctor, when you talk about an aggravation you are talking about the aggramtion - the symptoms of reactlon to the ~rritabll~ty?---Yes.

And once they go the sensitlvlty rerralns3---Not zecessanly

I will not agree wlth that elt'ner

You dld not thlnk he was able to go back to hls old job as a cleaner, working near the grinders'---Well, I thought ln n e w of his hlstory that it would be wlse not to put h m there; not necessarily that he was sensit~ve - that ~t m y not be knse * Because even if the sensitivity had have gone, completely gone, by re-exposing hun to that environment again, you m y trlgger the thing off agaln So it may not necessarily mean that he stlll is hypersens~tive

* In the transcript this word 1s "why", but I think it must be an error
for "wise"

The word "irritation" was later preferred to or substituted for "aggravation" and was explained as "nasal irritation, aggravation of the

nasal mucosa." The cross examination concluded (appeal book pp 184-5):

Doctor, would it be conslstent w~th a Tan who says he has a sensitivrty to dust and to smoke to suffer these symptom when no one else &d, if k.e was exposed to a m11 amount of

dust'---The answer to that 2s yes

Indeed, doctor, if he was the only one who noticed the dust

and complained about lt, that would also be conslstent with

q $ensitive nose to dust a ~ d mke7---Yes.

I.

bet&, if indeed the man corqlalned of those thlngs when no one else complained, you would have to consider hun to be a more sensitive lndlvldual than the average person?---Well,

m an unquallfled sort of way wlthout taklng any other

factors into consideration, jcst based on what you have sald, in speciflc tunnel vslon bounds, the answer to that is yes.

There was no relevant re-examination to qualify or explaln these answers. It is a matter for the Tribunal to assess what weight should be given to these in many ways unsatisfactory and contradictory pieces

of evidence and reports. They seem to provide at least some evldence

to support a causal nexus between the condition contracted in the first period and the incapacity now claimed. It is for the Tribunal to determine whether that evidence is persuasive.

3. Dr Scoppa

Report ( 3 June 1987)

After a detailed history of the two periods of employment, thls doctor expressed this opinion:

Thls patient complains of symptoms of chronlc lrrltatlve rhinitls. He has developed a sensitlvlty to the upper respiratory tract mucosa and any form of irrltatlon in the air from the point of vlew of particulate matter or change

m temperature or hurmdlty tends to cause nasal congestion,

sneezing, post nasal drip and throat irritation. This sensitivity of the upper respiratory tract mucosa is likely to persist on a pemnent basis. It 1s reasonable to assme In my opinion that this sensltisation of his mucosa has been caused by the two perlods of exposure to Irritants durlng July of 1985 and June of 1986 whlch he describes when he was employed by the Department of Defence at Garden Island

Evidence

Dr Scoppa said that vasomotor rhinitis or nasal sensitivity was a very common cox@.&tion. It was sometimes brought on simply by environmental ' '1.'

pollution, shetimes by nasal trauma and surgery, sometimes by hormonal imbalances, and sometimes by exposure to irritants. Be said that once the condition develops, any further exposure to any sort of Irritant tended to re-activate the symptoms.

Be explained that some people have a generic predisposition to such conditions which makes adverse reaction to outside stimulants more likely or more severe than for other people identically exposed. A

typical irritation will be cigarette smoke. Dr Scoppa's view was that the appellant's condition originated with or was activated by the exposures to which he was subjected in his first period of employment. He agreed that this view was to a great extent dependant on the facts as related by the appellant.

4 .   Dr Vilo

His evidence was that the first period of employment caused a permanent condition of sensitisation to other irritants including cigarette smoke.

5 . Dr Lee

This doctor did not believe that there was any incapacity to relate to any injury.

THE APPELLANT'S SUBMISSIONS

1. Subsistence of first injury

The appellant argued that upon a fair analysis of paragraph 18 of its

determinati-, (above), the Tribunal failed to entertain the possibility

that his Incapacity subsequent to the second period was due, not to

aggravation from the grit blasting operation, but to a continuation of the injury sustained in the first period. The appellant submitted that the Tribunal, having found that "the mere fact a disease becomes apparent at work does not make it compensable", should then have embarked on a further enquiry to determine whether or not any consequence of the first injury was continuing. The appellant submits that the findings of the Tribunal make it clear that the initial injury

was not considered as the cause of the incapacity during and after the second period. This, the appellant submitted, is an error of law and the matter should be referred back to the Tribunal

There is no doubt that the argument that the incapacity now claimed was a continuation or result of the first injury was before the Tribunal. In opening the case, counsel for the appellant said this in an exchange with the Tribunal (appeal book p 105):

MR PEARCE: The appllcant's case is s ~ v l y that - I am

sorry, the case is an appllcatlon to renew a declsion of the comnissioner - of a delegate of the comssioner for the employee's corpensatlon whlch rejected the appllcant's claim for compensation on the basls that he had not suffered

an inlury wlthln the meanlng of the Act

MR McMAHON: The clam we are talklng about is not the

earlier clam, is it? It 1s the clam of June 1986.

MR PEARCE: No, in fact we are talklng about both claims, sir.

MR McMAHON: Are we? All rlght

MR PEARCE: The clam relatlng to - the applicant's endence is that following hls flrst perlod of employment in 1985 he became sensitized to dust and smoke and then follomng that he was offered llght work on 18 July 1986, and agaln the applicant's case 1s that the work was not suitable; he was put in a dusty envlrormnt and that further aggravated his sensitization.

MRMcMAHON: But he was cald conpensation in respect of a

m o d from 85 to 86

%*.'

kR Yes, but the appllcant's case is that the

incapacity flowlng from the flrst Incldent has not ceased; it continues and is further aggravated by the second incident.

MR McMAHON: This is not an application to renew the earlier deterrmnatlon; that is not in issue.

MR PEARCE: No

MR K3WiON: The only dete-nlnatlon in Issue is the one

relating to the absence from June 86 onwards

MR PEARCE: Yes, that 1s so, but it relles on the in]ury

for the period

MR M W O N : But you will have some hlstory leadlng up to

that.

MR PEARCE: Yes

In paragraph 6 of the determination the Tribunal stated:

Thls is not an application to renew the earller deternunation of entltlernent The applicant's case is that the incapacity flowlng from the flrst Incldent had not ceased, that it continued and that it was aggravated by the second period of employment.

In relation to the cigarette smoke, evidence was given that the appellant, following exposure during the second period, came to suffer an aversion to cigarette smoke which he had not previously experienced. The appellant's argument was that this reaction was a cross- sensitisation related to the earlier triggering episodes. This was rejected by the Tribunal in paragraph 9 of its determination:

There was no evldence that the applicant was exposed to or affected by cigarette smoke in the flrst period of employment It is not suggested however that any such expsure to cigarette smoke from other workers in the second period of employment for such a short tlme produced what would seem to be a present extreme reaction. Although he says his symptoms are continuing, he is not on medication and has not sought treatment for them

The appellant urged before me that this conclusion amounts to an error

of law. 1,dannot see that this is so, but it still leaves open the issue ', ,.

as to whether the condition of or causing aversion to cigarette smoke may produce an incapacity for work resulting from the injury in the first period of employment.

2. Finding of no second injury not supported by evidence

The appellant gave other examples of evidence which the Tribunal failed to take into account in support of an argument that not only was the

initial injury not considered, there was also no basis for the flndings made in relation to the second period. These were the evidence of the applicant himself (appeal book pp 112, 141 and 144) and the following passage from the evidence of Dr. Kendall (appeal book p 150):

I want you to assume that following h ~ m	ceaslng that sort of
work as a cleaner he then colrplalned of clgarette	and
of dust havlng an effect upon hlm?	Yes

What would that suggest to you7 . It suggests that he had developed a non-speclflc hypersensltlvlty reactlon whlch 1s a well-known phenomenon, so that you do not have to be allergic to, say, wheat pollen, if that was the thlng that Irritated you, or hydrocarbon fumes, but your mucous membrane has become sensltlzed so that it reacts adversely to irritants whlch were not the orlglnal cause of the hypersensitlvlty

Doctor, would it be consistent following on from that if he ccanplained of clgarette smoke even though he was not

initially exposed to clgarette smoke as one of the thlngs

that caused problems'---Yes, that is a very c o m n story, that these people become, not always but often become, "allergic" to cigarette smoke

Doctor, a man who is sensitised in the way you are saylng, would you place any restrlctlons on his ablllty to do work'- --I think the restrictions, except if it be a very late stage when he might have developed chronlc changes whlch 1s not the case here, I mean respiratory changes like emphysem and so on, would be by way of employment restriction He could not or should (not) work in an environment where he 1s exposed to fumes and dust, 1nclcd:dlng clgarette smoke

Similarly it was argued that the following evidence of Dr Seymour

(appeal boek pp 167, 168 and 180) was not taken into account:

' S.

167     Doctor, would those sort of symptoms produce a sensitisation in the nose which would not enable someone with those synptorns to go near clgarette smoke?---I do not ur.derstand the dlrectlon of your questioning. Here you have a patlent who has vasomotor changes in hls nose; would he be w r e sensitive than the normal individual' The answer 1s yes to thlngs llke smoke and dust. Is that what you mean7

Yes, it was, thank you, doctor Doctor, a s s m this man worked for a perlod of 4 weeks in 1985 m an office in whlch he was employed as a cleaner and m which he was exposed to some metalllc substances; some metallic dust That he was then on

ccmpensation or absent for a period of 11 months; he S then re-employed in a position in an office situated 73 yards away from a dust-producing zone; a grit blasting area He worked in that positlon for approximately 7 days. In your opinion, doctor, would those twc periods of emplopnt be capable of producing a physical change in this man's nose'---If

you mean by that question permanent physical change;
is that the drive of your q-~estion?

168     Yes, I did?---The answer t:, that is no, I do not think they could

180     MR PEARCE: All right But you placed lmts on

his employment, that he should work in a clean
office environment?---That is right.

You dld not think that he was a suitable person to go back to work in a dusty envlronment7---No, well

that is - - -

And again he is not a suitable person to work in an enviromnt mth a lot of smokers?---That would be right

On the basis of the applicable legal principles to which I will come later, I am unable to see that this argument raises a question of law.

It was clearly open to the Tribunal to accept or reject the evldence

that there was a second injury; and there was ample evidence that whatever happened then had no or minimal incapacitating effects. The Tribunal's rejection of the second injury cannot be assailed here.

3. First injury not disease

The appellant next submitted that if the Tribunal did find that the	effects of the first injury were not ongoing, then the injury was
improperly characterised as a disease and should have been characterised as the injury of being sensitized. It was submitted that in those circumstances the Tribunal erred in considering whether or not the employment was a contributing factor. The appellant referred in this regard to Commonwealth of Australia v Whillock [l9831 48 ALR 433 where Smlthers J statad at 438:

In Hum Steel Ltd v Peart [l9471 75 CIR 242 at 256, Dixon J (as he was then) sald:" it has never been doubted that disease m y amount to an lnjury Thus in Innes (or Grant) v Kynoch [l9191 AC 765 at 797 Lord Wrenbury sald 'The m n suffered personal injury, for he contracted a dlsease and it resulted in his death' He had said the same in the Court of Appeal In Martln v Manchester Corporation (1912) 106 LT 741 at 742: 'Contraction of a dlsease 1s an injury; that

1njury m y or m y not be by accldent ' Agaln, In Walker v

Bairds and Dalmelllngton Ltd [l9351 153 LT 322 at 326, Lord Tomlin, speaklng of a chlll to a worhn lnvolvlng bronchopneumonla, sald: The dlsease whlch was the lnjury was ln these circumstances the result of accldent.'" And, of course, the definltlon of "injury" in s 5 of the Act reflects these expressions. It proceeds on the basis that hsease m y , in the ord~nary rneanlng of the word, be an injury, but for the purposes of definltlon, it excludes from the meaning of lnjury an inlury whlch 1s a dlsease

Accordingly, if the thrombus be a disease it 1s excluded from references ln the Act to "injury" unless the contrary intention appears. A contrary intention does appear in s 29, but only where the employment contributes to the contraction or aggravation of the dlsease

and at 441:

It m y be that in respect of each stage of a disease it 1s possible to say that from it, subsequent stages thereof, and ultimately death itself, resulted. In such cases there 1s no more loglc in choosing any one or any comblnatlon of those sequelae in preference to the atheroma Itself And the respondent cannot show that death was a result of lnjury excluding the atherom. If death was the result of all that occurred lncludmg the atherom ~t is difficult to flnd a reason for excluding the atherom as an event from whlch death resulted. All thls suggests that the attempt to llnk the death exclusively with any one of the events or cmbination of events following the atheroma, is unsound

&d. it is in this connection that the foregoing judiclal

c-ts are significant They indicate that an event which is but a step in the progress of a disease 1s a asease. It is also an lnjury in the ordlnary sense of that word, but if it 1s an lnjury which is a dlsease then it is only an injury for the purposes of S 27(1) of the Act if the employment contributed to it. Of course under the present definition of disease, a work-contributed aggravation or acceleration of a disease is an injury within the meaning of s 27(1). This conclusion would seem to be supported by the declsion ln Comnwealth v Butler [l9581 102 CIR 465 at 479

As I understand the argument, this seems to me to raise a clear issue of

fact. In any event, if the Tribunal found that the first injury had no

continuing features or effects, the question whether it was a disease or not and whether the employment was a contributing factor, are irrelevant to the present appeal which concerns whether there was shown to be any employment cause for the claimed incapacity for work after the second period of employment.

4. Second injury as aggravation

The appellant next submits that the Tribunal misdirected itself as to the meaning of aggravation, in that it was sufficient to establish that the symptomatology increased as a result of the work so as to constitute the second injury an injury by way of aggravation. It is not necessary

that there be a change in the underlying condition. The appellant's

submission was that the Tribunal only addressed the underlying condition and not inlury in the sense of an aggravation of the symptoms. The appellant submitted that the Tribunal should have firstly looked at whether he suffered an aggravation under the statutory definition and then having established or rejected that, it should have examined the consequences of what occurred.

As to cigqrette smoke, the appellant submitted that the Tribunal only	had regardz@ the logical connection between the grit blasting and the	reaction to the cigarette smoke, and falled to give attention to the
appellant's evidence of having suffered a reaction to smoke, dust and fumes. The Tribunal should have had regard to whether or not the increase in symptoms at the time was caused by work, not whether the cigarette smoke aversion itself was caused by work.
The only possible question of law here is whether the Tribunal wrongly applied the law as to aggravation.
Aggravation
On the meanlng of aggravat~on, Windeyer J in Federal Broom CO Pty Ltd v
Semlitch 119641 110 CLR 626 at 636 stated:

The question whether there has been an aggravatlon, acceleration, exacerbation or deterloratlon of a mental disorder is, I think, essentially one of fact. It 1s a question on which the opinion of psychiatrists may obviously be helpful But the answer depends upon whether for the sufferer the consequences of hls affliction have beccane mre serious The crlterla of that are comparisons based upon the nature, apparent lntenslty and persistence of Irrational beliefs, the degrees of Insight and of withdrawal from reallty that the sufferer has, the degree of hls dlvergence from what may seem to be n o m l behaviour and the extent of his capacity to participate in and adjust hmelf to the

n o m l requirements of life as a & r of the comnunlty

It 1s by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think

be answered, whoever has to answer it.

Despite the appellant's additional reliance on the judgment of Moffitt J in the decision of the Full Court of the Supreme Court of New South Wales in the same case (C19641 NSWR 511). there seems to me to be a

distinction between the two formulations. Moffitt J said at 520:

There is, none the less, a deterloratlon or an aggravatlon of a disease even although smlar symptoms of the same

sdverity had been produced by other causes In the past, and
ef+'.although after the symptoms subside it can be said the

chroNc condition of the dlsease is as it was before, and even although it can be said the qualitative condition of the disease has remined 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 readlng Into the words

"aggravation", "exacerbation" or "deterioration" of a disease, limitations which exclude incapaclties whlch are not associated wlth some type of Irreversible progressive disease.

The appellant said that the resurgence of symptoms was supported by Dr.
Seymour at page 178 of the appeal book:

What do you mean by "aggravatlon" You say that in your oplnion Mr Gallagher would have suffered aggravatlon to a mi-l degree? .Well, the effects of this exposure would have been - he would have suffered aggravatlon, yes Llke lf you walk into a m k e fllled room; you suffer nasal lrrltatlon You go out of the room lnto the clear alr and lt may perslst for half an hour or so and then you forget about it - ~f you have no vested Interest in lt continuing

See also the earlier quoted evidence of Dr Seymour from p.179. At page

184 of the appeal book, the doctor gave thls evidence:

MR M W O N : Do you agree or do you not agree wlth the

question? Mr Pearce is saylng that the only conclusion

available is that the work must have caused the irritation

Do you agree or disagree or do you say there m y have been

other things?---Well, you would have to say - on the basis .
of putting it m that context mthout any qualiflcatlon,

yes.

A flat affirmative answer to what amounts to three alternative questions

always poses problems as to what was agreed to. The absence of any follow up questions on what might be the "other things" and the rest of the context leads me to presume from this answer that the Doctor's

evidence is that the work caused the irritation. Be went on:

MR PEARCE: Doctor, when you exarmned him in August 1986, you found him consistent wlth havlng suffered some sort of ~rritatlon?-Yes. I was qurte obvious there - "but of

minhal degree. "

*or, you descrlbe it as an aggravatlon Can I ask you, ah.aggravation of what?---Maybe that m y not have been the

right word. Irrltatlon - lrrltatlon I would rather have put there than aggravatlon That is what I would have meant by that - nasal irrltatlon, aggravation of the nasal mcosa.

Doctor, would it be consistent wlth a man who says he has a sensitivity to dust and to m k e to suffer these symptoms when no one else did, if he was exposed to a small amount of

dust?--The answer to that is yes

So far as Dr Lee is concerned, the appellant argues that his evidence should be discounted because Dr Lee obviously did not believe the applicant, whereas there is no finding by the Tribunal that the

applicant is anything but an honest witness.

As I read it, all this evidence is not speaking of an aggravation by way of pathological change or even symptomatic deterioration, or where, in the words of Windeyer J, " the consequences of the afflictlon have become more serious", but of a temporary resurgence of symptoms caused by something at work. This is not an inlury by way of aggravation. Even if it were, whether it occurred is basically a question of fact. The Tribunal made all the necessary findings, and it was open on the evidence, to conclude that issue against the appellant.

5 .   Incapacity wrongly interpreted

The appellant's next submission is that the Tribunal misdirected Itself as to the meaning of "incapacity" for the purposes of section 29 of the

Act. The Tribunal made the following comments as to incapacity:

22 All the doctors, including his own general

practitioner, agree that the applicant 1s capable of work in the general sense. The only llrmtatlon that any of them referred to was the necessity for a clean environment It

has to be accepted these days, however, that averslon to

cigarette smoke is widespread in the comity and that, as a consequence, many workplaces (lncluhng those throughout the whole of the Cmnwealth Publlc Service) are mke-	*. A minim1 incapacity is not sufficient to	InCajkcitate a person for work. As hls c m specialist, Dr
S C O ~ , put it - "if people with vasomtor rhinitis were incapable of employment half the population would not be working". The phrase "mcapacity for work" must be explained in relation to the sort of work which a person can reasonably be expected to do Thus the required degree
of physical integrity, strength and health of a labourer
must of necessity be greater than that of a clerk. The applicant (as he pointed out to his employers and to this Tribunal) had passed his Leavlng Certlflcate and used to have a certaln fluency in French. His experience as a registered hoola~ker would indxate a high degree of numeracy His appearance, demanour and manner of glvlng evidence indicate a high degree of literacy. He easily uses words such as "malaise" or "admnlsh" He thlnks qulckly and is obviously intelligent Apart from hls irritated throat and aversion to cigarette smoke, there is no evldence
of any other condition that might incapacitate h1.m from working The evidence before me leaves no doubt that there is a wide range of occupations whlch he could reasonably pursue and which are available to h ~ m He 1s not incapacitated to any extent in carrying out suitable dutles Incapacity for work denotes a physical lncapacity for dolng
work in the labour market m which the employee bias worklng
every function of every part of the body 1s so perfectly attuned as to be in no way at varlance from an ldeal standard. If it were, who of us would be capable of work? The incapacity must stand between the worker and full abillty to do the job If one reasonably could expect a person to obtain and hold employment notmthst&ng a peripheral indisposition, then he is not incapacitated for work at all But the applicant claimed not only lncapacity, but total incapacity

The appellant asked me, and it is open, to read this passage as containing findings that the appellant is both incapacitated and not incapacitated. Perhaps the correct way to read it is that, in the Tribunal's view, he is partially, not totally, incapacitated but the partial incapacity is physical only and there are no economic consequences, although this interpretation would seem to conflict with what the Tribunal said at paragraph 21 (above). Nonetheless, it is clear that virtually everything in this passage represented findings or conclusions of fact. I shall deal with the only exception later.

Incapacity' t ~ r work

1.

"Incapacity for work" was re-examined by the High Court in Arnotts'
Snack Products Pty. Limited v Yacob [l9851 57 ALR 229 in the context of

the New South Wales Workers' Compensation Act. The joint ludgment of Mason, Wilson, Deane and Dawson JJ at 232-234 reviews two earller decisions of the Court. A substantial extract is regrettably necessary to understand and resolve the present case:

Although the expression "incapacity for work" 1s not defined by the Act, its meanlng has been examned by thls court In Williams v Metropolltan Coal CO Ltd [l9481 76 CL2 431 and

Thcanpson v Armstrong andRoyse Pty Ltd [l9501 81 C l R 585

In Wllliams a majorlty of the court (Starke, Dlxon and McTiernan JJ) rejected the notlon that lncapaclty for work, especially in S 11(1) of the Act, is lmted to Incapacity for work m the employment or m the lndustry in which the

injury arose (76 CIR at 444, per Starke J, 76 C I R at 449,

per Dixon J with whom McTlernan J agreed) %th Starke
and Dlxon JJ made the polnt that compensatlon 1s awarded for

incapaclty for work resultlng from injury, compensatlon being awarded by reference to lncapaclty whlch results in a loss of earning power.

Starke J said (76 C I A at 444): "Compensation 1s not payable injury, that IS, for lncapacity for work which results from for the lnjury but for loss of power to earn caused by the

the injury. The question is whether the lnjury has left the worker in such a posltlon that ln the open labour market his earning capacity in the future is less than it was before the injury."

And Dixon J observed (76 CLR at 449): "It is a comnplace that incapacity is not total if some other employment 1s reasonably open to the lnjured man If he 1s dsabled from his former employment, that in itself inplies scme incapacity. But s 11(1) says that in case of partial incapaclty, the weekly payment shall in no case exceed the difference between the amount of his average weekly earnlngs before the injury and the average weekly m u n t he is earnlng or able to earn in some sultable employment or business after the injury That means that his capacity

for other work is taken Into account and in such a way	that
lt may reduce the compensatlon to nothing."

Central to these statements especially that of Dixon J 1s the n e w that lncapaclty for work denotes a physlcal incapacity for doing work in the labour market in whlch the emgloyee was working or mght reasonably be expected to wqrk, though this incapaclty m y not necessarily attract c ~ n s a t i o n under s 11 ( 1 ) because lt results m no loss of

easnfhg power.

In Thompson, supra, where the concept of "lncapaclty for work" in the context of s 9 of the Act - the prlnc~pal provision providing for payment of weekly compensatlon - arose for consideration, the mjorlty of the court (Latham CJ, McTiernan, mllagar and IQtto JJ) decisively rejected the proposition that the recelpt post-injury of the same or higher wages than those recelved pre-injury denied the existence of partlal incapaclty for work.

That "incapacity for work" means a physical lncapaclty for actually dolng work, resultlng from inlury (or dsease) and that, subject to ss 11 and 13, compensation is awarded for that incapacity where it reduces the employee's ability to sell his labour in the open market, is brought out in the judgments of the majorlty, especially those of Latham CJ and

Fullagar J Latham C. said ( 81 CLR at 595 : "The phrase 'where total or partial incapacity for work results from the

injury' must refer to physical injury resulting in physical	incapacity for actually doing work. That incapacity is
relevant where it produces an incapacity to earn his living as he did before the inlury (per Evershed LT in Ruocco v
Surrey County Council 119471 177 LT 613 at 616) in a market "
for his labour which [as reasonably accessible to hun..
Fullagar J said (81 at 613): "A man is totally incapacitated for work when he is, by reason of his inlury, physically unable to work. The words in their natural and prmry sense mean that When their maning has been expounded by reference to inability to earn wages, the purpose has been to make the maning more specific, and the result has been to extend rather than restrict the meaning "
The same point was made, though less directly, by Xltto J who remarked (81 CLR at 621): "Loss of wages is in m s t cases a result of, but it does not itself constitute, the relevant economic fact That fact is the inability, or the reduced ability, by reason of a physical deficiency, to sell work for wages " See also McTlernan J (81 CIR at 602-3)
The judgments in Thompson were discussed by Jacobs J (with whom Gibbs, Stephen and lLlckln JJ agreed) in Comnwealth v Muratore L19781 22 ATR 176 at 179-80; 141 CIR 296 at 300-1, which related to the Compensation (Cmnwealth Govemnt mloyees) Act1971 (Cth) h s Honour said (AIRat179; CLR at 300): "It has always been recognised that "incapacity for work", those words being taken to refer to physical incapacity, is only relevant where it produces an econormc incapacity." He was speaking, as the passage at the foot of p 301 makes plain, of cornpensable incapacity for work, so that the employee's incapacity is: " measured by the extent that the amount per week that he is able to earn in some suitable employment or business is less than his average weekly earnings before his inpry "
It follows that the concept of partlal incapacity for work is that of reduced physical capacity, by reason of physical
dt;rability, for actually doing work in the labour market Wch the employee was working or mlght reasonably be in e d e d to work. Under S 11(1) an applicant's
entitlement to conpensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express llrnitation which the sub-section places on the arrount of compensation payable On the other hand, the words "partial incapacity for wod" in sub-S (2) rmst be given their natural and established meaning, there being no limitation or other restricting context which confines the employer's obligation to offer suitable employment to an injured employee who is suffering actual economic loss.
As Fullagar J indicated in Thompson, the references in the judgments to an incapacity for work which reduces the employee's ability to sell work for wages on the open market have had as their purpose the rejection of the erroneous view that a worker is not partlally lncapacltated if he can do all the things that he could do before the inlury. So, in Ball v Willlam Hunt & Sons Ltd [l9121 AC 496, the worker, who had been bllnd in the left eye, sustalned an inlury requiring rmval of the eye Although he was able to do all that he had done before the Injury, employers were unmlllng to employ hun. It was held that he was partlally incapacitated by injury It 1s illeglnutate therefore to use the references to reduced ablllty to sell work for wages as an argument for dmnlshlng the content of mcapaclty for work.
The concept 1s well illustrated by the example glven by Mahoney JA of the violinist and the barrister who lose a flnger - the vlollnlst suffers a relevant lncapaclty for work, the barrister does not This example, instructive though it is for the purposes of this case, is not a conprehensive lllustration The employee m y as a result of injury sustain an Incapacity for a particular class of work, work m which he was not engaged at the time he sustalned injury, being work m whlch he mght reasonably be expected to engage in the future The problems, especially in the operation of s 11(2), created by lncapaclty for work of thls kind, inherent in the conception of incapacity recognised by Dixon J in Williams, supra, (76 CIR at 4 4 9 ) , need not be explored here, where the lncapacity 1s for part of the work actually undertaken by the respondent inediately before his injury.
The consequences produced by thls interpretation of s 11 are far-reaching They are demonstrated by the lllustration provided by Mahoney JA of the employer who employs only clerks who can climb. A clerk 1s injured and can no longer c1ln-b. The employer, having no employment for a non- climbing clerk, cannot hlmself offer sultable employment
Yet the worker 1s entltled to compensation as for total incapacity under s 11(2) notwlthstanding his ablllty to undertake clerical work whlch lnvolves no cllmblng, that such work 1s available and that he neglected unreasonably to avail hmelf of it, unless sulta~le employment is arranged in accordance with the sub-sectlon. However, the
interpretation which we favour glves effect to the natural dsd sense of the words and to the maning whlch has
beem.consistently glven to them in thls court and in recent decisions in the Court of Appeal
In the present case because the Comsslon found that the respondent's injury disabled h ~ m from performing part of his pre-injury work, it followed that he was partially incapacitated for work - he was unable to undertake clerlcal duties which involved clinhlng, llfting and bending. His incapacity for work, due to inlury, was clearly relevant to his pre-mjury employment and to hls abllity to sell hls labour on the open market Potential employers, like the appellant, who have jobs for clerks who are requlred to clink, fit and bend, would not employ hun

Because of its conclusion that there was no second injury, the

Tribunal's observations on incapacity could not be described as findings, still less a determination on the matter. Hence the only way I can consider the matter is on the basis that if a finding was available that the appellant's present claimed incapacity resulted from exposure in the first period, the reasoning displayed in its observations on the sublect in paragraph 22 (above) showed that the Tribunal would have erred in law in determining either that there was no physical incapacity, or that if there was, there were no economic consequences.

It is clear that the Tribunal dismissed the possibility that the appellant was physically incapable of doing any work at all. In this case, that was or would have been a decision of fact alone. It is not so certain whether the Tribunal concluded, and was entitled to conclude on the evidence and the views of the High Court in Yacob, that he was not suffering from any reduced physical capacity for work having regard to the labour market in which he had been working or might reasonably be expected to work. As Yacob shows, this is a matter to be declded separately to the financial quantification of any loss consequent upon a reduction in work capacity.

Labour ma&e~-~ disadvantage

The appellant says that he is unable to work in anything but a clean environment. Perhaps a better formulation might be that he requires an environment cleaner than at Garden Island. There is almost unanimous medical support for such a conclusion. It was submitted that thls is sufficient evidence to establish that the appellant was disadvantaged in the labour market, that there should therefore have been a finding of incapacity, and that the incapacity should then have been quantified.

The appellant claims that the specific error of the Tribunal in this context was in its findlng that the appellant was not incapacitated at all, and that the reasoning went to the quantification not the existence of incapacity. Further, the appellant argues that a flnding of no incapacity (rather than partial Incapacity) affects the appellant's

rights as it precludes reliance on sectlon 29.

Ordinarily, a findlng of no incapacity, or more correctly that the appellant had falled to prove that he was in any way incapacltated. would be a question of fact. If, however, the conclusion was reached by posing the wrong legal test as requlred by Yacob, it becomes or can become a question of law.

6. Age and reasonable steps to find work

The final submission of the appellant related to the requirement in

section 26(l)(a) that the employee take all reasonable steps to find

employment. The appellant submitted that the Tribunal made an error of

law in that it found that age was not a relevant consideration in

determining reasonableness of efforts to find employment, thereby

setting a higher standard of reasonableness than was appropriate. The

Tribunal & % , i n this connection:  '..

His counsel submitted however, that age was relevant in that it had an effect on what steps were reasonable to obtain employment. In effect, he submitted that it was reasonable for a younger person to make more efforts than an older person. This 1s not a submission that I can accept. It is true that ss(5) requires regard to be had to the state of the laho-rket at the relevant time in detennining whether all reasonable steps have been taken to obtain suitable employment. No evldence was in fact offered on the state of the market. Whilst I m11 make some general assmptions, I cannot accept that a highly capable rcan like the applicant could not contemplate employment mrely because he was aged 57.

I have no doubt that age is or may in particular cases be a relevant

factor in determinlng whether that part of the Yacob test is met which requires an assessment of the appellant's capacity for doing work he might reasonably be expected to undertake. It may also be a factor in the factual determination as to whether he took reasonable steps to find work. Again assuming that the Tribunal erred in law in faillng to consider whether the appellant's claimed removal of or reduction in hls work capacity flowed from the injury in the first period, it would also be an error of law to exclude age from a consideration of these factual questions arising on the issue of incapacity.

If as here the Tribunal was entitled to consider the appellant's

literacy and numeracy skills, his educational and linguistic achievements, and his intellectual and mental capacities in its determination of his employability (see paragraph 22 above), it must surely consider factors which point in the other direction. Age is certainly one.

TEE RESPONDENT'S SUBMISSIONS

The prima& ,W strongest submission of the respondent was of course	that the issues raised by the appellant raise questions of fact, not
law, and are thus incapable of further review by this Court.
The respondent said that the Tribunal's first task was to consider whether there was an injury or aggravation in the course of the appellant's employment. The second step was to identify any incapacity for work as a result of that injury. The third tasX w a s to quantify
the extent of that incapacity. The Tribunal found as a matter of fact

that the appellant did not get past the first hurdle, but added that
even if he did, he was not incapacitated as a result.

In reply to the suggestion that the Tribunal failed to pose and answer the question whether the appellant was still suffering from the effects of the first period of employment or had suffered a deemed inlury in the second period, the respondent stated that sensitisation to vasomotor rhinitis applied in both periods, and submitted that the two matters were so bound up that it was really impossible to separate them. The respondent also said that the medical evidence was presented in such a way that the two periods, not just the second period, were always considered. It was submitted that the claim put to the various doctors was that there had been permanent incapacity as a result of the clalmed exposure in the first period and that it had been further aggravated in the second period. What the Tribunal found, the respondent said, was that the appellant had no strong allergy or hypersensitivlty to anything.

The respondent further argued that if the Tribunal had posed the first question as whether the appellant had suffered a compensable inlury in the first or second period of employment, and the second as whether

incapacitjfYowed from either or both, the answers would perhaps be yes v.

to both limbs of the first question, but no to either limb of the second which would be the end of the case anyway. It seems to me that this formulation is, to say the least, contentious.

Questions of law and fact

The difference between a question of law and a question of fact in this connection was referred to in the High Court decision of Waterford v

Commonwealth of Australia L19871 71 ALR 673 where Brennan J stated at

689:

The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the f~ndings made or it must have led the

AAT to omit to make a finding it was legally required to

make. There 1s no error of law simply ln making a wrong fin&ng of fact Therefore an appellant cannot supplement the record by adduclng fresh evldence merely in order to demnstrate an error of fact.

In Soulemzis v Dudley (Holdings) Pty Ltd. [l9871 10 NSWLR 247, McHugh

JA, then sitting as a member of the New South Wales Court of Appeal,

stated at 281-282:

An appeal from a decislon of the Compensation Court is

limited to questions of law In my oplnlon the fmding m the present case that the applicant was "fit for all work" after 17 January 1984 was a pure question of fact The application of a legal standard was not mnvolved. The learned judge found as a question of fact, and not as a question of mixed fact and law, that the appellant was fit for all work. I have not overlooked that inedlately before maklng that fmdng hls Honour sald that "the appellant was totally lncapacltated from 21 December 1982 to 17 January 1984". But I thmnk that it is clear from the context that his Honour was using the tenn "incapacitated" in the sense of physically unflt. In any event the appeal is concerned with hls Honour's fmding concerning fltness after 17 January 1984

Accordingly, the present case 1s concerned with a finding of fact which involves no legal standard and is not subject to amal. The issue, therefore, 1s whether the fallure to explain the basis of the cruclal finding of fact lnvolves a h& of the principle that lustice must not only be done

but bust be seen to be done. If it was, that is itself an

error of law because, as Asprey JA pointed out in Pettltt v fulfilled the function whlch the law calls upon a judicial person to exercise." However, In determining the Issue which this appeal raises, great care needs to be taken that dissatisfaction with the flmhng of fact does not mslead the Court into holding that the learned judge has failed to give his reasons for hls findlng

The question 1s not whether his Honour's fmdlng that the applicant was "fit for all work" after 17 January 1984 was correct. It 1s whether hls Honour gave reasons, however erroneous, for that flnding While it is true that his Honour did not expressly glve any reasons for the finding, his reasons for judgment show quite clearly in my oplnion

that he held that the applicant was fit for work because the CAT scan did not reveal any abnomllty It is not to the point that his Honour's flnding was erroneous or, as counsel for the applicant claimed, perverse An erroneous or perverse finding of fact raises no questlon of law and cannot be challenged by way of appeal What 1s declsive is that his Honour's ludqnent reveals the ground for, although not the detailed reasoning in support of, hls fiAng of fact. But that 1s enough in a case where no appeal lies against the finding of fact Accordmgly there was no failure to give reasons sufficient to constitute an error of law.

The respondent said that the attack by the appellant on the Tribunal's findings on the issues of injury and incapacity were questions of fact as so identified and defined. The respondent also argued that in the present case there was no suggestion that there was a contlnulng incapacity when the appellant was not exposed to the irritation-causing factors. It submitted that this is required for compensation purposes.

Waterford was subsequently applied by a Pull Court of this Court

(Davies, Sheppard and Ryan JJ) in Commonwealth Banking Corporation v

Percival 119881 82 ALR 5 4 at 60. Their Honours stated at 61-62:

We turn now to the last issue raised in the appeal, that is,

whether the Tribunal was correct in concluding that, because work pressures had enhanced Mr Perclval's hypertension whilst he kkls at work and thereby led to his retirement, and because he could not return to his work at the bank as hypertension would reactivate, Mr Percival suffered from an

hpacity for work which was ccanpensable.
,	- ,'.,

section 29(2) of the Act turns its attention to a disease as

it exists at the tlme of the alleged incapacity.

In the present case, the Tribunal found that Mr Perclval's

stress at work had enhanced his hypertension and straln whilst he was at work. It mde no such flnding with respect to his condition after hls retirement and it is to be inferred fran the whole of the Tribunal's reasoning that the Tribunal was not satisfied that there was any relevant continuing aggravation of Mr Perclval's condition after his retirexrent. Such a fmding was essential if the Trlbunal was to hold that M r Percival had a cornpensable incapacity for work.

As I understand what their Honours were saying, I do not thlnk that that

situation is analogous to this case. A person may suffer from many conditions which are not incapacitating for anything to be done at home or while playing golf or while doing some types of work, but which do incapacitate for the worlr required by an employer to be done. Notwithstanding periods of quiescent symptoms away from work or the work which energises or arouses the incapacitating condition, this person remains incapacitated for work, at least partially.

Deemed total incapacity

This leads to the question of deemed total incapacity. This concept is explained in Australian Telecommunications Commission v King [l9851 5 FCR 42. This case concerned section 26 of the Act which at the time provided-.

For the purposes of this Part, an employee shall be deemed to be totally incapacitated for work if his incapacity is such that he is fitted only for employment of a kind that is not c m n l y available and employment of that kind is not reasonably available to him.

Wilcox J stated the requirement for deemed total incapacity at 48:

.... a person who is not in fact totally incapacitated for

work, that is who is capable of some type of employcent, is

Q?,be deemed to be totally incapacitated for work if, upon
tHo m l e of the evidence, it appears that two conditions

are 'hltilled: that his or her incapacity is such that he or she is fitted only for employment of a kind that is not conmnly available and that employment of that kind is not reasonably available to h m or her If, at the end of the day, there is no material before the decision-mker to irdlcate that these two condltlons are fulfilled, the section will have no application to the case.

There was no finding by the Tribunal, in this case, of deemed total incapacity, obviously because it found both no injury and no incapacity calling for compensation. It is therefore not appropriate, even if I found an error of law by the Tribunal, that I consider it at all.

CONCLUSIONS

Apparently like the Tribunal, I find this case quite difficult to resolve. That an injury was sustained in the first period of employment is undoubted. The claim was admitted and compensation paid. That the appellant was further exposed to an aggravating cause for symptoms in the second period also seems undoubted, although the Tribunal's finding that this was not a compensable injury seems on the authorities to be a finding on the facts not a conclusion of law apt to be reviewed here. Thus the first question to be resolved is whether the Tribunal failed to consider the possibility that the first inlury may have been the cause of any proved incapacity during and after the second period of employment. If so, this would be an error of law. If on the other hand it did consider and resolve the question, there is nothing further to consider in this appeal.

If the evidence, on a proper reading, permitted the Tribunal to find a connection between the first injury and the incapacity now claimed, it was bound to resolve the matter one way or the other. It is possible, and I make no finding on the matter myself, that the appellant's

admitted 'blury during the first period may have rendered him	I
',.

permanently or so repeatedly susceptible to periodic recurrences and resurgence of disabling symptoms as to incapacitate him for work involving exposure to particular or various sensitising or irritating

influences. If so, it may be, and the Tribunal may then be disposed to
find, that the second period of employment was one such exposure.

I do not think that evidence that the appellant might also be adversely affected by such symptoms elsewhere than at work, for example in the presence of cigarette smoke say in a restaurant, would be relevant to, or certainly exclude, a finding of incapacity merely because of that fact. It is also not particularly to the point that other people may have such sensitivities but still work. The question is whether the evidence establishes this appellant's incapacity for work of this nature. There is evldence that the appellant was at least incapacitated for all forms of work involving such exposure. Acceptance of this evidence would lead to a finding of partial incapacity although whether it was necessarily compensable would depend on other evidence. Whether the Tribunal accepts this evidence and comes to these conclusions 1s not a matter for me.

I agree with the Tribunal that the appellant's claim of actual, as opposed to deemed, total physical and economic incapacity seems, on the evidence, excessive. However, in the event of a finding of nexus between the first injury and the current claim of incapacity, the law and the evidence constrain the tribunal of fact to consider whether having regard to the appellant's age, training, capacities and other characteristics, it may be concluded that his susceptibility to disabling symptoms renders him physically incapacitated for work elther totally or In part, as explained in Yacob. If a finding of partial

.

incapacity rga made, it would then be open for the Tribunal to draw *'.'

conclusions as to whether the appellant had taken all reasonable steps to obtain suitable employment, having regard to the state of the labour market and the other matters referred to in section 26. As the same member of the Tribunal said himself in Re Taylor and the Commonwealth [l9881 AWCCD 73-918, the concept of "reasonableness" here, whilst presumably involving an overall objective assessment, requires a consideration of the particular worker's personal attributes and characteristics, including his age and the likely types of work that

might have been open to him in 1986 and subsequently. In this context the Tribunal would be required to consider if the appellant should be deemed to be totally incapacitated.

The question is whether the evidence can support the pre-required premise. The Tribunal generally accepted the appellant's evidence and truthfulness. This makes it essentially a medical issue and I have therefore carefully reviewed the medical evidence on this question. There is very little of it. The Tribunal can only have erred in law if it failed to consider evidence, and resolve the issue thereby raised, that the claimed incapacity resulted from the injury sustained in the first period, and that this injury was such that the second period of employment merely temporarily reactivated its symptoms and disabling sequelae. Not without some doubt, I think that the Tribunal fell into this error.

Accordingly I find that the Tribunal erred in law in failing to determine whether the appellant's claimed Inability to work after the second period of employment might have been due to the injury sustained in the course of his employment by the respondent in July - August 1985.

It also was then bound, and failed, to consider whether he subsequently

suffered ' i t a ~ l or partial incapacity for work involving exposure to

particular or various sensitising or irritating agents as a result of that injury, and to take into account the appellant's age and personal characteristics in doing so. If he did, the appellant's ultimate compensability will depend. first, on the Tribunal's findings on this issue and, then if appropriate, a consideration of possible deemed total

incapacity. If there is a finding of partial incapacity only, the Tribunal would finally have to consider the relevant economic evidence to permit its quantification.

The appeal i s upheld and the case is referred back to the Trlbunal to

consider these matters according to law. The respondent will pay the

appellant's c o s t s .

I tk?: ?:,,S .-i(,d :;lc Cm\ A c,ne

2 : 7 I- ;;c$ :I; a tru? copy of the

P.~-?,J' 3 t - ~ t J113i;:r;en: kereln Gf 11,s lioccur

Counsel and solicitors for	Mr J Pearce
the appellant	instructed by Paul A Curtis and CO Sollcltors
Counsel and solicitors for	Mrs P Sharp
the respondent	instructed by the Australian Government Solicitor
Date of hearing	27 April 1989
Date of judgment	31 July 1989