Hollis-Watts and Military Rehabilitation and Compensation Commission

[2005] AATA 648

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/437

GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILLIP HOLLIS-WATTS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Murray Allen, Member

Date7 July 2005

PlacePerth

Decision

The decision of the Tribunal is that:

(a)      The reviewable decision made on 11 August 2003 is set aside.

(b)      In substitution therefor the Tribunal decides that, for the conditions of occupational asthma, allergic rhinitis and multiple chemical sensitivity, the applicant has no entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of any period up to the present date.

……(sgd M Allen)……

Member

CATCHWORDS

WORKERS COMPENSATION – claim for conditions of occupational asthma, allergic rhinitis and multiple chemical sensitivity said to be caused by exposure to colophony in defence service – exposure to colophony not in dispute – findings that applicant did not suffer from the claimed conditions during the defence service and that the conditions did not arise until at least 17 years after discharge, at which time applicant exposed again to colophony in subsequent employment – finding that exposure during defence service had not contributed to applicant contracting the conditions – findings that at time of enlistment applicant made two statements regarding health that were objectively false and that for one of those statements the applicant had no belief of it being true and that statement was, therefore, a wilful and false representation – it was not, however, a representation concerning the diseases for which the applicant was claiming compensation – finding that applicant not entitled to compensation because he had previously recovered damages for the claimed conditions – reviewable decision purported to cease liability under the Act for the future – decision set aside and decision made in substitution that applicant has no entitlement to compensation under the Act for any period of time up to the present date

Administrative Appeals Tribunal Act 1975 ss 37, 43

Commonwealth Employees Compensation Act 1930 ss 9, 10

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 16, 19, 48, 62, 67

Comcare v Luck [1999] FCA 100

Rosillo v Telstra Corporation [2003] FCA 1628

Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42

Treloar v Australian Telecommunication Commission (1990) 26 FCR 316, 97 ALR 321, 12 AAR 535

Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626

Favelle Mort Limited v Murray (1976) 133 CLR 580 at 598

Comcare v Porter (1996) 138 ALR 469

Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 2ALD1

REASONS FOR DECISION

7 July 2005 Murray Allen, Member        

1.      In these proceedings Mr Hollis-Watts (“the applicant”) seeks review of a decision made on 11 August 2003 by the respondent to affirm an earlier determination dated 23 July 2003 that the Commonwealth was no longer liable to pay compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) in respect of certain conditions. 

2. At the hearing of the matter the applicant represented himself and the respondent was represented by Mr Dubè of Counsel. Oral evidence was given by the applicant and on his behalf by his wife, Mrs Maureen Hollis-Watts, Dr Paul Gorman and Dr A W Musk. The Tribunal received into evidence the documents filed in the proceedings pursuant to s 37 of the Administrative Appeals Tribunal Act (1975) (“the AAT Act”) (T1-T20) and Exhibits A1 to A14 tendered on behalf of the applicant and R1 to R15 tendered on behalf of the respondent. Document T20 consists of documents filed pursuant to s37 of the AAT Act in Tribunal proceedings W2001/90 and comprises 368 pages, which will be referred to as T20 p1-T20 p368.

Background

3.      The applicant was born in October 1945 and served in the Royal Australian Airforce (“the RAAF”) between December 1965 and December 1971, at which time his period of enlistment expired.  He trained and served as an instrument mechanic and fitter during that service.  In the years that followed 1971 the applicant worked in a number of different occupations for a number of different employers and subsequently made a number of claims for compensation against the last of those employers, details of which will be referred to below.

4.      On 5 November 1988 the Applicant lodged a claim for compensation under the 1988 Act (T3 pp 20-21) in respect of his RAAF service.  The injury or illness the subject of the claim was described as “colophony” and was said to affect the whole of the applicant’s body.  The applicant answered “refer to medical records” in response to a question concerning when he first received medical treatment for the injury or illness.  The thing that caused the injury was described as “soldering”.  The application was accompanied by several hundred pages of material said to support the claim.  (T20 pp 17-223).  The respondent investigated the claim and obtained medical advice thereon, including advice from Dr Musk.  On 25 October 2000 the respondent wrote to the applicant (T20 p 263) advising that a decision had been made, on the basis of the available evidence, that the applicant had “….contracted a disease due to the nature of your military service, namely asthma, allergic rhinitis and colophony sensitivity to multiple inhaled agents”  and that for the purposes of the 1988 Act the date of injury was 3 May 1966, that being the “first date medical treatment was received for the claimed condition”.  The letter noted that although liability was admitted for the condition, payment of money was not automatic and the applicant was invited to identify benefits to which he might be entitled.  The applicant subsequently claimed an entitlement to weekly incapacity payments, medical costs, and other services – including household and attendant care services and rehabilitation and return to work benefits (T20 p 316-317).

5.      By letter dated 8 December 2000 (T20 p 319) the respondent informed the applicant that a determination had been made that he was not entitled to incapacity payments for the time he had been unfit for work (17 May 1995 to the date of the determination) after taking into account evidence concerning the outcome of a compensation claim that the applicant had made against a former employer, the Royal Newcastle Hospital (“the RNH”).  The decision maker considered that the applicant had been partially incapacitated since September 1991 and that his current level of incapacity is “… more probably related to the further exposure (to colophony) whilst in the employ of the [RNH]”.

6.      The applicant submitted additional material in support of a request that the determination of 8 December 2000 be reconsidered and on 8 March 2001 the respondent made a decision to affirm that determination.  The decision maker concluded that

“… the balance of the medical evidence suggests that your multiple chemical sensitivity is related to your employment with the [RNH] … [and] does not support a link between your current condition and your military employment.  Therefore, I am not satisfied that you continue to suffer any injury related to your military employment.  Therefore, on the basis of s 14 of the [1988 Act] there is no liability in respect of incapacity payments.”

The decision maker went on to advise that even if the applicant did suffer an injury related to his military employment, there was no evidence that he had been incapacitated for work between December 1971 and commencing employment with the hospital in 1987 and that the evidence suggested that any incapacity for work since 1987 was related to symptoms relating to employment at the hospital and not to his military employment.

7.      In March 2001 the applicant applied to this Tribunal (in proceedings W2001/90) for a review of the decision of 8 March 2001 – but in August 2002 the applicant, via his then solicitors, withdrew the application.

8.      In the second half of 2002 the applicant sought to have the respondent pay a number of medical expenses and to meet the cost of a consultation with Dr Musk.  The respondent arranged a consultation with Dr Musk but in March 2003 declined to reimburse the applicant for expenses without appropriate evidence that the expenses were related to the accepted conditions of asthma, allergic rhinitis and colophony sensitivity to multiple inhaled agents (T13 p 35). 

9.      On 23 July 2003 the respondent determined (T15) that the Commonwealth was no longer liable to pay compensation for the “ … previously accepted ‘colophony – (asthmatic symptoms) affecting whole of body’ condition with effect from 23 July 2003” because, for the effects of an injury or condition to be considered as continuing “… the evidence has to show that it is probable, and not merely possible, that the service related effects continue” and the respondent considered that not to be the case in relation to the applicant.

10. The letter referred to the determination of 8 March 2001 and the statement therein that the Commonwealth was no longer liable under s 14 of the 1988 Act, and also referred to the applicant’s claim for reimbursement of medical expenses, noting that these related to the applicant’s claim against the RNH.

11.     The applicant requested reconsideration of the determination of 23 July 2003 and on 11 August 2003 the respondent affirmed that determination.  The letter of advice to the applicant, (T18) quoted extensive passages from the decision of 8 March 2001 and noted that decision had denied a claim for weekly incapacity payments on the basis that the applicant was not incapacitated for work as a result of his compensable injury.  The letter concluded that:

“…the available evidence does not support a probable ongoing causal connection between your former RAAF employment which ceased in 1971 and your ‘colophony (asthmatic symptoms) affecting whole of body’.  Rather … the evidence indicates that your condition is related to your employment with the [RNH].”

12.     The letter also noted that the applicant had claimed compensation from the RNH in relation to his employment there between 1987 and 1991 and that the Compensation Court of NSW had found that the applicant was “…partially incapacitated due to multiple chemical sensitivity attributable to your employment at the [RNH]”.

13.     The applicant then lodged his application with this Tribunal in these proceedings.

Statutory Framework and Issues

14.     It was common ground between the parties that the applicant’s claim and the decisions relating thereto by the respondent deal with three conditions – namely asthma, allergic rhinitis and multiple chemical sensitivity (“MCS”).  The applicant’s claim for compensation and the decisions made in relation to it all were made under the 1988 Act.  However, the basis of the applicant’s claim and the basis upon which the applicant presented his case in these proceedings was that he contracted the three conditions during the course of his RAAF service between 1965 and 1971 as a consequence of his exposure to colophony, which is a chemical substance in soldering flux that the applicant says he was required to use during his RAAF service.  Accordingly, the issue arises as to whether legislation that preceded the 1988 Act, namely the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”) or the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) is applicable.

15.     The commencement day for the operation of the 1971 Act was 1 September 1971 and for the 1988 Act was 1 December 1988.  Section 124 (1) of the 1988 Act provides that the 1988 Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.  However, s 124(2) relevantly provides that a person is not entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the 1930 Act or the 1971 Act.  A reference to an injury, loss or damage suffered before that date is a reference to an injury within the meaning of whichever of the 1930 Act or the 1971 Act was in force when the injury was suffered, “…as in force” at the time the injury, loss or damage was suffered.

16.     French J observed in Comcare v Luck [1999] FCA 100 at [32], that the application of s 124 depends upon the date on which the injury in question was suffered and that, while this will be a matter of fact for discreet traumas, the definition of date of occurrence for a disease requires legislative assistance – which is provided by s 7 (4) of the 1988 Act. That subsection relevantly provides that for the purposes of the 1988 Act an employee shall be

“…taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:

(a)       the employee first sought medical treatment for the disease, or aggravation; or

(b)       the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.”

17.     The respondent contends that the three conditions claimed by the applicant first emerged in the late 1980s when he was employed by the RNH, that the applicant was first incapacitated for work and first sought medical treatment for the conditions at that time, and that the conditions were due to circumstances (including exposure to colophony) related to the applicant’s employment between 1987 and 1991 at the RNH.  Accordingly, the respondent contends that the matter should be dealt with pursuant to the 1988 Act.  On the other hand, the applicant contends that medical records from his time in the RAAF reveal that he experienced the symptoms of the conditions, and sought medical treatment in respect of those symptoms, from as early as 1966.  If that were to be the Tribunal’s findings then the matter would fall for determination under the 1930 Act, or, if the medical treatment, incapacity for work or impairment was first sought or first occurred between 1 September 1971 and 30 November 1988, then the 1971 Act would be applicable.

18.     The respondent also contends that, regardless of which legislation is applicable, whatever conditions the applicant may now suffer from are not causally connected to the applicant’s RAAF service and the respondent has no liability to the applicant for that reason. Any RAAF service could have at most temporarily aggravated the applicant’s conditions and the effects of such aggravation ceased prior to the applicant’s discharge from the RAAF.  The exposure of the applicant to colophony in the course of his employment at the RNH constituted a novus actus interveniens and is the cause of any present incapacity for work.  To that extent, the respondent contends that liability for the applicant’s claim should never have been accepted in 2000.  However, if the Tribunal should determine that there is a causal connection, then the respondent contends that the respondent would have no present liability to the applicant for the following reasons:

(a)the applicant, when answering questions about his health at the time of his enlistment in the RAAF, provided false answers and s 7(7) of the 1988 Act or corresponding provisions in previous legislation would operate to remove any liability the respondent may have;

(b)pursuant to s 48 of the 1988 Act, the applicant has no entitlement to compensation because he has recovered damages in respect of the injuries the subject of the present claims for compensation in common law proceedings taken against the RNH.

19.     A further issue for consideration was also identified at the hearing – namely that if the reviewable decision of 11 August 2003 purported to cease liability for the future, whether such a decision would be beyond the power of the respondent to make: see Rosillo v Telstra Corporation [2003] FCA 1628 per Madgewick J.

THE EVIDENCE

20.     There was no dispute about the applicant’s employment history both before and after his RAAF service.  It was conveniently summarised in Exhibit R14.  After leaving school he worked as a laboratory assistant for 2 years for a firm that made industrial paints and then worked for 18 months in quality control for a firm working with adhesives and abrasives.  He then worked in a bank for approximately 9 months until he enlisted in the RAAF at the end of 1965, aged 20 years.

21.     After leaving the RAAF at the end of 1971 the applicant worked as a technical assistant at a Sydney TAFE college.  His work involving the construction and maintenance of electrical and electronic class aids (televisions, cameras, video recorders, computers etc.) and he also did some part-time teaching.  In 1973 he took up a position of a similar nature but at a higher level at the Cumberland School of Health Sciences, working in the bio-medical science department maintaining medically-oriented equipment.  In 1975 he joined the New South Wales Department of Works, maintaining equipment used to monitor ocean waves and worked there for 5 years, during which time he sustained a back injury.

22.     In 1980 the applicant began working as an electrical engineer, his work involving design and implementation of power station infrastructure and worked in that employment until 1982.  For the next 5 years he worked as a contract engineer doing design and construction work for a number of companies.  In August 1987 he was employed by the RNH as a broadcast/TV technician doing work similar to that at the Cumberland College.  In 1990 he was transferred to a position as a data operator at the hospital because of medical problems, but ceased working in 1991 and has not worked since then.

23.     The applicant’s evidence was that in his RAAF service he was regularly involved in soldering work, although not every day, both when undertaking training courses but also when carrying out his normal duties as an instrument mechanic and instrument fitter.  This exposed him to colophony and, as a consequence, he suffered a variety of symptoms – similar to influenza and upper respiratory tract infections.  As a consequence he sought medical treatment on occasions at RAAF medical posts.  The applicant produced what he said were graphs showing the times he attended at medical posts during the 6 years of his service (Exhibits A1 – A3),  which he said were based on his analysis (Exhibit A4) of the medical notes relating to the attendances over the 6 year period set out in T20 pp195-217.  Exhibit A4 set out the applicant’s analysis that in the 6 year period of his RAAF service he had attended for medical attention for what he said were symptoms related to colophony exposure on 36 occasions.  However, it became apparent during the course of the applicant’s oral evidence that he had on a number of occasions misinterpreted the medical records and he subsequently agreed with an analysis undertaken on behalf of the respondent (Exhibit R7) that the total for the 6 year period was 26 occasions when he attended for medical treatment for what the applicant said were the symptoms of colophony exposure.

24.     The medical records indicate that these attendances were for a variety of symptoms, which were variously described as being ‘flu-like’, a ‘sore throat’, or for an ‘upper respiratory tract infection’.  The applicant also agreed that a graph prepared on behalf of the respondent (Exhibit R8) accurately reflected that revised history of medical attendances.  Exhibit R8 shows that in the 72 months of the applicant’s RAAF service he attended for “relevant” medical treatment once in each of 15 months and in 6 months he attended on 2 occasions each month.  There were no “relevant” attendances in the other 51 months.

25.     The applicant agreed in his evidence that the connection between colophony exposure and these attendances for medical treatment could not be demonstrated in that he could not accurately say what type of work he was doing during the particular months, and he acknowledged that there were also many other possible explanations for why he might have attended for medical attention with symptoms of the type he complained of (such as because he simply had the flu).

26.     There was no dispute that the applicant did some soldering in the course of his RAAF training and work and that this would have involved some exposure to colophony.  Oral evidence was also given by Mr David Paget, who served in the RAAF between 1966 and 1973 and served with the applicant at various times.  He undertook several training courses with the applicant but did not work with the applicant between the courses.  He had, however, served with the applicant towards the end of the applicant’s service at the Pt Cook base.  Mr Paget said that he did not recall any significant soldering work on the initial trainee instrument mechanics’ course or on the subsequent instrument mechanics’ course.  However, on a third course, that for instrument fitters, there was quite a lot of soldering involved.  During the period that he and the applicant had worked together at Pt Cook they had been involved in the dismantling of aircraft for an extended period of time and this had involved minimal soldering.  Mr Paget also said that he and other colleagues of the applicant were aware at the time that the applicant often had flu-like symptoms and that he often had what Mr Paget described as a red nose – with the result that the applicant was sometimes referred to by the nickname “Rudolf” when he was at Pt Cook.

27.     The applicant also said in his evidence that whilst he was based at Pt Cook he had undertaken, as a matter of personal development, a part-time course at the Royal Melbourne Institute of Technology “RMIT”), which involved a considerable amount of soldering.

28.     On 25 November 1971 the applicant had a medical examination shortly prior to his discharge from the RAAF and was judged fit to be discharged.  No abnormalities were detected in the applicant’s chest or lungs or nose, throat or sinuses.  An abnormality of the applicant’s abdomen was, however, identified.

29.     There are no medical records relating to the period after the discharge from the RAAF up until 1989.  However, various reports by medical practitioners thereafter refer to the applicant reporting that he had a tonsillectomy in 1975.

30.     Commencing in early 1989, whilst employed by the RNH, the applicant consulted a substantial number of medical practitioners in relation to symptoms that were attributed to his work at the hospital.  In a report dated 21 April 1989 (T20 p 104) Dr M J Hensley referred to the applicant complaining of “repeated flu like illnesses together with symptoms of hayfever and bleeding nose” and occasional “evening cough and wheeze”.  Dr Hensley referred to a diagnosis of allergy to polyisocynate prior to the applicant’s RAAF service and also an allergy to penicillin and curare.  Dr Hensley noted that the applicant used solder both in his work but also at home in his home workshop in connection with his hobby of ham radio operator.  Dr Hensley conducted repeated spirometry tests, the results of which showed no particular pattern.  He could not rule out the possible effect of soldering fumes on the applicant’s nose and bronchi, but the tests indicated that soldering fumes were not causing any significant asthma.

31.     In September 1989 Dr A M Brown reported (T20 p 108) a history that the applicant had developed sensitivity to colophony “in the last two years”.  The applicant had described “…a syndrome of fever, headache, malaise, rhinitis with bleeding and asthma coming on after exposure to fumes from soldering fluxes.”  The applicant had apparently changed brands of solder and his symptoms had settled down.

32.     During 1990 the applicant continued to experience symptoms and his work duties at the RNH were changed to avoid exposure to colophony.  A description of the medical attendances by the applicant and of the results of radiological results up until early 1991 are set out at paragraphs 1.24 to 1.36 of the respondent’s statement of facts and contentions filed in the proceedings, with which the applicant agreed.

33.     In 1990 the applicant commenced a compensation claim against the RNH for occupational asthma and, subsequently, in relation to exposure to colophony and subsequent development of asthma.  On 30 July 1991 Dr G B Field, a respiratory physician, provided a report to the RNH’s insurer (Exhibit R1).  Dr Field referred to a history given by the applicant that the applicant had resigned from one of his pre RAAF service jobs because of an allergic rash.  He then described the applicant’s work in the RAAF and the subsequent jobs referred to above, noting that several of these involved regular soldering.  He recorded the applicant as stating that he “… had not had bronchitis or frequent respiratory tract infections in the past” and that he “…had no respiratory symptoms when working for the RAAF or for his subsequent employers until early 1988, a few months after starting at the [RNH]. ” Dr Field commented that colophony is a well recognised cause of occupational asthma but that

“it causes immediate symptoms which dominate the clinical picture although symptoms occurring several hours later and during the night may also occur. [The applicant] did not associate his symptoms with exposure to soldering fumes; in fact, he said that he was unaffected by the fumes.”

Dr Field concluded that the applicant did not develop an allergic reaction to colophony but that exposure to soldering fumes had a non-specific aggravating affect on his respiratory symptoms and that since 1988 the sensitivity of his respiratory tract to non-specific respiratory irritants has increased.  The increased sensitivity of the applicant’s respiratory tract is constitutionally determined.  Dr Field said that the onset of florid symptoms in middle age is analogous to maturity onset asthma with which the applicant’s condition had many features in common.  He did not consider that the onset of florid symptoms in 1988 was specifically caused by exposure to soldering fumes at that time.

34.     In September 1993 Dr Bryan Gandevia reported to the applicant’s solicitors (Exhibit R4) and noted that the applicant informed him that he had developed a skin allergy when working with the paint company prior to the RAAF but had not developed asthma at that time.  Dr Gandevia recorded that the applicant told him that he had been free of symptoms in his second job prior to the RAAF and that he had experienced no symptoms in the RAAF.  He had some upper respiratory tract symptoms whilst working at the Sydney Technical College but not asthma.  Dr Gandevia recorded that the applicant had made the point to him that he had acquired a student pilot’s licence in the mid-1970s to demonstrate that his health was good at that time and that he had had no upper or lower respiratory tract symptoms – despite intermittent soldering whilst working at the Cumberland College.

35.     In March 1994 Dr J Lee reported (Exhibit R3) that the applicant had informed him that he had used soldering throughout his RAAF service "apparently without adverse affect” but that working at the RNH had caused flu-like symptoms and bronchial asthma from December 1987 onwards.

36.     By 1996 the applicant had moved to live in Western Australia and consulted Dr A W Musk, a respiratory physician.  In a report dated 23 August 1996 (T20 p 130) Dr Musk recorded a history of the applicant’s employment, noting that the soldering work that he had done in the RAAF, at Sydney Technical School, and subsequent jobs had not caused him any problems, but that the symptoms had emerged soon after he started work at the RNH.  On the basis of his examination and testing of the applicant Dr Musk concluded that the applicant’s asthma was reasonably well controlled by his medications and that the history indicated that colophony was at least one of the precipitating factors in his asthma and may have been the initiating factor.  He also concluded that the applicant had “multiple chemical sensitivities, rhinitis and sinusitis”.  Dr Musk noted that the applicant “… appears to have an unusual preoccupation with his symptoms and their possible causes.”

37.     In November 1996 Dr P Zilko, an immunologist, reported (T20 p 145), noting a history of symptoms of chronic rhinitis and asthma since 1987.  Prick tests to a variety of airborne allergens were all negative, which Dr Zilko said made it unlikely that the applicant was atopic and indicated that his nasal symptoms were due to vasomotor rhinitis.  This is a dysfunction of nasal mucosa due to altered nervous system control of the blood flow through the nose.  Dr Zilko said that this condition

“…is of unknown cause, often occurs in adult life and tends to be exacerbated or irritated by irritant smells, change in air temperature, change in posture and some food factors.  It may occur in association with conditions such as irritable bowel syndrome and fibromyalgia which are other disorders where there is nervous system dysfunction.”

Vasomotor rhinitis often occurs in adults without any obvious trigger factor and Dr Zilko thought that

“…it is impossible to determine whether the exposure he had to chemicals in December 1987 had anything to do with his symptoms except that there is a temporal relationship between these symptoms beginning at that time and continuing since then.”

The fact that the applicant was no longer exposed to those chemicals but his symptoms continued indicated that there was some ongoing dysfunction that is unrelated to continuing exposure to the irritants.

38.     In December 1996 a physician, Dr F H Burns, reported (T20 p 148) that the applicant stated that he had felt better since moving to Western Australia in 1993 but had had two exacerbations of asthma in November 1995 and December 1996, which had taken 2 or 3 months to settle.  The applicant was uncertain about the source of the problem at that time, but said that he had been exposed to smoke from pine forest fires and atmospheric contamination from spray used on wheat crops in 1996 – but that the applicant recalled that when had been near Wagga in 1966 to 1969 [i.e. during his service in the RAAF] he was not affected by agricultural sprays.  Dr Burns concluded that the applicant had mild asthma that was reasonably well controlled and had multiple sensitivities, including to soldering rosin that was derived from pine resins and that colophony was a recognised cause of asthma.  He thought that exposure to soldering fumes at the RNH supported the view that colophony in the work environment was a prominent cause and precipitating factor of asthma and sinusitis.

39.     In addition to the above summary of reports by medical practitioners consulted by the applicant over the years, a number of other practitioners reported about the applicant’s conditions and these are set out in the respondent’s statement of facts and contentions, with which the applicant agreed.  They are also referred to in varying degrees of detail in a judgment of Geraghty J in the Compensation of Court of New South Wales (delivered in September 1999) in relation to the applicant’s claim for compensation against the RNH (T20 p 237).

40.     In August of 2000 Dr Musk completed a questionnaire (T20 p 261-262) for the respondent in relation to the applicant’s claim for compensation under the 1988 Act.  He considered the applicant’s conditions at the time were asthma, allergic rhinitis, colophony sensitivity and sensitivity to multiple inhaled agents.  He thought that the RAAF service was “probably” the “principal cause” of those conditions.  He thought that the contribution by the applicant’s RAAF service to the contraction or aggravation, acceleration or recurrence of the diseases was “substantial, important and major” but added the rider “if we accept the history that he first developed symptoms of sensitivity to colophony in soldering while in RAAF”.  Dr Musk noted that the applicant’s symptoms “have worsened since he left the employment of the RAAF and he has developed asthma and sensitivity to multiple agents”.

41.     In a report dated 21 February 2005 (A14) Dr Musk summarised his previous reports and noted that he had continued to see the applicant in subsequent years.  It remained his opinion that the applicant has asthma which is reasonably well controlled and his history suggests that colophony was at least one of the precipitating factors in his asthma and is likely to have been the initiating factor.

42.     In his oral evidence Dr Musk was asked to comment on the difference between the history given by the applicant in 1996 (that he had had no problems in the RAAF from soldering) compared with the applicant’s position at the present time that he had problems in the RAAF.  Dr Musk thought that it was not uncommon for patients to later remember things after further thought that they had not remembered before.  As a doctor treating a patient he had to accept what the patient tells him as being the truth.  Dr Musk agreed that, having examined the medical records from the period of the applicant’s RAAF service, he had seen no evidence in those records that indicated the applicant had asthma at the time of his service.

43.     Dr Musk was referred to the evidence that he gave in the proceedings in New South Wales in June 1999 (part of Exhibit R5) including his evidence that the applicant’s asthma had been precipitated by his exposure to colophony while working at the RNH and that there were a number of circumstances which the applicant said had made him symptomatic and seemed to make his asthma worse.  In that 1999 evidence Dr Musk confirmed his understanding that prior to commencing at the RNH the applicant had been essentially symptom free.  He was asked (in 1999) to assume that the applicant had done soldering work in the RAAF and that he had at that time complained of upper respiratory tract infection and influenza and was asked whether that history would affect his diagnosis.  Dr Musk said in the 1999 evidence that a history of upper respiratory symptoms did not affect his diagnosis of asthma, which was based on variability of airflow obstruction and upper respiratory symptoms are irrelevant to that, although they might be part of an overall illness.  Dr Musk said in his evidence in 1999 that because of his exposure to colophony the applicant had developed some moderate to severe asthma and that, in addition, he had by then developed a sensitivity to a whole range of other agents but that he did not know, and thought that it was not possible to know, whether that sensitivity had anything to do with the mechanism by which the applicant acquired asthma.

44.     In his oral evidence in these proceedings Dr Musk agreed that he still thought that the applicant’s asthma was not caused, or did not develop, until his employment at the RNH.  He said that rhinitis can precede asthma as a manifestation of sensitisation to an agent, but it is not asthma.  In relation to the differences of opinion between his 1996 conclusions (regarding the employment at the RNH being the precipitating cause of the asthma) and the 2000 opinion (that the RAAF employment probably caused the conditions) Dr Musk said that the applicant’s sensitisation may have occurred before the RNH employment and may have been manifested in the applicant’s upper airways (as rhinitis) before the applicant developed measurable asthma.  However, that was only a matter of trying to assemble the story on the information provided in retrospect and his statement in 2000 – that the RAAF service had been the principal cause of his asthma – was made “…because that is how I interpreted his history at the time…”.

45.     Dr Musk said that he did not know whether the applicant would or would not have developed asthma even if he hadn’t worked at the RNH and that the reasons why the applicant may have had upper respiratory tract infections in his RAAF service were many and various.  He may have been sensitive to colophony or it may have been a sensitivity to other things.

46.     Dr Musk said that he believed that the applicant did have a multiple chemical sensitivity or syndrome.  He was aware that most conventional medical thinking did not accept that as a diagnosable condition and he agreed that the bulk of conventional medical thinking did not establish exposure to colophony as a probable risk factor for the development of that syndrome.

47.     Dr Gorman is a medical practitioner who presently works with the Health Department in Western Australia on secondment to Edith Cowan University, where he teaches epidemiology and public health to post graduate students.  In the course of that work he has taught the applicant.

48.     Dr Gorman said that he thought there is “very sound evidence” to show that colophony can cause allergic asthma and contact dermatitis.  He though there is “growing evidence, although not 100%, to show that colophony can be related to multiple chemical sensitivity as well.”

49.     On the basis of what the applicant had told him, it would seem that the applicant’s first exposure to colophony occurred during the RAAF service, when using solder.  Solder or solder fumes are a well known source of colophony.  From what he had seen from the applicant’s file, he thought that because of the length of time that the applicant had had asthma and MCS that his condition was chronic, and would require ongoing medical treatment for quite some time.

50.     Dr Gorman agreed that the issue of whether exposure to colophony is a risk factor for MCS is a “very controversial area” and that MCS is not a recognised medical diagnosis.  It is not classified and does not fit into the normal list of medical diagnostic categories – for example, the ICD-10 classification.

51.     He agreed that there were no textbooks or definitive journal articles that clearly demonstrate colophony is a direct cause of MCS, although there were some that suggested it may be.  He agreed that it was a matter of possibility rather than probability.  However, things do change over time.

52.     Dr Gorman said that he had seen the notes of the applicant’s medical records from his RAAF service and he was aware of the graphs that the applicant had prepared from his analysis of those records.  Dr Gorman said that he did not think the analysis was “very robust scientifically”.  The only thing that could be said from the records was that the applicant was suffering ill health at the relevant time.

53.     Dr Gorman said that asthma was difficult to assess from the point of view of when it started.  It is a slowly progressive condition from a spectrum of low respiratory tract infections right through to the classical asthma or wheezing and inability to breathe.  He could not say that the medical records from the RAAF would have allowed a diagnosis of asthma at that time, but he thought it could be said that the asthma was developing at that time.

54.     In conclusion, Dr Gorman said that he considered that exposure to colophony was a strong risk factor for industrial asthma or asthma – but  he could say only that he thought such exposure was a possible risk factor for MCS.  Not only is the connection between colophony and MCS a much weaker one, he agreed that MCS has never been recognised as a medical diagnosis.

55.     In the applicant’s oral evidence he agreed that his changes of occupation after leaving the RAAF had not been because of medical problems, although after he had injured his back his ability to undertake heavier kinds of employment was limited.    He agreed that it was not until he started work at RNH in 1987 that he was incapacitated for work because of the 3 conditions, the subject of his present compensation claim.

56.     The applicant agreed that he had commenced common law proceedings against the New South Wales Department of Public Works and also the RNH in which he had claimed damages in respect of “poisoning, respiratory damage, impediment to health and nervous damage” against the RNH and that those conditions were the same as those that he now described as “occupational asthma, allergic rhinitis and multiple chemical sensitivity”.  He agreed that there had been a consent order against the Department of Public Works in which he had been awarded damages of an amount of $35,000.  In relation to his claim against the RNH at common law there had been an initial heads of agreement reached that involved the payment to him of $70,000 but that had not proceeded.  Eventually, in 1999, the New South Wales Compensation Court had found that he suffered from asthma arising out of his employment at the RNH and that he had also been sensitised to other substances in addition to colophony, which aggravated the asthmatic condition.  At that time he had been awarded weekly incapacity payments of $75 per week from September 1991 – but in October 2000 there had been a settlement of all claims against the RNH, both for workers compensation and for common law damages, and this had involved a payment to him in October 2000 of $90,000.  A deed of release had been entered into at that time (part of Exhibit R6) which recited that the applicant, between December 1987 and August 1991, had sustained personal injury “in the nature of injury to head, neck, back, both arms and hands, both legs and feet, eyes, including loss of sight, chest, abdomen, internal injuries, lungs including asthmatic condition and multiple chemical sensitivity syndrome, anxiety and/or psychological injury arising out of or in the course of the employment of the [applicant] with the [RNH] and has been rendered thereby partially or wholly incapacitated and remains partially or wholly incapacitated.”  Upon the payment of $90,000, subject to various conditions, the applicant released the RNH and its insurer from any liability arising out of the injuries so recited.

57.     The applicant was questioned extensively about his health whilst in the RAAF and inconsistencies between his present position (that his health problems started in the RAAF) and the evidence he gave in the Compensation Court in New South Wales that he had had no problems in the RAAF and that all his problems started when he commenced work at the RNH. 

58.     In relation to his health during his RAAF service, the applicant said that he had some nose bleeds but they were not significant and had not been reported.  He had noticed that he suffered from flu a lot and upper respiratory tract infections.  He had enjoyed his time in the RAAF and as a young man he had tried to put whatever health problems he had out of his mind and had not worried about his health.   His general position was that the exposure that he experienced at the time to colophony had manifested itself 10 years later by tonsillectomy and then (in the 1990s) when he developed asthma.

59.     In relation to working conditions in the RAAF, the applicant was referred to evidence that he had given in the Compensation Court that working conditions for soldering were very good, with very good ventilation, including extractor fans.  He said that he still believed that the RAAF working conditions were good, but with his knowledge now about how even a small exposure to colophony could generate significant health problems, the work conditions in the RAAF could have been much better.

60.     The applicant was also referred to evidence he gave in the Compensation Court that the symptoms he had experienced in the RAAF were not as severe as he had experienced later at the RNH.  He had said at the time that the symptoms in the RAAF had been “orders of magnitude less” and he agreed that that was true but maintained his position that the symptoms were indicative of the commencement of a long term problem.

61.     The applicant was also questioned about the reasons for leaving the two jobs before joining the RAAF.  He agreed that he had told the Compensation Court in New South Wales that he had experienced a reaction to one of the ingredients in the paint, had suffered a skin rash from it and had left that job because of the reaction he had suffered.  He said that that was one reason he had left the job but there was another reason related to travelling time to and from the job.

62.     The applicant also agreed that he had left the quality control job after 18 months because he had experienced allergic reactions from working with adhesives and abrasives.

63.     The applicant was also questioned extensively about his statements to various medical practitioners at the time he was pursuing his workers’ compensation and common law claims against the RNH.  He said that he had never intentionally lied to doctors, but that sometimes he forgot things.

64.     The applicant attempted to explain his statements to Dr Field that he had no respiratory symptoms when working for the RAAF or his subsequent employers until early 1988 by saying that it had not occurred to him that the symptoms he was reporting to Dr Field concerning his RNH employment were not the same symptoms as he had suffered in the RAAF.  He had not thought that the RAAF symptoms were relevant at the time.

65.     The applicant subsequently said that, by the time he saw Dr Field in 1991, he had received advice from his lawyers that he was not to raise the issue of his RAAF symptoms – that he was not to stress the RAAF symptoms and that he would be able to bring further proceedings against the RAAF after the RNH proceedings were completed.

66.     He agreed that he had told the doctors that he did not have symptoms in the RAAF and he knew that such statements were not correct.  He agreed he had not been “entirely honest” with the doctors who had examined him. 

67.     The applicant attempted to explain this by saying that visits to doctors for “medico-legal” purposes are not the same as ordinary visits.  He had learnt that doctors seeing him for medico-legal purposes “sometimes they verballed you, sometimes they wrote down what they wanted to …” .  He agreed that he had given a “selective history” because he “thought that is the way it was done” based on briefings by his solicitor.  The applicant conceded that the histories as recorded by the various doctors were, essentially, an accurate record of what he had told them.

68.     At various times during his evidence the applicant said that he, when giving histories to the various doctors in the early 1990s, could not remember at that time his RAAF symptoms.  At other times he said that he remembered them but did not appreciate their significance.  He also gave a third explanation – that he remembered them but chose to down play them because of the advice from his lawyers.    He agreed that the statements he made to the doctors were not true but he offered no satisfactory explanation as to why he had made those statements.  In the end he acknowledged that what he had said to the doctors was untrue and his only explanation was that “I thought that was the technique that the lawyers used”.

69.     The applicant was asked whether he was more honest in giving histories to doctors that he saw for the purposes of treatment.  He said initially that that was the case, but he subsequently acknowledged that the histories that he had given to Dr Musk in 1996 had made no reference to his symptoms whilst he was in the RAAF or at Sydney Technical College.  The applicant agreed that he must have known by at least the middle of 1997 that the RNH was aware of his exposure to solder in the RAAF. 

70.     Later again in his evidence the applicant said that he had subsequently provided Dr Musk with copies of his RAAF medical records and by 2000 he had decided that the significance of these medical records was that they now showed what he believed to be the truth – namely that he had started to be exposed to colophony during his RAAF service and that that was the start of his health troubles.

Consideration

71.     The respondent’s contentions regarding the applicant’s claim are summarised in paragraphs 17 and 18 above.  The applicant’s overall contentions were never stated with any clarity, but I understand the applicant’s position to be that he has the three conditions now; he was first exposed to colophony during his RAAF service and colophony is recognised as a factor that can precipitate these conditions – although there may be a latency period before the symptoms manifest themselves; that he began to experience the symptoms of the conditions and sought medical treatment for them during the period of his RAAF service; and that the subsequent problems he experienced whilst working at the RNH was merely an exacerbation of a pre-existing condition.

72.     At the outset I must say that I found the applicant to be an unsatisfactory and unreliable witness.  He gave evidence in a confusing and tangential way, giving the strong impression that he sought to avoid answering questions that he preferred not to answer.  He could give no satisfactory answer or explanation for the differences between the evidence he gave to the Compensation Court in New South Wales, the histories given to various medical practitioners over the years, including those with whom he was in a treating relationship, and his present evidence.  On the applicant’s evidence he consciously gave histories that he knew to be inaccurate but says he did so because he thought medical practitioners would “verbal” him and because, he says, his legal advisors told him to play down the RAAF history.

73.     I have noted above Dr Musk’s comment made in 1996 that the applicant had an “unusual preoccupation with his symptoms and their possible causes”.  Subsequent events, including the applicant’s evidence in these proceedings, suggest that that remains the case.  In my opinion the applicant,  at the time of his employment at the RNH and immediately thereafter, considered that the RNH employment was the cause of all his problems and was prepared to tailor the histories that he gave to medical practitioners (both for medico-legal and for treating purposes) to support  that opinion.  By the time the proceedings against the RNH were completed the applicant was well aware of the medical records from the time of his RAAF service but for reasons best known to the applicant he continued to advance the hypothesis that it was the RNH employment that caused his health problems.  It was only subsequently that he says he formed the view that it was the RAAF service that was the cause of his problems – and thereafter all his efforts were directed to demonstrating that conclusion.  It is apparent that the applicant’s analysis of his RAAF medical records exaggerated the attendances that may or may not have been associated with his problems connected to the conditions for which he is presently claiming.

74.     My conclusion is that little weight can be placed on the applicant’s evidence except where that evidence is otherwise corroborated by credible evidence.  Having regard to that assessment, and because of the conflicting accounts that the applicant has given over the years, it is not easy to make findings of fact.  However, doing the best I can with the evidence I have I make the following findings:

(a)The applicant experienced some kind of allergic reaction to unspecified substances at the time of his first 2 jobs after leaving school.  The precise nature of the substance or substances that caused the reactions and the extent of any effect on the applicant’s health in the short or long term cannot be determined.

(b)I accept the evidence of the applicant and Mr Paget that their RAAF employment involved a degree of soldering although I consider the amount and regularity to be not as great as the applicant suggested.  I am also satisfied that the working conditions within the RAAF from an occupational health point of view were good, and included the use of extractor fans in appropriate situations.  Having said that, I accept also that the applicant was exposed to some level of colophony as a result of the soldering work that he did, but there is no evidence that enables any firm conclusions to be drawn about how often that occurred or the degree of “dose” that the applicant was exposed to.

(c)The applicant was also exposed to soldering and colophony – to an undeterminable extent – whilst in the RAAF because of his hobby as a ham radio operator and in the RMIT course he undertook.

(d)During his RAAF service the applicant sought medical treatment on a number of occasions for flu-like symptoms and upper respiratory tract infections.  I am not, however, prepared to conclude that these attendances were caused by, or related to, any exposure at work to colophony.  Dr Hensley concluded in 1989 that although soldering fumes may have affected the applicant’s nose and bronchi, the tests that he had carried out indicated that the soldering fumes were not causing any significant asthma.  Similarly, Dr Musk formed the opinion that there was nothing in the applicant’s RAAF medical records regarding upper respiratory tract infections that indicated a presence of asthma at the time of his service.  The applicant concedes, and Dr Musk agreed, that there were many reasons why the applicant may have presented with symptoms of these types.  In addition, the records indicate that there were long breaks between some of the attendances and the attendances declined towards the end of his period of service.  On the evidence there were no periods when the applicant was incapacitated for work as a result of the symptoms that he experienced at the time, regardless of how they were caused.

(e)The applicant did not suffer from asthma or rhinitis during the time of his RAAF service.  Whatever was the cause and nature of the various minor symptoms for which the applicant sought treatment during his RAAF service period (and I have noted the opinion expressed by an RAAF medical officer on 3 May 1970 that there was a suggestion of hypochondria – see part of Exhibit R2) I am satisfied that any health problems the applicant had during his RAAF service were minor and transitory in nature.  On his discharge from the RAAF the applicant was judged to be in good health and there is some evidence that in the following years he continued to work without interruption (at least for health reasons) and his health was apparently sufficiently good to obtain a pilot’s licence in the mid 1970s.  Reinforcing that position are the histories that the applicant gave to the various doctors in the late 1990s and early 1990s that he had been symptom-free during his RAAF service and in the employment that followed.  In this context I note that the applicant apparently told Dr Hensley in 1989 that he was “an active bush walker”, which suggests a level of fitness.

(f)Even if colophony exposure played some part in the applicant’s symptoms in the RAAF (which I am not prepared to conclude was the case) any effect on the applicant had ceased by the time of his discharge.

(g)The applicant, on the evidence, was essentially symptom-free in the 17 years that passed between leaving the RAAF and the onset of symptoms at the RNH. Clearly, at that time, something happened to the applicant’s health – and that resulted in the decision made by the Compensation Court referred to at para 56 above.  That Court heard extensive evidence about the applicant’s RNH employment that I have not heard and also had evidence concerning the RAAF service.  I see no reason on the evidence to reach any different conclusion.

75.     On the applicant’s case, he first sought medical treatment for his conditions prior to 1971 – and on this basis the 1930 Act would be applicable to determine his entitlement to compensation.  On the other hand, it seems the applicant did not see Dr Hensley until early 1989 – by which time the 1988 Act had come into operation – and on that basis the respondent says that Act is applicable.

76.     It is not in dispute that the applicant suffers from occupational asthma at the present time and there is sufficient evidence, specifically that of Dr Zilko and Dr Musk, which I accept, that the applicant also suffers from allergic rhinitis.  I accept Dr Musk’s view that there is a connection between asthma and rhinitis, with rhinitis often preceding asthma and that allergic rhinitis and asthma “are just manifestations of a response in the respiratory tree at different levels”.  There is an overlap in those conditions.

77. For the reasons given above I have concluded that the applicant did not suffer from asthma or rhinitis at the time of his RAAF service – and so any medical treatment he sought at that time cannot have been in respect of those conditions. Likewise, for the purposes of s 7(4) of the 1988 Act, any incapacity for work or impairment suffered by the applicant at that time cannot have been referable to asthma or rhinitis. Accordingly, the 1930 Act cannot apply to those conditions – and the 1988 Act will.

78.     For the reasons given below there is controversy whether MCS is a diagnosable condition or not.  Be that as it may, there is no evidence that the applicant had MCS between 1965 and 1971 and, similarly, the 1930 Act will not be applicable and the 1988 Act will be.

79.     By virtue of s 14 of the 1988 Act the respondent will be liable to pay compensation in accordance with the Act “… in respect of an injury suffered by [the applicant] if the injury results in … incapacity for work, or impairment”.  By s 4(1) an “injury” is defined to include “a disease suffered by an employee” and the same provision defines a “disease” as meaning : “(a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth …”.

80.     An “ailment” is defined by s 4(1) as meaning “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

81.     In relation to whether employment will be “a contributing factor” to the contraction of a disease, Davies J said in Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 at page 43 that:

“It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease.  The contributing factor need do no more than contribute in a material way.  The factor is not required to be the real, proximate, or effective cause of the disease or of its development.  In a case where a number of factors contribute to the contraction of the disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker’s employment.  See Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Limited v Murray (1976) 133 CLR 580 at 598 per Mason J.”

82.     In Treloar v Australian Telecommunication Commission (1990) 26 FCR 316, 97 ALR 321, 12 AAR 535 the Full Federal Court said at [21] in relation to section 29 of the 1971 Act that:

“…once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic or condition in which the work was to be performed” and that such exposure was in truth a “contributing factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. …  In all cases the question is whether there has been a “contribution”.  … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration.  They must, in truth, be part of the cause.  If they are not, then, they do not “contribute”.

83.     At [22] the Full Court said that

“…the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.”

84.     Despite there being no dispute that the applicant was exposed to some degree of colophony during the time of his RAAF service and despite the respondent accepting that colophony is a recognised contributing factor to the onset of asthma and rhinitis, I have concluded above that the applicant did not suffer from those conditions whilst in the RAAF and they did not emerge until at least 17 years later – and even in 1989 Dr Hensley did not consider that soldering fumes were causing the applicant any significant asthma.  My conclusion is that even if exposure to colophony in the RAAF provoked some symptoms in the applicant (which, on the balance of probabilities, I am not prepared to find) then any effect was short-lived and had ceased by the time of his discharge – and had certainly ceased totally from having any effect by the time asthma and rhinitis were diagnosed nearly two decades later.

85.     Accordingly, I find that, for the purposes of the 1988 Act, employment in the RAAF was not employment that “contributed … in a material degree” to the contraction by the applicant of asthma and rhinitis.

86.     As noted above, there is controversy within the medical profession as to whether MCS is a diagnosable condition and, if it is, whether colophony can be said to be a contributing or precipitating cause of it.  I was referred to a number of journals and other publications said to be relevant to the question of whether MCS exists and what might cause it: see Exhibits A7, A8, A10, R9, R11, R12, R13 and R14.

87.     Dr Musk acknowledged that it is not possible to explain the mechanism that causes MCS and there was still no well founded body of scientific or medical research that concludes that even if MCS symptoms arise after exposure to some precipitating cause, that this then sensitises a person in an on-going way.  Dr Musk said that whereas he could provide biological explanations for what happens in relation to asthma, there was nothing similar in relation to MCS.  Nevertheless, he thought that it was not necessary to understand the mechanisms to treat disease and he had seen enough consistency of symptoms in his experience to believe that MCS as a syndrome exists and that there is a relationship between exposure to things like colophony and the onset of MCS as a syndrome.

88.     However, even if Dr Musk’s view can be accepted (and I consider that there is no need for me to reach a conclusion on the point) there is no evidence that I consider reliable to show that the applicant suffered from MCS during his RAAF service or that he was sensitised to colophony at the time.  I have referred above (at paras 44 and 45) to Dr Musk’s evidence as to when the applicant’s sensitisation may have occurred – and that the applicant may or may not have been sensitive to colophony.

89.     That evidence, plus the evidence of Dr Musk and Dr Gorman that the relationship between colophony and MCS is by no means established, leads me to the conclusion that any causal connection between whatever exposure to colophony may have occurred in the applicant’s RAAF service and the contraction of MCS would be something in the “… area of possibility or conjecture”: see Treloar (supra). On the evidence I consider it a matter of speculation as to whether or not such a diagnosable condition exists at all – and it is equally speculative as to any causal link with colophony.

90. It follows from the above that the applicant’s RAAF service did not contribute materially to the 3 conditions claimed by the applicant. Those conditions cannot, therefore, be said to be diseases, or injuries, for the purposes of s14 of the 1988 Act. That finding is sufficient to establish the respondent has no liability to the applicant under the 1988 Act but, for the sake of completeness, I should refer to the other matters contended by the respondent to have the result that the respondent would have no liability in any event to the applicant.

91.     The first of those matters was whether the applicant would be prevented from having an entitlement to compensation because of the answers that he gave at the time of his enlistment in the RAAF.  Section 7(7) of the 1988 Act relevantly provides that “a disease suffered by an employee … shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his … employment or proposed employment … made a wilful and false representation that he … did not suffer, or had not previously suffered, from that disease.”

92.     The applicant was referred to a questionnaire that he had completed at the time of entering the RAAF (T20 p 193).  He had answered ‘no’ to the questions “Have you ever had or have you now any skin disease?” and “Have you ever been unable to hold a job because of sensitivity to chemicals, dust or other medical reasons?”  The applicant explained those answers by saying that he was not qualified to comment on whether his allergic reactions to his skin qualified as a disease and that, as a 19 year old, he was naïve and “I just didn’t think it was important, seriously”.  He thought it was an error rather than a false statement, although he acknowledged that the statements were not true, but said that they were not intentionally untrue.  Later in his evidence the applicant acknowledged that “… on the face of it you could say, yes …” that he had lied when answering the questions.

93.     In Comcare v Porter (1996) 138 ALR 469 Jenkinson J considered the meaning of the expression “wilful and false representation” for the purposes of s 7(7). The objective falsity of the representation, signified by the word “false”, and the representor’s knowledge of the falsity, signified by the word “fraudulent” must be distinguished. The use of “wilful” signifies that the representation must be made without any belief that it is true.

94. Section 7(7) refers to the representation being in relation to “that disease”. I consider that this requires the representation to be made in relation to the disease the subject of the claim for compensation.

95.     For the respondent it was contended that in order to determine whether the applicant’s statements in the questionnaire at the time of his enlistment were statements in relation to the diseases for which he has now claimed, it was necessary to look at the definition of “disease” in the 1988 Act.  This refers to an ailment – and an allergic reaction to chemicals would constitute an ailment. 

96.     The applicant’s responses to the questionnaire related to whether he had or had previously any skin disease or if he had been unable to hold a job because of sensitivity to chemicals or other reasons.  I am satisfied on the evidence that both statements were objectively false – as, indeed, the applicant eventually acknowledged.  However, I am not satisfied that the applicant’s answer concerning a skin disease was made with no belief that the representation was true.  As Jenkinson J noted in Comcare v Porter (ALR at 479) the existence of a disease is a subject “notoriously liable to human misapprehension” and I am not prepared to conclude that the applicant had, at the time he completed the questionnaire, sufficient information to know the precise nature of his allergic reaction that had generated a skin rash.  Accordingly, I am not prepared to conclude that the applicant’s answer to the question concerning the skin disease was a wilful and false representation.

97.     The same cannot be said, in my opinion, about the answer the applicant gave to the question concerning whether he had ever been unable to hold a job because of sensitivity to chemicals.  It was apparent from the applicant’s evidence, and I so find, that the applicant was well aware at the time he answered that question that he had made decisions to leave two previous jobs because he had experienced an allergic reaction to the chemicals that he was exposed to.  Accordingly, I am satisfied that the applicant’s answer to that question was a representation that was both wilful and false.  However, I have concluded that the applicant did not suffer in 1965 from any of the conditions for which he has now claimed and, in my opinion, the applicant’s wilful and false representation was not made in relation to those diseases.  For that reason I do not accept the respondent’s submission on this point.

98. The respondent also has contended that the applicant is not entitled to recover compensation because of the provisions of s 48 of the 1988 Act. That section relevantly provides that compensation is not payable under the 1988 Act to an employee in respect of an injury, after the date on which the employee recovered damages in respect of the injury for which compensation is payable under the Act. The damages that are recovered must be in respect of the same injury as that for which compensation is payable. In the present case, as noted above, the basis of the claim made by the applicant against the RNH was in very wide terms and undoubtedly covered all conditions that the applicant was suffering from at that time. The applicant in his evidence conceded that the claims he had made against the RNH were in respect of all respiratory and health problems that he had at that time and covered the three conditions that are the subject of the claim for compensation later made to the respondent.

99. Accordingly, even if (which is not the case) it could be shown that the applicant had an entitlement to compensation under the Act in respect of the RAAF service, then all of the applicant’s conditions for which he is presently claiming are bound up in the conditions in respect of which he settled his claim against the RNH in 2000. Accordingly, in my opinion, the applicant has recovered damages in respect of the injury (ie the 3 diseases covered by the present claims). It follows that s 48 would therefore prevent the applicant from recovering compensation in respect of those diseases.

100.   The remaining issue to be determined is whether the respondent’s reviewable decision of 11 August 2003 was beyond its power to make – see para 19 above.

101. I have noted above that the decision made on 8 December 2000 denied liability to pay incapacity payments to the applicant up until the date of that decision. When that decision was reconsidered by the decision of 8 March 2001 the conclusion was that there was no link between the applicant’s then current condition and his RAAF service and that therefore he did not continue to suffer any injury that was related to his RAAF service and, on the basis of s 14 of the 1998 Act, the respondent had no liability in respect of incapacity payments. However, even if the applicant had suffered an injury that related to his military employment there would have been no liability under s 19 for incapacity payments because there had been an intervening cause, namely employment at the RNH, and that that was now the sole cause of any incapacity for work that the applicant suffered. That decision is not subject to review in these proceedings.

102.   As I have noted at paras 8 and 9 above, the applicant subsequently sought payment of certain expenses by the respondent and the result was the decision of 23 July 2003 to the effect that the respondent was no longer liable to pay compensation for the previously accepted condition.  On reconsideration of the decision of 11 August 2003 the conclusion was that no liability existed for the condition.  I am satisfied that that decision purported to cease whatever liability the respondent had previously accepted under the earlier determinations and that such cessation purported to apply equally to the future as it did to the past.

103. The respondent concedes that the decision of 11 August 2003 cannot lawfully be a “cease liability” decision under s 14 of the Act. However, the respondent says that in such a case there are more options available to the Tribunal than simply setting aside the reviewable decision and remitting the matter back to the respondent. In such a case, the respondent contends, it is open to the Tribunal to set aside a decision that suffers from the deficiency referred to above, but that it is then open to the Tribunal to determine that liability under s 14 of the 1980 Act is continuing – but that, depending on the findings of fact that the Tribunal makes, there is no current liability under s 16 or 19 of the Act (in relation to medical expenses or weekly incapacity payments). The respondent submits that in the present case the Tribunal should make findings of fact relevant to the issues and, depending upon those findings, affirm the reviewable decision albeit on different grounds (namely, that liability should never have been accepted because of the application of s 7(7) of the 1998 Act or the lack of a causal connection between the claimed conditions and the RAAF service) or, alternatively, conclude that liability exists under s 14 but there is no current liability under s 16 or 19.

104. Even if the reviewable decision was beyond the respondent’s power to make under the 1988 Act (and here has been no suggestion that it was an own-motion reconsideration under s 62(1) of that Act) the Tribunal has jurisdiction to review the decision actually made: Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] 2 ALD 1. For the purpose of exercising that review jurisdiction the Tribunal has the powers set out in s 43 of the AAT Act, which include the powers to affirm or vary the reviewable decision, or to set aside that decision and either make a new decision in substitution therefor or to remit the matter for reconsideration in accordance with directions or recommendations.

105.   In Rosillo (supra) Madgwick J noted (at [20]) that the Tribunal could not affirm a nullity and that, in that case, the only result should have been to set the reviewable decisions aside. However, the present case differs from Rosillo because, as was recorded by Madgwick J at [6], in that case there were no outstanding claims for entitlements under s 16 or s 19 of the 1988 Act. That is not the case in the present proceedings, where the applicant asserts entitlement under at least s 16 and s 19.

106.   It seems to me that the appropriate course to take in these proceedings is to decide that:

(a)The reviewable decision made on 11 August 2003 is set aside.

(b)In substitution therefor the Tribunal decides that, for the conditions of occupational asthma, allergic rhinitis and multiple chemical sensitivity, the applicant has no entitlement to compensation under the 1988 Act in respect of any period of time up to the present date.

107. Although such a decision involves the setting aside of a reviewable decision, the decision made in substitution is not more favourable to the applicant than the reviewable decision – and so s 67(8) of the 1988 Act is not applicable. Because the matter has not been remitted to the respondent s 67(9) is not applicable. Accordingly, there should be no order as to costs of the proceedings.

I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member.

Signed: ..............................(sgd N Wee)...............................
  Associate

Dates of Hearing  6 - 7 September 2004 and 2 March 2005
Date of Decision  7 July 2005 
Solicitor for the Applicant          Self represented
Counsel for the Respondent     Mr Ben Dube
Solicitor for the Respondent     Ms Ingrid McCormick