Asioty v Canberra Abattoir Pty Ltd

The appellant was born in Egypt in 1931. For much of his life he has worked as a waiter, at first in Egypt and more recently in Australia. On 10 October 1980 he began work with the respondent as a slaughterman. Not long after he started work, the appellant developed dermatitis of his hands and also, it appears, of his feet. As a result he was off work from time to time. For these periods he was paid workers' compensation; it must have been accepted that the dermatitis constituted an injury in the nature of a disease which was caused or aggravated by the appellant's employment. However, the matter has proceeded on the basis that any compensable injury relates to the dermatitis of the hands only.

On 12 January 1983 the respondent filed an application under the Workmen's Compensation Ordinance 1951 A.C.T., seeking a termination of weekly payments of compensation from 30 June 1982. The appellant countered with an application, seeking a continuance of payments on the basis of total incapacity for work, alternatively on the basis of partial incapacity. On 13 December 1984 the Court of Petty Sessions, acting as arbitrator under the provisions of the Ordinance, made an award to the effect that the appellant was entitled to weekly payments on the basis of partial incapacity. Both parties appealed to the Supreme Court of the Australian Capital Territory. Kelly J. allowed the present appellant's appeal and substituted a finding of total incapacity. The Full Court of the Federal Court allowed the present respondent's appeal to that Court and ordered that payments of compensation cease from 18 August 1983.

The approach taken by the Federal Court appears from a passage which it is necessary to set out in full.

The evidence before the Court of Petty Sessions established that Mr. Asioty was suffering from a disease of the chronic type which was not caused by his work as a slaughterman. It was a constitutional condition called Amyloidosis Cutis. That condition was not subject to any perceptible progress if some external stimulus was applied. Nevertheless the evidence established that the congenital condition was aggravated by Mr. Asioty's work as a slaughterman, in that the work produced additional symptoms or an intensifying of existing symptoms which were temporarily incapacitating. Thus the worsening or itensifying [sic] of existing symptoms may properly be described as an aggravation. It does not follow, in our view, that once those worsened or intensified symptoms had abated the likelihood of a return of the symptoms, or the fact that the condition may be harder to control at some time in the future, amount to an aggravation of the pre-existing condition. An aggravation involves the onset of additional symptoms or the intensifying of existing symptoms.

A return of the symptoms of the disease if Mr. Asioty resumed certain types of work could amount to a further aggravation or recurrence of the pre-existing disease, but the likelihood of a return of the symptoms could not be described as an aggravation or recurrence within the meaning of the definition of "disease". The fact that it may be inadvisable for Mr. Asioty to return to his work as a slaughterman is due to the nature of the congenital disease itself and not to the aggravation which incapacitated him until 18 August 1983 and which was the basis of compensation payments to that date.

The appellant has challenged the approach taken by the Federal Court and seeks restoration of the orders made by Kelly J.

The appellant's entitlement to compensation depends on s. 9(1) of the Ordinance which, at the relevant time, read:

(a) a workman is suffering from a disease and is thereby incapacitated for work; or

and the disease is due to the nature of the employment in which the workman was employed, his employer shall be liable to pay compensation as if the disease were a personal injury by accident arising out of or in the course of his employment. The term "disease" is defined by s. 6(1) to include - any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease.

It is apparent that the Federal Court accepted that so long as the appellant's work produced additional or intensified symptoms, he was suffering from a disease within s. 9(1) of the Ordinance. But, in that Court's view, once the symptoms had abated the likelihood of their return did not constitute a disease.

There can be no doubt that the dermatitis of the appellant's hands, whether produced by Amyloidosis Cutis or otherwise, constitutes a physical ailment, disorder, defect or morbid condition; it may answer each of those descriptions. It is also clear that the symptoms produced while the appellant was at work constituted an aggravation of that condition, hence that the appellant was then suffering from a disease within the terms of the Ordinance. Once the appellant ceased work and his symptoms abated, compensation continued to be payable only so long as (a) he was still suffering from a disease; (b) the disease was due to the nature of his employment; and (c) he was thereby incapacitated for work.

The phrase "aggravation, acceleration or recurrence of a pre-existing disease" in the Ordinance definition of "disease" is not as extensive as that considered by this Court in Federal Broom Co. Pty. Ltd. v. Semlitch [1] . The Court was there concerned with a definition of injury in the Workers' Compensation Act 1926 N.S.W. which included "the aggravation, acceleration, exacerbation or deterioration of any disease". Windeyer J. commented [2] : "The words have somewhat different meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another." The same is no doubt true of the words in the Ordinance with which we are presently concerned.

1. (1964) 110 C.L.R. 626. 2. (1964) 110 C.L.R., at p. 639.

In Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson [3] , Barwick C.J. noted that the words in the New South Wales Act "may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease". Some of the cases - Hankinson is one - are concerned with the progress of a disease which itself is progressive in nature. Although, in the present case, one of the medical witnesses, Dr. Robinson, considered the appellant's condition to be Amyloidosis Cutis and slowly progressive, that was not the evidence preferred by the arbitrator. And, despite the conclusions of the Federal Court, which rely very much on Dr. Robinson's evidence, there was no challenge to the arbitrator's rejection of Dr. Robinson's opinion.

The arbitrator preferred the evidence of Dr. Heeler because, being the "treating doctor for some time", he was in "the best position to make an assessment". Kelly J. also relied on Dr. Heeler's assessment, which was that the condition of the appellant's hands had started off as constitutional but that it was aggravated by something the appellant handled at work. Dr. Heeler was of the further opinion that, if the appellant returned to work as a slaughterman, "I would expect his hands to flare up again". He expected the same consequences if the appellant took up any occupation that "involves having his hands constantly wet or handling potentially irritant chemicals like acids, alkalines, strong solutions, and similar sorts of preparations". Indeed, Dr. Heeler thought that the underlying dermatitis condition was now more chronic, "more liable to a flare up". It is necessary to note one other comment by Dr. Heeler because it finds its place in the passage from the judgment of the Federal Court set out earlier in these reasons. The doctor said: "If you have an underlying constitutional dermatitis, the more you make it flare up, by whatever means, the more recalcitrant it becomes and difficult to treat. It tends to resist treatments which could have got it under control." That observation, I understand to be the source of the reference by the Federal Court to the appellant's condition being "harder to control at some time in the future".

In the same passage the Federal Court said, in regard to Amyloidosis Cutis: "That condition was not subject to any perceptible progress if some external stimulus was applied." This observation seems to have been derived from remarks of Moffitt J. in Federal Broom Co. Pty. Ltd. v. Semlitch [4] . In that case the worker's schizophrenia, a condition which had produced recurring delusions of abdominal pain but resulted in no incapacity for work, deteriorated after an injury at work to the worker's right side. The injury produced abdominal pain, the physical cause of which ceased but, as a result of the worker's psychiatric or psychological condition, her delusions of abdominal pain were accompanied by a belief that she was incapacitated for work. The question for the Court was whether her condition fell within the definition of injury in s. 6 of the Workers' Compensation Act 1926 N.S.W.. By majority the Full Court of the Supreme Court of New South Wales held that it did.

A disease which is progressive according to its nature may, by reason of external stimuli, have its progress accelerated. Before such acceleration can be found to have caused incapacity there must be more severe or additional symptoms arising from the acceleration which have produced an incapacity which would not otherwise have existed. In this event there is an incapacity caused by an acceleration of the disease. Symptoms in the case of a progressive disease however may be only evidence of the acceleration without producing in themselves any harmful effects, in which event there may be an acceleration of the disease with no present resultant incapacity. 1. [1964] N.S.W.R., at p. 519.

In the case now before this Court, however, the appellant's condition is not to be taken as progressive. The question is not therefore whether external stimuli accelerated its progress. More to the point are later comments of Moffitt J. when dealing with a disease which "once contracted may be of a chronic type not subject to any progress or any perceptible progress" [5] . In such a case, his Honour continued [6] : "The production of incapacitating symptoms, or the intensifying of existing symptoms, to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease." While these dicta may be appropriate to determine what constitutes an aggravation of a disease in many cases, they are not conclusive in all situations. In each case the ultimate issue to be resolved must be whether the employee's situation falls within the terms of the Ordinance.

1. [1964] N.S.W.R., at p. 519. 2. [1964] N.S.W.R., at pp. 519-520.

In the course of its reasons in the present case, the Federal Court said:

It was mutually agreed on the hearing of the appeal to this Court that the Supreme Court had correctly identified the issue to be whether the pre-existing disease (the basic dermatitis) was so aggravated as a result of the nature of Mr. Asioty's employment by the company that in its then quiescent state it constituted an aggravation, acceleration or recurrence of the pre-existing disease which causes the incapacity from which Mr. Asioty suffers. If this statement is to be read as suggesting that the three questions identified earlier in these reasons were not live issues before the Federal Court, I am satisfied, having regard to the course of the hearing in that Court, that the statement does not reflect the entirety of the argument. Instead, the statement tends to elide the three questions.

While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.

But, in that form, is the disease due to the nature of the appellant's employment with the respondent and is the appellant thereby incapacitated for work? The answer to each of those questions is "yes", for the reasons given by Kelly J. His Honour said:

If - (a) a workman has a chronic, non-incapacitating pre-existing disease; (b) the nature of his employment causes for the first time a temporary incapacitating aggravation of the disease; (c) the aggravation ceases when the workman stops work; (d) the aggravation is renewed when he again starts work in the same employment; and (e) the pre-existing disease rendered more recalcitrant by the episodes of aggravation now prevents the workman from working in a large range of occupations because such work will cause a similar aggravation it seems to me that the nature of the employment has aggravated the pre-existing disease to the point where it is incapacitating.

I have italicised the words "for the first time" and "now" in Kelly J.'s summary because I think it was the failure of the Federal Court to direct attention to what underlies those words that led their Honours into error. To say, as their Honours did, that "the likelihood of a return of the symptoms could not be described as an aggravation or recurrence" is to overlook that it was the appellant's employment with the respondent that caused for the first time an aggravation which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind.

The Federal Court concentrated on the fact that once the appellant ceased work with the respondent his symptoms abated. That is not disputed but, in treating that fact as conclusive, their Honours applied the dicta of Moffitt J. in Federal Broom Co. Pty. Ltd. v. Semlitch [7] too strictly. It is true that Moffitt J. spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. And this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. The Federal Court did not meet the appellant's claim that, by reason of the aggravation caused by his employment with the respondent, he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work.

To reach the conclusion that the appellant is suffering from an aggravation of a disease (and therefore a disease within the terms of the Ordinance), that that disease was caused by the nature of his work with the respondent and that he is thereby incapacitated is not necessarily to hold that the appellant is totally, as distinct from partially, incapacitated for work. That is a matter with which the Federal Court did not deal because, on its approach, there was no relevant incapacity. In addition to the medical evidence, the arbitrator heard from Kenneth Kinnane, an employment counsellor with the Commonwealth Employment Service, that given the need for the appellant to avoid irritant substances, blood, prolonged wet work and high temperatures and any job requiring the wearing of rubber or leather gloves, coupled with his limited knowledge of English, there were no jobs available to the appellant in Canberra. Kelly J. held that, in the light of that evidence, the appellant must be regarded as totally incapacitated for work.

That was a conclusion Kelly J. was entitled to reach on the evidence. It is consistent with the approach taken by this Court in Arnotts Snack Products Pty. Ltd. v. Yacob [8] and there is no reason why this Court should interfere with it.

The appeal should be allowed. The orders of the Federal Court should be set aside and the orders made by Kelly J. restored. The appellant should have his costs of the appeal to the Federal Court and of the appeal to this Court.

I agree with the orders proposed by Toohey J. and with his reasons.