THE COMMONWEALTH OF AUSTRALIA v KEITH JOHN DARE

"It is not in issue that Mr. Dare suffers from cold urticaria, a rare condition in which, when confronted by cold, as for example a cold wind or a cold lavatory seat, the area affected by the cold breaks out in weals which swell and itch and cause him considerable discomfort. He described an occasion in 1979, early in the onset of the condition, when he had to be hospitalised after having a swim. The frequency of events has increased, and he now finds it necessary to keep the temperature of his house at 70 degrees Fahrenheit all the time. Even touching a cold bench will produce the reaction. The aetiology of the condition 1s unknown.

Mr. Dare commenced work at the Department of Aviation as a lineman in 1971. He worked in Tasmania and Victoria and also in Papua New Guinea. His work involved him in building towers on mountain tops, and installing navigational aids around airports. He was from time to time required to work at night because of the need to allow for aircraft movements. He worked in temperatures ranging from below zero to 48 degrees Celsius. He began to notice the development of the symptoms of cold

urticaria after his return from Papua New Guinea in 1977."

Following examination by a Commonwealth Medical Officer in or about February 1981 it was recommended that the respondent be redeployed on the basis that he was no longer fit for work as a linesman and should be given a job indoors as a storeman or

With the respondent''s agreement he was redeployed as a

clerical assistant, with a loss in salary, with effect from

The relevant statutory provisions, sections 29 and 46 of the

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

an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment

the total or partial incapacity for work of the employee, results from the disease, or from the

aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment

in relation to the disease. or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act,

unless the contrary intention appears - The contraction of the disease, or the aggravation,

acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the

employee arising out of the employment of the employee by the Commonwealth; and

the date of the death, the date of the loss, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.

employee being partially incapacitated for work; the succeeding provisions of this section have effect.

Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -

(ii) the amount (if any) by which the average weekly earnings of the employee before the injury exceeds from time to time the amount per week that he is able to earn in_= some

(b) the amount (if any) by which the amount per week that would be payable to him under the last preceding section, disregarding sub-sections (2A) and (7) of that section, if he were totally incapacitated for work exceeds from time to time the amount per week that he is able to earn in some suitable employment or business,

"aggravation", in the light of the Full Court judgments in Connonwealth v. Beattie (1981) 53 FLR 191. It cited from the

"pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place."

"Using the ordinary meaning of the word 'aggravation', 1t seems to me to be entirely proper and accurate to say, adapting the words of Moffitt J (as he then was) quoted with approval by Kitto J: 'There is an (aggravation) of an (injury) where experience of the (injury) by the patient 1s increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the (injury) upon him rather than being concerned with the underlying mechanism."

"Mr. Dare's employment with the Commonwealth exposed him to cold. Cold brings on the symptoms of the disease from which he suffers, giving him pain and discomfort. That 1s an aggravation of his disease. A delegate of the Commissioner determined on 6 November 1984 that his employment was a contributing factor to "temporary flare ups" of his condition. It was not suggested that the phrase "temporary flare ups" was intended to describe anything other than outbreaks of symptoms brought on by exposure to cold, i.e., aggravation of his disease. In Pebruary 1981 a Commonwealth Medical Officer had stated that Mr. Dare was no longer fit for work as a linesman,

the principal reason being his condition of cold urticaria and a subsidiary reason being his cataract, and had recommended that he should be given a job indoors. Following that recommendation, he was redeployed as a clerical assistant, with a resultant loss 1n salary, as from February 1982. It was not suggested that there was any basis for the redeployment other than that recommendation that he should be given a job indoors principally because exposure to cold in the outdoor work caused aggravation of his disease.

Thus, Mr. Dare's employment by the Commonwealth was a contributing factor to the aggravation of his disease. That aggravation 1s therefore, by virtue of section 29 of the Act, deemed to be a personal injury arising out of his employment by the Commonwealth. As the respondent recognised by accepting the medical recommendation anbd redeploying him to an indoor position with a resultant loss in salary, that deemed injury resulted in his being partially incapacitated for work, in that he could no longer perform the higher paid outdoor duties of a Lineman. Accordingly the Commonwealth 1s liable to make payment to Mr. Dare under section 46 of the Act. The determination under review W1ll be set aside and the matter remitted to the Commissioner for reconsideration in accordance with an

In Beattie's case, the Full Court posed for itself (at 197) the question "Can incapacitating pain brought on by activity undertaken in the course of employment constitute an aggravation of a physical injury, notwithstanding that such pain 18s not brought about by any further pathological change?" and went on to answer the question in the affirmative. In that case, the claimaint, while on leave, had strained muscles and ligaments in the lower abdomen and upper thigh. When she returned to work, she found that the performance of her duties caused pain. The case was decided upon the footing that the performance of

those duties did not lead to any further pathological change.

In Beattie's case, the Commonwealth had conceded that, if the question of law were resolved in favour of the claimant, the Tribunal was entitled upon the evidence which it accepted to reach its ultimate conclusion that there was in fact an aggravation causing incapacity. In the Court's opinion, (at p201),

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

In the present case, the Tribunal found, as 1t was entitled to do upon the evidence, that when the respondent encountered cold conditions in his work as a linesman, "the area affected by the cold breaks out in weals which swell and itch and cause him considerable discomfort". These weals were described in the medical report of Dr Kelly, a dermatologist who was called by the

appellant as a witness before the Tribunal, as "urticarial

In my opinion, Beattie's case provided ample authority for

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

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

I certafy that this and the preceding five (5) pages are a

true copy of the Reasons for Judgment herein of The