Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352 (26 November 2002)

Last Updated: 27 November 2002

FEDERAL COURT OF AUSTRALIA

Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352

APPEAL - application by respondent in Magistrates Court (ACT) for arbitration for an award pursuant to the Workers Compensation Act 1951 (ACT) - application dismissed by Magistrates Court (ACT) - appeal to Supreme Court (ACT) - order of Magistrates Court (ACT) set aside - matter remitted to Magistrate at first instance to be determined in accordance with law - issue to be determined by Magistrate was extent of incapacity - appeal to Federal Court - appeal dismissed with costs - Supreme Court judgment affirmed.

WORKERS COMPENSATION - respondent suffering from pre-existing fibromyalgia - episodes of increased or exacerbated pain - episodes amounted to aggravation - no requirement that the exacerbations or aggravations affect the pathology of the underlying condition - must be a substantial contribution between the alleged continuing incapacity and the employment - factual question left undetermined was extent of incapacity.

Workers Compensation Act 1951 (ACT), s 4, s 27, s 30

Federal Court of Australia Act 1976 (Cth)

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157

The Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19

Kattelus v Wakep Pty Ltd (In Liq) [1990] ACTSC 18; (1990) 100 FLR 291

CALDIPP PTY LIMITED t/as SLAVEN MOTORS v PERO DELOV

No. A 6 of 2002

JUDGES: HIGGINS and MADGWICK JJ

DATE: 26 NOVEMBER 2002

PLACE: CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY	A 6 OF 2002
BETWEEN:	CALDIPP PTY LIMITED t/as SLAVEN MOTORS
AND:	PERO DELOV

JUDGES:	HIGGINS and MADGWICK JJ
DATE OF ORDER:	26 NOVEMBER 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

2. The decision of Ryan J be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A6 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME

COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CALDIPP PTY LIMITED t/as SLAVEN MOTORS
AND:	PERO DELOV

JUDGES:	HIGGINS and MADGWICK JJ
DATE:	26 NOVEMBER 2002
PLACE:	CANBERRA

EXPLANATORY STATEMENT

1. The Honourable Justice Miles retired from the Federal Court of Australia, resigning his office with effect from midnight on 30 September 2002.

2. Thus s 14(3) of the Federal Court of Australia Act 1976 (Cth) comes into effect. That section provides:

"(3) Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, resigns his or her office or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceeding, then the hearing and determination, or the determination, of the proceeding may be completed by a Full Court constituted by the remaining Judges, if at least 3 Judges remain or, if the remaining Judges are 2 in number and the parties consent, by a Full Court constituted by the remaining Judges."

3. In this case Higgins and Madgwick JJ are agreed that the appeal be dismissed. They are agreed that the matter be remitted to the learned Magistrate at first instance to hear and determine the matter according to law. They agree to affirm the decision and orders of Ryan J.

4. In the result therefore, the appeal is dismissed and the decision of Ryan J affirmed.

5. It is so ordered.

6. The appeal is dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A6 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME

COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CALDIPP PTY LIMITED t/as SLAVEN MOTORS
AND:	PERO DELOV

JUDGES:	HIGGINS and MADGWICK JJ
DATE:	26 NOVEMBER 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

HIGGINS J:

1. This is an appeal from a decision of Ryan J made on 20 February 2002 in the Supreme Court of the Australian Capital Territory.

2. His Honour had been faced with an appeal from a decision of Magistrate Burns given on 14 May 2001, concerning an application by the respondent for an award pursuant to the provisions of the Workers Compensation Act 1951 (ACT) (WC Act).

THE CLAIM

3. Mr Delov (the respondent), on 16 July 2001, filed a claim pursuant to the WC Act. He had "at all material times" been employed by the appellant (Caldipp) as a garage mechanic.

4. In fact he had been so employed by Caldipp from shortly after December 1987. In about May 1998, he attended his family doctor, Dr Milosevic, complaining of a problem with his right knee. However, he also complained of "a pressure like thing on my head and on my mouth".

5. That abnormality had been affecting him, he said, for "about a year". There were also headaches which were troubling him.

6. He described his symptoms at that time as follows:

"Initially I felt like headaches coming up, things like that, I also had pressure and I got cramps around my jaw line, in the muscles on my face, especially during the night."

7. Then later followed a symptom of muscle pain in the right shoulder:

"Especially when I was tightening some bolts and nuts or something, doing some heavier work, and the pain that started in there like lancing pain. ... Basically after that all the joints in my arms and in my legs started to hurt, and I noticed that I couldn't stay on my feet for very long."

8. Early in 1999, Mr Delov was referred to a specialist, Dr Colin Andrews. Dr Andrews prescribed medication for headaches. Mr Delov was still suffering from the other more general symptoms referred to above. On 19 June 1999, he was referred to Dr Andrew Brook, a rheumatologist. By then his pain was so severe in his arms, legs and joints that:

"... I didn't have any strength to tighten anything or even to apply any pressure."

9. Despite Dr Brook's best endeavours, nothing much improved.

10. In about September 1999, Mr Delov took time off and went back to (former) Yugoslavia.

11. While he was not working, he noted that his symptoms subsided. Indeed, so far as he was concerned, "the situation went back to normal".

12. Upon his return to work:

"As soon as I started doing the normal work, like tightening bolts and nuts or doing heavier work, the pain returned straight away."

13. For the period between March 2000 and 12 August 2000, Dr Milosevic certified Mr Delov being fit for "light duties" only.

14. Caldipp endeavoured to provide light duties as advised by this certificate but, in a letter dated 8 March 2000, whilst expressing sympathy to Mr Delov, pointed out that no light duties position could be made available on a long term basis. It would create a temporary short-term position only until 2 April 2000. Unfortunately, the underlying condition had not by then improved and his employment ceased by reason of his disability to engage in his usual duties on and from 2 April 2000.

15. Despite treatment, it seems that the underlying condition has not improved.

16. Whilst the pain is not disabling if Mr Delov does not engage in physical activity of a kind consistent with heavy work, he does have continuing pain and disability which will be aggravated to a disabling extent by physical activity.

17. The medical evidence corroborated Mr Delov's complaints. Both Dr Brook and Dr Milosevic diagnosed his complaint as "fibromyalgia".

18. The relationship between that condition and the work activity was described by Dr Milosevic as follows:

"It was my opinion that his condition is being exacerbated by that type of physical work ... his condition progressively has got worse over the period... - approximately 12 to 18 months."

19. His work capacity, he opined, was that:

"... Mr Delov is unable to work as a motor mechanic, and it is my opinion that he probably would never be able to work as a motor mechanic again. I also felt that he was very eager to look at options of the lighter duties ..."

20. He should not be exposed to the lifting of anything more than 5-10 kilograms. He "should not be required to ... bend or stoop".

21. Mr Delov's employment prospects were further limited by his poor English skills.

22. The underlying fibromyalgia was not, Dr Milosevic made clear to Caldipp's counsel, caused by the work duties but it was exacerbated by those duties. That is, pain and fatigue symptoms were provoked to a disabling degree. Almost any activity, heavy or prolonged, would, even if not work-related, have a similar deleterious effect.

23. Dr Andrew Brook confirmed those opinions. He noted that the cause of fibromyalgia was not known.

24. He also confirmed that continuation of work duties had made Mr Delov's experience of pain progressively worse, culminating in his current state.

THE MAGISTRATE'S DECISION

25. Subsection 6(1) WC Act, now re-numbered as s 4(1), provides:

"In this Act:

injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury."

26. The condition of fibromyalgia is characterised as a "disease". That made the provisions of the WC Act concerned with "diseases" relevant.

27. The WC Act provides that, by s 27 (formerly s 5N):

"(1) If -

(a) a worker contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the worker by his or her employer was a substantial contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment;

subsections (2) and (5) have effect.

(2) If -

...

(b) the total or partial incapacity for work of the worker;

results from the disease, or the worker obtained medical treatment in relation to the disease, then, for this Act, unless the contrary intention appears -

(c) the contraction of the disease, or the aggravation, acceleration or recurrence shall be deemed to be a personal injury to the worker arising out of the employment of the worker by his or her employer;"

[The remaining provisions are not relevant in this case.]

28. If the worker is deemed, by virtue of s 27, to have been injured in the course of his employment, then s 30 applies (formerly s 7(1)):

"(1) An employer is liable to pay compensation under this Act if a worker of the employer suffers personal injury arising out of, or in the course of, the worker's employment.

(2) However, if the injury is caused by a disease, the injury is taken to have arisen out of, or in the course of, the worker's employment only if the employment substantially contributes to the injury."

[The remaining provisions are not relevant in this case.]

29. His Worship accepted that a temporary increase in the severity of the symptoms of a disease amounted to an exacerbation of the disease.

30. However, he regarded Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 as confining the liability of an employer in respect of temporary exacerbations of an underlying disease, not itself caused or substantially contributed to by the employment, to a case where the employment had enhanced the worker's susceptibility to suffer the symptoms of the disease and not merely exacerbated the symptoms themselves.

31. His Worship, though accepting that the aggravation of Mr Delov's condition was itself a disease for the purposes of the Act, found:

"... there is no evidence that would support any finding that the [respondent] had developed any enhanced susceptibility to symptoms such as pain and weakness through his employment with the respondent; nor that his employment with the respondent was responsible for increasing the base level of his symptoms, when the symptoms abate after he ceases work above the level that would naturally occur with the underlying disease of fibromyalgia."

32. Thus, in his Worship's view, Mr Delov was not entitled to any continuing award of compensation. It was conceded that he had an entitlement to compensation during the periods of work-provoked disability at least until the symptoms subsided to the "base level".

THE APPEAL TO THE SUPREME COURT

33. On 4 June 2001, Mr Delov appealed to this Court. The appeal was heard by Ryan J, who delivered judgment on 20 February 2002.

34. There is a minor error at paragraph [2] of the judgment. Mr Delov's age was then 50 not 52 as there stated, but nothing turns on that.

35. After reciting the history of the matter, his Honour reviewed the medical evidence before his Worship. Neither that evidence, nor the evidence of Mr Delov had been challenged before his Worship.

36. His Honour considered Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and Commonwealth of Australia v Beattie (1981) 35 ALR 369 and concluded that the legislation was consistent with the views therein expressed, namely, that "there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology".

37. So far as Asioty (supra) was concerned, his Honour noted that the disabling condition in that case was the flare-up of symptoms, not a worsening of an underlying non-work related disease. The flare-ups were caused by the appellant's work as a slaughterman. The more it flared up, "the more recalcitrant and difficult to treat it became".

38. In his Honour's view, however, the learned Magistrate had failed correctly to apply those authorities. Mr Delov's contention was that "the episodes of increased or exacerbated pain" which he had experienced in the course of and as a result of his work themselves amounted to an aggravation of the disease of fibromyalgia. That contention was valid even if the episodes of pain did not affect the pathology of the underlying condition.

39. The factual question left undetermined by the learned Magistrate in consequence of the test he applied, was whether the episodes of increased or exacerbated pain, suffered by the Mr Delov could have amounted to an aggravation of the disease of fibromyalgia and whether their likely repetition if Mr Delov had returned to his pervious duties, resulted in a total or a partial incapacity for work.

40. As Ryan J noted on 22 February 2002:

"In this matter, in a passage from the reasons for judgment which I published on 20 February this year, to which Mr Lunney of counsel for the appellant referred, I said I considered that the evidence in the present case permits a finding that the episodes of increased or exacerbated pain, which the appellant claimed to have experienced in the course of his work, could have amounted to an aggravation of the disease of fibromyalgia within the definition of disease in section 6(1) of the Act.

That passage indicates that there were factual issues which I consider were left open as a result of the view of the law taken by the learned magistrate, and despite the cogent submission of Mr Lunney of counsel for the appellant, that an order should be made which would have the effect of bringing this litigation to an end as quickly and as inexpensively as possible, I consider that that consideration is outweighed by the benefit that the magistrate had of having heard the applicant and the other witnesses and I consider that he remains in a better position than the court to resolve those outstanding questions of fact to which I adverted in the paragraph just quoted.

It will also be remembered that at the - in the concluding paragraph of the same earlier reasons, I noted the observation of Evatt and Sheppard JJ in Commonwealth v Beatty that each case must depend on its own facts. Each case, that is, of this kind, and I consider that that observation applies with no less force to the present case, and it is my view that the facts on which this case must turn should be found, for the reasons that I've indicated, by the learned magistrate."

41. The appeal was upheld (on 20 February 2002). On 22 February 2002, after some further submissions, the respondent was ordered to pay the appellant's costs. The matter was remitted to the learned Magistrate to determine the outstanding issues.

THE APPEAL TO THIS COURT - THE CONTENTIONS

42. Caldipp, by notice of appeal dated 15 March 2002, challenges Ryan J's decision.

43. Counsel for Caldipp accepted that the experiencing of disabling pain symptoms in the course of and as a result of work was an aggravation or exacerbation of the disease fibromyalgia but disputed that the past exacerbations were causative of Mr Delov's current incapacity for work.

44. He also submitted that, correctly construed, the WC Act requires that the employment adversely affect the underlying condition so as to result in incapacity in order to give rise to a continuing compensable incapacity.

45. In reply, Mr Lunney, for Mr Delov, pointed out that the undisputed facts were that over time, the symptoms of the underlying fibromyalgia had worsened to the point where they prevented Mr Delov from engaging in his pre-existing duties. Nor was it necessary that the underlying condition itself be progressed by the exacerbations for the resultant condition of incapacity to be compensable.

THE AUTHORITIES

46. It seems to me that the appellant's contentions are only partially correct. It is correct that there must be a substantial contribution between an alleged continuing incapacity and the employment. However, there is no requirement that the exacerbations or aggravations make the underlying condition worse.

47. In the present case, the symptoms were provoked by the employment. It was clearly open on the evidence for his Worship to have found that the pain experienced became progressively worse as Mr Delov continued to engage, periodically, in the heavier aspects of his work. And, further, that the effects of the successive exacerbations became worse until the point was reached where he could no longer usefully engage in his usual duties.

48. The distinction is well illustrated in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157. In that case, the worker had a progressively worsening cardiac condition, a disease unrelated to his employment. His employment resulted in a disease, not itself disabling, of the lungs. The latter, however, accelerated the progress of the cardiac condition which would, in any event, even absent the lung condition, have become disabling. The inevitability of incapacity for work from another cause does not break the causal link between the compensable incapacity and continuing incapacity for work.

49. Jordan CJ pointed out, at 162, that a worker is entitled to compensation:

"... so long as the employment injury produces effects and these effects, added to the effects of the disease as it existed when the injury occurred, are sufficient to produce disability."

50. Again, at 164:

"When the employment injury is one producing effects which, coupled with those of an existing non-employment disease, are incapacitating, and the supervening event consists in a subsequent accentuation of the disease, the question is whether the employment injury still produces effects which, coupled with the disease, would still disable him assuming that the accentuation of the disease had not occurred."

51. Of course, that case was, primarily, one of the cumulative and continuing effects of two conditions separately incurred and cumulatively producing disability. In the present case, the fibromyalgia is pre-existing, and the manifestations of it were both pain and fatigue. That effect was work-related. It was itself deemed to be a work-related disease and, hence, an "injury". The evidence suggested that the effects subsided with rest but returned, with increasing virulence, until Mr Delov was unable to perform his usual duties.

52. It could, therefore, be concluded that the liability to pain at a disabling level has continued and appears permanent (or at least of indefinite duration).

53. That situation is not dissimilar to the facts of Federal Broom Co Pty Ltd v Semlitch (supra). In that case, a worker's muscular strain had triggered a disabling mental condition. The primary question was whether the mental condition was "an injury". The physical injury had, though itself temporary, exacerbated an underlying mental disease, itself not related to the employment.

54. The key meaning of "exacerbation" was illustrated by Kitto J, at 634, in the following terms:

"Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound."

55. Of course, Caldipp would say that once the level of smarting had again subsided, the salt had lost its connection to the pain of the wound. If it was to be again salted, that would be a new exacerbation, unconnected to the first.

56. To similar effect is The Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19. The worker's non-employment related condition predisposed him to catastrophic spinal collapse. The latter, though the result of the disease, was contributed to by the work activity. It was held to be immaterial that the spinal collapse might well have occurred in any event.

57. Barwick CJ, at 27, pointed out:

"... incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease."

58. That passage illustrates the essential difference between notions of causation relevant to the assessment of damages for personal injury and that for an award of workers compensation. The latter is event-based. If the prescribed event has occurred and is producing the prescribed effect, then compensation is payable even though, but for that event, the result would have been the same.

59. The question is whether the relevant incapacity had come to an end.

60. To answer that question requires that the incapacity be properly identified. The learned Magistrate had, incorrectly in my view, identified the incapacity as the pain and fatigue itself so that each episode of pain and fatigue, admittedly disabling, was a separate deemed injury which ceased when the pain and fatigue subsided with rest.

61. The fallacy in that approach is that it is not merely the pain and fatigue that constitutes the incapacity, it is the continuing susceptibility to suffer those symptoms. That incapacity was itself the result, even if arising from underlying pathology and whether or not it would have arisen otherwise than in a work context, of the employment.

62. Commonwealth of Australia v Beattie (supra) affirmed that proposition. The worker had suffered a non-work-related groin strain. Work activity gave rise to pain, though it had no effect on the underlying pathology.

63. It was argued that the pain was no more than the manifestation of the original non-compensable injury. The fact that the symptoms were aggravated by work activity was, it was contended, irrelevant.

64. Evatt and Sheppard JJ rejected that contention but warned, at 378:

"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury."

65. There is, therefore, a distinction to be observed between the natural or usual consequence of an injury or disease and the exacerbation or aggravation of those consequences by work-related activity. Then there is the aspect of the continuing connection between incapacity for work and the work-related exacerbation or aggravation of those symptoms.

66. Thus, I come to Asioty v Canberra Abattoir Pty Ltd (supra). It was a case involving the same legislation as that with which we are presently concerned. "Injury" includes not only a work-related disease but a work-related "aggravation, acceleration or recurrence of a pre-existing disease".

67. In that case, the worker had an underlying dermatitis condition. It was not work-related. Yet the work caused a flare-up of symptoms. They abated when he ceased work. They flared up more and more severely when he resumed work again on subsequent occasions. Yet the underlying condition was not itself adversely affected.

68. Was the incapacity for further work unrelated to the aggravation suffered at work?

69. Toohey J delivered the principal judgment. The Federal Court had rejected the worker's claim on the basis (as set out by Toohey J, at 536):

"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'."

70. Thus the issue was whether, once work had produced additional or intensified symptoms themselves constituting a "disease", the fact that once the symptoms had abated, the likelihood of their return upon resuming work constituted, in itself, a "disease".

71. It was accepted in Asioty, albeit there had been evidence to the contrary, that the underlying disease had not itself been exacerbated by the successive flare-ups of symptoms. Thus the worker could not succeed on that basis.

72. However, in Toohey J's view, the intensification of symptoms was, in itself, an aggravation of "the disease". His Honour, at 540, stated:

"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."

73. His Honour approved the formulation of the test proposed by Kelly J at first instance (at 540):

"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." (Emphasis added)

74. The point is that it is only necessary that the employment aggravates the symptoms of the underlying disease to the point where those symptoms cause incapacity. Then, if that same incapacity will recur whenever the worker resumes that (or like) work, there has been incapacity by reason of a work-related disease. The worker is, at least to that extent, incapacitated for work. The next question is the range of precluded occupations. As Toohey J said, at 541:

"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."

75. Reference may also be made to Kattelus v Wakep Pty Ltd (In Liq) [1990] ACTSC 18; (1990) 100 FLR 291. The worker suffered a spinal injury. His work was such that it created a risk of recurrence of that injury. That risk of recurrence, Kelly J considered, was, in itself, a relevant incapacity.

76. His Honour commented, at 305 - 306:

"As to the appellant's incapacity, it seems to me that he is in much the same position as was the appellant in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 [citing Toohey J supra, at 540]. ...

It is true that in the present case the words `for the first time' are not appropriate because there were previous episodes of back pain but I think that it is not absolutely necessary for a workman in the plaintiff's position to have suffered incapacity for the first time whether by aggravation by injury of a pre-existing condition or aggravation of a pre-existing disease. The question is whether the workman is now prevented or incapacitated from working because of the risk of recurrence of the injury aggravating the disease."

77. I agree with those comments.

78. It follows, therefore, in my view, that, in the case of a pre-existing underlying disease, aggravation or exacerbation of it may be compensable if:

(a) the pathology is worsened so that incapacity results; or

(b) the symptoms, whether experienced before or not, are exacerbated so as to result in incapacity for work.

79. There will be a continuing incapacity if the liability of a return of those symptoms as a result of the employment in question itself continues.

80. The symptoms will not be regarded as aggravated by the employment if, like the pain of a broken leg, they are merely the manifestation of the non-work related injury and not of a worsening of those symptoms themselves.

81. In the present case, it had been open to the learned Magistrate to find that the underlying pathology had created some, but not disabling, symptoms. And, further, that the nature of the employment caused a gradual worsening of those symptoms to the point where resumption of full duties provoked disabling symptoms and that those symptoms would recur if those duties were to be resumed. Hence, it seems to me Ryan J was right to conclude that his Worship had erred in dismissing Mr Delov's claim without considering that it was open to him to make such a finding.

82. I also agree that it is for his Worship to determine the degree of incapacity and the matter must be remitted for decision accordingly, as his Honour directed.

83. I would dismiss this appeal, with costs, confirming the orders made by Ryan J.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins.

Associate:

Dated: 26 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A6 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME

COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CALDIPP PTY LIMITED t/as SLAVEN MOTORS APPLICANT
AND:	PERO DELOV RESPONDENT

JUDGES:	HIGGINS and MADGWICK JJ
DATE:	26 NOVEMBER 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MADGWICK J:

84 It is perhaps surprising, given the amount of case law on the subject, that in 2002 there might still be any room for argument about the legal concepts inherent in the treatment by Australian workers' compensation laws of incapacity caused by "injuries" comprised of work-related aggravations of diseases unrelated to the work. Yet this case shows that such may be the position.

85 The law, as exemplified by the relevant A.C.T Act, and explained in the cases referred to by Higgins J, seems to me to warrant the following propositions:

(1) If a worker has a disease, goes to work with it, but ceases work because of the disease, incapacity for work on account of the disease alone is not compensable. An example is a worker with the common cold. If he/she sniffles, sneezes, coughs and so on at work and has to go home again on that account, but the work has not intensified the level of actual or potential suffering, there is no aggravation/exacerbation of the disease and the incapacity is not compensable. This is trite.

(2) If, however, the work intensifies the symptoms of the disease and as a result of the intensified symptoms the worker is incapable of working, that is a compensable aggravation/exacerbation of the disease. Again that is trite.

(3) If, after and because of one or more such intensifications of symptoms, the disease is made harder to treat or symptoms are more readily precipitated or the symptoms are worse when they occur or the physical or mental causes of the disease worsen, and inability to perform work is caused by, respectively, such difficulty of treatment, precipitation of symptoms, worsened symptoms or deterioration of pathology, then there has also been a compensable aggravation/exacerbation of the disease. It is important to recognise the significance both of the multiple ways in which a disease might be aggravated by work-related factors and of the requirement that the incapacity be caused by the disease as so aggravated.

(4) However, if there has been no work-related intensification of present suffering or of the ill effects of the disease producing present suffering, there is no compensable aggravation or exacerbation of the disease. Thus, in the example in (1) above, if the employee with the cold goes to work again the next day, with the same level of symptomatology, and the cold has not been made more difficult to treat or otherwise worsened by the previous day's attendance at work, any incapacity from those symptoms is not compensable. I take this to be the thrust of the broken leg in plaster example given by Sheppard and Evatt JJ in Beattie. In my opinion, Asioty decided no more than I have said in (3).

86 In the present case, as Ryan J demonstrated, there is evidence which, conformably with proposition (3) above, permits findings that the progressively worse pain and discomfort that Mr Delov experienced, before he ceased his usual (fairly heavy) work, amounted to a work-related aggravation of his disease of fibromyalgia. It could also be concluded that, but for such past exacerbations of his pain by his usual work, he would not now be imminently incapable of performing such work. If those conclusions are drawn, compensation would be payable. While the matter is not free from doubt, it does seem, on balance, that the learned magistrate did not appreciate that these conclusions, or that consequence, were open to him.

87 I do not understand there to be any difference between Higgins J and myself on the foregoing matters. However, Ryan J, correctly in my opinion, recognised in his supplementary reasons, that an act of judgment is required as to whether, in the light of all the evidence, those conclusions should be drawn. If so, readily assessable compensation should be paid. But it seems to me that, conformably with principle, the judgment should, at least in the first instance, be left to the learned magistrate who tried the case and who seems not to have appreciated that the opposite conclusion to the one he reached was open to him.

88 I agree that the appeal should be dismissed and the orders of Ryan J should be confirmed. Regrettably however, the reconsideration cannot in my view be limited to the question of incapacity alone.

I certify that the paragraphs numbered eighty-four (84) to eighty-eight (88) are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 26 November 2002

Counsel for the Appellant:	Mr R E Williams QC
Solicitor for the Appellant:	Hunt and Hunt
Counsel for the Respondent:	Mr G Lunney
Solicitor for the Respondent:	Higgins, Solicitors
Date of Hearing:	15 August 2002
Date of Judgment:	26 November 2002