FEDERAL COURT OF AUSTRALIA

Holt v Comcare [2003] FCAFC 221

COMMONWEALTH EMPLOYEES’ COMPENSATION – stress-related asthma– aggravation by working conditions – employee ceased work – subsequent termination of compensation payments – whether effects of work-related injury persisted – whether Administrative Appeals Tribunal asked itself wrong question – whether appellant put case as one of aggravation of underlying condition or enhanced susceptibility – relevance of absence of major asthma attack for 15 years and absence of consultation with treating specialist for 13 years

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 16, 19

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Superannuation Act 1922 (Cth)

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 considered

Craig v South Australia (1995) 184 CLR 163 referred to

VIVIENNE HOLT v COMCARE

S 289 of 2002

GRAY, COOPER AND SELWAY JJ

3 OCTOBER 2003

ADELAIDE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

The nature of the appeal

1                     This appeal is from a judgment of a judge of the Court. On 28 November 2002, his Honour dismissed an appeal by the present appellant from a decision of the Administrative Appeals Tribunal (‘the Tribunal’). His Honour also ordered that the appellant pay the respondent’s costs of that appeal and that each party pay her and its costs in respect of the notices of motion respectively filed by the parties in the proceeding.

2                     The decision of the Tribunal was made on 24 December 2001. The Tribunal affirmed a decision of the respondent, Comcare, of 3 January 2001. The decision of Comcare was to affirm a determination of 4 October 2000 that Comcare was no longer liable to pay compensation to the appellant, pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), in relation to her condition of ‘aggravation of
stress-related asthma’, which had been accepted as entitling her to compensation since 4 April 1985.

3                     By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), a party to a proceeding before the Tribunal may appeal to the Court, on a question of law, from any decision of the Tribunal in that proceeding. The appeal to the learned primary judge was therefore limited to questions of law. It follows that the appeal to this Court is also limited to questions of law.

The legislation

4                     Section 16 of the SRC Act provides that Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to an injury suffered by an employee, compensation of such amount as Comcare determines is appropriate to that medical treatment. Section 19 provides that Comcare is liable to pay to an employee, who is incapacitated for work as a result of an injury, weekly payments of compensation. The term ‘injury’ is defined in s 4(1) of the SRC Act. The definition includes ‘a disease suffered by an employee’. The term ‘disease’ is defined in the same provision. The definition includes any ailment suffered by an employee, or 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. The word ‘ailment’ is also defined to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.

The facts

5                     The following is a summary of the facts based on the findings of fact of the Tribunal. The appellant, who was 54 years old at the time of the Tribunal decision, was born and grew up in Adelaide. She gave evidence that, on occasions during childhood, she became wheezy and breathless, without apparent cause, but could not connect this to any particular activity or situation. She never consulted a doctor in Adelaide about asthma, nor had any form of treatment. She led an active lifestyle, walking, canoeing and kayaking.

6                     In November 1971, the appellant married a public servant. She joined the Australian Public Service in July 1973. According to her evidence, at the time of her appointment, she was examined by a medical officer and her mild asthma was not seen as a deterrent, whereas severe asthma would have precluded employment in the public service and qualification for superannuation. There was documentary evidence that a Benefit Classification Certificate was issued under the Superannuation Act 1922 (Cth) in relation to the appellant’s asthma, and her probation period was extended to 12 months. In due course, she became a permanent officer in the public service.

7                     In February 1974, the appellant and her husband were transferred to Canberra. They resided in hostel accommodation initially. Shortly after their arrival, a general practitioner diagnosed the appellant as suffering from bronchitis, and prescribed Ventolin. The appellant returned to work after two weeks. Her asthma symptoms became worse. By March 1975, she was using Ventolin more frequently and it was having less effect. On 23 March 1975, she collapsed at home in the evening and was admitted to Canberra Hospital, suffering from an acute asthma attack with pulmonary arrest. She remained in hospital until 5 April 1975. She was readmitted on 20 April 1975, although the hospital notes recorded that her chest tightness was not characteristic of asthma. She was admitted to hospital again on 1 March 1976 and remained there until 6 March 1976, having been diagnosed with pneumonia.

8                     By May 1982, the appellant had achieved an Arts degree and considerable promotion within the public service. Her position required her to travel interstate on a regular basis, which subjected her to climate changes. She worked in an air-conditioned office among people who smoked. She found that smoke and perfumes affected her asthma.

9                     Between June 1982 and May 1985, the appellant lived separately from her husband. The job she performed required frequent travel from Canberra to Sydney. On 23 April 1985, she was admitted to Canberra Hospital with what was diagnosed as a mild to moderate asthma attack. She was discharged on 27 April 1985 and has not returned to work since. On her discharge, a Dr Faunce reported that a view of her medical state suggested that she be assessed/advised to retire from the public service on medical grounds. On 3 May 1985, she was examined by a Commonwealth Medical Officer. On 6 June 1985, she lodged a claim for compensation for ‘aggravation of severe chronic asthma’ as a result of ‘constant change of climate due to continuous (weekly) travel and severe stress due to the workload and responsibility of the duties’.

10                  On 4 September 1985, Comcare accepted liability to pay compensation. Initially, the condition was described in Comcare’s determination as ‘contraction’ of stress-related asthma, with the deemed date of injury being 4 April 1985. The appellant received weekly payments of compensation pursuant to s 19 of the SRC Act with effect from 15 August 1985. She also received a pension from the superannuation fund. The weekly payments of compensation ceased as a result of Comcare’s determination on 4 October 2000. In the meantime, in a determination dated 17 July 1986, the description of the appellant’s accepted condition was amended to read ‘aggravation of stress-related asthma’.

11                  In October 1987, the appellant and her husband returned to South Australia. She consulted Professor Alpers, who was at that time an Associate Professor and Senior Director of the Respiratory Unit at Flinders Medical Centre. He first saw the appellant on 5 November 1987. She last consulted Professor Alpers as a patient in July 1988.

The Tribunal’s reasons

12                  The Tribunal heard evidence from the appellant and her husband, as well as evidence from Professor Alpers, Dr Taylor (the appellant’s general practitioner), Professor Goldney from the Department of Psychiatry at the University of Adelaide and Dr Stevenson, a consultant physician. It also had before it the report of Dr Truman, a psychiatrist, who had examined the appellant at the request of Comcare.

13                  In its reasons for decision, the Tribunal identified the parties’ respective cases as follows:

‘The applicant submits finally that the stress related aggravation of 1985 persists until today, and plays a role in her inability to go back tomorrow, into this type of work environment. The medical evidence supports a plausible and consistent scenario where stress was, and is, a factor which endures. The applicant is totally incapacitated for the work she was performing, and is entitled therefore to ongoing payment of compensation.

Comcare argues that the applicant had a history of asthma before she went to Canberra and that soon after her arrival in Canberra, she had some flair ups [sic]. It accepts that work stress aggravated her asthma symptoms in 1985, but maintains that it had no permanent effect, and that the symptoms which arose from these aggravations, have resolved. The applicant’s asthma is either in a comparable position to her pre-Canberra state, or alternatively her current condition is the result of the natural course of her underlying condition of asthma. Any effects of the work related conditions had ceased by October 2000.’

14                  The Tribunal’s assessment of the appellant’s evidence was that she emphasised details favourable to her assertions and minimised unfavourable aspects of her history. She understated the level of symptoms of asthma she suffered prior to 1973. She exaggerated the level of work stress she was experiencing at the time of her first hospitalisation in March 1975. The Tribunal concluded that she had exaggerated the work-related stress factors for the purpose of the proceedings. Similarly, the appellant’s husband emphasised the positive aspects, whilst downplaying or denying the negative aspects of the history.

15                  After expressing these views, the Tribunal said:

‘In any event, much of the history of events in 1975 are [sic] peripheral only, in that the decision under review, in 1985, relates to a condition of “aggravation of stress related asthma” with an injury date of 4 April 1985. The question remains as to whether the effects of the work related injury persist beyond 4 October 2000.’

16                  Among the medical practitioners, the Tribunal preferred the evidence of Dr Stevenson and Professor Goldney, both of whom were called by counsel for Comcare.

17                  The Tribunal accepted that stress was a relevant consideration in relation to asthma.

18                  After summarising, and in two cases quoting, the evidence of the four medical witnesses called, the Tribunal said:

‘In these brief reasons for decision, I am unable to outline in any greater detail the extensive evidence provided by the medical witness [sic], all details of which I have taken into account in my deliberations. I have examined the whole of the evidence carefully and in detail and I have taken into account the parties’ submissions.

I consider that on the whole of the evidence, the applicant’s asthma is aggravated by change in temperature, exposure to air conditioning, perfumes and other factors, including stress, as outlined in particular, by Professor Alpers and Dr Taylor; but on the evidence also, the applicant has suffered asthma since childhood. Comcare accepted liability for aggravation of stress-related asthma, which occurred on 4 April 1985. The applicant continued to be compensated for this aggravation for 15 years, until 4 October 2000. In that 15 years she suffered no major asthma attack; she has not seen her treating specialist, Professor Alpers, for 13 years. Her treating General Practitioner, Dr Taylor, has monitored her condition and prescribed ongoing and regular medication to keep her symptoms at bay.

I accept the evidence of Professor Goldney and Dr Stevenson to the effect that any work-related stress was transient or episodic, and would have ceased some 15 years later, when the primary decision was made. I am satisfied on the evidence and find as a fact that any work-related aggravation of the applicant’s condition of stress related asthma had ceased by 4 October 2000.

For these reasons the Tribunal affirms the decision under review.’

The appellant’s case at first instance

19                  In her notice of appeal to the Court at first instance, the appellant raised a number of issues. She contended that the Tribunal addressed the wrong issue, whether the effects of the work-related injury persisted beyond 4 October 2000. It failed to address the correct issues, whether in October 2000 the appellant still suffered from an injury, being aggravation of underlying asthma and whether that injury was causing incapacity for work. It was contended that there were four items of relevant and uncontradicted evidence, to which the Tribunal failed to have regard. These were: the appellant had suffered cardio-respiratory or respiratory failure in 1975, to which work conditions, including climate changes, contributed; the appellant had a history of severe asthma between about 1975 and 1985, to which work conditions, including climate changes, contributed; the appellant’s asthmatic condition had become chronic by reason of work conditions, including climate changes; and exposure to work conditions, including climate changes, would cause recurrence of asthma attacks. The appellant characterised as irrelevant facts and considerations the fact that, in the 15 years since she ceased work, she had not suffered a major asthma attack, and the fact that she had not seen her treating specialist for asthma for about 13 years. The appellant contended that the Tribunal erred in law in that either it failed to make any finding whether work-related factors, including climate changes, caused a permanent aggravation of the appellant’s asthma condition or, if it made a finding on this issue, made a wrong finding against overwhelming evidence that the appellant had developed a permanent aggravation of her asthma condition in that it had become chronic. Finally, it was contended that the Tribunal addressed the issue whether work-related stress aggravated the appellant’s asthma condition and failed to address the issue whether other work-related factors, namely climate changes resulting from moving to Canberra and climate changes resulting from frequent travel, aggravated her asthma condition.

The primary judge’s reasons

20                  The learned primary judge identified the key issue as being, not whether the appellant’s asthma condition, which pre-existed her employment with the Commonwealth, prevented her from returning to work, but whether the circumstances existing in 1985 and before continued to contribute to her asthmatic condition and incapacity for suitable employment. His Honour held, in accordance with authority to which he referred, that the resolution of a conflict between medical experts as to the nature and effect of an injury would, in the event of an appeal, be an appeal upon a question of fact. He noted a concession by counsel who appeared for the appellant at first instance that there was material before the Tribunal, in the form of the reports and evidence of Dr Stevenson and Professor Goldney, on which the Tribunal could base its decision.

21                  His Honour referred to the Tribunal’s statement of the question as ‘whether the effects of the work-related injury persist beyond 4 October 2000’. He held that, although the language was different, this question addressed the same issue as the appellant contended should have been addressed, namely whether in October 2000 the appellant still suffered from any injury, being aggravation of underlying asthma. Having found against her in the course of answering that question, the Tribunal, in his Honour’s view, did not have to address the second question, whether in October 2000 that injury was causing incapacity for work.

22                  The learned primary judge rejected submissions: that the Tribunal had failed to have regard to the appellant’s pre-Canberra medical condition and to compare it with her post-Canberra medical condition; that the Tribunal failed to have regard to the fact that the appellant had suffered cardio-respiratory or respiratory failure in 1975 and that her condition had been contributed to by work conditions including climate changes; that the Tribunal failed to have regard to the fact that the appellant’s history of severe asthma between 1975 and 1985 was contributed to by work conditions, including climate changes; and that the Tribunal failed to take into account that the appellant’s asthmatic condition became chronic by reason of her work conditions, including climate changes. In rejecting these submissions, his Honour referred to passages in the medical evidence and in the reasons of the Tribunal.

23                  His Honour also rejected submissions that the fact that in 15 years the appellant had suffered no major asthma attacks, and the fact that she had not seen Professor Alpers for 13 years, were irrelevant factors that should not have been taken into account. In his Honour’s opinion, it was highly material that the appellant had suffered no major asthma attack in 15 years and had no need to see her treating specialist for 13 years.

24                  Having held that the appellant had failed to have the decision of the Tribunal set aside, and that her application must be dismissed with costs, his Honour turned to deal with the question of the costs of two notices of motion, filed by the respective parties in the proceeding at first instance. Both notices of motion arose from the fact that the appellant’s original notice of appeal was filed outside the statutory time limit. His Honour held that Comcare was entitled to its costs in respect of the appellant’s unsuccessful appeal, but those costs should not include any costs associated with the two notices of motion. Each party should pay their own costs in respect of those.

The appellant’s case on appeal to this Court

25                  In her notice of appeal from the judgment of the learned primary judge, the written submissions filed before the hearing of the appeal and oral submissions made on the hearing of the appeal, the appellant raised the following contentions. She argued that, once a determination had been made that there was a liability for an injury, issues relating to the nature of the injury, causation and the contribution to the injury by employment became closed. The question for the Tribunal, and for the learned primary judge, was whether the incapacity was continuing or had ceased. In posing this question as it did, the Tribunal posed the question in terms of causation. The Tribunal was distracted by issues about whether the employment was still a contributing factor to the incapacity and whether the work-related stress was transient or episodic. In this way, the Tribunal posed a wrong question for itself.

26                  The appellant also submitted that the question whether she was still incapacitated for work at the time of the determination required consideration of the nature of the original injury. That injury was a permanent aggravation of an asthmatic condition. Even if it were not, the nature of the condition was such that exposure to work would cause further aggravations. Alternatively, there was an enhanced susceptibility to asthma. Relying on Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 at 540 per Toohey J, the appellant contended that the Tribunal and the learned primary judge should have found that, as a result of the workplace injury, the appellant had been left with an enhanced susceptibility to asthma. The Tribunal and the learned primary judge therefore erred in law in the manner described in Craig v South Australia (1995) 184 CLR 163 at 179.

27                  The appellant also raised again the arguments about irrelevant and relevant considerations. She contended that the Tribunal took into account irrelevant material. She referred to the fact that the appellant had not suffered a major asthma attack in the 15 years during which she received compensation, and the fact that she had not seen Professor Alpers as a treating specialist in 13 years. She added as an irrelevant matter the finding that the work-related stress was transient or episodic. The appellant also contended that the Tribunal and the learned primary judge erred in law in failing to take into account relevant material. The class of relevant material was also expanded. It included: the fact that the appellant’s current state of health was a result of her ability to control her environment and minimise exposure to asthma triggering factors and her compliance with preventative medicine; the fact that the appellant had suffered cardio-respiratory failure in 1975; the fact that the appellant’s condition was contributed to by her work environment including air-conditioning, climate conditions, regular travel and the stressful nature of her work; the fact that, before the appellant commenced her employment duties in Canberra, the asthmatic condition had been no worse than mild, but after commencement the condition became seriously chronic and debilitating such that she had medical advice to leave work; and the fact that she was unable to return to work and remained incapacitated for stressful employment and probably for employment involving travel, air-conditioned offices and uncontrolled dietary situations, and the potential for ongoing acute and chronic asthma symptoms was ever present. It was submitted that the learned primary judge erred in considering that the Tribunal did have regard to relevant matters. The Tribunal had recited the evidence but the relevant factors did not operate on the mind of the Tribunal when it came to the matters that it considered relevant.

28                  The appellant also submitted that there was no basis in the evidence for the Tribunal’s finding that her incapacity from the work injury was spent and that her continued difficulties stemmed entirely from the natural progression of her pre-existing condition.

29                  The appellant submitted that, because of the Tribunal’s errors of law, the decision of the Tribunal was invalid, with the consequence that the learned primary judge was able to, and should have, reviewed the whole of the evidentiary material for himself. If his Honour had done so, he would have found on the balance of probabilities that there was a degree of ongoing susceptibility to the development of asthma symptoms in consequence of the work injury.

30                  The appellant expressly abandoned her contentions in relation to the costs of the notices of motion filed in the proceeding at first instance.

The Respondent’s argument on appeal

31                  Comcare submitted that the Tribunal correctly posed for itself the question ‘whether the effects of the work-related injury persist beyond 4 October 2000’. Neither the Tribunal nor the learned primary judge limited their consideration to whether incapacity was continuing or had ceased. The Tribunal had to resolve conflict between the evidence of medical experts. Deciding which evidence to accept is within the proper role of the Tribunal and any complaint about such a decision does not give rise to an appeal on a question of law. The Tribunal was entitled to accept the evidence of Dr Stevenson and Professor Goldney. In any event, the evidence of Professor Alpers did not support the proposition that the appellant’s employment with the Commonwealth caused permanent incapacity.

32                  The respondent also submitted that the contention that, on all the evidence, the Tribunal was bound to find that, as a result of the workplace injury, the appellant had been left with an enhanced susceptibility to the development of serious asthmatic symptoms, was not raised either before the Tribunal or the learned primary judge and should not now be entertained. If it were to be considered, there was no evidence that the appellant’s injury left her with an enhanced susceptibility to the development of serious asthmatic symptoms.

The question before the Tribunal

33                  There can be no doubt that the starting point for the appellant’s case was that, in 1985, she had suffered an aggravation of a pre-existing asthma condition. Even if the appellant had wished to challenge the amendment, made in July 1986, to the description of her accepted condition, it would have been too late to do so. Nor was it the appellant’s case that her working conditions had caused her to contract asthma. At all times, her case was that her working conditions had caused an aggravation of her pre-existing condition. The aggravating
factors were alleged to have been climate changes, due to frequent travel, and stress, due to her workload and level of responsibility.

34                  It was no part of the Tribunal’s responsibility to consider the correctness of the determination to accept aggravation of the appellant’s asthma as work-related in 1985. Nor did it do so. The Tribunal summarised the respective cases of the parties, in the passage quoted in [13] above, in a way that showed it understood those cases perfectly well. It also stated the question before it correctly as being whether the effects of the work-related injury persisted beyond 4 October 2000. The learned primary judge was correct to hold that the Tribunal stated the question correctly, although his Honour stated the same question in different terms.

35                  The answer given by the Tribunal to this question depended upon its assessment of the evidence before it. It is apparent from its reasons for decision that the Tribunal did not accept all of the evidence that the appellant and her husband gave. It is also clear that the Tribunal preferred the expert medical evidence called on behalf of Comcare to that called on behalf of the appellant. The determination of what evidence to accept, and particularly which items of conflicting evidence it preferred, were matters for the Tribunal. They do not give rise to any question of law, so could not be the subject of any appeal to the Court.

36                  The appellant failed to persuade the Tribunal that she suffered a permanent aggravation of her asthmatic condition by reason of work-related factors. It was not sufficient for her to prove that a return to work, under conditions similar to those the appellant had experienced between 1982 and 1985, would again aggravate her asthma. To establish that factual proposition would only be to establish that a resumption of work involving the same conditions would cause a further aggravation of the underlying condition. The question before the Tribunal was not whether there would be a further aggravation in the event of a return to work, but whether the aggravation that had occurred by 1985 was a continuing condition as at October 2000.

37                  Because of the difficulties in overcoming the Tribunal’s findings of fact adverse to the appellant, her counsel endeavoured to argue, both before the primary judge and on appeal, that the appellant’s condition should be regarded as a susceptibility to asthma enhanced by the aggravation she suffered in 1985. For this purpose, counsel for the appellant relied on Asioty. It is necessary to analyse the High Court’s judgment in that case, to see whether it supports the appellant in the present case.

38                  In Asioty, Toohey J delivered a judgment, with which Mason CJ, Brennan, Dawson and McHugh JJ all agreed. The case concerned a worker who suffered an underlying condition liable to cause dermatitis of the hands. Soon after he started work at an abattoir, he developed dermatitis. As a result, he was not able to work from time to time and received payments of workers compensation for the periods when he was off work. His employer applied to terminate the payments of compensation. The worker cross-applied for continuation of the payments on the basis of total, or alternatively partial, incapacity. There was evidence, accepted by an arbitrator, that the repeated outbreaks of dermatitis, caused by the conditions in which the worker worked, had caused his underlying dermatitis condition to be more likely to flare up, more recalcitrant and more difficult to treat. The arbitrator held that the worker was entitled to weekly payments on the basis of partial incapacity. The Supreme Court of the Australian Capital Territory allowed an appeal and substituted a finding of total incapacity. The Full Court of the Federal Court allowed an appeal by the employer and ordered that payments of compensation should cease from a particular date. The worker appealed by special leave to the High Court. The High Court held that the Federal Court had made an error and that the findings of the primary judge had been open to him, and allowed the appeal. In the course of his judgment, at 540, Toohey J said:

‘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.”’

39                  His Honour held that the Federal Court had been wrong to concentrate on the fact that once the worker ceased work with the employer, his symptoms abated. At 541, his Honour continued:

‘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.’

40                  It is plain that the High Court was not laying down the principle that, whenever there is an aggravation of a pre-existing condition resulting from working conditions, the person suffering from the condition is to be taken to be suffering from an enhanced susceptibility to the condition. No such principle could be laid down, because the question whether a person’s susceptibility has been enhanced is a question of fact in every case. Asioty is no more than the High Court’s recognition of the fact that the Federal Court in that case had ignored a crucial finding of fact, which was that there was enhanced susceptibility as a result of repeated exposure to the conditions under which the worker was employed.

41                  That is not the present case. Not only is there no finding of fact that the appellant’s underlying asthma has worsened as a result of the conditions to which she was exposed between 1982 and 1985, that was not even the case that she put to the Tribunal. Even her major medical witness, Professor Alpers, in a report dated 23 August 2001, which was tendered to the Tribunal, identified many trigger factors for the appellant’s asthma symptoms. They included temperature changes, exercise, stress, house dust, cats, pollens, horses and various food agents containing metabisulphite. It is obvious that most of these factors had nothing to do with the appellant’s work conditions in and before 1985. Professor Alpers’s view was that the appellant’s previous employment with the Commonwealth was still an ongoing factor, partly because of associated stress recurring from time to time. The Tribunal, however, preferred the evidence of Dr Stevenson, whose report dated 18 October 2001 contained the following passages:

‘If the proposition had been that after severe psychological stress from her occupation in the absence of extraneous life stresses Ms Holt had suffered temporary exacerbation of asthma, I would have had no major difficulty with accepting temporary work-relationship. I came to such a conclusion in another patient even today, a mild asthmatic who suffered harassment from a superior and needed 6 months of intermittent corticosteroids for deteriorating asthma. The superior was disciplined and removed; the lady recovered in a month and resumed productive employment. I had no problem accepting some modest relationship.

But what one is being asked here is something very different, for which much stronger evidence is demanded. It is that the stresses of this lady’s work were uniquely so profound that they altered the course of her asthma till she is no longer employable: and of this remarkable proposition there is no evidence. In fact, Professor Alpers as a scientific respiratory physician does not at all support that proposition and is very lucid on the point. The suggestion is intellectually indefensible. Professor Alpers and I appear now in full agreement that psychological stress relating to her previous employment has no effect on her current asthma and could not have done so for many years.’

42                  The acceptance by the Tribunal of this evidence in any event precludes the appellant from contending in this appeal that this was a case of enhanced susceptibility. Asioty was a case that turned on its facts. It did not establish any principle of law that every case of aggravation of an underlying condition had to be treated as a case of enhanced susceptibility, or had to be considered as if it might raise that possibility. Each case must be determined according to the evidence.

43                  There was therefore no error on the part of the Tribunal in the way in which it stated the question before it, or the way in which it dealt with that question. The learned primary judge was correct in rejecting the appeal in this regard.

Relevant and irrelevant matters

44                  It was certainly not irrelevant for the Tribunal to take into account the fact that, in 15 years since she had ceased work, the appellant had not suffered a major asthma attack and that she had not seen Professor Alpers as a treating specialist for 13 years. These facts bore upon the nature of the appellant’s condition. Nor was it irrelevant for the Tribunal to accept, as it did, the evidence of Professor Goldney and Dr Stevenson to the effect that any work-related stress was transient or episodic and would have ceased some 15 years later. Again, this clearly bore upon the appellant’s condition at the relevant time.

45                  Nor did the appellant succeed in establishing that the Tribunal failed to take into account relevant material before it. In its reasons for decision, the Tribunal certainly recited Dr Taylor’s opinion that the appellant’s asthma was a chronic condition, managed by preventative medicine, avoidance of trigger factors and a restricted lifestyle, and that it was unlikely that her condition would improve. The Tribunal also made findings about the appellant’s acute asthma attack and pulmonary arrest in March 1975, her subsequent hospitalisation and her readmission in April 1975. It expressed findings about the grounds on which the appellant had claimed compensation in 1985 and the ground on which her condition had been recognised by Comcare for compensation purposes. It was not open to the Tribunal to go behind the earlier decision, and to attribute the appellant’s condition in 1985 to causal factors other than those that had been accepted. The Tribunal was aware of the deterioration in the appellant’s asthmatic condition over the years. It recited the evidence of both Professor Alpers and Dr Taylor as to the multiplicity of trigger factors to which the appellant was subject. It was certainly aware that a return to work by the appellant, accompanied by stress and perhaps other factors, would have been likely to trigger further aggravation of the appellant’s underlying conditions. This did not mean that the Tribunal was bound to accept that her work continued to be a factor in that underlying condition in October 2000.

46                  The Tribunal did not ignore the case put by the appellant. It rejected it, having regard to the evidence tendered by Comcare. This was the very function of the Tribunal. The appellant’s real complaint is that the Tribunal should have made findings of fact more favourable to her. That is not a case that she is entitled to put on appeal to this Court, because it does not involve a question of law. The learned primary judge was correct in rejecting the appellant’s arguments that the Tribunal had relied on irrelevant considerations and failed to take into account relevant ones.

Conclusion

47                  For these reasons, the appeal must be dismissed. In accordance with the usual rule, that costs follow the event, the appellant should be ordered to pay Comcare’s costs of the appeal.

Associate:

Dated: 3 October 2003