JUDGMENT No. Io 1/ 8S, CATCHWORDS WORKERS' COMPENSATION - Commonwealth employees ~ Disease - Vasomotor rhinitis - Whether employment a contributing factor to the contraction or aggravation of the disease - No pathological change in employee's basic underlying constitutional condition - Whether aggravation temporary and recurrent - Review by Administrative Appeals Tribunal - Whether Tribunal bound to consider whether the material before it other than expert medical evidence enabled it to reach a conclusion Tavourable to employee - Whether evidence to support the Tribunal's conclusion. Administrative Apnenls Tribunal Act 197£ .Cth}, c.44(1) Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss.27, 29 THE COMMONWEALTH OF AUSTRALIA v. MARJORIE KIMBALL BULLLVANT No. ACT G 10 of 1987 Neaves J. 12 April 1988 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 10 of 1987 DISTRICT REGISTRY GENERAL DIVISION ON_APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: MARJORIE KIMBALL BULLIVANT Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 12 April 1988 WHERE MADE : Canberra THE COURT ORDERS THAT: i. The appeal and cross appeal be dismissed. 2. There be no order as to costs. 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 GENERAL DIVISION No. ACT G 10 of 1987 wwe we wvw ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : THE COMMONWEALTH OF AUSTRALIA Applicant AND: MARJORIE KIMBALL BULLIVANT Respondent CORAM: Neaves J. DATE: 12 April 1988 REASONS FOR JUDGMENT In this matter the Administrative Appeals Tribunal ("the Tribunal") reviewed two determinations under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) {"the Act") in respect of claims for compensation made by Marjorie Kimball Bullivant, formerly Marjorie Kimball McCumber ("the respondent"). By the first of those determinations, which was made on4 May 1976, 1t was determined that the respondent had contracted a disease, rhinitis, to which her employment 1n the Police Force of the Australian Capital Territory was a contributing factor, that the disease was deemed to be a personal injury to the respondent arising out of tw her employment and that the respondent's employer was liable to pay compensation in respect of incapacity for work arising from that personal injury. The second determination was made on 21 September 1978. It determined that the respondent's employment "was not a contributing factor to the contraction of the condition suffered by her and which caused incapacity for work and required medical treatment on and subsequent to 16 October 1977 or to the aggravation, acceleration or recurrence of that condition" and that compensation was not payable in respect of any period of incapacity, or in respect of medical treatment received, subsequent to that date. The Tribunal set aside both determinations and remitted the matter to the Commissioner for Employees' Compensation for reconsideration with directions to the following effect - (a) the employment of the respondent by the Commonwealth of Australia ("the Commonwealth") was a contributing factor to the aggravation of rhinitis and sinusitis; (b) total incapacity for work resulted therefrom up to but not after her retirement from her employment on 2 May 1980; and (c) the respondent was entitled to compensation in respect of any periods of incapacity for work prior to 2 May 1980 for which she had not been paid. The Tribunal remitted the matter to the Commissioner because it did not have before it full details of the periods during her employment by the Commonwealth during which the 3. respondent was absent from work, unpaid, because of incapacity arising from the aggravation of the condition from which she suffered. From that decision the Commonwealth has appealed to this Court pursuant to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) contending that the decision should be set aside and the determination made on 21 September 1978 confirmed. Pursuant to Order 53, rule 13 of the Federal Court Rules the respondent has filed a notice of cross-appeal. The respondent's primary contention is that the Tribunal erred in law in failing to find that the disease from which she suffered was caused by her employment by the Commonwealth and in failing to find that the respondent was thereby totally, or alternatively partially, incapacitated for work, such incapacity continuing after she ceased to be employed by the Commonwealth. In the alternative, it is contended that, 1f it be correct to say that the employment of the respondent by the Commonwealth aggravated, but did not cause, the disease from which she suffered, the aggravation led to a permanent worsening of her condition for which the Commonwealth is liable to pay compensation under the Act. The respondent was born on 30 March 1951. She spent her formative years at Mildura in the State of Victoria and, after completing her schooling at' secondary level, attended a nursing course at the Mildura Base Hospital. Her evidence was that the hospital itself was 4. served by a ducted air system, the air being heated in winter and cooled in summer; that she lived in the part of the nurses quarters which had no air conditioning system of any sort; and that she suffered no relevant illness during that period. The respondent came to Canberra in 1969 and joined the Commonwealth Public Service. She was employed as a clerk in the Department of Supply. From 1969 to 1972. she worked in an office building known as Anzac Park West which had an air conditioning system which forced heated or cooled air through the building by means of a fan. During this period, according to the respondent's evidence, she had no aifficulty with her nose or her breathing. On 10 February 1972 the respondent joined the Army Reserve. This involved her attending nightly parades once a week. On 11 September in that year she joined the Police Force of the Australian Capital Territory. After initial recruit training of some 16 weeks' duration while based at Woden Police Station, the respondent was appointed a probationary constable and was assigned to the Women Police Section at Police Headquarters, London Circuit, Canberra City. The Tribunal accepted that the Police Headquarters building had a similar air conditioning system to that installed at the building known as Anzac Park West. The respondent considered that her duties in the Women Police Section required her to spend, on average, about 50 per cent. of her working hours in the building. Early in 1973 she began to have trouble with headaches and a stuffy nose and she consulted Dr Peter Hoare, a general practitioner. After a period of about 12 months in the Women Police Section, the respondent was transferred to the General Duties Division which was located in the same building but on a lower floor. In that Division she spent considerably less time (only 20 per cent. on average) in the building. She said that while the symptoms were still present, they did not seem as bad. Later she worked in the Information Section in the same building. Her symptoms, she said, then became worse. Dr Hoare referred the respondent to Dr A.J. Bridger an ear, nose and throat specialist. Ina report dated 31 March 1980, Dr Bridger stated that on 31 May 1973 the respondent was seen by him, having been referred witha history of chronic nasal obstruction and periodic sinus problems. He stated that examination of the nose_ showed considerable septal deviation to the right, possibly of a traumatic origin; that there was evidence of an atopic nasal Mucosa; and that an X-ray of the paranasal sinuses was clear. He said that on 10 April 1974 septoplasty was carried out and the septum re-aligned to the mid position. The doctor reported that, post-operatively, the respondent had made a good recovery but that there were intermittent bouts of allergic rhinitis requiring control with medication. The respondent's last visit to Dr Bridger was recorded as having been on 25 July 1974. Prior to 1974 the respondent had lived in various suburbs of Canberra. In that year she married and she and her husband moved to a 42 acre farm at Hall. In 1981 they purchased a farm of 711 acres at Jerrawa near Gunning. In 1983 they moved to a small farming property of 9 acres at Yass while still retaining the property at Jerrawa. In May 1975 the respondent was seen by Dr S.P. Trenerry, a specialist in allergic diseases. In a report dated 15 May 1975, Dr Trenerry said: "Thank you for referring Miss Marjorie McCumber, a police woman who complains of a blocked nose and post nasal drip whilst working in her air-conditioned office. She is symptom free after a day or two on the farm. She develops a slight cough and a wheeze when the nose is. bad, but no asthma. As a child she suffered hives from 'white cats only' and chocolate. She is sensitive to a number of foods and I have advised her to try eliminating these, but her problem is mainly due to the air-conditioning and there is no solution to this, other than transfer to a non-airconditioned building. I have asked her to come back ina month's time to report what progress she might make with the diet. I will write again." Although the application was not available to the Tribunal, it appears that towards the end of 1975 the respondent submitted a claim for compensation in respect of "chronic rhinitis/sinusitis". In accordance with a request made by a delegate of the Commissioner for Employees' Compensation, Dr Trenerry completed a form of questionnaire in March 1976 stating that the respondent was suffering from rhinitis. He answered inthe affirmative the question whether her condition was due to the contraction of a disease to which her employment was a contributing factor and supplemented that answer by saying that the contributing factor was "air conditioning in the office". The avoidance of air conditioned buildings was recommended: outdoor employment was said to be desirable. On 4 May 1976 the determination under the Act to which I have already referred was made. It seems clearly to have been based upon what Dr Trenerry had said in answering the questionnaire. Further determinations under the Act were made from time to time, consequential upon the determination made on 4 May 1976, providing for the payment of compensation in respect of specific periods of incapacity for work and for the payment of medical expenses incurred by the respondent. It may be noted at this point that the Commonwealth undertook, as a condition of being permitted, notwithstanding the lapse of time, to challenge the determination made on 4 May 1976, not to seek reimbursement of any amounts paid by way of compensation or for medical treatment pursuant to that determination. The respondent was referred by her then generai practitioner, Dr P. Grant, to Dr J.H. Lancken, an ear, nose and throat specialist. Dr Lancken furnished a report dated ll June 1976. That report reads: 8. "Many thanks for referring Miss Marjorie McCumber, the 25 year old patient who has suffered from intermittent nasal obstruction. This is worse in the winter and 1n cold weather and she gets occasional headaches. The headaches would seem to be of the migraine type and are worse when she is in bright light. If she is 1n an air-conditioned room, her headache appears. She tends to eat a lot of chocolate and drinks a lot of milk. Her mother apparently gets headaches of a similar type. She herself works in the Federal police force and there do not seem to be any allergic factors. She had an allergy survey in 1975 but all tests were negative. Examination showed the nasal mucosa to have an allergic appearance, but I could find no other significant abnormality. RAST tests to try and determine the presence of increased concentrations of IGE CImmunoglobulin EJ] in the blood were negative and did not suggest any marked hypersensitivities to the allergens tested. However, I feel sure that this patient does in fact have vasomotor rhinitis associated with migraine, and that many factors including diet as well as physical conditions (such as temperature, etc.) and air conditioning make a difference to such a person's nose. I know of no satisfactory medical or surgical treatment for the condition, except for an avoidance of the foods that will sometimes bring on the problem. I tried to point this out to her." The material before the Tribunal showed that respondent had a number of short periods of incapacity work because of the disease in September, October November 1976. On several occasions incapacity for followed immediately upon a period during which respondent was off duty or working outdoors. the for and work the 3. The respondent was seen by Dr A. Howard Marsh, the Australian Capital Territory Police Medical Officer, who, in a report dated 19 January 1977 said: "I recently interviewed Constable McCumber as she continues to suffer from headaches and sore eyes and as she considers these disabilities are brought about or aggravated by the alr conditioning in this building. Constable McCumber signed an authorisation for me to discuss her case with Dr Trennery [Csicl who has investigated her case from the allergy point of view. Dr Trennery (Csicl] said he had been unable to find any evidence of allergy but stated that some people get eyestrain from fluorescent lighting, and that changes in temperature may also affect the upper respiratory tract. He thought Constable McCumber came into this category - i.e. sensitivity to physical factors in the environment. We are therefore confronted with a situation of trial and error in attempting to find suitable employment for her. Because of the severity of her headaches, Constable McCumber uses analgesics regularly and I have intimated that this is undesirable. If no suitable employment can be found she would be better to give up Police work altogether and seek employment elsewhere." It is not clear to which building Dr Marsh was referring in the opening paragraph of that report. However, at some time prior to 20 May 1977 the respondent had been transferred from Police Headquarters to the Woden Police Station. It will be necessary to return to the question whether' the Woden Police Station was at the relevant time served by an air conditioning system and, if so, the nature of that system. 10. During her time at the Woden Police Station the respondent spent 20 - 50 per cent. of her time out of the building but much of this was spent on patrol duty in an air conditioned shopping centre. She remained at Woden Police Station until her retirement. From time to time the respondent was absent from work, her absences being supported by certificates from her general practitioner, Dr Grant. A further report on the respondent's condition was sought from Dr Trenerry. His report dated 20 May 1977 reads as follows: "This policewoman reports that since being transferred to Woden in January where she is mainly on patrol duty, she has been 'a lot better since then'. She did have some trouble at Woden last Winter when lecturing on the top floor which is 'very hot and stuffy'. I believe Constable McCumber 's sinusitis problems are aggravated by air conditioning. As noted by you 'on several occasions she has been either on outside duty or rostered off duty on the day immediately prior to her absences due to this illness'. This is because, to quote her words 'it may take several days to build up to an attack'. She may be ill off duty and still ill when due to go back on duty. To answer specifically your questions in paragraph two of your letter of 6th December, 1976, the effects of the rhinitis are temporary though recurrent. The effects of air-conditioning ceases Csic] within a few days. She has sinusitis related to air-conditioning as previously declared both prior to and subsequent to the 24th September, 1976. I feel it should be noted that since her transfer to Woden she has had less trouble according to your' reports as she declared to me at this interview." ll. On 24 August 1977 Dr Marsh reported as follows: "I saw Constable McCumber this morning and have had two discussions with her doctor. She said her sinuses have been good since her transfer toa Woden. However, she has heen getting a lot of backaches over the past twelve months and it has been worse this winter. She also gets pains in her hips and legs and puts it down to the cold. These aches and pains affect her sleep. Her trouble occurred first at home and wakes her up. Has lived in present house for three years and it is cold and drafty on account of alterations and no electricity till two months ago. There are no symptoms suggesting a renal origin of her trouble and she has not noticed any swelling of any joints. Her hands go cold and white in cold weather and her feet are cold even in bed. She has a long history of sore throats and this should be checked out with a Rheumatologist. Her skin is dry and she doesn't perspire readily. Her troubles began when she first came to Canberra but was 0O.K. with an electric bianket on the bed. She 1s worried because her condition seems to be getting worse and financial commitments make 1t necessary to work for another two years. I have raised the question of hypothyroidism and/or of a rheumatic aetiology with Dr Grant who will see her again and arrange further investigation and report. Meantime she should continue duty." Periods of incapacity occurred in August and October 1977 and January 1978. One of those periods of incapacity, from 16 to 20 October 1977, occurred after the respondent had been working for only four days after returning from recreation leave, such work being carried out in what was described as an office that was not 12. air-conditioned. The material before the Tribunal, however, does not identify where the respondent was then performing duty. The period of incapacity in January 1978 followed immediately upon the respondent being off duty for seven days. Dr Trenerry was asked for his further comments. He examined the respondent on 12 and 20 July 1978. He also referred a blood sample for pathology. On 21 July 1978 he reported: "Constable McCUMBER has no evidence of allergic disease. All my tests proved this. She states that she is affected by air conditioning. There is no way that I can prove or disprove this. This tendency which she has, has not been brought on by work and should not be compensible in my opinion." Following receipt of that report the second of the determinations before the Tribunal was made. That determination, which is dated 21 September 1978, is in the following terms: "DETERMINATION 1. On the evidence before me, including specialist medical opinion, JI am unable to find that the condition suffered by the said Marjorie Kimball McCumber and which caused incapacity for work and required medical treatment on and subsequent to 16 October 1977 is the result of the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which her employment was a contributing factor. 2. NOW THEREFORE in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended including 13. section 29, and further to the determinations previously made in this Matter I hereby determine: - (a) the employment of the said Marjorie Kimball McCumber was not a contributing factor to the contraction of the condition suffered by her and which caused incapacity for work and required medical treatment on and subsequent' to 16 October, 1977, or to the aggravation, acceleration or recurrence of that condition; (b) the A.C.T. Police is, therefore, not liable to pay compensation in respect of the condition suffered by the said Marjorie Kimball McCumber and which caused incapacity for work and required medical treatment on and subsequent to 16 October, 1977." It is apparent that that determination was based on Dr Trenerry's further report. On 11 October 1978 the respondent requested that the determination be reconsidered. That request was supported by the report of Dr Lancken dated 11 June 1976, the text of which has already been set out. On reconsideration, the determination made on 21 September 1978 was confirmed. At the request of the respondent's solicitors, reports dated 27 November 1979 and 11 December 1979 were furnished by Dr Hugh Williams, an ear, nose and throat surgeon. At their request a report dated 23 December 1980 was furnished by Dr W.J. Bishop, a general practitioner. 14. Dr Williams' report dated 27 November 1979 was in the following terms: "I know this woman as Mrs Marjorie Bullivant. I initially saw her on the 25th September of this year. She 1s troubled by chronic nasal obstruction attributable to a nasal septal deflection associated with a compensatory vaso motor rhinitis. With the nasal congestion, there develops obstruction to the sinus drainage points with consequent sinus headaches. The problem she notices much more frequently in the presence of air conditioning. For the relief of these problems, on the 17th November, I performed a septoplasty operation resecting a displacement of the septum projecting to the left in the valve region. At the same time, bilateral intranasal antrostomies were fashioned and hypertrophic turhinates of the nose cauterised and outfractured. I have not seen her post operatively yet but it 1s to be hoped that her symptoms will be considerably improved by these procedures." His further report dated 11 December 1979 was as follows: "Thank you for your letter dated 7th December. I believe the answer to the two questions both A and B is in the affirmative. You state that it is Miss McCumber's contention that the air conditioning caused the condition and the only way which relief could be bought about was by being away from the office. If that is how she found the situation, I am not going to dispute the matter." The questions referred to in that report as A and B were: "(a) Could the vaso motor rhinitis have been caused by or contributed to by the air conditioning in the office in which Ms McCumber worked? 15s. (b) If the condition could not have been caused by air conditioning, could it have been maintained or irritated by the air conditioning?" Dr Bishop reported: "Mrs McCumber first consulted me on 30th January, 1980, with a history of Chronic Sinusitis for which a septoplasty and antrostomy operation had been carried out on 19th November, 1979. I treated her medically during the period January to July. During this period she suffered recurrences of sinusitis, nasal congestion, and headaches. She responded to treatment with antibiotics, mainly Mysteclin, but also Septrin on two occasions. She also required treatment with Sinutabs, Sandomigran and Tobispray. Her headaches became controlled but she occasionally required Mersyndol for severe headaches, and Sudafed to clear the congestion. Ergodryl was also used for migraine headaches. She suffered frontal headaches which she stated were severe and incapacitating in the air conditioning system, and also aggravated by wind and dust. I understand that she was separated from the Police Force on 13th May, 1980, and her symptoms in June and July were fairly mild. I have not seen her since 24th July, 1980. Some air conditioning systems are known to circulate organisms which might initiate allergic responses such as allergic rhinitis or sinusitis. I have no knowledge of the air conditioning system operated in the premises where Mrs McCumber worked, nor if others were affected. Certainly Mrs McCumber's symptoms worsened when she was exposed to that system, and improved when not so exposed. It could be claimed that the air conditioning aggravated her symptoms. When last seen by me, her symptoms were quite mild and controlled, so that at that time (24th July, 1980) prognosis could be said to he favourable." 16. The Police Medical Officer, Dr Marsh, obtained a further report from Dr Hugh Williams dated 7 January 1980. That report reads as follows: "On the 17th November [19791 , I performed a septoplasty operation for M/s McCumber and at the same time intra nasal antrostomies were fashioned. Since that time, she has developed a full blown maxillary sinusitis which is causing her considerable discomfort and radiology confirms the presence of considerable mucosal thickening un each maxillary sinusitis CsicJ] indicative of maxillary sinusitis. This sinusitis has proved resistant to antibiotics and decongestant therapy and I have arranged to perform bilateral radical antrostomies at which stage the diseased mucosa shall be excised from the cavity of each sinus. It is to Cbe] hoped that these procedures will provide adequate relief of her sinusitis so that she can again work without undue discomfort." On 10 April 1980 the respondent was examined by a Commonwealth Medical Officer, Dr Bromhead, who recorded the following brief history of the respondent's condition: "Sinusitis since 1973 - operation 1974 improved but relapsed - allergy tests both in Canberra and later in Sydney have all been negative. Second operation 1979 - failed and now has chronic infective sinusitis which may require further operation, so far not accepted by member. Basic condition appears to be due to air conditioning which explains member's reasonable health while away in Army camp." His prognosis was as follows: "Poor for any type of office work but may 1f a third operation is successful, tolerate a few 17. hours per day office work." Dr Bromhead conciuded that the respondent was unfit for continued employment and should be retired on the grounds of invalidity but that she might, in due course, partially or completely recover and become fit for some form of Commonwealth employment. He recommended review in from six to twelve months. The respondent was, in fact, retired on the ground of invalidity on 2 May 1980. Between 17 November 1979 when Dr Williams performed the septoplasty operation and the date of her retirement, the respondent worked on only one or two days. According to the respondent, her condition improved slowly after her retirement and by the end of 1980 she was no longer taking medication. During this period she was living on the farm and was out of doors most of the time. She had recurrences of the symptoms from time to time but these were not as bad as before her retirement. The respondent's belief was that the longer she was away from air conditioning the better she was. Between 1981 and 1984 she felt reasonably well but the symptoms would recur if she spent any length of time in an air conditioned club, restaurant or shopping mall or if she was exposed to cigarette smoke. For example, the symptoms recurred three or four times during 1981 but she was able to control them with antibiotic or antihistamine tablets. She said she would feel slightly unwell for short periods of time but would recover quite quickly. During the period 1981-1984 18. she continued her activities in the Army Reserve, attending two camp periods each of approximately 16 days each year. During 1982 the respondent began to work as a waitress at the Total Service Station at Yass. She worked, on average, two shifts a week each of eight hours' duration for about twelve months. There was no air conditioning but she began to have problems with her sinusitis and gave up the position because she "did not think 1t was worth letting the situation get back to the way it was". She attributed her symptoms to her exposure to smoke and heat at the service station. In 1985 she commenced to keep the books for a motor vehicle.wrecking business which was being operated by a company owned by her husband and herself. This occupied her for about five hours a week with additional work at the end of each month. She also assisted her husband in running the farming properties which they operated in partnership. On 17 September 1982 a further request had been made for reconsideration of the determination made on 21 September 1978. On 25 November 1982 the solicitors for the respondent were informed that the determination made on 21 September 1978 would not be revoked or varied. Yet another request for reconsideration of the determination dated 21 September 1978 was made on 19 September 1984 but that request was also unsuccessful. That 19. request was accompanied by a copy of a letter dated 5 July, 1984 written by the respondent's solicitors to Dr Hugh Williams and the doctor's response dated 11 July 1984. The solicitor's letter had referred to the respondent's attendance on Dr Williams on 8 May 1984 and asked for confirmation that the respondent's condition "was, or most probably was a reaction to air conditioning both in the buildings and in motor vehicles". Dr Williams expressed the following opinion: "I believe that Mrs Marjorie McCumber suffers with a severe vaso motor rhinitis causing her Nasal congestion and discharge and at times sinusitis. This problem is considerably aggravated by working in an air _ conditioned environment and in answer to your letter, I do reaffirm that I believe your client's condition is most probably a reaction to air conditioning both in buildings and motor vehicles." Dr William Coupland, a consultant physician specialising in internal medicine, saw the respondent on 3 July 1986 at the request of the Commonwealth. His report dated 9 July 1986, after reciting the history given to him by the respondent, reads: "At the time that I saw her, her general health was good. She was not suffering from any Sinusitis or Rhinitis and her nasal airway was clear. Her chest also was clear without any rales nor rhonchi. In answer to your questions, the following are my replies. 1. From the evidence supplied it does appear that Mrs Marjorie Bullivant has suffered from 20. Sinusitis and Rhinitis. It seems likely that she still suffers from episodes that are treated with Antibiotics and nasal mucosa constrictor drugs. 2. I do not believe that the applicant's injuries and disabilities have heen caused by air conditioning in the work environment. I believe that Rhinitis and Sinusitis are a disorder caused by particular susceptibilities in the individual to such inflammations or possible allergies. It could well be that Mrs Bullivant has an Allergic Rhinitis that has not been detected by current techniques. 3. Vasomotor Rhinitis is likely to be permanent once it has become established, but variable in its severity. 4. It is possible that further medical or surgical treatment may be necessary but it appears from the patient's symptoms, that the condition is less a problem now than it was at an earlier time. Certainly further medical treatment is likely to be required as Upper Respiratory Tract Infections are likely to set off an Inflammatory Sinusitis in somebody so predisposed. 5. I believe the applicant did have a pre-existing condition or susceptibility to Sinusitis and Rhinitis. Some patients who suffer from simple common colds will develop Bronchitis, whereas others will repeatedly have attacks of Sinusitis and it 1s simply related to the constitutional makeup of the person. 6. I don't believe that any particular course of treatment will eradicate this susceptibility. Any acute attack should be treated as it is being treated now with Antibiotics and mucosal nasal constrictor drugs. 7. I do not believe that the applicant's condition is a result of, or was aggravated by air conditioning, in the work place. With respect to the latter, I think it is most unlikely that air conditioning per se would aggravate the condition. If she worked in a smoke filled environment, then one could easily understand aggravation and this may have been the case but it is not stated in the material provided to me." 21. Dr Coupland also furnished a report dated 27 November 1986 to the Australian Government Solicitor. The report reads: "You asked whether I would comment upon whether Mrs Bullivant's condition could arise after these periods of not being in an air-conditioned environment due to a delayed reaction to working in an air-conditioned environment prior to these periods. I am of the opinion that Mrs Bullivant's condition could not arise after periods of not being in an air-conditioned environment due toa delayed reaction to working in an air-conditioned environment prior to those periods. If one experiences aggravation of vasomotor rhinitis or allergic rhinitis as a result of being in an air-conditioned environment, then one would expect that aggravation to occur immediately upon exposure to the air-conditioned environment or to occur within a matter of 24 hours after exposure to such an air-conditioned environment. It would not occur after some period of absence of exposure to an air-conditioned environment." Dr Hilton Stone, an ear, nose and throat' surgeon, examined the respondent on 9 October 1986. His report, dated 10 October 1986, reads: "I saw this lady at your request on 9 October 1986. The history is well documented up until the time of her discharge from the Police Force and I will not reiterate it here. For the past five or six years, that 1s since being retired, she feels that her upper respiratory tract 1s satisfactory as long as she stays out of 'an artificial environment'. There may be the occasional flare-up of symptoms but these seem to be readily controlled with antibiotics and antihistamines. On examination I found her to be a_ well-looking person and specifically there was a fairly straight nasal septum with minimal mucosal thickening of the left inferior turbinate and a 22. slight spotting of fresh blood in the right nasal cavity. The rest of the upper respiratory tract was clear. The documents that accompanied her indicated that there had been sinus pathology radiologically in the 1970's and I took the liberty of ordering a repeat sinus X-ray. This X-ray was normal. With respect to the specific points you have raised in your letter: (1) This lady does not suffer from sinusitis now, but there is evidence that she did in the 1970's. It would appear that the mature of her problem is vasomotor rhinitis. A few words of explanation may be helpful. Nasal functions include humidification and warming of inspired alr. Obviously the degree of secretion put out by the nose will vary depending on the relative humidity of the inspired air. Also the amount of blood which must be directed to the nasal lining or mucosa to warm the air will be influenced by the environmental temperature. In the condition of vasomotor rhinitis, there is excessive secretion and excessive blood flow with consequent nasal discharge and congestion of the nose. These events are a result of excessive response to the changes in temperature and humidity of the environment, that 1s the nose is hypersensitive. The affects on the nasal lining of vasomotor rhinitis are that infection has a greater chance of becoming superimposed. (2) An ideal environment would be approximately 70% relative humidity and about 21 degrees C. If airconditioning created this environment then clearly the vasomotor rhinitis response would not be triggered. If however, the relative humidity dropped considerably, as often does occur in airconditioning, then I think 1t is reasonable to say that the airconditioning aggravated the response. If there were pollutants in the environment such as smoke and this were being recirculated then again, it could be said the azrrconditioning aggravated the response. I do not believe however it is fair to say that the vasomotor rhinitis is caused by airconditioning. (3) The vasomotor rhinitis is permanent, the 23. sinusitis has resolved. (4) Medical treatment as alluded to may be required from time to above time, however it 1s unlikely that further surgery would be required. (5) I believe the onset of the vasomotor rhinitis was co-incidental to employment. her (6) Avoiding any irritative factors in the environment would be beneficial. (7) That has been answered above. The final point you raised in your letter was whether the condition could arise as a_ delayed reaction to working in an airconditioned environment. In my opinion, it would be unlikely there would be a delayed reaction." In a supplementary report dated 19 November 1986, Dr Stone said: "lL. From the history Mrs Bullivant's vasomotor rhinitis became symptomatic in the early 1970's; from the nature of the problem I would have expected the onset to insidious rather Cthan] clear cut. be 2. As alluded to in my letter of 10 October, any environmental condition which deviates from the ideal would tend to exacerbate symptoms, thus of relevance would the be air-conditioning with a low relative humidity and as quoted in Dr Marsh's report, a cold house." Drs Williams, Coupland and Trenerry were witnesses before the Tribunal. Dr Williams was the respondent, Drs Coupland and Trenerry Commonwealth. The Tribunal expressed itself as called as called by by the attaching little weight to Dr Trenerry's views. It regarded the ear, nose and throat specialists as the relevant experts. Of the 24. doctors specialising in that field, particular reliance was placed on the views of Dr Williams. The Tribunal also regarded Dr Coupland's experience as being 1n point. Weight was also given to the report of Dr Bromhead to which reference has already been made. In his oral evidence before the Tribunal, Dr Williams expressed the opinion that when he first examined the respondent on 25 September 1979 she was suffering from a chronic or recurrent rhinosinusitis. He said that the function of the operation he performed in November 1979 was to clear the nasal airways and facilitate drainage from the sinuses into the nose. He explained that deviation of the nasal septum is common throughout the community at large and that, generally speaking, it is related to nasal trauma and May occur without the person being conscious of the damage being caused. Common situations in which 1t may occur include falling while learning to walk, playing sport and motor vehicle accidents. Deviation of the nasal septum was, he said, a considerable predisposing factor to vasomotor rhinitis. According to Dr Williams, the operation helped to alleviate the problem but it was not a cure: the respondent's basic underlying problem was a_ tremendous reaction of the lining of the nose, the nasal mucosa, that appeared to be severely disturbed by exposure toan air conditioned environment. He said that he used the term "air conditioning", to refer, in relation to a building in which 25. the windows were sealed, to any form of treatment of the air which helped regulate body temperature and sustained the flow of oxygen. He expressed the opinion that the history given to him showed that when the respondent was away from her air conditioned work environment her condition settled down with no resultant dramatic long term disturbance. He expected, however, that she would have recurrences if she worked in an air conditioned environment, an environment where there was tobacco smoke or petrol fumes or an environment in which dust or other organisms were being carried in the air. He agreed that the respondent might be a person who could not tolerate being indoors very well. Dr Williams certified the respondent as fit for work on 10 January 1980. He did not see her again until May 1984 when her condition had improved. He thought the respondent was always suited to work anywhere away from crowded environments where she might be exposed to smoke or air conditioning. He agreed, in cross-examination, that he had not attempted to analyse what it was about air conditioning, or the types of air conditioning, which affected the respondent. However, he regarded it as well documented that air conditioning may result in the production of symptoms in patients suffering from vasomotor rhinitis. He agreed that there were other factors, such as stress either at home or at work, changes in temperature and Matters of diet, which could result, in a particular case, in the aggravation of symptoms in a person who had a basic vasomotor instability. 26. Dr Coupland, in his oral evidence, explained that vasomotor rhinitis 15 an excessive reaction of the nasal and sinus mucosa to various stimuli. He thought that an undefined allergic state probably precipitated the condition and that the chronic overreactive muscosa then responds to several different stimuli. If the musosa 1s hyper-active, congestion 1s caused in the sinuses and other areas and the condition may become entrenched as chronic hyper-reaction followed by chronic infections. According to Dr Coupland's evidence, vasomotor rhinitis or sinusitis 15 a constitutional condition which 15 precipitated by some external stimuli to be found in the environment or in what 15 ingested into the body. While he agreed that the coinctdence of the onset of symptoms with the respondent's commencing to work ina particular environment suggested that there might be something in that work environment that precipitated the symptoms, he thought that the precipitation of those symptoms might equally be explained by some change which occurred at that time in her home environment. He affirmed his opinion that air conditioning per se was not the cause of the respondent's problems. He p 1s0 considered it unlikely that air conditioning, being a controlled environment, would aggravate vasomotor rhinitis unless the air conditioning were set at too low a temperature. Dr Coupland considered that any improvement in the respondent's condition during periods of recreation leave 27. might be due to the circumstance that during that period she may have relaxed and rested. He agreed that, 1f she laboured on the farm during that period and her condition still improved, one might draw the conclusion that there was something in her work environment that was responsible for aggravation of her vasomotor rhinitis. The Tribunal also expressed itself as having accepted the evidence given by Mr Ronald John Edwards, District Manager, Department of Housing and Construction, that the kind of air conditioning in the building known as Anzac Park West, where the respondent was free of symptoms, and that in the Police Headquarters building, where she said that the symptoms first became manifest, were the same. The Tribunal continued: "We see no reason to suppose that any aggravating factors carried through forced air heating or cooling would be any worse in the one building than the other. This is consistent with the fact that at the hearing the aur conditioning was off yet the applicant Crespondent] felt worse. The conclusion we draw is not that we disbelieve the applicant but that there was a change in the applicant's underlying condition which accounted for the different reaction to similar exposures." Paragraphs 33-37 of the Tribunal's decision should be set out in full. Those paragraphs read: "33. Dr Williams supports the view that the applicant's employment aggravated but did not cause the rhinitis and the sinusitis. The only evidence to support a causation view 1s to be found in Dr Trenerry's initial report. We are not prepared to base our findings on this in the 28. face of his later reports, his evidence and other medical evidence. Weight must also be given the CMO's report not because the CMO 1s an expert but because his report together with the decision of the Commissioner of Police to retire the applicant effectively caused her to stop work. The determination of 4th May 1976 finding that the applicant's employment was a contributing factor to the contraction of the disease Cshould] be set aside. 34. Turning then to the question of aggravation this is really a matter where the facts concern aggravation of symptoms by employment rather than the aggravation leading to any pathological change. Dr Stone found the applicant's septum 'fairly straight'; this indicates some success in the two operations. It could also be relevant to the fact that her condition now is improved. There are other factors, such as- that she has not worked full time since leaving the Force and is engaged in an out door lifestyle which she finds congenial. We have found that the applicant's employment was not a contributing factor to the contraction of the rhinitis or the sinusitis. We are of the view that any continued incidence of the rhinitis and sinusitis has no bearing [onl] the applicant's employment with the Force. 35. This matter arose from a claim arising from exposure to air conditioning. However evidence has been given of no problems from exposure to the same type of air conditioning at the Anzac West Offices as is said to have caused problems at the City Police Station. The applicant also felt symptoms when ina hearing room which is normally air conditioned when the air conditioner was not in fact working. Dr Williams' evidence about the carriage of smoking Csicl] and dust through air conditioning was not challenged. We have been referred to Bishop and the Commonwealth of Australia 8 ALN N219 by counsel. We find the applicant to be a basically truthful and well motivated person; we do not think there is a psychiatric component. It seems to us that the explanation of her problem is that her sinusitis and rhinitis were autogenous diseases, which she did not have while working at Anzac West, that these diseases commenced after she joined the Force and that thereafter matter transmitted through the air conditioner and air conditioning itself aggravated the disease bringing on symptoms at the time; these symptoms prevented the applicant continuing work. 36. In the Commonwealth and Beattie 35 ALR 369 29. it was said by Evatt and Sheppard JJ. at p.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 or 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. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.' 37. It seems to us applying this dicta to all the evidence, and giving weight to the evidence of Dr Williams, that the applicant is entitied to compensation for periods of incapacity while she remained a member of the Force. We note that Dr Williams saw the applicant on or about the 10th January 1980 and then thought she was fit to work. On all the evidence we consider it reasonable that compensation be paid for continued incapacity resulting from the aggravation by her employment 1n the Force up until the applicant was retired on the advice of the CMO on the 10th April 1980 Csicl." The Commonwealth, while accepting that the respondent suffered from vasomotor rhinitis, submitted that there was no material before the Tribunal to support its finding that her condition was aggravated as a consequence of her coming into contact with air conditioning in the course of her employment at the Woden Police Station. It was accepted by counsel for the Commonwealth that symptoms of the disease first manifested themselves during the period when she was employed at the Police Headquarters building, London Circuit, Canberra City prior to her transfer to the 30. Woden Police Station. It was said to be common ground that the headquarters building was air conditioned but it is by no means clear to me that the expression "air conditioned" in relation to buildings was used by the parties and by the witnesses in the same sense. As I have already noted, the Tribunal accepted the evidence of Mr Edwards. His evidence was to the effect that the system installed in the Police Headquarters building at the relevant time was a closed ventilation system whereby air was forced through the building by means of a fan; that before being reticulated through the building the air was passed over coils to heat it in winter and cool it in summer; that the returned air was mixed with a minimum percentage (usually 20 per cent.) of fresh air before being again reticulated through the building; and that there was no humidity control except in some special areas which are of no relevance to the present proceeding. The submission bore two aspects. First, 1t was said that there was no evidence to support the conclusion that the respondent during the period she worked within the Woden Police Station was working in an air conditioned environment. Counsel pointed to the evidence given by Mr Kevin John Reiher who had held the position of Director of the Building and Property Branch of the Australian Federal Police since 1984. Mr Reiher said in his evidence in chief that the records available to him showed that - "there certainly was no air conditioning before November 1985 with the exception of one small 31. free-standing unit which was actually put into the breathalyser unit in the summer of 1983-84". Mr Reiher was unable to say whether, at the relevant time, the windows in the building could be opened. In cross-examination, he was unable to say how the building was ventilated prior to air conditioning being installed in 1985. He was, however, prepared to assume that the building was heated in winter by warmed air being forced through a ducting system and that in summer fresh air was reticulated through the ducting system without being cooled. He regarded the absence of a cooling system as the feature differentiating a ventilating system from an alc conditioning system. Secondly, it was said that, although there was medical evidence that exposure to air conditioning could be a factor precipitating symptoms of the disease, the material before the Tribunal went no further than to show that the respondent's symptoms became manifest whilst she was at work. That finding, it was submitted, was not sufficient to justify the conclusion that her employment was a contributing factor to the aggravation of the disease constituted by the onset of those symptoms. Thirdly, it was said that, aithough there was Material before the Tribunal showing that the respondent spent periods of time on foot patrol duty in the shopping centre adjacent to the Woden Police Station and that that 32. shopping centre was air conditioned, the material fell far short of establishing any relevant relationship between the periods spent in the shopping centre carrying out those duties and the manifestation of symptoms of the disease. Indeed, it was said, no such case had been put to the Tribunal by the respondent. For the respondent it was argued that the method by which the Tribunal reasoned to its conclusion that the respondent's employment by the Commonwealth was not a contributing factor to the contraction of the disease vasomotor rhinitis was erroneous in law. It was submitted that, if the Tribunal had approached the matter according to law, it would have first put to one side the expert medical evidence and asked itself the question whether the other material which 1t accepted, particularly the evidence of the respondent, demonstrated an observable sequence of events leading, by a combination of common sense and the application of logic to the facts, to a reasonable conclusion that there was a causal connection between the contraction of the disease and her work environment as a police officer. According to the submission, it was only if the Tribunal, upon a proper consideration of that question, was unable to reach the conclusion that there was a causal connection between the respondent's employment by the Commonwealth and the contraction of the disease that the Tribunal was entitled to weigh in the scales such of the expert medical evidence as it was prepared to accept. That approach to the resolution of the issue before the Tribunal 33. was said to be required by the decision of the High Court in Tubemakers of Australia Ltd v. Fernandez (1976) 10 A.L.R. 303. Reliance was also placed on a passage in the reasons for decision of Davies J. in Welsford and Commonwealth Banking Corporation (Administrative Appeals Tribunal - 3 April 1984 - unreported). It was further submitted that the Tribunal should not, in the circumstances of this case, have had regard to the expert medical evidence because, upon a proper consideration of the other material before it which it accepted, no other rational explanation was open than that the necessary causal connection between the respondent's employment and the contraction of the disease was established. This was said to follow from the circumstance that the evidence of the respondent (whom the Tribunal found to be a basically truthful person) established - (i) that prior to her employment as a police officer she had not suffered from an active condition of vasomotor rhinitis/sinusitis; (ii) that she first developed that active condition while so employed; and (iii) that such development had occurred in circumstances which overwhelmingly suggested that the effect upon the respondent of air conditioning at her place of employment was the triggering cause of such development. It was submitted that the respondent, in speaking of air conditioning, was to be understood as speaking, not of a 34. narrowly visualised method by which ordinary ambient air is conditioned in a particular way, but of any system in which ambient air is treated artificially within the confined space of a building. The evidence, so it was said, drew a distinction between, on the one hand, a situation in which the air is artificially so treated and, on the other, a situation in which the ambient air is not treated artificially in any way. Notwithstanding that his primary submission was that a conclusion favourable to the respondent as to the contraction of the disease was the only conclusion open to the Tribunal on the lay evidence before it, counsel referred to certain of the evidence given by Dr Coupland and Dr Williams which, he submitted, supported that conclusion. He referred, in particular, to the evidence of Dr Coupland that the respondent had a constitutional predisposition to the condition which first became manifest in 1973 and the evidence of Dr Williams that it is well documented that, with the problem of rhinitis, air conditioning may cause considerable disturbance. In the alternative, the respondent submitted that there was material before the Tribunal sufficient to support its finding that the respondent's employment by the Commonwealth was a contributing factor to the aggravation of the disease. I turn, first, to the primary submission put on 35. behalf of the respondent that the method of approach adopted by the Tribunal disclosed manifest error of law. I have carefully considered the judgments in Tubemakers of Australia Ltd. v. Fernandez (supra) but I find nothing in them to support the argument advanced on behalf of the respondent. The question before the High Court was whether the trial judge and the Court of Appeal Division of the Supreme Court of New South Wales were correct in holding that there was evidence on which the jury could find that the condition known as Dupuytren's contracture from which Mr Fernandez suffered after he sustained an injury to his right hand in consequence of the company's negligence, and its subsequent recurrence, was caused by that negligence. In dismissing the company's appeal, a majority of the Court held that it was open to the jury, having before it expert medical evidence which was capable of being understood as a statement that trauma in the form of a blow to the hand, or in the form of manual work, was a possible cause of Dupuytren's contracture, was entitled, in determining whether it was prepared to infer, on the probabilities, that Mr Fernandez's condition was causally connected with his employment, to have regard to non-expert evidence of a sequence of events which tended to support the probability of such a connection. Iam equally unable to find support for the respondent's argument in the passage cited in argument from the reasons for decision of Davies J. in Welsford and 36. Commonwealth Banking Corporation. The passage relied upon reads: "It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one = such factor exhibits the necessary connection with the worker's employment. See Federal Broom Company Pty Limited v. Semlitch (1964) 110 C.L.R. 626 at 641-3, per Windeyer J., and Favelle Mort Limited v. Murray (1976) 133 C.L.R. 580 at 598, per Mason J." That passage is directed to identifying the issue which arises in a case such as the present. It is not concerned with the method of which such an issue is to be resolved. In my opinion, the suggested error of law on the part of the Tribunal has not been demonstrated. I can see no justification for concluding that the Tribunal was bound to ask itself the question whether the necessary connection between the respondent's employment by the Commonwealth and the contraction or aggravation of the disease was established by a consideration of the material before it other than the expert medical evidence. Indeed, to approach the matter in that way would, in my opinion, have been quite inappropriate. The issue before the Tribunal was one which clearly lay outside the realm of common knowledge and experience and one which fell to be determined by reference to, inter alia, expert medical opinion. 37. It follows that, inmy view, no sufficient basis has been shown for the Court to interfere with the finding of the Tribunal that the respondent's employment by the Commonwealth was not a contributing factor to the contraction by her of the disease vasomotor rhinitis. That finding was clearly open on the whole of the material before it. It is necessary, then, to turn to the question of aggravation. The material before the Tribunal established that the respondent had an underlying constitutional condition in which the nasal mucosa was hypersensitive, a condition which was asymptomatic until she commenced to work in the Police Headquarters building. Thereafter, symptoms became manifest and over a period of time they varied in intensity and frequency. As a result, the respondent was from time to time incapacitated for work. Transfer to the Woden Police Station led to the respondent gaining some relief, the onset of symptoms being less frequent and less intense. This situation, however, did not last and she continued to have periods when she was incapacitated for work leading, ultimately, to her retirement. It is clear on the medical evidence accepted by the Tribunal that, to some extent, the respondent's problems had their origin in a nasal septal deflection, possibly of traumatic origin, a condition which, as Dr Williams 38. explained, was a predisposing factor to vasomotor rhinitis. That condition was not shown to be in any way connected with the respondent's employment by the Commonwealth. That circumstance, however, did not preclude the Tribunal from concluding that the respondent's employment by the Commonwealth was a contributing factor to the onset of symptoms of the disease and, thus, to an aggravation of the disease within the meaning of that expression in s. 29 of the Act entitling the respondent to compensation in respect of resultant periods of incapacity for work: Federal Broom Co. Pty. Ltd. v. Semlitch (1963) 80 W.N. (N.S.W.) 1603; (1964) 110 C.L.R. 626; The Commonwealth v. Beattie (1981) 35 A.L.R. 369. The Tribunal having determined that issue favourably to the respondent, the question is whether there was material before it upon which 1t could properly do so. For the Commonwealth it was argued that the material before the Tribunal established no more that that there was a temporal coincidence between the onset of symptoms and the respondent's employment by the Commonwealth. However, in my view, the Tribunal was entitled to take the view that the material before it justified the inference of a causal connection between the onset of symptoms and the employment. As has already been mentioned, Dr Williams said that it was well documented that air conditioning may result in the production of symptoms in patients suffering from vasomotor rhinitis. The Tribunal clearly accepted that . 39. evidence. Dr Coupland agreed that the coincidence of the onset of symptoms with the respondent working in a Particular enivronment'§ suggested that there might be something in the work environment that precipitated the symptoms though he thought it unlikely that air conditioning would aggravate the condition. His evidence, however, considered as a whole, supports the view that air conditioning could be a trigger producing symptoms of the disease, There being, then, expert medical evidence which, being accepted, could sustain the view that air conditioning was a possible cause of the onset of symptoms of the disease, the Tribunal was entitled to infer from that evidence and from the other material before it, including the evidence of the respondent as to the circumstances in which the symptoms became manifest, that a causal relationship between the employment and the aggravation of the disease was probable: Tubemakers of Australia Ltd. v. Fernandez (supra). I am unable to accept the submission on behalf of the Commonwealth that there was no material before the Tribunal sufficient to entitle it to conclude that the respondent was exposed to an air conditioned environment while working at the Woden Police Station. Reference has already been made to the evidence of Mr Reiher on the point. That evidence was inconclusive, being largely based, not on the witness' own experience or on material contained in 40. relevant Department records, but on what he assumed to he the position. His evidence was clearly not accepted by the Tribunal. There was, however, evidence given by the respondent which, 1f accepted, equated the system in operation at the Woden Police Station with that which had operated at the Police Headquarters building. The Tribunal was entitled to accept, as it clearly did, that, at the relevant time, the Woden Police Station was served by a forced ventilation system circulating warmed air in the winter and cooled air in the summer. The Tribunal was also, in my view, entitled to conclude, on the material before it, that the effects of the aggravation of the condition from which the respondent suffered and to which her employment by the Commonwealth was a contributing factor were temporary, though recurring during the period of such employment. Any incapacity arising from the onset of symptoms after her retirement could, I think, properly be attributed, not to any aggravation of the condition to which the employment by the Commonwealth was a contributing factor, but to the reaction of her hypersensitive nasal mucosa to a stimulus present in the environment which she was then experiencing. By way of illustration, the material before the Tribunal would in no way support a finding that any incapacity for work arising from the onset of symptoms while the respondent was working as a waitress at the Total Service Station at Yass in 1982 was causally connected with her previous employment by the Commonwealth. Nor would the material sustain a finding that ee 8. 41. her employment by the Commonwealth resulted in a pathological change in her basic underlying constitutional condition. For these reasons, the appeal and cross-appeal are dismissed. There will be no order as to costs. I certify that this and the preceding 40 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 12 April 1988 Counsel for the Commonwealth Mr P.J. Newman Q9.C. and Mr K.J. Crispin Solicitor for the Commonwealth Australian Government Solicitor a Counsel for the respondent : Mr B.T. Sully Q.C. and Mr G.J. Lunney Solicitor for the respondent Snedden Hall & Gallop Date of hearing : 12 June 1987