Capital Territory Health Commission v Susan Maria Cavanagh [1978] FCA 5 (3 March 1978)

FEDERAL COURT OF AUSTRALIA

CAPITAL TERRITORY HEALTH COMMISSION v SUSAN MARIA CAVANAGH
No. 12 of 1977
Number of pages - 5
Commonwealth Government Employees Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

INDUSTRIAL DIVISION

NIMMO, J

CATCHWORDS

Commonwealth Government Employees Compensation - Jurisdiction to reconsider determination of commissioner - what constitutes "medical treatment"- sections 5, 20 and 37 of compensation (commonwealth government employees) act 1971

HEARING

CANBERRA, 3 March 1978 (decision)

03:03:1978

Appearances here

ORDER

Order:

1. the appeal be allowed;

2. the order of the Commonwealth Employees' Compensation Tribunal be set aside;

3. the order for costs made by the Commonwealth Employees' Compensation Tribunal in favour of the respondent be set aside.

DECISION

NIMMO, J

On 16 February 1973 it was determined pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 that the respondent, Susan Maria CAVANAGH, had sustained personal injury arising out of or in the course of her employment by the Canberra Hospital Board on 11 December 1972 namely, intervertebral disc protusion. Since then she has been paid compensation at the appropriate weekly rate.

During May 1977 she submitted to the appellant, the Capital Territory Health Commission, two letters from her doctor in which it was stated that it would be advisable for her to move from Canberra to a warmer climate for the winter of 1977 because the pain caused by the condition of her back increases as the weather cools. At the same time she made an oral request that any trave1 expenses and accommodation charges for an absence from Canberra during the winter be paid by the appellant. The appellant forwarded the letters to the Commissioner for Employees' Compensation and at the same time informed him of the respondent's request and asked for his advice in the matter. It appears that the Commissioner, pursuant to s.24 of the Act, delegated the task to his Deputy Chief Delegate for on 1 June 1977 the latter determined that the proposed absence from Canberra by the respondent did not constitute "medical treatment" within the meaning of s.5.(1) of the Act and consequently, if it eventuated the appellant "would not be liable to compensate the respondent. In dealing with the respondent's request the Deputy Chief Delegate no doubt believed that he was exercising the power conferred on the Commissioner by s.20(1) of the Act which reads as follows:

'20(1) Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function.'

On 4 July 1977 the respondent, through her husband, requested the Commissioner to refer the Deputy Chief Delegate's Determination to the Commonwealth Employees' Compensation Tribunal, Canberra, for reconsideration.

The case was heard on 12 July 1977 and on the following day the Tribunal decided that movement by the respondent to a different location to avoid the Canberra winter cou1d constitute "medical treatment" within the meaning of the Act, and the matter was remitted to the Commissioner with a direction 'that the matter be redetermined by applying the criteria whether the proposed treatment of moving to a warmer climate is reasonable in the circumstances for the respondent to obtain, having regard to the benefit of the climate likely to result and the cost to the Commonwealth which it is proposed to incur'.

On 3 August 1977 the appellant gave notice of appeal against the decision of the Tribunal on the following grounds:

That the Tribunal was wrong in law in deciding that it had jurisdiction to make a determination pursuant to s.37(1) when the respondent had not obtained the medical treatment in relation to the injury. That it was wrong in law in deciding that travel to a warmer climate could constitute "medical treatment" as defined in s. 5(l) for the purpose of s.37(1).

For a proper understanding of the two grounds of appeal it is necessary to set out the provisions of the Act to which they refer.

Section 37(1) provides -

'37(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amounts as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.'

In s.5(1) "medical treatment" is defined inter alia to mean -

'(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner (b) therapeutic treatment obtained at the direction of a legally qualified medical Practitioner;'.

In the same section "therapeutic treatment" is defined to include 'an examination, test or analysis for the purpose of diagnosing, or treatment for the purpose of alleviating, an injury'.

The question of whether there was jurisdiction in the circumstances of this case to make a determination pursuant to s.37(1) applies to the Commissioner (or his Deputy Chief De1egate) and the Tribunal alike for upon a reconsideration of a matter or question referred to it the Tribunal is clothed with all the powers conferred upon the Commissioner in relation thereto (s.83(1)).

The function of the Commissioner (or one to whom he delegates pursuant to s.24) under this Act, as expressed in s.20(1), is to determine 'all matters and questions arising under this Act'. Counsel for the appellant argued that since it is implicit from the use of the past tense in s.37(1) that the Commonwealth is liable to pay compensation in respect of the cost of medical treatment of amounts appropriate to such treatment only if the treatment has already been obtained and the function to be performed under s.20(1) in so far as it relates to the Commonwealth's liability to pay compensation under s.37(1) must be confined to cases where that condition has been met. As it had not been met at the material time in the present case he contended there was no matter or question arising under this Act (the underlining is mine) for determination.

It seems strange to me that the appellant has seen fit to raise this ground of appeal for it was the appellant, not the respondent, who sought the Determination from the Commissioner in the first place. Is one to conclude that the appellant is now of the opinion that it had no right to do so? If that is its present opinion then I disagree with it. The respondent's request, backed by her doctor's letters, gave rise to a novel question, shortly stated -Does movement of the respondent to another climate on medical advice constitute "medical treatment" within the meaning of the Act? The Deputy Chief Delegate readily understood that it was the answer to that question that the appellant was seeking for his Determination reads - 'I am unable to find that the proposed absence from Canberra of the said Susan Maria Cavanagh at the time in question constitutes "medical treatment" within the meaning of sub-section 5(1) of the said Act.'

It was because the appellant did not know the answer to this question that it sought it from the Commissioner whose function it is to determine all matters and questions arising under the Act. In so doing the appellant, in my view, did what was the sensible thing to do in the circumstances. I am satisfied that the question is one arising under the Act for it is only under the Act that the respondent could seek compensation in respect of expenses incurred by her in carrying out her doctor's advice and then only if what she did pursuant to that advice constituted "medical treatment" within the meaning of the Act. One is prompted to ask. - If the question did not arise under the Act how otherwise could it have arisen?

The appellant having propounded another of the many questions that may arise under s.37(1) and having answered it to its own satisfaction used the answer first before the Tribunal and now before this Court as a means to prevent reconsideration of the answer it sought and received from the Commissioner. In the result it has, in my opinion, introduced an irrelevancy for the question of when the Commonwealth may be liable to pay compensation under the sub-section has no bearing on the question of whether or not the course the respondent had in mind to give effect to her doctor's advice was "medical treatment" within the meaning of the Act. The appellant in a round about way is seeking to have placed a restriction on the function of the Commissioner which, I feel sure, the legislature never intended. The highly technical approach to the interpretation of the provisions of what is a remedial Act which the appellant's argument demands has been repeatedly denounced over a long period in judgments of the High Court of Australia and the House of Lords. An observation made by Lord Shaw in McDermott v Owners of s.s. Tintoretto 1911 A.C. 35 affords a good example. His Lordship said at p.45

'I reckon in to be quite unsound, and to be productive of wrong and mischief, to interpret a remedial statute in the spirit of meticulous literalism.'

It follows that in my view this ground of appeal must fail.

It is also my view that the Tribunal erred in holding that mere movement from one climate to another could in itself constitute "medical treatment" for the purpose of the sub-section. The Tribunal in the reasons for its decision records the argument advanced before it by the husband of the respondent who appeared on her behalf. At the hearing before me there was no appearance of the respondent and no one appeared to represent her. After referring to paragraph (b) of the definition in s.5(1) of "medical treatment" and to the definition in the same sub-section of "therapeutic treatment" the respondent's husband stressed that the word "includes" in the latter definition indicates that the kinds of treatment therein mentioned are not exhaustive. He went on to contend that having regard to the Shorter Oxford English Dictionary definition of "therapeutic" as meaning 'that branch of medicine which is concerned with the remedial trreatment of disease' and that as "remedial" is defined in the same dictionary as 'means tending to relieve or redress' movement by his wife to a warmer climate for the winter months would have the effect of relieving her pain and was therefore "therapeutic treatment" which came within the definition of "medical treatment". I am unable to accept this argument.

I think that the key word in paragraph (b) of the definition of "medical treatment" and in the definition of "therapeutic treatment" in s.5(1) is the word "treatment" which seems to me to contemplate the doing of something by some one to or for the employee concerned. It goes beyond the mere acceptance of advice from a medical practitioner to move to another climate. In my opinion it requires a person to do something in the exercise of his skill which is designed to alleviate an injury.

Support for this view is to be found in s.37(1) where it is provided that in determining the appropriate amounts of compensation to be paid by the Commonwealth in respect of the cost of the "medical treatment" which the employee has obtained regard must be had to the charges customarily made for similar treatment in the place where that treatment was obtained. Because the charges of a doctor or a person acting at his direction are to be measured by the charges customarily made for similar treatment at the place where the treatment is received, the sub-section seems to me to contemplate that the doctor or the person acting at his direction is present and doing something to or for the employee at the place where the treatment is being received. In the present case it was not suggested that the respondent's doctor would accompany her to a warmer climate to treat her there or that some other person there would at his direction treat her for her injury. The relief she hoped for was to come not through the efforts of any person but from being in a warmer locality. In short I think the respondent received nothing more than advice from her doctor and had she acted on it and moved to a warmer climate for the winter months she would not have received any form of treatment from him or any other person at his direction. In those circumstances she could not have subsequently claimed that during her absence she had obtained "medical treatment" within the meaning of s.5(1) for the cost of which a liability attached to the Commonwealth under s.37(1).

The Tribunal in reaching its decision relied upon some observations on the expression "medical treatment" by Lowe J. in the case of In Buchanan & Brock Pty. Ltd. v. Harris (1957) V.R. 549 at pp.551-2. In my opinion the context in which His Honour made his remarks is very different from the context in which the expression is to be construed for present purposes. In its setting of s.37(1) it requires for the reasons already given the narrower view I have felt obliged to adopt.

I therefore uphold the appeal on the second ground. I reverse the order for costs made by the Tribunal in favour of the respondent. Having regard to the course events have taken since the respondent made her request which an ordinary person would regard as reasonable in the circumstances and to the importance to the Commonwealth to have the issues to which that request gave rise resolved by this Court, I make no order as to costs in these proceedings.