Denehey v Nominal Insurer

[1991] TASSC 167

Serial No B53/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Denehey v Nominal Insurer [1991] TASSC 167; B53/1991

PARTIES:  DENEHEY
  v
  NOMINAL INSURER

FILE NO:  WC408/1988
DELIVERED ON:  24 September 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B53/1991
Number of paragraphs:  20

Serial No B53/1991
File No WC408/1988

DENEHEY v THE NOMINAL INSURER

REASONS FOR JUDGMENT  CRAWFORD J

24 September 1991

1. The defendant stands in the place of the plaintiff's employer because the employer, Richardsons Meat Industries Limited, has been ordered to be wound up. The effect of the Workers' Compensation Act 1927 s16B(1)(b)(i) is that where the employer is a company and its winding–up has commenced, proceedings may be brought against the nominal insurer in respect of the employer's liability under the Act.

1. On 9 January 1987, in the course of the plaintiff's employment by Richardsons Meat Industries Limited, he fell into a large industrial mincer. He was admitted to the Royal Hobart Hospital and underwent a number of operations. As a consequence, he has lost his right arm from a point between his shoulder and elbow. He was naturally right–handed. On discharge from the hospital as an in–patient, he was referred by a medical practitioner to the Douglas Parker Rehabilitation Centre to undergo physiotherapy and occupational therapy.

1. The Douglas Parker Rehabilitation Centre has rendered an account for $20,050.00, most of which is for occupational therapy. A portion of it consists of charges for training in literacy skills. The questions for determination are whether that portion can be categorised as reasonable costs of either medical or hospital services, as those expressions are meant in the Workers' Compensation Act 1927 s8A(1), and whether those costs were reasonably incurred by the plaintiff by reason of his injury.

1. The plaintiff was 44 years old at the time of the accident. He did not go to school as a child. He commenced to work as a truck driver at the age of 16 and worked in that occupation for most of the time following. He commenced working as a truck driver for Richardsons Meat Industries Limited nearly 17 years before the accident. His employment included driving a truck to butchers' shops to collect fat and bone. The only writing required of him in his employment was on what he called fat and bone dockets, on which he wrote the name of the butchers' shops and the numbers of kilograms of fat and bone collected by him. One copy of a docket was left by him with the shop and another copy was given by him to his employer's office. His evidence was that prior to the accident he could only read very slowly and he skipped over long words because he could not understand them. He did not read newspapers. He said he used to try and read children's books. The only writing he did outside work was "mucking around" with his children. He could only write by printing and that is still the case. He did not write letters (correspondence). On the evidence I am satisfied that he was close to being illiterate.

1. At the Douglas Parker Rehabilitation Centre he undertook physiotherapy and occupational therapy. The defendant does not dispute liability for expenses for physiotherapy. According to the Centre's accounts clerk, occupational therapy included outside activities, work in a metal workshop, work in an automotive workshop and discussion about daily living requirements. There was also, within the occupational therapy department, an education department where literacy and numeracy skills were taught. The only expenses for occupational therapy which are in contention are those for literacy training.

1. The plaintiff attended the Centre for varying times, for up to half a day to a full day at a time and frequently five days a week. Therapy involved activities in the swimming pool, the gymnasium and workshops. His activities included woodwork for the purpose of learning to use his left arm and to use a prosthesis. They also included weight training. He needed exercise to enable him to use the prosthesis and to use his left arm which must now be his main arm, with what is left of his right arm and the prosthesis being used for steadying.

1. On the subject of literacy training his evidence was as follows. The training was given by a teacher. He was taught to write with his left hand. He found it very difficult, not having used his left hand for that purpose before. On most days at the Centre, literacy training was given although usually only for about an hour, the rest of the day being taken up with other forms of therapy. It included reading. The teacher would, for example, get him to read one or two lines from a book and would then have him write from memory what he had just read. Commonly, there were four or five patients with the teacher at the one time. They took it in turns to read aloud from a book.

1. A letter dated 4 May 1988 from the Medical Director of the Centre was admitted into evidence. It stated that the plaintiff had been attending the Centre since February 1987 with breaks in his attendance due to further operations on his right arm. He was at that time due to have a third prosthesis fashioned. He had attended physiotherapy for a general fitness program and to improve the muscle strength of his arms. He had also had workshop activities in occupational therapy workshops and "some education sessions". The letter concluded:

"He has made good progress with his education work. He is now performing at a grade one to two level whereas he could previously neither read nor write. He has been very well motivated in his workshop activities. All these positive aspects of Mr Denehey's progress here would lead us to believe that he should have a better chance than not of gaining employment in the long term. Although he will not be able to do the amount of lifting, carrying and other bimanual activities he was previously engaged in, his motivation and residual abilities would point to his having a reasonable chance of employment, even if this will need to be proceeded with under a Government subsidised programme."

1. The plaintiff's evidence was that as a result of the literacy training he can read and understand what he reads better than before. The reading improvement has been quite marked. He can now write as well as he did before the accident and it would seem that, because of the improvement in reading and comprehension, he can in fact write more than before. After he finished at the Centre in February 1989, a woman, arranged through some adult literacy scheme, attended for a period at his home once a week to continue help with his literacy skills. He received no accounts for that service. An analysis of the Centre's records reveals, for example, that during the period of six months from 1 July 1988 literacy training was provided to the plaintiff on 94 days, although charges for occupational therapy were made for 113 days. On most of the days when literacy training occurred, the charge made for occupational therapy was for at least six hours of services, whereas literacy training more usually than not occupied only one hour of the total.

1. The next four paragraphs consist of evidence tendered by consent in the form of a letter from an officer of the Royal Hobart Hospital.

1. The Douglas Parker Rehabilitation Centre operates as an integral part of the Royal Hobart Hospital under the direct control of the Hobart Public Hospitals Board and in accordance with the provisions of the Hospitals Act 1918. The Centre was established in 1979 to replace rehabilitation services previously provided at Lady Clarke Hospital, Claremont, and Wingfield House, New Town, and to expand the range of treatment facilities and professional expertise available in the field of medical rehabilitation. At the same time, some rehabilitative services previously provided within out–patient departments of the Royal Hobart Hospital were also transferred to the Centre. The purpose built facilities at the Centre and the appointment of medical, nursing and health professional staff with demonstrated expertise in the field of rehabilitation has contributed greatly to the more rapid recuperation of those patients requiring medical rehabilitation services.

1. When first established, the Centre existed by virtue of a joint agreement between the then Commonwealth Department of Social Security, the Tasmanian Government and the Hobart Public Hospitals Board. The management of the Centre was vested in a management committee which was a committee of the Hobart Public Hospitals Board. The Board had full responsibility for the operation of the Centre. In 1987, the Commonwealth withdrew from the agreement and from the management of the Centre. Since then, the Centre has operated as a department of the Royal Hobart Hospital. The fact that it is on a separate campus has no bearing on the matter, as the Board has responsibility for the management of a number of departments, hospitals and other facilities which are not located on the main City site.

1. All patients attending the Centre are referred by qualified medical practitioners, and in many instances those practitioners are specialists in their particular field. Patients continue under the care of a medical practitioner during the whole of their treatment period at the Centre and the therapy and other services rendered to them are provided by highly qualified and experienced health professionals. In other words, the services are genuine medical rehabilitation services provided as an integral part of Royal Hobart Hospital services, the only difference being that the services are located on a campus away from the main hospital site. There are many reasons why the services are located in this way, including creation of an atmosphere conducive to the rehabilitation process. This is extremely important as is the impracticability of housing all hospital services on the one site. The services are regarded as usual and necessary hospital services which are provided by the Royal Hobart Hospital as is the case in any other public hospital throughout Australia.

1. Funding arrangements for the operation of the Centre are now identical to those which operate between the Commonwealth and the State for all other public hospital services and the fees chargeable for treatment at the Centre are prescribed in regulations made pursuant to the Hospitals Act 1918 as are the other fees chargeable for services provided by other State public hospitals.

1. The Workers' Compensation Act 1927 s8A(1)(a) provides that where a worker suffers injury by accident arising out of and in the course of his employment, the employer shall be liable to pay "the reasonable costs of any medical, hospital, nursing, and ambulance services reasonably incurred by the worker by reason of the injury .... "

1. Clearly no nursing or ambulance services are the subject of the proceedings. What the expressions "hospital service" and "medical service" include is provided by s3(1) as follows:

"'hospital service' includes maintenance, attendance, and treatment at any public or private hospital, and the provision or supply by any such hospital of medical attendance and treatment and of nursing attendance, and of medicines, medical or surgical supplies, or other curative apparatus, and of other usual or necessary hospital services and also includes the cost to a worker of any fares, travelling expenses, and maintenance necessarily and reasonably incurred by him in obtaining any hospital service;

'medical service' includes –

(a)       attendance, examination, or treatment of any kind by a medical practitioner, dentist, optician, masseur, or chiropodist;

(b)       the provision of skiagrams or crutches, or of artificial members, eyes, or teeth, or of spectacles or hearing aids;

(c)       the provision to or for a worker, otherwise than as a patient in a hospital, of medical or surgical aids to rehabilitation, or of curative appliances or apparatus;

(d)       the provision by a pharmaceutical chemist of medicines or curative apparatus, appliances, or materials; and

(e)       the cost to a worker of any fares, travelling expenses, and maintenance necessarily and reasonably incurred by him in obtaining any medical service;"

1. I find it unnecessary to decide whether the expenses in dispute were costs of a "medical service", because I am satisfied that they were costs of a "hospital service". That expression, by virtue of s3(1) includes attendance and treatment at any public hospital, such as the Royal Hobart Hospital. I am satisfied on the evidence that the Douglas Parker Rehabilitation Centre was part of that hospital and it follows that the attendance of the plaintiff at the Centre for physiotherapy and occupational therapy, including literacy training, fell within the meaning of "hospital service" as defined by the Act. The evidence also satisfies me that literacy training can be correctly described as being part of "usual or necessary hospital services". The evidence, which was admitted by consent, was that the services provided by the Centre, with no exception being made, are genuine medical rehabilitation services provided as an integral part of the services of the Royal Hobart Hospital and are regarded as usual and necessary hospital services which are provided by that hospital and, I infer, are so regarded in every public hospital in Australia.

1. It is of no consequence that literacy training may also be provided in other places, such as schools and colleges. By way of example, I say that simply because training in cane–weaving may be taught through some adult education scheme is no answer to a claim for the cost of such training at a hospital as part of its rehabilitation services.

1. I hold that the costs of the training were reasonable, being prescribed by regulation. There was no attack made on behalf of the defendant at the hearing before me that the costs were not reasonable. I am also satisfied that the costs were reasonably incurred by the plaintiff by reason of his injury. It was plainly and correctly considered important that an effort be made to train the plaintiff to use his left hand for writing and to encourage his literacy skills with the hope that it would give him a better chance for employment without his right arm. Such an approach was reasonable and proper and the costs of the training was, in my view, reasonably incurred by the plaintiff by reason of his injury.

1. Having dealt with the only issues before me, the order will be that the defendant pay to the plaintiff $20,050 being the amount claimed.