Denton v Transport Accident Commission
[2000] VSCA 221
•23 November 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.5376 of 1999
| GAVIN DENTON | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 November 2000 | |
DATE OF JUDGMENT: | 23 November 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 221 | |
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Accident compensation – Transport accident – Paraplegia of male victim, affecting fertility – Inability of victim to impregnate wife normally – Need for IVF attempt – Procedure to include extraction of sperm, extraction of eggs and replanting in wife’s body after fertilisation – Whether cost of “medical service” payable by the Commission as compensation “in respect of” the victim – Whether “medical service” was “received” otherwise than by the accident victim - Whether cost must be payable “to” the victim – Transport Accident Act 1986 ss.35(3), 60(1)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. M. O’Loghlen Q.C. | Slater & Gordon |
| For the Respondent | Mr. C.M. Maxwell Q.C. with Mr. P.W. Solomon | TAC Law P/L |
WINNEKE, P.:
I have had the benefit of reading, in draft form, the judgment prepared by Phillips, J.A. I agree with his Honour, and for the reasons which he assigns, that, upon the proper interpretation of the Transport Accident Act 1986, the respondent Commission is liable to pay not only for the costs of extracting sperm from the appellant and its suspension in a frozen state, but also the costs of taking ovulated cells from the appellant’s wife, the injection of the appellant’s sperm into those cells and the implantation of the fertilized ovum into the uterus of the appellant’s wife. The appeal should, accordingly, be allowed.
PHILLIPS, J.A.:
This is an appeal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998. The appeal is from an order of the Victorian Civil and Administrative Tribunal (constituted by the President) made on 12 April 1999, dismissing the appellant’s claim for payment under the compensation provisions of the Transport Accident Act 1986 (“the Act”).
Background of the appeal
The appellant who was born in May 1968 is now 32 years of age. On 7 December 1987, when he was only 19 years old, he sustained a severe spinal injury in a transport accident which occurred when he was a passenger in a motor vehicle being driven by another. In consequence of that injury, the appellant now suffers complete paraplegia below the level of the umbilicus, or, perhaps more accurately, below the level of the tenth thoracic segment. With great determination and perseverance the appellant adapted to his new disability and he married in 1992. He and his wife, who was born in 1970, have a close relationship and they desire to have to children. However, by reason of his injuries the appellant is significantly affected in his sexual function and fertility.
Testing undertaken in July 1998 revealed that, although semen samples taken from the appellant had a high concentration of sperm, the majority of such sperm were dead. Medical opinion was that this abnormality was such that the appellant and his wife were unlikely to achieve a pregnancy by means of artificial insemination. On the other hand there was a reasonable chance, it was considered, of their securing a pregnancy by the relatively new procedure of intracytoplasmic sperm injection (ICSI) as part of an in vitro fertilisation attempt (IVF). Indeed Dr. Geoffrey Clarke, a specialist in infertility matters, in his report of 2 July 1998, expressed the opinion that this was “... the only treatment available that will overcome this abnormality and help this couple achieve their wish for a family”. The cost of the procedure, as at November 1997, was estimated to be $3,500.
What the procedure involved for the appellant and his wife is perhaps best spelled out in the two reports, which went into evidence before the Tribunal, of Dr. Gordon Baker, a physician attached to the Department of Obstetrics and Gynaecology at the Royal Women’s Hospital. In a report dated 18 November 1998, Dr. Baker dealt with the abnormality in the appellant's semen:-
"A series of electro-ejaculations was organised with Dr Terry Lim and these were performed on 20 and 21 July 1998. The samples obtained contained a high concentration of sperm but the majority were dead and the sperm motility was less than 1% in the first sample and only 4% in the best part of the second sample. These samples have been stored frozen.
In my opinion the quality of these samples is insufficient to give the couple a reasonable chance of obtaining a pregnancy by artificial insemination and that they will need intracytoplasmic sperm injection (ICSI) as part of an in vitro fertilisation (IVF) attempt.
This pattern of abnormality of semen is common in men with chronic spinal cord injuries. Sperm production is normal but the sperm degenerate in the genital tract because of the loss of normal nerve function. With ICSI we have been able to obtain high fertilisation and pregnancy rates in couples with chronic spinal cord injury in the man. Other similar patients with spinal cord injuries are successful in at least 50% of cases.
Modern management of male infertility associated with spinal cord injuries often allows the couple to have children and a normal family life. This has obvious benefits to the injured man to improve his quality of life and to continue his rehabilitation and diminish the social disadvantages of this horrible injury.”
In an earlier report, dated 21 April 1998, there is a somewhat fuller description of what was involved in intracytoplasmic sperm injection and its relevance to the appellant's condition. Dr. Baker wrote then:-
"Initial attempts to obtain sperm from [the appellant] before 1991 were not successful, although sperm were seen in a urine sample and thus there is some hope that sperm could be obtained for treatment but this would involve in vitro fertilisation (IVF) and intracytoplasmic sperm injection (ICSI) because of the very low sperm numbers that we are likely to be able to collect.
The introduction of ICSI in 1993 has revolutionised the treatment of male infertility. Couples in whom there were too few sperm for natural pregnancy or standard IVF can now be treated with a reasonable expectation of having children. However, this treatment involves the woman having drugs to stimulate the development of a number of eggs, a minor surgical procedure to collect the eggs, extensive laboratory work to inject the sperm into the eggs and culture the injected eggs during the early phases of fertilisation and embryo development. The fertilised eggs are then transferred into the uterus or frozen. These procedures carried out on the woman are done for male fertility.
In [the appellant’s] case, the infertility arises directly from his spinal cord injury caused by a transport accident.”
Thus, because of the appellant's abnormal semen count, which the Tribunal accepted was the direct result of the accident and the injuries then sustained, the appellant and his wife had to go through a number of steps if they wished to have any reasonable chance of her becoming pregnant to him. Those steps included electro-convulsive treatment of the appellant himself so as to cause ejaculation, the suspension of the sperm in a frozen state, the extraction from the appellant's wife of ovulated cells and the injection of the sperm into those cells, and then the implantation of a fertilised ovum in the wife’s uterus.
Now, as is well known, a person who is injured as a result of a transport accident which occurs in Victoria (and there is no dispute but that the appellant is such a person) is entitled to compensation from the Transport Accident Commission in accordance with the Act. The appellant's contention was that were it not for the fact that he had sustained serious spinal injury, he would be able to reproduce in the usual manner: that is, he would be able to ejaculate fertile sperm in order to impregnate his wife and father a child. Instead, medical treatment of the type described by Dr. Baker was now needed and as that treatment was required only as a consequence of the injuries sustained in the transport accident the Commission should pay the cost. The Commission’s view was to the contrary. While it was willing to pay for the extraction of sperm from the appellant and its suspension in a frozen state, it considered that it was not liable to pay for the taking of ovulated cells from the appellant’s wife, the injection of the sperm into those cells and the implantation of the fertilised ovum in the uterus. As it was put to the Tribunal, the latter was not treatment of the person who was injured in the transport accident; it was treatment of the injured person's wife and as such not compensable under the Act.
In December 1996 the appellant formally requested the Commission to accept liability for the costs incurred by reason of the entry by him and his wife into an IVF program. In a letter dated 24 December 1996 the Commission advised that it would accept the reasonable costs of semen collection and storage, but by letter dated 19 February 1997 it advised the appellant that it would not fund any other costs associated with an IVF program. The appellant made application to the former Administrative Appeals Tribunal on 28 July 1997 for a review of that decision and, pursuant to the 1998 legislation, that review was heard and determined by the Victorian Civil and Administrative Tribunal. The Tribunal confirmed the decision of the Commission and dismissed the appellant's claim under the Act - and it is that determination which is now under appeal.
Notwithstanding the Tribunal’s decision, the appellant and his wife went ahead with the IVF attempt, including the ICSI procedure, and in consequence the appellant’s wife is now pregnant. All that is now at stake on this appeal is the cost of that part of the treatment for which the Commission is denying liability and the question for determination is the liability or otherwise of the Commission for that cost. An appeal lies under s.148 of the Victorian Civil and Administrative Tribunal Act only on a question of law, but, as will be seen, this appeal turns for the most part upon the proper construction of the Act.
The statute
The provisions of the Act relied upon in argument were few. In addition to s.1 (the purpose of the Act) and s.8 (its objects) we were taken to s.35 and s.60. Section 35, the first section in division 2 of the Act which is headed "Entitlement to Compensation", is the principal provision in that regard. Section 35 must be read as subject to the qualifications which follow in succeeding sections, but in terms s.35(1) simply and directly entitles a person who is injured as a result of a relevant transport accident to “compensation in accordance with this Act”, while s.35(2) entitles dependants to such compensation if a person who dies as a result of a transport accident would have been entitled to compensation under the Act. Section 35 concludes thus:-
“(3)The Commission is not liable to pay compensation to a person in accordance with this Act unless the person is entitled to compensation.”
Section 60 is found in division 3 of the Act, which is headed "Benefits". It commences:-
"60. Medical and like benefits
(1)In addition to any other compensation paid under this Act, the Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident - ...”.
What follow are five lettered paragraphs, each of them describing various costs that might be incurred in consequence of death or injury in a transport accident. In particular paragraph (a) reads thus:-
"(a)the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, rehabilitation services and ambulance services received in Australia because of the accident; ...”.
Obviously enough the costs described in paragraph (a) are to be paid by the Commission in addition to any other benefits payable by the Commission as compensation under the Act, and most commonly, I suppose, the costs described in paragraph (a) will become payable when the victim of a transport accident is seriously injured (as happened here). The appellant's case is then quite simple. He says that the medical treatment to which he and his wife must subject themselves in order that he might make her pregnant is required only "because of the accident" which he suffered in 1987, as the injuries then sustained rendered him incapable of otherwise impregnating his wife (and so much was accepted by the Tribunal); it is treatment which would be "received in Australia" and it otherwise falls squarely within the definition of "medical services" (or alternatively "rehabilitation services") as used in paragraph (a) of s.60(1); and that the Commission is therefore liable to pay that cost, and the whole of that cost, "as compensation in respect of a person who is injured … as a result of a transport accident" and "in addition to any other compensation paid under this Act " to him as the victim of the transport accident. In my view the appellant's contentions are correct and this appeal should succeed.
The Commission's arguments
The Commission is not disputing the entitlement of the appellant to compensation under the Act in consequence of his injuries in a transport accident; the only question is the extent of that entitlement. At the forefront of his argument counsel for the Commission put much emphasis upon s.35(3), claiming that this provision precluded the payment of compensation under the Act to anyone but "a person entitled to compensation under the Act", meaning the victim, if injured, or the dependants, if the victim dies. Indeed the Commission went so far as to say that, by reason of s.35(3), it was not entitled to make payment even to a hospital for services rendered to the victim who is injured but does not die, unless the payment could properly be characterised as made on behalf of the victim (and I suppose at his or her direction) and thus as an indirect payment "to" the victim.
I say immediately that that seems to me to put too much emphasis on s.35(3), at the expense of s.60(1). Section 35 is found in the division of the Act which deals with entitlement to compensation while s.60 is in the division describing benefits payable under the Act by the Commission. It may be accepted that the benefits described in division 3 are, in broad terms, simply an extrapolation of the compensation to which one may be entitled under s.35, but none the less s.60 is different, and significantly different I think, from the sections preceding it. The primary benefits provided by division 3 are weekly payments for loss of earnings, an impairment benefit for lost earning capacity (whether in the form of a lump sum or an annuity) and continuing weekly payments (in certain cases) for loss of earning capacity: see ss.44 and 45, ss.47 and 48, ss.49 to 51. In these sections the weekly payments are described as payable to "an earner who is injured as the result of a transport accident" or, in the case of s.50, to a non-earner, being a person who is injured as the result of a transport accident other than an earner or a minor. The impairment benefit is described as payable to "a person in respect of whom an impairment benefit is assessed under section 47", such an assessment being linked (by s.47) to the determination of the degree of impairment which is required (by s.46A) to be made "of each person who is injured as a result of transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit". In relation to these several benefits it is entirely understandable that there should be a general provision such as s.35(3) which in effect precludes the Commission's paying any compensation "to a person in accordance with this Act unless the person is entitled to compensation". Provisions such as ss.44 and 45, authorising the payment of compensation to "an earner", are sensibly made subject to the general provision in s.35(3) which operates by qualifying the Commission's liability to pay. At the very least the general provision made by s.35(3) must have simplified the drafting of all the benefit provisions to which I have just referred.
But, as I see it, s.60 is significantly different from the sections preceding it, in that it does not identify, however broadly or loosely, to whom the payment is to be made for which the Commission is made liable. Nor do I see any reason to imply from s.35(3) that payment must be made, in a case of injury, to the injured person. The services mentioned in s.60(1) will be supplied by a great range of providers and the Commission might well choose to make payments directly to such persons for any number of reasons. I see nothing against that course; nor do I see the need to attempt to justify such payments as, in effect, payments "to" the injured person when as a matter of analysis they might well be only payments "on behalf of" or "for" the injured person. It is true that paragraph (a) of s.60(1), if read separately from all context, is perfectly general in its description of the relevant costs save that the services to which they relate must be "received in Australia because of the accident". But the context is to be found in the first four lines of the subsection and it is sufficient. The liability is only to pay the costs then described "as compensation in respect of a person who is injured or dies as a result of a transport accident" and "in addition to any other compensation paid under this Act". So far as concerns paragraph (a) at least, that means in a case of injury that, if the Commission is to be liable under s.60(1) to pay the costs in question, the costs, which must be of services "received in Australia because of the accident" occasioning the injury, must also be such that their payment amounts to compensation "in respect of" the person injured in the accident and who is otherwise entitled to compensation under the Act because of the accident. Where that is so, there is no reason, I think, to require also that the costs be paid by the Commission only to the person injured. Nor is that inconsistent with the relevance of s.35(3) to other benefit provisions in division 3, as I have already described.
In a supplementary argument counsel laid some emphasis upon the expression "in respect of" in the introductory words of s.60(1) which describe the liability of the Commission as one to pay costs "as compensation in respect of a person who is injured or who dies". This, said counsel, was merely a short-hand to cover the two cases of injury and death and that more fully expressed “in respect of” meant “to (a person who is injured) or in respect of (a person who dies)”. If that were so, it is difficult to see why the expression used was not "in respect of" but "to or in respect of", and in my opinion there is insufficient warrant for the interpretation suggested by the Commission - unless, that is, there is something more in the context that follows to justify it. The words "in respect of" are wide words which take their meaning from their context[1] and they seem to me quite appropriate in themselves to a liability for the costs described in the various paragraphs of s.60(1), especially when those costs are occasioned by a transport accident and are being paid by way of additional compensation for the injured victim or for the dependants in a case of death.
[1]F.C.T. v. Scully (2000) 74 A.L.J.R. 504 at 513, 520
The main argument mounted by counsel for the Commission, however, lay elsewhere. The Commission’s primary contention was that s.60(1)(a) could not justify its making the payment sought by the appellant because the services in question (the cost of which was in issue) were services which, although "received in Australia because of the accident", were received by the appellant’s wife, not by him. I have mentioned already that the Commission had expressed its willingness to pay for the IVF treatment in so far as it involved the extraction of sperm from the appellant and its being frozen and stored; the Commission was resisting only liability for the cost of the treatment which was required of the appellant's wife (the collection of eggs, their fertilisation and the planting of a fertilised egg in the uterus). The submission was that the expression in paragraph (a) “received in Australia” must be read in context and, when so read, it must be taken to mean "received in Australia by the person entitled to compensation” – in this case the appellant himself.
In order to establish the context upon which he relied for this proposition, Mr. Maxwell referred to a number of things, including the paragraphs of s.60(1) which follow paragraph (a). These, he submitted, always made it plain that some third party was being benefited, when that was intended. Thus, he said, paragraph (b) dealt with child care, and the child was expressly mentioned. (I must say that as at present advised I am not altogether clear that paragraph (b) does deal with third party benefits, because the costs incurred would presumably be incurred not by the child; they may well be incurred by the person injured.) Counsel then contrasted paragraph (b) with paragraph (c) which refers specifically to the person who is injured and which has been held in Eccles v. Taylor[2] to deal only with the cost of services provided to the injured person. As for paragraph (ca), that refers to the costs of counselling services provided to “family members” in respect of the death, where death has resulted from the accident. Certainly it is not clear that paragraph (ca) is confined to dependants (who in the case of death are those entitled to compensation) and perhaps it is correct to say that paragraph (ca) deals with the cost of benefits provided to third parties – and, if that is so, it is made plain only by the express reference in that paragraph to “family members”. Paragraph (d) is more difficult; for it is not altogether clear who is to be saved harmless by the Commission’s paying the costs of burial or cremation where death results from the accident. Presumably it is the deceased’s estate which may, I suppose, be regarded as standing in the shoes of the person killed: see and compare s.3(5)(c). None the less, I detect no obvious pattern in the five paragraphs; each seems to me reasonably discrete and it is difficult, I think, to justify the argument that because of the content of the later paragraphs paragraph (a) must be read as if the adjectival expression “received in Australia because of the accident” were qualified by the expression “by the person who is injured or dies”. In my opinion that interpretation of paragraph (a) is not dictated by what is found in the later paragraphs of s.60(1).
[2]unreported, Supreme Court of Victoria, 19 April 1995
Counsel for the Commission also took the Court to the definitions in s.3 of “medical service”, “hospital service” and “rehabilitation service”. All three expressions are used in s.60(1)(a) and the definitions are as follows:-
"’hospital service’ includes–
(a) maintenance, attendance and treatment in any hospital; and
(b) the provision by any hospital of-
(i) medical attendance and treatment; and
(ii) nursing attendance; and
(iii)medicines, medical, surgical and other curative materials, appliances or apparatus; and
(iv)any other usual or necessary services provided by a hospital with respect to the treatment of the injury of a person; ...
’medical service’, except in Part 10, includes-
(a)attendance, examination or treatment of any kind by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor and osteopath or registered podiatrist; and
(b)attendance, examination or treatment of any kind by a registered psychologist on referral from a medical practitioner; and
(c)the provision, and as may be necessary from time to time (including at the time of an injury) the repair, adjustment or replacement of skiagrams, crutches, artificial members, eyes or teeth, spectacle glasses or hearing aids; and
(d)the provision by a registered pharmacist on the request of a medical practitioner or registered dentist of medicines or curative apparatus, appliances or materials; and
(e)the provision by a medical practitioner, [etc.] of any certificate or report required by the person or the person’s dependants for any purpose relating to the operation of this Act; ...
’rehabilitation service’–
(a)means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, assistance, appliance, apparatus or any other service; and
(b)without derogating from the generality of paragraph (a), includes the provision to or for a person for the purpose of rehabilitation of attendant care, household help, modifications to a home or a motor vehicle, counselling or transportation costs-
if the provision under paragraph (a) or (b) is of an authorised service in accordance with section 23; ..”
There is a definition in s.3 of “reasonable”, another word appearing in s.60(1)(a), but I pass that by; the question whether the costs actually incurred were “reasonable” for the treatment involved was not a question raised for determination on this appeal.
In referring to the definitions I have set out the Commission relied upon the canon of construction, noscitur a sociis. The definition of “medical service” is silent as to the person to whom the service is provided (and thus silent also as to the person by whom the service is received), but the omission is repaired, it was argued, by the references to that in the two other definitions, all three definitions having then to be read noscitur a sociis. To establish the premise for this, counsel contended that in the definition of "hospital service" it was made clear enough, in a case of injury, that the service was one provided to the injured person, emphasis being placed in this regard on the wording of paragraph (b)(iv) in particular. I doubt, however, that that wording makes the point, and for two reasons. First, the wording relied upon is only "with respect to the treatment of the injury of a person", which is not the same as "with respect to the person injured". Secondly if the point sought to be made were valid, one would have expected the relevant words of limitation to be found in the introductory words of paragraph (b) of the definition of "hospital service" and they are silent as to whom the service is to be provided - as indeed is paragraph (a). As for the definition of "rehabilitation service", that describes, twice, the provision of certain things "to or for" a person and, even if that be a reference to the injured person, such wording points against the Commission's submission. The Commission is not assisted, I think, by the argument of noscitur a sociis if dependent upon these definitions.
It follows that I am not yet persuaded to the construction of s.60(1)(a) for which the Commission contends, but I need not decide that; for even if the Commission were correct, I think that in this case, where it was the appellant who was himself seeking to impregnate his wife, it was not open to the Tribunal to characterise the medical services at issue as other than “received by” the appellant himself. Counsel for the appellant drew an analogy with the common-enough instance of an organ transplant or a blood transfusion. In both cases the need for a special donor might arise, so that the medical procedure required would embrace not only the victim of the transport accident but also the donor. The Commission accepted that in such a case the relevant service would in its entirety be one "received" by the injured person, but it sought to distinguish that situation on the ground that with the organ transplant and the blood transfusion the steps involving the donor were necessarily antecedent to any dealing with the injured person. It was the latter, Mr. Maxwell submitted, who "received" the organ transplant or the blood transfusion and that did not cease to be so because a donor had to be involved antecedently; it was all part and parcel of the one service being provided to (and so received by) the ultimate recipient. In contrast, in the case under appeal the appellant was concerned only with the extraction of semen and its storage; what followed involved the appellant's wife and what was done to her, if a medical service, was provided to her and received by her, not the appellant. As was observed by the Tribunal, this could mean that a woman who is injured in a transport accident becomes entitled to the cost of such services, but not a man, the President adding that, if that be so, it is an anomaly in the Act deserving of Parliament's attention.
In my opinion there is no such anomaly. I see no reason to distinguish the medical service which comprises an organ transplant or a blood transfusion from the case under appeal, where the service is being provided simply in order that the husband might impregnate his wife. Organ transplant, blood transfusion and impregnation by ICSI are all services being delivered to the injured person. It was not suggested by the Commission, nor could it have been, that there was any reason for the medical procedure to which the appellant's wife would have to subject herself, other than the inability of the appellant, by reason of the accident, to deliver live sperm into her body himself in the normal fashion. There was no flaw or defect in the wife herself requiring the procedure by way of ICSI. Invasion of the woman's body is part of the normal reproductive mechanism, and so it cannot be surprising that such invasion (albeit in a different manner) is needed when alternative means are employed to the same end. Whether that invasion of the woman's body comes first or last does not seem to me to alter the essential character of what is being done. Given that the only object of the exercise is to deliver for the appellant what he himself is now unable to deliver unaided, the procedure, when taken as a whole, must be seen as designed and intended to overcome that inability of the appellant for which the accident alone is responsible. I say nothing of the case where, the husband being sterile, the wife seeks to become pregnant by some third party donor through an IVF attempt; that is not this case and I offer no opinion on it. Here it is the appellant himself who would make his wife pregnant and, unfortunately by reason of his dreadful injury, ICSI is the medical procedure, and according to the evidence probably the only means, by which he can achieve it. Given its purpose and its cause, I see no justification for dividing the IVF attempt into parts and, considered as a whole, the procedure is a medical service provided to the appellant notwithstanding that it can be completed only with the wife's consent and on her body. In all the circumstances I think that the whole of the treatment, with all its component parts or services, is fairly described as received by him.
In the course of his very helpful argument Mr. Maxwell suggested that if the procedure with all its steps were to be properly characterised as a whole it might well be characterised as a service provided to (and thus received by) the woman only; and that, in line with the analogy afforded by the organ transplant and the blood transfusion, the antecedent steps of extraction of semen from the appellant and its storage, when considered as no more than parts of the whole, were not compensable at all under s.60(1)(a) when it is the man, not the woman, who is the victim of the transport accident and whose injuries make the procedure necessary. Of course the Commission took a more liberal view of its liability under s.60(1)(a), agreeing to pay for the procedure in so far as it was carried out on the appellant. But one may then ask, to what end? The only end in a case like this can be the impregnation by the appellant of his wife; for no other end was in view. And to my mind that is the medical service being provided in consequence of the appellant's injury. The whole procedure, with its several steps, seems to me to be one and indivisible and, as such, the Commission is liable accordingly for its cost under s.60(1)(a).
Conclusion
To sum up: the President of the Tribunal said when identifying the issue at stake:-
"Accordingly, both the Applicant and the TAC submit that Section 60(1) provides for their different contentions about whether or not IVF treatment provided to a couple in circumstances whereby the husband is infertile in consequence of injuries received in a transport accident, is a service contemplated as being compensated under the Act.
There is no dispute that the Applicant is infertile because of the injuries received by him in the transport accident. The issue for determination by me is whether or not the treatment required to avoid the consequences of such infertility is compensable under the Act.”
The transport accident occasioned the appellant’s infertility and the treatment (whether “received” by the husband or the wife) is a treatment which in toto is administered only because of the appellant’s condition and solely for the purpose of the appellant's impregnating his wife. The treatment involves the wife not because of any defect in her reproductory system; it involves her only because of the defect lying now within the appellant who cannot himself impregnate his wife unless they both undergo this treatment. I am not yet persuaded that s.60(1)(a) is to be read as subject to any further limitation than those to be found expressly within paragraph(a) itself and the introductory words of the subsection; but supposing that the words "received in Australia" were properly to be read as the Commission urged, I think that in this case, notwithstanding the necessary and willing participation of the appellant's wife, the medical treatment in question, in all its component parts, is properly described as "received by" the appellant and the reasonable cost of the services involved is therefore the liability of the Commission.
That is sufficient to dispose of the appeal. Another point was argued, both below and before us: whether the services which were at issue fell within the definition of “rehabilitation services” on the ground that, according to one psychiatrist, fatherhood would greatly assist the appellant’s self-image and thus his psychological well-being. Perhaps the appellant's legal advisers considered it easier to characterise the services in question as “rehabilitation services” because of the use in the definition of the expression "to or for". The respondent took the point that the question whether the services were “rehabilitation services” within the meaning of the definition was, in the circumstances, only a question of fact and as such not open on this appeal. In the event it is altogether unnecessary to rule upon that objection because there is no need for us to consider the definition of “rehabilitation services”.
It is enough that the services fall within the definition of “medical services” and that as such the reasonable cost of those services is properly the liability of the Commission under s.60(1)(a).
In my opinion the appeal should be allowed, the order of the Tribunal made on 12 April 1999 set aside and the appellant's claim under the Act remitted to the Tribunal (constituted by the President) for final determination.
CHARLES, J.A.:
I agree with Phillips, J.A.
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