Eaton and Comcare - [2002] AATA 222

DECISION AND REASONS FOR DECISION [2002] AATA 222

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/158

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOANNE EATON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date5 April 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ................…(Sgd)...................
  I R Way
  Member

CATCHWORDS
COMPENSATION – whether an injury is an "unintended consequence of treatment" provided by the Commonwealth – meaning of phrase "unintended consequence of treatment" – whether injury was not a desired aim of treatment – whether injury is a likely consequence of treatment – whether scarring is an "injury"

Safety Rehabilitation and Compensation Act 1988 ss 4(1), 6A, 14

Theile v The Commonwealth (1990) 22 FCR 342
Vallance v R (1961) 108 CLR 56
Comcare v Mooi (1996) 137 ALR 690
Re Elliott and Comcare [2001] AATA 305
Coulton v Comcare [2001] FCA 1312
Cunliffe v Goodman (1950) 1 All ER 720

REASONS FOR DECISION

5 April 2002 Mr I R Way, Member

This is an application by Joanne Eaton ("the Applicant") for review of a decision of a Delegate of Comcare dated 21 December 2000, affirming a determination dated 31 August 2000 that the applicant had not suffered an injury that was an unintended consequence of medical treatment pursuant to section 6A of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-25) and the following documentary evidence:

Report of Dr A Guest dated 10 April 2001 Exhibit A1
Statement of JK Eaton dated 12 April 2001 (3 pages) Exhibit R1
Statement of JK Eaton dated 12 April 2001 (1 page) Exhibit R2
Report of Dr P Heath dated 2 July 2001 (with attached
case notes and copy of Comcare's letter of instruction
dated 6 June 2001) Exhibit R3
Report of Dr P Heath dated 23 July 2001 Exhibit R4
Extracts from Dorland's Illustrated Medical Dictionary
27th Edition Exhibit R5
Miller-Keane Encyclopedia & Dictionary of Medicine,
Nursing, & Allied Health 6th Edition Exhibit R5
Report of Dr LP Brunello dated 2 July 2001
(with attached copy of Comcare's letter of instruction
dated 6 June 2001) Exhibit R6

The applicant gave oral evidence. Dr Heath and Dr Guest gave evidence by telephone.
Background Facts
A number of background factual matters are not in dispute between the parties. In view of this and on the basis of the evidence the Tribunal makes findings of fact as follows:
(a)The applicant was born on 25 March 1975.
(b)She was a serving member of the Australian Army from 13 April 1996 to 4 March 2001.
(c)In November 1996 and in January 1997 abnormal cells were detected on a pap smear test undertaken by the applicant.
(d)In February 1997 the applicant underwent a colposcopy performed by Dr P Heath, with a finding that there was a wide eversion on the cervix and normal columnar epithelium with islands of metaplasia and aceto white areas.
(e)A colposcopy directed biopsy showed normal glandular epithelium but cytology suggested severe dysplasia.
(f)On 17 February 1997 Dr Heath performed an electric loop excision of part of the applicant's cervix and endocervical curettage. Subsequent examination revealed squamous carcinoma and a small focus of adenocarcinoma. Squamous dysplasia extended to an excision margin and abnormal glandular epithelium extended to within 0.69mm of an excision margin.
(g)Because of the extent of the dysplasia Dr Heath considered it appropriate to perform a cervical conisation and this he did in March 1997.
(h)Histological examination of the cervical cone showed severe squamous dysplasia which was completely excised. Curettings, which were labelled an endo-cervical, were identified hystologically as showing an active endometrium.

Issues

The principal issue is whether the applicant has, as an unintended consequence of the medical treatment she received, suffered or suffers, an injury pursuant to section 4(1) of the Act.
Legislative Framework
The Act relevantly provides as follows
"4(1) In this Act, unless a contrary intention appears: …
injury means:
(a)a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment;
…
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;
…
6A(1) This section applies to the following employees:
(a)members of the Defence Force;
(b) members of the Air Training Corps established under section 8 of the Air Force Act 1923;
(c) members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;
(d) members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;
(e) persons declared by the Minister under subsection 5 (6A).
(2) If, at any time, whether before, on, or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act."

Applicant's Evidence

The applicant told the Tribunal that early in 1997 abnormal cells were found in her cervix and on 17 February 1997 a shallow cone biopsy was performed by Dr Heath. She told the Tribunal that Dr Heath explained that this procedure should clear up any problems she had. It was the applicant's evidence that following this procedure she saw Dr Heath again in March 1997 when he explained that he had found more than he thought there would be and that a cervical conisation should be undertaken. She said that Dr Heath explained the procedure and when she told Dr Heath that she did not want to loose the ability to have children he told her that this should not be a problem but she might require a suture in her cervix to overcome an incompetent cervix and to allow her to carry a child to full term.
The applicant said that in the first year after the second procedure she suffered extreme pain when walking and standing but she assumed this was part of the healing process. She told the Tribunal she was restricted in what she could do in the Army because of this pain and because during bush training she would develop infections. It was her evidence that more recently she suffered a lot of pain, more so when pap smears were taken. She said she needed a smear taken every 6 months but because so much of her cervix had been taken away, General Practitioners found it difficult to obtain a proper smear and she had to go to a Specialist and this more likely led to her having a smear taken four times a year.
The applicant told the Tribunal that she had difficulty and loss of sensation in sexual intercourse because of a lack of lubrication and that she avoided intercourse at all costs because of the pain. She said that this had affected relations with her husband and caused her stress and worry about not being able to have children. She said she wanted to have a family but there would be problems because of the need to have a suture in her cervix, incontinence during pregnancy, limitations on normal activities during pregnancy and the need to give birth by Caesarean Section. In all probability she said she would not become pregnant.
The applicant said that following discussions with Dr Heath she thought that any post operative problems would be minimal and she had not expected to have pain as a result of intercourse, pain as a result of pap smear procedures or difficulties in pregnancy. She said that if she had known about these problems she would not have had the operation.
In cross-examination the applicant said she understood that she had a pre-cancerous lesion that should be removed, but had she known what the outcomes of surgery would be she would have had a child immediately, tried alternative therapies and if necessary would then have had a full hysterectomy.
The Tribunal notes that in her written statement (Exhibit R1), the applicant stated:
"My current difficulties with my cervix condition are:
a        Loss of lubrication,
b        Loss of sexual desire,
c        Loss of self-confidence,
d        Increased depression,
e        Constant worry about my ability to have children,
f         Increased difficulties with my husband, due to my sexual dysfunction,
g        Petrified of having pap smears,
h        Increase in pain during sex and medical examination,
i         Severely scarred cervix,
j         Loss of ability to have children naturally,
j         Probable complications when giving birth,
k        Trouble falling pregnant,
l         Possibility of not being able to carry a child to full term,
m        Will require cervical suture?
n        Possibility of not being able to have children at all, and
o        Unable to enjoy sex due to loss of sensitivity and pain

and in Exhibit R 2 she stated: Paras 3,4,5

"3. Consequences of the medical procedure as discussed with Dr Heath were:
(a)would most likely require a cervical suture to be able to carry a baby to full term. (I have since been seen by Dr Guest, and during an examination I mentioned the need for a cervical suture, the response was that my cervix was so scarred it wouldn't be required)
(b)Increased regularity of pap smears as directed by my Gynecologist (sic).

4.No alternative procedures were offered or explained and no advice was given regarding a second opinion. No counselling or psychiatric support offered by anyone.
5.Advice in relation to a second opinion, counselling or psychiatric support was not offered by any medical practitioner from the Department of Defence."

Medical Evidence

Dr Adrian Guest (Obstetrician and Gynaecologist) provided three written reports (T16, T17 and Exhibit A1) and gave evidence by telephone.
Dr Guest examined the applicant on 15 June 2000 and at T16 folios 163 and 164 stated:
"[The applicant] described positional dyspareunia only since the surgery and also post-coital bleeding but only since her cervical surgery.
Physical examination was limited to her abdomen and pelvis. Examination of her abdomen showed no abnormality. Speculum examination revealed a cervix which was flush with the vault of the vagina with considerable scarring. The squamo-columnar junction was not visible with the naked eye and the external os was tiny and stenosed.
On bimanual palpation the uterus was felt to be small, anteverted, mobile and regular and moderately tender. There was moderate tenderness in all vaginal forncies but more on the left side than the right. A cervical smear was not taken.
A telephone call from [the applicant] the day after the above examination reported that she had been experiencing moderate vaginal bleeding ever since the examination.
…
Surgery of the kind experienced by [the applicant] may result in one or more of a number of consequences:
1.        No adverse effect on the function of the cervix in sexual intercourse, pregnancy nor delivery.
2.        Dyspareunia or pain during intercourse
3.        Subfertility arising from a scarcity of mucus normally secreted by endocervical glandular cells.
4.        Cervical incompetence resulting from damage to the internal cervical os leading to second trimester pregnancy loss.
5.        Cervical dystocia resulting from scarring to the cervix which limits or prohibits cervical dilation in labour leading to delivery by Caesarean section.
In my opinion it is unlikely that Consequence (1) above will apply in the case of [the applicant].
Consequence (2) is already being experienced by her.
Consequence (3) canot be assessed until such time as [the applicant] attempts to conceive
Consequence (4) can only be diagnosed with precision retrospectively, ie after such a pregnancy loss has occurred.
Consequence (5) cannot be diagnosed until labour has proceeded for a matter of some hours.
As to your schedule of questions, my answers are as follows:
1.        From what condition does she now suffer?
[The applicant] suffers from an almost complete absence of intra-vaginal cervix with associated scarring and dyspareunia. She may also suffer from subfertility, cervical incompetence and from cervical dystocia but these cannot be assessed until she attempts and then achieves pregnancy…."

In his report of 10 April 2001 (Exhibit A1) Dr Guest stated:
"A single excisional procedure such as a LEEP or a LLETZ would not be expected to have any significant effect on the reproductive performance of the patient with the possible exception that cervical dystocia may occur, resulting in a Caesarean section being necessary. However, in the case of the second excisional procedure, the risk of cervical incompetence rises and I have no doubt that any surgeon proposing such a second procedure would have mentioned the possibility of this to the patient."
In his oral evidence Dr Guest affirmed the view he had expressed in his written report that the medical procedure that the applicant underwent did not often cause prolonged pain after the operation or problems with sexual intercourse and that in this respect other causes had not been formally excluded. He also told the Tribunal it was inevitable the applicant would suffer some scarring from the operation and that it would not be his normal practice to tell patients of this outcome, any more than it would be for a Doctor to tell a patient undergoing an appendectomy that there would be a scar. However he accepted that the level of scarring in this case would be causally related to the pain the applicant suffered with respect to pap smears and sexual intercourse.
In answer to questions from the Tribunal Dr Guest said that the applicant had had a potentially extremely serious condition which in his opinion left no option other than undergoing an extensive conisation. He agreed that the applicant always had the opportunity of saying "no". However, in his view such an option would most likely result in the applicant subsequently suffering invasive cancer.
Dr Heath, Obstetrician and Gynaecologist, provided a number of written reports (T3, folio 32, 33 and 34, T20, Exhibit R3, Exhibit R4).
In his written report of 21 August 2000 (T20) Dr Heath sets out the history of the applicant's medical presentation, the medical procedures he undertook and his reasons for so doing.
He stated:
"You will note that we discussed the necessity for such quite major treatment and possible pregnancy issues in the future.
You will note from my letter of 26 March 1997 that I deliberately did not cover the base of the cervix with vaginal skin as this would have made follow-up cytology more difficult.
I feel that the surgery carried out was indeed necessary as failure to have done so would certainly have increased the likelihood of Joanne developing invasive cancer and the consequences thereof.
I do not feel that there is a higher likelihood of Joanne's fertility being adversely affected but certainly there could be problems during pregnancy with the very short cervix. It could be worth performing a careful gynaecological ultrasound to assess the current length of the cervix but generally this is more meaningful if done during pregnancy."

And in answer to the respondent's questions he stated:

"What condition she suffered after her treatment
As I have not seen Joanne since her treatment I cannot answer this precisely but I would imagine there would be significant scarring to the cervix and this could account for dyspareunia but this would not be my usual expectation.
Whether the condition was an unintended consequence of medical treatment or if her condition after treatment was the anticipated or expected outcome of the treatment performed.
The deficiency of the vaginal portion of the cervix is certainly to be expected after the significant cone biopsy which was considered necessary. This should not cause a problem in any way except for the possibility or even probability that the cervix may be incompetent during pregnancy and unable to maintain a pregnancy to full term.
There are several possible solutions to this probable cervical incompetence and this would be a matter for a specialist attention.
There may be a place for inserting a cervical suture prior to an attempted pregnancy although this can be a problem if a spontaneous early miscarriage occurs for other reason.
During pregnancy it is possible to monitor the length and integrity of the cervix with regular transvaginal ultrasounds and this procedure is used very frequently in monitoring women during pregnancy with a past history such as Joanne's.
During pregnancy a cervical suture may be inserted early in the middle trimester as a precautionary procedure or can be inserted if there are significant changes on ultrasound.
With a relative lack of the vaginal portion of the cervix this procedure requires considerable expertise and it would be a matter of careful clinical judgement as to whether this was possible.
In selected cases the suture is inserted via the abdomen and this is usually at around 12-14 weeks. The success rate with this procedure is high but a delivery needs to be undertaken by a Caesarean section and the suture is left in place.
In summary I feel that the questions related to the cervix and subsequent pregnancy cannot really be adequately answered until pregnancy occurs but I do feel that Joanne may have been given an unduly pessimistic outcome.
Unfortunately potentially serious pre-cancerous lesions of the cervix do require adequate treatment and with any treatment regime there is a down side but I would not regard the situation with Joanne as being a complication and I do feel the treatment has minimized her risk of developing invasive cancer."

In his oral evidence Dr Heath agreed that the applicant suffered significant scarring of her cervix as a result of the surgery she underwent but he said this was a result of the normal healing process and that scarring was inevitable. Dr Heath agreed with the definitions of scarring in Dorlands Medical Dictionary (27th Edition) and Millar-Keane's Encyclopaedia and Dictionary of Medicine, Nursing and Allied Health (6th Edition) (Exhibit R5). The Tribunal notes the dictionary meanings describe a scar as a mark remaining after the healing of a wound (such as one caused by surgery). When asked what would happen to the applicant if she had not had the conisation, Dr Heath said that it was likely that the applicant would have had a persistent abnormality which in turn would have led to invasive cancer with eventually death if a hysterectomy (and x-ray therapy) failed to remove the cancer. Dr Heath said, in answer to questions put in cross-examination, that if the applicant had not had a conisation it could take some years for invasive cancer to develop. However, if there was no treatment it would be difficult to say whether the applicant would have had time to bear one or more children but he would not preclude that this would be a possibility.
With respect to pregnancy Dr Heath affirmed that prior to surgery he had fully informed the applicant of her current situation and the implications for the future including the need for a suture to hold a pregnancy in place and that the operation should not have any significant impact of her fertility. He said that the question of sexual difficulties post the operation was not addressed. However, he expressed the view that such difficulties were not often sequelae of medical treatment, such as that given to the applicant. He said that his intention in carrying out the operation was to improve the applicant's health, to avoid the risk of cancer, to preserve her life and still allow her to become pregnant, to carry a child and to successfully give birth.

Dr L Brunello, Obstetrician and Gynaecologist, provided a written report dated 2 July 2001 (Exhibit R6).
In that report Dr Brunello stated:
(a)that he believed Dr Heath's treatment was necessary and appropriate and that he could see no conscionable alternative given the pathology encountered;
(b)that cervical fibrosis (scarring) is not entirely unexpected and could well occur whatever excision technique was used;
(c)painful or difficult coitus as a result of scarring of the cervix is not entirely unexpected, but this would not be a common complaint in his experience of such cases;
(d)with respect to cervical incompetence Dr Brunello stated that the ultimate test for the applicant's cervical status would be when she elects to become pregnant and having achieved a pregnancy proceeds through to the second trimester of her pregnancy. He said 'it cannot be said that Mrs Eaton has demonstrated that she suffered this possible consequence as a result of her previously mandated surgery';
(e)given the description of the scarring of the cervix, Dr Brunello expressed the view that the applicant might suffer difficulties in labour. However, such difficulties due to failure of the cervix to dilate may not ensue. If this is the case a Caesarean section would be necessary.

In summary Dr Brunello stated: (last para page 3)
"The consequences Ms Easton (sic) would appear to have suffered are cervical scarring; an element of cervical stenosis though the stenosis is not complete given that she menstruates and Pap smears have been taken. The claim of deep dyspareunia is a symptom that I can not unequivocally attribute to the treatment she underwent for her dysplasia, though as mentioned above dyspareunia may indeed be a consequence of cervical scarring. There were not unexpected or unintended consequences of the treatment. Should Ms Eaton go on to suffer any of the other potential consequences as outlined in the points above then these too in my opinion would not be considered unexpected or unintended consequences of the treatment. Appropriate management at the time by Obstetricians should then be sought. But it must be reiterated that the potential consequences may not in fact ensue."

And concluded:
"I believe that Ms Eaton was treated appropriately medically and the consequences of the treatment encountered by Ms Eaton should not have been unexpected."

Submissions

Ms Heyworth-Smith, for the applicant submitted that Ms Eaton suffered pain during intercourse, pain during pap smears and problems associated with pregnancy and that each of these conditions is an "unintended consequence" (within the meaning of that expression in section 6A of the Act) of the surgery she underwent to excise a large portion of her cervix. She attributed the applicant's pain to the scarring of the cervix, this being an outcome of the surgery performed. With respect to interpretation of the phrase "unintended consequence" in section 6A of the Act, it was submitted that there was no case law which would render assistance and that "unintended consequence" should be interpreted as any adverse consequence which was not the actual purpose of the treatment. In so submitting, Ms Heyworth-Smith relied on the ordinary English definition of "intended" from the Macquarie Dictionary:
"Intended :…
1        purposed or designed; to produce the intend effect
Intend…
1to have in mind there is something to be done or brought about; he intends to enlist
2to design or mean for a particular purpose, use, recipient etc; a book intended for reference
3.        to design, to express or indicate….
4.        to have a purpose or design; he may intend otherwise"

And from the Australian Concise Oxford Dictionary:

"Intend…
1have as ones purpose (we intend to go; we intend going; we intend no harm; we intend that it will be done today);…done on purpose."

It was submitted that in these definitions the words "foreseen, expected or not accidental", do not appear and that it cannot be the case that any consequence of an intended act is an intended consequence.
Ms Heyworth-Smith further submitted that the word "unintended" is coloured by the following word "consequence". There is nothing in the section about the intention or lack thereof to provide the actual treatment, nor does the applicant argue that the removal of a large portion of the cervix was "unintended". It is the consequences of the removal of part of the cervix which are in issue and in this respect it cannot be certain that the creation of scar tissue was an intended consequence – it was neither the purpose or design of the surgery but in fact something to be avoided if at all possible. She went on to say that while scar tissue is a consequence of the surgery and that it might have been foreseen that this would happen and it may even have been likely, but that does not mean that Dr Heath performed the surgery with the goal of creating scar tissue and as such scarring was an "unintended consequence". Similarly, it was submitted that when the surgery was performed it was not intended that the applicant would suffer pain during intercourse or as a result of pap smear tests.
It was also submitted for the applicant that it was clear from Dr Heath's evidence that while he did discuss future possible difficulties in pregnancy and birth, he did not discuss the scarring that would result with associated pain on intercourse and during pap smear tests. Finally, Ms Heyworth-Smith submitted that there is no reason to read down the legislation as it is beneficial legislation and where more than one interpretation is available, the interpretation which is favourable to the employee should be adopted. She said that if the legislation had intended the provision to be constrained to "unforeseen consequences", "unexpected consequences" or "consequences not resulting from an accident" then it could have done so expressly. She said that rather, the legislation has chosen to use an expression which is quite beneficial to the employee in its application and in this respect she referred the Tribunal to the matter of Theile v The Commonwealth (1990) 22 FCR 342, where Hill J said:
"The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purpose as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred."
Ms Heyworth-Smith concluded by contending that the decision under review should be set aside and in substitution therefor the Tribunal should determine that the applicant is suffering from an injury arising from unintended consequences of medical treatment.
Mr Rangiah for the respondent submitted that the word "intended" covers all the consequences which the doer of an act sees as likely to result from it, whether or not the act is done with a desire to produce such consequences and in this respect referred the Tribunal to Vallance v R (1961) 108 CLR 56 at 59, 61 & 82). Further he said it follows that if a consequence is to come within the expression "unintended consequences" in section 6A(2) that consequence must be one that both:
(a)is not desired or aimed for or designed by the provider of the medical treatment; and
(b)is not a likely consequence of the medical treatment.
It was submitted that the excision of the applicant's cervix, while being an injury in the ordinary sense of the word, was not an injury within the meaning of that word in section 4 of the Act, because Dr Heath certainly intended to carry out this excision and hence the excision injury, pursuant to section 6A of the Act did not arise out of or in the course of the applicant's employment.
With respect to psychological or psychiatric difficulties it was submitted that there was no medical evidence before the Tribunal that the applicant has suffered a "mental injury" as a consequence of the surgery. Mr Rangiah said that in order to conclude that there was such an injury the Tribunal, following Comcare v Mooi (1996) 137 ALR 690, would require evidence that as a consequence of the surgery the applicant is mentally ill or mentally disturbed or suffering from a psychological disorder.
With respect to pregnancy and birth difficulties the respondent submitted that there is no evidence that the applicant suffers difficulties with conception, carrying a child to full term, or child birth; and that the medical evidence before the Tribunal is that whether she suffers such problems can only be assessed when she attempts and then achieves pregnancy.
With respect to scarring, the respondent submitted that the excision of part of the applicant's uterus caused a wound and that the process of the healing of that wound would caused scarring. With respect to the meaning of "scarring", the Tribunal was referred to the definition of scars as set out in paragraph 21 above. The respondent further submitted that there are often unpleasant consequences of medical treatment, that these consequences may be inevitable and it seems most improbable that the legislature intended a patient should receive compensation for such consequences.
It was the respondent's contention that the real injury in this matter was the excision of part of the applicant's cervix and that the resulting scarring cannot itself be described as an injury within the ordinary meaning of that word. It was submitted that scarring was an inevitable consequence of excision of part of the applicant's cervix, that Dr Heath knew there would be scarring when he performed the excision and therefore scarring cannot be an "unintended consequence" of the treatment. Further, the consequences of the scarring of the applicant's cervix namely pain and sensitivity during sexual intercourse and undergoing pap smear tests cannot be regarded as an injury within the ordinary meaning of that expression.
With respect to the meaning of the phrase "unintended consequences" it was submitted that the meaning is clear, that there is no ambiguity and the applicant's contention that there should be a favourable construction on the meaning of the phrase "unintended consequences" is a proposition of last resort.
With respect to the expectations of the applicant following Dr Heath's explanation of the medical treatment, it was submitted that the question of intention in section 6A(2)(b) must be examined from the point of view of the medical practitioner who provides the treatment and that it is the intention (and expectation) of the medical practitioner that is relevant, not the intention of the patient. Mr Rangiah contended that the applicant's allegations that she was not warned of all the possible consequences of surgery are irrelevant in so far as consideration of the application of section 6A of the Act.
For these reasons Mr Rangiah submitted that the respondent has no liability to pay compensation under section 14 of the Act.
Consideration
There is no dispute between the parties in this matter and the Tribunal is satisfied on the evidence before it that the applicant's pre-cancerous condition prior to surgery to remove part of her cervix was not contributed to in a material degree by her defence service and that the surgery resulting in the removal of part of her cervix is an injury within the ordinary meaning of that word. However, the Tribunal is satisfied that this resulting injury was not other than intended as it was clearly Dr Heath's intention to remove part of the applicant's cervix because of her pre-cancerous condition and the likelihood of invasive cancer developing if the operation was not conducted. As such the Tribunal is satisfied that this injury is not an "injury" pursuant to section 4 of the Act.
Furthermore on the basis of the uncontroverted medical evidence before the Tribunal, the Tribunal is satisfied that the medical treatment provided by the Commonwealth in this case was not inappropriate and that Dr Heath took reasonable care and skill in the exercise of his skills and judgment and provision of advice and treatment to the applicant.
This matter is contested on the ground that the non-compensible injury resulting from the removal of the applicant's cervix has caused the applicant to suffer further injury as an unintended consequence of the operation within the meaning of section 6A of the Act, thereby causing the applicant to suffer a compensible injury within the meaning of section 4 and section 14 of the Act.
With respect to the relevant legislation, to be compensible pursuant to section 14 of the Act, the applicant must suffer an "injury" as that term is defined in section 4 of the Act. Where an applicant has received medical treatment provided at Commonwealth expense and suffers an injury within the ordinary sense of the word as an unintended consequence of that treatment, the injury to the applicant is taken to have arisen out of or in the course of the applicant's employment, regardless of whether there has been negligence and regardless of whether the original condition being treated was compensible.
In consideration of this matter, the Tribunal must firstly determine what are the "claimed conditions". Secondly, does the evidence before the Tribunal support a finding that a particular "claimed condition" is an injury within the ordinary sense of that word; and thirdly, are any of these injuries unintended consequences of the medical treatment provided at the expense of the Commonwealth. In taking this approach the Tribunal has followed what was said in Re Elliott and Comcare [2001] AATA 305 with respect to the meaning of the word "injury" in sections 6A(2)(b) of the Act. In that matter the Tribunal (at para 76) while not making a finding commented as follows:
"Section 6A(2) … refers to the link that must exist for an injury to be an 'injury' for which compensation is payable … The full definition of 'injury' is not applicable in section 6A(2). Instead it indicates an intention that the word 'injury' refers only to 'an injury (other than a disease)…being a physical or mental injury' of the type referred to in paragraph (b) of the definition of injury in section 4(1)."

Central to the final determination of this matter is the meaning of the phrase "unintended consequence".
The applicant expressed the view that in the absence of any case law which might assist, the Tribunal should have recourse to the ordinary English meaning as found in the Macquarie Dictionary and the Concise Oxford Dictionary (as stated in paragraph 27 above).
Insofar as case law relating to the application of section 6A of the Act, Ms Heyworth-Smith submitted that the only case she could draw to the Tribunal's attention is Re Elliott and Comcare (supra). However, she expressed the view that the circumstances in this case were different to the matter before the Tribunal to the extent that the case was of little assistance to the Tribunal in considering the meaning "unintended consequences" in section 6A. The Tribunal agrees that Elliott (supra) is of no assistance in this matter and similarly the only other case of which the Tribunal is aware, Coulton v Comcare [2001] FCA 1312, is also not on point.
However, Mr Rangiah for the respondent contended that the Tribunal should follow what the High Court of Australia said in Vallance v R (supra) where the meaning of the word "intention" was discussed with respect to a criminal charge of unlawful wounding.
The respondent referred the Tribunal to what was said by Dixon CJ in that case as follows:
"I do not read the word 'intentional' as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902."

Kenny in Outlines of Criminal Law Chapter (X) was reported as stating:
"In law it is clear that the word intention, like the word malice, covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not."

Further, Mr Rangiah drew the Tribunal's attention to what his Honour Justice Windeyer said at p 82:
"The common law treats what was done recklessly in that way, as if it had been done with actual intent. It says that a man, who actually realises what must be, or very probably will be, the consequences of what he does, does it intending that consequence."

Following what was said in Vallance the respondent submitted that if a consequence is to come within the expression "unintended consequence" that consequence must be one that both:
(a) is not desired or aimed for or designed by the provider of the medical treatment; and
(b) is not a likely consequence of the medical treatment.
In reply Ms Heyworth-Smith submitted that in Vallance (supra) the Court was dealing with criminal law in Tasmania and as such any consideration of the term "intentional" within that context, could not be a basis for consideration of the meaning of a similar term in administrative law.
Further to this submission and in support of her principal contention about the interpretation to be given to the phrase "unintended consequence", Ms Heyworth-Smith referred the Tribunal to the matter of Cunliffe v Goodman (1950) 1 All ER 720 where it was held that a man could not be said:
"…to 'intend' a particular result if its occurrence, though it might not be wholly influenced by [his] will, is dependent on so many other influences, accidents and cross-currents of circumstance that not merely is it was quite likely not to be achieved at all, but, if it were achieved, [his] volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominantly determine its occurrence.
If there were sufficiently formidable succession of fences to be surmounted before the result [he] aims at can be achieved, it might well be unmeaning to say that [he] 'intended' that result." (at 724)
It should be noted that the meaning of "intention" in this case was considered pursuant to the Landlord and Tenant Act 1927 and was directed to the question as to whether a landlord "intended" to demolish tenanted premises.
In considering this matter the Tribunal, as indicated above, has found no assistance from any case law specifically related to section 6A of the Act. However, the Tribunal has found that in Vallance what the Court said in a general sense about the meaning of the term "intentional" is relevant. Furthermore (and in keeping with the High Court's comments) the Tribunal is of the view that account must be taken of the general rule of law that a person is presumed to intend the natural, reasonable and probable consequences of his acts whether in fact, he intended them or not.
After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the correct approach is that if a consequence (or result) is to come within the expression "unintended consequences" pursuant to section 6A of the Act that consequence (or result) must be one that both:
(a) is not desired or aimed for or designed by the provider of the medical treatment; and
(b) is not a likely consequence of the medical treatment.
Further the Tribunal is satisfied:
(a)that what was held in Cunliffe v Goodman (supra) does not stand in the way of such a conclusion; and
(b)that there is no ambiguity in meaning of the phrase "unintended consequence" such that the phrase should be construed favourably to the applicant (Thiele v Commonwealth of Australia (supra)).
In arriving at the above findings the Tribunal is mindful that the application of the definitional terms as stated above should be undertaken in a logical and commonsense way with an eye to the practical realities of the circumstances relating to each injury.

Turning then to the consideration of the applicant's claimed conditions. The Tribunal notes that the applicant in her written statement (Exhibit R1, paragraph 7) has listed sixteen conditions. The Tribunal is of the view that these claimed conditions or concerns can be grouped as follows:
(a)physical conditions;
(b)mental conditions; and
(c)concerns about difficulties in achieving pregnancy, carrying a child to full term and giving birth.
Turning then to the question of whether a claimed condition is an injury within the ordinary sense of the word and dealing with each of the above groups in turn.
With respect to psychological and psychiatric conditions there is no medical evidence before the Tribunal from an appropriately qualified psychiatrist or psychologist nor has the applicant made any submissions to the effect that the applicant suffers a mental injury within the ordinary meaning of that term. In Comcare v Mooi (supra) his Honour Justice Drummond stated:
"It follows, in my opinion, that so far as events do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour."
The Tribunal accepts the respondent's submission that in the absence of any relevant medical opinion the Tribunal cannot be satisfied that the applicant is suffering from a mental injury and as such with respect to claimed mental conditions is not suffering an injury within the meaning of section 4 of the Act.
With respect to concerns relating to pregnancy difficulties, the Tribunal is satisfied that it is common medical evidence that any difficulties the applicant might suffer with respect to pregnancy cannot be determined at this stage and can only be determined, if at all, when the applicant becomes pregnant and subsequently. The Tribunal is satisfied that the applicant does not suffer an injury within the ordinary sense of that term, with respect to claimed pregnancy difficulties. In making this finding the Tribunal notes that both parties accepted that it is open to the applicant to subsequently lodge a claim for compensation if pregnancy difficulties become a practical reality.
With respect to the physical injuries claimed by the applicant, the Tribunal is satisfied after consideration of the medical evidence before it and the submissions of both parties that the scarring of the applicant's cervix is an injury within the ordinary meaning of that word and that the pain the applicant suffers in sexual intercourse and pap smear tests is directly related to this scarring.
The critical question then is whether the scarring of the applicant's cervix is an unintended consequence of the medical treatment from the Commonwealth.
Applying the meaning of the phrase "unintended consequence" as set out in paragraph 58 above to the practical realities of this case, the Tribunal has formed the view that scarring of the applicant's cervix is an integral and inevitable part of the intended operation; that scarring is a likely consequence of the medical treatment received by the applicant; and as such it would be illogical to determine that the scarring is an unintended consequence.
In arriving at this view the Tribunal is mindful that all of the medical witnesses were in agreement that scarring of the applicant's cervix was an inevitable consequence of the surgery to remove part of her cervix. Furthermore while the Tribunal is satisfied that the applicant was not informed of the possibilities of scarring prior to the operation, the Tribunal accepts the respondent's submission that the question of intention in section 6A(2)(b) must be relevantly examined from the point of view of the medical practitioner who provides the treatment; and the fact that the applicant was not warned of all of the possible consequences of surgery is not relevant to the consideration of this matter.
The Tribunal finds that while the applicant suffered an injury of scarring of the cervix as a consequence of the conisation surgery she underwent at Commonwealth expense, the scarring is not an unintended consequence of that surgery. The Tribunal is satisfied that the scarring of the applicant's cervix and associated pain the applicant suffers in sexual intercourse and in undertaking pap smear tests does not constitute an injury within the meaning of section 4 of the Act.
For the reasons given above, the Tribunal finds that the applicant does not suffer any injury pursuant to section 4 of the Act.
The Tribunal affirms the decision under review.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 February 2002
Date of Decision  5 April 2002
For the Applicant   Ms Heyworth-Smith
For the Respondent                  Mr Rangiah