Fazlic, S. v Milingimbi Community Inc

[1980] FCA 154

Re: SALIH FAZLIC
And: MILINGIMBI COMMUNITY INC.
No. NTG 13 of 1980
Worker's compensation
32 ALR 437

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Brennan J.
Toohey J.
Fisher J.

CATCHWORDS

Workers' compensation - Refusal of workman to submit to surgery - Fear of surgery - Unreasonableness of refusal - Workmen's Compensation Act 1949 (Northern Territory).

HEARING

SYDNEY

#DATE 3:11:1980

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

JUDGE1

This is an appeal by a workman who suffered an injury compensable under the provisions of the Workmen's Compensation Act 1949 (Northern Territory). He suffered a back strain in the course of his employment which resulted in the protrusion of an inter-vertebral disc with consequential interference with nerve roots, sciatica and the diminution of function of the right leg. He was given competent medical advice that he should submit to surgery to remove the disc, that the operation had a substantial chance of success and that the operation had an even greater chance of effecting some improvement. The workman's own surgeon was well qualified to perform the operation in Darwin. But the workman refused to have the operation because of a real fear of surgery. He appreciated that if he did not have the operation the prospects of employment in the future were negligible and he might expect no relief from pain. It was said that his Yugoslavian origins might have exposed him to greater fear of surgery than would be the case if he were a second generation Australian or if he had come from a community or culture in which fear of surgery was not significant.

The Workers' Compensation Tribunal held that the refusal to undergo surgery did not break the chain of causation between the initial injury and the incapacity from which the workman continued to suffer, but in the Supreme Court of the Northern Territory Muirhead J. allowed an appeal from that finding. His Honour set aside the finding that the workman by reason of the injury remained totally incapacitated from gainful employment or from carrying out his pre-accident duties. He also set aside the finding that the injury caused the workman a 50% loss of the efficient use of his right leg above the knee.

The basis upon which his Honour reached this conclusion is set out in a passage in his judgment which contains the essential findings of fact and which manifests the approach which his Honour took to the question before him. His Honour said:

" . . . here we have the case of a man who suffered an injury the effects of which totally disable him for work in his trade. He has no training for clerical or light work, he has no capacity for physical work outside his trade. His back injury was quickly and apparently accurately diagnosed. It was of its nature likely to respond to surgery. He was so advised by his own surgeon. The independent orthopaedic specialist Mr. Gray confirmed the nature of the injury and the necessity for operation. The probabilities were that following the operation he would have returned to work. The operation had no peculiar hazards, unusual risks or difficulties. The prospects of successful surgery were patiently explained to him. He was not as I have said, subjected to pressure. He well understood the alternatives - good prospects of success, or continuing and probably permanent discomfort and incapacity. The costs of the operation were not his personal responsibility, he was entitled to compensation during his convalescence. He is not a man who by reason of his age is nearing the end of his working life. He has made his choice and he is of course entitled to make it. He will not undergo surgery, because he is frightened and worried by the concept. He has a fear that it may not be successful and that it may make his condition worse. His fears are, as I have said, based on tenuous grounds, but it is often not possible to rationalise fear. Knowing the doctors cannot guarantee success he prefers to live a life of discomfort and invalidity. He may be the victim of his personality and of his ethnic background. But there is no neurosis, no inability by reason of the injury to comprehend his doctor's advice, to form a reasoned judgment. "It seems to me the law must introduce some objectivity in viewing this matter. If the test is entirely subjective, a genuine fear of surgery (even of all surgery) resulting in refusal of alleviative treatment and consequential incapacity and impairment must be at the expense of the employer. With respect it seems to me that phrases like 'defect of moral courage' and 'ordinary manly character' tend to introduce emotional considerations. It must be a question of fact. In my opinion it can truly be said that the respondent's present incapacity for work is a consequence of his refusal to undergo appropriate medical treatment. Upon the evidence I consider the employer has established on the probabilities that such refusal was unreasonable. I fear the Tribunal's finding that his decision was 'quite understandable' begs the question. It is certainly within the realm of understanding; it is a sad situation. But I take the view that the refusal must be categorised as unreasonable for the purpose of determining his entitlement to continuing compensation from his employer, Milingimbi Community Incorporated. "

In the Tribunal, the learned Arbitrator had arrived at a different conclusion. He had said: " The Applicant has, I believe a genuine fear of undergoing a back operation. He had heard of people (some of whom he named), who had apparently got worse after operation. He is a Yugoslav and I accept Mr. Yaksich's opinion that Yugoslavs, Greeks, Italians and some other ethnic groups have greater fear of operative procedures than, for example, a second generation Australian. I accept that he honestly believed that there was a real risk of being worse off after operation. His refusal was based, in my opinion, on an honestly held fear that there was a substantial risk that he might end up more disabled after operation."

and he had said that he was

"unable to find that the Respondent has shown the Applicant's refusal to be unreasonable."

The appeal from the Tribunal to the Supreme Court invoked the original jurisdiction of that Court to hear the matter de novo and to determine it on the evidence tendered before the Court (Dare v. Dietrich (1979) 26 ALR 18 at pp.30 to 33; Dietrich v. Dare (1980) 30 ALR 407). The transcript of evidence before the Tribunal was tendered in evidence before his Honour but the findings of the Tribunal did not bind him though they were entitled to weight, for his Honour heard further evidence from the workman and some evidence from a psychiatrist bearing upon the issues for his determination. The present case is thus distinguishable from Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 ALR 193 where the appeal to the Supreme Court was heard on the transcript of evidence and other documentary material before the Tribunal. So the appeal to this Court focuses upon the evidence before the Supreme Court, his Honour's findings on that evidence and the reasons which his Honour gave for allowing the appeal from the Tribunal.

The appellant workman now attacks his Honour's finding that his present incapacity is caused not by the original compensable injury but by the unreasonable refusal of the workman to submit to surgery which would have been likely to eliminate (or at least diminish) his present incapacity. It has long been held that the unreasonable refusal by a workman to submit to surgery which would eliminate his incapacity is to be regarded as the cause of his incapacity after the time when the incapacity might have been eliminated, and that the initial injury is not to be regarded as the cause of the incapacity after that time (see, e.g. Warncken v. R. Moreland & Son (1909) 1 K.B. 184; Gormley v. Brisbane Tramways Co.Ltd. (1909) St.R.Qd.329).

The question whether the refusal of a workman to submit to surgery is unreasonable or not is a question of fact (Steele v. Robert George & Co.(1937) Ld. (1942) A.C.497), and this Court cannot disturb a trial judge's finding of fact unless it is satisfied that the finding is wrong. Although the question is one of fact, error in a finding may be shown if a trial judge, misunderstanding the nature of the question for decision, adopts an erroneous approach in finding the facts. In the present case, Muirhead J. rejected the submission that unreasonableness was to be determined by reference principally to the appellant's honestly held fears of surgery, because he thought that "the law must introduce some objectivity in viewing this matter". On this approach his Honour found that the workman's "present incapacity for work is a consequence of his refusal to undergo appropriate medical treatment". The question for his Honour was not, of course, whether the medical advice to submit to surgery was soundly based, but it was whether the workman acted unreasonably in refusing to submit to surgery in view of the advice he had received (Richardson v. Redpath Brown & Co.Ltd. (1944) A.C.62 at p.68; Redpath Brown & Co.Ltd. v. Hayes (1942) 1 A11 E.R.298 at p.302).

That question could not be answered according to a standard derived from conduct to be imputed to an hypothetical reasonable man without the personality or idiosyncracies of the workman. It is the unreasonableness of the particular workman's refusal to undergo surgery which is in issue, and that question cannot be determined without regard to his personality and idiosyncracies both physical and mental. As Lord Wright noted in Steele's case(supra, at p.504):

" . . . the question cannot be decided save on a sympathetic estimate of the workman's personality and the special circumstances of the particular case. "

However, the question is not whether the refusal appears reasonable to the workman. Reasonableness is not to be predicated of conduct merely because the person engaging in the conduct honestly considers it reasonable to do so. It would be impossible to apply a criterion of reasonableness if the measure of it varied according to each workman's assessment of his conduct. If that were the case, entitlement to compensation would turn on an issue of the workman's credibility, not upon an assessment of the unreasonableness of his conduct. The unreasonableness of refusal of surgery is to be ascertained by reference to the circumstances of the case, the particular workman's knowledge and understanding of the material facts, his interests and his idiosyncracies both physical and mental. Taking those matters into account, the question whether it is unreasonable for him to refuse surgery in the particular circumstances of his case is to be assessed as a matter of common sense; it is not to be determined according to the workman's own estimate of his conduct, for his fear of surgery does not necessarily make his refusal to submit to surgery reasonable. The likely benefit of an operation may demonstrate the reasonableness of submitting to surgery despite the fear which holds, or tends to hold, the workman back. That is not to say that fear of surgery is irrelevant. It may be a material or even a determinative factor where, for example, medical opinion is divided or where there are doubts as to the prospects of surgical success. And if fear of surgery were a manifestation of some psychiatric instability or disease which surgery might exacerbate then, of course, the fear would be an important factor for consideration in assessing whether a workman's refusal of surgery were unreasonable.

In the present case, however, the appellant's fear of surgery does not lead to the conclusion that his refusal to submit to surgery was reasonable. It was argued that the appellant was precluded from submitting to surgery by fear which, though not the product of a mental disorder, was strong enough to prevent the appellant from reaching a decision to submit to surgery in accordance with the uniform and competent advice he had received. There is no doubt that the appellant felt this fear and that it determined the decision which he made. But it did not make his refusal to submit to surgery reasonable; it merely explained why he made his decision to refuse. He had an unreasoning fear which led him to make an unreasonable decision. Upon his Honour's assessment, surgery upon the fearful workman was the reasonable course in his case. The fact that he was too fearful to adopt this course did not make his conduct reasonable, though it made it understandable.

His Honour's approach to the question which fell for his determination reveals no error and there is no ground for disturbing his finding of fact that the workman's refusal to submit to surgery was unreasonable. The appeal must therefore be dismissed.

No order was taken out consequent upon his Honour's findings until the hearing of this appeal had begun. In terms the order recites no more than that the appeal to the Supreme Court is allowed and that further consideration of the period during which and extent to which the appellant was incapacitated by reason of his injury is reserved.

The parties were of a mind that, whatever the outcome of this appeal, the matter should be remitted to his Honour for further consideration in the light of this Court's determination. As the appeal will be dismissed, his Honour's order stands and provides appropriately for further consideration by the Supreme Court of the issues still outstanding.