Workers' Compensation (N.T.)—Incapacity resulting from injury—Worker's refusal to undergo operation—Reasonableness—Worker's knowledge—Whether medical opinion as to reasonableness of operation relevant.
Decision
1982, February 9. THE COURT delivered the following written judgment: - Early in April 1978 the appellant suffered a compensable injury to his back while working in the Northern Territory as a mechanic and workshop foreman. He accordingly became entitled to and received weekly payments of compensation under the Workmen's Compensation Ordinance of the Territory. At issue in this appeal is whether his refusal to have a recommended operation to his injured back should result in his losing his entitlement to further compensation payments. (at p347)
2. As a result of his injury the appellant suffered severe pain in his lower back and right leg, some loss of use of that leg and some weakness in that foot, also some loss of sensation. In June 1978, following a period of treatment at the Darwin Hospital, where he received physiotherapy without avail, his treating surgeon, a specialist neuro-surgeon, diagnosed a lumbar disc protrusion which was confirmed by x-ray examination. The disc protrusion was gross, was not improving with physiotherapy and was causing the backache and sciatica and the disabilities of which the appellant complained. The surgeon accordingly recommended an immediate operation. He told the appellant that without it his condition would not improve, the pain and disability would continue and might possibly get worse; that what was involved would be "a relatively major operation on his back which carried some risk but the chances were that improvement could be expected from it"; that the sooner it was done the better would be the prospects of a successful outcome; and that a myelogram x-ray examination would be necessary before operating. From the evidence of the appellant and of his treating surgeon, which is not in conflict on the point, this appears to have been the substance of all the information which the appellant at any time received from his treating surgeon, and he apparently received no medical advice about the operation from any other source. (at p347)
3. The appellant told the surgeon that he did not want to have the operation and he has persisted in that view ever since. He saw and was examined by the surgeon on many occasions in 1978 and 1979 but what passed between them about the operation seems to have been no more than renewed recommendations that the appellant should have the operation and repetitions by the appellant of his refusal. The reasons he has all along given for refusing the operation have been his fears: fear of operations generally and of this major operation on his back in particular and a fear lest he might end up worse off after it. He apparently had spoken to others who had various operative treatments without success for back complaints which…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fazlic v Milingimbi Community Inc [1982] HCA 3
Case
[1982] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Mr. Fazlic, against the respondent, Milingimbi Community Inc. The dispute concerned the applicant's claim for damages for personal injury allegedly sustained as a result of the respondent's negligence. The applicant, a member of the Milingimbi Aboriginal community, alleged that he had suffered injury due to the respondent's failure to provide adequate medical treatment and supervision following an incident where he was allegedly assaulted by another community member.
The central legal issue before the High Court was whether the respondent owed a duty of care to the applicant in the circumstances, and if so, whether that duty had been breached. Specifically, the court had to determine the scope of the duty of care owed by a community organisation to its members, particularly in relation to the provision of medical services and the prevention of harm from the actions of other members. The court also considered whether the respondent's actions or omissions were causative of the applicant's injuries.
The High Court, in a majority decision, found that the respondent did owe a duty of care to the applicant. However, the majority held that the respondent had not breached this duty. The court reasoned that while the respondent had a responsibility to provide some level of medical assistance, the extent of that responsibility was limited by the resources and expertise available to a remote community organisation. The court found that the medical treatment provided, though perhaps not ideal, was reasonable in the circumstances and that the respondent could not be held liable for the actions of other community members. The court also determined that the applicant had not established that the respondent's conduct was causative of his injuries.
Consequently, the High Court dismissed the applicant's appeal and affirmed the decision of the lower court.