Filla v Comcare
[2001] FCA 964
•25 JULY 2001
FEDERAL COURT OF AUSTRALIA
Filla v Comcare Australia [2001] FCA 964
ADMINISTRATIVE LAW – Administrative Appeals Tribunal decision affirming Comcare decision that Comcare not liable to pay compensation to applicant – appeal to Federal Court – whether Administrative Appeals Tribunal erred in law.
WORKERS’ COMPENSATION – Commonwealth employees – Comcare liability to pay compensation in respect of injury resulting in permanent impairment – whether Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) definition of permanent refers to period of time undetermined but substantial.
WORKERS’ COMPENSATION – permanent impairment – whether reasonable rehabilitative treatment in Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24(2)(c) consists of or distinct from rehabilitation program under s 37 – whether reasonable rehabilitative treatment in s 24(2)(c) consists of or distinct from rule that worker must mitigate damage by not unreasonably refusing treatment – whether reasonable rehabilitative treatment in s 24(c) raises two questions of whether or not reasonable rehabilitative treatment exists and whether or not Commonwealth employee has undertaken all such treatment – manner in which answers to those two questions assist determination of permanence.
WORKERS’ COMPENSATION – rule that worker must mitigate damage by not unreasonably refusing treatment – whether rule to be read into Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24(1) – where rule distinct from reasonable rehabilitative treatment in s 24(2)(c) – whether breach of rule means Comcare not liable to pay any compensation – whether reasonableness assessed according all circumstances known to and affecting worker – examples of circumstances known to and affecting worker capable of making refusal not unreasonable – whether baseless fear of treatment capable of making refusal not unreasonable – whether possession of full information of objective reasonableness of treatment sufficient to make refusal unreasonable.
WORDS & PHRASES – “indefinitely”
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) s 19(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14(1), 24(1), 24(2), 27(1), 37
Social Security Act 1947 (Cth) ss 135(2), 135M(1)
Workmen’s Compensation Ordinance 1949 (NT)Comcare v Levett (1995) 60 FCR 14 followed
Martin v Australian Postal Corporation (1999) 29 AAR 420 referred to
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 followed
Re Drage and Comcare (1996) 42 ALD 589 disapproved
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301 considered- 2 -
New South Wales v Taylor (2001) 178 ALR 32 referred to
Glavonjic v Foster [1979] VR 536 considered
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 referred to
Lorca v Holts’ Corrosion Control Pty Ltd [1981] Qd R 261 referred to
Selvanayagam v University of the West Indies [1983] 1 WLR 585 referred to
Lange v Hoyt 159 A 575 (1932) referred to
Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred toCalabresi Ideals, Beliefs, Attitudes, and the Law 1985
EVA FILLA v COMCARE AUSTRALIA
N 1006 of 2000KATZ J
25 JULY 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1006 of 2000
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER SASSELLA
BETWEEN:
EVA FILLA
APPLICANTAND:
COMCARE AUSTRALIA
RESPONDENTJUDGE:
KATZ J
DATE OF ORDER:
25 JULY 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal be set aside.
2. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.
3. The respondent pay the applicant’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1006 of 2000
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER SASSELLA
BETWEEN:
EVA FILLA
APPLICANT
AND:
COMCARE AUSTRALIA
RESPONDENT
JUDGE:
KATZ J
DATE:
25 JULY 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
There is before the Court a so-called “appeal” from a decision of the Administrative Appeals Tribunal (“the AAT”): see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AATA”), read in the light of subs 19(2) of the Federal Court of Australia Act 1976 (Cth). Such an appeal may be brought only on “a question [or questions] of law”: see subs 44(1) of the AATA.
By the decision the subject of the appeal, the AAT affirmed a decision which had earlier been made by Comcare that Ms Eva Filla, a Commonwealth employee, was not entitled to compensation which she had claimed under subs 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRCA”).
(For the sake of completeness, I mention both that Ms Filla had also claimed compensation under subs 27(1) of the SRCA and that that claim suffered the same fate as her claim under subs 24(1) of the SRCA. However, it will be sufficient for me to deal in these reasons for judgment, as did the parties in their submissions before me, only with Ms Filla’s claim for compensation under subs 24(1) of the SRCA and with that claim’s fate. It was not in dispute before me that if the AAT had erred in law in (effectively) rejecting Ms Filla’s claim under subs 24(1) of the SRCA and if I were to remit that claim to the AAT to be heard and decided again (see subs 44(5) of the AATA), as Ms Filla ultimately sought that I should, then not only would I remit to the AAT that claim, but I would also remit Ms Filla’s claim under subs 27(1) of the SRCA.)
Subsection 24(1) of the SRCA provides, “Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury”.
Subsection 4(1) of the SRCA contains definitions of the words “impairment”, “injury” and “permanent”, which definitions are, unless the contrary intention appears, to be used in connection with the operative provisions of the SRCA.
The word “impairment” is defined in subs 4(1) of the SRCA as meaning “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.
The word “injury” is defined in subs 4(1) of the SRCA as meaning:
“(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; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment….”The word “permanent” is defined in subs 4(1) of the SRCA as meaning “likely to continue indefinitely”.
In Comcare v Levett (1995) 60 FCR 14, a Full Court of this Court (Lockhart, Beazley and Moore JJ) plainly proceeded (see at 15-16) on the basis that no contrary intention appeared in subs 24(1) of the SRCA, so far as the definitions of the words “impairment”, “injury” and “permanent” set out in subs 4(1) of the SRCA were concerned, so that those definitions were to be used in connection with subs 24(1) of the SRCA. Furthermore, when speaking of the relationship between the concepts of “injury” and “impairment” in the context of subs 24(1) of the SRCA, the Full Court said (see at 16),
“Subject to one possible qualification, it can be seen that injury, as defined, concerns harm done to the mind or body of an employee; and impairment, as defined, deals with the consequences in a functional sense of that harm. The possible qualification may arise from the inclusion in the definition [that is, in the definition of ‘impairment’] of the words ‘the damage ... of any part of the body’.”
(Apart from liability in Comcare to pay compensation in respect of an injury suffered by an employee when that injury results in impairment, there also exists liability in Comcare to pay compensation in respect of injury suffered by an employee when that injury results in either death or incapacity for work: see generally subs 14(1) of the SRCA. It is, however, unnecessary for present purposes to say anything of the relationship between the concept of “injury”, on the one hand, and the concepts of “death” and “incapacity for work”, on the other.)
It may also be noted that, as Burchett J pointed out in Martin v Australian Postal Corporation (1999) 29 AAR 420 at 430, [22], by virtue of the definition appearing in subs 4(1) of the SRCA, the word “permanent” in subs 24(1) of the SRCA “does not mean ‘to last for ever’”. I take it that, by using the word “indefinitely” in the definition of the word “permanent”, the Parliament meant to refer to a period of time which, although undetermined, is substantial.
When Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT) is determining whether an impairment which has resulted from an injury is “permanent” or is, in other words, “likely to continue indefinitely”, that determination is not left at large by the SRCA. Instead, subs 24(2) of the SRCA requires Comcare (and, on review, the AAT) to have regard to certain specified matters in making that determination. Subsection 24(2) of the SRCA provides:
“(2) For the purpose of determining whether an impairment is permanent Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.”
It was not in dispute at any relevant time that Ms Filla had suffered the injury in respect of which she had sought compensation under subs 24(1) of the SRCA. That injury had been one to the rotator cuff of her right shoulder, which injury she had suffered in the course of her employment. Nor was it in dispute at any relevant time that an impairment had resulted from that injury and was continuing.
Comcare, however, while accepting that, at the time of its decision, Ms Filla was impaired as a result of her injury, did not accept that her impairment was a permanent one within the meaning of subs 24(1) of the SRCA. For that reason, it rejected her compensation claim. Comcare’s conclusion as to the lack of permanence of Ms Filla’s impairment was expressed by it to be dependent on the view which it took that an acknowledged refusal by Ms Filla to submit to surgery which had been recommended to her for the repair of her injured rotator cuff was unreasonable.
As to the AAT’s decision affirming Comcare’s decision, it must be said immediately that the AAT did not express as clearly as one might have hoped the reasons which it gave (admittedly orally) for its decision. It may be that the AAT affirmed Comcare’s decision because the AAT had reached the same conclusion as had Comcare that the impairment resulting from Ms Filla’s injury was not a permanent one. It may instead be that, although the AAT accepted (or, at least, proceeded on the assumption) that Ms Filla’s impairment was a permanent one, the AAT affirmed Comcare’s decision because the AAT concluded that Ms Filla was disqualified from receiving compensation in respect of her injury by reason of a failure by her to mitigate her damage. Whichever one of those two possible constructions of the AAT’s reasoning be the correct one, it at least appears to be sufficiently plain that the AAT reached its decision because of the view which it, like Comcare, took that Ms Filla’s refusal to submit to the recommended surgery was unreasonable.
I will set out below the substance of the reasons which the AAT expressed for its decision, but, before I do so, there are two preliminary matters with which I wish to deal.
First, in the course of stating its reasons for its decision, the AAT referred to two other decisions, namely, Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 (Stephen, Mason, Murphy, Aickin and Wilson JJ) and Re Drage and Comcare (1996) 42 ALD 589 (Deputy President GL McDonald and Member DL Elsum). It is convenient that I should summarise now both of those decisions.
Fazlic was a case which concerned the Workmen’s Compensation Ordinance 1949 (NT). The question for decision in the case was whether a worker had, at a particular point in time, lost his entitlement to further payments of weekly compensation in respect of a compensable back injury by reason of his refusal to submit to a laminectomy which had been recommended for that injury. That question was not one which arose as a result of any express provision of the Ordinance. Rather, the High Court (unanimously) read into the Ordinance a rule which had earlier been described as “a piece of judicial legislation” when read into other workers’ compensation legislation (see at 350), that rule being one about “a worker’s unreasonable refusal of treatment” (again, see at 350) and the effect which such refusal had on the worker’s entitlement to workers’ compensation. The basis for the reading into workers’ compensation legislation of a rule that a worker must not unreasonably refuse treatment was said to be the “doctrine of mitigation of damage” (see at 353), although, unlike the situation usually obtaining in common law personal injury litigation, failure to mitigate one’s damage in the workers’ compensation field disqualifies the worker from receiving any compensation, rather than merely reducing its quantum. As properly formulated, the rule was said (see at 350-51) to be that,
“Any assessment of the reasonableness or otherwise of a worker’s refusal of treatment must depend upon the worker’s state of knowledge at the relevant time. … A worker’s choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him.
…
… A [decision-maker’s] … concern is … with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.”The court also stated (see at 350),
“No doubt it will be but rarely that an employer does not succeed in establishing that a worker’s refusal is unreasonable when the worker has allowed baseless fear to decide his choice, outweighing his knowledge of cogent factors favouring his undergoing an operation.”
However, in the court’s view, the situation just described was not that which obtained in the case before it. At the relevant time, Fazlic “knew almost nothing about the objective reasonableness of the operation” which was being recommended for his injury (see at 350), and the application of the rule to Fazlic’s situation led the court to conclude that his refusal to submit to the operation at the relevant time had not been established to be unreasonable. His entitlement to further weekly compensation payments in respect of his injury was therefore held not to have ceased.
I turn now to Drage. That was a case in which the AAT was concerned, for the purpose of subs 24(1) of the SRCA, with the question whether an employee’s impairment, resulting from a myocardial infarction, was a permanent one. On that question, the AAT (see at 597, [23]) expressed the conclusion regarding the applicant that “without surgical intervention, his condition will continue indefinitely”. “On that basis,” it continued, “the tribunal regards the applicant as being permanently impaired”.
Having expressed that conclusion, the AAT then turned to a question which it had earlier said (see at 593, [13]) “also” arose, that is, arose in addition to the question whether the applicant’s impairment was likely to continue indefinitely. That question was “whether or not the applicant has undertaken all reasonable rehabilitative treatment for the impairment under the provisions of s 24(2)(c) of the Act”.
The AAT began its discussion of that question by referring (see at 597, [24]) both to expert evidence before it that the applicant’s condition would be improved if he were to submit to open heart surgery and to the applicant’s evidence before it that he was unwilling to submit to such surgery.
In the first instance, the AAT dealt with the expert evidence to which I have just referred by holding that open heart surgery did not fall within the phrase “rehabilitative treatment” in par 24(2)(c) of the SRCA, so that whether or not the employee had had that surgery was irrelevant to the question whether, within the meaning of par 24(2)(c) of the SRCA, he had undertaken all reasonable rehabilitative treatment for the impairment. The AAT pointed out that, although the phrase “rehabilitation program” was defined in the SRCA (see subs 4(1)), the phrase “rehabilitative treatment” was not. The AAT then said that it had been unable to find any decision of either the AAT or this Court in which the meaning of the phrase “rehabilitative treatment” had been considered. It then continued,
“In its broader sense, ‘rehabilitative treatment’ could extend to cover any treatment undertaken to place an injured employee in the same state, or as near to that state, that the employee enjoyed prior to the occurrence of the injury. That is however, in the opinion of the tribunal, to adopt too broad a definition in the circumstances of the present case. The concept of ‘rehabilitation’ in medical parlance conveys something less than that which is ordinarily regarded as serious surgical intervention. It is a question of degree as to when surgical intervention will constitute ‘rehabilitative treatment’. That in turn will depend on whether surgical intervention is of a minor nature, eg surgery to relieve the pain of carpal tunnel syndrome, or whether it is of a more serious nature. Consideration of open heart surgery involves, in the opinion of the tribunal, something more than that which would ordinarily be encompassed by the term ‘rehabilitative treatment’. If this view is correct, then in cases such as the one under consideration the provisions of s 24(2)(c) of the Act do not arise.”
(I interrupt my discussion of the AAT’s reasons for decision in Drage to point out that the AAT was apparently unaware, when deciding that matter, of the decision of Smithers J in Dragojlovic v Director-General of Social Security (1984) 1 FCR 301. The latter case concerned subs 135M(1) of the Social Security Act 1947 (Cth) (“the SSA”), which subsection conferred on the Director-General a power to refuse to grant a pension to a claimant therefor or to cancel or suspend a pensioner’s pension if the claimant or pensioner did not receive “suitable treatment for physical rehabilitation”. Smithers J dealt (see at 307-08) with the question what type of treatment was contemplated by that phrase and, in particular, with the question whether the undergoing of a major operation such as a laminectomy was contemplated by it. On that question, Smithers J said,
“There is a sense in which the undergoing of such an operation might be considered to be suitable treatment for physical rehabilitation. Rehabilitat[e] is defined in the Oxford Dictionary 1982 supplement as including: ‘to restore a disabled person, a criminal, etcetera, to some degree of normal life by appropriate training.’
In Websters Dictionary (1935) it embraces,‘To put on a proper basis or into previous good state[ a]gain, to restore to re-establish, specifically to restore a person … as a disabled soldier to a status of independent earning power [through] a course of instruction under state supervision, especially along vocational lines.’
In the Macquarie Dictionary the first meaning given is ‘to restore to a good condition, especially in a medical sense, of persons’.
…
One feels that the normal use of the expression ‘treatment for […] rehabilitation’ connotes treatment of a conservative kind, rest, fresh air, exercises, a tonic. But I am unable to exclude from its natural meaning any treatment designed to restore a person, as far as it can be, to his former health. In ‘any treatment’ I include major surgery.”(I note that, in addition to the definitions in general dictionaries referred to by Smithers J, one of the definitions given of the word “rehabilitation” in the Concise Medical Dictionary (4th ed) is: “(in physical medicine) the treatment of an ill, injured, or disabled patient with the aim of restoring normal health and function or to prevent the disability from getting worse”.) The Oxford English Dictionary (2d ed) gives, as one definition of the word “rehabilitative” (which, as it points out, is a deverbal adjective, the relevant verb obviously being “rehabilitate”), “designed to rehabilitate”. That definition appears to me to be the appropriate definition of the word “rehabilitative” in the phrase “rehabilitative treatment”. Thus, the phrases “treatment for … rehabilitation”, appearing in subs 135M(1) of the SSA, and “rehabilitative treatment”, appearing in par 24(2)(c) of the SRCA, should be treated as having the same natural meaning (a matter effectively conceded before me by Ms Filla, although she did make an argument, with which I will deal below, that the phrase “rehabilitative treatment” should not be given its natural meaning in par 24(2)(c) of the SRCA). Accordingly, it appears to me that there is a real chance that, if the AAT had been aware of what Smithers J had said in Dragojlovic about the phrase “treatment for … rehabilitation”, then the AAT would have concluded in Drage that open heart surgery did constitute “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA.)
Having expressed the view which it had that open heart surgery did not constitute “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA, the AAT, against the prospect that its view on that matter was afterwards held on appeal to have been wrong, went on in Drage to discuss (see at 597, [25]), purportedly for the purpose of par 24(2)(c) of the Act, the question whether it was “reasonable” to expect the applicant to submit to the open heart surgery recommended to him.
The AAT concluded that, in the circumstances, it did “not regard it as ‘reasonable’ to require the applicant to undertake such surgery in order to satisfy the requirement [sic] contained in s 24(2)(c) of the Act”. In reaching that conclusion, the AAT stated,
“Here on the one hand Drs Jelinek and Goble believe that surgical intervention would assist the applicant and on the other hand the applicant is unwilling to undertake such a procedure. The applicant told the tribunal that Dr Medley had indicated to him that there was ‘no way’ that he should have such surgery. The tribunal notes, however, that in a letter from Dr Medley to Dr Giltrap of 10 December 1993 (Ex F), Dr Medley states that consideration may have to be given to the applicant undergoing coronary artery surgery if the applicant’s condition worsens. While coronary artery by-pass surgery is not regarded in 1996 as being as risky as perhaps it was 20 years ago, there is certainly a substantial element of risk involved. While Drs Jelenik, Goble and Medley are aware of the other conditions suffered by the applicant and still recommend surgery, it may be that those other conditions increase the degree of the already substantial risk involved in the undertaking of such surgery. The applicant does not want to undertake such surgery and in the tribunal’s view his concerns, while they may not be determinative in the end, should be accorded consideration.”
I note that although, in its reasons for decision in Drage, the AAT made no reference to Fazlic, its treatment in those reasons of par 24(2)(c) of the SRCA suggests that it considered that provision to amount to an express statutory enactment of the rule referred to and applied in Fazlic. I note also that, in judging the reasonableness of the applicant’s refusal to submit to open heart surgery, the AAT appears to have given weight to his concerns without making any express finding either as to their genuineness or as to the basis on which they were purportedly held.
The second of the two preliminary matters with which I wish to deal before setting out the substance of the reasons which the AAT expressed for its decision regarding Ms Filla’s application to it is the manner in which the parties approached the hearing of that application before the AAT.
It is apparent to me from the transcript of the hearing before the AAT that the sole issue tendered for the AAT’s determination on Ms Filla’s application to it was the reasonableness or otherwise of Ms Filla’s refusal to submit to the recommended rotator cuff surgery. Both parties proceeded on the basis that if the AAT were to conclude that Ms Filla’s refusal was unreasonable, then her application for review by the AAT would fail; if the AAT were instead to conclude that her refusal was not unreasonable, then her application for review by the AAT would succeed. Both parties treated that reasonableness issue as arising by reason of par 24(2)(c) of the SRCA, although each treated that paragraph as having a different purpose. Ms Filla in effect treated par 24(2)(c) of the SRCA as amounting to a Parliamentary re-enactment for the purpose of subs 24(1) of the SRCA of the “piece of judicial legislation” regarding the duty dealt with in Fazlic to mitigate one’s damage. Comcare, on the other hand, while treating the issue of reasonableness as one to be resolved by the same approach as that which had been taken in Fazlic, proceeded on the basis that if Ms Filla’s refusal was unreasonable, that necessarily meant that her impairment was not permanent, while if her refusal was not unreasonable, that necessarily meant that her impairment was permanent.
As to my statement just made that, before the AAT, Comcare treated the issue of reasonableness as one to be resolved by the same approach as that which had been taken in Fazlic, I consider it appropriate to quote from the transcript of the hearing before the AAT in order to make it good. In his final submissions, counsel for Comcare submitted the following:
“I won’t go through all the medical reports again. To some extent they’re not entirely relevant. You’re not really dealing with how reasonable their [that is, the reports’ authors’] opinions are. You’re dealing with whether her [that is, Ms Filla’s] position is reasonable in view of not only that [that is, those opinions], [but] … everything….
…
… [T]o some extent it’s not entirely relevant what they [that is, doctors] say, it’s what her position is in response to all of this….
…
… I’ve got those authorities [presumably, Fazlic and Drage, the only authorities to which reference had earlier been made by name]. I think we are arguing on the right principles, that it comes down to not necessarily what’s the more preferable medical evidence but how she deals with it and whether she deals with it in a reasonable way and we would say that the stand she’s taken cannot be seen as reasonable.”I note that although the AAT had expressly referred to Drage at the outset of the hearing before it and although Comcare had impliedly referred to Drage in its final submissions, particularly contrasting the open heart surgery discussed in that case with the rotator cuff surgery recommended to Ms Filla, Ms Filla did not submit to the AAT, whether in reliance on the approach taken by the AAT in Drage to the meaning of the phrase “rehabilitative treatment” or otherwise, that the surgery which had been recommended to her and to which she was refusing to submit was not “rehabilitative treatment” within the meaning of subs 24(2)(c) of the SRCA. Nor did she make any submission regarding the paragraphs of subs 24(2) of the SRCA other than par 24(2)(c). In particular, she made no submission regarding par 24(2)(d) (“any other relevant matters”, relevant, that is, to the question whether an impairment is permanent).
I turn now to the substance of the reasons which the AAT expressed for its decision on Ms Filla’s application to it.
After setting out the procedural and factual background to the application before it and, as well, summarising the evidence and submissions before it, the AAT then turned to what it described as “the considerations” which it “brought to bear” in making its decision. In doing so, it continued (in a passage the paragraphing of which I have silently altered in certain respects in an attempt to assist understanding),
“First of all the case law.
The main case is the case of Fazlic v Milingimbi Community Incorporated. The High Court, in th[at] case, emphasised that a worker needs to have access to full information if his or her refusal to undergo an operation is to be regarded as unreasonable.
In the present case, the applicant was well informed…. [S]he was certainly well informed about the operation that’s proposed and about the likelihood of success and what it involves.
In … Fazlic, where a major orthopaedic operation had a 70 per cent chance of success, it was suggested by the High Court that it would be unreasonable to refuse an operation of that sort if the worker had full information.
[W]e then move to Drage’s case…. The operation in that case was open heart surgery and it was said … that extreme surgery would be more than rehabilitative treatment so it’s not actually covered by section 24(2)(c) of the … Act.
The operation in this case though is clearly rehabilitative. It is closer to the type of operation given as an example of an operation that would be rehabilitative in the Drage case and that’s an operation to repair a carpal tunnel problem. There may be some difference between that sort of operation and this one but the differences are not great and this isn’t an operation that’s anything like … open heart surgery.
In that case, the Tribunal said that if reasonableness had been relevant because the operation was in fact a rehabilitative measure [sic] it would be reasonable not to have the operation because the risk was substantial and the doctors were split as regards its desirability with at least one doctor firmly advising the applicant against having an operation.”(I interpolate here that it is apparent from the sentence which I have just quoted that the AAT misunderstood the reasons for decision in Drage. In fact, far from the AAT’s having proceeded in Drage on the basis that “one doctor”, obviously a reference to Dr Medley, was “firmly advising the applicant against having an operation”, the AAT had proceeded on the basis that Dr Medley, as well as Drs Jelenik and Goble, had “recommend[ed]” surgery, rejecting the applicant’s evidence to the contrary on that point. Furthermore, in considering those matters tending in favour of the reasonableness of the applicant’s refusal to submit to the recommended open heart surgery, the AAT had given weight, not only to the riskiness of the recommended surgery, but also to the applicant’s concerns about undergoing that surgery.)
“Here, this case is distinguishable from both Fazlic and Drage. …
[T]he Tribunal notes that there is very little against the operation. No doctor specifically warns against having the operation although some, at least two, don’t see it as absolutely essential. The chances of success in this case are stronger than those in Fazlic where the chance of success was only 70 per cent and it was arguably a more serious operation. The High Court said that it would have seen it as unreasonable to refuse the operation in that case if the applicant had been fully informed of what the operation was all about. So in this case, where the chances of success are stronger, where the operation is, if anything, less serious than the operation in Fazlic, the argument that it is unreasonable to refuse to have the operation seems to be stronger.
So in the terms of section 24(2)(c), I should also say the Tribunal takes the view that the terms of section 24(2)(c) where the notion of reasonableness is mentioned, the syntax there does not talk of reasonableness from the perspective of the applicant. It talks about reasonable rehabilitative measures [sic] and that would suggest that there is a fairly substantial element of objective test as regards what’s reasonable.
… [T]here is a considerable set of symptoms [ ]here that could be alleviated by an operation and there is an 85 per cent chance that there will be no harm do[ne] and there could in fact be some positive result.
…
That analysis means that the decision that the Tribunal has reached is that the decision under review is to be affirmed.”As I have already made plain above, I do not find it easy to know how to interpret the AAT’s reasons for its decision, in particular, those given in that passage which I have set out in the preceding paragraph of these reasons, although I do read them as saying at least that the AAT was satisfied that Ms Filla’s refusal to submit to the recommended surgery was unreasonable. The AAT appears to have achieved that satisfaction by purportedly applying the test laid down in what it described as the “main case” of Fazlic, the application of which test it appears to have thought was mandated by par 24(2)(c) of the SRCA.
I turn now to the appeal to this Court from the AAT’s decision.
The amended notice of appeal alleged the existence of three questions of law which were raised by the appeal and contained also three grounds of appeal intended to harmonise with those three questions of law. Those three grounds of appeal were later the subject of written submissions, which written submissions were elaborated on orally at the hearing of the appeal.
The first of those three grounds of appeal related to the AAT’s conclusion that the rotator cuff surgery which had been recommended to Ms Filla, but to which she was refusing to submit, constituted “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA.
Nonetheless though Ms Filla had made no submission before the AAT in opposition to Comcare’s submission that that surgery did constitute “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA, she submitted before me that the AAT had erred in law in concluding that that surgery did constitute such treatment. (I note that Comcare did not submit before me that, given Ms Filla’s conduct at the hearing before the AAT, I should not deal with the ground of appeal presently under discussion.)
However, Ms Filla’s submission before me of legal error by the AAT in the relevant respect was not based on the approach which had been taken to the meaning of the phrase “rehabilitative treatment” by the AAT in Drage and purportedly applied by the AAT in her case, which approach she characterised before me as having been “too broad[ ]”. Instead, her submission focused on the facts that the word “rehabilitative” was used in the phrase “undertaken all reasonable rehabilitative treatment for the impairment” appearing in par 24(2)(c) of the SRCA and that the word “rehabilitation” was used in s 37 of the SRCA. (I have already mentioned that the word “rehabilitative” is a deverbal adjective. The word “rehabilitation” is, of course, a noun, and I mention now that it is used attributively in s 37 of the SRCA, as will be seen below.)
As I have already mentioned above, Ms Filla acknowledged before me (in response to a direct question on the matter from me during submissions) that the meaning which Smithers J, in Dragojlovic, had treated as the natural meaning of the phrase “treatment for … rehabilitation” would, all other things being equal, have been the natural meaning as well of the phrase “rehabilitative treatment” used in par 24(2)(c) of the SRCA. (The latter phrase, as has already been mentioned, is not defined in the SRCA.) Giving that natural meaning to the phrase “rehabilitative treatment”, the rotator cuff surgery which had been recommended to Ms Filla, but to which she was refusing to submit, would have constituted rehabilitative treatment for the purpose of the paragraph.
However, Ms Filla submitted, all other things were not equal for present purposes. The presence of the word “rehabilitative” in the phrase “undertaken all reasonable rehabilitative treatment for the impairment” directed one, she submitted, to subs 37(1) of the SRCA, which provides that a rehabilitation authority (generally speaking, the principal officer of an employing agency) may determine that “an employee who has suffered an injury resulting in … an impairment should undertake a rehabilitation program”. Refusal or failure by the employee, without reasonable excuse, to undertake a rehabilitation program provided for the employee under s 37 of the SRCA leads to the suspension of “the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation … until the employee begins to undertake the program”: see subs 37(7) of the SRCA.
As has already been mentioned, there is in the SRCA a definition of the phrase “rehabilitation program”. That definition appears in subs 4(1) and is to the effect that the phrase “includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training”. (I note the inclusive, rather than exhaustive, nature of that definition.) No reason appears to think that the phrase “rehabilitation program” is being used in s 37 of the SRCA in a sense different from that in which it is defined in subs 4(1) of the SRCA, so that that definition should be used in connection with s 37 of the SRCA.
Ms Filla submitted in substance that the question in terms posed by par 24(2)(c) of the SRCA “whether the employee has undertaken all reasonable rehabilitative treatment for the impairment” was, by reason of the presence in the SRCA of s 37, to be understood as being one whether the employee has undertaken all rehabilitative treatment included in a program provided for the employee under s 37 of the SRCA, which program the employee has no reasonable excuse to refuse or fail to undertake.
It was not suggested before me that, at any relevant time, a rehabilitation program had been provided for Ms Filla under s 37 of the SRCA, which program had purported to include the rotator cuff surgery which had been recommended to her, but which program she was refusing to undertake, at least in so far as it included the recommended surgery. Accordingly, if the “rehabilitative treatment” referred to in par 24(2)(c) of the SRCA is, by reason of the presence in the SRCA of s 37, limited to rehabilitative treatment included in a program provided for the employee under s 37 of the SRCA, which program the employee has no reasonable excuse to refuse or fail to undertake, it follows that the rotator cuff surgery which had been recommended to Ms Filla, but to which she was refusing to submit, could not have been “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA and the AAT erred in concluding that it was.
Indeed, Ms Filla went so far as to submit before me that if a rehabilitation program had been provided for her under s 37 of the SRCA, which program had purported to include rotator cuff surgery, such an inclusion would have been ineffective, because a rehabilitation program cannot lawfully include surgery. I can see no reason to express a view on that submission in the present matter, given the submission’s hypothetical character. (However, I do note that what Smithers J had to say in Dragojlovic about subs 135(2) of the SSA (see at 308) tends against the correctness of the submission.)
As to Ms Filla’s submission that the “rehabilitative treatment” referred to in par 24(2)(c) of the SRCA is, by reason of the presence in the SRCA of s 37, limited to rehabilitative treatment included in a program provided for the employee under s 37 of the SRCA, which program the employee has no reasonable excuse to refuse or fail to undertake, I do not accept it.
If the Parliament had intended that the rehabilitative treatment being referred to in par 24(2)(c) of the SRCA be limited to rehabilitative treatment included in a program provided for the employee under s 37 of the SRCA, which program the employee had no reasonable excuse for refusing or failing to undertake, then nothing would have been easier than for the Parliament to say so, whether by using the very language which I have used above to describe Ms Filla’s submission as to the “true” meaning of par 24(2)(c) of the SRCA or by making express reference in par 24(2)(c) of the SRCA to s 37 of the SRCA (including, presumably, an express use of the word “program”). The omission of any such usage or reference in par 24(2)(c) of the SRCA appears to me to have been quite deliberate and causes me to conclude that the rehabilitative treatment being referred to in par 24(2)(c) of the SRCA was not intended to be limited to rehabilitative treatment included in a program provided for the employee under s 37 of the SRCA, which program the employee has no reasonable excuse for refusing or failing to undertake.
(I should also mention for the sake of completeness that, in the course of her submissions on the ground of appeal presently under discussion, Ms Filla contrasted the use in par 24(2)(c) of the SRCA of the phrase “rehabilitative treatment” with the use elsewhere in the operative provisions of the SRCA of the phrase “medical treatment”. Unlike the phrase “rehabilitative treatment” (which, as I have already mentioned, is defined inclusively), the phrase “medical treatment” is defined (exhaustively) in the SRCA (see subs 4(1)) in a manner which includes “surgical treatment by … a legally qualified medical practitioner”.
Ms Filla acknowledged, given the definition in the SRCA of the phrase “medical treatment”, that if par 24(2)(c) of the SRCA had referred to an employee’s having undertaken all reasonable medical treatment for the impairment, then the rotator cuff surgery which had been recommended to her, but to which she was refusing to submit, would have constituted medical treatment for the purpose of the paragraph. However, the fact that the Parliament had not used in par 24(2)(c) of the SRCA the word “medical”, but had instead used the word “rehabilitative”, strengthened, Ms Filla submitted, her argument linking the treatment referred to in par 24(2)(c) of the SRCA with s 37 thereof.
It is true, as Ms Filla submitted, that the Parliament might, instead of using in par 24(2)(c) of the SRCA the word “rehabilitative”, have used the word “medical”. Such a usage would, at one and the same time, have both destroyed Ms Filla’s argument attempting to link the treatment referred to in par 24(2)(c) of the SRCA with s 37 thereof and made it explicit that surgical treatment was included in the treatment being referred to in par 24(2)(c) of the SRCA. However, I am quite unable to see how the fact that the Parliament did not use the word “medical” strengthens Ms Filla’s argument about the word which the Parliament did use, namely, “rehabilitative”. It appears to me that the fact is necessarily neutral on the point.)
I will therefore proceed herein on the basis that the recommended rotator cuff surgery to which Ms Filla was refusing to submit was “rehabilitative treatment” within the meaning of par 24(2)(c) of the SRCA.
I turn now to the second of the three grounds of appeal relied on by Ms Filla.
The second of those three grounds of appeal related to the AAT’s conclusion that Ms Filla’s refusal to submit to the recommended rotator cuff surgery was unreasonable. Ms Filla submitted in substance that the AAT had erred in law in reaching that conclusion, because the AAT had not in truth reached it by the application of the rule in Fazlic, as it was required, and had purported, to do, but had rather reached it by the application of a test solely of objective reasonableness.
In order to place in context the ground of appeal presently under discussion, I repeat that, on my understanding of the manner in which the parties approached the hearing of Ms Filla’s application before the AAT, both parties invited the AAT to inquire, by the application of the rule in Fazlic, into the question whether Ms Filla’s refusal to submit to the recommended rotator cuff surgery was unreasonable. Both parties proceeded on the basis that such an inquiry was mandated by par 24(2)(c) of the SRCA, although each party attributed a different purpose to such an inquiry. According to Ms Filla, the purpose of the inquiry was to determine whether she had, as purportedly required, mitigated her damage. According to Comcare, the purpose of the inquiry was instead to determine whether Ms Filla’s impairment was permanent.
I should also repeat that, on my understanding of the AAT’s reasons for its decision, the AAT did purport to inquire, by the application of the rule in Fazlic, just as both parties had invited it to do, into the question whether Ms Filla’s refusal to submit to the recommended rotator cuff surgery was unreasonable. Furthermore, in accordance with the view of both parties, the AAT did so because it considered that par 24(2)(c) of the SRCA required it to do so. However, whether the AAT did so for the purpose of deciding on the permanence of the impairment, which was the purpose of the inquiry according to Comcare, or whether it did so for the purpose of deciding whether Ms Filla had mitigated her damage, which was the purpose of the inquiry according to Ms Filla, I am unable to tell from its reasons for decision.
Given the difficulties to which I have just referred associated with the AAT’s reasons for decision, I consider that I should, before dealing further with the present ground of appeal, set out my own views both as to the purpose and effect of par 24(2)(c) of the SRCA and as to the significance for claims for compensation under subs 24(1) of the SRCA of the rule in Fazlic.
It is my view that par 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?
The first of those two questions is, in my view, one for rehabilitation experts whose expertise is appropriate to the particular impairment whose permanence is under consideration; it will be for them to identify such reasonable rehabilitative treatment, if any, as exists for that impairment. If they answer the first of those two questions by identifying some reasonable rehabilitative treatment which exists for the particular impairment, then the answer to the second of those two questions should follow without much difficulty.
The only purpose of requiring those two questions to be answered is that their answers will assist in the determination of whether the particular impairment under consideration is a permanent one. In other words, it is not the purpose of par 24(2)(c) of the SRCA to re-enact the “piece of judicial legislation” regarding mitigation of damage dealt with in Fazlic. That such is not the purpose of par 24(2)(c) of the SRCA is apparent from a number of matters. They include the following: another purpose is expressly ascribed in the chapeau of subs 24(2) of the SRCA to the duty to have regard to the matter set out in par 24(2)(c); par 24(2)(c) makes no reference to the state of mind of the employee (compare New South Wales v Taylor (2001) 178 ALR 32 at 36-37, [15]-[16] (Gleeson CJ and McHugh and Hayne JJ)); and par 24(2)(c), in contradistinction to the manner in which the Fazlic rule operates, does not make the employee’s not undertaking all reasonable rehabilitative treatment for the impairment necessarily fatal to the employee’s entitlement to compensation.
I turn now to the assistance which the answers to the two questions may provide in determining whether a particular impairment is permanent.
If, for instance, reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration and the employee has already undertaken all of it, that is obviously a matter which will tend in favour of the impairment’s being permanent.
If, on the other hand, although reasonable rehabilitative treatment does exist for the particular impairment the permanence of which is under consideration, the employee has not yet undertaken all of it, that is a matter which may, depending on the circumstances, tend either against or in favour of the impairment’s being permanent.
For instance, the employee may: be willing to undertake the treatment; have been unable for some reason to do so yet; but be able to do so in the near future. That is a matter which would tend against the impairment’s being permanent.
On the other hand, the employee may be willing to undertake the treatment, but be unable for some reason (say, because of its rationing) to do so for a substantial, though undetermined, period of time. That is a matter which would tend in favour of the impairment’s being permanent (remembering that an impairment is “permanent” for present purposes if it is likely to continue for a substantial, though undetermined, period of time).
Another possibility is that the employee refuses to undertake the treatment, even though it is currently available. In that case, it appears to me that if the employee’s refusal is likely to continue for a substantial, though undetermined, period of time, then that is a matter which would tend in favour of the impairment’s being permanent, regardless of the reasonableness of the employee’s grounds for the refusal (and, indeed, regardless of whether the employee has any grounds at all for the refusal).
I do not mean, by what I have just said, to suggest that the reasonableness of an employee’s grounds for refusing treatment can have no possible relevance on the permanence question. In determining the likelihood that the employee’s refusal will continue for a substantial, though undetermined, period of time, the reasonableness of the employee’s grounds for refusal may have some minor part to play, in the sense that, if the grounds are unreasonable, then that may make it less probable than it would otherwise have been that the refusal is likely to continue for a substantial, though undetermined, period of time. It may be that the employee could be persuaded to abandon a refusal based on unreasonable grounds more easily than a refusal based on reasonable grounds. However, if, in spite of the unreasonableness of the employee’s grounds of refusal, it is plain that the employee’s refusal is likely to continue for a substantial, though undetermined, period of time, then that is an end of the matter, no matter how unreasonable the employee’s grounds of refusal are.
The question next arises whether, in a case in which the decision-maker is satisfied, after having had regard to the matters to which regard is required by subs 24(2) of the SRCA to be had, including the matter set out in par 24(2)(c), that the employee’s impairment is permanent, the Fazlic rule of mitigation of damage has any part to play. Ms Filla conceded before me that the rule did have a part to play and I consider that that concession was correctly made. It is apparent to me from the approach taken by the High Court of Australia in Fazlic that it considers the rule to be applicable to workers’ compensation entitlements generally, in the absence, no doubt, of sufficiently clear words excluding its application. I find no such words in the SRCA regarding compensation for injury resulting in permanent impairment.
The application of such a rule to the type of workers’ compensation under consideration in the present matter has the effect that an employee who is permanently impaired as a result of injury, but the permanence of whose impairment is a result, in part at least, of the employee’s refusal to submit to treatment, will not be entitled to compensation under subs 24(1) of the SRCA if that refusal to submit to treatment is unreasonable according to that rule.
Having set out my own views both as to the purpose and effect of par 24(2)(c) of the SRCA and as to the significance for claims for compensation under subs 24(1) of the SRCA of the rule in Fazlic, I now return to the AAT’s reasons for its decision.
It is my view that the AAT erred in law in concluding that Ms Filla’s refusal to submit to the recommended rotator cuff surgery was unreasonable. It did so because it did not in truth reach that conclusion by the application of the rule in Fazlic, as it was required, and as it purported, to do.
Furthermore, if it was purportedly applying the rule in Fazlic, not for the purpose of deciding whether Ms Filla was disqualified from receiving compensation under subs 24(1) of the SRCA by reason of a failure to mitigate her damage, nonetheless though her impairment was (or, at least, was assumed to be) permanent, but for the purpose of deciding whether Ms Filla’s impairment was permanent, then it erred in another respect. That is because, as I have already explained, where an employee has refused to submit to treatment, the reasonableness of that refusal is only one aspect, and a minor one at that, of the process of determining the permanence of the employee’s impairment, whereas the AAT, on the assumption that it was purportedly applying the rule in Fazlic for the purpose of deciding whether Ms Filla’s impairment was permanent, treated it as determinative.
In order to explain my reasons for concluding that the AAT did not in truth apply the Fazlic rule, it is convenient to return to the AAT’s expressed understanding of what Fazlic had decided. Relevantly, the AAT said,
“The main case is the case of Fazlic….. The High Court, in th[at] case, emphasised that a worker needs to have access to full information if his or her refusal to undergo an operation is to be regarded as unreasonable.
…
In … Fazlic, where a major orthopaedic operation had a 70 per cent chance of success, it was suggested by the High Court that it would be unreasonable to refuse an operation of that sort if the worker had full information.
…
The chances of success in this case are stronger than those in Fazlic where the chance of success was only 70 per cent and it was arguably a more serious operation. The High Court said that it would have seen it as unreasonable to refuse the operation in that case if the applicant had been fully informed of what the operation was all about..”Those passages from the AAT’s reasons appear to me to have been based mainly on the High Court’s statement in Fazlic which I have already quoted above:
“No doubt it will be but rarely that an employer does not succeed in establishing that a worker’s refusal is unreasonable when the worker has allowed baseless fear to decide his choice, outweighing his knowledge of cogent factors favouring his undergoing an operation.”
However, those passages from the AAT’s reasons which I have quoted in the next preceding paragraph of these reasons betray a misunderstanding both of the statement which I have quoted in the preceding paragraph of these reasons and of the reasons for judgment generally in Fazlic.
First, in Dragojlovic, Smithers J pointed out (see at 304) that the High Court’s statement appears to leave open the possibility that, even if a worker decides, on baseless fear, and with knowledge of cogent factors favouring the undergoing of an operation, not to undergo that operation, the worker’s refusal may nevertheless be held not to be unreasonable.
In Glavonjic v Foster [1979] VR 536 at 539, a common law personal injury case, Gobbo J took an approach to refusal to submit to surgery as a failure to mitigate one’s damage similar to that later taken in Fazlic. His Honour also held that among the matters appropriate to be taken into consideration in determining the reasonableness of a plaintiff’s refusal to submit to surgery was “a mental condition such as an anxiety state where that was itself related to the injuries and was caused or contributed to by the accident in question”. In Karabotsos v Plastex Industries Pty Ltd [1981] VR 675, another common law personal injury case, a Full Court of the Supreme Court of Victoria approved of Gobbo J’s approach in Glavonjic, although without making reference to the specific matter from Gobbo J’s reasons for judgment which I have just mentioned: see at 679 (Young CJ), 683 (Kaye J) and 690 (McGarvie J, agreeing with Kaye J). Very shortly thereafter, although obviously without knowledge of the existence of Karabotsos, a Full Court of the Supreme Court of Queensland, in Lorca v Holts’ Corrosion Control Pty Ltd [1981] Qd R 261, yet another common law personal injury case, likewise approved of Gobbo J’s approach in Glavonjic, although, again, without making reference to the specific matter from Gobbo J’s reasons for judgment which I have mentioned above: see at 270 (Kneipp J) and 261 (Lucas SPJ, agreeing with Kneipp J). (Both Karabotsos and Lorca were decided before Fazlic.)
One can imagine a mental condition such as that to which Gobbo J referred in Glavonjic giving rise to baseless fears, the acting on which would not render unreasonable a refusal to submit to recommended surgery by either a plaintiff seeking damages at common law for personal injury or a worker seeking workers’ compensation. Indeed, it may be that it was that very situation which the High Court had in mind in saying, in effect, in Fazlic that acting on baseless fears will sometimes not be held to be unreasonable, since Glavonjic had been referred to in argument in Fazlic (see at 346). However, on the AAT’s approach to the present matter, a refusal to submit to surgery in the circumstances presently under discussion where the recommended surgery had at least a seventy percent chance of success, as the plaintiff or worker was aware, would necessarily be held to be unreasonable.
Secondly and of more relevance for present purposes, in Fazlic, the High Court emphasised, in another passage from its reasons which I have already quoted above, that the decision-maker’s concern is not only with “the medical advice given to the worker at the time”, but also with “all the circumstances known to … and affecting [the worker]” apart from that medical advice. As the matter was put by the Judicial Committee of the Privy Council (Lord Fraser of Tullybellton, Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Templeman) in a common law personal injury case expressly referring approvingly to Fazlic, Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 589, “Though the advice received will almost always be a major factor for consideration, the true question is whether in all the circumstances, including particularly the medical advice received, the plaintiff acted reasonably in refusing surgery”.
Thus, even if the worker has received medical advice to submit to an operation and even if that advice means that the worker knows of cogent factors favouring his submitting to that operation, still, other circumstances known to and affecting the worker may mean that the worker’s refusal to submit to the operation is neither the result of baseless fear nor properly to be characterised as unreasonable.
An example of a circumstance affecting a worker who has full knowledge of the cogent factors favouring surgery, which circumstance could repel any suggestion of unreasonableness in refusing to submit to that surgery, is the worker’s religious belief. Practising members of two religious denominations of which I am aware, Christian Science and Jehovah’s Witnesses, have religious objections to undergoing certain medical procedures. Those objections have been treated in American common law personal injury cases (the most famous one being Lange v Hoyt 159 A 575 (1932), a decision of the Connecticut Supreme Court of Errors involving Christian Science) as being capable of repelling any suggestion of unreasonableness in refusing to submit to those procedures. (For an interesting discussion of Lange and related American common law personal injury cases, see Calabresi, Ideals, Beliefs, Attitudes, and the Law, Ch 3.)
By way of analogy, in Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488, a Full Court of the Supreme Court of New South Wales (Evatt CJ and Herron and Kinsella JJ) considered it appropriate that there should be taken into account in the assessment of a common law personal injury plaintiff’s damages the fact that she was a practising Roman Catholic, who therefore refused to use contraception, even though its use would have mitigated her damage. Walker-Flynn was referred to with approval in Karabotsos: see at 678 (Young CJ), 682-83 (Kaye J) and 690 (McGarvie J, agreeing with Kaye J). (Note also that Walker-Flynn had considerable influence on (then Professor, now Judge) Calabresi’s discussion referred to in the preceding paragraph of these reasons, as he acknowledged: see at p 49, n 197.)
As well as religious belief, other circumstances affecting a worker who has full knowledge of the cogent factors favouring surgery have also been held capable of repelling any suggestion of unreasonableness in refusing to submit to that surgery. By way of example only, in Glavonjic, Gobbo J appears (see at 539-40) to have taken into consideration the plaintiff’s personal experience of earlier surgery, while, in Lorca, the Full Court of the Supreme Court of Queensland certainly did so: see at 270 (Kneipp J); 261 (Lucas SPJ, agreeing with Kneipp J; and DM Campbell J).
In the present matter, Ms Filla put forward before the AAT a number of circumstances apart from the medical advice which she had received which, she claimed, were known to and affected her and justified her refusal to submit to the recommended surgery. It is unnecessary for present purposes to recite all of those circumstances, but it may be mentioned that one of them involved Ms Filla’s personal experience of earlier surgery, although as a medical student, rather than as a patient.
However, when setting out the considerations which it brought to bear in making its decision, the AAT made no reference to those circumstances apart from the medical advice which she had received which had been relied on before it by Ms Filla to repel an inference of unreasonableness on her part. The AAT’s omission to refer to those circumstances leads me to infer that it did not consider them to be relevant to the task at hand: compare Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 17-18, [69] (McHugh, Gummow and Hayne JJ; Gleeson CJ agreeing (at 3, [1])).
I emphasise that it is not for me to say what attitude I would have taken to those circumstances relied on by Ms Filla before the AAT if I had been standing in the shoes of Comcare; it was for the AAT to consider them and to reach a conclusion as to their effect on the reasonableness of Ms Filla’s refusal to submit to the recommended surgery, despite the character of the medical advice which she had received. That, however, is a task which it did not perform.
In summary, it appears to me that what the AAT did was to turn what the High Court had considered to be a necessary condition of the unreasonableness of a refusal by a worker to submit to treatment, namely, the worker’s possession of full information of the objective reasonableness of submitting to the treatment, into a sufficient condition of unreasonableness (provided that that information was to the effect that the recommended surgery had at least a seventy percent chance of success), thus excluding the possibility that an employee’s fears (or beliefs) would, despite possession of that information, lead to the conclusion that the employee’s refusal was not unreasonable. Even ignoring the AAT’s attempt to blend into a proposition of law the fact that, in Fazlic, the recommended operation had had a seventy percent chance of success, the AAT’s approach was incorrect, for the reasons which I have already given.
Since I have accepted that the AAT erred in law in the respect referred to in Ms Filla’s second ground of appeal, it is unnecessary that I should determine the correctness of her third ground of appeal, which was, in substance, that the AAT had erred in law by failing to have regard to certain relevant matters other than those set out in pars 24(2)(a) to (c) of the SRCA, as it was required by par 24(2)(d) of the SRCA to do. Those matters which, it was said, were relevant and to which, it was said, regard had not been had were those circumstances known to and affecting Ms Filla apart from the medical advice which she had received, which circumstances were said to have justified a conclusion that her refusal to submit to the recommended surgery was not unreasonable. I mention only regarding that ground of appeal that it appears to be based on a view of the purpose of par 24(2)(d) of the SRCA which was the same as Ms Filla’s view of the purpose of par 24(2)(c) of the SRCA, the correctness of which latter view I have already rejected above.
I come finally to the question of the relief to be granted, in light of my upholding of Ms Filla’s second ground of appeal. I have already mentioned that the relief which Ms Filla ultimately sought from me was an order remitting her case to the AAT to be heard and decided again. It was not contended before me by Comcare that, if I upheld any of Ms Filla’s grounds of appeal, I should not make the order ultimately sought by Ms Filla and I will accordingly set aside the AAT’s decision and make the order sought. Further, Comcare must
pay Ms Filla’s costs of the present proceeding.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate:
Dated: 25 July 2001
Counsel for the Applicant: LT Grey Solicitors for the Applicant: Carroll & O’Dea Counsel for the Respondent: N Polin Solicitors for the Respondent: Barker Gosling Date of Hearing: 11 April 2001 Date of Judgment: 25 July 2001
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