Houghton and Comcare
[2002] AATA 927
•15 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 927
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1793
GENERAL ADMINISTRATIVE DIVISION )
Re DAVID HOUGHTON
Applicant
And COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date15 October 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof determines that liability be accepted for hearing loss in the right ear and that the matter be remitted to the Respondent for assessment of the Applicant's compensation entitlements.
[SGD] Dr J D Campbell Member
CATCHWORDS
Workers' Compensation - Military Compensation Scheme - Acoustic nerve neuroma - surgical treatment - loss of hearing in treated ear – whether hearing loss an unintended consequence of the medical treatment
Safety, Rehabilitation and Compensation Act 1988 - sections 4, 6A
Acts Interpretation Act 1901 - section 15 AA
Military Compensation Bill 1993 – Explanatory Memorandum
Theile v Commonwealth of Australia (1990) 22 FCR 342
Oswald v Bailey (1987) 11 NSWLR 715
Re Eaton and Comcare (2002) 64 ALD 182
Vallance v R (1961) 108 CLR 56
Australian Paper Manufacturers Ltd v American International Underwriters (Australia) Pty Ltd [1994] 1 VR 685
REASONS FOR DECISION
15 October 2002 Dr J D Campbell, Member
In this matter, Mr David Houghton ("the Applicant") seeks a review of the decision of the Reconsideration Officer of the Military Compensation and Rehabilitation Service ("the Respondent") dated 17 August 2000. The decision of 17 August 2000 affirmed an earlier decision of an authorised delegate, dated 5 July 2000, that liability was not accepted for the hearing loss in the right ear on the basis that it was not an unintended consequence of an operation undertaken on 8 March 1999.
A hearing was held in Sydney on 8 August 2002 at which the Applicant was represented by Mr P Strain of Counsel. The Respondent was represented by Ms E Ford of Counsel. There was no oral evidence in this matter, with there being no disagreement between the parties on the facts, which were included in material placed before the Tribunal.
The following material was placed into evidence before the Tribunal:
Exhibit Description Date
TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1-T17, pp 1-89
A1 Applicant's Statement of Facts and Contentions 16 October 2001
A2 Report of Dr J Scoppa 7 August 2001
A3 Report of Dr J Scoppa 7 August 2001
A4 Report of Dr J Scoppa 22 October 2001
A5 Report of Dr M Redmond 1 February 1999
R1 Respondent's Statement of Facts and Contentions 6 August 2002
issue
The relevant issue in this matter is whether the Applicant's hearing loss in his right ear is an unintended consequence of the surgical removal of a right acoustic nerve neuroma on 8 March 1999.
legislationThe relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 4 and 6A.
backgroundThe Applicant was born on 20 July 1965. In 1974 the Applicant is recorded as having normal hearing in his right ear and some slight high frequency sensorineural hearing loss in his left ear (T3, p5). The Applicant was rejected in an attempt to join the Army in 1981 on grounds of hearing loss (T3, p8). The Applicant was subsequently considered medically fit and joined the Navy on 25 June 1984, with a hearing standard II. On 19 March 1990 the Applicant was referred to Dr Ng, an ENT specialist who in a report dated 27 March 1990 noted that his audiogram had not changed significantly since 1986, and that his high frequency hearing loss has probably arisen from head injury as a child (T3, p17).
In 1996/97 the Applicant was recorded as stating that he became aware of hearing loss worse for the right ear, together with a history of long standing tinnitus. The Applicant was referred to Dr B Panizza, an ENT specialist on 22 February 1999 with a right intracanalicular acoustic neuroma (T8, pp56-57). This was removed on 8 March 1999 using a right sub-occipital approach by Dr Panizza and Dr M Redmond, a consultant neurosurgeon (T13). Following surgery Dr Redmond records that "he has lost hearing in the right ear which was not unexpected." (T13, p78) while Dr Panizza records the Applicant as having "essentially a dead ear on the right side as a result of having his acoustic neuroma removed." (T8, p56).
In a consultant's report dated 2 February 1999, Dr Redmond, made the following comments (Exhibit A5):
"Small intracanalicular right acoustic neuroma. No family history of neurofibromatosis - fibrous schwannoma removed right arm - 1998.
He has useful hearing right ear. I have suggested surgery with attempted hearing preservation. I have outlined the nature of surgery, including the risks - death, stroke, nerve injury VII, VIII, epilepsy, infection, CSF leak, meningitis and anaesthetic risk. It will not help the tinnitus…"On 7 January 1999 the Applicant lodged a claim for compensation in respect of hearing loss. On the basis of Dr Panizza's report (T8) liability was accepted in respect of high frequency sensorineural hearing loss of the left ear (T9). Following a request for reconsideration by the Applicant on 8 December 1999 (T10), liability was accepted by the Respondent on 5 July 2000 for the Applicant's muscular contraction headaches (T14), with Dr Redmond having reported that the Applicant had no impairment arising out of his headaches (T14). On 14 July 2000 the Applicant requested a further reconsideration claiming that his total hearing loss in his right ear and the additional hearing loss in his left ear were both unintended consequences of medical treatment pursuant to section 6A(1) of the Act (T15). On 24 July 2000 the Respondent offered to pay the Applicant an amount of $2752.53 under sections 24 and 27 of the Act in respect of hearing loss of the left ear (T16). On 17 August 2000 the Respondent reviewed the determination of 5 July 2000 in respect of the Applicant's hearing loss and affirmed that decision not to accept liability for the hearing loss in the Applicant's right ear (T17).
medical evidenceDr Scoppa, a consultant ear, nose and throat surgeon provided three reports in this matter. In the first report dated 7 August 2001, Dr Scoppa details the following (Exhibit A2):
that the Applicant discussed the potential complications of surgery with Dr Panizza, and that he was advised that the main complications were damage to the facial nerve, CSF leak, and damage to the hearing;
that the Applicant was told by Dr Panizza that because the tumour was small there was a choice of two surgical approaches, namely
(a) to reach the tumour by going through the inner ear, which would result in total and permanent hearing loss;
(b) to reach the tumour by going behind the ear so as to maximise the chance of hearing preservation;
that the Applicant was advised by Dr Panizza that either approach would result in total hearing loss, however there was a slim chance of hearing preservation with the post-auricular approach;
that the Applicant opted for the post-auricular approach in order to give himself some chance of hearing preservation.
Dr Scoppa also detailed the following opinion (Exhibit A2):
"The probability of hearing preservation in acoustic neuroma surgery is poor, and most patients who undergo this type of surgery usually lose hearing irrespective of surgical approach used. There are numerous articles in the medical literature on so-called hearing preservation surgery for acoustic neuroma removal. I attach a representative article on acoustic neuroma surgery by Scrivener and Segelov (1). I draw your attention to the following relevant paragraphs on page 753 of their article:
"The prime purpose of surgery in acoustic neuroma is the total removal of the tumour, while preservation of facial nerve function is next in importance. Preservation of hearing, usually possible only in very small tumours, represents the ultimate in achievement, but must be regarded as "cream on the cake" rather than a routine target."
"A small series of six patients was treated by a middle fossa approach, the aim being to preserve hearing in patients with a small tumour. The average tumour size in this group was only 1.2 cm but while there was no mortality or serious morbidity, facial nerve preservation still rested at the 50% mark and hearing preservation was not possible."It is clear therefore that it is the intention of the operating surgeon or surgeons to try and preserve any serviceable hearing that may be present pre-operatively in acoustic neuroma surgery by appropriate selection of the operative approach, but that this intention is rarely able to be achieved. Thus Dr Redmond is correct in stating in his report of 30 June 2000 that Mr Houghton's post-operative hearing loss "was not unexpected", however the intention at surgery was to try and preserve the 81.6% hearing that Mr Houghton had prior to surgery, as evidenced by the approach used and by Mr Houghton's pre-operative discussion with Dr Panizza.
It is further patently obvious that it was intended to preserve hearing at the time of surgery when one notes Dr Redmond's handwritten consultation report of 1/2/99 where he states:"He has useful hearing in the right ear. I have suggested surgery with attempted hearing preservation.""
submissions
applicant
Counsel for the Applicant submitted that the modern approach to statutory interpretation is "purposive" and therefore in this matter one must look at the whole of the statute, the purpose of the statute and the section in question, as opposed to just turning to the words, interpret their literal meaning or reinterpret some meaning already given to the word and stop there. Counsel relies on section 15 AA of the Acts Interpretation Act 1901 where it states "Regard is to be had to purpose or object of the Act."
Counsel further submitted that when ambiguity exists in an interpretation or construction of a phrase or a section, then that which is most favourable to the Applicant should be adopted. For this contention, Counsel relied on Thiele v Commonwealth of Australia (1990) 22 FCR 342 where Hill J states at 346:
"The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred…"
Counsel for the Applicant submitted that section 6A of the Act creates new and fresh rights and entitlements for the worker, and in particular the heading of the section which indicates that the particular section is concerned with "Injury arising out of or in the course of employment - extended operation". It is further contended that any construction of the section must be one that preserves rather than destroys and because the statute has its foundation a beneficial object, this speaks against the courts construing the section narrowly (Oswald v Bailey (1987) 11 NSWLR 715 at 717 per Kirby J.)
Counsel contended that the decision of the Tribunal in Re Eaton and Comcare (2002) 64 ALD 182 is in error for accepting the definition of "intended" as defined by the High Court in Vallance v R (1961) 108 CLR 56 for the word in the latter case was contained within a section of the Tasmanian criminal code. As such, it was contended, that it is of little assistance in the interpretation of the phrase "unintended consequence " as contained within section 6A of the Act. In so stating, Counsel contended that the Tribunal had failed to interpret the word "intentional" in the context of the section in which its opposite meaning appears and in the context of the Act as a whole.
Further, it was contended by Counsel that if Parliament intended to include a wider and more restrictive interpretation of the section, it would have included words to that effect in the section. Further, it is clear from the Explanatory Memorandum to the Military Compensation Bill 1993 that the section applies regardless of whether there has been negligence, which also encompasses issues of foreseeability. In this regard Counsel referred to the case of Australian Paper Manufacturers Ltd v American International Underwriters(Australia) Pty Ltd [1994] 1 VR 685, where the three adjectives "accidental, unexpected and unintentional " had to be satisfied in relation to a happening.
respondentCounsel for the Respondent detailed lengthy extracts from an earlier Tribunal decision, ReEaton and Comcare (supra), in which the definition of the word "intended" and the meaning of the phrase "unintended consequences" are canvassed, and concluded to mean:
"(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."
Counsel submitted that the Applicant lost his hearing in his right ear as a consequence of having his acoustic neuroma removed. The likely consequence of such surgery is loss of hearing in the involved ear. In both propositions (above), the Counsel relies upon the statements of the operating surgeons.
Counsel further contended that while loss of hearing in the affected ear is not the desire of the surgeons, the total removal of the tumour is the prime objective of the surgeons during operation and that deliberate actions are taken during the surgery to remove the tumour in toto, which in turn resulted in damage to the eighth nerve and a permanent loss of hearing. Such consequences are expected (Dr Redmond - the joint operational surgeon).
Finally, Counsel submitted that there is no evidence to support an argument that the Applicant's hearing loss is the result of an "accident" which occurred during surgery, while there is much evidence to suggest that the hearing loss was a probable consequence of a routine deliberate surgical procedure.
consideration and findingsIn this matter as the facts are not in contention between the parties, the Tribunal makes the following finding of facts:
the Applicant suffered from a right acoustic nerve neuroma in 1998;
prior to surgery in March 1999, the Applicant was advised as to the options available in relation to surgical removal of the tumour. The Applicant elected, on the advice of his two operating surgeons, to have the procedure using a right sub-occipital approach, so as to maximise the chance of hearing preservation in the affected ear;
that prior to surgery the Applicant was advised of the risks associated with the surgery and these included death, stroke, nerve injury to seventh and eighth cranial nerves, CSF leak, infection, meningitis, epilepsy and anaesthetic risk;
that prior to surgery the Applicant was advised by Dr Panizza that either approach would result in total hearing loss, with there being a chance of hearing preservation with the sub-occipital or post-auricular approach;
that the Applicant underwent an operation for the removal of the acoustic neuroma on the right side by Drs Panizza and Redmond on 8 March 1999, in which the sub-occipital approach technique was utilised;
that as a consequence of the surgery all hearing in the right ear was lost.
The issue before the Tribunal is whether the hearing loss in the right ear was an unintended consequence of the surgery undertaken. The Tribunal notes section 6A of the Act, which states:
"Section 6A
Injury arising out of or in the course of employment - extended operation(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."
The Tribunal also notes the definition of injury contained within section 4 of the Act
"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; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee…"
The Tribunal further notes the Explanatory Memorandum to the Military Compensation Bill, which resulted in the insertion of section 6A into the Act as a consequence of the Military Compensation Act 1994:
"8. Clause 5, which inserts a new section 6A, covers members of the Defence Force, members of Cadet Corps and persons declared under the new subsection 5(6A) for any injury that arises from medical treatment provided at Commonwealth expense where that injury is an unintended consequence of the treatment. This entitlement applies regardless of whether there has been negligence and regardless of whether the original condition being treated was compensable."
In addressing the purpose of section 6A of the Act, the Tribunal observes the following:
that there is an extended operation of the concept of an injury arising out of or in the course of employment, with the extended operation relating to a defined employee who has received or receives medical treatment paid for by the Commonwealth, and as an unintended consequence of that treatment has suffered or suffers an injury;
the entitlement to compensation applies regardless of whether there has been negligence, and in this regard the Tribunal concludes that coverage and liability is extended to include circumstances in which negligence may have been claimed, and regardless also of whether the original condition being treated was compensable.
The Tribunal observes that, while there may be some concerns raised by the section as to whether it is intended to cover only injury, there is little room for misunderstanding as to what the purpose of the section is, and its placement within the confines of the Act, which is one of beneficial purpose, provided an individual's circumstances in a particular matter permit the necessary sections of the Act to be employed.
In turning to the particular issue in this matter, namely the meaning of the phrase "unintended consequence" in section 6A(2)(b) of the Act, the Tribunal notes of the word "intend" as defined in the Concise Oxford Dictionary means "purpose, design". From this the Tribunal would infer that the word "unintended" in section 6A would imply that one did not have a design or purpose to undertake a particular act, task or activity.
In addressing the circumstances of this matter, it is clear to the Tribunal that the two surgeons did have a purpose when they performed an operation on the Applicant on 8 March 1999, namely to remove in total the acoustic neuroma in his right ear canal. Further, the Tribunal concludes that the surgeons both understood and expressed to the Applicant that the sub-occipital approach to tumour removal was the only operative technique available in which there was a chance, albeit it a slim chance that hearing in the affected ear could be preserved.
While the two surgeons may have entertained a desire or a hope prior to commencing the operation that there was a chance, albeit a small chance, that hearing in the affected ear may have been preserved post operatively, the Tribunal observes that there is much in evidence before the Tribunal in this matter, that would indicate that the preservation of hearing in the Applicant's affected ear was an unlikely outcome. In this regard, the Tribunal refers to the opinions of Drs Redmond, Panizza and Scoppa and the article by Drs Scrivener and Segelov attached to Exhibit A2. In analysis of these opinions and the article referred to, it is evident to the Tribunal that while the two surgeons may have had a hope or desire that hearing will be maintained post operatively, the purpose of their particular surgical intervention was to remove the acoustic neuroma in toto, and that as a result of their surgical intervention a more than likely and indeed a highly probable consequence was a loss of hearing in the affected ear. Put simply, the Tribunal's view is that the surgeons intended to remove the acoustic neuroma, knowing that it was highly probable that the hearing would be lost in the affected ear as an integral part of the surgical endeavour. This was the purpose of their intervention and as such the Tribunal finds that the activity upon which the two surgeons embarked to remove the acoustic neuroma was an intended activity and as part of that activity it was highly probable that the Applicant would lose his hearing in the affected ear, that is an expected and highly probable consequence.
Furthermore, the Tribunal, mindful of the reasoning and findings in Re Eaton and Comcare (supra), observes that much of the reasoning was focused on the meaning of the word "intention" within the context of a criminal code. In this regard the Tribunal notes the words of Dixon CJ in Vallance v R (1961) 108 CLR 56, where at 61, he states:
"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. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret."
Also at p 59 Dixon CJ states:
""…if the harm done be of the kind intended, this is sufficient; even though it is produced in some degree or in some manner or upon some subject that was not intended." Kenny, Outlines of Criminal Law ch.x: "…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 does the act with an actual desire of producing them or only is recklessness as to whether they ensue or not"."
From these two passages it is evident to the Tribunal that the more ordinary use of the word "intentional" "excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret". On the other hand when placed within a criminal statutory context the meaning is conveyed within the two following extracts from the passages above:
"I do not read the word "intentional" as bearing a meaning which requires that the end must be positively desired."
'It is clear that the word "intention"… 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 on only in recklessness as to whether they ensue or not."(extract from Kenny, Outlines of Criminal Law ch.x).
The essential difference between the two meanings is that the more ordinary meaning excludes issues of forseeability and the likelihood of a particular consequence occurring thereby equating intention with desire held at the time of the act. In such circumstances, any consequences of the act which were not desired at the time of the act become unintended consequences, provided the consequences can be shown to have resulted from the act. Thus in this matter, the two surgeons have clearly stated that they expressed a desire to preserve hearing in the Applicant's right ear and undertook the operative procedure in a manner consistent with that desire. In the circumstances of the ordinary meaning given to the word "intention", it matters not that a hearing loss consequence is probable, with in essence strict liability ensuing when an undesired consequence arises.
In addressing the alternate meaning as found within the realms of criminal law, intention encompasses all consequences of the act which the individual foresees as likely to result from the act, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue.
In essence the two different meanings in the Tribunal's analysis gives rise to the following two definitions of "unintended consequence":
(a) where the ordinary meaning of the word is given to "intended", an unintended consequence is a consequence which was not desired by the individual undertaking the act, and the consequences have resulted from the act;
(b) where the meaning of the word "intended" is drawn from the criminal law an "unintended consequence" is a consequence:(i) which is not desired, or aimed for or designed by the provider of the medical treatment; and
(ii) is not a likely consequence of the medical treatment (refer Re Eaton and Comcare (supra)).In considering which meaning should be applied in the circumstances of this matter, the Tribunal notes the following:
the Act is a beneficial legislation;
the section (6A) does introduce new rights and entitlements;
the section (6A) is particular in the use of the word "unintended consequence" of medical treatment. The Tribunal notes that words such as "unexpected", "unlikely" are absent, thereby placing in focus the word "unintended" Further, the Tribunal would have expected the legislation to have included words such as "unexpected" or "unlikely" if there was an intention to restrict the ambit of the new liability created;
the ordinary meaning of the word "unintended consequence" creates a concept of strict liability which is clearly more favourable to the Applicant;
where ambiguity exists, the construction which advances the purpose of such socially remedial legislation (ie. the one which is more favourable to the worker) is the one which should be preferred (Thiele v The Commonwealth (supra));
the Explanatory Memorandum to the Military Compensation Bill, where at paragraph 8 the statement is made that "this entitlement applies regardless of whether there has been negligence." Such a statement seems to infer that issues of foreseeability associated with negligence are issues which do not have to exist for an entitlement to exist. This would appear to reinforce an underlying intention that issues surrounding foreseeability and likelihood do not require consideration in establishing whether an entitlement exists, and as such would appear to negate a construction involving the meaning of intention considered within the context of a criminal issue.
Having considered all the factors in the paragraph above, the Tribunal concludes that the proper construction of the phrase "unintended consequence" should be based on the ordinary meaning of the word "intended". The Tribunal concludes that an "unintended consequence" for the purposes of section 6A of the Act, is a consequence which was not desired by the individual undertaking the act, and the consequence was also one which resulted from the act.
In this matter, the Tribunal noting that the two surgeons undertook a particular procedure with a desire to protect the hearing in the Applicant's right ear, concludes that the loss of hearing in the right ear was not a desired consequence held by the two surgeons, albeit a probable consequence and that the loss of hearing resulted from the operative intervention by the two surgeons. In summary, the Tribunal finds that the loss of hearing in the Applicant's right ear was an injury pursuant to section 6A of the Act, with the loss of hearing being an unintended consequence of the surgical removal of an acoustic neuroma in the right ear canal on 8 March 1999.
determinationThe Tribunal sets aside the decision under review and in substitution thereof determines that liability be accepted for hearing loss in the right ear and that the matter be remitted to the Respondent for assessment of the Applicant's compensation entitlements.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: H. Sim .....................................................................................
AssociateDate of Hearing 8 August 2002
Date of Decision 15 October 2002
Solicitor for the Applicant Neville Wyatt Lawyers
Counsel for the Applicant Mr P Strain
Solicitor for the Respondent Australian Government Solicitor
Counsel for the Respondent Ms E Ford
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