Penny and Military Rehabilitation and Compensation Commission
[2004] AATA 1004
•24 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1004
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1532
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD PENNY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date24 September 2004
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury - compound fracture right tibia - medical treatment paid for by the Commonwealth - osteomyelitis - limb reduction and angulation - meaning of "injury" - meaning of "unintended consequence" - notice of injury by claim for compensation - prejudice not caused by failure to give notice of the injury - retrospective deeming effect of legislation - reasonable cause - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss.4, 6A, 14, 53, 62, 72, 123A, 124,
Commonwealth Employees’ Compensation Act 1930 s.16
Compensation (Commonwealth Government Employees) Act 1971 s.53
Freedom of Information Act 1982
Comcare v Houghton [2003] FCA 332 (14 April 2003)
Re Elliott and Comcare (2001) 64 ALD 423
Behan v Australian Telecommunications Corporation (1990) 26 FCR 337
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498 (22 May 2003)
Comcare v Luck (1999) 29 AAR 403
Banks v Comcare Australia (unreported, Federal Court of Australia, Keifel J, 26 May 1996)
Repatriation Commission v Brown (1990) 12 AAR 253 at 257
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Re Eaton and Comcare (2002) 67 ALD 182
REASONS FOR DECISION
September 2004 Mr S. Webb, Member 1. By this application Mr Penny is seeking relief from a reviewable decision by the Military Rehabilitation and Compensation Service (“the Commission”) to deny his claim for compensation dated 20 October 2002 (T6). Mr Penny’s claim was in relation to an injury or injuries he allegedly suffered as an unintended consequence of medical treatment paid for by the Commonwealth.
2. The matter came on for hearing in Canberra on 10 September 2004. Mr Penny represented himself and gave oral evidence. The Commission was represented by Ms R. Henderson, counsel. Dr J. Talbot gave oral evidence.
factual context
3. Mr Penny (date of birth: 25 August 1921) enlisted in the Australian Infantry Force in 1942. He was discharged as medically unfit for service on 4 October 1954 (T4, folio 28).
4. On 21 May 1951 Mr Penny sustained a compound fracture of his right tibia and fibula, and a fractured lumbar spine, as a result of a motor vehicle accident while on leave (T4 folio 15). Thereafter he underwent various medical, surgical and therapeutic treatments that were paid for by the Commonwealth during the period of his remaining service.
5. Mr Penny contracted osteomyelitis which caused a sequestrum that required surgical sequestration a number of years after his discharge from the Defence Force.
6. Union of Mr Penny’s right tibia was difficult and a malunion occurred as a result of which there was reduction and angulation of his right tibia.
7. In or about 1960 Mr Penny fell down some stairs and injured the neck of his right femur.
8. Mr Penny gave evidence about his employment history, to the best of his memory. It is not necessary to set that evidence out here.
issues
9. It is not disputed that Mr Penny’s motor vehicle accident in May 1951 occurred while he was on normal stand-down weekend leave and did not, therefore, arise in the course of his employment at that time. Compensation in relation to that event and the frank injuries Mr Penny sustained thereby is not contested in these proceedings.
10. What is in issue here concerns Mr Penny’s claim that the medical treatment he received that was paid for by the Commonwealth caused him to suffer an injury to his right leg as an unintended consequence.
11. A preliminary issue concerning whether Mr Penny gave notice of the injury within a reasonable time was raised by the Commission.
legal principles
12. Mr Penny’s application rises for determination under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Subject to Part X the Act applies to an injury suffered before the commencing day (1 December 1988) (s.124(1)). An employee is entitled to compensation under the Act if compensation was or would have been payable in relation to the injury under the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) or the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) (s.124(1A)), but is not entitled to compensation under the Act if compensation was not payable under the 1930 Act or the 1971 (s.124(2)). An “injury suffered before the commencing day” means an injury as defined in the 1930 Act or the 1971 Act that was in force when the injury occurred (s.123A).
13. Section 6A deems that an injury suffered by, inter alia, a member of the Defence Force which was the unintended consequence of medical treatment paid for by the Commonwealth, at any time, is an injury that arose out of or in the course of the person’s employment, whether or not the original condition that was being treated was compensable under the Act.
14. Lindgren J considered the construction of s.6A in Comcare v Houghton [2003] FCA 332 (14 April 2003) and said (paragraph 32):
“…The scheme expressed in the Act can be illustrated as follows:
1. medical treatment paid for by the Commonwealth (paragraph 6A(2)(a))
2. with the unintended consequential suffering of an injury (paragraph 6A(2)(b))
3. resulting in, relevantly, impairment (subs.14(1))”
15. “Medical treatment” and “injury” are defined at s.4(1) of the Act. However, the meaning of “injury” as it is used in s.6A(2) is to be distinguished from “injury” as it is defined in the Act (Re Elliott and Comcare (2001) 64 ALD 423 at 441). Lindren J clarified that distinction in Comcare v Houghton (supra) at paragraphs 20 and 21:
“20 In my opinion, the word "injury" in both places where it appears in subs 6A(2) does not bear its subs 4(1) meaning (cf Re Elliott and Comcare (2001) 64 ALD 423 at 441). Essential to all aspects of that definition is a causal or temporal connection with employment. But the purpose of s 6A is to create an entitlement to compensation which does not depend on the medical treatment's being of an "injury" in that sense (contrast subs 4(3)…). Provided only the medical treatment is paid for by the Commonwealth, subs 6A(2) deems the unintended consequential injury to which it refers, to have arisen out of or in the course of the person's employment, thereby attracting the operation of subs 14(1).
21 Mr Houghton, an employee to whom s 6A applied, received medical treatment in the form of the surgical removal of his acoustic neuroma, which was paid for by the Commonwealth. His claim must be, in terms of par 6A(2)(b) of the Act, that as an “unintended consequence” of that medical treatment he “suffered” an “injury”, according to the ordinary meaning of the latter term.”
16. In effect, s.6A deems that an injury, in the ordinary sense, arose out of or in the course of a relevant employee’s employment if it was suffered as an unintended consequence of medical treatment paid for by the Commonwealth, whether or not the condition requiring the treatment was compensable under the Act. In such a case, the deemed employment related injury is to be treated as an “injury” under the Act, as defined, for the purpose of determining whether compensation is payable. For example, what is required in order for the Commonwealth to be liable to pay compensation pursuant to s.14 is the identification of an impairment or an incapacity for work that is the result of an injury that has been suffered by an employee, whether that injury is an “injury” by definition or by operation of s.6A of the Act.
17. For the Act to apply in relation to an injury, notice of the injury must be given. In this case the claimed injury is an injury that was allegedly suffered as a consequence of medical treatment that was paid for by the Commonwealth in 1951 or 1952. Such an injury (if it is an injury at all) may by retrospective operation of s.6A be deemed to have arisen out of or in the course of the person’s employment whether or not the person has remained an employee under s.6A(1). In those circumstances when is the person required to give notice of the injury?
18. Section 6A was introduced into the Act in 1994. The injuries that are the subject of claim in these proceedings allegedly occurred in or about 1951, 1952, 1960 and 1982 as a consequence of medical treatment for an injury in 1951 that did not arise out of or in the course of Mr Penny’s Defence Force employment, but that was paid for by the Commonwealth. Those claimed injuries would not be within the terms of the current Act or the 1930 Act or the 1971 Act that were in force at the relevant times when the alleged injuries occurred but for the operation of s.6A of the current Act. Nonetheless, by operation of s.124 the employee is not entitled to compensation under the Act if compensation was not payable under the 1930 or 1971 Act that was in force when the alleged injury is claimed to have occurred (Behan v Australian Telecommunications Corporation (1990) 26 FCR 337 at 342). It is necessary, therefore, to consider the notice requirements under those Acts. Section.16 of that 1930 Act relevantly provides:
“16(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a)within six months from the occurrence of the accident: or
…
Provided always that –
(i)…
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.”
19. Section 53 of the 1971 Act relevantly provides:
“53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, on the Commonwealth-
(a) as soon as practicable after the occurrence of the injury;
(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
…
(4) Where-
(a) a notice purporting to be a notice referred to in a preceding subsection of this section has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that subsection; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the notice shall be deemed to have been served in accordance with that subsection.”
20. Those sections must be read in relation to other relevant sections of the 1930 Act and the 1971 Act. In Pacific Manning Company Pty Ltd v Barton [2003] FCA 498 (22 May 2003) von Doussa J considered a similar notice provision under the Seafarers Rehabilitation and Compensation Act 1992 at paragraph 37:
“37 Subsection 62(1)(a) must be read with other definitional sections in the Act. For example, ‘injury’ is defined in s 3. The obligation to give notice of injury is not an obligation to give notice as soon as practicable after the happening of an injury which meets that definition. On the contrary, the obligation to give notice only commences to run when the employee becomes aware of the injury. In context, the ‘injury’ referred to in s 62(1)(a) is the injury referred to in the opening words of s 62(1), namely ‘an injury suffered by an employee’. Section 6 provides that a reference in the Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under the Act. Relevantly, compensation is not payable simply for a physiological or mental condition that meets the requirements of the definition of ’injury’ in s 3. There must also be incapacity for work or impairment before compensation is payable: s 26. In my opinion there is nothing in or about s 62 that indicates an intention that s 6 is not to the reference in s 62 to an injury suffered by an employee. On the contrary, the Act is remedial in nature and should be given a beneficial construction: see Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 and Esam v ASP Ship Management (1998) 87 FCR 82 at 85. If s 62(1) is read with s 6, a construction is achieved where the employee is not required to give notice of minor cuts, aches and pains which the employee at the time thinks are unlikely to cause any incapacity for work or impairment. The notice requirement then takes on a practical, realistic operation, namely that employees are required to give notice where and when they are aware that they have suffered an injury that causes incapacity for work or impairment and therefore attracts the benefits of the Act.”
Applying his Honour’s reasoning in the present case, the injury to which the relevant sections (s.16, 1930 Act; s.53, 1971 Act; s.53, current Act) refer is an injury to which each Act applies in its terms. In this case, the 1930 Act or the 1971 Act did not apply to the claimed injuries, which it is agreed did not arise from or in the course of Mr Penny’s employment, before the coming into effect in 1994 of s.6A of the current Act.
21. Plainly the retrospective effect of s.6A may cause difficulties for a claimant to comply with the notice of injury provisions under the 1930 and 1971 Acts. While the circumstances may constitute special reasons for failure to comply with the time requirements of s.53 of the 1971 Act and may constitute special reasons for failure to bring forward a claim under the 1930 Act within the requisite time, for a person who is no longer in the employment of the Commonwealth it may not be possible to comply with the notice requirements of s.16 of the 1930 Act. However, it is not necessary for me to resolve that issue in this case. In this case the motor vehicle accident that occurred on 21 May 1951 and related injuries, including medical complications, were reported upon in contemporaneous Commonwealth documents that were compliant with the notice requirements of the 1930 Act which was then in force, even though no claim for compensation could have been successfully made under that Act at that time. At that time Mr Penny was in the employment of the Defence Force and the treatment was arranged and paid for by the Commonwealth.
22. Under the 1971 Act failure to give notice within the requisite time does not disapply that Act from the claimed injury if notice was given and there was reasonable cause for the failure in relation to time. In this case no notice of any injury, other than those injuries that allegedly occurred as a result of medical treatment in 1951 and 1952, was given until Mr Penny made a claim on 29 October 2002. It is accepted that a claim form for compensation may satisfy the notice of injury requirements under the Act (see Comcare v Luck (1999) 29 AAR 403 at 417). The meaning of “reasonable cause” was considered by Keifel J in Banks v Comcare Australia (unreported, Federal Court of Australia, Keifel J, 26 May 1996) at paragraph 14:
“The expression "reasonable cause" has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne (1963) VR 34, 38; Quinlivan v Portland Harbour Trust (1963) VR 25, 28.”
In this case, I am satisfied that the retrospective deeming effect of s.6A is a reasonable cause for failure to comply with the time requirements in relation to the giving of notice of an injury under the 1971 Act and the making of a claim under the 1930 Act.
summary findings
23. Mr Penny was a member of the Defence Force.
24. His claim is not extinguished by any failure on his part to comply with the notice requirements under the relevant Acts.
25. Mr Penny received medical treatment that was paid for by the Commonwealth in relation to a compound fracture of his right tibia and fibula in a motor vehicle accident on 21 May 1951.
26. The introduction of an infectious agent into Mr Penny’s right tibia tissue during or as a result of surgery was an injury, but it was not suffered as an unintended consequence of the medical treatment.
27. The inappropriate movement of Mr Penny’s fractured right tibia and the reduction and angulation of his right lower limb that resulted was not an injury that was a consequence of the medical treatment.
decision
28. The decision under review is affirmed.
reasons for the decision
29. Making this decision I have carefully considered all of the evidence before me, the submissions of the parties, the relevant caselaw and legislation.
notice of injury
30. Mr Penny’s claim is not defeated by any failure on his part to give notice of his claimed injury under the Act.
31. Mr Penny gave notice of injury under the Act on 29 October 2002, in the form of a claim for compensation and related documents.
32. As the Australian Defence Force records reveal, notice of Mr Penny’s motor vehicle accident was given in 1951 and was the subject of a report by the Eastern Command Personnel Depot (T4 folios 15-18). Subsequent medical progress and complications in the treatment of that injury were the subject of a report by the Australian Defence Forces Final Medical Board dated 8 December 1954 (T4 folios 21-24). I accept that notice of the original accident and subsequent complications in 1952 and 1953 was given, thereby triggering, in Mr Penny’s circumstances at that time, payment for the treatment of the injury and the complications by the Commonwealth until, at least, 1954. Such notice is compliant with s.16 of the 1930 Act, even though no claim for compensation was lodged at that time.
33. There is no evidence before me to indicate that Mr Penny attempted to bring a claim in relation to any alleged injury that was the result of the medical treatment paid for by the Commonwealth at any time or in any jurisdiction prior to his claim on 29 October 2002.
34. There is significant doubt in my mind whether Mr Penny, who represented himself, understands the legislative provisions under which his claim is to be determined. That would not be unusual in a person who is not legally assisted in pursuing a claim under the relevant legislation. It appears to me that Mr Penny has harboured the mistaken belief that he could make a claim at any time in relation to the injuries he claims to have suffered as a consequence of the medical treatment he received from 1951 to 1953 if he could but obtain medical opinion to support his case. Mr Penny stated that the reason he did not attempt to bring forward a claim was that he was attempting to obtain a favourable medical opinion in relation to his complaints about the treatment he received. I am satisfied that Mr Penny harboured the mistaken belief that he was entitled to make a claim in relation to the alleged injuries under the Act or the 1971 Act or the 1930 Act if he had sufficient evidence to support his claim.
35. Mr Penny claimed to have obtained copies of his medical records under the Freedom of Information Act 1982 (“FOI Act”) in or about 2000 which he then passed to his niece to type in large font (T7). I pause to note that Mr Penny has macular degeneration in both eyes. His evidence was that he was informed about the possibility of obtaining access to his medical records under the FOI Act by an officer of the Department of Veterans’ Affairs, as his previous attempts to obtain those records had not been successful
36. I note that s.6A was introduced to the Act in May 1994. Plainly, Mr Penny could not have brought a claim under that section prior to its introduction into the legislative scheme. It is unclear when, thereafter, Mr Penny became aware that he may have suffered an injury within the terms of that section under the Act. Mr Penny could not remember what had caused him to ring the Department of Veterans’ Affairs on 17 October 2002 in order to obtain a compensation claim form (T5). Plainly, such awareness must have occurred, if it occurred at all, in the period from 1994 to October 2002.
37. The prejudice to the Commonwealth that is claimed by the Commission in relation to the difficulty obtaining access to treating doctors and contemporaneous records is not a result of Mr Penny’s failure to comply with the notice obligations of s.53. Substantially those difficulties are the result of the retrospective effect of the amending legislation which commenced in 1994 and opened, in Mr Penny’s case, the possibility of a claim in relation to events that occurred 43 years before the relevant section was introduced to the Act.
38. While there may be some minor prejudice to the Commonwealth arising from a delay of eight years in Mr Penny bringing forward his claim after 1994, there is no evidence before me to indicate that any such prejudice is the result of Mr Penny’s failure to give notice of his claimed injury. The claimed prejudice concerns the Commission’s difficulty obtaining access to treating doctors and contemporaneous records. The fact is the Commonwealth was on notice of complications arising from Mr Penny’s medical treatment in 1951 and 1952, as the contemporaneous records before me plainly reveal. However, those complications were not compensable at the time as they arose from an injury that was not within the terms of the 1930 Act. It is perhaps for that reason that no claim was lodged and no subsequent treatment was paid for by the Commonwealth following the cessation of Mr Penny’s employment by the Commonwealth in 1954.
medical treatment
39. Mr Penny’s claim rises for consideration under s.6A of the Act. Following Comcare v Houghton (supra) I make the following findings of fact.
40. Mr Penny sustained a compound fracture of his right tibia and fibula on 21 May 1951, although the size of the surface wound is not known.
41. The medical treatment he received on that day and thereafter in relation to the fracture that was paid for by the Commonwealth included:
(a)hospitalisation, dressing the wound and administration of penicillin on 21 May 1951;
(b)surgical insertion of a plate affixed to his right tibia on 31 May 1951;
(c)applying and bi-valving plaster casts on his right leg;
(d)fitting walking iron plaster casts on 3 November 1951, 5 February 1952, 1 August 1952, and 23 October 1952;
(e)a sliding bone graft operation on 21 February 1952;
(f)suturing the separated wound over Mr Penny’s right tibia on 12 May 1952;
(g)physiotherapy commencing on 28 November 1952;
(h)refreshing epithelialised wound edges proximate to the right tibia fracture on 29 May 1953;
(i)surgical removal of three sinuses over the medial margin of the right tibia on 11 June 1953.
42. In order to repair fractured tibia and fibula it is necessary to properly position the fractured bones and to hold the bones in that position for a period of time in order to effect firm union. Dr Talbot gave evidence that the use of a plate for that purpose (10 days after the injury in Mr Penny’s case) was “not universal” in relation to a compound fracture in the 1950s. However, this procedure was intended to firmly hold the fractured bones in place in order to avoid reduction and instability. Plaster casts were also used for similar purpose. In Mr Penny’s case he was initially fitted with a long leg plaster and plate. On 27 July 1951 the medical notes indicate a “satisfactory position of Tibia but as yet little union” (T7 folio 43). Subsequently on 30 October 1951 the medical notes record “X-rays show there is very little evidence of union” (T7 folio 45).
43. The medical notes reveal that Mr Penny’s right tibia fracture was “very indolent”. He underwent a sliding bone graft on 21 February 1952 but the medical notes record “skin closure difficult” (T7 folio 46). On 3 March 1952 the medical notes record “Normal healing except for separated area in middle about 2 inches long” (T7 folio 47). On 10 April 1952 the medical notes record “X-Ray show tibia position is unaltered and union still defected” (T7 folio 47). On 12 May 1952 Mr Penny underwent “[o]peration – suture of separated wound”. X-rays on 21 May 1952 suggest some union had occurred and the medical note dated 11 July 1952 records “X-Ray of Tibia shows union” (T7 folio 47).
44. On 1 August 1952 Mr Penny was fitted with a long leg plaster and walking iron and was found to have a “small ulcer on the front of the leg” on 26 August 1952. On the medical notes, union of Mr Penny’s tibia was slow (see medical notes dated 26 September 1952, 23 October 1952 and 26 November 1952 at T7 folio 49). Nonetheless, on 30 January 1953 Mr Penny was considered to be fit for light duties and was discharged (T7 folio 51). He was reportedly fit for full duties on 5 May 1953 (T7 folio 50).
45. However, on 25 May 1953 he was admitted for treatment of “Osteomyelitis Right Tibia”. The medical notes indicate on 29 May 1953 “[w]ound healed except for 3 small sinuses over medial margin of fibula and these still persist. Still has some scabs over sinuses and is referred back with P.D. of Osteomyelitis. O/E Three ulcers down to tibia, epithelialised edges.” On 11 June 1953 Mr Penny underwent surgical excision of the sinuses on his right leg and was declared “(f)it for discharge” from hospital on 24 July 1953 (T7 folio 53).
46. The Australian Defence Forces Final Medical Board reported on 8 December 1954 (T4 folios 22 and 23):
“Walks with a limp. Bandage on R leg.
…
(b) Fracture of tibia and fibula treated at first in POP and failed to unite. Plated and later bone grafted. Wound did not heal and had several operations since. There is still a discharging sinus.
…
(2) Rt lower extremity- thigh wasted 1”, shortening of Rt leg 1”, good movement in hip and knee joints… Thickening of bones Rt leg with open scar and 2 small sinuses”
47. Dr Talbot reported that Mr Penny walks with a severe limp. His right leg is 2.5 centimetres shorter than his left leg. He has a 15 degree varus bowing at the right tibia fracture site and a 10 degree varus of the right knee (T23 folio 93).
did mr penny suffer an injury as a consequence of the medical treatment?
48. Dr Talbot’s evidence was that the angulation and shortening of Mr Penny’s right leg was “caused by loss of position and reduction of the fracture because the medical treatment failed to hold it out to length because of inadequate internal or external splinting”. His evidence, which I accept, was that the angulation and loss of length was the result of the sliding bone graft procedure, which was a procedure that was “fairly frequently undertaken” but which had a “fairly low” success rate and is not undertaken any more.
49. I am satisfied that the loss of position and reduction of the fracture, that is the movement of broken bones in absence of adequate splinting, does not constitute an injury that was a consequence of the medical treatment. I so find. An injury that is the consequence of medical treatment must be conceptually distinct from that treatment (Comcare v Houghton (supra) at paragraph 36). In this case it was not so distinct. The medical treatment involved the positioning of Mr Penny’s fractured right tibia in and after a sliding bone graft operation. The movement of the fractured bone in a manner that was not desired or aimed for by the surgeon was, nonetheless, within the scope of the surgical procedure, the essential object of which was to effect a firm union of what was described to be a very indolent fracture. The extent to which the movement of the fractured bone could have been avoided is unknown. I note, however, Dr Talbot’s evidence that the sliding bone graft procedure had a fairly low success rate, from which it can be inferred that there was a fairly high likelihood that the grafting procedure would not be productive of a perfect union in the fractured bone. Movement in the fracture during or as a result of a sliding bone graft procedure was reasonably likely. That being so I am satisfied that the movement of Mr Penny’s fractured tibia did not constitute an injury that was a consequence of the medical treatment he received, and so find.
50. One of the difficulties of treating a compound fracture in 1951 was in relation to infection. The evidence is that Mr Penny was treated with 50,000 units of penicillin six hourly following his admission to hospital after the accident.
51. Nonetheless, in May 1952 Mr Penny suffered from osteomyelitis in his right tibia. Dr Talbot’s evidence was that osteomyelitis was then and is now a known complication of compound fractures and a risk associated with the use of penetrating devices (in this case screws) to affix surgical plates to bone. His evidence, which I accept was that there was a “high likelihood” that the screws used to surgically affix the plate to Mr Penny’s tibia on 31 May 1951 were a vector for the introduction of an infectious agent into the bone. Dr Talbot was of the opinion that the breaking down of Mr Penny’s tibia wound after the sliding bone graft operation, exposing bone and increasing the risk of infection, was “not a likely occurrence” and would “not have been expected to occur”. His evidence, which I accept, was that the existence of “a small ulcer” at the wound site on 26 May 1952 indicates the existence of osteomyelitis at that time.
52. Dr Talbot gave evidence, which I accept, that osteomyelitis is a chronic destructive process by which bone is rendered avascular and sequestra may be caused. Osteomyelitis may remain dormant for a number of years, especially in sequestra. Dr Talbot’s evidence was that in Mr Penny’s case symptoms of osteomyelitis were not immediately evident after surgical insertion of a plate, they were in evidence by February 1952 and remained symptomatic until surgical excision of sinuses and sequestra in or about 1960. On Mr Penny’s evidence, which was not challenged and was consistent with the history he gave Dr Talbot (T23 folio 91), Dr Ellis surgically removed “dead bone” from the wound over his right tibia in or about 1960, and the wound healed thereafter. I note that the surgery performed by Dr Ellis was not paid for by the Commonwealth.
53. Was the osteomyelitis in Mr Penny’s right tibia an “injury”?
54. In the Commission’s submission osteomyelitis is a disease and is not therefore an injury for the purposes of s.6A(2). As will appear, I do not agree.
55. Osteomyelitis is a condition involving “inflammation of the bone as a result of infection” (Black’s Medical Dictionary, 40th edition, 2002). It is caused by introduction of an infectious agent into the bone. The vector for introduction is through the blood. Dr Talbot’s evidence was that the bacteria exist on the skin and may enter the blood through a surface wound, such as a compound fracture, and may enter the bone by an open fracture or when a surgical plate is affixed.
56. In the present case Dr Talbot was of the opinion, which I have accepted, that it was highly likely that the infectious agent was introduced into Mr Penny’s tibia by the insertion of the surgical plate on 31 May 1951, even though no overt ulceration was apparent until May 1952.
57. I pause to note that the infectious agent that was the cause of osteomyelitis in Mr Penny’s right tibia may not have been introduced into that bone by the vector of surgical screws alone and may well have entered at the open fracture site. It may also have been a consequence of open fracture infection at the accident site or in the hospital immediately thereafter, but that is immaterial if the requisite causal connection to the treatment is established by the evidence. Simply put, on the evidence before me the osteomyelitis was, on the balance of probabilities, a result of the medical treatment, whether or not it was also a result of infection of the open fracture. Issues concerning multifactorial causation of a claimed injury were not agitated in these proceedings. It is not necessary here for me to consider those matters in greater depth.
58. Nonetheless, the physical insertion or introduction of an infectious agent into tissue may be productive of injury. One must look to the physiological state and any disturbance therein to determine whether injury has occurred. The causing of inflammation, loss of blood supply to tissue and, ultimately, death of tissue is consistent with the suffering of harm and the wide meaning of injury discussed in Comcare v Houghton (supra) at paragraphs 33 to 35 and in Repatriatrion Commission v Brown (1990) 12 AAR 253 at 257 to 259. To be clear, the infectious agent itself is not an injury. Injury occurs when the effect of the infectious agent causes physiological harm. In this case, the injury occurred when the infectious agent introduced by surgery caused physiological harm. Physiological harm occurs when natural or normal processes in the affected tissues are disturbed and a sudden and ascertainable or dramatic physiological change is caused (see Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300 and 308). Plainly, that is what occurred in the tissues in Mr Penny’s right tibia and surrounding areas at least from May 1952, when the normal physiology of those tissues was dramatically changed by processes of inflammation, avascularisation and sequestration. Those manifestations of osteomyelitis constitute an injury that Mr Penny suffered as a consequence of the medical treatment he received. I so find.
59. I am satisfied that the physical insertion or introduction of an infectious agent into Mr Penny’s bone tissue was a harmful physiological change that constitutes an injury in the ordinary sense.
60. There is evidence that Mr Penny was treated by Dr Ellis in 1961 following a fall in which he damaged the neck of his right femur and that Dr Ellis noted the history of chronic osteomyelitis in Mr penny’s lower right leg (T4 folio 25). I note that that evidence does not record any damage to Mr Penny’s right tibia or fibula.
61. Dr Talbot reported that Mr Penny’s “right knee also became progressively painful from 1982 onwards as a result of osteoarthritis as a complication of his mal-aligned, shortened right tibia” (T23 folio 91). That evidence was not challenged and I accept it. The question whether Mr Penny’s right knee osteoarthritis constitutes an injury that he suffered as an unintended consequence of the medical treatment was not agitated and no evidence was adduced in that regard before me.
62. Turning to consider Mr Penny’s submissions, I note that he is strongly of the opinion that his right leg problems are the product of experimentation by a “learner doctor”, especially in relation to the fitting of a walking iron. There is no evidence before me to support that claim. He claimed that the walking iron rubbed on his leg causing the bone to die. That may be so but there is little evidence to support it. The evidence of Dr Talbot was that osteomyelitis caused the sequestration of bone in Mr Penny’s right tibia and that the angulation and shortening of Mr Penny’s right tibia was the result of the sliding bone graft operation and subsequent inadequate internal or external splinting, and both were the consequence of surgery. I accept Dr Talbot’s evidence and so find.
were the injuries mr penny suffered an unintended consequence of the medical treatment?
63. In order to properly answer this question it is necessary to consider the meaning of the word “unintended” in the context in which it appears in s.6A(2), Lindgren J said in Comcare v Houghton (supra) at paragraph 41:
“…in my opinion subs 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce.”
64. A differently constituted Tribunal decided in Re Eaton and Comcare (2002) 67 ALD 182 at paragraph 58:
“…if a consequence (or result) is to come within the expression “unintended consequences” pursuant to section 6A of the Act that consequence (or result) must be one that both:
(a) is not desired or aimed for or designed by the provider of the medical treatment; and
(b) is not a likely consequence of the medical treatment.”
65. These positions are not inconsistent to the extent that the “likely consequence” to which the Tribunal referred is one that the person providing the treatment foresees or knows must be or very probably will be a consequence of the treatment in question. That degree of likelihood, in the circumstances of a particular case, must properly reflect the state of medical knowledge at the time of the treatment was provided.
66. I have found already in Mr Penny’s case that the inappropriate movement of his fractured tibia during or after the sliding bone graft operation was not an injury that was a consequence of that treatment. Even if I was wrong on that point and the movement of the fractured bone or the resulting reduction and angulation of Mr Penny’s right tibia was an injury he suffered as a consequence of the medical treatment, I am not persuaded that such an injury, if injury it be, was an “unintended consequence” of the medical treatment.
67. I accept that such an outcome was not aimed for or desired, as was put forcefully by Dr Talbot. The evidence is that Mr Penny’s right tibia fracture was very indolent and slow to heal. The intention of the treatment, within the ambit of medical science and knowledge at that time, was to effect a firm union of the fractured bone. I accept Dr Talbot’s opinion that the aim or desire of those administering the medical treatment would have been a perfect union in Mr Penny’s tibia. There is no evidence before me about the relative likelihood of the treatment resulting in angulation or shortening as actually occurred. Dr Talbot gave evidence that the chance of a sliding bone graft succeeding was low. From that it can be inferred that the likelihood of it not succeeding, in terms of a perfect union, was high. On that basis, it can be inferred that the likelihood of malunion as a consequence of the sliding bone graft operation was a reasonably high probability. That being so, it cannot now be said that malunion of the indolent fracture was not within the scope of what was intended by the treatment; not desired, not aimed for, not a perfect result certainly, but not an unintended consequence either.
68. Turning to consider whether Mr Penny’s injury as a result of the insertion or introduction of an infectious agent into his bone tissue was suffered as an unintended consequence of the medical treatment, I am satisfied that it was not. I accept that osteomyelitis was common in 1951 and that the risks of such infection in connection with a compound fracture and with the use of surgical plates were known. I also accept that antibiotic treatment was administered from Mr Penny’s first admission to hospital on 21 May 1951 for the purpose of preventing infection. There is no evidence of infection at the time of surgery on 31 May 1951 or on 19 February 1952 . It is not until 26 May 1952 that record of infection is made.
69. Dr Talbot’s evidence was that plating a compound fracture within 10 days of occurrence was not a usual practice in 1951 and would have increased the risk of infection. The procedure was undertaken nonetheless. Whether right or wrong, the plain intention of the medical treatment was curative for the benefit of the patient. Osteomyelitic infection was a complication that was recognised and preventative treatment was administered to control infection that would, in all likelihood, otherwise result. There is scant evidence before me concerning the administration of antibiotics during or after surgery on 31 May 1951. Nonetheless, it can be inferred that such treatment was administered within the scope of medico-scientific knowledge at that time.
70. So it can fairly be said that the medical treatment Mr Penny received was designed to repair his fractured tibia and to prevent infection even though there was, in Dr Talbot’s opinion, a high likelihood that the plating procedure would result in osteomyelitic infection. The introduction of that infectious agent into Mr Penny’s right tibia was certainly not designed or aimed for. Nevertheless, the likelihood of its occurrence was foreseen and preventative treatment was administered. It cannot now be said that the insertion or introduction of that infectious agent into Mr Penny’s tibia tissue was an unintended consequence of the medical treatment with which he was provided. Plainly that injury was unfortunate and undesired. It was an occurrence despite the administration of preventative treatment: an injury that was neither unavoidable nor outside the realm of probability in the circumstances at the time. But it was not an injury that was suffered as an unintended consequence of the medical treatment.
conclusion
71. The decision under review is affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 10 September 2004
Date of Decision 24 September 2004
Counsel for the Respondent Ms R. Henderson
Solicitor for the Respondent Madhu Dubey
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