Purnell v State of NSW (NSW Police Force)
[2023] NSWPIC 686
•20 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Purnell v State of NSW (NSW Police Force) [2023] NSWPIC 686 |
| APPLICANT: | Kristi Purnell |
| RESPONDENT: | State of NSW (NSW Police Force) |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for various items to assist the applicant; applicant had accepted injuries to the cervical spine and both wrists; whether a Thermomix machine was reasonably necessary treatment; whether the Thermomix is “curative apparatus” within the meaning of section 59; Held – finding that the Thermomix is “curative apparatus” in the circumstances of this case; therapeutic benefits; finding that it is reasonably necessary treatment; the respondent to pay the costs of the Thermomix. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to her cervical spine and bilateral wrists arising out of or in the course of her employment with the respondent. 2. The Thermomix is “curative apparatus” within the meaning of s 59 of the Workers Compensation Act 1987 and is reasonably necessary treatment as a result of the applicant’s accepted injuries deemed to have occurred on 1 June 2017. 3. The respondent is to pay the cost of the Thermomix. 4. Parties have liberty to apply to have the matter listed for a further telephone conference in respect of any outstanding matters. The Commission notes: 5. The respondent has agreed voluntarily to meet: a. the costs associated with a king single adjustable and uplifting bed base and king single mattress, king single bed sheets, king single quilt and one ergonomic pillow with the applicant to provide invoices for all claimed expenses, and b. domestic assistance, being cleaning, gardening and ironing, in accordance with an appropriate care plan created with the applicant and rehabilitation provider. |
STATEMENT OF REASONS
BACKGROUND
Kirsti Purnell, the applicant, was employed as a customer service officer by the NSW Police Force, the respondent, from approximately 2000. Her duties comprised mainly typing and data entry, and involved sitting for long periods.
Ms Purnell claims that the nature and conditions of her employment were repetitive and strenuous in nature and that she developed injuries to her lumbar spine, bilateral shoulders, cervical spine and bilateral wrists as a result. She ceased work on or about 1 June 2017.
The respondent accepts that Ms Purnell suffered injury to her cervical spine and both wrists as a result of her employment but disputes that she suffered injury to her lumbar spine and shoulders.
By dispute notices issued on 30 November 2021, 2 December 2021, 29 July 2022 and 17 August 2022, the respondent disputed Ms Purnell’s claim for various forms of “curative apparatus” and domestic assistance in relation to her accepted injuries. The dispute notices identified the date of injury as 1 February 2003.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 25 August 2023, Ms Purnell claimed medical treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) for various items to assist her with activities of daily living, and the cost of domestic assistance pursuant to s 60AA of the 1987 Act. The ARD identified the deemed date of the injuries as 1 June 2017.
The Reply includes a dispute notice dated 16 August 2022[1] which appears to be in identical terms to the notice dated 17 August 2022 attached to the ARD[2] except that it identifies the date of injury as 12 July 2013.
[1] Reply page 16.
[2] ARD page 45.
The treatment expenses claimed by Ms Purnell comprise the cost of a king mattress, an adjustable bed base, bedding including a weighted blanket, and a Thermomix machine. She claimed domestic assistance in the form of cleaning, gardening/mowing, and ironing.
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation conference and arbitration hearing on 19 October 2023. Ms Purnell was represented by Mr Ross Stanton of counsel instructed by Mr Ahmad Dawod. The respondent was represented by Ms Kavita Balendra of counsel instructed by Mr Jasper Richards.
Despite extensive negotiations during which I understand parties came close to a practical resolution of the matter, they were unable finally to reach agreement. By the time negotiations had concluded, there was insufficient time for oral submissions and I directed parties to file and serve written submissions.
During the conciliation phase, an issue arose about a dispute notice issued by the respondent in November 2021 concerning the claim for injury to Ms Purnell’s lumbar spine. The respondent sought to have the ARD amended to remove reference to that injury. Mr Stanton declined and Ms Balendra sought leave to lodge an Application to Admit Late Documents (AALD) attaching a s 78 notice issued on 12 November 2021 concerning that claim. Leave was granted and the respondent was directed to file and serve the document by 26 October 2023.
The dispute notice issued on 12 November 2021 concerns a claim for “a recurrence of your back injury originally sustained on 29 July 2011.”
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents,
(b) Reply and attached documents, and
(c) AALD lodged by the respondent on 26 October 2023 and attached documents.
Oral evidence
There was no oral evidence.
ISSUES AND SUBMISSIONS
I understand that the claim in relation to the weighted blanket was withdrawn during negotiations, and Mr Stanton has confirmed this in his written submissions.
The applicant’s written submissions refer to a “pragmatic tentative agreement” reached during the conciliation phase by which the respondent would have agreed voluntarily to pay for the following in accordance with ss 60 and 60AA of the 1987 Act respectively in respect of the accepted injury with deemed date 1 February 2003:
i) the costs associated with a king single adjustable and uplifting bed base and king single mattress, king single bed sheets, king single quilt and one ergonomic pillow with the applicant to provide invoices for all claimed expenses, and
ii) domestic assistance, being cleaning, gardening and ironing, in accordance with an appropriate care plan created with the applicant and rehabilitation provider.
The respondent’s written submissions confirm that the respondent is agreeable to the provision of the bed and bedding and the provision of domestic assistance in accordance with the proposed notation set out in the applicant’s submissions.
The respondent submits that the one outstanding issue requiring determination is whether a Thermomix is a “curative apparatus” within the meaning of s 59 and whether it is reasonably necessary in accordance with s 60 of the 1987 Act.
There is no dispute that any need for the Thermomix arises as a result of injury to Ms Purnell’s neck and upper limbs, specifically her forearms and wrists, which injuries are not in dispute.
The respondent submits that whether or not Ms Purnell has suffered injury to her lumbar spine should have no effect on consideration of the issue concerning provision of the Thermomix, and that the respondent would be significantly prejudiced were the Commission to determine that matter at this point.
Submissions concerning “injury”
Mr Stanton submits that, if the items of bedding and domestic assistance are provided voluntarily, as opposed to an award, the applicant has no interest in what date of injury the respondent regards as being applicable. However, he submits, if they are paid pursuant to an award, then 1 February 2003 would not be the date of the relevant injury. Rather, the deemed date of injury is on or about 1 June 2017 when Ms Purnell ceased work because of her injuries.
The ARD refers to 1 June 2017 as the deemed date of injury, being the date Ms Purnell last performed her typing and data entry work. Mr Stanton submits that the date should perhaps have been described as “on or about 1 June 2017” because, according to her statement of evidence, Ms Purnell’s last day of work was 30 May 2017. However, Mr Stanton submits that nothing should turn on any such minor date errors because the intention is clear enough, being to assert that it was Ms Purnell’s various work activities up to 1 June 2017 which caused the differing pathologies and incapacity for further work, and the need for various treatments, services and apparatus.
Ms Balendra submits that the respondent takes no issue with the deemed date relevant to the s 60 claim (“and only the s 60 claim”) being 1 June 2017, being the date on which Ms Purnell’s incapacity arose in accordance with s 16(1)(a)(i).
Ms Balendra submits that whether or not a deemed date applies to any claim for weekly compensation or any claim for permanent impairment is not a matter properly before the Commission. She submits that the only matter presently before the Commission is in relation to the provision of s 60 expenses, and it is only in relation to that claim that any concession is made with respect of the date of injury.
I agree that the deemed date of injury for present purposes is 1 June 2017 when Ms Purnell ceased work because of her injuries. For present purposes nothing turns on whether it is in fact 30 May 2017.
Mr Stanton refers to evidence of treating and independent doctors and submits that the combined weight of the evidence would enable the Commission to comfortably conclude that the nature and conditions of Ms Purnell’s employment between April 2001 and 1 June 2017 aggravated disease processes in her arms and hands, cervical spine and lumbar spine.
In relation to the claim of injury to Ms Purnell’s lumbar spine, Ms Balendra submits that it is the subject of a dispute notice and remains to be determined but that whether or not Ms Purnell suffered injury to her lumbar spine should have no effect on any consideration of the claim for treatment expenses because the evidence suggests that any need for the Thermomix arises from her accepted injuries.
Ms Balendra submits that the respondent would be significantly prejudiced if the lumbar spine were to be included in relation to any findings. Ms Balendra submits that prejudice would arise because of the possibility of estoppel being raised and because the respondent has not had the opportunity to obtain relevant medical evidence or argue whether the lumbar spine is a compensable injury. Ms Balendra submits that, by contrast, a finding that the issue of injury to the lumbar spine remains outstanding will not have any effect on Ms Purnell’s current claim.
No submissions have been made on behalf of Ms Purnell in reply.
I agree with the respondent’s submissions that it would be prejudiced if the lumbar spine were to be included in the present findings. A determination in respect of the lumbar spine would require more detailed submissions than are presently before the Commission, and I agree that fairness to the respondent would require an opportunity to obtain relevant medical evidence and advance argument. The dispute notice raises issues about the circumstances of the alleged recurrence of the back injury and “the multiplicity of causative factors”. The dispute notices in the ARD and Reply all concern the present claims for treatment and domestic assistance in relation to the accepted injuries.
I agree with the respondent’s submission that a finding that the issue of injury to the lumbar spine remains outstanding will not adversely affect Ms Purnell’s present claim.
That leaves the issue for determination being whether a Thermomix falls within the meaning of s 59 of the 1987 Act and, if so, whether it is reasonably necessary treatment for the purposes of s 60(1)(a).
Relevant legislation
Section 59 of the 1987 Act relevantly provides:
“‘medical or related treatment’ includes--
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1) domestic assistance services,
(g) the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
Section 60(1) provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service …”
THE EVIDENCE
Ms Purnell’s evidence
Ms Purnell has provided statements of evidence dated 10 November 2020[3] and 31 August 2022.[4]
[3] ARD page 1.
[4] ARD page 17.
In her first statement, Ms Purnell states that, on 1 February 2003, she began to realise that her hands were swollen, sore and inflamed. She believed this was due to the excessive typing and handwriting she had been undertaking in her role as a customer service officer at the Police Assistance Line in Tuggerah. She states she had had the pain for some time but, on that particular day, it was so severe that she had to hold her hands under cold water taps to try to ease the swelling and relieve the pain.
Ms Purnell describes how she had severe pain, swelling, tingling and stiffness in her neck and shoulders. In 2011, she had constant pain in her lower back. In 2013, the pain was so unbearable she took time off work. She describes further aggravation and increased pain in her hands, neck and shoulders, wrists and arms on 30 May 2017.
Ms Purnell outlines various forms of treatment for her hands including exercises, physiotherapy, ultrasound, massages and heat packs. In October 2005, she had an ultrasound and was diagnosed with bilateral flexor tenosynovitis. In October 2017, she consulted Dr Anthony Beard at Sydney Hand Surgery Associates who suspected carpal tunnel syndrome. In December 2017, Dr Beard confirmed she had carpal tunnel syndrome and recommended decompression and flexor synovectomy. Dr Ian Farey, a cervical spine specialist, also confirmed she had carpal tunnel syndrome.
Ms Purnell states that she continues to have constant pain in both hands, which she rates as 8/10 on a pain scale, and symptoms including numbness and weakness in both hands, inability to lift heavy objects, difficulty opening doors and stirring objects.
In her second statement, in relation to the Thermomix machine, Ms Purnell states that she desperately requires the machine because cooking severely aggravates her wrist, arm, neck, lower back, legs and shoulder pain. Twisting her neck and wrists when cutting, peeling and cooking meals sends shooting pain up her wrist and down her neck. It is extremely painful and an almost impossible task. As a result, she is reliant on pre-packaged meals, she cannot eat nutritional home-cooked meals and she has gained 20 to 30kg. She is not able to cook meals for herself and her family, and she cannot afford to eat prepaid meals or take out.
Ms Purnell refers to prior approval given by the respondent to a similar machine to the Thermomix but of lesser value which, she states, directly contradicts the respondent’s position. This appears to be a reference to approval described in the dispute notices dated 16 August 2022 and 17 August 2022 which note that “on Monday, November 2021, we approved cooking, and meal preparation assistance, which serves the same function as a Thermomix machine”.
Ms Purnell states that all of her treating doctors and her rehabilitation consultant have given their support to a Thermomix brand appliance. She refers to the opinion of a National Disability Insurance Scheme (NDIS) consultant that the Thermomix provides significant medical benefits of people suffering from disability. She refers to the respondent’s previous offer to provide her with a Kogan brand thermo cooker and a price range of $500. She states there are no cookers within that price and the Kogan brand cooker was unsafe and very heavy; the blades frequently fell out, there was no root peeler attachment, the lids do not fit on properly, it was not user-friendly, and it was very painful to lift.
Ms Purnell states that she needs a unit that is light, safe and has a good locking system for the blades and lid. She refers to a plastic food preparation system ordered by her rehabilitation consultant injury consultant valued at $225.99 to help peel vegetables, but she says the vegetables slip and do not fully peel; she has to hold them in place but this is difficult because of her injury.
General practitioners’ reports
Ms Purnell’s then general practitioner, Dr Mina Nakhla, provided a certificate dated 21 May 2021 in which she stated that Ms Purnell “will benefit from” various forms of aids and assistance including a Thermomix.[5]
[5] ARD page 128.
On 4 August 2022, Ms Purnell’s current general practitioner, Dr Beman Gadaliah, reported that she “will benefit” from items including Thermomix Brand Cooking Wear [sic]. Dr Gadaliah stated that the Thermomix is “highly recommended by NDIS [and] would greatly help increase independence, i.e. cooking/preparation for Kristi on a daily basis and improve diet and her well-being.” He noted that the Thermomix brand had also been recommended for her by Dr Coughlan, Recare Services, Dr Nakhla and Dr Toma.[6]
[6] ARD page 80.
Dr Coughlan’s reports
Dr Marc Coughlan is Ms Purnell’s treating neurosurgeon. He provided a report dated 9 November 2021 in which he states that she had “ongoing functional limitations” and he was “therefore in support of her having a Thermomix machine to assist with everyday meal preparation requirements.”[7]
[7] ARD page 150.
On 5 August 2022, Dr Coughlan responded to a number of questions about Ms Purnell’s injuries. With respect to the Thermomix machine, he stated that the occupational therapist who undertook the functional assessment had determined this need, and he was in support of it. He stated that a more detailed reason was best asked of the occupational therapist.
Dr Millons’ report
Dr David Millons provided a report dated 31 May 2023 in which he stated he had no knowledge of the Thermomix machine but he said “one would be wary about providing equipment on the basis that she might have difficulty with food preparation, rather than encouraging her to do what she can, to the limits of the discomfort she may feel.”[8]
[8] ARD page 63.
ReCare Services report
According to a report by ReCare Services of an Activity of Daily Living Assessment by occupational therapist Kira Ferry on 4 March 2022, Ms Purnell reported difficulty with peeling, chopping, stirring and carrying pots, and so on. She said she had to prepare simple meals and had adapted the type of meals she prepares for her family. She had difficulty stirring and performing fine motor tasks because her hands are clumsy and she reported cutting her fingers frequently because of difficulty managing the knife and chopping. She said her hands were painful and had limited strength. She reported she had been unable to use the food preparation system that she had been provided because of limited strength in her hands.[9]
[9] ARD page 75.
The report recommended a Thermomix machine be provided to reduce the physical demands of cooking and allow Ms Purnell to resume independence with cooking nutritionally substantial food for her family. According to the report, the machine is able to perform much of the chopping and stirring and eliminates the need for her to complete those tasks that aggravate her hand pain. The machine was considered reasonable and necessary as a direct result of her hand injury, and it would reduce her requirement for domestic assistance because it performs the majority of the meal preparation and cooking that she is currently unable to perform.
According to the report, Ms Purnell was given a demonstration of the Thermomix on 5 April 2022 when it was left in her home for two weeks. She was impressed by it and how it could give her independence with daily activities and she could cook items she could not cook before. The report notes that the Thermomix is the only brand with a root peeler attachment and is approved by NDIS providers.[10]
[10] ARD page 75.
The report refers to a response from Dr Beard that such assistive items would “not usually” be provided post-surgery. That report does not appear to be in the papers before the Commission. However, Ms Ferry stated that, as an occupational therapist with 13 years’ experience, it is common to recommend assisted equipment to reduce the physical demands of performing domestic tasks following surgery.[11]
[11] ARD page 76.
Procare report
On 21 October 2021, Procare Injury Management sent a questionnaire to Dr Beard, noting that Ms Purnell had difficulty with tasks involving lifting, carrying, gripping and bending and that she was “asking after a Thermomix or a cooking device similar to this (all in one food processor and cooker)”. The questionnaire identified a number of potentially recommended items.[12]
[12] Reply page 33.
In a Home and Activities of Daily Living Assessment Report dated 26 October 2021,[13] occupational therapist Libby Woods noted that Ms Purnell had undergone carpal tunnel surgery on one hand and was to undergo the same surgery on the other. The report noted that Dr Beard was asked about items to assist with meal preparation post-surgery, including an all in one food processor and cooker, to which he replied “not usually”.
[13] Reply page 36.
The report recommends the use of items including a one-touch can and food opener and an all in one food processor and cooker. Although it is not clear, this appears to be what Ms Purnell is referring to when she says the respondent had previously approved a form of food preparation machine.
SUBMISSIONS
The applicant’s submissions
Mr Stanton refers to the decision of Deputy President Snell in Honarvar v Professional Painting AU Pty Ltd[14] concerning the scope of the phrase “curative apparatus” and its application to a range of items including hydrotherapy pools, motor vehicles, computers, taxis, farm machinery and beds, all of which have been found to be capable of being “curative apparatus” in appropriate circumstances.
[14] [2022] NSWPICPD 12 (Honarvar).
Mr Stanton submits that Deputy President Snell’s discussion can be condensed to the following concepts: an apparatus is a mechanical contrivance designed to achieve a particular purpose and, to be curative, it needs to have “therapeutic qualities” which maintain the state of the worker’s health, or slow or prevent deterioration and “achieve a particular medical purpose”.
Mr Stanton submits that there is no expert opinion evidence which disagrees with the assessments of Ms Ferry, Dr Nakhla, Dr Gadaliah and Dr Coughlan, all of whom support the need for the Thermomix machine. Mr Stanton submits that a great deal of weight should be placed on Ms Ferry’s opinion because, as Dr Coughlan has observed, questions of what assistance is required fall within her expertise as an occupational therapist.
Mr Stanton submits that the Thermomix machine falls within the scope of the term “curative apparatus” being a “mechanical contrivance” which has therapeutic qualities in the form of reducing pain (when preparing meals), reducing the incidence of cuts (from using cooking knives as an alternative) and providing a more nutritious diet with its associated health advantages.
Mr Stanton submits the cost is moderate and, as Ms Ferry points out, provision of the machine will remove the need for certain long-term domestic assistance. Mr Stanton also refers to Dr Gadaliah’s observation that the Thermomix is “highly recommended by the NDIS” from which, Mr Stanton submits, it can be taken that it is commonly used to assist disabled persons and is not an unusual or novel device.
For these reasons, Mr Stanton submits, the Commission would conclude that it is reasonably necessary that the respondent pay the cost of the supply of a Thermomix machine to Ms Purnell.
The respondent’s submissions
Ms Balendra submits that the description in the applicant’s submission of the Thermomix as a “sophisticated food processor which also performs certain cooking functions” is apt.
Ms Balendra submits that whether or not a Thermomix is reasonably necessary in accordance with s 60 of the 1987 Act requires first an examination of whether it falls within the definition of medical related treatment in s 59, in particular whether it can properly be described as “curated apparatus supplied, or provided for the worker otherwise then as hospital treatment” in accordance with s 59(e).
Ms Balendra refers to Newcastle Regional Public Tenants Council Incorporated v Grant[15] cited with approval in Honarvar that there must be a “curative or therapeutic element” offered by the item to an injured worker in his or her circumstances that “deals with and assists in some therapeutic way the management of his or her physical or psychological condition.” Ms Balendra submits that regardless of whether it is preferable, convenient or desirable, it will not qualify “unless it can have some therapeutic impact.”
[15] [2005] NSWWCCPD 2 [46] (Grant).
Ms Balendra submits that Ms Purnell describes limitations with the use of her hands in preparing meals and that, due to her limited family income, they cannot afford pre-prepared nutritional meals. Ms Purnell states that she does not have the ability to cook meals for herself and her family and they cannot afford take out. Ms Balendra refers also to Ms Ferry’s recommendation that the Thermomix will allow her to “cook nutritional food for her family”.
Ms Balendra submits that any need for the Thermomix arises not for Ms Purnell’s benefit but for the benefit of her family. There is no indication that it is needed for her therapeutic benefit alone. The difficulties that she describes using her hands arise when she is cooking for her family and any need arises, not because of her own needs, but rather those of her family.
In these circumstances, Ms Balendra submits the Thermomix is not “curative apparatus” as defined in s 59 because it does not assist in the management of Ms Purnell’s physical or psychological condition and it is not reasonably necessary as contemplated by s 60 because it is not for her benefit.
CONSIDERATION
In Honarvar, the worker had an injury to his lumbar spine which resulted in an anterior lumbar interbody fusion. He claimed, among other things, the cost of a mattress and base recommended by his treating surgeon. There was a dispute as to whether the surgery was reasonably necessary, but also a dispute as to whether the bed and mattress fell within the definition of “curative apparatus” in s 59. It was common ground, that the only construction of the claim would be that the bed was "curative apparatus” as defined in s 59(e).
Deputy President Snell considered authorities in which a range of items were considered for the purposes of the meaning of “curative apparatus”. He cited Thomas v Ferguson Transformers Pty Ltd[16] in which Huntley JA said an argument that an item that kept incapacitated person in the same state and so did not cure him, and an apparatus which did not cure was not curative, was “a pettifogging argument”. His Honour considered that the statutes “seem to suggest an apparatus is a mechanical contrivance, or used in connection therewith to achieve a particular purpose, but mere structures such as stairways are not.”
[16] [1979] 1 NSWLR 216.
Deputy President Snell considered authorities in which the provision of a taxi to attend social gatherings was held to fall within the meaning of the term[17], a computer was found to be “curative apparatus”[18] and various items of farm machinery to assist to worker with incomplete quadriplegia to work on his property were “curative apparatus”.[19]
[17] [1996] NSWCC 43.
[18] (1999) 19 NSWCCR 83.
[19] [2000] NSWCC 15; (2000) 19 NSWCCR 548.
Deputy President Snell referred also to the decision in Grant in which Deputy President Byron observed:
“The authorities indicate that in order for an item to fall within the definition of ‘medical or related treatment’ in section 59 of the 1987 Act, there must be a ‘curative’ or therapeutic element offered by the item to an injured worker, in his or her particular circumstances, that deals with and assists in some therapeutic way, the management of his or her physical or psychological condition.Notwithstanding that an item may be personally preferable to another item, or is considered to be convenient or desirable, will not qualify, unless it can have some therapeutic impact.”
In the circumstances in Grant, a motor vehicle and the bed were found to fall within the definition of “curative apparatus”.
I do not understand there to be any dispute that a Thermomix can be described as a “mechanical contrivance”. Ms Balendra submits that it is not “curative apparatus” as defined in s 59 because it does not assist in the management of Ms Purnell’s physical or psychological condition but rather because it helps her in preparing meals for others.
I do not accept that argument.
In Harbison v Harbison,[20] the applicant sought an order that the respondent pay for various items of farm equipment, including a tractor, that he said were necessary in order to conduct his business as a farmer as nearly as possible in the manner in which he did before he suffered injuries that left him with incomplete quadriplegia. The evidence suggested that his father would likely use the tractor as well. Armitage J said at [77] that the mere fact that his father may use any new tractor some of the time did not render it any less necessary. At [84] His Honour said:
“It may well be that the applicant's father will ultimately benefit from the purchase of a new tractor for the applicant. That is nothing in point. If the applicant reasonably requires a new tractor as ‘curative apparatus’ … the fact that others may benefit from provision of it does not matter in the way that it would if restitutionary damages in a common law action were being sought. As I have said, the applicant's entitlement is to a statutory benefit resulting from injury within the meaning of the Act, if it exists at all, and any subsidiary benefit to others is to my mind irrelevant.”
[20] [2000] NSWCXC 25; (2000) 19 NSWCCR 548 (Harbison).
I do not accept that, in preparing meals for the family, Ms Purnell is acting only, or even mainly, for their benefit even if there are a number of them. She is one of them. Her evidence suggests that she was previously able to prepare meals for herself and her family but the specific tasks involved in doing so now causes her extreme pain. As I understand the respondent’s argument, if she lived alone and had no one else to prepare meals for, the Thermomix could fall within the meaning of “curative apparatus”. The weight of the evidence establishes that its purpose is to alleviate the effects of her injury. The fact that her family benefit does not in my view alter that.
I agree with Mr Stanton’s submission that the Thermomix has therapeutic properties in in the form of reducing pain when Ms Purnell is preparing meals, in reducing the incidence of cuts from using cooking knives as an alternatives, and providing a more nutritious diet with its associated health advantages.
I find in the circumstances of this case that the Thermomix has therapeutic properties and falls within the meaning of “curative apparatus” in s 59.
The respondent has not suggested that the Thermomix is not reasonably necessary treatment for the purposes of s 60. Mr Stanton has addressed the relevant factors described in Diab v NRMA.[21] I accept that it is reasonably necessary that Ms Purnell be provided with a Thermomix pursuant to s 60 of the 1987 Act.
[21] [2014] NSWWCCPD 72.
0
3
0