Thiele v Commonwealth of Australia

[1990] FCA 175

Re: RONALD JOHN THIELE
And: COMMONWEALTH OF AUSTRALIA
No. G1435 of 1988
FED No. 175
Administrative Law - Principles of Construction of Socially Remedial
Legislation 22 FCR 342

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Claim under Compensation (Commonwealth Government Employees) Act 1971 for cost of swimming pool to be used for hydrotherapy - Whether swimming pool "medical treatment" under definition in s. 5(1) - Meaning of "treatment" - Whether pool "curative apparatus" for purposes of s. 5(1) - Meaning of "building" - Whether building of pool was alteration to building occupied by applicant hence within s. 37(3) - Whether cost of pool was cost of "obtaining any aid ... for use of applicant" for purposes of s. 37(3).

Principles of Construction of Socially Remedial Legislation - Intention of legislature to benefit workers - Where two possible constructions exist the construction favourable to worker to be preferred.

Compensation (Commonwealth Government Employees) Act 1971: ss. 5(1), 37(1), 37(3).

HEARING

SYDNEY

#DATE 20:4:1990

Counsel and Solicitors Mr M Smith instructed by
for Applicant: Messrs Hunt and Hunt

Counsel and Solicitors Miss R Henderson instructed by
for Respondent: Australian Government Solicitor

ORDER

The decision of the Administrative Appeals Tribunal be set aside to the extent that the Tribunal's determination rejected the possibility that the proposed swimming pool was capable of falling within s. 37(3) of the Compensation (Commonwealth Government Employees) Act 1971.

The matter be remitted to the Tribunal for further consideration in accordance with law with, if necessary, further evidence to be taken by the Tribunal.

The respondent pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Mr Ronald John Thiele appeals against a decision of the Administrative Appeals Tribunal constituted by Dr R A Hayes, Senior Member, which set aside, but only in part, a determination made by a delegate of the Commissioner for Employees' Compensation in respect of a claim by the applicant for compensation in respect of a lower back injury.

1. The facts before the Tribunal were not in dispute. The applicant during the course of his employment with the respondent slipped and fell in 1972 and as a result suffers recurring back pain which is wide spread, severe and radiates to the right lower limb as far as his foot. The pain occurs on a daily basis and is relieved by analgesics with any severe exacerbations of symptoms requiring regular doses of morphine or pethidine. Medical evidence was submitted to the Tribunal from Dr John Yeo, a renowned specialist in spinal medicine, who gave evidence at the hearing and another medical report was submitted to the Tribunal from Dr J Douglas an orthopaedic surgeon. In summary form it is agreed between the parties that this medical evidence disclosed:
   1. That the treatment of the applicant's symptoms for
   

injury for which the respondent was liable was hydrotherapy twice daily at home in the medium of a heated family swimming pool.

2. That the specification that the applicant have a pool

and undertake an exercise regimen was one designated by his treating doctors and rehabilitation experts and that the effects of the regimen were to be kept under review by his treating doctors.

3. That hydrotherapy would have two therapeutic effects:

it would alleviate his current condition of pains and cramps and would have a broader effect of restoring his general health by strengthening his muscle system and desensitising his nervous system thereby allowing him to reduce his dependency on drugs for relief. On the evidence the Tribunal found: "1. Without hydrotherapy the applicant's condition would deteriorate, and he would be less able to cope with pain than is presently the case;

2. The applicant's present level of disability rules out use by him of public facilities for effective hydrotherapy."

1. It was in this context that the applicant claimed under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") to be entitled to compensation for the cost of a swimming pool to be built in accordance with Dr Yeo's prescriptions; viz that it be half in and half out of the land and for ease of access, modified with rails to permit the applicant to have access to the water and that it be heated. The pool was for the purpose of the exercises and swimming which Dr Yeo prescribed. Such a pool is referred to in the reasons of the Tribunal as a hydrotherapy pool. Initially in rejecting the applicant's claim the delegate made the following determination:
   "a. Having regard to the provisions of sub-section
   

37(3) of the Act the provision of a hydrotherapy pool is not reasonably required as a result of the personal injury; b. The Department of Defence is not liable to pay compensation in respect of the provision of a hydrotherapy pool."

Subsequently this initial determination was revoked and a further determination was made in the following terms:

"a. The determination dated 28 November 1986 is

revoked in full.

b. Having regard to the provisions of subsection 37(1) of the Act the provision of a hydrotherapy pool is not medical treatment, reasonable in the circumstances for the employee to obtain.

c. Department of Defence is not liable to pay compensation in respect of the provision of a hydrotherapy pool."

1. It will be noted that the major difference between the two determinations is that the former was based primarily upon the provisions of s.37(3) whereas the latter was based primarily upon the provisions of s.37(1). Each determination was however sufficiently broad to encompass a general denial of liability by the Department of Defence in respect of the provision of a hydrotherapy pool.

2. Between the first and second determinations the applicant had requested that the first determination be referred to the Tribunal for review. I was advised from the bar table that upon the revocation of the first determination and the making of the second determination a further request was made to refer the second determination to the Administrative Appeals Tribunal for review. This being the case the appropriate matter before the Tribunal was the review of the second determination of 24 June 1987 rather than the earlier determination of 28 November 1986. Certainly the appeal book filed with the Court describes the determination under review as being that of 24 June 1987. Notwithstanding this description the Tribunal's reasons for decision describe the determination under review in terms of the first determination rather than the second one, although in his reasons the learned Member canvassed both the provisions of s.37(1) and 37(3). Apparently before the Tribunal, as also before me, the parties treated the issue between them as being whether a hydrotherapy pool, in the sense which I have indicated above, was a compensable item under the provisions of both s.37(1) and s.37(3) of the Act.
   The Statutory Background

3. Subsection 37(1), (2) and (3) of the Act were at the relevant time in the following terms:
   

"(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.

(2) For the purposes of subsection (1), the cost of medical treatment shall, in the case of medical treatment being the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance, be deemed to include any fees and charges paid or payable by the employee to a legally qualified medical practitioner, a legally qualified dentist or other qualified person for a consultation, examination, prescription or other service reasonably rendered in connexion with the treatment.

(3) Where an injury is caused to an employee, the Commonwealth is liable to pay compensation of such amount as is reasonable in respect of the cost, payable by the employee, of an alteration to a building occupied, or vehicle or article used, by him, or of obtaining any aid or appliance (other than an aid or appliance referred to in the last preceding subsection) for use by him or of having such an aid or appliance repaired or replaced, being an alteration the making of which, or an aid or appliance of obtaining of which, was reasonably required as a result of the injury, but so that the total amount of compensation payable under this subsection in respect of the compensation payable under this subsection in respect of the injury does not exceed $780 or such higher amount as is prescribed except where the Commissioner is satisfied that in the circumstances of the case justify the excess."

Section 5(1) of the Act defines "medical treatment" to mean:

"(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner;

(c) dental treatment by, or under the supervision of, a legally qualified dentist;

(d) therapeutic treatment by, or under the supervision of, a physiotherapist or masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, masseurs or chiropractors as the case may be;

(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or legally qualified dentist and the provision of a report in respect of such an examination, test or analysis;

(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance;

(g) treatment and maintenance as a patient at a hospital;

(h) nursing attendance, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise;

(j) treatment provided or arranged by the Secretary to the Department of Community Services in pursuance of Part VIII of the Social Security Act 1947 and maintenance while receiving such treatment; or

(k) medical treatment provided as part of a rehabilitation program or follow-up program under Part III of the Disability Services Act 1986."

The Tribunal's Decision

1. The Tribunal was of the view that the cost of building the hydrotherapy pool did not fall within s.37(1) or s.37(3). The Tribunal's reasons make it tolerably clear that it did not consider whether, assuming the cost of building the pool was within the definition of "medical treatment" for the purposes of s.37(1), it was reasonable in the circumstances for the employee to obtain compensation of such amount as was appropriate to the medical treatment and further whether assuming the cost of building the pool otherwise fell within s.37(3) the amount of the cost was reasonable, or if the pool was relevantly an aid or appliance whether it was reasonably required as a result of the injury. Further the Tribunal made no finding as to whether the circumstances of the case justified an amount in excess of the sum of $1,692 prescribed.

2. The parties are agreed that if the cost of a hydrotherapy pool is, as a matter of principle, compensable under the provisions of s.37(1) or s.37(3) the matter should go back to the Tribunal for further consideration of the questions of reasonableness and appropriateness that are raised in those subsections.

3. The applicant submitted:
   

* The cost of a swimming pool was either medical or surgical treatment or therapeutic treatment qualifying for compensation by virtue of being within paragraphs

(a) and (b) of the definition of "medical treatment" and therefore falling within s.37(1). * Alternatively that the pool was a "curative apparatus" and thus fell within paragraph (h) of the definition of "medical treatment" in s.5(1) and thus within the provisions of s.37(1) of the Act. * Alternatively that the building of the pool was an alteration to a building occupied by the applicant, that building being his house and so fell within the provisions of s.37(3) of the Act. * Alternatively that the cost of the pool was the cost of "obtaining any aid ... for use by the applicant" for the purposes of s.37(3) of the Act.

1. It is convenient to consider each of these submissions in turn.
   Approach to the Construction of the Legislation

2. 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: Wilson v. Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J. Indeed as his Honour had earlier observed in Thompson v. Armstrong and Royse Pty Ltd (1950) 81 CLR 585 at 616, speaking of the Workers' Compensation Act, the whole trend of Australian and English authority is that:
   "the Act has always been construed from the point
   

of view that its nature and objects are that of an Act to benefit the worker."

See too as to the present Act the judgment of Gibbs CJ, Mason and Wilson JJ in Johnston v. The Commonwealth (1982) 150 CLR 331 at 342, 343. Whether the Building of the Pool qualified as Medical or Surgical Treatment or Therapeutic Treatment within Paragraphs (a) or (b) of the definition of "medical treatment" in s.5(1) of the Act?

1. It was the applicant's submission that on the facts of the present case, where the building of a pool of a particular kind was "prescribed" by a doctor, the pool itself qualified as "treatment" falling within either of paragraphs (a) and (b) of the definition of "medical treatment" in s.5(1) of the Act. It was said, presumably having regard to the requirement in paragraph (a) of the definition that the treatment (the building of the pool) be "by" or "under the supervision of" a medical practitioner, that paragraph (b) was the applicant's preferred approach. Under paragraph (b) it is only necessary that the treatment be obtained "at the direction of" the medical practitioner.

2. There would seem little doubt that an exercise regimen, at least one carried out under the supervision of a doctor, would qualify as either medical or therapeutic treatment. So that hydrotherapy itself could properly be said to be included within the definition of "medical treatment": cf Lanchard v. The Herald and Weekly Times Ltd (1972) WCD 297 and Kaye and Johns v. Town of St Arnaud (1961) 3 WCBD (Vic) 324.

3. There is however, in my opinion, a real difficulty in regarding the pool itself as being part of the treatment rather than as being the place at which the treatment is carried out.

4. Counsel for the applicant, however, courageously submitted that the proper test to apply in determining whether the pool constituted treatment of the appropriate kind was to ask whether the provision of the pool was an "inextricable part" of the therapy provided to the applicant. If that question be answered in the affirmative, then it would follow, so it was submitted, that the pool was itself treatment. It was said, by way of analogy, that while a hypodermic syringe might not ordinarily be said itself to be treatment it became part of the treatment when used to give an injection ordered by a medical practitioner.

5. The example of a hypodermic syringe may not be a useful analogy since, a syringe, being a "medical appliance", would fall easily within paragraph (f) of the definition or if better described as a "medical supply" it would fall within paragraph (h). I should say that it is apparent from a reading of paragraphs (a) to (k) of the definition that each paragraph is not mutually exclusive of the other so that a given item might fall within more than one paragraph. But even were a hypodermic syringe to fall within paragraph (a), that would be because it could properly be said to form part of the course of treatment itself. In no ordinary use of language can the building of a swimming pool be seen itself to be treatment. The process of treatment commences only after the pool is in position.

6. The word "treatment" is defined in the Macquarie Dictionary (revised edition) relevantly as follows:
   

"1. the act or manner of treating. ...3. management in the application of medicines, surgery, etc."

1. The same dictionary defines "treat" in a medical context as "to deal with (a disease, patient, etc.) in order to relieve or cure." What is contemplated in both paragraphs (a) or (b) of the definition is treatment of the patient in the sense of dealing with him to relieve or cure his illness.

2. Counsel for the respondent submitted that it was inherent in the concept of the word "treatment" that what was done be supervised by some person, that person being in the present context the medical practitioner. Reference was made to the decision of Nimmo J in the Industrial Division of this Court in Capital Territory Health Commission v. Cavanagh (unreported) 3 March 1978. That case which was decided on the present legislation decided that a trip to a place of warmer climate by an injured Canberra worker on the advice of a doctor was not medical treatment within paragraphs (a) or (b) of the definition in s.5(1) of the Act. In the course of the decision Nimmo J said at 7-8:
   

"I think that the key word in paragraph (b) of the definition of 'medical treatment' and in the definition of 'therapeutic treatment' in s.5(1) is the word 'treatment' which seems to me to contemplate the doing of something by someone to or for the employee concerned. It goes beyond the mere acceptance of advice from a medical practitioner to move to another climate. In my opinion it requires a person to do something in the exercise of his skill which is designed to alleviate an injury... the subsection seems to me to contemplate that the doctor or the person acting at his direction is present and doing something to or for the employee at the place where the treatment is being received."

In the result his Honour found that the applicant had merely received advice from the doctor but not, on the facts, been treated by him in moving to the warmer place.

1. While, with respect, I have no doubt as to the correctness of the actual decision in that case, it is, in my view, possible, that a particular activity constitutes "treatment" notwithstanding the doing of that act may not be under medical supervision. Indeed one of the differences between paragraph (a) and paragraph (b) of the definition is that the medical or surgical treatment must be "by, or under the supervision" of the doctor to fall within paragraph (a) whereas the therapeutic treatment referred to in paragraph (b) need only be shown to have been obtained "at the direction" of the doctor. Certainly what his Honour said may well be characterised as going beyond what was necessary to the facts of the case before him. But in any event, it is unnecessary to decide this issue in the present case because the provision of a pool is not itself treatment and it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner.
   Whether a Hydrotherapy Swimming Pool is a "curative apparatus"?

1. There was no dispute that hydrotherapy itself could be curative. The question in issue between the parties was whether a swimming pool was capable of being described in the context of the legislation as being an "apparatus".

2. Counsel for the respondent relied upon remarks made by Hutley JA with whom Hope JA agreed in Thomas v. Ferguson Transformers Pty Ltd (1979) 1 NSWLR 216, a case concerned with the application of the provisions of the Workers' Compensation Act 1926 (NSW) to the cost of an above ground heated swimming pool used for hydrotherapy. The NSW Act defined "medical treatment" inter alia as including the cost of "curative apparatus". Hutley JA said at 219-220:
   

"The pool is a special hydrotherapy pool, constructed above ground, though attached to the premises. His Honour found that, by reason of the respondent's special complications over and above those of an ordinary paraplegic, she needed hydrotherapy on an emergency basis from day to day as required. This treatment maintains her state of health and slows or perhaps prevents, its deterioration. Two attacks were made on this reasoning - first, it was said that this was not curative and, second, it was not apparatus. As to the first, the argument was that to keep an incapacitated person in the same state was not to cure him, and an apparatus which did not cure was not curative. This is a pettifogging argument - the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.

The question whether it is an apparatus is more arguable. If this had been a pool constructed of concrete or masonry or sunk in the ground so as to become an undetachable part of the realty I would have had difficulty in seeing how it could be an apparatus. 'Apparatus' is not a term of art, but has received judicial attention. In London and South Western Railway v. Hills (1906) 1 KB 512 at 515 Ridley J held that 'apparatus' in connection with a water closet did not include the handle or chain pull, but was limited to those things which if inefficiently renewed would be liable to render the premises insanitary. Lord Guest, sitting in the Outer House of the Court of Session, held that an electrical distribution board was 'apparatus': Waddell's Curator Bonis v. Alexander Lindsay Ltd 1960 SLT 189 and Burt J, as he then was, expressed the view that a sprinkler alarm system was equipment or apparatus, but an isolated stairway and pressurization was not, for the purpose of s.25A the Fire Brigades' Act (WA): Commissioner of Presbyterian Church (WA) v. W A Fire Brigades Board

(1976) WAR 3 at 11. Milmo J said in Grimstead v. National Coal Board (1965) 1 WLR 1252 at 1258: 'A roof support (i.e. in a coal mine) could be apparatus within the meaning of the section (i.e. Mines and Quarries Act 1954 s.81). I think that a hydraulic chock would fall within the category of apparatus, but an ordinary timber pit prop would not, nor would an ordinary girder.' Of course, all these remarks were made in the course of construing statutes with different objects and in different contexts, and cannot give firm guidance, but they do seem to suggest that an apparatus is a mechanical contrivance or used in connection therewith to achieve a particular purpose, but mere structures such as stairways are not. The pump and heating installation of the pool are clearly an apparatus on this approach and the pool itself, being apparently dismountable, I am not prepared to say is not an apparatus. ..."

1. The reasons of the Tribunal proceeded along a somewhat different route, albeit arriving at the same conclusion. Dr Hayes reached first a conclusion (without reference to authority) that a swimming pool was in the ordinary sense of the word a "building". Because it was a building, it could, in the learned Member's view, not be described as an apparatus. A further reason given by the Tribunal was that a swimming pool was designed for general recreational purposes and could not for that reason be regarded as a "curative apparatus".

2. The question of whether a swimming pool is a building is not one that appears to have been the subject of any recent authority. In St George Leagues Club Ltd v. Commissioner of Land Tax (1983) 83 ATC 4736 at 4746 Lee J appears to have assumed that a swimming pool was a building. (The authorised report in (1983) 2 NSWLR 399 omits reference to the facts and orders made.) In Hilderbrandt v. Stephen (1964) NSWR 740 Jacobs J in considering the meaning of the word "building", for the purpose of construing a restrictive covenant, suggested that it "involved the concept of a structure with a roof and a support for that roof". It is true that all buildings are structures but it does not follow that all structures are buildings. A few lines later in the judgment, however, Jacobs J qualified the requirement that a building have a roof by saying that the main feature of a building is "probably" the existence of some form of roof. A number of the cases which have considered the meaning of the word "building" have placed emphasis upon the fact that it is a structure intended to have a degree of permanency; see Stevens v. Gourley (1859) 7 CBNS 99 per Byles J at 112, 113; Brown v. Leicester Corporation (1892) 57 JP 70; Wood v. Cooper (1894) 3 Ch 671. But to define a building as a permanent structure does not help one to distinguish between a structure on the one hand and a building. It may well be that it is easier to recognise a building than to define what it is. But no matter how one defines a building it would not be an ordinary usage of language to refer to a swimming pool as "a building". The reasoning relied upon by the Tribunal in concluding that a swimming pool was a building, namely that it was constructed by a person referred to as a "pool builder" cannot be accepted. One can happily refer to the person who builds a boat as a boat builder but it hardly follows from that that a boat is a building.

3. The more important question presently to be determined is whether the word "apparatus" in its present context is limited so as to exclude an inground structure such as a swimming pool which is a fixture. The first meaning given in the Macquarie Dictionary (revised edition) upon which the applicant relies was "an assemblage of instruments, machinery, appliances, materials, etc. for a particular use". One may doubt whether that is a satisfactory definition of the word since not all assemblage of materials would be called an apparatus. The definition which comes closest to the ordinary meaning of the word at least in the present context is rather "equipment, material, machinery"; see the Shorter Oxford English Dictionary or perhaps the second meaning given in the Macquarie Dictionary of "any complex appliance for a particular purpose".

4. The present paragraph (h) of the definition in s.5(1) is concerned with devices or equipment which may be used in the process of treatment, that is to say, in the curative process. It may not disqualify the item that it is bolted to the floor and has become attached to the realty but in my view the word "apparatus" is not apt to include something which is, like an inground swimming pool, a permanent structure. With respect I agree with the comments to the same effect made by Hutley JA to which I have already referred.

5. Although it is not necessary for present purposes to decide, I am inclined to the view that an item would not properly fall within the concept of a curative apparatus unless the essential character of that item was its use in the curative process. It may, in a case such as the present, where the pool's specifications are set by a doctor, be possible to argue that the essential character of the pool is curative although, but for the rail needed for access, there would be nothing that would distinguish the pool required by the applicant from any domestic swimming pool.
   Is the Building of a Swimming Pool an Alteration to a Building occupied by the Applicant?

6. Section 37(3) did not form part of the legislation as originally enacted. It was inserted in 1971 by the Compensation (Commonwealth Employees) Act 1971. As originally enacted there was an absolute limit of $150 upon the compensation payable under the section. Power for the Commissioner to exceed that limit where he is satisfied that the circumstances of the case would justify an increased amount was introduced later in 1979 by virtue of Act No 111 of 1979 s.7.

7. Given the level at which the initial ceiling on expenditure was pitched, it may confidently be asserted that Parliament gave no thought to the possibility of an inground swimming pool falling within the section. However that matter alone does not seem to me of much significance. The grant to the Commissioner of a discretion to approve increased payments could, equally, not be said to evince a clear intention to alter the construction of the words used in the section. Thus the issue remains whether the language of the section is capable of being so construed that a swimming pool falls within it.

8. If reference be had to the explanatory memorandum accompanying the Compensation (Commonwealth Employees) Bill 1971 and consequential bills, the purpose of the subsection becomes apparent. As the explanatory memorandum points out:
   

"A new provision in sub-clause (3) provides for payment of up to $150 in respect of the cost of an alteration to a building occupied, or vehicle or article used, by the employee or of obtaining or repairing an aid or appliance reasonably required as a result of an injury. This provision relates to aids and appliances other than artificial limbs and aids, etc., that come within the definition of medical treatment in clause 5. It is intended to cover items such as the provision of a ramp (to facilitate the use of a wheelchair, that would be provided as medical treatment), an alteration to a doorway, tap, handle or light fitting, etc., or the provision of safety rails or grips, etc."

1. The applicant submitted that a broad interpretation should be given to the first part of s.37(3). The applicant, it was said, occupied a building; viz his house or home. The pool constituted an alteration to his home and so, subject to the other constraints of the section was compensable. But to substitute the words "house" or "home" for building obfuscates the issue. What s.37(3) requires in its first limb is that there be an alteration to a building which is occupied not an alteration to the land upon which that building is erected.

2. The Tribunal rejected the applicant's argument on the ground that the pool was itself a building and that the construction of a new building was not the alteration of an existing building. While, as I have indicated, I do not believe that it is correct to refer to a swimming pool as a building, a swimming pool is at the very least a structure erected upon or in the land. The existing building remains unaltered. For this reason, in my opinion, the applicant's submission on the first limb of s.37(3) cannot succeed.
   Is the Pool an "Aid or Appliance" to be obtained by the Respondent?

3. Before asking this question it should be noted that the language of the Commonwealth legislation differs from that used in some at least of the comparable State Acts of which the Workers' Compensation Act 1926 (NSW) may be taken as an example. That Act contains a definition of medical treatment which is similar to that contained in s.5(1) of the present Act save that it includes: "the provision of skiagrams, crutches, and artificial members, eyes or teeth and other artificial aids and spectacle glasses." There is no provision in the NSW Act directly comparable to s.37(3). Thus when the question of the meaning of the word "aid" arises in the context of the NSW legislation, it is to "artificial aids" to which attention is directed which artificial aids are other than crutches, artificial members and the other "artificial aids" referred to in the section: cf Holmes v. Bradmill Industries Ltd (1971) WCR(NSW) 97.

4. That the language of s.37(3) extends to cover a broader field seems quite clear from the language of the subsection itself for it excludes reference to the aids or appliances referred to in s.37(2). These presumably are, or at least include, artificial limbs or medical, surgical or other similar aids and appliances referred to in paragraph (f) of the definition of "medical treatment" in s.5(1) of the Act. The difference in the State and Commonwealth legislation explains the rather broad interpretation that has been given to the word "aid" in the decisions of the Commonwealth Employees' Compensation Tribunal to which I was referred.

5. In Ryan v. Australian Postal Commission (Perth) noted in (1980) 1 CCN 255 the Commonwealth Employees' Compensation Tribunal, constituted by Mr J Ballard found that a Jason rocker chair, but not a bed or mattress, was an aid obtained by the applicant in that case. The report which is somewhat brief says:
   

"The Tribunal held that s.37(3) was not limited to artificial aids specially constructed to enable a disability to be overcome, and after viewing the items at the claimant's house, it determined that compensation would be paid in respect of the recliner chair, but not for the bed and mattress."

1. In Re Allis and Commonwealth of Australia (1985) 4 AAR 23 Mr Ballard rejected a claim by an injured employee of the cost of a new car with power steering but not on the basis that such a car could not be an aid for the purposes of s.37(3). In his reasons Mr Ballard made reference to the judgment of Hutley JA with whom Hope JA agreed in Thomas v. Ferguson Transformers Pty Ltd (supra) at 220-221 where the following passage occurs:
   

"An artificial aid, in my opinion, is anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome. The other articles in the subclause, crutches, artificial members, eyes or teeth, are illustrations of this. Because of her injury, she has lost all capacity for natural progression. The modifications to the car have given her some capacity to transport herself. It was suggested that, on this basis, the car was an artificial aid, and every person whose capacity to walk was diminished could have a car supplied at the expense of the insurer. It is not necessary to decide whether this conclusion follows. The essential quality of an artificial aid is that it is an aid specially tailored to the needs of a person, which flowed from the injury. The artificial aid is specific to an injured person. These modifications have this quality."

1. The Tribunal then noted that the NSW Act was in a different form and appears to have accepted that the car could relevantly have fallen within the word "aid" but adopted an expressio unius rule to exclude the purchase of a new vehicle where the section specifically referred to the repair of a vehicle.

2. Of more assistance is the decision of the Administrative Appeals Tribunal constituted by Deputy President D P Breen in Re Grace and the Commonwealth (1987) 13 ALD 433. That case concerned a claim for compensation for the cost of replacing a self propelled lawnmower. In that case too, Deputy President Breen pointed out that the NSW legislation considered in Thomas v. Ferguson Transformers Pty Ltd was more restricted than the Commonwealth legislation. In the view of the Deputy President the words "aids or appliances" included aids ordinarily available and reasonably required in consequence of the compensable injury to be obtained, repaired or replaced by the employee for use by him in his ordinary every day domestic existence".

3. The reasons expressed by the Deputy President are encapsulated in the following extract at 437-8:
   

"It is my view that the intent of subs.(3) is, within the overall scheme of the Act, that compensation is payable where the effect of the compensable injury is such as to invade upon the personal and private domestic life of the employee in a manner which necessitates building alterations to his domestic residence or alterations to a vehicle or article used by him in a manner which permits of his continuing to occupy the residence or use the vehicle or article, notwithstanding his injury, and in respect of his obtaining any aid or appliance (or, having obtained it, replacing or repairing it) where the alteration, or the aid or appliance is reasonably required for use or continued use in consequence of the injury. Beyond limiting the application of the subsection to alleviating, if not indeed removing the restriction upon his private life which results from the compensable injury, I cannot see that the sub-section as it presently stands, can be given the narrow and restricted interpretation contended for... The domestic theme of the sub-section is set in train by those provisions relating to alterations to his residence or motor vehicle or other article. The provisions relating to aids or articles are prefaced by use of the word 'any'. It is artificial to impose upon that word of wide and common usage any form of restricted meaning in the absence of any adjective qualifying the nature, description or potential use of the aids or appliances to which the provisions refer."

1. In Grace the Deputy President appears to have rejected a submission that resort might be had to the explanatory memorandum to which I have earlier referred, he having apparently taken the view that the provision was not ambiguous or obscure and not within any one of the circumstances which would permit recourse to extrinsic aids under s.15AB of the Acts Interpretation Act 1901 (Cth). For my part I do not regard the meaning of the word "aid" in the context of the section as free either from ambiguity or obscurity although it must be conceded that the explanatory memorandum is of only limited assistance in elucidating the subsection.

2. Once it is accepted that the "aids" to which s.37(3) refer are not limited to the kinds of artificial aids referred to in the definition of "medical treatment" then the only limitation on what will constitute an aid will be such limitations as are to be found in the context of s.37(3). In its ordinary meaning the word "aid" as a noun means no more than that which will help or assist. As the Macquarie Dictionary (revised edition) shows the word "aid" as a verb means "to afford support or relief to; help". In introducing s.37(3), the legislature was concerned to ensure that in addition to compensation for medical treatment as broadly defined, an injured worker in an appropriate case and subject to the limitations contained in the subsection should be entitled to compensation for more remote kinds of expenditure occasioned as a result of the injury.

1. Where it was necessary to alter the building in which the injured employee resided, the cost of those alterations was to be compensable. Thus if it was necessary to alter a house to eliminate steps or change the position of toilets or cupboards etc, such expenditure, if reasonable and subject to the overall limit, was compensable. So too if it were necessary to alter a car as for example to make it able to be driven by a disabled person, the cost of so doing could be recovered by the worker. The alteration of any article used by an employee to make it more usable having regard to the medical condition of the employee was similarly to be compensable subject to the constraints of the section.

2. Yet again an injured employee may need to obtain for his or her use or assistance some other item or some appliance this requirement being one that resulted from the injury and being one that is reasonably required. The word "appliance" in the subsection would clearly seem to relate to an item of personal property: see the discussion of whether a hydrotherapy pool was an appliance in a succession of cases in Taxation Boards of Review disallowing deductions or rebates under the provisions of the Income Tax Assessment Act 1936 as not being either therapeutic treatment or expenditure in respect of a medical appliance in Case Q41 83 ATC 195, Case Q115 83 ATC 595, Case P40 82 ATC 184, Case P29 14 TBRD 143, Case D63 72 ATC 385. Clearly the legislation did not intend to compensate an employee for the purchase of mere domestic appliances unrelated to his or her disability; the appliances contemplated by the subsection are limited to those related in some way to the employee's disability so that the obtaining of them is reasonably required as a result of the injury.

3. The fact that the word "appliance" is limited to items of personalty does not necessitate the conclusion that the word "aid" is similarly so limited. The words of the section are wide and do not require to be read down against the interests of a worker. The expense of any aid obtained by an injured worker will be compensable subject to the limitation of amount referred to in the section provided it can be established that the obtaining of the aid was reasonably required as a result of the injury.

4. The Tribunal appears not directly to have determined whether a swimming pool was capable of falling within the words of s.37(3) as an aid although it is implicit in the reasons of the Tribunal that the pool was not compensable. This may perhaps have been because of the view taken by the Tribunal that the pool was itself a building. Since I am of the view that it is wrong to characterise a swimming pool as a building for the purposes of the section, no question of the application of any principle of expressio unius will arise for consideration.

5. That the legislature must clearly have contemplated that some structures which become fixtures could be compensable may be seen from the example of a ramp given in the explanatory memorandum. Let it be assumed that access to the premises of an injured worker was difficult so that it was necessary to build a concrete ramp. It can hardly be supposed that the building of that ramp would be compensable only when it was attached to the house so as to qualify as an alteration to the house but not when it was built away from the house so as to facilitate access from the front gate to some place prior to the commencement of the house. And the fact that a ramp can properly be described as a structure and will ordinarily be affixed to the land will not disqualify it from consideration under the subsection. A ramp is clearly an aid to a disabled worker who has difficulty in walking and provided that it is reasonably required as a result of the injury the expenditure on building it will, subject to the question of quantum, qualify as a compensable item.

6. It follows in my view that the Tribunal erred in law in holding that the cost of the erection of a swimming pool could not qualify as expenditure compensable under s.37(3). Whether in the present case it was compensable will depend upon the resolution of three further issues. These issues are:
   

1. Whether on the facts of the present case a pool was reasonably required as a result of the injury.

2. Whether the amount of the compensation was reasonable in respect of the cost of the pool.

3. Whether the Commissioner or the Tribunal in his place should be satisfied that in the circumstances of the present case the excess of the total compensable amounts required over the statutory limit of $1,692 is justified.

1. As I understand the evidence, plans for the pool were lodged with the Commissioner accompanied by three quotations which will now be substantially out of date. No doubt it will be necessary before a consideration of the second and third issues to which I have referred above for fresh quotations to be obtained and submitted to the Commissioner. It may well be that in the light of the facts that were before the Tribunal the Commissioner on reconsideration may resolve each of the three outstanding issues in favour of the applicant and obviate any further hearing. Accordingly I would set aside the decision of the Tribunal to the extent that the Tribunal's determination rejected the possibility that the proposed swimming pool was capable of falling within s.37(3) of the Act, and remit the matter to the Tribunal for further consideration with, if necessary, further evidence to be taken by the Tribunal.