Buchanan & Brock Pty Ltd v Harris

In my opinion the question ought to have been answered adversely to the respondent to this appeal. I would allow the appeal.

This is an appeal from the Full Court of Victoria which answered in the negative a question in a case stated by the Victorian Workers Compensation Board asking whether the board had erred in holding that an injury which caused the respondent's husband's death should be deemed to arise out of or in the course of his employment by the appellant within the meaning of s. 8 (2) of the Workers Compensation Act 1951 Vict. as amended by the Workers Compensation Act 1953. The board made an award for £2,240 and costs in favour of the respondent. From the facts stated in the case it appears that the respondent's husband had been in the employment of the appellant up to and including 3rd April 1955 when, whilst performing work for the appellant, he ruptured the plantaris muscle in his leg and by reason of that injury ceased work and remained home in bed. His doctor told him to rest in bed and to apply hot packs to his injured leg. The doctor attended the deceased at his home on 7th, 9th, 12th and 18th April 1955, and advised him to rest and apply heat; but did not otherwise operate upon or treat the deceased. On 18th April 1955 the doctor formed the opinion that the deceased's leg was improving but that it was advisable for him to remain in bed and rest for about another week. Whilst in bed on 21st April 1955 the deceased vomited blood and experienced shock, and was admitted to hospital on 23rd April 1955. There the deceased was found to be suffering from carcinoma of the stomach and he died in hospital on 17th May 1955, the cause of death being the carcinoma. There was no causal or other connexion between the carcinoma and the deceased's leg injury. The vomiting of blood on 21st April 1955 would in itself have disabled the deceased independently of the leg injury. The appellant paid workers' compensation in respect of the leg injury up to the date of deceased's death.

Upon these facts the board found that the deceased died as the result of injury deemed to arise out of or in the course of his employment with the appellant.

Section 8 (2) (b) (iii) of the Workers Compensation Act 1951 as amended in 1953, so far as material, reads: - " an injury to a worker shall be deemed to arise out of or in the course of the employment if the injury occurs while the worker is travelling between his place of residence or place of employment and any other place for the purpose of obtaining a medical certificate or receiving medical surgical or hospital advice attention or treatment or of receiving payment of compensation in connection with any injury for which he is entitled to receive compensation, or is in attendance at any place for any such purpose." The italics are mine.

It will be noted that if, say, an employer's factory is in one part of a city and his pay office is in another part and an employee in the factory becomes entitled to workers' compensation and goes to that office to receive the compensation and is injured there he becomes entitled to workers' compensation in respect of that injury also.

It is readily understandable that the legislature, having provided workers' compensation for an injury occurring whilst travelling to the office from the employee's residence or place of employment, should provide that injury in the place where the worker goes to receive medical surgical or hospital advice attention or treatment should likewise be included. But as these Acts receive a liberal interpretation, as Lowe J. remarked in the Full Court [1] , we would not be justified in giving an unduly restricted meaning to the expression "medical surgical or hospital advice attention or treatment" in a context wherein it is provided that mere presence at the place to receive workers' compensation is enough to qualify for further compensation when the injury occurs there.

It seems to me that this expression should not be held to exclude compensation for injury occurring in any such place whilst things are being done by way of treatment of the injured employee, either by a doctor or by a person acting under his instructions, and whether that person be skilled or otherwise and even if they are done by the patient himself, provided they are within the scope of the doctor's instructions. The emphasis in this context is I think on the place where the things are done and not on the special qualifications of those actually doing them.

So much then for the type of treatment that is sufficient to characterise the place of attendance: as to the particular location of the place of treatment, this is not confined to "any other place", as would be expected if the place of attendance was not intended to include the place of residence of the worker. Actually the phrases "any other place" and "any place" are contrasting in this context. The omission of the word "other" is significant, and must have been for the purpose of including the employee's residence. The omission would be unnecessary unless it were intended to include his place of residence. It would be unnecessary for the purpose of including other places. Moreover it would be quite arbitrary to exclude injury at his residence as not qualifying him for compensation because the treatment of the injury was not carried out by doctors and other experts only when similar treatment elsewhere would ensure entitlement.

But to qualify for compensation the employee must be in attendance at his home. If he were sent home by the doctor for more effectual treatment there he would I think be in attendance at home for that purpose. Where he is already at home when the doctor is sent for it might be difficult to find that he was in attendance at his home for medical treatment. But where, as here, the doctor advises him "to remain in bed and apply heat", he would, I think, be in attendance at his home for medical treatment whilst applying heat. However as from 18th April to 21st April when he suffered the injury from vomiting he was in bed merely resting, although on the doctor's advice to do so for about another week. On the facts as stated in the case we must assume that there was to be, and was in fact, no further treatment for the leg injury after 18th April. Now can mere resting in bed, even on medical advice, properly be said to have been medical treatment for which he was in attendance at his home, on 21st April 1955 when the vomiting of blood occurred? Certainly attendance involved the continued co-operation of two persons, the doctor and the patient. Had it ceased with the last visit of the doctor? I conclude that it had not: he was to remain in bed on the doctor's advice for a further specified period, and not indefinitely.

As to the fact that the deceased died of carcinoma: that was not relied upon to defeat the claim for compensation by counsel for the appellant employer. The purpose of the enactment in question is to give compensation for a further injury sustained while undergoing medical treatment for the first injury. It is common ground that the vomiting of blood on 21st April 1955 was a further injury and that it led to the deceased's death which operated to fix the maximum measure of compensation and had no other relevance. The only question raised was whether the further injury occurred whilst the deceased was in attendance at a place for medical treatment.