Capital Territory Health Commission v Cavanagh, Susan Maria [1978] FCA 8

(Commonwealth Government Employees) Act 1971 from the Commonwealth

2. the order of the Commonwealth Employees! Compensation

3. the order for costs made by the Commonwealth Employees! Compensation Tribunal in favour of the respondent be

(Commonwealth Government Employees ) Act 1971 from the Commonwealth

Employees! Compensation Tribunal at Canberra CAPITAL TERRITORY HEALTH COMMLSSTON Appellant

REASONS FOR JUDGMENT NIMMO, J. 3 March 1978 Canberra

On 16 February 1973 1t was determined pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 that the respondent, Susan Maria CAVANAGII, had sustained personal injury arising out of or in the course of her employment by the Canberra Ilospital Board on 11 December 1972, namely, intervertebral disc protusion. Since then she has been paid

During May 1977 she submitted to the appellant, the Capital Territory Health Commission, two letters from her doctor 3n which it was stated that it would be advisable for her to move [rom

Canberra to a warmer climate for the winter of 1977 because th

pain caused by the condition of her back increases as the weather cools. At the same time she made an oral request that any travel expenses and accommodation charges for an absence from Canberra during the winter be paid by the appellant. The appellant forwarded the letters to the Commissioner for Employees! Compensation and at the same time informed him of the respondent's request and asked for his advice in the matter. It appears that the Commissioner, pursuant to 5.24 of the Act, delegated the task to his Deputy Chief Delegate for on 1 June 1977 the latter determined that the proposed absence from Canberra by the respondent did not constitute "medical treatment" within the meaning of s.5(1) of the Act and consequently, 1f ut eventuated, the appellant would not be liable to compensate the respondent. In dealing with the respondent's request the Deputy Chief Delegate no doubt believed that he was exercising the power conferred on the Commissioner by s.20(1) of the Act which reads as follows 3;

'20(1) Subject to this Act, the function of the Commissioner

questions arising under this Act and the Commissioner

1s empowered to do all things necessary for the carrying out of that function,'

On 4 . .ly 1977 the respondent, through her husband, requested the Commissioner to refer the Deputy Chief Delegate's Determination to the Commonwealth Employees' Compensation

The case was heard on 12 July 1977 and on the followang day the Tribunal decided that movement by the respondent to a different

location to avoid the Canberra winter could constitute "medical

treatment" within the meaning of the Act, and the maticr was remztted to Lhe Commissioner with a direction 'that the matter be redetermined by applytng the criteria whether the proposed Lreatment of moving to a warmer climate 1s reasonable in the circumstances for the respondent to obtain, having regard io the benefit of the climate likely to result and the cost to the

On 3 August 1977 the appellant gave notice of appeal against the decision of the Trabunal on the following grounds : That the Tribunal was wrong 1n law in deciding that it had yurtsdiction to make a determination pursuant to s.37(1) when the respondent had not obtained the medical treatment in relation to the ingury. That it was wrong in law in deciding that travel to a warmer climate could constitute "medical treatment" as

For a proper understanding of the two grounds of appeal it is necessary to set out the provisions of the Act to which they

'37(1) Where an injury 1s caused to an employee, tho Commonwealth 1s liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that 1t was reasonable in the

circumstances for the employee to obtain, compensation

of such amounts as 1s appropriate to thal medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment 1s obtained.!

In s.5(1) "medical treatment" is defined inter alia ro mean - "(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical

(b) therapeutic treatment oblained at the direclion ol a legally qualified medical practitioner;'.

In the same section "therapeutic treatment" 15 defined to 1nelude 'an examination, test or analysis tor the purpose ot cdiugnosing,

or treatment for the purpose ot alleviating, an tnyury'.

The question of whether there was jurisdiction an the circumstances of this case to make a delermination pursuant to s.37(1) applies to the Commissioner (or his Deputy Chief Delegale) and the Tribunal alike for upon a reconsideration of a matter

or question referred to 1t the Tribunal is clothed with all the

powers conferred upon the Commissioner in relation thereto

The function of the Commissioner (or one to whom he delegates pursuanl to 5.24) under thas Act, as expressed in s.20(1), 1s to determine 'all matters and questions arising under this Act't, Counsel for the appellant argued that since it is implicit from the use of lhe past Lense in s.37(1) that the Commonwealth 1s liable to pay compensation in respect of the cost of medical treatment of amounts appropriate to such treatment only if the treatment has already been obtained and the function cto be performed under s.20(1) an so far as 1t relates to the Commonwealth's liability to pay compensation under s.37(1) mus t

be confined to cases where that condition has been met. As 1t

had not been met at the material time jm the present case he

coniended there was no matter or question arising under this Act

Tt seems strange to me that the appellant has seen fil to raise this ground of appeal for 1t was the appellant, not the

respondent, who sought the Determination from the Commissioner

in the trirst place. Is one to conclude that the appellant 1s now of the opinion that it had no right to do so? ff that is tts present opiniou then I disagree with it. The respondent's

request, backed by her doctor's letters, gave rise to a novel question, shortly stated - Does movement of the respondent to another climate on medical advice coustrlute "medical treatment" within the meaning of the Act? The Deputy Chief Delegare readily understood that 1l was the answer to that question that the appellant was seeking tor his Determination reads - 'Ff am unable to find that the proposed absence from Canberra of the said Susan Maria Cavanagh at the time in question constitutes "medical treatment" within the meaning of sub-section 5(1) of

It was because the appellant dad not know the answer to this question that Lt sought it from the Conmissioner whose function 1t ws lo determine all matters and questions arising under the Act. In so doing the appellant, in my view, did what was the sensible thing to do in the circumstances. I am satisfied that the question 1s one arising under the Act for 1t 1s only under the Act that the respondent could seek compensation in respect of

expenses incurred by her in carrying out her doctor's advice and

then only if what she did pursuant to that advice constituted "medical treatment" within the meaning of the Act. One 1s prompted to ask - Tf the question did not arise under the Act

The appellant having propounded another of the many questions that may arise under s.37(1) and having answered 1t to its own satisfaction used the answer first before the Tribunal and now before this Court as a means lo prevent reconsideration of the answer it sought and received from the Commissioner, In the result it has, jn my opinion, introduced an irrelevancy for Lhe question of when the Commonwealth may be J1able to pay compensation under the sub-section has no bearing on rhe question of whether or not the course the respondent had in mind to give effect lo her doctor's advice was "medical treatment" within the meaning of the Act. The appellant in a round about way 1s seeking to have placed a restriction on the function of the Commisstoner which, I feel sure, the Jegislature never intended, The highly technical approach to the anterpretation of the provisions of what 1s a remedial Act which the appellant's argument demands has been repeatedly denounced over a long period in judgments of the High Court of Australia and the

House of Lords. An observation made by Lord Shaw in McDermott

v. Owners of s.s. Tintoretto 1911 A.C. 35 affords a good example.

His Lordship said at p.45 'I reckon it to be quite unsound, and to be productive of wrong and mischief, to anterpret a remedial statute in the

Tt follows that in my view this ground of appeal must fail.

Tt 15 also my view that the Tribunal erred in holding that mere movement from one climate to another could in itself constitute "medical treatment" for the purpose of the sub-section, The Tribunal in the reasons for 1ts decision records the argument advanced before il by the husband of the respondent who appeared on her behalf. Al the hearing betore me there was no appearance of the respondent and no one appeared to represent her. Afler referring to paragraph (b) of the defination in s.5{1) of "medical treatment" and to the definition in the same sub-secrion of "therapeutic treatment" the respondent's husband stressed

that the word "ancludes" an the latter definition indicates that the kinds of treatment therein mentioned are not exhaustive.

He went on lo contend thal having regard to the Shorter Ovxiord Engiish Dictionary definition of "therapeutic" as meaning 'that branch of medacine which is concerned with the remedial treatment of disease' and that as "remedial" 1s defined in the same dictionary as 'means tending to relieve or redress! movement by his wife to a warmer climate for the winter months would have

the etfect of relieving her pain and was therefore "therapeutic treatment" which came within the definition of "medical

I thank that the key word in paragraph (b) of the detinition of "medical treatment" and in the definition of "therapeutic treatment" in s.3(1) 1s the word "treatment" which seems to me to contemplate the doing of something by some one to or for the employee concerned, Tt goes beyond the mere acceptance of

advice Yrom a medical practitioner to move to another climate.

In my opinion it requires a person to do something in the

exercise of his skill whach is designed to alleviate an inyury.

Support for this view 1s to be found in s.37(1) where 1t 1s provided that in determining the appropriate amounts of compensation to be paid by the Commonwealth in respect of the cost of the "medical treatment" which the employee has obtained regard must be had to the charges customarily made for similar treatment in the place where that treatment was obtarned. Because the charges of a doctor or a person acting at his direction are to be measured by the charges customarily mace for similar treatment at the place where the treatment is received, the sub-sectton seems to me to contemplate thal 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 1s being received, In the present case 1t was not suggested that the respondent's doctor would accompany her to a warmer climate to treat her there or that some other person there would at his direction treat her for her injury. The relief she hoped for was to come not through Lhe efforts of any person but from being an a warmer locality. In short I think the respondent received nothing more than advice from her doctor and had she acted on ait and moved to a warmer climate for the winter months she would not have received any form of treatment from him or any other person at his direction. In those circumstances she could not have subsequently claimed that during her absence she had obtained "medical treatment" within the meaning of s.5{1) for the cost of which a liability attached to the Commonwealth under

The Tribunad wut reaching ste deetsron relied apo same observattons on the erpression "medical treatment" by Lowe J.

an the case of Tn Buehenanm 4&4 Brocl Puy. Ltd. we tharrtis (19597

RR. 5'9 at pp.531-2. In my opinion the context in which His

Honour made his remarks 2s ver, ditterent from the context ii

which the expression 1s to be construed for present purposes. i

In tis selling of s.37(1) at requires for the reasons already

eiven the narrower view [ have felt oblipyed to adopt.

17 therefore uphold the appeal on the seeond ground. To oreverse the order for costs thade by the Pribunal aa Cavomr o1 che respondent, Ilavings reyard to the course events have taken stuece the respomdent imade her request whieh aim ordiiad yop se would regard as reasonable an the ctreums tances and to the Huportence to the Commonwealth to dave the @ssues ga whieh thet request wave rise resolved by this Courr, Pomahke na utder as to