Fazlic v Milingimbi Community Inc

Early in April 1978 the appellant suffered a compensable injury to his back while working in the Northern Territory as a mechanic and workshop foreman. He accordingly became entitled to and received weekly payments of compensation under the Workmen's Compensation Ordinance of the Territory. At issue in this appeal is whether his refusal to have a recommended operation to his injured back should result in his losing his entitlement to further compensation payments.

As a result of his injury the appellant suffered severe pain in his lower back and right leg, some loss of use of that leg and some weakness in that foot, also some loss of sensation. In June 1978, following a period of treatment at the Darwin Hospital, where he received physiotherapy without avail, his treating surgeon, a specialist neuro-surgeon, diagnosed a lumbar disc protrusion which was confirmed by x-ray examination. The disc protrusion was gross, was not improving with physiotherapy and was causing the backache and sciatica and the disabilities of which the appellant complained. The surgeon accordingly recommended an immediate operation. He told the appellant that without it his condition would not improve, the pain and disability would continue and might possibly get worse; that what was involved would be "a relatively major operation on his back which carried some risk but the chances were that improvement could be expected from it"; that the sooner it was done the better would be the prospects of a successful outcome; and that a myelogram x-ray examination would be necessary before operating. From the evidence of the appellant and of his treating surgeon, which is not in conflict on the point, this appears to have been the substance of all the information which the appellant at any time received from his treating surgeon, and he apparently received no medical advice about the operation from any other source.

The appellant told the surgeon that he did not want to have the operation and he has persisted in that view ever since. He saw and was examined by the surgeon on many occasions in 1978 and 1979 but what passed between them about the operation seems to have been no more than renewed recommendations that the appellant should have the operation and repetitions by the appellant of his refusal. The reasons he has all along given for refusing the operation have been his fears: fear of operations generally and of this major operation on his back in particular and a fear lest he might end up worse off after it. He apparently had spoken to others who had various operative treatments without success for back complaints which were, however, not necessarily similar to his own.

The surgeon was not altogether surprised at the appellant's refusal because in his extensive experience it was, he said, not uncommon for patients from south-eastern Europe, as was the appellant, to be particularly fearful of back operations. The surgeon took the view that "as his treating doctor, he is the person with the complaint, he is the patient, and as a doctor I have got to accept, or respect, decision ".

In June and September 1978 and again in June 1979 the appellant was seen by an Adelaide specialist, an orthopaedic surgeon, who was engaged on behalf of the workmen's compensation insurers and who confined himself to examining the appellant, giving the appellant no advice about whether or not he should undergo an operation or about its likely outcome. One feature of this surgeon's evidence will call for later comment, but so far as concerns the state of knowledge of the appellant he gained nothing either directly or through his legal advisers from his three visits to Adelaide.

Late in 1979 the appellant applied to the Territory Workmen's Compensation Tribunal for a continuation of weekly compensation and for a lump sum award. The respondent employer by its answer contended that his refusal to have the operation has been unreasonable and that he should accordingly be denied further compensation of any kind. The Tribunal concluded that the respondent had not established that the appellant's refusal was unreasonable and accordingly made an appropriate award of compensation.

Before the Tribunal there was much evidence, both from the treating surgeon and from the Adelaide specialist, that the proposed operation, had it been performed when originally recommended or soon afterwards, would have been both entirely appropriate and also very likely to be highly successful. The Tribunal found that "there was a 70 per cent or better chance that he could have returned fully to work as a mechanic and workshop foreman. I find that there was a 15 per cent chance that he would have been much improved, but not able to return to very heavy work and less than 15 per cent chance of no real improvement". The various risks of surgery were found to be minimal, the treating surgeon being very experienced, highly qualified and undoubtedly skilled. Accordingly it was concluded that "From a medical viewpoint alone, then, weighing the risks against the certainty of extremely disabling pain, were the operation not taken, the only reasonable course would be to submit to operation".

In nevertheless concluding that the appellant's refusal had not been shown to be unreasonable the Tribunal was much affected by the fact that "the applicant was not well informed as to the real odds of success and was certainly not in possession of the detailed information this Tribunal now has. He gave reasons to his treating surgeon for refusing operation and those reasons were not dispelled by any advice given him." Those reasons included "an honestly held fear that there was a substantial risk that he might end up more disabled after the operation". The appellant did know that the operation would be a major procedure but he was told little else about it and nothing that would allay his expressed fears concerning it. It was in the light of these circumstances that the Tribunal made an award in his favour.

The respondent employer appealed to the Supreme Court of the Northern Territory. That appeal took the form of a hearing de novo. The transcript of the Tribunal hearing was tendered in evidence and in addition Mr. Fazlic again gave evidence, as did a psychiatrist called on his behalf. As the Court said in its judgment, "The issue in this matter is, and always has been, as to whether the respondent workman unreasonably refused to undergo surgery". The evidence before the Court did not differ in any important respect from that before the Tribunal but the employer's appeal succeeded, the Court resolving the issue it had stated in the employer's favour.

In allowing the appeal the Court posed for itself the following question:

Should the refusal of this workman to undergo laminectomy advised by his own competent surgeon with neither medical advice nor opinion to the contrary be classified as reasonable when based on his own general fear of surgery, the evidence indicating that the operation would probably be successful in achieving substantial recovery and restoration of working capacity? The form in which this question is phrased reflects the approach of the Court. For it the expert medical evidence as to the likely outcome of the operation assumed considerable importance. Its enumeration and examination of relevant factors included the reasonableness of the operation, the techniques which it involved, its excellent prospects of success and its slight risks, all matters of which the appellant remained unaware during his persistent refusal of the operation.

On appeal to the Full Court of the Federal Court of Australia the approach of the Supreme Court was described as revealing no error of method and the appellant's refusal to submit to surgery was accordingly held to be unreasonable. In its joint judgment the Full Court relied extensively upon the reasonableness of the proposed operation and upon the unreasonableness of the appellant's fear, which was regarded as the only substantial factor standing in the way of the operation. No doubt it will be but rarely that an employer does not succeed in establishing that a worker's refusal is unreasonable when the worker has allowed baseless fear to decide his choice, outweighing his knowledge of cogent factors favouring his undergoing an operation. But this is not such a case. All that the appellant had to place in the scales and weigh against his strong and genuinely held fear of operation was the knowledge, gained from his treating surgeon, that the operation would be relatively major, carrying some risk, the chances being that it would improve his condition. He knew almost nothing about the objective reasonableness of the operation. The substance of the evidence of each of the two surgeons about the slight risks involved in the operation and the high prospects of complete succeess which it offered, much relied upon in the Federal Court, as it had in the Supreme Court, was unknown to him.

Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend upon the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed.

The authorities confirm what good sense would suggest. The origin of the rule about a worker's unreasonable refusal of treatment, described by Lord Wright in Steele v. Robert George & Co. (1937) Ltd. [1] as a piece of judicial legislation, appears to lie in two Scottish cases of 1902 referred to in the following year in the first, and inadequately reported, English case of Rothwell v. Davies [2] . Only in 1908, in Warncken v. R. Moreland & Son Ltd. [3] , did a fully reported judgment of the Court of Appeal deal with the matter and it was in particular the judgment of Lord McLaren in Donnelly v. William Baird & Co. Ltd. [4] that was there adopted as a correct enunciation of principle. Lord McLaren, in the examples which he gives by way of illustration of the principle [5] , must, we think, be taken to assume that the workman has been made aware of all the relevant facts before making his decision. At all events, when in Tutton v. Owners of Steamship Majestic [6] those same members of the Court of Appeal as had decided Warncken's Case in the previous year again dealt with the rule, Cozens-Hardy M.R. said [7] :

I think that the learned county court judge applied his mind to this proposition: Is this an operation which, on the balance of medical evidence, may reasonably be performed? That I venture to think is not the question. The question is, Did the man act unreasonably in refusing to undergo this operation after his own doctor had stated that the administration of anaesthetics would be attended with danger to life in the case of a man who had kidney disease and an enlarged heart, and that it would be barbarous to undergo the operation without anaesthetics? There his Lordship makes it clear both that it is upon the basis of what he has been told the reasonableness of the worker's refusal is to be judged and that there is no question of the Court having to make a judgment in the abstract, on all the evidence before it at the trial, as to whether the operation may reasonably be performed. Then in Richardson v. Redpath, Brown & Co. Ltd. [8] Viscount Simon, whose views were shared by the other members of the House, said of the rule and its operation: The material question, as this House recently pointed out in Steele v. Robert George & Co. (1937) Ltd. is not whether the medical advice given to the workman against an operation is more soundly based than advice in favour of it, but whether the workman who refuses to be operated upon is acting reasonably in view of the advice he has received. This may now be regarded as the received doctrine and in saying what he did his Lordship not only expressly referred to the information which had been given to the worker (as to which see also the passage from his Lordship's judgment in Steele v. Robert George & Co. (1937) Ltd. [9] ) but also contrasted the correct test, based upon what the worker knows, with the incorrect approach of evaluating the medical evidence. A court is not, save perhaps in exceptional circumstances to be mentioned hereafter, concerned with what in Tutton's Case Cozens-Hardy M.R. described as the question whether, on the balance of medical evidence, the operation may reasonably be performed on the worker. Its concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable. 1. [1942] A.C. 497, at p. 503. 2. (1903) 19 T.L.R. 423. 3. [1909] 1 K.B. 184. 4. 1908 S.C. 536. 5. 1908 S.C., at p. 540. 6. [1909] 2 K.B. 54. 7. [1909] 2 K.B., at p. 58. 8. [1944] A.C. 62, at p. 68. 9. [1942] A.C., at p. 501.

It follows that in the present case the extensive expert medical testimony showing that the operation might reasonably have been performed was irrelevant to the point in issue, the reasonableness of the appellant's refusal, since the facts deposed to were never known to the appellant, who was aware only of the treating surgeon's reticent and, if anything, rather discouraging statement about the operation that was recommended. Moreover the appellant had candidly confessed to his treating surgeon his fears regarding the operation and nothing had been said to dispel them. In those circumstances we cannot say that he was shown to have been unreasonable in refusing the operation and this despite the fact that the alternative facing the appellant was, as he had been told, that there would be no improvement in his condition. By taking into account so much that was unknown to the appellant the Supreme Court was led into error in the finding of fact which it made. The conclusion of the Tribunal, that the refusal had not been shown to be unreasonable, is to be preferred, based as it was upon what little the appellant knew at the relevant time. We would accordingly allow the appeal and restore the Tribunal's award.

There remain two matters which call for mention. We have earlier referred to the evidence of the Adelaide surgeon. One aspect of it illustrates how it may be that, as we have said, medical opinion never communicated to the worker may in exceptional cases nevertheless bear upon the consequences of a refusal to submit to recommended treatment. Although when that surgeon first saw the appellant in June 1978 shortly after the accident, he agreed with the treating surgeon's diagnosis and with the appropriateness of surgery, he became doubtful as a result of his second examination in September 1978 and by the time of his third examination, in June 1979, he regarded the appellant's condition as having so far improved as result of rest that he would no longer be in favour of any operation. This not simply because with the passing of time this sort of operation could not be expected to produce as good a result as if it were performed soon after the injury; it was because he thought that there had been a positive improvement in the appellant's physical condition. That improvement had been accompanied by what he described as the development of a large non-organic overlay, so that the appellant did not present as in any way improved; but organically his condition had so substantially improved that it no longer called for an operation.

Although on the special facts of this appeal this cannot affect its outcome (the operation being in any event one which if it were to be performed at all should have been performed soon after the injury), it does suggest how in exceptional cases medical evidence the gist of which is unknown to the worker and perhaps unsuspected by his medical advisers at the time of his refusal of treatment might be thought ultimately to be very relevant. A refusal of treatment may at the time appear quite unreasonable, yet when the matter comes to trial, and whether because of developing medical knowledge in the meanwhile, incorrect diagnosis, some exceptional change in the worker's condition or some other circumstance, it may be clear that to have performed the operation would have been quite inappropriate. This point was touched on in argument but is not material to the resolution of this appeal. We mention it only so that, should the point arise, it will not be regarded as concluded by anything said in this judgment.

The second matter concerns the principle lying behind the rule as to unreasonable refusal of treatment. It has often been described in the case as based upon causality, the refusal breaking the chain of causation between injury and subsequent incapacity. In Steele v. Robert George & Co. (1937) Ltd. [10] Lord Wright doubted the correctness of this analysis, finding it "not very logical to say that the workman's refusal breaks the chain of causality". Viscount Simon [11] also referred to the principle supporting the rule and to difficulties in its application. Causality, involving the tracing of links between act and consequence, seems remote from the concept that it is the reasonableness of the worker's refusal, judged in the light of his knowledge at the time, that is the criterion. To regard the rule as founded upon causality is likely to distract attention from the true issue, the reasonableness of the refusal viewed in the light of the worker's knowledge, and at the same time to encourage investigation of what, at the trial, proves to be the best medical assessment of the reasonableness of the operation viewed in a quite objective sense. Yet one and the same ultimate physical state of disability can scarcely be said to have been "caused" by the initial injury if the refusing worker was at the time unaware of certain facts concerning a recommended treatment (and hence was not unreasonable in his refusal) but to lack the necessary causal relationship when his refusal was made with knowledge which should have led to his acceptance of that treatment.

1. [1942] A.C., at p. 503. 2. [1942] A.C., at pp. 499-500.

The doctrine of mitigation of damage appears to us to provide a more rational basis for the rule. It permits of the same considerations being applied in the area of workers' compensation as are habitually applied in tort where personal injuries cases are in question. It is noteworthy that in standard texts the operation of the doctrine of mitigation of damages is illustrated by cases drawn from the area of workers' compensation - Halsbury's Law of England, 4th ed., vol. 12, par. 1195; McGregor on Damages, 14th ed. (1980), par. 230. If the rule relating to unreasonable refusal is regarded as giving effect to the obligation to take reasonable steps to mitigate damage problems which otherwise arise may disappear, giving the rule a more certain operation.

We would allow the appeal and set aside the order of the Federal Court of Australia which affirmed the judgment of the Supreme Court of the Northern Territory. The order of the Workmen's Compensation Tribunal will accordingly be affirmed.