In this Court the respondent sought to lead evidence in the form of a report of Associate Professor Nigel Hope describing what is involved in a knee replacement.
The application was said to be prompted by the appellant's following written submission:
"It is shortly submitted that on no proper interpretation of an expression like 'artificial aid' could two or three pieces of plastic surgically inserted in a knee to replace lengths of human bone that were excised come within it" (at [17]).
This submission did not accurately reflect the terms of the parties' agreement. Whilst the agreement referred to the insertion of plastic between the femur and tibia "and usually the patella", it did not refer to the insertion of "two or three pieces of plastic" (see [3] above). As well as referring to the insertion of the plastic (seemingly only one piece), it referred to the replacement of the ends of the femur and tibia, albeit with material that was not identified. The clear inference was that that material would be attached to the femur and tibia, and not simply "inserted".
Even if, contrary to my view but as the appellant's written submission referred to in [20] above implied, the parties' agreement suggested that the replacement material would be plastic, that would not have been of any significance for the purpose of the present appeal. As senior counsel for both parties accepted, the nature of the material to be used in the operation is of no present consequence.
These conclusions in my view render the proposed additional evidence of no present significance. The evidence indicates that the replacement material for the ends of the femur and the tibia comprises metal alloys but, as I have said, that is of no present relevance. Moreover, the further detail about the operation that the evidence would provide could not assist in the Court's determination of the issue presently before it. The parties' agreement recorded in [3] above is sufficient to enable that to occur.
The respondent has not therefore demonstrated that there are "special grounds" for reception of the evidence (see s 75A of the Supreme Court Act 1970 (NSW)). Ordinarily, a finding of "special grounds" requires the following three conditions stated in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 to be satisfied:
"(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."
Clearly, neither condition (1) nor condition (2) has been satisfied in the present case. In addition, the nature of the appeal militates against reception of further evidence. The appeal that s 353 allows is one on points of law only. The appeal will not be of that character if the Court needs to make a finding of fact to determine it (Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; [1956] HCA 21; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [24]-[25]).
For these reasons, the respondent's application to tender additional evidence should be rejected.
[2]
Determination of the appeal
The appellant's principal argument (the first sentence of which has already been quoted above at [20]) was expressed in its written submissions at [17] as follows:
"It is shortly submitted that on no proper interpretation of an expression like 'artificial aid' could two or three pieces of plastic surgically inserted in a knee to replace lengths of human bone that were excised come within it. Artificial aids are properly to be seen as composite or single objects working as such to assist a person's disability i.e. walking sticks, crutches, hearing aids, etc., be they partially internal like dentures or conventional hearing aids, entirely external like spectacle glasses or, (rarely) implanted as internal devices which are made up and operate as manufactured devices, of which pacemakers or cochlear implant hearing aids could be seen as examples."
To similar effect, the appellant's senior counsel put in oral submissions that an "artificial aid" is "an article or object, complete in itself, which serves a purpose". He compared that with a knee replacement which he said involves "interference with part of a human body and the insertion of objects which come together as part of an overall [or unified] operation" (Transcript p 9).
I accept that "artificial aids" must, as the appellant submits, work to ameliorate the effect of a person's disability and may comprise a single object or a composite of objects operating together. However, a knee replacement has these characteristics. According to the parties' agreement, during the surgery the ends of the femur and the tibia are replaced with an introduced material and a piece of plastic is inserted between the bones as reconstructed. Plainly these materials are designed to facilitate the movement and use of the knee after the operation, therefore easing the patient's disability. Their "provision" (see s 59A(6)(a)) cannot occur without a surgical operation. The cost of the operation therefore falls within the statutory provision.
The appellant's submission that the article or object must be "complete in itself" cannot be accepted. No such requirement is evident in the statutory words or supported by any authority to which the Court was referred. As the respondent pointed out, many "artificial aids" involve a process of connection of articles to the body in a manner comparable to that involved in knee replacements:
"for example, the provision of artificial teeth can involve implanting teeth to support removable dentures; the provision of artificial limbs can involve the insertion of supporting structures in bones to which artificial limbs can be attached; and the provision of spectacles can be replaced by the implanting [of] artificial lenses" (written submissions [19]).
Further, the appellant's written submissions (see [27] above) correctly concede that there is no reason why an "artificial aid" cannot be internal to the body.
The appellant further argued that the Arbitrator and the Deputy President found against the appellant because they followed Thomas when, in the appellant's submission, that case had been rendered of no assistance by subsequent changes in the relevant statute law.
The Deputy President did not however rely solely on Thomas. He stated that Thomas was in his view consistent with the words of the statute (at [47]) and thus expressed a view independent of his reliance on Thomas.
Furthermore, in my view, Thomas remains a relevant authority, containing a useful explanation of what constitutes an "artificial aid", notwithstanding that the present legislation is, to some extent, in a different form to that considered in that case. The only arguably material change in the form of the legislation has been the insertion in it of express reference to "the modification of a worker's home or vehicle" as constituting medical treatment (s 59A(6)(b)). By this change, the legislature confirmed that the finding in Thomas reflected its intent that the injured worker's right to compensation in respect of the cost of such modification should not be subject to a time limit.
The effect of the insertion is thus to endorse, rather than contradict, the outcome in Thomas. If an inference were to be drawn about the legislative intent in making the insertion, it would be that it was intended to be a confirmation of the decision in Thomas (see Ex parte Campbell referred to at [17] above) and not, as the applicant effectively submits, to narrow, in an undefined fashion, the ambit of the expression "other artificial aids" in the legislation. There is no basis for concluding that the legislature so intended.
In any event (and particularly if, contrary to my view, Thomas is no longer regarded as applicable), it is for this Court to interpret the expression. Even if, as the appellant contends, Thomas does not support the decision below, it is clear that it does not contradict it. At best for the appellant it is neutral. It is not therefore a binding, or indeed any, authority supporting the appellant's case.
A third submission made by the appellant is that the principles of noscitur a sociis (the meaning of a word can be gathered from its context) and ejusdem generis (where general words follow particular words that denote a class, they may be construed as limited to that same class) should be applied to find in favour of the appellant.
It is unnecessary to examine these principles as neither of them, even if applicable, would assist the appellant. The appellant attempts to use both to argue that the proposed knee replacement is different in character from the specific "artificial aids" expressly identified in s 59A(6)(a). Whilst it is a different means of alleviating a disability, there is no feature of the knee replacement which distinguishes it in principle, or character, from the other aids referred to. For example, as mentioned above and as conceded by the appellant, the internal character of the replacement knee does not take it outside the legislative provision, nor does the fact that it comprises a number of material elements which, when affixed or installed, are designed to operate together to alleviate the disability.
Nor does it assist the appellant to examine whether s 59A(6)(a) is beneficial in its operation. As stated in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [29], to determine whether a statutory provision is beneficial, a court should not construe the legislation under consideration as a whole but instead direct attention to the particular provision in question. On this basis, s 59A(6)(a) is clearly beneficial because it restricts the operation of a limitation on compensation that is payable. As s 59(6)(a) in my view has a clear meaning (at least so far as is presently relevant), it is unnecessary to rely upon that conclusion but, if account is taken of it, it assists the respondent, not the appellant.
The appellant further submitted that:
"Should the court accept the respondent's argument that the knee replacement surgery is an 'artificial aid' it will lead to the result that the respondent will receive secondary surgery, even though he does not meet the requirements for an exemption for secondary surgery under section 59A(7). This result effectively leaves section 59A(6)(c) without any operation independent of section 59A(6)(a)" (written submissions [32]).
This submission should not be accepted. Whilst the parties appear to accept that the respondent's claim does not fall within the "secondary surgery" exception in s 59A(6)(c), there is no reason why, if his case warrants it, he should not receive the benefit of the "artificial aids" exception in s 59A(6)(a). There is nothing in the legislation to suggest that the legislature intended that if a worker could not satisfy one of the paragraphs of s 59A(6), he or she should not obtain the benefit of satisfying one of the other paragraphs.
The appellant's fallback argument on the appeal is that, if compensation is payable to the respondent in respect of the cost of the materials to be used in the knee replacement operation, the cost of the surgery is nevertheless not covered. I reject this argument. As indicated in [29] above, the "provision of" the artificial aid in the form of a replacement knee requires surgery. That surgery is therefore within s 59A(6)(a). I should not be taken to be adopting a general rule that the cost of surgery is always a cost of "[t]he provision of … artificial aids", as there may be cases where the insertion of material into a person's body is only an incidental part of major surgery. Each case must be decided on its own facts.
[3]
Orders
In summary, I consider that the Arbitrator and Deputy President Snell were correct in finding that the respondent's total knee replacement was an "artificial aid" within the meaning of s 59A(6)(a) of the 1987 Act. The appeal should therefore be dismissed. As the appellant's fallback argument also fails, its application for leave to appeal should be dismissed. In respect of both, the appellant should pay the respondent's costs.
PAYNE JA: I agree with Macfarlan JA.
SIMPSON AJA: I agree with Macfarlan JA.
[4]
Amendments
05 June 2019 - Paragraph [41]: typographical
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 June 2019
Solicitors:
Hall & Wilcox (Appellant)
Carroll & O'Dea (First Respondent)
Crown Solicitor's Office (Second Respondent)
File Number(s): CA 2018/122484
Decision under appeal Court or tribunal: Workers Compensation Commission
Citation: [2018] NSWWCCPD 12
Date of Decision: 28 March 2018
Before: Deputy President Michael Snell
File Number(s): WCC A1-2148/17
The appeal determination of Deputy President Snell
In rejecting the appeal from the Arbitrator's determination, Deputy President Snell stated at [47]:
"… The plain words, in those parts of the statutory definitions which deal with 'artificial aids', have changed very little since the decision in Thomas, and not in a way which would suggest the meaning of 'artificial aids' has altered. No developed submission is made by the appellant, that the insertion of cl (g) into the relevant definition in s 59 of the 1987 Act (and the corresponding inclusion of s 59A(6)(b) in the 1987 Act), requires that the term 'artificial aids' be read more restrictively than it was in Thomas. Other than the insertion of cl (g), the appellant has not sought to identify any specific change in the words, which would warrant an interpretation different to that in Thomas. I accept the submission by the respondent and the intervener, that the interpretation in Thomas is consistent with the words of the text. The Arbitrator's reliance on the decision in Thomas is supported by the application of Ex parte Campbell, further discussed below."
The Deputy President's reference to Ex parte Campbell was to the statement of James LJ in Ex parte Campbell, In Re Cathcart [1870] LR 5 Ch App 703 at 706 that:
"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them."
The Deputy President also referred to recent statements of this principle in cases such as Public Service Association and Professional Officers Association Amalgamated Union (NSW) v Industrial Relations Secretary [2015] NSWCA 386 at [66], and stated that the legislature's re-enactment (in 1987), after the 1979 decision in Thomas, of substantially identical words to those considered in Thomas indicated a legislative intention that the words have the same meaning as given to them in Thomas.