2. At the time when the applicant was employed by the respondent and suffered injury, the Compensation (Commonwealth Government Employees Act 1971 ("the 1971 Act") was in force. Section 37(1) provided:

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."

Subsequently, the 1971 Act was repealed and replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") Section 16(1) provides:

"Where an employee suffers an injury, the Commission

is liable to pay, in respect of the cost of medical

treatment obtained in relation to the injury

(being treatment that it was reasonable for the employee

to obtain in the circumstances), compensation of such

amount as the Commission determines is appropriate to

that medical treatment."

Reference was made to s.124 of the 1988 Act, the relevant parts of which are as follows:

"(1) Subject to this Part, this Act applies in

relation to an injury, loss or damage suffered

by an employee, whether before or after the

commencing day.

(2) A person is not entitled to compensation under

this Act in respect of an injury, loss or damage

suffered before the commencing day if compensation

was not payable in respect of that injury, loss or

damage:

....

(c) in any other case - under the 1971 Act as in

force when the injury, loss or damage was suffered."

My attention was drawn to various decisions of the Tribunal on the meaning of the provisions of s.124, and to some controversy as to whether and to what extent an employee claiming compensation in respect of injury alleged to have occurred while the 1971 Act was in force is required to satisfy the provisions of both Acts. In the present case, it is unnecessary to decide this controversy. Both elements of medical treatment and reasonableness are present in s.37(1) of the 1971 Act and s.16(1) of the 1988 Act. The same questions arise whether the applicant has to satisfy either provision or both.

3. The applicant was born on 2nd August 1959. She served in the Australian Army from 21st January 1977 until 19th July 1983. In or about October 1978, she was fitted with a contraceptive intra-uterine device ("IUD"). She was first married in April 1979. In or about April 1980, the IUD was removed and replaced by another IUD, which in turn was removed on or about 7th December 1980. The presence of both IUDs was accompanied by abdominal pain. In February 1982, this pain was so severe that the applicant was hospitalised for two days. In March 1982, she underwant a laparotomy, which involved the removal of her appendix. She was then advised that she was suffering from salpingitis (inflammation of the lining of the Fallopian tubes). That condition leads to secretion of fluid and pus, closing the tubes. This produces a condition known as hydrosalpinx, or fluid inside the tubes. The result is distended and painful Fallopian tubes. The applicant was advised that her Fallopian tubes were blocked and that she would be unable to conceive normally.

4. The applicant placed her name on a waiting list for an IVF programme prior to the end of her army service. When an opportunity arose to participate in the programme in 1984, she did not take it, because of the breakdown of her marriage. On 18th October 1986, she remarried and returned to the IVF programme. She became a patient of Dr John McBain, a specialist in IVF procedures.

5. The applicant was assessed in late 1987 and early 1988, and was advised to have operative treatment to remove her Fallopian tubes. There were two reasons for this advice. The first was the relief of continuing abdominal pain. The second was the prevention of an ectopic pregnancy, a common result of embryo implants. The tubes were removed in August 1988. The applicant received compensation for this operation and for her time off work.

6. An embryo was introduced into the applicant's uterus in September 1988, but failed to implant. A second attempt was made in November 1988, and was successful. The applicant's son was born on 11th August 1989. She paid costs totalling $3,136.30 in respect of the IVF treatment. It is not disputed that this amount consisted of reasonable charges for the procedures undertaken.

7. The detail of IVF procedures was the subject of some evidence. The steps are as follows. The ovaries are prepared by the use of two drugs which work synergistically to develop a number of pre-ovary follicles. A decision is made, using information from an ultrasound scan and from daily urinary oestrogen assays, as to when would be the most appropriate time to harvest the ova. Under general anaesthetic, an ultrasound probe is introduced through the vagina to permit observation of the ovary and its follicles. An aspiration needle is passed along the top of that ultrasound probe and, with the assistance of an ultrasound video screen, is placed through the top of the vagina, through the cortex of the ovary into the ovarian follices. Negative pressure is then exerted to empty the follicles of their fluid. The fluid is transferred to the laboratory to ascertain whether it contains ova. The ova are exposed to sperm (in this case the sperm of the applicant's husband) in an incubator for twenty-four hours. They are then examined under high powered optics. Those which are fertilised are allowed to continue their development until the next day, when they are re-examined. Those which have fertilised normally and developed normally provide a stock from which some may be transferred to the uterus of the woman. A maximum of three embryos will be transferred at a time, and the remainder are frozen in liquid nitrogen for use in subsequent months, in the event of failure to implant, or if subsequent conceptions are desired. The embryos are placed into the uterus via a catheter, inserted through the cervix, after the cervix has been cleaned. These procedures were carried out in the case of the applicant.

8. Mr Lenczner conceded for the purpose of this application that the salpingitis and hydrosalpinx were injuries caused to the applicant arising out of her employment or in the course of her employment, and that they contributed to her infertility. The respondent contested the applicant's claim only on the two issues to which I have referred, namely whether the IVF programme was medical treatment and, if so, whether it was reasonable in the circumstances. Mr Lenczner and Mr Tobin of counsel, who appeared for the applicant, were agreded that no authority is to be found which would assist me on either of these issues.

9. On the question whether the IVF programme constituted medical treatment, Mr Lenczner submitted that the phrase "medical treatment" in the 1971 Act and in the 1988 Act carried with it the notion of curative or therapeutic treatment. He drew attention to specific provisions, such as that found in s.48 of the 1971 Act, under which specific entitlements are given to compensation for expenditure which is not of a curative nature. His argument was that IVF procedures are not directed towards the repair of the damaged Fallopian tubes, but involve intrusion into a separate part of the body, namely the ovaries, for the purpose of creating embryos outside the body. These embryos might be transferred into the uterus of another woman.

10. I am unable to accept this submission. As it was carried out with respect to the applicant, the IVF treatment is designed to overcome the loss of use of the damaged (and in this case removed) Fallopian tubes. The purpose of Fallopian tubes is to convey ova from the ovaries to the uterus, where they may be fertilised. In the absence of the tubes, the ova are removed from the ovaries and placed in the uterus by other means. To facilitate the process, they are fertilised externally. Nevertheless, the purpose of the process is to perform that which would have been performed by the Fallopian tubes, had they been in good condition. In this respect, the procedure is analogous to a number of other procedures which would be regarded in ordinary language as medical treatment. The by-pass of a blocked artery does not involve repair to the artery itself, but its replacement by another means of carrying blood. The use of a machine for dialysis does not involve the replacement or repair of a damaged kidney, but the performance of its function by artificial means, external to the body. The use of an artificial lung is similar to that of a dialysis machine. The function of breathing is performed artificially and externally to the body, without repair or replacement of the damaged lung. I see no difference in principle between these procedures and that of the transfer of ova from ovaries to uterus by external means, combined with fertilisation on the way. No doubt if ova were removed and fertilised for the purpose of placing them in the uterus of another person, this would not involve medical treatment in the statutory sense to the supplier of the ova. Such a case would raise many issues which are not raised in the present. In my view, the IVF procedure, which is carried out by qualified medical practitioners, is properly to be regarded as medical treatment in relation to the applicant's injury.

11. As to whether the treatment was reasonable in the circumstances, much of the argument was about the onus of proof. Mr Tobin submitted that the respondent carried the onus, at least in an evidential sense, of showing circumstances which might tend to make the decision to have IVF treatment other than reasonable. Mr Lenczner submitted that the applicant could not recover unless she proved that the treatment was reasonable in the circumstances. It is a matter of surprise to me that there is no authority on this question, but for the purposes of this application, I am prepared to accept that the applicant carries the onus of proof.

12. Argument then took place as to what were the circumstances contemplated by s.37(1) of the 1971 Act and s.16(1) of the 1988 Act. Mr Lenczner did not submit that the evidence was such as to show unreasonableness. He did not go so far as to say that it is unreasonable for a married woman aged twenty-nine to conceive naturally, to desire to have a child that is hers and her husband's. Mr Lenczner's argument was that the reasonableness of such a desire must depend on many other circumstances, known to the person in the applicant's position, and that the absence of evidence about these other circumstances rendered it impossible for the Tribunal to hold that the treatment was reasonable in all the circumstances. Factors which Mr Lenczner suggested might need to be taken into account in applications of this kind included not only the age of the person concerned, but her economic circumstances, the stability of her marriage or other relationship, the number of children she already had, the possibility of adoption of children and the extent to which a child born as a result of IVF procedures would have a stable home life, without being moved around too often. It will be seen from this list that, if such factors were to be taken into account, the determination of entitlement to compensation would be very difficult. It would involve the weighing of factors about which there would be great uncertainty, and the making of decisions which depend in large part on moral values. Practical difficulties would arise in determining, for instance, what is an appropriate number of children for a particular family, whether a relationship is likely to endure, what weight should be given to the possibility of adoption of a child from another country if there is a scarcity of children for adoption in Australia and what degree of migration from place to place is appropriate for a child. So many difficulties are involved in a calculation based on such factors, that I cannot believe that the Parliament intended that it should be undertaken. In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical teatment at all, would have been better for a person suffering from particular injury. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others.

13. For these reasons, I am of the view that the IVF procedures carried out in relation to the applicant constituted "medical treatment" for the purposes of s.37(1) of the 1971 Act and s.16(1) of the 1988 Act, and that it was reasonable for the applicant to obtain that treatment in the circumstances. The delegate of the Commissioner for Employees' Compensation was therefore wrong in deciding that the applicant was not entitled to compensation for the IVF treatment which she received. The decision of the Tribunal will be that the decision under review be set aside, and that the applicant be awarded compensation in the sum of $3,136.30.