Western Suburbs Leagues Club v Everill [2001] NSWCA 56 | Case summary

1 PRIESTLEY JA: This appeal raises a question of construction about which there has been a division of opinion in the Compensation Court, exemplified by the decision of McGrath CJ in Hugo v Coles-Myer Ltd (25 July 1989, unreported) and Burke J in Olsen v Our Lady of Loretto Nursing Home (1999) 17 NSWCCR 557. 2 I agree with Handley JA, generally for the reasons given by him, that McGrath CJ's construction should be accepted. In my opinion that construction gives a meaning to s 59(f) of the Workers Compensation Act 1987 which fits better than the rival construction with the words of the provision when understood in their historical and statutory context. 3 I agree with the orders proposed by Handley JA. 4 MEAGHER JA: I agree with Handley JA. 5 HANDLEY JA: This appeal from a decision of Truss CCJ involves the interpretation of s 59(f) of the Workers Compensation Act 1987 (the Act) which is part of a comprehensive definition of medical or related treatment. The paragraph covers "care (other than nursing care) of a worker in the worker's home …". The definition operates for the purposes of s 60 which obliges the employer to pay for the cost of such treatment given to the worker which is reasonably necessary as a result of his or her injury. 6 Section 59 contains in terms an inclusive definition of medical or related treatment, but its settled interpretation and that of its predecessor in s 10(2) of the 1926 Act is that the definition is exhaustive. See Our Lady of Loretto Nursing Home v Olsen (2000) 19 NSWCCR 465 CA, and the cases there cited. Moreover authority in the Compensation Court establishes that the various paragraphs, including para (f), are themselves to be understood in the context of the phrase "medical or related treatment" which is being defined. 7 The worker, who lives near Wollongong, sustained a number of back injuries in the course of her employment. The most significant was on 12 December 1993 and after this she did not resume full duties. She had a fusion at L4-5 on 26 July 1995 and a discogram in July 1997, but her condition has deteriorated. She gave evidence that she is in constant pain and because she is allergic to morphine and codeine her only painkilling medication is Panadol. 8 The worker sought an award from the Compensation Court for the cost of 4 hours domestic assistance a week. Truss CCJ made the following findings of fact. The worker spends 90 percent of her time at home and at all relevant times she has done the ironing, a few articles at a time, the cooking and some dusting. She does the shopping with the assistance of her mother or daughter if available and the daughter hangs out the washing. The worker's husband is a coal miner who leaves home at 5.15 am returning at 4.30 pm, sometimes later depending on union meetings, and he goes to bed early as he is tired. At the date of judgment in December 1999 her 18 year old daughter had just completed the HSC but had enrolled for a 12 months business course in Sydney the following year which would require her to leave home at 6.45 pm returning about 7 pm. 9 Her 16 year old son was still attending school but also played rugby league and did weight training. The worker said that the other members of the family did as much as they could to help by tidying up and keeping the place clean. The Judge was satisfied that the worker was significantly incapacitated and unable to carry out the heavier domestic tasks. She was also satisfied that 4 hours domestic assistance a week was reasonably necessary having regard to her injury. 10 The only issue in the case was whether home help fell within para (f) of the definition of medical or related treatment in s 59. The Judge reviewed the authorities on the section, concluded that housekeeping fell within para (f), and made an award in favour of the worker. 11 The employer appealed as of right asserting that the appeal involved, directly or indirectly, a claim or question relating to more than $20,000 having regard to the present value of future payments under the award over the worker's life expectancy. This approach is supported by authority (see Kenny v Hornberg (1963) 109 CLR 174) and the Court ruled that the appeal was competent. 12 The need of persons, such as this worker, for domestic or housekeeping assistance cannot be questioned, and her entitlement to additional damages to cover the cost would be clear. However the Act does not give injured workers any entitlement to the cost of obtaining domestic or housekeeping assistance as such, and this has encouraged attempts to obtain reimbursement on other grounds. 13 In Pennant Hills Restaurants Pty Limited v Barrell Insurances Pty Limited (1981) 145 CLR 625 (Barrell Insurances), where the injured worker was a paraplegic, the appellant claimed additional damages on the ground that domestic assistance was "nursing" within the equivalent of s 59(e) in the present Act. There could be no dispute as to the worker's need for such assistance, but this Court, over the dissent of Mahoney JA, and the High Court, over the dissent of Stephen J, held that domestic assistance in the form of bed making, cleaning, laundering and cooking for the injured worker was not "nursing". 14 The 1987 Act, passed a few years later, widened the definition of medical and related treatment by including para (f) which allowed for: "(f) Care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity". 15 The Compensation Court has considered the meaning and application of this provision in a number of cases since 1989 with differing results but one thing is quite clear. Although Parliament intended to widen the definition, it stopped short of conferring a right to domestic assistance or housekeeping as such. 16 The first of the cases in the Compensation Court was Hugo v Coles-Myer Ltd (McGrath CJ 25/7/89 unrep). The claim covered work described as home care and work described as housework. The home care took the form of personal assistance in terms of dressing and bathing, getting up and becoming mobile, and the like. The housework on the other hand was found, in the words of McGrath CJ, to be "directed, really, to replacing the applicant in the home as a woman who, as wife and mother, in the family set up, normally provided, to the other members of her family, a clean home, meals and dealt with the matters of providing clean linen, clean clothes and such like activities". 17 The claim for home care was allowed but the claim for housework was rejected. As to the latter, the Judge said: "… whether, or not, it results from the injury is not the point. The question is whether it conforms to the definition of care of a worker in the worker's home directed by a medical practitioner. Having regard to the history of the section, quite apart from the particular words, the whole of the matter really comes under the broad umbrella of treatment. In other words it is treatment accorded to the injured worker, which becomes necessary because of the receipt of employment injury … In broad terms it seems to me that the care provided here is really a replacement of the applicant as a wife and mother, in relation to her family, rather than a treatment accorded to her …". 18 This decision was followed by Neilson CCJ in Watkins v Southern Sydney Area Health Service (12/12/96 unrep). However in Meredith v Barrett & Smith Pathology Pty Limited (21/4/97 unrep) Campbell CJ allowed a claim for household help including vacuum cleaning, bath cleaning, mopping of floors and other heavy cleaning, saying (p 4) that domestic assistance was care of the worker. It seems that he was not referred to the contrary decisions of McGrath CJ and Neilson J. In Magick v Department of Health (20/5/97 unrep) Geraghty CCJ distinguished the decisions of McGrath CJ and Neilson J on their facts. He said of a claim for household help for washing, ironing, vacuuming and the like that "…it is care that is directed towards the treatment and the relief of suffering of the applicant herself. It's not care for her family, or her children, or just for her house but care for her - care which arises because she cannot do those things for herself ". 19 The cases, including other decisions of Burke CCJ, but not the decision of Campbell CJ, were reviewed by Neilson CCJ in Perrott v Lower North Coast Area Health Service (1997) 14 NSW CCR 164. His Honour there rejected a claim under para (f) for lawn mowing and gardening which the worker had been doing before she was injured because they did not involve care of the worker in her own home. 20 The question was again considered in Olsen v Our Lady of Loretto Nursing Home (1999) 17 NSW CCR 557 at 570 by Burke J who said: "… the purpose of the provision of these services is to care for the worker's back and compensate for the consequential limitations on the worker. If the worker usually did the family washing then having it done for her is care of her back. The position is the same in regard to the usual household chores. It is being attended to for her because it avoids unacceptable strain to her back or because her back precludes her from doing it herself. In my view all these types of services are care of the worker in the worker's home irrespective of whether or not someone else has some subsidiary indirect benefit". 21 The decision was varied on appeal ((2000) 19 NSWCCR 465) but this Court did not express any view on the passage cited. 22 The trial Judge was not referred by counsel to any of these authorities and had to reserve her decision. She adopted the reasoning of Burke CCJ in the passage quoted and allowed the claim saying that she was "satisfied that the housekeeping does have a therapeutic effect in that it both assists with the management of the applicant's condition and alleviates the progress thereof ". 23 The injury created need for these services is a necessary, but not a sufficient, condition for the allowance of their cost under para (f). The services must also involve "care of a worker". Barrell Insurances showed that the cost of domestic assistance for an injured worker could not be recovered under the Act as it then stood. Parliament then made additional provision for injured workers, but stopped short of creating a right to domestic assistance or household help as such. There would have been no difficulty in conferring a right to recover the cost of domestic assistance if that had been the intention of Parliament. 24 In these circumstances paragraph (f) should not be interpreted as conferring such a right. The worker who is unable to look after herself either at all, or without suffering unacceptable pain, is entitled to the cost of personal care and that much is clear. On the other hand she will not be entitled to the cost of providing care for others and she will not be entitled to the cost of domestic assistance or household help as such. Questions of fact and degree may arise but this does not justify an application of para (f) which treats it as authorising allowance for household help and domestic assistance as such when this cannot be characterised as care for a worker. 25 Work which cannot be characterised as care for a worker does not become such merely because the injured worker cannot continue to do it without unacceptable pain or the risk of aggravating the injury. As Priestley JA pointed out during argument, that approach would support a higher award under this paragraph for a partially incapacitated worker who could do the work but for the pain and risk of aggravation, than for a totally incapacitated worker who could not do the work at all. 26 The care must be directed by a medical practitioner having regard to the worker's incapacity which that practitioner can assess. There is nothing to suggest that the practitioner needs to consider the scope of the domestic work performed by the worker before the injury or his or her willingness to put up with pain rather than have the work done by other members of the family in their own time, or by others at the family's expense. 27 The four hours a week allowed by the Judge was in terms for "housekeeping" for "the heavier domestic tasks". These were described as cleaning the floors, vacuuming, cleaning the bathroom, windows, skirtings, under the beds and the dusting of high surfaces. In my judgment the work thus described is necessarily outside the meaning of the statutory expression. It may equally be said that there is no evidence that this heavy domestic work was care of the worker. This is established, it seems to me, by the fact that all this work would have to be done in some fashion whether the worker was living in the house or not. In the language of McGrath CJ in Hugo v Coles-Myer Limited none of this work involved care directed to the worker herself. 28 In my judgment therefore the appeal should be allowed. It succeeds on a question of law which was not properly taken or argued by the employer (represented by different counsel) before the trial Judge. Accordingly there should be no order for costs in favour of the successful appellant. NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 48 SR (NSW) 273, 282. 29 I would propose the following orders:

Western Suburbs Leagues Club v Everill

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