FEDERAL COURT OF AUSTRALIA

Heffernan v Comcare [2014] FCAFC 2

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ

Introduction

1    This is an appeal from a decision of a judge of the Court to allow an appeal from the Administrative Appeals Tribunal (the Tribunal) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appeal concerns whether Comcare is liable to cover the costs of an injured Commonwealth employee’s acquisition of, and modifications to, a Toyota Landcruiser four-wheel drive vehicle.

Facts

2    The appellant, Mr Heffernan, was employed at the Australian Nuclear Science and Technology Organisation. In 2005, he was injured, with the consequence that he now suffers chronic back pain. The respondent, Comcare, accepted liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for a number of conditions at different times over the next 18 months. In 2006, Comcare accepted liability for modifying Mr Heffernan’s car, a 1996 Toyota Landcruiser.

3    Three years later, Mr Heffernan purchased a Nissan Patrol four-wheel drive at a cost of $18,000. However, for a number of reasons concerning Mr Heffernan’s height and the nature of his back condition, occupational therapists determined that the Patrol was unsuitable for his use. One such therapist, Ms Wise, identified two alternative vehicles that would be suitable, provided certain specified modifications were made to them.

4    On 6 August 2010, Mr Heffernan submitted a claim to Comcare to cover the cost of purchasing and modifying a Toyota Landcruiser, which was one of the vehicles Ms Wise had identified. On 26 August 2010, Comcare determined that it was not liable to pay for the Landcruiser and modifications.

5    Mr Heffernan sought review of the decision, which Comcare affirmed on 19 October 2010. He then successfully sought review of that affirmation in the Tribunal. Comcare appealed to the Federal Court, and succeeded in persuading the primary judge to set aside the Tribunal’s decision and replace it with Comcare’s original determination that it was not liable. The present appeal challenges the primary judge’s decision.

6    For the reasons that follow the appeal should be dismissed.

Statutory provisions

7    Section 16(1) of the Act provides that Comcare is liable for medical treatment in respect of injury:

Where an employee suffers an injury, Comcare 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 Comcare determines is appropriate to that medical treatment.

8    That provision directs one to the statutory definitions of “injury” and “medical treatment”. The former is found in s 5A(1). Under that provision, “injury” means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

9    Section 4(1) contains a definition of the phrase “medical treatment”; it means

(a)    medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b)    therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

(c)    dental treatment by, or under the supervision of, a legally qualified dentist; or

(d)    therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e)    an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

(f)    the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

(g)    treatment and maintenance as a patient at a hospital; or

(h)    nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or

(i)    any other form of treatment that is prescribed for the purposes of this definition.

10    Paragraphs (f) and (h) of the above definition were the subject of the Tribunal’s decision (in two bodies of reasons) that was the subject of the appeal to the primary judge.

11    Section 39 contains the second possible source of Comcare’s liability. Section 39(1) provides as follows:

Where:

(a)    an employee suffers an injury resulting in an impairment; and

(b)    the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

(c)    any alteration of the employee's place of residence or place of work;

(d)    any modifications of a vehicle or article used by the employee; or

(e)    any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.

12    Section 4(1) contains definitions of the word “impairment” and the phrase “rehabilitation program” as follows:

“impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

“rehabilitation program” includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

13    Paragraph (d) of s 39(1) was the source of Comcare’s responsibility for modifying Mr Heffernan’s earlier 1996 Landcruiser. Mr Heffernan placed no reliance upon s 39(1)(d) for his current claim; he wanted both the cost of acquisition and modification.

14    The nature of the proceedings before the primary judge was defined by s 44(1) of the AAT Act, which provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

15    The matter or controversy before the primary judge was defined by that provision, together with the attempted reliance by the respondent, Mr Heffernan, on other issues to support the decision, as contained in a notice of contention on which he sought to rely under r 33.21 of the Federal Court Rules 2011 (Cth).

Proceedings before the Tribunal

16    In the Tribunal, Mr Heffernan initially argued that Comcare was liable for the cost of the Landcruiser under s 16 of the Act, as medical treatment in relation to a workplace injury. That submission necessitated consideration of the definition of “medical treatment” in s 4 of the Act. The claim was initially pressed on the basis that the vehicle was a “curative apparatus” within para (h) of that definition. At the hearing before the Tribunal, Mr Heffernan, through his experienced counsel, expressly disclaimed any reliance on s 39. Relevantly for present purposes, that disclaimer was in relation to subs (1)(e).

17    As to s 39, the Tribunal stated at [3] of the reasons for decision dated 20 June 2012, being its first body of reasons:

Section 39 of the Act makes Comcare liable to pay the reasonable costs of any modifications to a vehicle used by Mr Heffernan that is reasonably required by him having regard to, among other things, the nature of his impairment. It is common ground however, that s 39 has no application here because it is not possible to modify the vehicle currently owned by Mr Heffernan.

18    That appears to be a reference to subs (1)(d), which concerns modifications to vehicles. In discussion at the hearing between the Tribunal and counsel for Mr Heffernan, there was an express statement that s 39 was not relied upon.

19    The Tribunal reasons of 20 June 2012 dealt with whether the Landcruiser constituted a “curative apparatus” as referred to in para (h) of the definition of “medical treatment” in s 4(1). It decided that the vehicle did not constitute such an apparatus.

20    Of its own motion, in its reasons of 20 June 2012, the Tribunal invited further submissions on whether the cost of acquisition and modification of the vehicle fell within para (f) of the same definition, which concerns supply of “an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance.” The leave was granted in a direction published with the reasons on 20 June 2012. The direction included a provision that the “parties are granted leave to apply for a variation to these directions.”

21    The parties filed submissions simultaneously on 11 July 2012. In the submissions filed for Mr Heffernan, for the first time, it was submitted that the Landcruiser was an aid or appliance within the meaning of s 39(1)(e). The submissions on s 39(1)(e) did not contain any heading; they did not state that the previous clear concession was being withdrawn; and they were self-evidently outside the invitation or leave granted by the Tribunal. No application was made to vary the direction made on 20 June 2012 to widen the scope of the hearing.

22    On 30 August 2012, the Tribunal handed down its second body of reasons and its decision. It decided that Comcare was liable under s 16 to pay the reasonable costs of purchasing a suitable second-hand vehicle and of undertaking relevant modifications to it, less the price or trade-in received for Mr Heffernan’s current vehicle. That conclusion was reached on the basis that the vehicle and modifications constituted an “aid or appliance” similar to a “medical [or] surgical … aid or appliance” within the meaning of para (f) of the definition of “medical treatment” in s 4(1). The Tribunal did not refer to Mr Heffernan’s submissions concerning s 39(1)(e).

23    Comcare then appealed the Tribunal decision to the Federal Court.

Proceedings before the primary judge

24    Mr Heffernan sought leave to file a notice of contention out of time. The two grounds relied upon were in the following terms:

1.    The modified motor vehicle claimed by the Respondent was compensable as an aid or appliance pursuant to section 39(1)(e) of the Safety, Rehabilitation and Compensation Act 1988.

2.    The modified motor vehicle claimed by the Respondent was curative apparatus within paragraph (h) of the definition of medical treatment.

25    The primary judge granted leave to rely on the second ground of the notice of contention, but refused leave to rely on the first. In his reasons, the primary judge set out the passage from the Tribunal’s reasons of 20 June 2012 quoted above, where the Tribunal had stated that “s 39 has no application here because it is not possible to modify the vehicle currently owned by Mr Heffernan.” The primary judge then recorded at [12] of the reasons: “In the face of this, I refused Mr Heffernan leave to rely on the first ground of his notice of contention”. At the hearing before the primary judge, counsel for Mr Heffernan submitted that the Tribunal was bound to deal with the submissions on s 39(1)(e). The primary judge responded to that by saying that they had been sent without leave, and implicitly, that the Tribunal was thus not obliged to address them. These comments made at the hearing did not appear in his Honour’s reasons.

26    The primary judge considered that the Tribunal had not erred in concluding that the modified Landcruiser was not a “curative apparatus”.

27    The primary judge considered that the Tribunal had erred in the conclusion as to para (f) of the definition of “medical treatment” in s 4(1), finding three errors in the approach of the Tribunal. First, the primary judge said that the Tribunal had impermissibly construed the definition in question on a “step-by-step basis”, looking first at the dictionary definitions of the words “aid” and “appliance” in isolation. According to the primary judge, the task was to determine whether the vehicle fell within the entire phrase, “other similar aid or appliance” in the context of the text, “… artificial limb or other artificial substitute or … a medical, surgical or other similar aid or appliance.”

28    Secondly, the primary judge said that the Tribunal had erroneously favoured a construction based on the use and result of the items referred to in para (f), rather than their inherent nature, character or attributes. His Honour put it as follows at [24]:

The words “or other similar aid or appliance” are not referring to items which, when put to a particular use, achieve a result which can be described as similar to the result which a medical or surgical aid or appliance achieves, but to items which have a similar inherent nature, character or attributes to medical or surgical aids or appliances.

29    The correct approach, according to the primary judge, was to focus on the nature, character or attributes of the items in question, with the result that the modified Landcruiser could not qualify as an “other similar aid or appliance” and hence that the supply of that vehicle could not qualify as medical treatment.

30    Thirdly, the Tribunal had erred by failing to have regard to the broader statutory context beyond the definition of “medical treatment” in s 4(1), including ss 16(3) and 39(1).

31    The primary judge did not remit the matter to the Tribunal. Instead, he ordered that the Tribunal’s second decision be set aside and the decision made by Comcare on 19 October 2010 affirmed.

The issues on appeal from the primary judge

32    There are three groups of issues on appeal. The first is the asserted error of the primary judge in not permitting the first ground of the notice of contention before him to be argued: grounds 1 and 2 of the amended notice of appeal (the s 39(1)(e) point).

33    The second is the asserted error of the primary judge in his conclusion, disagreeing with the Tribunal, that the claim as to the acquisition of the vehicle and its modifications could not fall within para (f) of the definition of “medical treatment” in s 4(1): grounds 3, 3A, 4 and 5 of the amended notice of appeal (the para (f) medical treatment point).

34    The third is the asserted error of the primary judge in his finding that there was no legal error in the Tribunal’s conclusion that the modified vehicle was not a “curative apparatus” within para (h) of the definition of “medical treatment” in s 4(1): grounds 6 and 7 of the amended notice of appeal (the para (h) medical treatment point).

The s 39(1)(e) point

35    The submissions of the appellant were that the primary judge erred by failing to recognise that counsel for Mr Heffernan did put the claim and submissions on s 39(1)(e), that they were not dealt with by the Tribunal and that the point was live in the Tribunal and should be allowed to be run on appeal. It was submitted that the primary judge misapprehended the claim when, at [11]-[12] of his reasons, he referred to the passage of the Tribunal’s reasons to which I have referred above at [17]. It was submitted that in those circumstances, this Court should re-exercise the discretion and allow the argument because the issues under the s 39(1)(e) point were similar to those arising under the para (f) medical treatment point, and comprised pure questions of law.

36    The respondent first submitted that the form of para 1 of the notice of contention was inadequate to engage the jurisdiction of the Court. It did not identify an error of law and so could not properly be the subject of leave to be argued. The respondent then submitted that if the paragraph of the notice of contention were construed as implicitly raising the question whether the Tribunal erred in law in failing to deal with the s 39(1)(e) point, there was no such error because the issue was never brought forward properly for the Tribunal’s consideration. The respondent also submitted that if the Tribunal be found to have erred in failing to deal with the s 39(1)(e) point, the issue should not be decided by the Court, but should be remitted to the Tribunal.

37    The submissions of the appellant should be rejected. The brevity of the primary judge’s reasons (set in the context of what was said at the hearing) was conditioned on the assumption that the s 39(1)(e) point was not run below. He was correct in that assumption. Care should be taken not to treat the Tribunal’s proceedings as equivalent to legal proceedings; nevertheless, the Tribunal is entitled and obliged only to deal with issues properly before it, and is obliged to afford procedural fairness. Subsection 25(4A) of the AAT Act provides that the Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues it considers.

38    At the hearing, Mr Heffernan, through his counsel, expressly and clearly disavowed reliance on s 39(1). In its first body of reasons, the Tribunal dealt with the only question propounded. The Tribunal then called for assistance on the para (f) medical treatment point, against the background of the case as previously constructed. The Tribunal invited submissions; in effect, it granted leave to the parties on that question. Conformably with the direction that was made, submissions were served simultaneously. Mr Heffernan’s counsel, however, took it upon himself to address s 39(1)(e) by way of substantive claim. No prior notice was given. No application was made to vary the direction that granted leave to address the para (f) medical treatment point. The matter was not properly before the Tribunal. No opportunity was afforded to Comcare to meet this point. The transcript of argument before the primary judge (at T16-17) makes clear that his Honour did not consider that the matter was properly before the Tribunal and that the Tribunal was not obliged to address the point.

39    The courts have been careful and forceful to identify the great harm in the filing of submissions without, or outside, leave given: see generally, and only by way of example, NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; 219 CLR 90 at [192]; and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at 513-514 [54]-[61]. The prompt and fair despatch of business in the Tribunal requires order and regularity in the provision of evidence and submissions for the Tribunal’s consideration. Nothing obliges the Tribunal to consider arguments sent to it after a hearing, without leave, and of which the other side has had no notice.

40    It is true that there were no reasons given by the Tribunal for why it did not address the point. The question is, however, whether it was obliged to. In circumstances where the point had been raised without leave, in the context of an earlier specific disavowal, it cannot be concluded that the Tribunal was bound in law to deal with the issue. It was not properly before the Tribunal. There was no error of law in the Tribunal in failing to deal with the matter.

41    The submission was put that the Court can find error in the approach of the Tribunal in the absence of a point being taken below. Up to a point that can be accepted. There can be circumstances where the Tribunal can commit legal error in proceeding with a matter as argued by the parties. Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 was an example. In Kuswardana at 195, Bowen CJ said that the conduct of the parties’ case before the Tribunal goes to the Court’s discretion as to the course it will take given the error, rather than whether an error was made. In that case, however, the whole statutory foundation for the application (sourced in an understanding of the Constitution) had been ignored. The section under which deportation had been ordered (s 13 of the Migration Act 1958 (Cth)) was expressed in terms of the immigration power (s 51(xxvii) of the Constitution), not the aliens power (s 51(xix) of the Constitution). In these circumstances, there was a statutory necessity (drawn from the Constitution) to address the question of whether Mr Kuswardana had been absorbed into the Australian community. If he had, he was no longer an immigrant and the section could not reach to him. Here, a claim was put on limited grounds. A case on s 39(1)(e) was expressly eschewed. It was not the subject of any leave to be addressed. It was not before the Tribunal.

42    This is not a matter of formality or form. Comcare was not given an opportunity to deal with the submissions.

43    There was no error in the primary judge not permitting Mr Heffernan to argue the s 39(1)(e) point.

44    As counsel for Comcare accepted during argument on the appeal, Mr Heffernan can always make a claim under s 39(1)(e). It was accepted by Comcare that he is not precluded by these proceedings from doing so.

The para (f) medical treatment point

45    Mr Heffernan submitted that the primary judge erred in criticising the Tribunal for its approach. It was submitted that the primary judge erred in his approach by focusing on the nature and essence of the aid or appliance and by failing to apply a test based on “use and result”. Thus, it was submitted, he should have posed the question whether, regardless of its character, the aid or appliance, if supplied, would have an effect similar to that of a medical or surgical aid. Thus a modified vehicle gives mobility, just as do a walking stick or crutches. A test directed to the inherent nature, character or attributes unnecessarily restricted remedial legislation. It was also submitted that the terms of s 39(1), in particular, subss (1)(d) and (1)(e), did not tend against this construction of the definition of medical treatment.

46    I reject these submissions. The proper approach is to examine the provision in question first by reference to its text and statutory context. No secondary or extrinsic materials were said to be relevant here. The term being defined is “medical treatment”. Each of the paragraphs in the collocation of subjects in paras (a)-(i) refers to medical, surgical, therapeutic or dental treatment and related concepts. Paragraph (f) refers to an artificial limb or a medical or surgical or other similar aid or appliance. It is not narrowing the definition in para (f) to look to an aid or appliance that has a character or nature that is similar to a medical or surgical aid or appliance. Use is not irrelevant to that. The provision does not, however, refer to something that merely produces a result that might be brought about by some medical aid. It refers to an aid or appliance that is similar to a medical or surgical aid or appliance. The subject being defined is a phrase with an ordinary meaning: “medical treatment”. Though the meaning (s 4(1) uses the word “means”) is to be taken from paras (a)-(i), those paragraphs are to be approached bearing in mind and coloured by the normal meaning of the phrase: FAR Bennion, Statutory Interpretation (5th ed, 2008) at 562-3; DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis, 2011) at 247 [6.60]; Eastleigh Borough Council v Betts [1983] 2 AC 613 at 628 (Lord Brightman, with whom Lord Fraser of Tullybelton, Lord Wilberforce, Lord Edmund-Davies and Lord Roskill agreed); British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 at 157 (Lord Griffith, with whom Lord Bridge of Harwich, Lord Fraser of Tullybelton, Lord Lowry and Lord Ackner agreed); Delaney v Staples [1992] 1 AC 687 at 692; Manly Council v Malouf [2004] NSWCA 299; 61 NSWLR 394 at 396-7; MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47; [2005] 4 All ER 107 at [18] (Lord Hoffmann); Oxfordshire County Council v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674 at 708 [82] (Lord Scott of Foscote); and Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 at 157 [17] (Basten JA with whose reasons Allsop P and Handley AJA agreed at 154 [1] and 162 [41], respectively). As a matter of language, set in the context of “medical treatment” as defined in paras (a)-(i), a modified motor vehicle cannot ordinarily be sensibly described as a similar aid or appliance to a medical or surgical aid or appliance. I agree with the conclusion of the primary judge.

47    This construction is reinforced by an appreciation, referred to briefly by the primary judge, of the statutory scheme and structure discussed later in these reasons.

The para (h) medical treatment point

48    The primary judge found no error of law in how the Tribunal resolved the para (h) medical treatment point. The issue arose under the notice of contention filed under r 33.21 of the Federal Court Rules. It was not submitted that the way the issue arose detracted from the requirement, inhering in the nature of the appeal under s 44 of the AAT Act, for there to be a question of law. It is therefore unnecessary to discuss the limits of the notice of contention in a s 44 “appeal”: cf Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29; 200 FCR 464 at 490-491 [120].

49    Thus, despite the form of para 2 of the notice of contention, the essential question for the disposition of the appeal is whether the primary judge was correct in his conclusion as to the absence of legal error in the Tribunal’s approach to the phrase “curative apparatus”.

The statutory and legal context

50    In order to assess the approach of the Tribunal, it is necessary to say something about para (h) of the definition of medical treatment and its statutory and legal context.

51    The statutory structure of a definition of “medical treatment” or a like phrase, and the phrase “curative apparatus” or like phrase, are not novel to the Act. For instance, in s 10(2) of the Workers’ Compensation Act 1926 (NSW) (the 1926 NSW Act), there was a definition of “medical treatment” which was said to “include” (interpreted as “means and includes”) a range of treatments, services and things. Amongst them were paras (b) and (c) that had a similarity in content with paras (f) and (h) of the definition of “medical treatment” in s 4(1) of the Act:

(b)    the provision of skiagrams, crutches, and artificial members, eyes or teeth and other artificial aids and spectacle glasses; and

(c)    any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for him otherwise than as a patient at a hospital; ...

52    Section 59 of the Workers Compensation Act 1987 (NSW) (the 1987 NSW Act) contains definitions for Pt 3 Div 3, which is entitled “Compensation for medical, hospital and rehabilitation expenses etc”. The definition of “medical or related treatment” includes paras (d) and (e) that also have a similarity to paras (f) and (h) of the definition of “medical treatment” in s 4(1) of the Act:

(d)    the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,

(e)    any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment …

53    Also noted, however, should be para (g), which might be seen to have some similarity in purpose to s 39(1) of the Act:

(g)    the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity …

54    Section 26(2)(d) of the Workers Compensation Act 1958 (Vic) (the 1958 Victorian Act) contains a definition of “medical service” that includes the following paras (ii) and (iii) that also have a similarity to paras (f) and (h) of the definition of “medical treatment” in the Act:

(ii)    the provision and the repair adjustment or replacement (as may from time to time become necessary) of skiagrams crutches artificial members eyes or teeth or spectacle glasses or hearing aids including (without limiting the generality of the foregoing) the repair or replacement of crutches artificial members eyes or teeth or spectacle glasses or hearing aids destroyed or damaged at the time of the injury giving rise to the claim;

(iii)    the provision to or for the worker otherwise than as a patient in a hospital of medical or surgical aids to rehabilitation or treatment or assistance for or with respect to his industrial rehabilitation or of curative appliances or apparatus …

55    One can see from these provisions that a degree of harmony in the words and collocation of words exists in the various forms of compensation legislation.

56    In 1979, the New South Wales Court of Appeal dealt with s 10(2)(b) and (c) of the 1926 NSW Act and the meaning of the phrase “curative apparatus” in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 (Thomas). The reasons of Hutley JA (with which Hope JA agreed) were heavily relied on by the appellant. It is necessary, however, to pay close attention to the facts of the case to understand the context and limits of the reasoning of the Court. Reasons for judgment are not statutes – and are not to be construed as such: Comcare v PVYW [2013] HCA 41 at [15]. The injured worker was a spastic paraplegic. As an alternative to total and constant hospital care, her treating specialist (of great repute in the field of spinal injury and treatment) recommended that she could remain at home and be maintained at her current level of health if certain changes were made to her home. One of these changes was the installation of a heated swimming pool; another was the modification of the motor vehicle made available to her. The claims for the pool and the cost of its heating (but not the claim in relation to the vehicle) were made under s 10(2)(c) as a “curative apparatus”.

57    Hutley JA explained the use and purpose of the pool from the evidence at 219 as follows:

The pool is a special hydrotherapy pool, constructed above ground, though attached to the premises. His Honour found that, by reason of the respondent’s special complications over and above those of an ordinary paraplegic, she needed hydrotherapy on an emergency basis from day to day as required. This treatment maintains her state of health and slows, or perhaps prevents, its deterioration.

58    The purpose and use of the pool were as part of the treatment process.

59    The attack made on the pool being “curative” was that to keep an incapacitated person in the same state was not to cure her; and thus, if it were an apparatus, it could not be curative. Hutley JA dealt with this contention (with respect, not surprisingly) in forceful and blunt terms at 219-220:

This is a pettifogging argument – the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.

60    Hutley JA then dealt with the word “apparatus”. It is unnecessary to deal with that question since the Tribunal considered the modified motor vehicle to be an apparatus. No submission was put by Comcare to the contrary. It is worth, however, noting what Hutley JA said at 220:

Of course, all these remarks [in other cases] were made in the course of construing statutes with different objects and in different contexts, and cannot give firm guidance, but they do seem to suggest that an apparatus is a mechanical contrivance or used in connection therewith to achieve a particular purpose, but mere structures such as stairways are not.

61    From Thomas, it can be concluded that in a context where an apparatus is to be used as part of the process of treating the injury or incapacity, “curative” is wide enough to include maintaining or ameliorating a person’s condition, including psychological condition, even if it does not cure it.

62    The State provisions to which I have referred and the decision in Thomas can be taken to be part of the legal context in which the Act was passed in 1988: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408; Newcastle City Council v GIO General Limited [1997] HCA 53; 191 CLR 85 at 112-113.

63    The question of “curative apparatus” arose in this Court in Thiele v Commonwealth of Australia (1990) 22 FCR 342 (Thiele). In that case, Hill J was concerned with the definition of “medical treatment” in s 5(1) of the Act’s predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). Paragraphs (f) and (h) of the definition were similar to paras (f) and (h) in s 4(1). Like Thomas, the case concerned a swimming pool. The injured worker had recurring back pain which was severe and a daily occurrence. It was relieved by analgesics and stronger drugs, including morphine and pethidine. There was evidence from a renowned specialist in spinal medicine (who was also the specialist in Thomas) that the treatment of the applicant’s symptoms of the injury for which the employer was liable was hydrotherapy twice a day at home in a heated pool; that the hydrotherapy would alleviate the applicant’s condition of pain and have a broader effect of restoring his health by strengthening his muscles and desensitising his nervous system so as to relieve the dependency on the drugs. The Tribunal found that, without the hydrotherapy, the applicant’s condition would deteriorate and that he would be less able to cope with pain; and that his condition ruled out the use of public facilities.

64    Hill J first dealt with the question whether the pool was part of the “treatment” within paras (a) and (b) of the definition, in identical terms to paras (a) and (b) in the present definition. He then, at 348-351, turned to the question whether a hydrotherapy swimming pool is a “curative apparatus”, for para (h). The determinative reasoning on this point concerned the word “apparatus”. The pool in Thiele was an in-ground pool attached to the realty and not an apparatus. In that discussion, however, Hill J said the following at 350:

The present par (h) of the definition in s 5(1) is concerned with devices or equipment which may be used in the process of treatment, that is to say, in the curative process. It may not disqualify the item that it is bolted to the floor and has become attached to the realty but in my view the word “apparatus” is not apt to include something which is, like an in-ground swimming pool, a permanent structure.

(emphasis added).

This passage echoes what Hutley JA said about “apparatus” in Thomas set out at [60] above.

65    Hill J was of the view that the apparatus was to be used in the process of treatment. In the next paragraph, he turned to the meaning of “curative” and said the following at 350-351:

Although it is not necessary for present purposes to decide, I am inclined to the view that an item would not properly fall within the concept of a curative apparatus unless the essential character of that item was its use in the curative process. It may, in a case such as the present, where the pool’s specifications are set by a doctor, be possible to argue that the essential character of the pool is curative although, but for the rail needed for access, there would be nothing that would distinguish the pool required by the applicant from any domestic swimming pool.

(emphasis added).

66    Thus, from these two passages, and the reasons of Hutley JA in Thomas, one can see the content of the phrase “curative apparatus” as some device or equipment that may be used in the process of treatment, the device having as its essential or constituent character its use in the treatment or curative process. In each of Thomas and Thiele, if there was an apparatus, it was curative.

67    In 1990, in GC Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 (GC Wood) the Appeal Division of the Supreme Court of Victoria (Young CJ, O’Bryan and Vincent JJ) dealt with the phrase “curative appliance” in s 26 of the 1958 Victorian Act.

68    The respondent was rendered a quadriplegic in a car accident in the course of his employment. He was rendered entirely immobile, and required assistance to perform every bodily function. He required assistance with every aspect of his daily routine. The need for constant attendant care was unarguable. His claim for compensation included a claim for the cost of an electric wheelchair, water chair and shower thermostat. The relevant tribunal found the employer liable for the electric wheelchair, the water chair and for installing a mechanism for controlling the running of hot and cold water in the shower. An appeal was brought.

69    One of the questions of law before the Court was whether the electric wheelchair, the water chair and the method of regulation of shower water were within the definition of “medical service”. Reliance was placed on para (iii) of s 26(2)(d) of the 1958 Victorian Act. O’Bryan J (with whose reasons the Chief Justice and Vincent J agreed) concluded (at 225) that each of the wheelchair and water chair was either a medical aid to rehabilitation or a curative appliance or apparatus. His Honour’s reasons are at 224-5. He first noted that para (ii) (the broad equivalent to para (f) in the present definition), which dealt with provision of prostheses to walk, see, eat and hear, did not deal with mobility (through mechanical means). Then, in the context of considering a “medical aid to rehabilitation”, his Honour noted that the evidence showed that it was medically desirable that the respondent should enjoy mobility by means of an electric wheelchair. His Honour went on at 225:

The word "rehabilitation" comprehends not only restoration to former health (the narrow meaning) but also to restore partially or completely to a better condition: The Oxford English Dictionary (1989), vol. 13. Rehabilitative medicine in our community is not confined to persons who can or will be restored to former health but is available to assist persons whose health would otherwise deteriorate.

By the same process of reasoning I consider that a "curative appliance or apparatus" should not be interpreted narrowly. An appliance or apparatus which will improve the condition of an incapacitated person is "curative" in my opinion. In Thomas, Hutley JA observed, at pp. 219-20: "... the argument was that to keep an incapacitated person in the same state was not to cure him, and an apparatus which did not cure was not curative. This is a pettifogging argument--the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus."

In Thomas the court was concerned with a special hydrotherapy pool. After reviewing the meaning of "apparatus" in several judicial contexts, Hutley JA said, at p. 220: "… they (judicial remarks) do seem to suggest that an apparatus is a mechanical contrivance or used in connection therewith to achieve a particular purpose, but mere structures such as stairways are not."

70    The person in GC Wood was an immobilised quadriplegic. Some mobility was medically desirable as part of preventing deterioration of his health. In that context, O’Bryan J said that an appliance or apparatus that will improve the condition of the person in the sense discussed by Hutley JA in Thomas is a curative apparatus.

71    In 1992, in Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 (Bresmac), the New South Wales Court of Appeal (Priestley, Handley and Sheller JJA) considered para (e) of the definition of “medical or related treatment” in s 59 of the 1987 NSW Act and the phrase “curative apparatus”. The appeal was from a judgment of Judge Manser of the Compensation Court of New South Wales. Whilst Priestley JA set out some of the facts at 330, they are more fully gleaned from the reasons of Manser CCJ. The applicant was a working man who had been rendered a high level complete quadriplegic below C5 spinal level when his car rolled after avoiding a collision with a kangaroo on his way to work. Manser CCJ’s reasons were detailed and eloquent on the subject of the pain and suffering, in particular, in terms of psychological effects of the disablement: the distress, the humiliation, the sense of loss and other human emotions from the profoundly deleterious consequence of being in the quadriplegic state. In order to provide him with transport, the judge found that there was no reasonable alternative to a modified vehicle of a suitable type. He was too tall for taxis and hire cars; and the modification to his existing car was not suitable. The question arose whether the employer was liable for the acquisition and modification of the vehicle as “medical or related treatment”, and in particular, paras (e) and (g) of the definition in s 59. It was also argued that the definition was not exhaustive and the acquisition and modifications of the vehicle were part of medical treatment generally.

72    In reviewing the evidence, Manser CCJ noted at p 54 of the typed reasons that the evidence was that the “provision of [a]…vehicle of appropriate kind was part of the process of providing therapy to the worker”. He continued, “[c]learly, it was important, for therapeutic reasons, that he be not housebound”. Manser CCJ then referred to that part of Hutley JA’s judgment in Thomas at 219-220, set out at [59] above. Returning to the evidence, Manser CCJ said at p 55 of the typed reasons:

It would be a compelling inference from the worker’s evidence that the provision of a motor vehicle would “go beyond merely preventing the deterioration of the applicant’s condition” … .

It is clear from Thomas that ‘curative apparatus’, ie if the provision of an apparatus has a curative function, then the cost of the apparatus is recoverable [sic].

73    In the Court of Appeal, it was argued that the acquisition and modification of the vehicle was medical treatment generally, as well as falling within para (e) of the definition. In relation to the latter, Priestley JA said at 332 (referring first to the argument about medical treatment generally):

As I have said, it is not necessary to decide whether the foregoing argument is correct, because I accept the alternative basis Manser CCJ relied on, that is, that the cost of the vehicle fell within par (e) of the definition of “medical or related treatment”. In Thomas, this Court held that words in par (c) of the definition of “medical treatment” in s 10(2) of the 1926 Act in almost identical terms with those of par (e) of the definition now relevant extended to the cost of an above ground, heated, swimming pool; in G C Wood and Son (Australia) Pty Ltd substantially similar words in the Victorian Act were held to extend to the cost of an electric wheelchair. In each case there was evidence justifying the conclusion that the provision of these items was of therapeutic assistance to the particular worker. It seems to me that in the special circumstances of the present case, the provision of a vehicle falls into the same category.

74    This takes the principle no further than Thomas and GC Wood properly understood in their factual contexts.

75    Each of the persons in GC Wood and Bresmac was a catastrophically injured quadriplegic. In Thomas the person was a spastic paraplegic. In Thiele, the worker suffered severe and constant pain. The swimming (in Thomas and Thiele) and the provision of mobility (in GC Wood and Bresmac) were part of the process of treatment.

76    It is necessary to examine a Tribunal decision concerning the meaning of “curative apparatus” that the senior member here employed in her reasoning.

77    In Re Monk and Comcare (1996) 43 ALD 677 (Monk), the applicant was a hospital assistant who injured her back in compensable circumstances. She underwent eleven operations in seven years, was confined to a wheelchair and suffered from a major depressive disorder. Comcare paid for an electric wheelchair. The applicant requested a motor vehicle to transport her wheelchair. Deputy President McMahon referred to Thiele, Bresmac, and Thomas. In assessing the evidence, the Deputy President said at 683 [33]:

[T]here is overwhelming evidence before me that the modified vehicle would have a therapeutic value in that it would improve the self confidence and mobility of the applicant, that it would lessen the risk of injury by her falling and that it would give her an opportunity to help herself without relying on the support of others. There is evidence before me, which I accept, that these results would flow from the provision of the modified motor vehicle.

78    The Deputy President was of the view that all that was required for the apparatus to be curative, on the authority of Thomas and Thiele (and, implicitly, Bresmac), was that the apparatus have some beneficial effect in improving the self-confidence and mobility of the person, lessen her risk of falling and give her an opportunity to help herself, in that such was therapeutic.

The approach of the Tribunal

79    The Tribunal first, at [9] of its first body of reasons, examined dictionary definitions of “curative” and “apparatus”. The member concluded easily that a vehicle was an “apparatus”; the question was whether it was “curative”. There was no argument that the Tribunal’s view about “apparatus” was wrong.

80    The Tribunal then referred to the major judicial authorities to which I have referred (Thiele, Thomas and Bresmac) and also Monk. The Tribunal also referred to Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678 in which the Tribunal held that an “aid or appliance” or a “curative apparatus” was required to be of a medical or surgical nature and not commercially purchased equipment; and that for an apparatus to be “curative” it must be “remedial” or “rehabilitative” in nature, with a tendency to promote recovery.

81    The Tribunal noted the submission of Comcare that Monk was wrong. The Tribunal recorded the submission of Comcare as follows (being in terms similar to that put to us):

[18]    It contends that it is a distortion of the ordinary meaning of the words “curative apparatus” to suggest that a motor vehicle with nothing more than better seating and suspension can be properly characterised as a curative apparatus. Counsel for Comcare contends that the context in which the term appears is relevant to its scope. Comcare contends the term “curative apparatus” must be read in the context of the sub-definition of “medical treatment (“the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise”) and s 39. The argument is that the Act distinguishes between the liability for medical treatment and the liability for alterations of injured employees’ accommodation and vehicles and the provision of aids and appliances which assist the employee to cope on a daily basis with his or her infirmity. Comcare argues that in Monk, the Tribunal was in error in failing to make this distinction. It argues that the Tribunal should infer the legislature’s intention was that questions of liability for modifications to motor vehicles are to be dealt with and decided by reference to s 39 alone.

82    The Tribunal then recorded the submission of Mr Heffernan (also being in terms similar to those put to us):

[19]    Counsel for Mr Heffernan contends that the term “curative apparatus” appears to have been picked up from the NSW workers compensation legislation. Certainly the term “curative apparatus” was in use in that legislation well before the Safety, Rehabilitation and Compensation Act 1988 (Cth) was enacted. From that foundation, he argues that the approach taken by the NSW Court of Appeal in Ferguson Transformers is highly persuasive and ought be followed in this case. He argues that an apparatus does not have to provide or facilitate a “cure” but that anything that ameliorates the effects of injury is a curative apparatus.

[20]    He also submits that the fact that paragraph (f) under the definition of “medical treatment” in s 4(1) includes matters such as “the supply, replacement or repair” of prostheses and similar aids or appliances” suggests that a wide construction of the term “medical treatment” is required and that it catches things that are not strictly medical in nature but are related to the treatment or amelioration of the injury or condition suffered by the employee. Counsel contends that a modified motor vehicle will reduce the chance of Mr Heffernan’s back getting worse and will also have a positive psychological effect on him. In this contention, he is supported by the psychiatric report of Dr Inglis Howe Synnot who stated that Mr Heffernan was likely to derive psychological benefit from driving such a vehicle (as opposed to a less comfortable vehicle). Further support is to be found in the opinion of Mr Heffernan’s GP which is to the effect that driving such a vehicle would aid in reducing his depression (see report of Dr Malcolm Mitchell 21 July 2010).

83    The Tribunal at [22]-[25] of its reasons drew its conclusions. It is convenient to set out the reasoning in full:

[22]    The Act is remedial legislation and therefore ought be construed beneficially. I therefore accept the analysis expounded in Ferguson Transformers that a “curative apparatus” merely has to have a therapeutic effect, in the sense of delaying physical or psychological deterioration, to fall within paragraph (h) of the definition of “medical treatment” in s 4(1). In my view, the narrow construction placed on the meaning of “curative” in Hart places too great a weight on positive rehabilitation.

[23]    In Bresmac, Priestley JA did not explain why he found that a modified vehicle was “of therapeutic assistance” to the worker in question. It therefore provides little assistance in resolving the question. The “apparatus” in question in Ferguson Transformers was a specially designed hydrotherapy pool. Its purpose was to facilitate beneficial treatment for the plaintiff. Similarly, in Townley, a spa bath that relieved symptoms of spinal degeneration seems obviously to have a therapeutic effect.

[24]    In my view, a modified motor vehicle of the type Mr Heffernan wishes Comcare to pay for is not a “curative apparatus”. A hydrotherapy pool is by definition an instrument of therapy or treatment. A modified vehicle, however, is not; it appears merely to be a conveyance. If the reasoning in Monk is taken to its logical extreme, almost anything pleasurable to an injured worker, such as a wide-screen television, could be regarded as “therapeutic” in the sense of moderating or ameliorating “psychological decay”. In my view, vague evidence of some form of unspecific amelioration of “psychological decay” is insufficient to establish a “therapeutic” effect for the purposes of paragraph (h) of the definition of “medical treatment” in s 4(1). The evidence of the GP and Dr Synott of psychological benefit is, unfortunately, unspecific and nebulous. Although I do not reject it, I do not place great weight on it because of the lack of detail and foundation for the opinion.

[25]    For an apparatus to be regarded as “curative” it must, in my opinion, be inextricably linked to some form of treatment of the worker’s disease or injury or be instrumental in the provision of some form of therapy intended to reduce the pain, discomfort or disability resulting from that disease or injury, whether or not that therapy is rehabilitative. What form of treatment or therapy is provided or facilitated by means of a modified vehicle?

84    The above reasoning reveals the following. The Tribunal applied Thomas, in so far as Hutley JA rejected the need for the apparatus to cure; delaying or preventing physical or psychological deterioration was sufficient. Hart was rejected as too narrow in that respect, in requiring a tendency to promote recovery.

85    The putting to one side of Bresmac was done in the absence of the detailed facts from Manser CCJ’s reasons. That course reveals no legal error, in the light of the acceptance of Thomas.

86    Paragraphs 24 and 25 should be read together. That they were an integrated part of the Tribunal’s reasoning can be seen from the reference in the second sentence of [24] to the hydrotherapy pool (in Thomas) being an “instrument of therapy or treatment”. This is a form of the expression of ideas in [25]: “instrumental in the provision of some form of thereapy”.

87    Nevertheless, there appear to be two strands of ideas in [24] and [25]. First, in [25] and the first three sentences of [24], the Tribunal expresses the view that the apparatus must have a connection (expressed as “inextricable link” or being “instrumental”) with some form of treatment. This is close to the idea expressed by Hill J in Thiele at 350-351 set out at [65] above. I would understand Hill J, when using the phrase “curative process”, to be referring to the form of treatment. This relationship between the apparatus and the curative process or treatment would mean that an apparatus, such as a motor vehicle reasonably modified to ease the effect, lower the risks, or deal with the consequences, of driving, would not be a curative apparatus. This would be unlike the position in Thomas and Thiele, where the medical treatment (hydrotherapy) involved the use of the apparatus. Given the extent of the immobilisation from the quadriplegia in both GC Woods and Bresmac, both these cases can be understood in the same way.

88    The second strand of ideas in [24] and [25] is the evidential analysis. The fifth, sixth and seventh sentences of [24] make it clear that the Tribunal viewed the evidence of therapeutic effect as “unspecific and nebulous” and “insufficient to establish a therapeutic effect” for para (h).

89    Mr Heffernan submitted that this last factual conclusion was predicated upon the first strand of reasoning and should be understood as a finding of a lack of inextricable linkage with treatment. He also submitted that the requirement of an inextricable linkage of the apparatus with treatment or the apparatus being instrumental in some form of therapy was an unnecessary limitation on Thomas. The only requirement was that some ameliorative benefit, physical or psychological, be brought about by the apparatus.

90    Mr Heffernan also submitted that the apparently clear factual finding in [24] as to the lack of evidence of therapeutic benefit was to be contrasted with parts of the second set of reasons delivered two months later, in particular [12], [13] and [26], as follows:

[12]    If Mr Heffernan’s problem was merely that he was too tall to fit into an ordinary motor vehicle, I might accept Comcare’s argument. But it is the combination of his height with his back condition that make driving his Nissan Patrol very uncomfortable. But for his back condition, he might have been able to find a comfortable position in the car notwithstanding his height. His injury has precluded that option.

[13]    In summary, depending on the circumstances, a modified motor vehicle may be considered to be a form of “medical, surgical or other similar aid or appliance” because it could provide a means of mobility otherwise denied to a disabled person just as a walking stick, crutches, prosthesis, wheelchairs or a motorised buggy might do. The essence of such devices is that they are substitutes for something a disabled person physically lacks (such as the use of a limb) or are an adjunct to forms of treatment that are intended to provide direct and positive therapy. I conclude that, in this case, a modified motor vehicle of the type recommended by Ms Wise constitutes “medical treatment”.

…

[26]    The circumstances of this case are that Mr Heffernan has a compensable condition which is aggravated by driving. The unchallenged expert evidence is that his current vehicle is unsuitable and cannot be modified so as to materially reduce his discomfort and the risk of further aggravating the original injury.

91    Neither of the parties took us to any of the evidence before the Tribunal. It is difficult to conclude that the factual findings in [24] of the first reasons can somehow be set to one side. The paragraphs in the second body of reasons do not justify such a course, let alone a conclusion of legal error for the purposes of s 44 of the AAT Act. The factual conclusion of a lack of “therapeutic effect” is one expressed in the language of Thomas as discussed by the Tribunal at [22], and is not a factual conclusion expressed by reference to the need for an inextricable link to some form of treatment or therapy, or a requirement that the apparatus be instrumental in such. This factual conclusion was not shown to be so badly formed as to reveal any error capable of characterisation as legal error, whether jurisdictional or not: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99; Goodwin v Commission of Police [2012] NSWCA 379.

92    That factual finding suffices to conclude the debate about review under s 44 of the AAT Act of the para (h) medical treatment point.

93    If I be wrong about the independence of the factual conclusion in [24] as to the lack of therapeutic effect, and if it is a factual conclusion based upon the propositions in [25] (the first strand of ideas referred to above), then it is necessary to consider whether the expression of opinion as to principle by the Tribunal in [25] contains legal error.

94    For the reasons expressed below, which are informed by Thomas, Thiele, GC Wood and Bresmac in their proper factual contexts, but most importantly considering the text and structure of the Act, whilst I would express the matter somewhat differently, I do not see any operative error in how the Tribunal expressed itself in [25].

95    Part II (ss 14-33) of the Act deals with compensation for injuries, property loss or damage and medical expenses. Section 14 deals with compensation for injuries if resulting in death, incapacity for work or impairment. Section 15 deals with compensation for loss or damage to property. Section 16 deals with compensation in respect of medical expenses. I have earlier set out s 16(1). Section 16(3) is also relevant. It provides as follows:

For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

96    Two things of relevance should be noted from s 16(3). First, if the modified motor vehicle were a curative apparatus, Comcare may well on one reading be liable for the repair of the vehicle (presumably its ongoing repair and maintenance). This strikes one as odd.

97    Secondly, though the word “treatment” in s 16(3) and the phrase “where the treatment involves the supply … of property” may be seen as referable to the defined term, nevertheless as a matter of language it reinforces the notion that the property (the curative apparatus) must be part of the treatment or curative process, as the hydrotherapy tank in Thomas was, and as reflected by what Hill J said in Thiele, at [64]-[65] above.

98    Division 4 of Pt II deals with injuries resulting in impairment. The word “impairment” is defined in s 4(1) as set out above at [12].

99    Sections 24-27 deal with compensation for permanent impairment.

100    Part III deals with rehabilitation. The word “rehabilitation” is not defined, but the phrase “rehabilitation program” is (in s 4(1)), as set out above at [12].

101    Division 3 of Pt III deals with rehabilitation programs. Section 39, set out earlier, is in Div 3 of Pt III. By this provision, an employee with an impairment such as Mr Heffernan may be entitled to compensation for the matters in paras (1)(c)-(e), if they are reasonably required by the employee, having regard to the impairment and the requirements of any rehabilitation program.

102    The terms and structure of the Act distinguish between medical treatment, for which compensation is payable; and compensation for alterations to places, modifications to vehicles or articles, or any aids or appliances during or after a rehabilitation program, or even if no rehabilitation program is possible. It is to be recognised that a “rehabilitation program” may involve medical, dental or psychiatric and hospital services.

103    These parts and divisions of the Act reflect a distinction between medical treatment on the one hand, and rehabilitation and ongoing impairment on the other, which may involve medical services. When medical treatment in relation to an injury ends and rehabilitation (including medical services) commences, may be a difficult and subtle question of fact. Indeed, there may be no clear point of distinction, and the two may overlap. This distinction in the Act, however, and the subject of s 16 being medical treatment in relation to the injury, underpins and supports the proposition put by Hill J in Thiele, that the apparatus is one used in the process of treatment, the apparatus having as an essential characteristic its use in the curative or treatment process. That relationship between the apparatus and the treatment process was clear in Thomas and Thiele. Hydrotherapy was part of the treatment. Given the extent of the quadriplegic immobilisation in GC Woods and Bresmac the same factual conclusion can be accepted.

104    It will not always be an easy factual distinction or conclusion to make. Is the apparatus one that is used in the curative process or process of treatment, having as an essential characteristic its use in that process; is it an aid or appliance under s 39(1)(e) that is reasonably required by the employee having regard to his or her impairment and to any rehabilitation program?

105    The questions posed assume, as the structure of the Act discloses, a distinction between liability for medical treatment and liability for compensation for matters beyond medical treatment that are related to the ongoing impairment, and any rehabilitation. The distinction will not, in any given circumstances, be a sharp one, nor easy to identify; and there may be, in any given circumstances, an overlap. Nevertheless, medical treatment for an injury will often be different from providing things such as those listed in s 39(1)(c)-(e) that deal with the reasonable requirements of an employee brought about by her or his impairment.

106    The Tribunal here found that there was insufficient evidence of a therapeutic effect. On one view, it may also have found that the vehicle was not an “instrument of therapy or treatment”; in other words, that it was not part of the curative or therapeutic process, as medical treatment. Both those findings were factual findings. Neither has been shown to involve legal error.

107    The requirement that the curative apparatus be part of the process of treatment or part of the curative process is not to limit the rights of the injured employee. The words of s 39 appear ample to provide for what is reasonably required to deal with the employee’s needs from the impairment. This is reinforced when one recognises that the phrase “curative apparatus” takes its colour from being part of a definition of “medical treatment”.

Conclusion

108    The appeal should be dismissed with costs. If Mr Heffernan has a claim for an aid or appliance to deal with his impairment, such claim may be made under s 39(1)(d) or (e).

Associate:

Dated:    3 February 2014

REASONS FOR JUDGMENT

JACOBSON J

109    I agree that the appeal must be dismissed with costs for the reasons given by the Chief Justice and Katzmann J.

Associate:

Dated:    3 February 2014

REASONS FOR JUDGMENT

KATZMANN j:

110    I respectfully agree with the Chief Justice that the appeal must be dismissed. In large part I also agree with his Honour’s reasons. The qualification concerns the question of whether the primary judge erred in not permitting Mr Heffernan to argue the s 39(1)(e) point, raised by ground 1 of the notice of contention. On this subject I would prefer to express my reasons a little differently.

111    The rules require that any notice of contention be filed within 21 days of service of the notice of appeal: Federal Court Rules 2011 (Cth) (r 33.21). In this case the notice of contention was filed nearly two months after the statutory period had elapsed. The court had a discretion to extend the time (r 1.39). His Honour made no order which in terms extended the time. Rather, he treated the matter as requiring the leave of the court and refused Mr Heffernan leave to rely on the first ground but granted him leave on the second.

112    His Honour’s reasons in relation to the first ground were brief. In short, he noted the observation by the Tribunal that it was common ground that s 39 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) was inapplicable as Mr Heffernan’s current vehicle could not be modified and said that “in the face of this” he would refuse him leave to rely on the first ground. In any event, as Mr Heffernan acknowledged, the only way this decision could be disturbed on appeal is if it was affected by an error of the kind referred to in House v R (1936) 55 CLR 499 (“House v R”) and this Court was prepared to exercise its discretion differently.

113    Mr Heffernan accepted that at the hearing in the Tribunal his counsel had not relied on s 39 of the SRC Act. But he pointed to the fact that in written submissions after the hearing had concluded he had argued “in the alternative” that:

[T]he provision of a modified car is provision of an aid or appliance within the meaning of s 39(1)(e). The section provides for the supply of any aids or appliances and the repair or replacement of such appliances.

114    This argument was added, without leave, to submissions the Tribunal had called for on another question (whether a modified motor vehicle could fall within para (f) of the definition of “medical treatment” in s 4(1)).

115    In this appeal Mr Heffernan argued that the primary judge erred by mistaking the subject matter of this ground of contention. The foundation for this argument was his Honour’s reliance on the Tribunal’s observation that it was “common ground … that s 39 has no application here because it is not possible to modify the vehicle currently owned by Mr Heffernan”. Yet, modifications of a vehicle were caught by s 39(1)(d). The point raised by ground 1 of the notice of contention was whether a car as modified was compensable as an aid or appliance within s 39(1)(e). Mr Heffernan argued that the Tribunal erred in law in failing to consider the alternative argument and in failing to provide any reasons for not doing so.

116    I accept that if the primary judge did err as alleged, then that would be an error of the kind referred to in House v R that might justify appellate intervention. But I am not persuaded that he did. In referring to the Tribunal’s remark, the primary judge did not mistake the nature of the concession. During the hearing in the Tribunal, in answer to a direct question, Mr Heffernan’s counsel told the Tribunal that he was not relying on s 39. When Comcare’s counsel stated that “the applicant is not pressing that a motor vehicle is an aid or appliance under s 39”, Mr Heffernan’s counsel did not demur. It seems likely that Mr Heffernan’s legal advisors assumed that s 39 was inapplicable for the reason the Tribunal gave and overlooked the possibility that the modified motor vehicle might fall within s 39(1)(e). Although no explanation was ever given for the change in approach taken in the written submissions, it would seem that the possibility only occurred to counsel at the time he was preparing them.

117    In any case, I am unpersuaded that if this Court were to exercise the discretion for itself it should take a different approach.

118    I agree with the Chief Justice that the Tribunal was entitled to ignore the submission and was not obliged to provide reasons for doing so. The submission was made after the hearing had concluded and after Mr Heffernan had learned that he had failed on the sole ground upon which the case had been fought. True it is that he was invited to make a further submission but the alternative submission was outside the terms of the invitation. The case was conducted on the basis of a concession that s 39 (not just s 39(1)(d)) had no application. Leave to withdraw the concession had not been sought, let alone given. The submission was therefore irrelevant. It did not address an issue in the proceeding. It was entirely gratuitous. No error of law arises from the Tribunal’s failure to consider it. There can be no denial of procedural fairness in these circumstances. As McHugh J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [29], “[i]n so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing”. In this case Mr Heffernan’s right to be heard after the hearing was limited to the question posed by the Tribunal. That right was afforded to him.

119    This case should therefore be treated on the basis that the point raised by ground 1 of the notice of contention had been disavowed before the Tribunal. The general principle is that a party is bound by the way it conducted its case at trial. In Coulton v Holcombe (1986) 162 CLR 1 at 7 the plurality noted that:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

120    In exceptional cases where it is expedient to do so in the interests of justice a party may be able to raise on appeal an issue that was not raised at first instance. See, for example, O’Brien v Komesaroff (1982) 150 CLR 310; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38]. This is not such a case.

121    Mr Heffernan argued that leave should be granted because the issues involved in a consideration of the application of s 39(1)(e) were substantially the same as the issues the Tribunal had considered, the facts were incontrovertibly established, there was no prejudice to Comcare, and the point involved a pure question of statutory construction.

122    Before the primary judge Comcare submitted that it had been denied the opportunity to cross-examine witnesses and make submissions about issues that are peculiar to s 39. In the appeal to the Full Court, however, Comcare appeared to retreat from this position, arguing only that it was prejudiced because it had not had the chance to make submissions on the point to the Tribunal. It is doubtful whether this lost opportunity is of any moment. Comcare made submissions to this Court. It did not suggest that it was deprived of any advantage by not being able to put the same arguments to the Tribunal and it is difficult to see it. Even so, I am unable to accept Mr Heffernan’s argument.

123    First, the point as formulated in the notice of contention (extracted at [24] of the Chief Justice’s reasons) did not merely raise a question of statutory construction. It raised mixed questions of fact and law. While the Court may make findings of fact in certain circumstances (see s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”)), it was not asked to do so and Mr Heffernan accepted that it could not resolve the factual questions. Quite apart from anything else, the evidence given in the Tribunal was not included in the appeal books. Thus, even if Mr Heffernan’s argument prevailed, the case would have to be remitted to the Tribunal to decide those questions.

124    Secondly, the legal issues might be similar but they are not identical. For example, s 39(1)(e) imposes a liability on Comcare to pay compensation only where the aid or appliance is “reasonably required”. There is no such qualification with respect to medical treatment except in relation to consultations, examinations, prescriptions or other services connected with the supply, replacement or repair of property used by the employee: see s 16 of the SRC Act. Whether an item is an aid or appliance similar to a medical or surgical aid or appliance within para (f) of the definition of “medical treatment” in s 4 of the SRC Act is a different question to whether it is an aid or appliance within the meaning of s 39(1)(e).

125    Thirdly, this is not merely a case where the point was not raised below. Here, it was expressly eschewed. While that circumstance may not prevent a party from arguing the point on appeal, it does go to the exercise of the Court’s discretion: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195.

126    Fourthly and not insignificantly, Comcare accepted that Mr Heffernan is entitled to make a fresh claim for the cost of acquiring a modified vehicle based on s 39(1)(e) and that the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 would not preclude him from doing so. If the claim is a good one, he may be able to persuade Comcare to accept it. If he fails to persuade Comcare, he has his rights to review in the Tribunal.

127    In all these circumstances, if, contrary to the view I have reached, the primary judge fell into appealable error in refusing leave, I would not regard it as expedient in the interests of justice to allow Mr Heffernan to agitate the s 39(1)(e) point in the appeal.

Associate:

Dated:    3 February 2014