Fazlic v Milingimbi Community Inc [1982] HCA 3

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Fazlic v Milingimbi Community Inc [1982] HCA 3

ORDER Appeal allowed with costs. Order of the Federal Court set aside and in lieu thereof order: Appeal allowed with costs. Order of the Supreme Court of the Northern Territory set aside and in lieu thereof order that the order of the Workmen's Compensation Tribunal be affirmed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

1982, Feb. 9 Stephen, Mason, Murphy, Aickin and Wilson JJ.

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

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