Reported Decision : (2002) 23 NSWCCR 197 Compensation Court of New South Wales CITATION : McWilliams v Rachel Forster Hospital for Women & Children [2002] NSWCC 22 Rosemary A McWilliams PARTIES : v Rachel Forster Hospital for Women & Children MATTER NUMBER(S) : 49107 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- "curative apparatus" LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/08/01, 21/08/01, 31/01/02, 01/02/02 EX TEMPORE JUDGMENT DATE : 02/01/2002 FOR APPLICANT: Mr G Niven instructed by Kingston Swift appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Perry instructed by Hunt & Hunt appeared for the respondent. JUDGMENT: 1. The current proceedings were commenced by application for determination filed on 10 October 2000. The claim as it now stands is for the expense under s 60 of the Workers Compensation Act of the installation of a hydrotherapy pool as a curative apparatus at the home of the worker together with the cost of heating of the hydrotherapy pool in the total sum of $27,068.95. The applicant also claims lump sum compensation under s 16 of the former Act for 25 per cent loss of efficient use of each of her legs or the greater part thereof. 2. The applicant's original injury was on 21 September 1961. That was an injury to the back when the applicant was training as a nurse and fell down a flight of stairs. Immediately after the fall the applicant was treated in hospital at the Rachel Forster Hospital which was the place where she was then employed. She underwent a manipulation of her back on 12 November 1961 and then had 10 days' bed rest. Her back problems did not cease. On 27 April 1962 she was admitted to St Vincent's Hospital where a myelogram was performed but is not reported as showing any abnormality. However, some eight years later on 28 January 1970 the applicant underwent a laminectomy at St Vincent's Hospital Darlinghurst under the hands of Dr Kevin Bleasel. On 8 November 1974 Dr Bleasel performed spinal fusion in the lower lumbar spine and probably implanted a battery-operated bone stimulator. On 28 January 1975 further surgery was carried out to free the nerve roots in the applicant's lower back at St Vincent's Hospital. On 7 May 1975 there was further surgery involved in removing the implanted bone stimulator. The applicant has not had any surgery since but had numerous hospital admissions between 1975 and 1984. 3. The applicant is now largely confined to a wheelchair. It seems fairly clear to me that the major cause of the applicant's current problem is the after-effects of the various surgical procedures carried out on her low back. MRI scan of 9 June 2000 shows epidural fibrosis on both the right and left sides of the applicant's spinal cord which might involve nerve roots. It is clear that the cauda equina is also involved in the epidural fibrosis. It appears to me from other evidence that that epidural fibrosis follows upon arachnoiditis clearly caused by the repeated surgical procedures on the applicant's low back. The surgery led to her arachnoiditis, the arachnoiditis has led to the fibrosis. The applicant has been at all material times in receipt of voluntary payments of compensation from the respondent, a period now of almost 40 years. This is not the first litigation between the parties. 4. There were proceedings commenced in 1998 which came on for hearing before her Honour Judge Truss on 4 November 1999. The claim then made was for a motorised scooter costing $2,969.90 and for physiotherapy treatment provided to the applicant in Dubbo between 21 April 1999 and 30 June 1999. Her Honour ordered that the respondent pay for those items claimed by the worker. It can be seen that the current proceedings were commenced some 11 months later. Whilst these proceedings were part-heard before me the worker commenced further proceedings in matter number 48567 of 2001. That matter was listed for hearing before his Honour Judge Walker at Dubbo some time in 2001 after I completed my sittings at that place. His Honour gave judgment on 12 December 2001. The claim agitated before his Honour Judge Walker was for the care of the worker in her home directed by a medical practitioner. 5. It appears that there was some urgency about that matter because of the need of the applicant to maintain the care which she had previously enjoyed. However, it has not and never has been adequately explained to me as why the claim that was part-heard before me was not amended to include the claim for care. In his Honour's reasons for judgment his Honour said this: I was concerned at the commencement of this case to be informed that my learned colleague his Honour Judge Neilson was reserved in judgment of another s 60 claim by the worker relating to Mrs McWilliams' swimming pool. I was advised that Judge Neilson's judgment might be some time because he is awaiting a decision of the Court of Appeal on the point in question. His Honour clearly misunderstood the status of the current matter. 6. The hearing of this matter commenced before me at Dubbo on 20 August 2001 and continued on the following day 21 August 2001. On that day I granted the applicant an adjournment to call further evidence in Sydney. During the course of the hearing before me it was pointed out that there were a number of problems in the evidence that had been adduced and what evidence that ought to have been adduced. I stood the matter over for further hearing before me on 4 December 2001 which was one of my part-heard weeks. I eschewed giving the matter an earlier hearing date because I was aware that the Court of Appeal was to hear an appeal from the decision of his Honour Judge Armitage in Harbison v Harbison in which the Court of Appeal would be comprised of five judges as it was necessary to reconsider earlier decisions of the Court of Appeal on a proper interpretation of the definition of "medical treatment" and in particular observations that he had previously made on the meaning of "curative apparatus". 7. However, that was not to be the case. The appeal in Harbison v Harbison was dealt with by consent of the parties without any determination by the Court of Appeal. Although the matter was for hearing before me on 4 December 2001 the applicant moved by notice filed in court on 3 December 2001 to vacate that hearing date because the applicant was again not ready to proceed not being able to call an appropriate medical practitioner on 4 December and not having taken any adequate measures to procure the medical practitioner's attendance. Ad misericordiam, I granted the worker the adjournment until yesterday and the case has been completed this day. 8. It can be seen therefore that I had not reserved judgment on this matter some time prior to the judgment given by his Honour Judge Walker nor was I leisurely awaiting the outcome of a decision of the Court of Appeal. His Honour Judge Walker indicates that he was informed that that was the position but both Mr Niven who appeared for the worker before me and Mr Perry who appeared for the employer before me, both of whom appeared before his Honour Judge Walker, deny either of them in any way misled his Honour. Some error has obviously occurred somehow. How it occurred is not for me to say. 9. It is perhaps more convenient to deal with the applicant's claim is under s 16 of the former Act before turning to the claim under s 60 of the present Act. As I have said, the applicant is largely confined to a wheelchair and has extremely limited ability to ambulate. The claim is only for 25 per cent loss of efficient use of each of her legs. If one accepts merely the symptoms of which the applicant complains she has lost most of the efficient use of her legs. Nevertheless, the assessments of the loss of efficient use of the applicant's legs is much smaller. The late Dr Ian Bryan assessed a 15 per cent loss of efficient use of each of the applicant's lower limbs. Dr James Bodel has diagnosed a 15 per cent loss of efficient use of the applicant's left leg as a whole but does not make any comment as to whether there is the loss of efficient use of the right leg or not. The treating surgeon, Dr Kevin Bleasel, has diagnosed a 25 per cent loss of efficient use of each of the applicant's legs as a whole. 10. The applicant's credit is unimpugned and her description of her disability is unimpugned and appears to have been accepted by most of the medical practitioners. In those circumstances, I have no hesitation in accepting that the applicant does have a 25 per cent loss of efficient use of each of her legs as a whole. Accordingly, the applicant is entitled to awards under s 16 of the former Act for $5,500 for 25 loss of efficient use of the left leg or the greater part thereof and for $5,500 for 25 per cent loss of efficient use of the left leg or the greater part thereof. 11. I turn now to the applicant's claim in respect of the hydrotherapy pool. It is true that the applicant's entitlement to hospital, medical and like expenses is governed by s 60 of the Workers Compensation Act 1987. That was agreed between the parties before her Honour Judge Truss and was recited in her Honour's reasons for judgment of 4 November 1999. However, it must be borne in mind that by reason of Sch 6 Pt 5 cl 3 of the Workers Compensation Act 1987 nothing is payable under s 60 in respect of an injury occurring before 30 June 1987 which was not compensible under the 1926 Act. It is important to note, for example, that the definition of medical or related treatment in s 59 of the 1987 Act includes the following: (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 - 12. The same provision does not appear in the definition of "medical treatment" in s 10 of the Workers Compensation Act 1926. It can therefore be seen that the applicant must establish that the hydrotherapy pool in respect of which compensation is claimed is "curative apparatus" within par (e) of the definition of "medical or related treatment" in s 59 of the 1987 Act which is the same as the definition of "medical treatment" in par (c) of s 10(2) of the 1926 Act. 13. The hydrotherapy pool is made of fibreglass. It has been set in concrete and set into the ground of the land upon which the worker's place of abode is situated. A "pool house" has been built around the hydrotherapy pool and forms part of the total dwelling house of the applicant. In other words, the hydrotherapy pool is planted in the soil and part of the dwelling house of the worker and is a fixture in the land upon which the dwelling house stands. 14. A claim in respect of a hydrotherapy pool was considered by the Court of Appeal in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216. The leading judgment was given by Hutley JA with whom Hope JA agreed. There was in the initial claim before his Honour Judge McGrath a claim for the cost of structural alterations to the worker's house, the cost of the installation of an additional bathroom with special shower and toilet facilities and cost of alterations to the kitchens in that worker's dwelling house. As to those claims, Hutley J A said at 219: It was not in dispute that the respondent could not be ordered to pay for items (c), (d) and (g) [the items I have just enumerated] unless medical treatment was at large. By no stretch of legal imagination could they be brought within the items listed in the definition of "medical treatment" in s 10(2). The appeal in respect of these items should be allowed. 15. His Honour then dealt with whether the hydrotherapy pool could be regarded as therapeutic and I will address that issue later. His Honour went on to say at 220: The question whether it is an apparatus is more arguable. If this had been a pool constructed of concrete or masonry or sunk in the ground so as to become an undetachable part of the realty I would have had difficulty in seeing how it could be an apparatus. 16. His Honour then went on to discuss a number of cases relating to the meaning of "apparatus" in other statutory contexts. His Honour went on to say at 220D: Of course, all of these remarks 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. The pump and heating installation of the pool are clearly an apparatus on this approach and the pool itself, being apparently dismountable, I am not prepared to say is not an apparatus. The apparatus can only have its curative operation, if the water in the pool is heated; in other words, it is only a curative apparatus when the heating installation is producing hot water for the pool. On this basis, the provision of heating oil is essential to provision of a curative apparatus. 17. Unfortunately, we have in the current case a pool which has been sunk into the ground and set therein in concrete. It clearly has become part of the realty. Mr Justice Hutley could not see how such a fixture could be "apparatus" and I must say I am unable to see it otherwise. However, there are some items, as his Honour pointed out, which can be separated from the realty and surely are apparatus. In my view, those items are the heater which is valued at $2,000, what the evidence discloses to be the "Camden Kit" which appears to comprise the filter and pump unit for the pool and the salt chlorinator. There is a second pump being a pump to pump water from a water-tank to the pool house the cost of which was $350. The total of those three items is $4,025. 18. The argument eventually put to me was that there was one further item which was compensible and that was a special water-tank which was used in connection with the hydrotherapy pool in its pool-house. The applicant's dwelling house has separate tanks which service the dwelling house generally. This tank services only the hydrotherapy pool in the pool-house. The hydrotherapy pool is heated to a temperature disclosed to be either 34 degrees or 35 degrees which assists the worker in using the hydrotherapy pool for her floating exercises. Because of the heat to which the pool is heated there is much evaporation and therefore a need for a large water supply for the hydrotherapy pool. This special tank is no small affair. It is made of concrete and was constructed on site. Ground was levelled on which it could be placed and evened out with sand. Concrete was then sprayed around a wire mesh to form the tank. In situ the tank is some two metres high and three metres in diameter and is estimated to weigh between one tonne and one and 1/2 tonnes. When full of water, which is the purpose of a water-tank, the water-tank weighs some 30 tonnes. 19. The tank is filled from water collected on the roof of the dwelling house. For that purpose a pipe leads from the guttering of the dwelling house down the side of the dwelling house and then underground for some short distance to the water-tank and then ascends the side of the water-tank so that it can pour water into the top of the water tank. It is argued that this item is not a fixture on the land but a chattel. 20. For a recent exposition of the law of fixtures I have been referred to the decision of Conti J in National Australia Bank Limited v Blacker (2000) 179 ALR 97. I must say that the utility of his Honour's judgment is marred by an egregious misquotation of Professor Butt's Land Law, 3rd ed, 1996. His Honour has misquoted the Latin maxim quicquid plantatur solo, solo cedit as quicquid plantatus solo, solo credit. I have had the utility of consulting my tipstaff's copy of Professor Butt's work and he clearly correctly quotes the Latin maxim. It appears that the misquotation must be visited at the door of his Honour Judge Conti or a member of his staff. 21. In discussing the purpose of annexation his Honour sets out a number of principles in par [13]. I will recite each of those paragraphs without the supporting authority and consider their application to the present case. The first purpose of annexation is whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached. Here the purpose of the tank was for the better enjoyment of the hydrotherapy pool which is in fact part of the realty. In other words, the reason for putting the tank there is because of the nature of the dwelling house and its improvements. The next purpose of annexation is the nature of the property the subject of the affixation. Here we are dealing with a country property used primarily as the dwelling place of the applicant and her husband. That dwelling house has been improved by the addition of the indoor pool which is serviced by this special tank. 22. The next purpose of annexation is whether the item was to be in a position either permanently or temporarily. Here it appears to me that the item is there in position indefinitely which authorities under the Workers Compensation Act make clear means permanently. There is no suggestion that the tank was to be taken away from time to time or, for example, that the applicant would take it with her on holiday. 23. The final purpose of annexation is the function to be served by the annexation of the item. In that regard his Honour referred to a case in which printing presses were secured to a concrete foundation by nuts and bolts in order not to fix them to the soil but merely to keep them steady whilst they were in operation. Here the placing of the tank on the land was to service the hydrotherapy pool which is a fixture. On my consideration of each of the tests or general rules about the purpose of annexation all point in the tank being a structure. Conti J also set out a number of rules for determining the degree of affixation in par [14]. I again turn to each of those. The first principle is whether removal would cause damage to the land or buildings to which the item is attached. If the tank were removed it would probably be necessary to remove some piping leading to it. If all the piping leading to it were removed it is clear that that length of the piping that is underneath the earth would need to be dug up and that length of piping down the side of the dwelling house would have to be removed. 24. The next principle is the mode and structure of annexation. Here we have a item which is resting on its own weight but is extremely large, extremely heavy and would require a crane to remove it. 25. The next principle is whether removal would destroy or damage the attached item of property. Here it would not. 26. The next consideration is whether the cost of renewal would exceed the value of the attached property. The cost of renewal would seem to be, according to Exhibit H, $4565. The tank itself cost to erect $3000. However, that was some five and 1/2 years ago. Nothing much, in my view, turns on that particular test but another item to consider is the cost of the removal of the thing alleged to be the chattel. Clearly, if the applicant wished to move the tank with her if she moved her place of abode, she would require not a pantechnicon but a crane and a lorry; the crane to lift the item after the piping had been removed and put it on the lorry, the lorry then to take it to the place where it was now sought to implant it and then the crane again to remove the tank from the back of the lorry and place it in a suitable place which no doubt would have to be specially prepared to take it. 27. In my view, not only in consideration of the law but common sense indicates that this large concrete water-tank is a fixture and I so find. Accordingly, it appears to me that only three items are compensible under s 60, limited of course to what is recoverable under s 10. Those are the heater, the "Camden Kit" and the pump amounting to $4025. 28. The remaining issue is whether those items which can probably seen to be "apparatus" can be categorised as curative. This argument was indeed addressed by Mr Justice Hutley in Thomas's case and is a dictum which I have cited many times. For example, one need only consider my remarks about it in Woollahra Council v Beck (1996) 14 NSWCCR 179 at 185B. In Thomas's case Hutley J A said at 219G that two attacks were made on the provision of the special hydrotherapy pool; the first that it was not curative and the second, it was not apparatus. I have approached the matter the other way round. His Honour continued: As to the first, 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. 29. Here there is no doubt that the applicant had recommended to her hydrotherapy. After her move to Dubbo she first undertook hydrotherapy at the Fairfield school under the guidance of a physiotherapist. The applicant went every second day for hydrotherapy at the school pool. When that school pool no longer was available to the applicant, she started undergoing hydrotherapy at a new hydrotherapy pool at the Lourdes Hospital. The applicant did so without charge until 1995 when the Hospital stated that she would be charged $2 for each use of the hydrotherapy pool. In a letter of 2 June 1995 addressed to the applicant by the respondent's insurer the respondent's insurer confirmed that it would meet reasonable expenses arising from the worker's attendance at the hydrotherapy pool. The applicant and her husband however did not persist in going to the hydrotherapy pool but rather they built the hydrotherapy pool on their own property and enclosed it in a pool-house attached to the worker's place of abode. 30. It can be seen therefore that the applicant was undergoing hydrotherapy for some time prior to the construction of this hydrotherapy pool and a document, MFI 7, which the parties agreed that I should have recourse to as an aide-memoire indicates that the cost of hydrotherapy at the Lourdes Hospital on a daily basis, allowing for appropriate mileage, would have been $113.96 per week or $5925.92 per annum. 31. It appears that after the construction of her own hydrotherapy pool the applicant commenced doing exercises within the pool as well as floating. However, the applicant stopped doing physical exercises in the pool, as distinct from floating, in approximately 1999. Since that time what she does in the pool is float in very high temperature water. That gives her a sense of weightlessness, takes pressure of her musculoskeletal system and the warmth allows the applicant to stretch. 32. Both the worker's evidence and the expert evidence of Dr Bleasel is that that process enables the applicant to reduce the incidence of muscle spasm. Without the hydrotherapy there is increased muscle spasm and an increased need to take Valium. The applicant takes regular doses of morphine on a slow-relief basis and the evidence of Dr Bleasel is that the use of Valium potentiates the morphine. However, large doses of Valium have their own side-effects which the applicant ought avoid if she can. In other words, the alternative to the hydrotherapy which the applicant undergoes in her own pool is increased doses of Valium which would have unfortunate side-effects for the applicant. Although the evidence is somewhat scant on this issue, clearly the process of undergoing the hydrotherapy would be of psychological assistance to the applicant in giving her something regular to do each day other than to lay in bed or to sit in a wheelchair. 33. I have no hesitation in accepting that the current regime both maintains the applicant in her current state of health and prevents deterioration and furthermore prevents greater dependence on prescribed medication which could cause a deterioration in her condition. According to Mr Justice Hutley that is sufficient to make this hydrotherapy curative apparatus and I so find. I have inquired of the parties if further reasons for judgment are required and I am told that none is so required. I ought add that I was going to make some comments about the question of costs but the parties have already reached agreement on costs so it is not necessary for me to make any comments thereon. 34. I make an award for the applicant for $5500 for 25 per cent loss of efficient use of the applicant's right leg or the greater part thereof pursuant to s 16 of the former Act as preserved; I make an award for the applicant for $5500 for 25 per cent loss of efficient use of the left leg or greater part thereof pursuant to s 16 of the former Act as preserved. 35. I order the respondent to pay to the applicant $4025 pursuant to s 60 for certain aspects of her hydrotherapy pool which are curative apparatus, I order the respondent to pay interest on the sums awarded at the rate of 10 per cent per annum from 10 July 2000 to date. By consent, I order the respondent pay 50 per cent of the applicant's costs to be agreed or assessed. Mr G Niven instructed by Kingston Swift appeared for the applicant. Mr P Perry instructed by Hunt & Hunt appeared for the respondent. 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