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The New South Wales Court of Appeal has delivered an important workers compensation decision in Bishop v Qantas Airways Ltd [2026] NSWCA 93 (“Bishop”), clarifying the circumstances in which an employer remains liable for the cost of treatment involving medical devices that are not included on the Commonwealth Prostheses List.

The decision confirms that the absence of a prosthesis from a regulatory list does not automatically relieve an employer or insurer of liability for reasonably necessary treatment. Unless a valid statutory instrument clearly fixes a maximum amount for that treatment, an employer remains liable under the ordinary provisions of the Workers Compensation Act 1987 (NSW) (“the Act”).

The Issue before the Court

Section 60 of the Act requires an employer to pay the cost of medical or related treatment that is “reasonably necessary” as a result of a workplace injury.

For hospital treatment, section 62 generally provides that an employer’s liability is the cost to the hospital of providing that treatment. However, section 62(1A) allows the State Insurance Regulatory Authority (SIRA) to fix maximum payable amounts through published Gazette orders.

The issue in Bishop was whether the Workers Compensation (Private Hospital Maximum Rates) Order 2024 effectively limited Qantas’ liability to nil because the prosthesis proposed for Mr Bishop’s surgery was not included on the Commonwealth Prostheses List.

Background

Mr Bishop suffered a compensable left shoulder injury while working as a baggage handler for Qantas in October 2020.

Despite undergoing several procedures, he continued to experience significant shoulder pain and functional impairment. His treating orthopaedic surgeon recommended a left shoulder pyrocarbon hemi-arthroplasty involving a pyrocarbon humeral head implant, which was considered his best prospect for long-term pain relief and improved shoulder function.

Qantas declined liability for the procedure, arguing that because the prosthesis was not listed on the Commonwealth Prostheses List, it fell outside the maximum rates order and no payment was required.

While Qantas succeeded before a Senior Member of the Personal Injury Commission, Mr Bishop appealed to the Court of Appeal.

The Court’s decision

The Court unanimously allowed Mr Bishop’s appeal and restored the determination in his favour.

Liability and quantification are different questions

A key aspect of the Court’s reasoning was the distinction between:

• whether liability exists under section 60; and
• how that liability is quantified under section 62.

The Court observed that section 60 creates an employer’s liability to pay for treatment that is reasonably necessary as a result of a workplace injury.  By contrast, section 62 is concerned with calculating the amount payable.

As it was accepted that the proposed surgery was reasonably necessary treatment arising from Mr Bishop’s work injury, the starting point was that Qantas was liable for the cost of that treatment.

The Maximum Rates Order did not extinguish liability

Qantas argued that the wording of the 2024 Order meant that only prostheses appearing on the Commonwealth Prostheses List attracted any entitlement to payment.

The Court rejected this submission.

The Court found that the Order did not expressly state that liability would be reduced to nil where a prosthesis was not listed. Nor did it contain language clearly indicating an intention to remove an employer’s existing statutory liability.

Instead, the Court held that the Order merely fixed the applicable rate where a prosthesis appeared on the Prostheses List. It did not address the position where prostheses were not included in that list.

The default position applied

As the pyrocarbon prosthesis was not covered by the Order, no maximum amount had been fixed under section 62(1A).

Accordingly, the ordinary position under section 62(1) applied, meaning Qantas remained liable for the cost to the hospital of providing the treatment.

Why this decision matters

For injured workers and claimant practitioners, Bishop provides important guidance on the operation of sections 60 and 62 of the Act.

The decision confirms that:

• innovative or less common treatments are not automatically excluded simply because a prosthesis is not included in the Commonwealth Prostheses List;
• an employer’s liability for reasonably necessary treatment cannot be removed by implication;
• maximum-rate orders will be construed carefully and according to their terms; and
• where no maximum amount has been fixed, the default statutory entitlement remains available.

A significant reminder

The decision in Bishop reinforces an important principle of workers compensation law: statutory entitlements to reasonably necessary treatment cannot be restricted in the absence of clear legislative authority.

For injured workers, insurers and practitioners alike, the case serves as a reminder that questions of liability and questions of quantification are separate considerations. Even where a particular treatment or prosthesis falls outside a prescribed schedule or maximum rates order, employers and insurers may remain liable where the treatment is reasonably necessary and no valid statutory limitation applies.

Carroll & O’Dea Lawyers have Accredited Specialists in Personal Injury Law who can talk to you and provide advice regarding workers compensation and other potential damages claims. Importantly, legal advice should be sought before limitation dates to bring any potential claims before expiry.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been drafted with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.

This article was published on 3 August 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal Injury Claim Check.