Case Q21

Judges:
MB Hogan Ch
P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 31 March 1983.

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M.B. Hogan (Chairman)

My colleagues have sufficiently covered the facts in this reference. In essence, the taxpayer made payments to a chemist for a milk substitute advised (or on the evidence, prescribed) by a doctor because of his daughter's allergy to natural milk products. It appears to me to be so transparently clear that the payments are made to a legally qualified chemist in respect of an illness that my answer should need no elaboration. However, as the matter is one which has been through a long and difficult gestation period before being heard by this Board, I will add my simple explanation.

2. There is agreement that payments were made to legally qualified chemists. There can be no doubt that the payments were made ``in respect of'' the allergic condition to which the child was subject, per Mann C.J. in
Trustees Executors and Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at p. 111 :

``The words `in respect of' are difficult of definition but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer.''

That leaves for consideration only the question of whether the allergy is an ``illness''. In
Burgess v. Brownlow (1964) N.S.W.R. 1275 at pp. 1278-1279 Manning J. had this to say:

``The meaning of the word `illness' is not susceptible of proof by medical evidence, and a failure to appreciate this has complicated the matter. The word `illness' is not synonymous with `disease'. In its primary meaning it refers to a bad moral quality, and includes a bad or unhealthy condition of the body.''

His Honour's remarks in the opening sentences are clearly applicable here. In the context of the Income Tax Assessment Act , the word ``illness'' clearly has no legal-technical or medical-technical meaning and the meanings given to the word by his Honour reflect the definitions in the Shorter Oxford and Concise Oxford respectively. It seems to me that to take the view that an allergy is not an unhealthy condition of the body is to distort any natural meaning of that rather quaint phrase.

3. Accordingly, I would reduce the assessment by allowing the appropriate rebate in respect of the expenditure on ISOMIL.