Adrian Tuari v Transport Accident Commission
[2014] VSCA 203
•3 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0077
| ADRIAN TUARI | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | OSBORN and BEACH JJA and GARDE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 September 2014 |
| DATE OF JUDGMENT: | 3 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 203 |
| JUDGMENT APPEALED FROM: | Tuari v Transport Accident Commission (Review and Regulation) [2014] VCAT 698 |
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Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal – Whether grounds arguable – Whether grounds raise issues of general importance – Specific errors of law with respect to adequacy of Tribunal’s reasons conceded by respondent – Whether concession properly made – Matter remitted for rehearing.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Gorton QC Mr A Ingram | Slater and Gordon |
| For the Respondent | Mr P Solomon QC Mr C Young | Transport Accident Commission |
OSBORN JA:
BEACH JA:
GARDE AJA:
The applicant, Mr Tuari, seeks to appeal against a decision of a Vice-President of the Victorian Civil and Administrative Tribunal dismissing an application to review a determination by the respondent (’TAC’) to deny contribution to the purchase of a modified Volkswagen vehicle, which would be capable of being driven by Mr Tuari despite his physical disabilities.
Under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, the applicant may appeal, on a question of law, if this Court gives leave to appeal. This is the hearing of the applicant’s application for leave to appeal and, if leave is granted, the hearing of the applicant’s appeal.
Background circumstances
On 28 March 1992, when he was 17 years of age the applicant was injured in a transport accident. Six of the applicant’s thoracic vertebrae were shattered causing the applicant to suffer T3 paraplegia with a consequential loss of motor function below the waist. The applicant also suffered a brachial plexus injury resulting in the loss of function of his right arm. The applicant has preserved function in the remainder of his upper body and left arm.
Notwithstanding the severity of his disability, the applicant has the capacity to operate a modified self-drive vehicle. As such, the applicant is keen to pursue the increased independence which would flow to him if he was permitted to drive his own vehicle. Accordingly, in October 2011, the applicant made a claim on the Transport Accident Commission, the respondent, for contribution towards the purchase of a modified self-drive Volkswagen Transporter vehicle (the modified Transporter’). However, on 22 March 2012, the respondent, denied this claim.
On 12 June 2014, following a two day hearing, the Victorian Civil and Administrative Tribunal, constituted by a Vice President, dismissed the applicant’s application to review the respondent’s decision, and made an order affirming the decision of the respondent to deny the applicant’s claim.
The applicant requires an electric wheelchair for movement. He requires assistance for personal care and is the recipient of eight to nine hours of attendant care per day funded by the respondent. The evidence discloses that the applicant pursues an active and social lifestyle within the limits of his disabilities.
The applicant resides in a rural town located on the New South Wales side of the border with Victoria. There are no disabled taxi services in the area and the only transportation option currently available to the applicant is a HiAce vehicle, purchased by the applicant’s uncle, in which the applicant can travel as a passenger. The HiAce has a rear hoist that can lift the applicant and his electric wheelchair into the vehicle.
The applicant is 40 years old. He wishes to be provided with a modified Transporter which he can drive, rather than relying on his carers, family, and friends to transport him as a passenger. The modified Transporter is seen by the applicant as a means for him to regain independence from carers and family, to obtain some privacy, to pursue relationships and vocational opportunities, and generally to give him freedom from his ‘feelings of institutionalisation’. The applicant gave evidence that he also wished to regain the ability to be spontaneous and to assist his family by doing such things as collecting children from school.
Prior to the respondent making its decision to deny the applicant’s claim, the respondent was provided with reports from two occupational therapists, Mr Tom Eley and Ms Terina Saunders, who were supportive of the applicant’s claim. In their reports, Mr Eley and Ms Saunders expressed the opinions that the applicant had the capacity to operate the modified Transporter, and that he would derive a rehabilitation benefit from the increased independence which would flow from his capacity to operate his own vehicle.
In its letter advising the applicant of the rejection of his claim, the respondent gave as its reason for refusal:
It is the TAC’s understanding that you currently have access to a motor vehicle as per Tom Eley’s report. Accordingly, based on section 60(3A) of the [Transport Accident Act 1986] the TAC is unable to contribute to the purchase cost of VW Transporter (sic).
At the commencement of the hearing before the Tribunal, the respondent accepted that the applicant was capable of driving the modified Transporter; that the modified Transporter could be registered; that the modified Transporter is the most suitable option for self-driving; and that the HiAce currently being used by the applicant is not a vehicle capable of modification for the purpose of being driven by the applicant.[1]
[1]Tuari v Transport Accident Commission (Review and Regulation) [2014] VCAT 698 (‘Reasons’) [19].
The relevant legislative provisions
The applicant’s claim for contribution towards the cost of the modified Transporter is governed by the provisions of the Transport Accident Act 1986 (‘the Act’). At the hearing before the Tribunal, the applicant relied upon four different bases upon which he contended the respondent had a liability to contribute to the cost of the modified Transporter. First, he relied upon s 60(3) of the Act. Section 60(3) provides:
If a person, as a result of his or her transport accident injury, reasonably requires a motor vehicle used by him or her in Australia to be modified, the Commission is liable—
(a) to pay the reasonable costs of modifying the vehicle; or
(b)if the vehicle is not capable of being modified, to contribute a reasonable amount to the purchase cost of a suitably modified motor vehicle selected by the Commission.
Secondly, the applicant relied upon s 60(3A) of the Act. Section 60(3A) provides:
If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle, and he or she does not have access to a motor vehicle, the Commission is liable to contribute a reasonable amount to the purchase cost of a suitable motor vehicle selected by the Commission.
The final two bases upon which the applicant contended he was entitled to a contribution are to be found in s 60(2)(a) of the Act, being the provision that imposes a liability on the respondent to pay the reasonable costs of ‘disability services’ and ‘rehabilitation services’. Section 60(2)(a) of the Act relevantly provides:
The Commission is liable to pay as compensation to a person who is injured … as a result of a transport accident … the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs, vocational rehabilitation services and ambulance services received in Australia because of the transport accident ...; and
In s 3(1) of the Act, ‘rehabilitation service’ is defined to mean:
the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23 ...;
In the same section, ‘disability service’ is defined to mean:
the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service or a hospital service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23 ...
The proceeding and decision below
At the hearing before the Tribunal, the applicant gave evidence and called Mr Eley. No other witnesses gave evidence. The parties tendered a number of documents and reports. Amongst these, the applicant tendered the report of Ms Saunders and a statement of the applicant’s mother, and the respondent tendered statements made by Mr Alan Woodruff (Senior Manager of the respondent’s Policy Legislation and Review Team).
The Tribunal summarised the evidence of the applicant in the following terms:
He outlined the nature of his injuries and his current care arrangements. On weekdays, carers attend usually from 9.00 am through until approximately 1 pm. They leave during the middle of the day and then come back late afternoon around 5.00 pm. The times vary depending on what needs to be done, but generally, each shift is four hours in duration.
On the weekends, carers attend from approximately 7.00–8.00 am so that his care needs can be completed earlier and he is able to utilise more of the day. A carer would return at 5.00 pm or thereabouts, as per the weekday routine. A carer also sleeps over during the night. However, the night carer is ‘inactive’, they are only there to assist the applicant if he falls out of bed or requires turning during the night.
The applicant previously received 11 hours of care per day, but this was reduced by 16 hours per week following the re-assessment made by Ms Sharon Howell on 22 January 2013 and the subsequent report to the TAC dated 25 February 2013.
The applicant explained that the reduced care hours means that all the hours are now consumed by his necessities: house cleaning, toilet routine, showering, dressing, meal preparations, stretching, groceries, checking the mail and other such unavoidable tasks.
The report of Ms Tracy Josling dated 14 November 2013, confirms that under the current reduced hours, the result is that attendant care hours are spent ensuring necessary day to day requirements are met, leaving limited time for recreational tasks.
The applicant submits that with his present care arrangements, without having a vehicle that he can drive himself, his access to the community is limited by the availability of carers to transport him. He dislikes placing a workload on family and friends by asking them for assistance, and doing so makes it difficult to maintain healthy friendships. He regards transportation to be the responsibility of the TAC.
Under the previous care arrangements, the applicant believed that 11 hours of attendant care was still insufficient when it came to ‘pursuing personal goals’. He described personal goals as including attending functions, events, family birthdays, visiting someone who is ill, going out to dinner with a girlfriend, spending quality time in the bush, fishing, pursuing work and study.
He states that he would like to be able to pursue personal and intimate relationships, and have independent time alone. He would like to contribute back to his family by picking up his niece and nephew from school. He would like to visit his mother independently. He would like to do these things as he described it, without ‘an entourage of carers’.[2]
[2]Reasons [28]–[35] (footnotes omitted).
The Tribunal summarised Mr Eley’s evidence as follows:
Mr Eley states that ‘the impact of psychological status and the associated freedom and independence should not be underestimated’. The supplementary report, dated 6 March 2014, expands further on the positive impact which a self-drive vehicle will have on the applicant’s independence, access to community facilities, social activities and supported employment arrangements.
Mr Eley confirms that the Modified Transporter would enable the applicant to drive to and from venues without assistance. As the applicant resides in Barham, there are no accessible public transport alternatives available.
The 6 March 2014 report also addresses the issue of whether the Modified Transporter could assist in the applicant’s rehabilitation to partial or complete former health. Mr Eley expresses the opinion that the Modified Transporter will have a positive impact on the applicant’s self-esteem, sense of self-worth and mental health status. He does not suggest that the applicant’s physical condition would improve in any way.
In relation to cleaning and refuelling a car, Mr Eley gave evidence that the applicant was capable of utilising normal commercial car cleaning services. Similarly, in order to re-fuel the Modified Transporter, the applicant could exit the vehicle, remove the fuel cap, re-fuel and pay just like any able-bodied person could. The Tribunal accepts that the applicant would not have any difficulties utilising commercial car cleaning services. However, refuelling the Modified Transporter, may be more problematic and depend upon the availability of service stations physically set up to cater for wheelchair bound drivers.
In the opinion of Mr Eley, taking into account the costs associated and the potential benefits, the request for the Modified Transporter is a reasonable one. The TAC contested this conclusion.[3]
[3]Reasons [37]–[41] (footnotes omitted).
The Tribunal summarised Mr Woodruff’s statements as follows:
Mr Woodruff states in his 10 April 2013 report that the TAC has not funded any self-drive vehicles for persons with quadriplegia. In the report dated 28 March 2014, this statement is clarified, to the extent that the TAC has funded vehicles for persons with incomplete quadriplegia for self-drive purposes, but none of these included the Paravan Space Drive system,[4] as sought by the applicant in this case.
Mr Woodruff provides a number of statistics which help to give context and perspective to the cost of the applicant’s claim, relative to the total amount of spending by the TAC for other support services and motor vehicle claims. At the hearing, counsel for the TAC advised that it only relies upon the following points:
(a)In 2011/2012, the TAC funded $1,750,324 in respect of modified vehicles for 139 people. This amount includes both modification and vehicle purchase cost;
(b)The types of modifications that are usually funded for persons with quadriplegia include ramps, anchors for wheelchairs, improved suspension and lifting devices; and
(c)None of the Modified Transporters funded in this way were for self-drive, all such claims for self-drive modifications have been previously refused.[5]
[4]The modified Transporter.
[5]Reasons [43]–[44].
It may immediately be noted that, notwithstanding Mr Woodruff’s evidence about the way in which the respondent has handled claims by persons with quadriplegia, the applicant is not a quadriplegic. That said, the Tribunal did not then go on to summarise any of the other reports and statements — no doubt because the Tribunal regarded the evidence of the applicant, Mr Eley, and Mr Woodruff as central to the resolution of the application to the Tribunal for review of the respondent’s decision.
The Tribunal commenced its analysis of the review application by discussion of the concepts of ‘use’ and ‘access’ found in ss 60(3) and (3A). Reference was made to well-known High Court authority concerning the meaning of ‘arising out of the use of’ in third party insurance cases involving motor vehicles.[6]
[6]Government Insurance Office of New South Wales v R J Green & Lloyd PtyLtd (1966) 114 CLR 437.
After discussing whether the HiAce provided the applicant with use of, or access to, a vehicle and what ‘transportation needs’ meant in the context of the Act, the Tribunal turned to the concepts of ‘reasonable cost’ and ‘reasonable amount’. The Tribunal identified the cost comparison between the two competing options for the applicant as follows:
The cost comparison between the two options can be described as $255,000 compared with a value less than (but close to) $128,000 for the passenger only vehicle, plus the ongoing cost of the carers required to drive the applicant. There is no dispute that the cost of carers is $36.50 per hour. I will return to this calculation.[7]
[7]Reasons [68].
Under the heading ‘Community Access and Participation in Society’, the Tribunal said:
I am not satisfied that the funding of a self-drive VW Transporter will significantly improve the applicant’s ability to access the community and participate in society. Most, if not all, of the activities that the applicant wishes to access and be involved with are not dependent in any way on the provision of a self-drive vehicle.
…
I do not accept that there is any appreciable improvement to his community access or participation in society by having his own self-drive vehicle in any of the circumstances set out above. In fact, if the applicant fell out of his wheelchair, needed to purchase heavy items or required unscheduled toileting assistance, the presence of a carer would be of great benefit to the applicant.[8]
[8]Reasons [71], [78].
Under the heading ‘Ability to Study and Work’, the judge said that:
There is also a distinction to be made between his need for community access and his ‘at large’ desires.[9]
[9]Reasons [90].
Under the heading ‘Reduction in Attendant Care Hours with Self-Drive Vehicle’, the Tribunal said:
Applicant’s counsel submitted that if the applicant can drive himself, carers are no longer required to drive the applicant to and from the community, therefore the TAC can reduce the amount of attendant care hours and save money. Such a consequence is relevant to the consideration of reasonable cost. I accept that it is a relevant overall consideration. However, I have found that the calculations provided by the applicant are overly simplistic and they are based on a number of assumptions and inaccuracies.
In her final address, applicant’s counsel submitted that the TAC may achieve somewhere between a $206 per week saving or a modest $29 per week expense if it funded the applicant a self-drive car.
The calculations start from the position that the real cost to enable the applicant to drive is not $243,000 (or $255,000), but rather only the $120,740 being the cost of Paravan Space Drive control or the lesser cost of $93,000 estimated by Tom Eley during oral evidence.
First, I note that this figure does not take into account the estimated cost of driving lessons at $6,000. Secondly, I note that the purchase of the self-drive vehicle is an upfront cost. The applicant’s admittedly simple calculations do not take into consideration the time-value of money and therefore the opportunity cost of the upfront payment. Thirdly, I do not accept the proposition that the base cost of the VW Transporter ($47,787) and the modification required to allow wheelchair access ($80,487.50) can simply be removed from the equation because the TAC has already agreed to fund those components.
The purchase of the base vehicle and wheelchair access modifications are essential components to the provision of a self-drive vehicle. All the components would be provided by the TAC pursuant to sub-s 60(3) or (3A) and so separating the costs in such a way is artificial and there is no logical basis for doing so.
Alternatively, the applicant has submitted that the additional Space Drive component be funded pursuant to para 60(2)(a) as a rehabilitation service. Whether the Space Drive technology should be funded as a rehabilitation service is discussed in detail below. I have not accepted the submission.
Applicant’s counsel sought to rely upon the estimation of Ms Howell to the effect that a reduction of 12 hours per week (as a minimum) would be achieved from community access attendant care requirements if the applicant could self-drive.
The evidence about a reduction in attendant care hours is speculative. Ms Howell starts from the position that, at present (with the HiAce), the applicant requires 15 hours of attendant care for community access plus an unspecified allowance for variations for the purpose of attending DJ events.
With the proposed self-drive vehicle, Ms Howell recommends 3 hours per week for community access plus 4 hours per week for recreational activities like fishing and hunting. Therefore, with the HiAce, the applicant requires 15 hours plus variations, with a self-drive vehicle, the applicant requires 7 hours. The estimated reduction in attendant care hours gained by the purchase of a self-drive vehicle is 8 hours per week, plus an unspecified reduction in the need for ‘variations’. This is a lower figure than the minimum 12 hours that was submitted by applicant’s counsel.
There is no dispute that the cost of attendant carers is currently $36.50 per hour. Therefore, the regular weekly cost reduction in attendant care hours is $292 not $438 as the Applicant submitted.
More generally, the overall proposition that underlies the analysis is that the Tribunal would make an order that the provision of the Modified Transporter is reasonable provided the applicant accepts a reduction in care of around 3 hours per day. If the applicant wished to ‘trade’ attendant care hours for a self-drive vehicle, that is the kind of arrangement that would need to be negotiated between the TAC and the applicant. The Tribunal does not have jurisdiction to make an order to the effect that the applicant forego ‘x’ number of attendant care hours in return for the TAC funding a self-drive vehicle.
The Tribunal is not satisfied that the self-drive vehicle would result in a significant reduction in the need for attendant care hours. The evidence is vague and speculative. Furthermore, there is no proper evidentiary basis for the Tribunal to offset the cost of reduced attendant care hours against the cost of the self-drive vehicle.[10]
[10]Reasons [97]–[108] (footnotes omitted).
Having disposed of the first two bases of the applicant’s claim (the applicant’s arguments in respect of ss 60(3) and (3A)), the Tribunal then turned to the applicant’s contentions in respect of s 60(2)(a) of the Act, and the applicant’s claim that the modified Transporter was a ‘rehabilitation service’ or a ‘disability service’. The Tribunal expressed itself to be unsatisfied that a self-drive vehicle in the present case ‘would be “harnessed to the specific purpose of rehabilitation”’.[11] Reference was made to this Court’s decision in Transport Accident Commission v Hogan.[12] No reasons were given for rejecting the applicant’s submissions in relation to the issue of whether the modified Transporter was a disability service within the meaning of the Act.
[11]Reasons [116].
[12][2013] VSCA 335 [54].
Leave to appeal
In our view, Mr Tuari should be granted leave to appeal on the grounds set out in the draft notice of appeal filed on his behalf and dated 15 July 2014.
In our view, first, these grounds are reasonably arguable and, secondly, they raise issues of general importance as to the operation of the transport accident compensation scheme.[13]
[13]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
The notice of appeal does not strictly comply with O 4 r 4.17 of ch II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. In the circumstances which have arisen, this non-compliance should not be regarded as determinative.
Errors of law
The TAC concedes that there were errors of law in the Vice-President’s determination. More particularly, her Honour’s reasons do not adequately explain her conclusions with respect first to the relevant costs involved in the respective options for which each of the parties contended as being potentially appropriate pursuant to ss 60(3), 60(3A) and 60(2) of the Act.
Secondly, the Reasons do not adequately explain the basis upon which her Honour balanced the benefits of the motor vehicle provision for which the appellant contended, against the costs involved in such provision for the purposes of reaching the conclusions which she did.
We agree that these concessions are properly made and that the Reasons were deficient in these respects. It follows that, as the parties have agreed, the matter should be remitted for rehearing.
It is unnecessary, having reached this conclusion, to determine the further grounds of appeal which addressed other issues integral to the proper application of the statutory scheme in question.
Grounds 3, 4, 7, 8, 9 and 10 were as follows:
3.The Tribunal failed to first determine what were the reasonable requirements of the (Appellant) for use of and access to a modified vehicle before assessing the reasonableness of the costs of providing such a vehicle.
4.The Tribunal failed to consider properly or at all the uniform and unchallenged evidence of the (Appellant), his mother, Mr Eley, Ms Howell and Mr Saunders in finding that the Appellant’s ability to access and participate in society were not dependent in any way (judgement 71) and would not be appreciably improved (judgment 78) by having a self-drive vehicle.
7.The Tribunal erred in determining that provision of the proposed self-drive vehicle was not a rehabilitation service on the grounds that the rehabilitation benefits identified in judgment 114:
(a)might be satisfied by provision of a passenger vehicle and speculative attendant care (contrary to the uniform and unchallenged evidence); and
(b)the absence of evidence by ‘experts’ that the Appellant’s mental health is being seriously compromised or that he was suffering a psychological disorder.
8.The Tribunal erred in its consideration of the scope of rehabilitation services by considering that the absence of ‘expert evidence’ as to the Appellant’s health being seriously compromised or the presence of a psychological disorder was a dominant factor.
9.The Tribunal erred in law in failing to determine whether the Respondent was liable to fund the Modified Transporter pursuant to s 60(2) of the Act on the basis that such funding would constitute provision of a ‘disability service’.
10.In determining whether funding of the provision of the Modified Transporter vehicle would constitute a provision of a ‘rehabilitation service’ for the purposes of s 60(2) of the Act the Tribunal failed to follow and apply the reasoning in TAC v Hogan [2013] VSCA 335.
The Court should not be taken to affirm, by its silence, that the approach which the Vice-President took to the proper construction of the statutory provisions upon which the appellant relied, was correct.
The Court would order, subject to further submissions from counsel, first, that Mr Tuari have leave to appeal on the grounds contained in the draft notice of appealdated 15 July 2014. Secondly, that the appeal be allowed. Thirdly, that orders 1 and 2 of the Victorian Civil and Administrative Tribunal made on 12 June 2014 be set aside. Fourthly, that the matter be remitted for rehearing in accordance with law to the Victorian Civil and Administrative Tribunal before a differently constituted tribunal. Fifthly, that the application for review be accorded such priority as the President of the Victorian Civil and Administrative Tribunal may accord it. Sixthly, subject to evidence of change of circumstances, the review be conducted by reference to the evidence previously adduced. Seventhly, the respondent pay the appellant's costs of this appeal and the application for leave to appeal.
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