Bricknell v Motor Accidents Insurance Board
[2016] TASSC 40
•29 July 2016
[2016] TASSC 40
COURT: SUPREME COURT OF TASMANIA
CITATION: Bricknell v Motor Accidents Insurance Board [2016] TASSC 40
PARTIES: BRICKNELL, Emma
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO: 2722/2015
DELIVERED ON: 29 July 2016
DELIVERED AT: Hobart
HEARING DATE: 18 and 27 July 2016
JUDGMENT OF: Brett J
CATCHWORDS:
Traffic Law – Statutory restrictions or compensation in respect of motor vehicle accidents – Tasmania – Assessment and amount of compensation.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 23.
Motor Accidents (Liabilities and Compensation) Regulations 2010 (Tas), Sch 1, Pt 2, cl 1.
Motor Accidents Insurance Board v Wright [2016] TASSC 13; Associated Forest Holdings Pty Ltd v Gordian Runoff Limited [2015] TASFC 6, referred to.
Aust Dig Traffic [1317]
REPRESENTATION:
Counsel:
Appellant: R J Phillips
Respondent: K E Read SC, G Tremayne
Solicitors:
Appellant: Phillips Taglieri
Respondent: Tremayne Fay Rheinberger
Judgment Number: [2016] TASSC 40
Number of paragraphs: 29
Serial No 40/2016
File No 2722/2015
EMMA BRICKNELL v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT BRETT J
29 July 2016
A person who is injured in a motor vehicle accident in Tasmania is entitled, among other things, to payment of certain monetary benefits. The benefits are prescribed by Schedule 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010. Such benefits, according to the relevant legislative definition, are termed "scheduled benefits". The benefits payable include medical benefits. These are defined by Sch 1, Pt 2, cl 1(1) as "all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury". The Motor Accidents Insurance Board ("the Board") has responsibility for determining claims for scheduled benefits, and in particular whether a person has a right to be paid a scheduled benefit.
The appellant was injured in a motor vehicle accident on 28 February 2015. Upon release from hospital, she required regular, almost daily, treatment in Hobart from a number of service providers. She was advised by her doctor that she should live in Hobart and not return to her home at Bushy Park during the period of convalescence, which was to be lengthy, in excess of one year. But for her injuries, she would have continued to live at Bushy Park. Her only practical option for living in Hobart was to rent a house there. She did so, and claimed the cost of rental as a medical benefit pursuant to the schedule. This claim was refused by the Board. She referred this refusal, as she was entitled to do, to the Motor Accidents Compensation Tribunal ("the Tribunal") (constituted by Tribunal Member Mr R Chandler). The Tribunal agreed with the Board, solely on the basis that the proper construction of the definition of medical benefits set out above, is that it is limited to expenses which are, in the words of the learned Tribunal Member, "directly incurred in the delivery, supply or servicing of the treatment required by the injured person", and does not extend to those "which may be incurred to enable the treatment to be undertaken". The Tribunal held that the rent, albeit that it had, in the circumstances of this case, been reasonably and necessarily incurred to enable the treatment to be undertaken, did not fall within the ambit of the regulation as defined above, and hence was not a medical expense. It was common ground that the expense was only payable as a scheduled benefit if it was a medical expense. The appellant has now appealed from the Tribunal's determination. The resolution of the appeal will depend on the proper construction of cl 1(1).
Relevant legislation
The requirement of the Board to pay scheduled benefits arises pursuant to s 23 of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). By s 23(1), the Board must pay the benefits prescribed by the regulations if a resident of this State suffers personal injury resulting directly from a motor accident, which occurs in this State. Section 23(4) provides that the regulations may prescribe, in relation to a person who suffers personal injury which resulted strictly from a motor accident:
"(a) the medical benefits payable to that person and the limit (except in respect of a person requiring daily care) on the amount of medical benefits payable."
The relevant prescription of medical benefits pursuant to that section is contained in Sch 1, Pt 2 of the regulations (by virtue of reg 9). In order to provide appropriate context, it is convenient to set out in full cl 1 of Sch 1, Pt 2:
"1 Medical benefits
(1) Subject to this Part, where a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits.
(2) Where any sums are paid, or required to be paid, under a law of the Commonwealth in respect of the provision of any treatment referred to in subclause (1) from which any expenses referred to in that subsection are, or may be, met, the amount payable under that subclause in respect of the provision of that treatment is to be reduced by the amount of those sums.
(3) In relation to a person who has suffered personal injury, the treatment referred to in this clause includes the following:
(a) medical or surgical treatment by, or under the supervision of, a medical practitioner;
(b) therapeutic treatment obtained at the direction of a medical practitioner;
(c) psychological services provided by, or under the supervision of, a registered psychologist;
(d) dental treatment by, or under the supervision of, a registered dentist;
(e) therapeutic treatment by, or under the supervision of, a registered —
(i)physiotherapist; or
(ii)osteopath; or
(iii)naturopath; or
(iv)masseur; or
(v)chiropractor;
(f) an examination, test or analysis carried out on, or in relation to, an injured person at the request or direction of a medical practitioner, registered dentist or registered psychologist and the provision of a report in respect of such an examination, test or analysis;
(g) treatment and maintenance as a patient at a hospital;
(h) road accident rescue services and ambulance services;
(i) nursing care, rehabilitation services and the provision of medicine, medical supplies, surgical supplies and any apparatus associated with such care or services, whether in hospital or otherwise;
(j) travel by taxi for the purpose of obtaining treatment from a registered person if —
(i)the distance travelled is 20 kilometres or less one way; and
(ii)the travel occurs within 39 weeks after the date on which the personal injury was sustained; and
(iii)a medical practitioner certifies that, by reason of the injury, the person requires a taxi for the purpose of travel;
(k) travel by any means for the purpose of obtaining treatment from a registered person if –
(i)the person requires daily care; or
(ii)the distance travelled is greater than 20 kilometres one way.
(4) For the purposes of this clause, the expense of providing treatment for any person is taken to be —
(a) unreasonably incurred to the extent to which it exceeds the expense that would be incurred if that treatment had been provided in the most economical manner practicable in the circumstances; and
(b) unnecessarily incurred if the treatment is not warranted, beneficial to the person and curative of the person's injury."
The claim and determination process described above is prescribed by s 28 of the Act. By s 28(2), a person aggrieved by the Board's refusal to make a payment by way of a scheduled benefit may refer the matter to the Tribunal. Section 28(4) provides that the Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances.
This appeal from the determination of the Tribunal is authorised by s 28(6) of the Act. The section provides that the Court, on appeal, may confirm, vary or rescind the determination. As Pearce J pointed out in Motor Accidents Insurance Board v Wright [2016] TASSC 13, having regard to the applicability of the Supreme Court Civil Procedure Act 1932, s 6(3), and the Supreme Court Rules 2000, an appeal under this provision is by way of rehearing. Further, this Court "can exercise appellate powers only if satisfied that there was an error on the part of the primary decision-maker" (see Adamson v Pharmacy Board of Tasmania [2004] TASSC 32).
In this case, it would seem clear that if I am satisfied that the learned Tribunal Member misconstrued the said provision in the Schedule, then that would amount to error sufficient to permit redetermination of the matter.
The Tribunal's determination
The factual basis of the Tribunal's determination was not challenged in this appeal by either party. What follows is some further detail of the circumstances as found by the learned Tribunal Member.
The appellant suffered quite serious injuries in the accident. These were summarised in the determination as follows:
"BRAIN
·Subarachnoid haemorrhage
C SPINE
·C2 fracture (type 3) odontoid process fracture with 3mm of posterior displacement. Fitted with Malibu Collar.
CHEST
·Right stenoclavicular joint dislocation
·# ribs right side 1-9
·Pulmonary contusions and a small right pneumothorax are present with a small to moderate right pleural effusion/haemothorax.
ABDOMEN
·Small volume haemoperitoneum
·Splenic contusion
·Left L1-L4 transverse process fractures.
·Right L5 transverse process fracture.
·Right sacral#"
The appellant spent almost three weeks in ICU at the Royal Hobart Hospital. She was then transferred to a medical ward where she remained until 17 April 2015, when she was transferred to the Royal Hobart Hospital acute rehabilitation unit. Her care there was managed by Clinical Associate Professor Mark Slatyer. She was discharged to the New Norfolk District Hospital on 8 May 2015, and took up residence in the rental house at Glenorchy in Hobart three days later.
Prior to the accident, the appellant intended to continue to reside at her home in Bushy Park with her five children. However, Dr Slatyer advised her not to return there, but rather to reside in Hobart during her ongoing convalescence, which he anticipated would continue until approximately mid-2016. There were a number of reasons for this, including the need for her to be close to the sources of treatment in Hobart, the difficulty and expense associated with transport on a daily basis from Bushy Park, and the unsuitability of the Bushy Park property, having regard to her injuries. It is common ground that the appellant required regular, almost daily treatment, from a variety of providers in Hobart. It is also common ground that this treatment was, in the words of cl 1(1), "treatment required by her … as a result of her injuries". There was evidence that alternatives to private rental accommodation were unsuitable. One such option, accommodation in a rehabilitative facility operated by the Board, Cay Lea, was not suitable because it could not accommodate Ms Bricknell's children.
Ultimately, the learned Tribunal Member accepted that rental on the Glenorchy property was reasonably and necessarily incurred by Ms Bricknell in respect of her ongoing treatment in Hobart. The member analysed evidence concerning the comparative cost of accessing the treatment by way of transport from her former residence in Bushy Park, compared with the cost associated with the rental accommodation in Glenorchy. He concluded that:
"The comparative cost analysis provided by the respondent falls well short of satisfying me that it would have been more economic for the appellant to receive her treatment whilst remaining resident in her home at Bushy Park rather than living in her rental accommodation in Glenorchy."
He noted also that the option of renting the Glenorchy property avoided costs that would have been associated with necessary modification of the Bushy Park property. He also concluded that the rental of property in Hobart was curative of the appellant's injury, and as a result of that finding, determined that it was an expense necessarily incurred in respect of her treatment. He noted that the Bushy Park property in an unmodified state was totally unsuitable, that there was no other realistic option which enabled the appellant to be reunited with her children, and that she had a need to access ongoing medical and paramedical services in Hobart.
I reiterate that these findings were not challenged on this appeal by either party.
Despite these findings, the Tribunal Member determined, as a matter of construction of the relevant regulation, that rent in these circumstances was not payable as a medical benefit. In particular, as I have already noted, he concluded that the definition of medical benefits as "all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her", means those expenses "directly incurred in the delivery, supply or servicing of the treatment required by the injured person". His reasoning for this conclusion was as follows:
"It is not meant, in my opinion, to be so interpreted to obligate the Board to meet those expenses which may be incurred to enable the treatment to be undertaken. Meal costs, parking fees, telephone charges and the cost of child care are all examples of legitimate expenses which may be incurred by an injured person to facilitate treatment, but none are payable by the Board as a medical benefit. Rental, in my opinion, falls into the same category."
He also relied on aspects of cl 1(3) and (4), which he said were consistent with the interpretation favoured by him. I will deal with these in more detail later in these reasons.
Ground 1
"The learned Commissioner erred in law in finding that the rent paid by the Appellant was not an expense incurred for the provision of the treatment required by her and therefore a medical benefit within clause (1) (1) of Part 2 of the Motor Accidents (Liabilities & Compensation) Regulations 2010."
This ground directly attacks the learned Tribunal Member's construction of the relevant clause, and, in particular, his conclusion that medical benefits are limited to expenses directly incurred in the delivery, supply or servicing of the treatment required by the injured person. The appellant says that the use of the words, "for the provision of the treatment" means that any expense reasonably and necessarily incurred in providing the treatment is caught within the ambit of the provision, and, in the circumstances of this case, Ms Bricknell's rent is such an expense. The appellant refers to the beneficial purpose of the legislation, and argues that an interpretation which promotes that purpose ought be preferred to one that does not.
The respondent argues that the learned Tribunal Member was correct in his interpretation of the provision. The respondent says that there was no ambiguity in the provision, and accordingly the beneficial nature of the legislation has no role to play in its interpretation. The respondent's argument is that cl 1(3) contains an exhaustive list of the benefits that are payable under the provision. The respondent points out, in an argument which reflects the reasoning of the Tribunal Member, that these benefits include specified travel costs, and says that were it intended that ancillary expenses such as rent were to be included, that these would have been expressly referred to in that clause.
The learned Tribunal Member, in his reasoning process, proceeded on the basis that the regulation should be construed according to the natural meaning of the words, without reliance upon the beneficial nature of the legislation, which he considered would give the provision "an overly strained meaning that is inconsistent with the text of the provision". I agree that it is a proper approach to interpret the provision according to its ordinary meaning, but do not accept the resultant conclusion reached by the member. In my view, there is no ambiguity and little difficulty in understanding the meaning of the provision. It means what it says in common and simple words; that what are recoverable as medical benefits are "all the expenses reasonably and necessarily incurred by the person … for the provision of the treatment required by him or her within the Commonwealth as the result of the injury". Whether or not a particular expense comes within that definition must be determined by reference to the qualifications and conditions contained within that simple wording. The broad scope of the provision is clearly intended to ensure that an injured person is able to access the treatment required as a result of the injury. Hence, the wording is deliberately broad and the scope of its application confined only by the requirement that the expense must be "reasonably and necessarily incurred … for the provision of the treatment required by the injured person". I can see no basis upon which to confine the meaning of the words "the expenses reasonably and necessarily incurred" to those "directly incurred in the delivery, supply or servicing of the treatment required by the injured person". The interpretation favoured by the Tribunal Member, in my view, is an interpretation which strains the ordinary meaning of the language of the provision, rather than responds to it. It adds a qualification on payment of a benefit which is simply not a part of the definition in the clause.
Even if some ambiguity of meaning could be detected, or another interpretation of the words used in the provision is available, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not do so: (see s 8A of the Acts Interpretation Act 1931). The interpretation which ensures that all expenses are met, which are reasonably and necessarily incurred by the injured person for the provision of the treatment, will ensure that all treatment required by the injured person within the Commonwealth is received by that person. This must be consistent with the clear purpose of the legislation, best summed up in the preamble to the Act as follows:
"An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes, and …".
There is unlikely to be any difficulty in the practical application of the ordinary meaning of the words of the provision. For example, in the vast majority of cases, rent for residential premises would be neither a reasonable nor a necessary expense of the provision of treatment. However, there are clearly cases where, without meeting the expense of rent, as an additional expense to that incurred by the person in his or her pre-injury residential arrangements, the treatment required by the injured person will not or cannot be provided to that person. Mr Phillips, who appeared on behalf of the appellant, suggested some hypothetical, but predictable, examples of persons requiring long term outpatient treatment which can only be obtained in Sydney or Melbourne. If one assumes that no other form of government assistance is available to meet the cost of accommodation in those circumstances (I say this in deference to the somewhat tangential debate between counsel as to the possible application of another scheme which might apply in the hypothetical examples), then unless the injured person incurs the cost of accommodation during the period of that treatment, the treatment in question will not be provided to that person, despite the fact that it is "required by her … as a result of the injury". Such an outcome could not possibly be consistent with the clear requirement of cl 1(1) that "all the expenses" incurred for the provision of the treatment required by the person within the Commonwealth are payable as medical benefits. The intentionally broad ambit of the provision, including references to "all the expenses" and "treatment required … within the Commonwealth", is consistent with the beneficial purpose of the legislation. Perhaps more importantly, the restricted definition favoured by the Tribunal, could, in such cases, lead to an outcome that is inconsistent with the purpose of the legislation and the apparent intention of the specific clause, which is to ensure ultimately that required treatment is provided to the injured person.
There are some further difficulties with the reasoning of the learned Tribunal Member:
a)The interpretation adopted by the Tribunal Member focuses on the cost of the provision of the actual treatment. However, cl 1(1) refers to "the expenses … incurred by the person ...". The reference to expenses incurred by the injured person suggests that the purpose of the clause is to meet the actual expenses thrown up by the individual circumstances of each case, hence ensuring actual provision of the treatment. In most cases, rent will not be a reasonable and necessary expense incurred by an injured person, but in some cases, depending on individual circumstances, it will be so.
b)I do not accept the reasoning of the Tribunal Member that an interpretation of cl 1(1) that includes enabling expenses such as rent, is inconsistent with the other parts of cl 1, in particular cl 1(3) and (4). In order to identify the error that attended this reasoning, it is necessary to observe that the clause draws a distinction between the treatment which is required by the person as a result of the injury, on the one hand. and the expenses reasonably and necessarily incurred by the person for the provision of that treatment, on the other. The clear purpose of both cl 1(3) and (4) is to define and limit the treatment which is available to the injured person under the clause. With the exception of the references to travel in cl 1(3)(j) and (k), they do not deal with or limit the expenses which are incurred in the provision of that treatment. The overall scheme of the clause seems to be that the treatment, which is to be the subject of benefit, is identified by reference to the general qualification that it must be "required … as a result of the injury", and then further defined and limited by subcl (3) and (4). The benefits payable are then constituted by the expenses incurred by the person, which have the required nexus with that treatment, ie, they are "reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment ... within the Commonwealth ...". The suggestion that an expense is not payable unless it is specifically listed in cl 1(3) incorrectly conflates the two subjects: treatment and expense. It may well be the intention of the clause to exhaustively define available treatment in cl 1(3), but it is clearly not intended to define or limit the expenses incurred in the provision of that treatment. Confining applicable expenses in that way is contrary to the use of the words "all the expenses" in cl 1(1).
c)The Tribunal Member relied on the inclusion in the list of treatment in cl 1(3) of provision for travel, specifically in subcl (3)(j) and (k). He noted that specific reference to such enabling expenses would be unnecessary if they were included in any event in the general definition in cl 1(1). He considered that their inclusion "indicates an intention … to confine the Board's obligation for expenses incurred to enable or facilitate treatment to these specific travelling costs and not any other expenses". I do not agree with the Tribunal Member's reasoning. The inclusion of enabling expenses in cl 1(3) is inconsistent with the apparent purpose of the clause to define treatment, and in that sense would seem to be an aberration of drafting. Travel to enable treatment to take place is self-evidently not treatment per se. It would seem to me that the obvious intention of the drafter of the clause was to define and limit specifically the parameters of allowance for travel, and for this reason there has been specific reference to travel. It would otherwise be dealt with solely by reference to the general qualifications in cl 1(1). It would have been more logical and convenient if this had been done in a separate paragraph, but the fact that it was not, does not require a conclusion that, because no other form of expense is so limited, it is only travel that is to be included as an enabling expense.
d)As stated above, the Tribunal Member regarded cl 1(4), as support for the impugned interpretation. Clause 1(4) provides as follows:
"(4) For the purposes of this clause, the expense of providing treatment for any person is taken to be —
(a) unreasonably incurred to the extent to which it exceeds the expense that would be incurred if that treatment had been provided in the most economical manner practicable in the circumstances; and
(b) unnecessarily incurred if the treatment is not warranted, beneficial to the person and curative of the person's injury.
The learned member took the view that this clause "proceeds to define the terms unreasonably incurred and unnecessarily incurred". He reasoned that the use of the words "providing treatment" is "suggestive of a direct connection or link between the expense and the provision of treatment". Further, he reasoned, an intention to include enabling expenses such as rent was unlikely having regard to the "requirement upon the necessity of the expense that it be curative of the person's injury as required by para (b) of sub cl 1(4)."
As to the first limb of these reasons, I see nothing about the use of the words "providing treatment" which is inconsistent with the ordinary meaning of the words in cl 1(1). Further, the Tribunal Member's observation that the requirement in subcl (4)(b) that the expense will only be considered necessary if it is curative of the person's injury, again incorrectly conflates the concepts of treatment and expense incurred for its provision. Clause 1(4) does not seek to exhaustively define or limit the meaning and ambit of "expenses reasonably and necessarily incurred" within the meaning of cl 1(1). Rather, cl 1(4) defines specific circumstances in which expenses will be deemed not to be reasonable or necessary, not by reference to the expenses themselves, but rather by reference to the treatment in respect of which they are being incurred. Hence, if the only reason rent is being incurred is to facilitate a form of treatment which is not warranted, beneficial to the person or curative of the person's injury, then the rent, albeit that it may be reasonable and necessary for the provision of that form of treatment to the injured person, would be deemed by cl 1(4)(b) to be unnecessary. The interpretation of this provision in any other way will lead to absurd results. For example, it is a nonsense to suggest that the necessity of a form of travel to a place of treatment more than 20 kilometres away, as opposed to a different form of travel, ought be assessed on the basis of whether the form of travel itself is warranted, beneficial and curative of the injury. Clearly, the focus of that enquiry must be on the treatment that the travel is intended to facilitate.
The learned Tribunal Member applied his misreading of this provision when he considered whether the expense of rent had been unnecessarily incurred. He considered this question in the negative, and solely by reference to whether the rental of the property at Glenorchy was warranted, beneficial to the appellant and curative of her injuries. In doing so, he ignored the real question posed by cl 1, which was, was the treatment in Hobart required by the appellant as a result of her injuries, and, if so, was the rental of a property an expense reasonably and necessarily incurred for the provision of that treatment? It would seem to follow from the manner in which the Tribunal Member dealt with the evidence that he would have found affirmatively in respect of both questions, but he did not specifically address the latter part of the question., apart from determining the applicability of cl 1(4)(b). Clause 1(4)(b) was only relevant to the appellant's entitlement to payment of rent on her property if the treatment which was to be provided in Hobart was not warranted, beneficial to the appellant or curative of her injury. It was common ground, as I understand it, that such treatment did not answer this description. In those circumstances, cl 1(4)(b) was irrelevant to the issue before the Tribunal.
The interpretation of "medical benefit" in cl 1, as explained above, sits comfortably, not only with the beneficial purpose of the legislation, but also with the overall scheme and apparent operation of the balance of the schedule. Mr Read SC submitted that a review of the schedule reveals a clear intention to limit expenses payable as benefits by expressly nominating same. I agree that the schedule does limit the liability of the Board to pay for the consequences of a motor vehicle accident, but that limitation is achieved by reference to the nature of the benefit, and then assessing the amount payable by reference to the expense in having that benefit provided to the injured person. Such expenses are generally limited by their nexus to the benefit, although in some cases, a specific limitation is spelt out. In this case, the benefit is the treatment, defined in accordance with the clause, and the nexus to the expense is that it has been reasonably and necessarily incurred for the provision of that treatment. That scheme is reflected throughout the schedule. It provides for the provision of benefits which will respond to the individual circumstances of an injured person in a comprehensive way, hence achieving the beneficial purpose of the legislation, but providing a sensible limitation of those benefits to those which are reasonably and necessarily required to deliver the specified service or treatment.
These considerations make it clear that the Tribunal erred in its interpretation and application of the clause. Accordingly, this ground is made out and the appeal must succeed. It follows that the rent is capable of being paid as a medical benefit under the schedule provided that it was reasonably and necessarily incurred for the provision of the appellant's treatment. It was suggested that this Court should, in the event that the appeal is upheld, determine that question. However, although the findings as to the rent being unreasonably and unnecessarily incurred were not the subject of direct challenge in this appeal, it is clear from what I have said that the learned Tribunal Member did not directly address these questions in accordance with the requirements of the schedule. There is also the question of whether and, if so, what reduction should be made for rental assistance received by the appellant. Accordingly, it may well be that it is appropriate to remit the matter for reconsideration by the Tribunal in accordance with law. The power to make this order arises from r 672(9) of the Supreme Court Rules. However, before determining that question, I will give counsel the opportunity to make submissions as to the appropriate disposition of the matter.
Ground 2
"That the learned commissioner failed to determine that the payment of rent in the circumstances of this case was a rehabilitation service, and therefore a treatment expense, within the Motor Accidents (Liabilities & Compensation) Regulations 2010."
This ground asserts that the rental of accommodation in Hobart, close to sources of ongoing treatment, is itself a "rehabilitation service" within the meaning of cl 1(3)(i), and, hence, is in fact treatment for the purposes of the clause. The argument was put in written submissions to the Tribunal Member. Mr Phillips relied on those submissions in argument before me. The argument, as I understood it, was that the Tribunal should have inferred that the rental of a house in Hobart had inherent therapeutic benefit to the appellant, particularly because it was close to sources of treatment and permitted reunification with her children, and hence was itself directly involved in her recovery from injury. Although the term "rehabilitation services" is not defined by the schedule or the Act and regulations from which it derives, counsel referred to definitions contained in interstate legislation and suggested that such definitions could be applied in this State.
The Queensland decisions relied upon by Mr Phillips suggest that the term "rehabilitation services" should be given a broad definition. However, these cases should be approached cautiously, because of a specific definition of rehabilitation in the Queensland legislation, and a different legislative context. I am satisfied that the proper approach to the definition of "rehabilitation services" in sub cl 1(3)(i) is that adopted by Blow CJ in Associated Forest Holdings Pty Ltd v Gordian Runoff Limited [2015] TASFC 6 at [24] and [25] in respect of the definition of "medical services" under s 8A of the Workers' Compensation Act 1927, where his Honour proceeded on the basis of the ordinary meaning of those terms. His Honour said:
"24 In my view it does not matter whether the definition is exhaustive or non-exhaustive because Mr Lowrie's attendant care services could not properly be regarded as medical services in any ordinary sense of those words. In substance, his carers provide assistance with daily living. He needs assistance because of medical problems, but the services provided to him have only a remote connection with the practice of medicine.
25 The Macquarie Dictionary defines 'medical', when used as an adjective, as follows:
'Relating to, involving, or used in medicine or treatment given by doctors.'
There is no ambiguity about the words 'medical services. There is no reason to give them a meaning other than their ordinary meaning. The services provided by Mr Lowrie's carers are not 'medical services' in the ordinary sense of those words."
In this case, there were undoubtedly personal benefits to the appellant which flowed from living in Hobart. However, there was no evidence to support the proposition that living in the house was, in itself, treatment in her recovery. Its actual relationship to her treatment was that it was claimed to be a reasonable and necessary expense incurred for the provision to her of treatment in Hobart, which included rehabilitation services. When Dr Slatyer was asked by Mr Phillips to explain what he considered acute rehabilitative services to involve in the case of the appellant, he said:
"… it would be physiotherapy, occupational therapy, psychology and neuropsychology as well as medical …".
I am satisfied that the ordinary meaning of the words "rehabilitation services" would not include the rental of a property, in the absence of specific evidence to that effect in a particular case. It is true that the learned Tribunal Member did not deal with this argument in his decision. However, in the absence of such evidence, he was not in error in failing to do so. There is no merit in this ground.
Conclusion
The appeal will succeed on the basis of ground 1. However I will hear counsel as to the disposition of the matter before finalising these proceedings.
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