Burns v Allianz CG Pty Ltd
[2020] VMC 14
•16 July 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. K13082919
| SAMANTHA BURNS | Plaintiff |
| v | |
| ALLIANZ CG PTY LTD | Defendant |
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MAGISTRATE: | M J RICHARDS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June 2020 |
DATE OF DECISION: | 16 July 2020 |
CASE MAY BE CITED AS: | Burns v Allianz CG Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VMC014 |
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CATCHWORDS – Workers Compensation - Deceased worker – Non dependant family member – Application for reimbursement of expenses incurred as a result of the worker’s death – Workplace Injury Rehabilitation and Compensation Act 2013 - Section 240.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms M Tsikaris | Adviceline Injury Lawyers |
| For the Defendant | Mr B McKenzie | Thomson Geer |
HIS HONOUR:
INTRODUCTION
1. The plaintiff is the sister of Shaun Burns who died as a result of injuries sustained in the course of his employment on 6 September 2018.
2. The defendant does not dispute that the plaintiff was a family member of the deceased worker or that his death resulted from injuries sustained on 6 September 2018.
3. The deceased worker had no dependants.
4. The plaintiff has made an application for the reimbursement of various expenses pursuant to section 240 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA).
5. Section 240 of the WIRCA provides for the reimbursement of expenses incurred by non-dependent family members of a deceased worker as follows:
Reimbursement of expenses incurred by non-dependent family members of a deceased worker
(1) If-
(a) a worker’s death results from, or is materially contributed to by, an injury arising out of or in the course of employment; and
(b) had the worker had a dependant, or dependants, at the time of his or her death, the injury would have entitled the dependant or those dependants to compensation under this Act; and
(c) the worker did not have any dependants at the time of his or her death –
a member of the worker’s family may apply to the Magistrates’ Court for an order that the Authority or a self-insurer (as appropriate) reimburse the applicant for expenses incurred as a result of the worker’s death.
(2) An application under this section must –
(a) specify the expenses of the applicant incurred as a result of the death of the worker and how the incurring of those expenses caused financial hardship to the applicant; and
(b) unless subsection (3) applies, be made within 2 years after the date of the worker’s death.
(3) The Magistrates’ Court may grant leave to an applicant to apply out of time, if the applicant has a special excuse foe not making the application within time.
(4) On application under this section, the Magistrates’ Court may, in its discretion, order that the Authority or a self-insurer reimburse an applicant for expenses not exceeding the maximum amount if the Magistrates’ court is satisfied that –
(a) the expenses incurred by the applicant were as a result of the death of the worker; and
(b) the expenses were reasonably incurred and are of a reasonable amount; and
(c) the incurring of the expenses caused financial hardship to the applicant.
(5) In making an order under this section, the Magistrates’ Court may order that more than one applicant in respect of a deceased worker be reimbursed by the Authority or self-insurer under this section.
(6) The total amount that can be ordered under this section to be reimbursed in respect of the deceased worker must not exceed the maximum amount regardless of how many applicants apply in respect of that deceased worker.
(7) The Magistrates’ Court must not award any interest in making an order for reimbursement of an applicant under this section.
(8) A reimbursement of expenses under this section is not a payment of compensation under this act except for the purposes of –
(a) calculating premiums under Part 10; or
(b) seeking indemnity from a third party under section 369 or any other indemnity under this Act; or
(c) seeking a refund of payments under section 599 or any other amount relating to the recovery of payments under this Act.
(9) In this section –
“expenses” does not include the following –
(a) the cost of any service or contribution that may be claimed under Division 7;
(b) the legal or other costs of a member of the deceased worker’s family incurred by that person as a result of a dispute arising from the deceased worker’s will, or the distribution of the deceased worker’s estate;
(c) an expense incurred as a result of the loss of a service provided to a member of the deceased worker’s family;
“maximum amount” means an amount of $33,120 in total for expenses incurred as a result of a worker’s death.
6. As of 1 July 2018, the maximum amount was indexed to $36,470.
7. The plaintiff works as a neuropsychologist at Diverge Consulting Inc (the clinic). The plaintiff also undertakes a management role at the clinic. The plaintiff is seeking that the Court exercise its discretion under section 240(4) and reimburse her for the following alleged expenses:
(a) a financial loss of $34,098 as a result of cancelling appointments with patients over an eight-week period (the loss of earnings expenses);
(b) $3136.42 as a result of appointing an acting manager to manage and co-ordinate the clinic over the eight-week period (the acting manager expenses);
(c) $300.25 being Citylink toll charges whilst travelling over the eight-week period (the toll expenses);
(d) $250 being the costs of cleaning the rental property of the deceased worker (the cleaning expenses); and
(e) fees of approximately $200 to $300 for 2 to 3 trips taking rubbish from the said property to the tip (the tip expenses).
8. In exercising its discretion, section 240(4) sets out that the Court must be satisfied that:
(a) the claimed amounts were expenses incurred as a result of the death of the worker;
(b) the expenses were reasonably incurred and of a reasonable amount; and
(c) the incurring of the expenses caused financial hardship to the plaintiff.
9. Section 240 of the WIRCA is in analogous terms to its predecessor, section 92AA of the Accident Compensation Act 1985 (the ACA), save that section 92AA of the ACA did not have any equivalent to section 240(9) of the WIRCA.
10. The plaintiff and the defendant are unaware of any decision of this Court or any other Victorian Court interpreting section 92AA of the ACA or section 240 of the WIRCA.
STATUTORY INTERPRETATION PRINCIPLES
11. The Court’s function is to construe the relevant provision so that it is consistent with the language and purpose of the statute.
12. In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69] the Court stated the following:
The primary object of statutory interpretation is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at (47);Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 at (24);Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 at [47] to [55])
13. The principles of and aids to interpretation are set out in section 35 of the Interpretation of Legislation Act 1984 (Vic) which provides that in the interpretation of a provision of an act or subordinate instrument –
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b) consideration may be given to any matter or document that is relevant including but not limited to –
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.
SECTION 240 OF THE WIRCA
14. The predecessor to section 240 of the WIRCA was section 92AA of the ACA.
15. Section 92AA of the ACA was inserted into the Act by the Accident Compensation Amendment Act 2010 (Act 9 of 2010). The amendment provided for a new category of compensation being made available in circumstances where the deceased left no dependants at the time of death.
16. With respect to the amendments to the ACA, the second reading speech in the Legislative Assembly on 10 December 2009 said:
The government will significantly increase the amount of compensation and benefits payable to the dependants and other family members of deceased workers. Other amendments will ensure that this vulnerable group of claimants will be able to access such compensation and benefits more quickly and efficiently.
Currently only persons who were dependent on the earnings of the deceased worker are entitled to compensation under the act. However, there may be some circumstances where a worker dies leaving no dependants but his or her family members nonetheless suffer financial disadvantage because of the worker’s death. To ensure equity and to protect family members who find themselves in such unfortunate circumstances, the bill will enable a court to order reimbursement of their reasonable expenses of up to $30,000 per family in the event of financial hardship.
17. The Workplace Injury Rehabilitation and Compensation Act 2013 explanatory memorandum dated 18 September 2013 stated at the outset the following:
This Bill re-enacts with amendments provisions of the Accident Compensation Act 1985 and replaces that Act and the Accident Compensation (Workcover Insurance) Act 1993 with a new comprehensive Act that is easier to use and follow.
18. In relation to section 240 of the WIRCA, the explanatory memorandum stated the following:
Clause 240. This clause allows for a non-dependant family member of a deceased worker to be reimbursed for expenses incurred as a result of the death of a worker. The compensation payment is determined by the court and is only available where the worker has no dependants. This clause recognises there may be instances where a worker dies from a work-related injury leaving no dependants, and his or her non-dependant family members (e.g. parents or siblings) suffer financial hardship as a result of having to incur reasonable expenses associated with the worker’s death (e.g. the cost of administering the deceased worker’s estate). This clause operates the same as section 92AA of the Accident Compensation Act which will continue to operate in relation to injuries occurring before 1 July 2014.
19. Apart from section 240(9) of the WIRCA which excludes what the term expense does not include, section 240 does not otherwise provide any definition of the relevant terms referred to therein.
20. Furthermore, section 3 of the WIRCA does not provide any definition of the relevant terms referred to in section 240.
21. In their submissions, the plaintiff and defendant have referred the Court to the definitions of the relevant terms as set out in the Macquarie Dictionary (Revised Third Edition) and the Australian Oxford Dictionary (Second Edition).
22. The term reimburse is defined in:
(a) the Macquarie Dictionary as meaning:
(i) to make repayment to for expense or loss incurred;
(ii) to pay back; refund; repay;
(b) the Australian Oxford Dictionary as meaning:
(i) repay (a person who has expended money);
(ii) repay (a person’s expenses).
23. The word expense is defined in:
(a) the Macquarie Dictionary as meaning:
(i) cost or charge;
(ii) a cause or occasion of spending;
(iii) the act of expending; expenditure;
(iv) loss or injury due to any detracting cause;
(v) charges incurred in the execution of an undertaking or commission; money paid as reimbursement for such charges.
(b) the Australian Oxford Dictionary as meaning:
(i) cost incurred; payment of money;
(ii) costs incurred in doing a particular job; an amount paid to reimburse this;
(iii) a thing that is a cause of much expense;
(iv) expenditure (of other than money).
24. The word incur is defined in:
(a) the Macquarie Dictionary as meaning:
(i) to run or fall into (some consequence, usually undesirable or injurious);
(ii) to become liable or subject to through one’s own action; bring upon oneself.
(b) the Australian Oxford Dictionary as meaning:
(i) suffer, experience, or become subject to (something unpleasant) as a result of one’s own behaviour, etc.
25. The word financial is defined in:
(a) the Macquarie Dictionary as meaning:
(i) having to do with monetary receipts and expenditures; having to do with money matters; pecuniary;
(ii) commonly engaged in dealing with money and credit;
(iii) (colloquial having ready money;
(b) the Australian Oxford Dictionary as meaning:
(i) of finance;
(ii) possessing money; having ready money;
(iii) paid up.
26. The word hardship is defined in:
(a) the Macquarie Dictionary as meaning:
(i) a condition that bears upon one; severe toil, trial, oppression or need;
(ii) an instance of this; something hard to bear.
(b) the Australian Oxford Dictionary as meaning:
(i) severe suffering or privation;
(ii) the circumstances causing this.
THE PLAINTIFF’S EVIDENCE
27. The plaintiff gave evidence that she is a practising senior clinical neuropsychologist at Diverge Consulting Inc. Eight other psychologists work at the clinic. The plaintiff also performed management duties at the clinic.
28. The plaintiff is married. Her husband works. They have three children living at home. The eldest child attends university and the other children are still at school. The plaintiff’s parents are alive but are divorced. The plaintiff and her family live in Williamstown. The plaintiff’s mother lives in Port Melbourne and her father lives in Tarwin Lower.
29. The plaintiff said that she, her parents and family were understandably shocked by the traumatic and sudden death of her brother. The plaintiff said that she not only had to deal with her own grief reaction but also had to support her grieving parents and family in dealing with the emotional consequences.
30. On 9 September 2018, the plaintiff emailed Genevieve McMahon, a clinical neuropsychologist at the clinic, and asked her to cancel her appointments for the following week. The plaintiff stated that she was having the week off, and possibly longer, depending on how her parents were coping (The email forms part of exhibit 2).
31. The plaintiff gave evidence that she did not see any patients for an eight-week period following the death of her brother. During that period the other psychologists at the clinic took over her appointments. A psychologist who had retired also returned to the clinic. The plaintiff said that she was not involved in the clinic and received no income during eight-week period.
32. The plaintiff said that there were several issues that she had to deal with following her brother’s death during the eight-week period.
33. The plaintiff said these issues were a direct consequence of her brother’s death.
34. In particular, she had to support both her parents. Her parent’s separation had been acrimonious, and the death of her brother reignited the conflict between them. The plaintiff said that her parents were not able to deal with the issues that followed her brother’s death.
35. The deceased did not leave a will. The plaintiff said that she had to navigate the legal system in that respect. Over the eight-week period, the plaintiff assisted her parents in obtaining legal advice and making an application for Letters of Administration. The plaintiff had to attend the Coroners Court, deal with the police, organise her brother’s funeral, make arrangements with respect to her brother’s dog, vacate her brother’s rental property situated in South Morang, and clean and dispose of rubbish from the premises.
36. The plaintiff said that she had to attend to her brother’s financial matters such as pay bills, close bank accounts, deal with service providers and utility companies and transfer the car registration.
37. The plaintiff said that all of this was against a background of dealing with the grief of her parents and family.
38. With respect to the loss of earnings expenses over the eight-week period, the plaintiff said that she compared her earnings from 1/07/17 to 31/12/17 (Exhibit 3) with her earnings from 1/07/18 to 6/09/18 (Exhibit 4). The plaintiff said that she then extrapolated her expected earnings for the remainder of the 2018 year to calculate the difference with the 2017 period. This amounted to $34,098.05 (The plaintiff’s calculations are set out in exhibit 8).
39. The evidence was that the plaintiff was paid sick leave of $19,231.87 during the period of eight weeks (Exhibit 7). The plaintiff said that, as a result, her current sick leave balance was now significantly less.
40. On 17 September 2018, the plaintiff wrote to Ms McMahon confirming Ms McMahon’s appointment as Acting Manager at the clinic in the plaintiff’s absence. The plaintiff stated that she anticipated that she would take 8 to 10 weeks leave and that Ms McMahon’s pay rate would be increased from $56.36 per hour to $67.01 per hour and back dated to 7 September 2018. The letter stated that the arrangement had been approved by the Committee of Management of the clinic. The plaintiff signed the letter and referred to herself as Clinical Neuropsychologist and Manager (Exhibit 6).
41. The plaintiff said that Ms McMahon was paid an additional amount of $3,136.42 on top of her normal salary to account for her taking on duties that the plaintiff normally performed. The plaintiff said that the additional amount was paid by the clinic and that all the psychologists contributed to the increase.
42. With respect to the toll expenses over the eight-week period, the plaintiff produced two ‘Linkt’ account statements dated 16/09/18 and 17/12/18 (Exhibit 10). The plaintiff said that the accounts set out various Citylink tolls paid during the period from 8/09/18 to 8/11/18. These tolls were incurred whilst travelling from the plaintiff’s residence in Williamstown to and from her brother’s residence in South Morang, her mother’s residence in Port Melbourne and her father’s residence in Tarwin Lower which was a 250-kilometre return trip. The plaintiff’s evidence was that the travel was associated with the activities that she undertook following her brother’s death.
43. The plaintiff gave evidence that she paid for her brother’s house to be cleaned and that she paid fees for 2 to 3 trips to the tip to dispose of rubbish from the house. The plaintiff said that she did not keep any receipts with respect to the said expenses.
44. The plaintiff said that the family budget was based on the earnings of herself and her husband and that the family experienced financial hardship due to the loss of her income over the eight-week period. The plaintiff said that the family had to be careful with what they spent and that there was ‘a change to the family’s lifestyle’. The plaintiff said that they had to reduce their mortgage repayments. The plaintiff gave an example of her daughters not being able to attend dance classes.
45. In cross-examination, the plaintiff said that she saw her general practitioner and a psychologist after her brother’s death but did not obtain any certificates for the eight-week period.
46. The plaintiff was cross-examined about her calculation of her loss of income for the eight-week period based on a comparison with the previous financial year.
47. The plaintiff was referred to her PAYG payment summary for that financial year 2017/2018 (Exhibit 5). The plaintiff agreed that the gross payment for that financial year was $90,503 together with a reportable fringe amount of $34,733. The plaintiff agreed that when the gross payments amount was divided by 52 weeks, the weekly amount was $1704. The plaintiff agreed that when that weekly amount was multiplied by 8 weeks, the amount was $13,923.
48. The plaintiff was cross-examined about why that amount was different to the amount of $34,098 that she had arrived at based on a comparison with the 2017/2018 year. The plaintiff said that the difference between $13,923 and $34,098 was explained by the fact that the clinic paid her a salary and the rest of her income from seeing patients went back into the running of the clinic.
49. The plaintiff agreed that she received sick leave during the eight-week period.
50. The plaintiff agreed that her husband continued to receive an income of approximately $4,000 gross per month during the eight-week period.
51. That was the extent of the defendant’s cross-examination of the plaintiff.
SUBMISSION ON BEHALF OF THE PLAINTIFF
52. Based on the evidence the plaintiff submitted the expenses:
(a) were incurred as a result of the death of her brother;
(b) were reasonably incurred and were of a reasonable amount; and
(c) incurred caused financial hardship to the plaintiff.
53. The plaintiff submitted that whilst expenses were not defined in the WIRCA, section 240(9) set out what it did not include. Section 240(8) set out that the reimbursement was not a payment of compensation under the Act.
54. The plaintiff submitted that it was pertinent that section 99AA of the ACA did not have any equivalent to section 240(9) of the Act.
55. The Act did not define reimburse, expenses incurred or financial hardship.
56. The Claims Manual developed by Worksafe Victoria to assist with decision making in line with the legislation, offered little guidance with respect to the above terms.
57. The plaintiff submitted that in applying the accepted canons of construction to construe the legislation through the words used in the statute, the recent approach had been for the courts to ascertain the intention of the legislature through the object or purpose underlying the legislation and to ascertain the meaning of the words in the light of that object or purpose. This was described as the ‘purpose’ approach to statutory interpretation and was another way of ascertaining the intention of the legislature (See Royal Automobile club of Australia Incorporating Imperial Service club v Sydney City Council (1992) 27 NSWLR 282 at 293).
58. The plaintiff submitted that the purpose of the Act was, amongst other things, to simplify the provisions applying to the rehabilitation of injured workers and compensation in relation to injuries or deaths arising out of accidents or diseases in the workplace on or after 1 July 2014.
59. The plaintiff further submitted that, to this consideration should be added the established principle that, where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred (Wilson v Wilson’s Tiles Works Pty Ltd (1960) 104 CLR 328 at 335).
60. The principles of and aids to interpretation were set out in section 35 of the Interpretation Act 1984 (Vic).
61. The plaintiff referred to the Workplace Injury Rehabilitation and Compensation Bill 2013 explanatory memorandum (referred to in paragraph 16) in relation to section 240 of the Act.
62. The plaintiff submitted that the Court could have regard to the relevant dictionary definitions and, in keeping with its purposive approach, the words expenses, reimburse, incur and financial and hardship should be given their ordinary meaning which are favourable to the plaintiff.
63. As section 240(9) excluded what does not constitute expenses, the plaintiff submitted that the term must be given its widest possible meaning.
64. The word expenses defined by the Macquarie Dictionary (Revised Third Edition) included loss or injury due to any detracting cause.
65. The loss of earnings expenses of $34.098 related to the calculation made by the plaintiff of her financial loss for the eight-week period whilst engaging in various activities as a direct consequence of her brother’s death.
66. While the plaintiff was paid sick leave of $19,231.87 during the 8-week period and, based on her evidence, continued to accrue sick leave beyond that date, the plaintiff had lost the benefit of that period of sick leave taken and had therefore suffered a loss or injury.
67. Ms McMahon was employed to undertake additional management responsibilities that the plaintiff had previously employed.
68. Whilst the evidence was that all members of the clinic contributed to the practice manager salary, Ms McMahon was paid an additional amount of $3,136.42 above her normal salary to account for the duties normally performed by the plaintiff.
Consistent with the dictionary definition meaning of the word incurred, the plaintiff was liable for the acting manager expenses.
69. The travel expenses were directly attributable to driving to various locations as the plaintiff undertook the tasks she had to perform as a result of managing the affairs of her brother.
70. The cleaning expenses and the tipping expenses were also incurred by the plaintiff as a direct result of her brother’s death. Despite not having any documentary evidence in relation to these expenses, the plaintiff gave evidence that the expenses were incurred, and that evidence should be accepted by the Court.
71. It was submitted that the plaintiff should not be criticised for not relying on any medical evidence to support her eight-week period of ‘incapacity’. The plaintiff was not making a claim for weekly payments. The purpose of section 240 of the WIRCA clearly contrasted the plaintiff’s claim for expenses with a claim for compensation.
72. The plaintiff submitted that the explanatory memorandum recognised that non-dependent family members could suffer financial hardship as a result of incurring reasonable expenses associated with a worker’s death such as administering the deceased’s estate. The plaintiff submitted that was just one example.
73. Whilst on a generous financial annual salary package, the plaintiff should not be precluded from suffering financial hardship.
74. The plaintiff’s evidence was that she had to put in place a reduction of mortgage repayments for the relevant period and that the household finances were very tight. The plaintiff’s evidence was that the family needed to monitor their expenditure. There were times when the family were not able spend money on things, such as her daughters’ dance classes. This was not an example of the family changing their lifestyle but of the family being subjected to financial hardship as a result of the death of the plaintiff’s brother.
SUBMISSION ON BEHALF OF THE DEFENDANT
75. The defendant submitted that, with respect to whether any of the expenses incurred by the plaintiff were as a result of her brother’s death, it was a matter for the Court to determine whether it was satisfied with the evidence presented by the plaintiff.
76. Despite having seen a general practitioner and psychologist as a result of the death of her brother, the plaintiff did not produce any medical evidence. The defendant submitted this was a relevant factor where the plaintiff had said that she could not work for the eight-week period following the death of her brother.
77. With respect to whether the cleaning and tipping expenses were reasonably incurred and of a reasonable amount, the defendant submitted that this was a matter for the Court to be satisfied, noting the absence of any invoice and/or receipt.
78. As to whether the travel expenses being claimed were reasonably incurred and of a reasonable amount, the defendant again submitted that this was a matter for the court to be satisfied.
79. As to whether the loss of earnings claim was reasonably incurred and of a reasonable amount, the defendant submitted the following:
(a) properly construed, section 240(4) of the WIRCA was not intended to provide an avenue for compensation for loss of earnings such as claimed by the plaintiff;
(b) even if the Court was satisfied that the plaintiff had been unable to work as a neuropsychologist for the eight-week period, any such loss of earnings was not an expense because the plaintiff had not paid the money nor was, she liable to pay the money. Rather, the plaintiff, at best, had not received the money. This was not a matter contemplated by section 240. This point was also illustrated by the example of being able to claim the cost of administering the deceased worker’s estate given in the explanatory memorandum (referred to in paragraph 16);
(c) the plaintiff’s solicitor’s letter dated 11 December 2018 said that the plaintiff’s claim of $34,098 was a ‘personal financial loss …. over an 8-week period’ (at page 1 of the letter which is part of exhibit 1). This claim was repeated in the plaintiff’s statutory declaration dated 20 February 2019 where she said, ‘during my eight weeks of absence, I was required to cancel patients which resulted in me incurring a personal financial loss of an estimated $34.098.00.’ (in paragraph 5 of the statutory declaration which is part of exhibit 10);
(d) exhibits 3 and 4 tendered by the plaintiff were ‘Sales [Salesperson Detail]’ statements from 1/07/17 to 31/12/17 (total sales of $82,249.64) and 1/07/18 to 31/12/18 (total sales of $39,485.35) with respect to the plaintiff’s employment at the clinic. This was contrary to the plaintiff’s statutory declaration dated 20 February 2018 where she said, ‘I employ ten staff and am responsible for the management of the practice as well as a large patient load.’ (in paragraph 3 of the statutory declaration which is part of exhibit 10).
(e) the difference between the total sales for each six-month period referred to in (d) was $42,764.27. It was not clear how the plaintiff had arrived at the claimed loss of $34,098.
(f) the plaintiff was also paid sick leave of $19,231.87 (according to her evidence and exhibit 7) which she confirmed related almost entirely to the 8-week period in question. Whilst the plaintiff may say that such sick leave had been used, she also gave evidence that she was entitled to 4 weeks sick leave per year and that her sick leave had regenerated subsequently;
(g) finally, contrary to any suggestion that the plaintiff might have been partially or totally incapacitated for work as a neuropsychologist, the plaintiff’s own evidence was that she was highly engaged in activities associated with her brother’s death over the eight-week period.
80. In relation to whether the acting manager’s expenses were reasonably incurred and of a reasonable amount, the defendant submitted the following:
(a) in the plaintiff’s statutory declaration dated 20 February 2019, the plaintiff asserted that she was required to appoint an acting manager to manage and co-ordinate ‘my practice’ in her absence resulting in an additional salary expense of $3,136.42 9 (in paragraph 6 of the statutory declaration which is part of exhibit 9);
(b) the substantiation for this claimed expenses was the letter from the plaintiff to the acting manager, Ms McMahon dated 17 September 2018 (exhibit 6);
(c) the plaintiff’s evidence was that the differential amount of $10.65 per hour that was being paid to Ms McMahon while the plaintiff was not working was contributed to by all the psychologists at the clinic and not just the plaintiff;
(d) the plaintiff made some suggestion that this $10.65 per hour increase paid to Ms McMahon was money that would otherwise have been paid to her, but this was not clear from her evidence or any documentation tendered on behalf of the plaintiff;
(e) it could be said that the additional $10.65 per hour paid to Ms McMahon was a loss that was not so much to that of the plaintiff but that of the clinic which the plaintiff said was a separate entity to her;
(f) the Court could not be satisfied that any additional moneys paid to Ms McMahon constituted an expense which was incurred by the plaintiff.
81. The defendant submitted that it was not enough for the plaintiff to have incurred expenses. The expenses must also have caused financial hardship pursuant to section 240(4)(c) of the WIRCA. The defendant said this had not been established by the plaintiff for the following reasons:
(a) there were no documents to prove financial hardship, such as tax returns for 2017/2018 and/or bank statements or loan documentation showing that the plaintiff had to borrow money (there was no suggestion of such in the plaintiff’s evidence);
(b) the plaintiff received sick leave of $19,231.87 for almost all the eight-week period;
(c) the plaintiff’s husband continued to work earning about $4,000 per month gross;
82. The only examples of financial hardship given by the plaintiff were as follows:
(a) a reduction in mortgage repayments for a period. There was no evidence as to the period or the amount of the reduction or how that had any financial impact on the plaintiff;
(b) for a period, the plaintiff said that household finances were ‘very tight’ and that it was necessary to ‘monitor things closely’ and ‘at times we were not able to spend money on things’;
(c) the plaintiff said her daughters were no able to attend dance classes and that the family had to make ‘changes to their lifestyle’ because of a ‘loss of finances’ but there was no other evidence of anything specific.
83. The defendant submitted that the above did not establish the basis for financial hardship as contemplated by the section.
84. The defendant submitted that, at all times, the plaintiff was a high earner. Exhibit 7 indicated that the plaintiff’s annual salary package as at her payment date of 6 June 2019 was $136,719.44. This document related to the same financial year as the plaintiff claimed the relevant losses (i.e. the period from approximately 6/09/18 to 6/11/18) and the plaintiff’s annual salary package had increased compared to the previous year.
85. The plaintiff’s PAYG summary for 2017/2018 (Exhibit 5) indicated a salary of $90,503 and reportable fringe benefits of $34,783, giving a total of $125,286.
86. The defendant submitted that the plaintiff’s annual salary package had increased from $125,286 in 2017/2018 to $136,719.44 in 2018/2019 and queried how the plaintiff could assert financial hardship in those circumstances
CONCLUSION
87. On the evidence I am satisfied that it was appropriate for the plaintiff to have a period off work to deal with the death of her brother, assist her parents and family and attend to her brother’s affairs.
88. Whist the plaintiff’s evidence was that she could not work for the eight-week period following the death of her brother, allowing for an appropriate period of mourning, I am not satisfied that the plaintiff did need to take time off work for the entire eight-week period.
89. However, the defendant did not really challenge the plaintiff’s evidence about the length of time she had off work. Given the Court’s overall findings, it is not necessary for me to take this matter any further.
90. The defendant did make some criticism of the lack of any medical evidence supporting the plaintiff’s time away from work. However, the plaintiff’s claim was not based on incapacity. Given the nature of this application, the need for such medical evidence would seem redundant.
91. In construing section 240 of the WIRCA, the Court’s approach must be consistent with identifying the legislative purpose of the Act as a whole.
92. In relation to section 240, the explanatory memorandum stated that the clause allowed for a non-dependant family member of a deceased worker to be reimbursed for expenses incurred (emphasis added) as a result of the death of a worker. The clause recognised that there may be instances where a non-dependant member may suffer financial hardship as a result of having to incur reasonable expenses associated with the worker’s death. An example was provided was the cost of administering the deceased worker’s estate.
93. In accordance with section 240(4), in exercising its discretion in favour of the plaintiff, the Court must be satisfied that:
(a) the expenses incurred by the plaintiff were as a result of the death of her brother;
(b) the plaintiff’s expenses were reasonably incurred and are of a reasonable amount; and
(c) the incurring of the expenses caused financial hardship to the plaintiff.
94. With respect to the loss of earnings expenses, the initial question for the Court to consider is whether section 240(4) was intended to compensate the plaintiff for the claimed loss. In other words, does the claimed loss come within the meaning of expenses?
95. I do not accept that, section 240(4), if properly construed, was intended to include a claim for loss of earnings as an expense. Whilst the plaintiff may have had to cancel her patients for the eight-week period, it did not involve the plaintiff in spending any money on her own behalf. The loss of earnings was not a cost or charge to her.
96. The plaintiff cannot be reimbursed for a cost or charge if she has not expended any money in the first place. Nor has the plaintiff become liable for and/or incurred any actual cost.
97. The example of being able to claim the cost of administering a deceased worker’s estate as an expense in the explanatory memorandum is also not consistent with the plaintiff being able to claim for a loss of earnings.
98. In the Court’s view, there must be a financial cost to the plaintiff that has been incurred as an out of pocket expense for the court to entertain exercising its discretion.
99. Section 240(9) excludes certain expenses from being reimbursed. I do not accept the plaintiff’s submission that this means that the term must otherwise be given its widest possible meaning. Whilst section 240(9) excludes certain specific expenses, those expenses involved the ‘cost of any service or contribution’, ‘legal or other costs’, and ‘an expense incurred’. The section still contemplates there having been a payment of money with respect to the excluded expenses. I am satisfied that this approach is consistent with the interpretation that the Court has applied to the term expenses.
100. The plaintiff submitted that the term expenses as defined by the Macquarie Dictionary (Revised Third Edition) includes loss or injury due to any detracting cause. As the plaintiff had lost the benefit of the sick leave taken during the eight-week period, the plaintiff submitted that the plaintiff had therefore suffered a loss or injury.
101. In making this submission the plaintiff seems to be changing the nature of her claim from the plaintiff’s loss of earnings being reimbursed to some compensation being paid to the plaintiff for using her entitlement to sick leave. In any event, I do not accept that submission for the same reasons as set out above. Whilst the plaintiff may have used her entitlement to sick leave, she did not incur any out of pocket expenses which could be reimbursed. The use of the sick leave by the plaintiff did not involve a gross monetary loss to her at the time but, rather, the loss of a chance that she might need it in the future.
102. Even if the loss of earnings claim could be considered an expense within section 240(4), I do not accept the basis as to how the plaintiff arrived at the amount of $34,098. The plaintiff purported to compare what her earnings would have been for the eight-week period following her brother’s death in September 2018 with the corresponding period in 2017.
103. However, in cross-examination, the plaintiff agreed that she would have been paid a salary of $13,923 during the corresponding eight-week period in 2017. This was well below the amount of $34,098 that she had claimed. The plaintiff said that the balance of the amount above $13,923 was then paid to the clinic for the running of the practice. I do not see how that extra amount could be considered as part of any loss of earnings claim by the plaintiff when she never personally had the benefit of the extra amount in the first place.
104. With respect to the acting manager’s expenses, the Court must again be satisfied that section 240(4) was intended to compensate the plaintiff for the claimed loss.
105. The plaintiff gave evidence that it was necessary to appoint Ms McMahon as the Acting Manager for the eight-week period as the plaintiff was unable to fulfil that role. On the face of it, the amount of $3,336.42 was spent and could properly be termed as an expense. However, the issue is whether the expense was incurred by the plaintiff herself. The plaintiff’s evidence was that the increase in Ms McMahon’s salary of $10.65 per hour was contributed to by all the psychologists in the clinic and not just the plaintiff.
106. Eight other psychologists work in the clinic. The evidence is that the clinic is a separate entity to the plaintiff. The plaintiff was employed by the clinic as a neuropsychologist and manager and was paid a salary by the clinic. Based on the plaintiff’s evidence, the salary paid to Ms McMahon, including the increase, was paid by the clinic and not by the plaintiff.
107. On that basis, I do not accept that the acting manager’s expenses were expenses incurred by the plaintiff.
108. The Court accepts the cleaning, tip and travel expenses were expenses within the meaning of section 240. Based on the plaintiff’s evidence, the expenses were incurred as a result of the death of her brother, were reasonably incurred and are of a reasonable amount. The expenses in question amounted to $550.25 for the toll and cleaning fees and approximately $250 to $300 for the tip fees.
109. However, the Court must be satisfied that these expenses have caused financial hardship pursuant to section 240(4)(c) of the WIRCA. Based on the court’s findings with respect to the loss of earnings expenses and the acting managers expenses, I do not believe that I can have regard to those items as a factor in determining whether the plaintiff has suffered financial hardship within section 240.
110. The plaintiff’s evidence is this regard was as follows:
(a) mortgage repayments were reduced for a period. There was no evidence as to the period or rate of reduction;
(b) for a period, household expenses were ‘very tight’ and it was necessary to ‘monitor things closely’;
(c) the plaintiff’s daughters were not able to attend dance classes;
(d) the plaintiff said there were ‘changes their lifestyle’ because of a ‘loss of finances’.
111. The evidence was that the plaintiff’s income during the eight-week period consisted of sick leave of $19,231.87. Her husband continued to work earning about $4,000 per month gross.
112. The evidence is that the plaintiff’s annual salary package for 2018/2019 was $136,719.44 (Exhibit 7).
113. According to the Macquarie Dictionary (Revised Third Edition), the ordinary meaning of financial hardship includes expenditure which is hard to bear.
114. In the circumstances, I do not accept that the incurring of the said expenses limited to approximately $850 caused financial hardship to the plaintiff.
115. The plaintiff submitted that the function of this Court was to construe, by the accepted cannons of construction the intention of the legislature through the words used in the statute.
116. The plaintiff referred to Wilson v Wilson’s Tile Works Pty Ltd (supra at 335):
To these considerations should perhaps be added the established principle that, where two constructions of a Workers’ compensation Act are possible that which is favourable to the worker should be preferred.
117. The Court does not accept that, on the plain meaning of the words of section 240 of the WIRC, that there is any ambiguity. The court is of the view that it has given the words used in the statute their ordinary meaning consistent with the legislative purpose and stated objectives of the WIRCA.
118. In Hegedis v Carlton United Breweries (2000) 4 VR at [32], Ashley J stated the following:
In construction of workers compensation legislation, which has been regarded as being remedial in character, there is a long-established principle that in the event of ambiguity a construction favourable to the worker should be adopted: Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 per Fullagar J at 335…
…It has continued notwithstanding a tendency across jurisdictions to reduce the ambit of compensability. It is not a vehicle for discovering ambiguity where none exists. It could not be used to set at nought the effect of s35(a) of the Interpretation of Legislation Act 1984.
119. The proceeding is dismissed. I invite the parties to provide the appropriate orders.
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