Carr and Australian Postal Corporation

[2005] AATA 817

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1089

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LOUISE CARR

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal	Senior Member, Mrs Josephine Kelly
Member, Dr Thorpe

Date  10 August 2005

Date of Written Reasons            24 August 2005

Place  Sydney

Decision The reviewable decision on 26 July 2004 in proceedings N2004/1089 is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – household services – applicant did provide household services before the injury – applicant lives with husband and son – husband and son can reasonably be expected to complete household services with minimal disruption to their activities – decision affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988, section 29

CASELAW
Re Torney v Telstra Corporation [1994] 20 AAR 94
Hopgood v Comcare  AAT 13229, (28 August 1998)
St Clair v Australian Postal Corporation [2001] AATA 580

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly
  Dr Thorpe, Member        

Introduction

1.      Mrs Louise Carr lives with her husband and 24-year-old son Craig. She injured her lower back at work on 2 October 2003 (exhibit T8) and consequently in April 2004 had an operation in which her L4/5 vertebrae were fused. She has limitations on her activities including lifting, bending and twisting.

Issues

2.      The issue for the Tribunal to determine is whether she is entitled to compensation for household services pursuant to section 29(1) of the Safety Rehabilitation and Compensation Act 1988.

Background

3.      The parties agree that the section requires that the household services have been obtained, or to put it another way, have been provided before compensation is payable. It was not in dispute that her capacity to carry out household tasks is restricted as a consequence of the injuries, although Mr Elliot for Australia Post submitted that she could carry out more tasks than she said she could.  Mrs Carr has not paid anyone for the household services for which she seeks compensation.

4.      She sought compensation for the following tasks which she says she can no longer undertake and she provided estimates of the time that she used to give to each of those. They are:

·Gardening - two hours per fortnight.

·Vacuuming - half an hour twice per week.

·Mopping floors - half an hour twice per week.

·Cleaning two bathrooms - one and a half hours per week.

·Cleaning kitchen surfaces - half an hour per week.

·Cleaning mirrored wardrobe doors - 10 minutes per week.

5.      This is a total of five hours and 10 minutes per week.

6.      I note that she had no assistance from either her husband or son with those tasks before her injury.

7.      She gave evidence about the people who had assisted her since her operation, the relevant period of the claim being from 3 May 2004 to date.  Her oral evidence was somewhat different from the particulars provided on her instructions by letter dated 14 October 2004 (exhibit A3) in which the following was provided:

·     For gardening our client's brother has performed gardening once in the last 12 months.

·     For vacuuming our client's son, son's friend, sister has performed it once every three weeks. However, this is on an ad hoc basis.

·     For mopping floors our client's son, son's friend, sister has performed it once every three weeks. However this is in an ad hoc basis.

·     The extent of the cleaning of the two bathrooms surfaces involves our client spraying the walls with bleach and then turns the taps on.  The tiles are therefore full of mould and the surfaces remain unclean..

·     Cleaning the kitchen surfaces - our client's husband tries to do this task once per month.

8.      That means the cleaning of the mirrored wardrobe doors is not attended to at all.

Assistance immediately after the operation

9.      On all of her evidence we find that Mr Carr took a week off from work when she came from home from hospital following her operation. He did the cleaning and cooking. He did not clean a bathroom or vacuum but did clean the kitchen and did no gardening.

10.     The second week after her return from home her sister-in-law Keiryn Henry helped her.  We find that she only got her lunch and did no other household tasks.

11.     Mrs Carr's son Craig got a 12 week exemption from meeting the Newstart activity test to look after his mother. He is asthmatic and diagnosed with attention deficit disorder and cannot do gardening because of allergies to plants. He is still not employed but is no longer on the Newstart allowance as he objects to working for the dole. He is financially dependent upon his parents. During the first two weeks after Mrs Carr's return home he was not required to assist. After that, he did go to the bank or get lunch for her and on a rare occasion vacuumed the house.

12.     During the second week Mr Carr cooked tea and cleaned only the kitchen.

13.     The third week after her return home Australia Post provided a nurse to change surgical stockings as Mr Carr and Craig could not do it and also to help with Mrs Carr showering. That went on for six weeks on a daily basis for one hour per day.

14.     Various people helped with cleaning tasks. They included Mrs Carr's two sisters, Therese Naumowicz and Bernadette Stott and Ms Henry, her sister-in-law, when she had days off.  Mrs Carr's brother John Henry helped with the gardening on a couple of occasions.

15.     Mrs Carr's sisters cleaned the bathrooms, changed the bed and cooked when they visited her on a regular basis every couple of days. She had such help until she returned to work on a rehabilitation plan (T158) approximately three months after the operation, That is in July/August 2004.  Mr Carr did the washing until Mrs Carr went back to work.

Assistance After Returning To Work

16.     Mr Henry, Mrs Carr's brother, did the gardening twice.  Her sisters on the odd occasion mopped out or vacuumed but not often and I note that the house seems to be comprised of a number of carpeted bedrooms and a lounge room and otherwise vinyl tile surfaces.

17.     Mr Carr occasionally vacuums or mops floors and occasionally does the washing. He does cooking if his wife is not feeling well and cleans the kitchen when he does so. He carries the washing downstairs to the laundry.

18.     Mrs Carr is upset and embarrassed by the condition of her home. She said the floors are dirty because they have not been vacuumed for two weeks, her sister-in-law having come over at that time but only vacuumed the lounge room floor and did not vacuum the whole house. She says she can see dust everywhere.

19.     We infer that Mrs Carr is meticulous in undertaking her household tasks and is very conscious when cleaning has not been carried out at all or not to her standard.  Similarly, she is conscious that her garden needs attention, stating that there is a weed out the back nearly as tall as she is.

20.     She does not like to make her husband or son do tasks around the house.  She felt guilty about asking Mr Carr to cut down roses last Sunday and I understand that to mean to prune roses.

21.     Mr Carr is a salesman who makes screen doors and windows and works 8.30 am to 4.30 pm five days a week and every third Saturday.  The duties he has at home include carrying rubbish downstairs, mowing the lawn and getting wood for the fire. When he comes home he apparently watches television from about 5pm until 9pm or later. In summer he also cleans around the pool regularly, perhaps daily, and in winter has to get wood for the fire.

22.     Mrs Carr's son Craig uses his parents' home to sleep at, getting home late, sleeping in until late and he doesn't eat there. His parents are supporting him financially. Since August 2004 he has done nothing, telling his mother on one occasion when asked to vacuum, "No, get stuffed", because she would not let him drive her car.

23.     Mrs Carr's attitude is that Australia Post "took me out" and she does not consider that Mr Carr should have to take on extra tasks. He has no health condition that would prevent him from undertaking additional tasks.  She believes Craig should assist around the house but she cannot force him to. He could mop, vacuum and clean the bathroom. He uses one bathroom and his parents another, although Mr Carr also uses that bathroom from time to time.

24.     We also find that Mrs Carr has not actually tried to undertake some of the tasks that she says she cannot but has relied on the limitations that Dr Gabriel prescribed following her operation, so whether she can actually do more than she has been is not known.

Conclusion

25.     On the above findings we conclude that there have been few household services obtained by Mrs Carr since her return to work and even during her recuperation at home. The tasks in respect of which she claimed five hours 10 minutes were not done, essentially.

26.     Mr Richards for Mrs Carr argued that the services her husband provides are beyond the call of the relationship and therefore she should be compensated for those services.  He relied on the cases in Re Torney v Telstra Corporation [1994] 20 AAR 94, Hopgood v Comcare AAT 13229, (28 August 1998) and St Clair v Australian Postal Corporation [2001] AATA 580.

27.     Reviewing the legislation. Section 29(2) provides:

Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case -  (I emphasise the words "reasonably required"):

- Comcare shall, in making such a determination, have regard to the following matters ….

28.     Those matters are set out as (a) to (e). I note that is not an exclusive list and other matters are relevant.

29.     Going to each of those matters prescribed in section 29(2). For section 29(2)(a), generally we accept that Mrs Carr did provide the services that I have referred to earlier and that she did spend five hours 10 minutes per week carrying them out. As we have found, she is a meticulous housekeeper and it is quite credible that she did spend the time on the tasks as previously mentioned. She has certainly not carried out those services to date and we do not really know whether she is capable or not of carrying out any of them.

30.     Going to 29(2)(b), the number of persons living with Mrs Carr as members of her household, we find that they are Mr Carr and Craig, her son.  We don't accept Mr Richards' apparent argument that because Craig only sleeps there he doesn't form part of the household. In our view he does. He certainly uses a bed, uses a bedroom and uses a bathroom which up to this point he apparently has never cleaned. As for their need for household services, neither is infirm. Apart from gardening which Craig can't carry out because of an allergy, both Mr Carr and Craig are quite capable of carrying out all the other tasks in respect of which Mrs Carr has put in her claim.

31.     We accept that in relation to section 29(2)(c) that neither Mr Carr nor Craig carried out any of the services Mrs Carr claims prior to the injury.

32.     However, coming to 29(2)(d), which is perhaps the crux of this decision, s 29(2)(d) relates to the extent to which the persons, that is Mr Carr and Craig, might reasonably be expected to provide household services for themselves and for the employee after the injury. As already indicated, we find that given the minimal amount of work that is involved, the hours of which are impossible to calculate on the evidence before us but we say a minimal amount, that Craig, who has nothing else to do in terms of no employment, could certainly contribute a number of hours per day, let alone over a week. Also, Mr Carr could certainly assist in the tasks that Mrs Carr cannot do.

33.     In relation to 29(2)(e), the need to avoid substantial disruption of the employment or other activities of the persons referred to, that is Mr Carr and Craig, we find that the minimal amount of household tasks or services that need to be provided which can't be provided presently by Mrs Carr would not substantially disrupt the employment or other activities of either Mr Carr or Craig.

34.     In all the circumstances, we find that Mrs Carr's claim for compensation for household services pursuant to section 29(2) is not made out.

Decision

35.     We affirm the reviewable decision of 26 July 2004.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr Thorpe, Member

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  9 August 2005
Date of Decision  10 August 2005
Date of Written Reasons          24 August 2005
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Mr G. Elliott
Solicitor for the Respondent     Graham Jones Lawyers