Chief Executive Officer, Department of Transport v RSR
[2018] WADC 140
•25 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT -v- RSR [2018] WADC 140
CORAM: LONSDALE DCJ
HEARD: 3 OCTOBER 2018
DELIVERED : 25 OCTOBER 2018
FILE NO/S: APP 42 of 2018
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF TRANSPORT
Appellant
AND
RSR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE POTTER
File Number : MC/CIV/JOO/EDL/465 of 2018
Catchwords:
Application for extraordinary driver's licence - Meaning of 'urgent medical treatment' - Whether attendance at school could be regarded as urgent medical treatment for child receiving psychological treatment
Legislation:
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 30(1), s 30(4)(a)
School Education Act 1999 (WA), Pt 2 Div 3
Workers Compensation and Injury Management Act 1981
Result:
Appeal allowed
Decision of Magistrate Potter dated 27 March 2018 set aside
Respondent's application for extraordinary licence dismissed
Representation:
Counsel:
| Appellant | : | Mr J L Winton |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Grey v Pearson (1857) 6 HL Cas 61 [106]; (1857) 10 ER 1216
McKenzie v Department of Transport [2016] WASCA 147
Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243
Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642
Schaefer v Department of Housing [2018] WADC 88
LONSDALE DCJ:
On 27 March 2018 in the Joondalup Magistrates Court, his Honour Magistrate Potter made an order pursuant to s 30(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the Act) granting the respondent an extraordinary driver's licence.
His Honour found that the respondent had established the criteria under s 30(4) (a) of the Act which relevantly provides:
(4)Despite subsections (1) and (2), the court must not make an order directing the grant of an extraordinary licence unless it is satisfied that the refusal of the application would -
(a)deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family; or
…
The extraordinary licence was granted in the following terms:
1.Licence to be carried at all times whilst in control of a motor vehicle.
2.Comply with the Road Traffic Act and Regulations.
3.Not to drive with a blood alcohol content exceeding 0.00%.
4.To maintain and carry a log book showing time and place of departure, purpose of Journey and proposed destination.
5.The applicant is to display 'E' plates of the same type and dimensions and in the same manner as the 'L and P' plates provided for in the Traffic Regulations and as approved by the Traffic Branch while driving.
6.The applicant is to comply with the requirements of s 24(1)(b) and (c) of the Road Traffic (Authorisation to Drive) Regulations 2014 (written and practical test).
Restricted to drive JH (date of birth 28 November 2006) to and from [school] and [home]. Also restricted to drive [JH] to and from pre‑arranged medical and allied professional appointments and counselling services, evidence of such pre-arranged appointment to be provided to a police officer upon request.
Grounds of appeal
On 13 April 2018, the Chief Executive Officer of the Department of Transport lodged a notice of appeal against that decision.
The appellant relies on two grounds, namely:
1.The learned magistrate erred in fact by finding that the refusal of the application would deprive the Respondent of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by a member of the Respondent's family.
2.The learned Magistrate erred in law by finding that the attendance at school by a child constitutes 'urgent medical treatment' within the meaning of s 30(4)(a) of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
Appeals to the District Court
Appeals to this court are by way of a rehearing and are to be decided on material and evidence that was before the Magistrates Court.[1]
[1] Schaefer v Department of Housing [2018] WADC 88 [3] (Glancy DCJ); Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] – [10] (Bowden DCJ).
In order for the appellant to succeed it must establish that the learned magistrate erred in fact, law or in the exercise of discretion.[2]
[2] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The evidence before the Magistrates Court
The grounds for the respondent's application read as follows:
to drive to TAFE, to take my son to and from school and grocery shopping, doctors' appointments. I have cerebral palsy and getting to a bus stop and traveling (sic) on buses, walking takes impact on my body and I become very exhausted as I have an 11 year old son I cannot get on buses four times a day for my own education and my sons.[3]
[3] Application for extraordinary driver's licence dated 20 February 2018.
At the hearing of the application on 19 March 2018, the learned magistrate adjourned the application to 26 March 2018 to permit the respondent to produce medical evidence of her son's condition.
On 26 March 2018, the respondent produced some documentation from a screenshot (on her phone) which the learned magistrate viewed. The documentation was not tendered but it is apparent that it contained some record of the respondent attending medical appointments for her son.
The respondent submitted that her son had been diagnosed with a form of anxiety, that he has depression and was suicidal.[4]
[4] Ts 26 March 2018, page 3.
The learned magistrate indicated that he considered that it was integral to any therapy the respondent's son was receiving that he attend school and that attending school could be considered to be urgent medical treatment for a child with psychological issues. His Honour then adjourned the matter to 27 March 2018 to permit the respondent to further evidence about her son's condition from her general practitioner.[5]
[5] Ts 26 March 2018, page 7.
At the hearing on 27 March 2018, the respondent provided a letter from a doctor which referred to a diagnosis of depression and anxiety.
Mr Prestorius, who appeared for the appellant in the Magistrates Court, submitted that the report did not establish that the respondent needed a licence to take her son for urgent medical treatment; nor did it establish that the child needed to attend school as part of any treatment plan.[6]
[6] Ts 27 March 2018, pages 3 and 4.
After hearing submissions from Mr Prestorius, the learned magistrate indicated he intended to take a 'robust approach' in determining what constitutes medical treatment. His Honour made the following remarks[7]:
…
I accept what [the respondent] has had to say in support of her application. If she suffers herself with cerebral palsy … so for her to get buses to accompany her child to and from school is becoming increasingly difficult.
And so going back to the need for the child, an 11 year old child to attend school, I think it's axiomatic. I mean, he's actually required to attend school under the Education Act, let alone it being therapeutic for him to be at school for his social development, let alone his educational development. I mean, school is as much about social development as it is for a young person to get their education.
So I think I can also accept that a young 11 year old being disengaged from a school environment, who is suffering from depression at that very young age for the reasons [the respondent] indicated, which was around some severe domestic violence as well, all of that really ties into the need for this young person to be able to get to school and to do so with the support of his mother being able to drive him there and back and pick him up and drop him off in the mornings.
So as I say, I think if one takes a broad view of what treatment might be, then that could certainly be – when it comes certainly mental health issues attendance at school I think would considered to be a very significant therapeutic plank of any intervention. I can't imagine – and there seems to be some urgency around this particular application. Not that definition of the legislation, but the reason why I'm progressing this is because [the respondent] is struggling to get those broader reports that you're referring to that will address this issue very specifically.
Because the young boy has already missed the best part of half of the term. An 11 year old – is that the last year of primary school then?
[7] Ts 27 March 2018, page 4.
The learned magistrate then found that attending school could be regarded as 'urgent medical treatment' and that in this instance that had been established. In so finding, his Honour made the following remarks: [8]
I mean maybe when that legislation was written and considered, there may have been a very narrow view of what urgent medical attention – sorry, I've forgotten the definition but that urgency around medical attention may have meant so – well, made reference to, for example, physical ailments, such as a kidney failure and the requirement to get to dialysis, pre-arranged appointments, usually.
But I think with a deeper and better understanding of mental health, then the court has to take a broader view of what medical attention, intervention and an urgent medical intervention may require. So I go back to my point of an 11 year old boy whose becoming – sounds like almost verging on agoraphobic because of his depression against a background of severe domestic violence, which has given rise to the anxiety and the depression, the self-harming behaviours of an 11 year old, there is an urgency for that young boy to get back into school and start becoming socialised.
The type of broader definitions about what medical intervention, attention, treatment can be applied to mental health illnesses and issues. So – both therapeutic type interventions, and with an 11 year old it doesn't mean sitting down with a psychologist, necessarily, and sitting in a room talking to the psychologist. The most therapeutic involvement might be amongst that 11 year old's peers, playing at a playground. That might be what breaks the cycle for this 11 year old child.
[8] Ts 27 March 2018, page 12.
In making these findings, the learned magistrate adopted an expansive definition of 'urgent medical treatment'.
One issue raised in this appeal is whether that expansive definition can be supported by the language of s 30(4)(a) of the Act.
Ground 1
Ground 1 asserts that the learned magistrate erred in fact in finding that refusal of the application would deprive the respondent of the means of obtaining urgent medical treatment for an illness, disease or disability suffered by her son.
In order for the learned magistrate to have been positively satisfied that refusing the application would have the consequence of depriving the respondent of the means of obtaining urgent medical treatment for any illness, disease or disability suffered by her son, it was necessary for his Honour to have been satisfied, on the basis of evidence before him,[9] of each of the following:
(a)that the respondent's son had an illness, disease or disability;
(b)that the illness, disease or disability required medical treatment in the form of attendance at school;
(c) that the above treatment was 'urgent'; and
(d)that the refusal of the application would deprive the applicant of the means of obtaining that treatment.
[9] McKenzie v Department of Transport [2016] WASCA 147 [68].
The appellant submits that there was insufficient evidence (and certainly not any expert evidence) before the learned magistrate to establish that the respondent's son had an illness, disease or disability requiring medical treatment in the form of attendance at school – let alone that the treatment was urgent.
An opinion as to the nature and cause of an ailment is an opinion which must be given by a suitably qualified expert.[10] I accept the appellant's submission that there was no evidence before the learned magistrate that any suitably qualified expert had provided a proper medical diagnosis or had recommended a course of treatment. Although there was evidence from a doctor that the respondent's son was suffering from mental health issues, the basis of that diagnosis was not established.
[10] Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642, 645 (Dixon CJ & McTiernan, Kitto, Taylor & Windeyer JJ).
Further, I accept the appellant's submission that there was no evidence whatsoever that any treatment contemplated by any expert would have included attendance at school. As far as I can glean from the court record, the only evidence touching upon the desirability of the respondent's son attending school came from the respondent herself. In that regard, she gave hearsay evidence of what she had been told by her son's school about the importance of his attendance at school.[11]
[11] Appeal Book, document 7, page 35.
Even if there was evidence that the school thought it desirable that the respondent's son attend school - and that it could be accepted as axiomatic that a child would benefit from attending school - this falls way short of establishing that school attendance is or could be part of 'medical treatment'. Consequently, I find there was no proper basis for his Honour's finding that school attendance could be regarded as medical treatment. In this regard, the learned magistrate erred in fact.
Ground 2
Ground 2 asserts that the learned magistrate erred in law by finding that attendance at school by a child constitutes 'urgent medical treatment' within the meaning of the Act.
The Act contains no definition of the phrase 'urgent medical treatment'.
Consequently, ordinary principles of statutory interpretation apply. It is a fundamental principle of statutory interpretation that the words in a statute should be construed according to their grammatical and ordinary sense unless it would lead to some absurdity or inconsistency with the statute.[12]
[12] Grey v Pearson (1857) 6 HL Cas 61 [106]; (1857) 10 ER 1216, 1234 (Lord Wensleydale); Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.
The Macquarie Dictionary defines the phrase 'urgent' as meaning 'pressing; compelling or requiring immediate action or attention; or imperative'; the term 'medical' means 'of or relating to the science or practice of medicine; curative; medicinal; or therapeutic'; the term 'treatment' means, relevantly, 'the application of medicines, surgery, psychotherapy, etc, to a patient to cure a disease or condition'.
McLure P in Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 considered the meaning of the phrase 'medical treatment' in s 17(1) of the Workers' Compensation and Injury Management Act 1981 (WA). At [102] – [104] her Honour said:
102.The terms 'medical treatment' and 'surgical treatment' are not defined in the Act. Each of those terms, when used in a statute without a definition of the term, is a flexible expression which is capable of a greater or a narrower breadth of meaning according to the context in which it is used. See Lamont v Commissioner for Railways [1964] NSWR 406, 408 (Sugerman J, Else‑Mitchell & Taylor JJ agreeing).
103In my opinion, each of the terms 'medical treatment' and 'surgical treatment', in cl 17 of sch 1, has a wide connotation. This is consistent with the beneficial object of the Act. It is also consistent with the scheme which is apparent from s 57, cl 7(4) of sch 1 and cl 9 of sch 1; namely, that a worker who has suffered a compensable injury will be entitled to recover from his or her employer, in essence, reasonable expenses as provided for in cl 17 (subject to the limitation on those expenses set out in cl 17(1)), notwithstanding that payments of compensation for incapacity for work resulting from the injury have ceased under s 56 or cl 7(3), and notwithstanding that a total or partial incapacity for work does not result from the injury.
104In my opinion, the term 'medical treatment', in cl 17 of sch 1, bears its ordinary and natural meaning in the applicable context. The term includes any medication, procedure or therapy recommended, prescribed or performed by a medical practitioner. Similarly, the term 'surgical treatment', in cl 17, bears its ordinary and natural meaning in the applicable context. The term includes any operation performed by a medical practitioner. Plainly, the matters which I have mentioned, as being within the meaning of 'medical treatment' or 'surgical treatment' in cl 17, are not intended to be exhaustive.
In my view there are a number of factors compelling a conclusion that school attendance, as a matter of law, was incapable of constituting 'urgent medical treatment' within the meaning of the Act for the following reasons advanced by the appellant.
Firstly, school attendance is a legal obligation imposed on all school age children.[13]
[13] Part 2 div 3 of the School Education Act 1999 (WA).
Secondly, it is not a feature of school attendance that it has therapeutic benefits to a particular child. In most cases, school attendance could be regarded as 'therapeutic' in the sense of having a positive impact on a child's intellectual, perhaps social and psychological development. However, any 'therapeutic' benefit a child may derive from attending school is not an essential feature of such attendance.
Thirdly, there is no medical evidence that school attendance should form part of any medical treatment.
The appellant further submitted that, even if school attendance is capable of constituting medical treatment, regular attendance at school could not be characterised as urgent in the sense of requiring immediate attention. I do not consider that this final point is necessarily correct. As the learned magistrate pointed out, there is an urgency in requiring an 11‑year‑old child, particularly one with apparent mental health difficulties in attending school. Provided that the school attendance could otherwise be categorised as medical treatment (which I have concluded it could not) it may well have the necessary character of urgency in the sense of being 'pressing, compelling or imperative'. However, it is unnecessary for me to decide that aspect of the matter as I have concluded that there is no basis for concluding that school attendance constituted medical treatment. In this regard, I find that the learned magistrate erred in law.
I would uphold ground 2.
Orders
Consequently, I would allow the appeal and make the following orders.
1.The appeal be allowed.
2.The decision of the learned magistrate made on 27 March 2018 is set aside.
3.The respondent's application made 20 February 2018 is dismissed.
I will hear the appellant in relation to the issue of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
ASSOCIATE TO JUDGE LONSDALE25 OCTOBER 2018
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