Commission for the Safety, Rehabilitation & Compensation of Commonwealth Employees v Horan, B.R.J

[1991] FCA 271

Re: COMMISSION FOR THE SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES
And: BARRY ROBERT JOHN HORAN
No. ACT G76 of 1990
FED No. 271
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Workers' Compensation - Commonwealth employees - Compensation payable in respect of the cost of medical treatment - Expenditure reasonably incurred in making a necessary journey for the purpose of obtaining medical treatment - Whether journey covered a substantial distance - Whether personal circumstances of employee may properly be taken into account.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), s.16

HEARING

CANBERRA

#DATE 23:5:1991

Counsel for the applicant: Mr A. Robertson

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr G.A. Stretton

Solicitors for the respondent: Sneddon Hall and Gallop

ORDER

The application be dismissed.

The decision of the Administrative Appeals Tribunal given on 19 November 1990 be affirmed.

The applicant pay the respondent's costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("the Commission") has applied to the Court by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 19 November 1990. The decision that was under review by the Tribunal was a decision made on 29 December 1989 disallowing claims by Barry Robert John Horan ("the respondent") for the reimbursement, pursuant to s.16 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the Act"), of expenditure incurred by him in making certain journeys for the purpose of obtaining medical treatment. The Tribunal set aside the decision under review and remitted the matter to the Commission for reconsideration in accordance with a direction "that each of the journeys the subject of the (respondent's) claims covered a substantial distance and that the expenditure related thereto was in each case reasonably incurred in making a journey that was necessary for the purpose of obtaining treatment that it was reasonable for the (respondent) to obtain in the circumstances".

1. Section 16 of the Act, so far as relevant for present purposes, provides:
   

"16. (1) Where an employee suffers an injury, the Commission is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as the Commission determines is appropriate to that medical treatment. ...

(6) Subject to subsection (7), where compensation in respect of the cost of medical treatment is payable, the Commission is liable to pay compensation to the employee of an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey for the purpose of obtaining that medical treatment or remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose.

(7) The Commission is not liable to pay compensation under subsection (6) unless:

(a) the journey covered a substantial distance; or

(b) where the journey involved the use of public transport or ambulance services - the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

(8) The matters to which the Commission shall have regard in deciding questions arising under subsections (6) and (7) include:

(a) the place or places where appropriate medical treatment was available to the employee;

(b) the means of transport available to the employee for the journey;

(c) the route or routes by which the employee could have travelled; and

(d) The accommodation available to the employee."

"Injury" is defined in s.4(1) of the Act. As so defined, the expression relevantly includes an injury (other than a disease) suffered by an employee, being a physical or mental injury (or the aggravation of such an injury) arising out of, or in the course of, the employee's employment. Section 5(9) provides that a reference to an employee in a provision of the Act that applies to an employee at a time after the Commission has incurred a liability in relation to the employee under the Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.

1. It is common ground that the respondent, at a time when he was an employee within the meaning of that expression in s.16(1) of the Act, suffered an injury as defined. The Tribunal accepted that the respondent has a very serious and genuine back problem, that his condition is compensible and that he was retired from the Australian Public Service on invalidity grounds in October 1981.

2. At all times material to this application the respondent lived in Monash, a southern suburb of Canberra. The Tribunal identified the four classes of journeys involved as being journeys made from Monash to-
   

"(i) Canberra (Civic), to the Canberra Club where the

(respondent) uses the pool and facilities at its Health Studio. This journey is 52 km return.

(ii) The Turner Medical Centre at Turner, where he sees Dr Cassar, a consultant physician. This journey is 54 km return.

(iii) Lyneham, where he sees Dr Shihoff, his general practitioner of 25 years standing. This journey is 58 km return.

(iv) Woden, where he sees Dr McNicol, an orthopaedic surgeon. This journey was said by the (respondent) to be 12 km return. From the Tribunal's calculations it may be slightly more than this. He sees him far less often than he sees the other doctors, in fact only about twice a year."

1. Although the notice of appeal filed on behalf of the Commission asserted that the Tribunal had erred in law in reaching the conclusion that the journeys falling within each of the classes identified above were journeys covering a substantial distance within the meaning of that expression in s.16(7) of the Act, when the appeal came on for hearing counsel for the Commission informed the Court that the appeal had been abandoned in so far as it concerned the journeys other than those from Monash to Woden referred to in sub-par.(iv) above.

2. The basis upon which the Tribunal concluded that the journeys from Monash to Woden covered a substantial distance appears from par.15 of the Tribunal's reasons for decision. That paragraph reads:
   

"15. In relation therefore to the journeys to the Canberra Club, Dr Cassar and Dr Shihoff, I find that they were necessary journeys for the purpose of obtaining treatment that it was reasonable for the applicant to obtain in the circumstances, and that the journeys covered substantial distances. The journeys to Dr McNicol likewise so qualify, save that there is a question as to whether the journeys to consult Dr McNicol covered a 'substantial distance'. A journey of such a length raises in an acute form the difficulties of interpretation arising from the adoption of so uncertain a criterion. Having given the question much thought, I have concluded that what is a 'substantial distance' must take into account the circumstances of the particular person involved. The present applicant cannot use buses, as previously found, and given that he can drive his car he would not qualify as reasonably requiring the use of an ambulance under s.16(7)(b). He certainly could not walk the 12km involved. If he did not own a car, he would surely have qualified for a taxi under s.16(7)(b) assuming that a taxi qualifies as 'public transport'. The use of a taxi would of course cost the taxpayer a good deal more than the use of a car owned by the person being treated, even if entitled to the full rate per kilometre as provided for by the decision in Re De Klerk and Comcare (Decision No.A89/115, 10 May 1990), which is under appeal to the Federal Court. But the bottom line is that for this man, in his condition and in his circumstances, the journeys of 12km each to see Dr McNicol covered, in my opinion, a substantial distance. These journeys were in fact few in number."

The references in that paragraph to the applicant are, of course, reference to the present respondent.

1. Before turning to the arguments advanced on behalf of the Commission, some reference should be made to the word "substantial". It is not a word of fixed meaning. It is a word that takes its meaning primarily from the context in which it appears and the subject matter to which it is applied. A plethora of decisions illustrate the difficulties of interpretation to which it can give rise. It is, however, sufficient for present purposes to refer to what was said in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 42 FLR 331 per Deane J. at p 348:
   

"The word 'substantial' is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v. Grinling ((1948) AC 291) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to 'considerable, solid or big', he said: 'Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ...' ((1948) AC, at p 317). (See also AE Terry's Motors Ltd v. Rinder ((1948) SASR 167, at p 180) and Granada Theatres Ltd v. Freehold Investment (Leytonstone) Ltd ((1958) 1 WLR 845, at p 848)."

1. The essence of the argument advanced on behalf of the Commission is that the Tribunal erred in law in holding that the journeys in question covered a substantial distance within the meaning of that expression in s.16(7) of the Act in that the Tribunal wrongly took into account the circumstances, including the medical condition, of the respondent. It was submitted that the Tribunal had asked itself the wrong question and, in doing so, had misconstrued the meaning of s.16(7)(a) of the Act. The question which s.16(7)(a) posed for the Tribunal was, so it was submitted, to be determined by reference to the length of the journey and by reference to no other circumstance. While it was conceded that the personal circumstances of the employee could properly be taken into account in determining other questions which arise under s.16, the personal circumstances of the employee had no place in resolving the question posed by s.16(7)(a). The questions in relation to which it was conceded that the personal circumstances of the employee could properly be taken into account included the question whether the medical treatment was treatment that it was reasonable for the employee to obtain (s.16(1)), the questions whether the expenditure was reasonably incurred in making a journey for the purpose of obtaining the medical treatment and, if so, whether that journey was a necessary journey (s.16(6)) and the question whether, where the journey involved the use of public transport or ambulance services, the employee's injury reasonably required the use of such transport or services (s.16(7)(b)).

2. Counsel for the applicant sought to find support for the submission in a comparison of the relevant provisions of s.16 of the Act with those of the section which it replaced, namely s.37 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That section relevantly provided:
   

"(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.

...

(7) Where compensation in respect of the cost of medical treatment is payable by the Commonwealth under this section, the Commonwealth is liable to pay compensation to the employee of an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connexion with the obtaining of that medical treatment or in remaining, for the purpose of obtaining that medical treatment, at a place to which he has made a journey for that purpose.

(8) The matters to which the Commissioner is to have regard in deciding questions arising under the last preceding sub-section include -

(a) the places at which appropriate medical treatment was available for the employee;

(b) the means of transport available for the journey of the employee;

(c) the route or routes by which the employee could have travelled; and

(d) the accommodation available to the employee. ..."

1. Counsel drew attention to the fact that s.37(7) of the earlier Act referred to the expenditure having been incurred by the employee in making a necessary journey "in connexion with" the obtaining of the medical treatment whereas the later Act requires that the journey be "for the purpose of" obtaining the treatment. More importantly, he referred to the absence from the earlier Act of any provision corresponding to s.16(7) of the later Act and, in particular, to the absence of any requirement that a journey cover a substantial distance. From this comparison he sought to draw the conclusion that the later Act gave a much more limited right in respect of the cost of travel to obtain medical treatment than was the case under the provisions previously in force.

2. Counsel also submitted that support was to be found for the argument advanced on behalf of the Commission in that the word "substantial" in s.16(7)(a) qualifies "distance" and not "journey" and in a comparison of the language of par.(a) of s.16(7) with that of s.16(1), s.16(6) and par.(b) of s.16(7). It was submitted that s.16 expressly refers to the personal circumstances of the employee where the legislature intended that those circumstances be taken into account. Examples were said to be found in the reference in ss.16(1) and 16(6) to the question whether it was reasonable that the medical treatment be obtained by the employee and the references in s.16(6) to the questions whether the journey was necessary for the purpose of obtaining medical treatment for the injury which the employee had suffered and whether the expenditure was reasonably incurred. A further example was said to be found in s.16(7)(b) under which the question arises whether the employee's injury reasonably required the use of public transport or ambulance services. By contrast, s.16(7)(a) contains no such reference.

3. I am unable to discern, by reference to the matters upon which counsel for the Commission relied or otherwise, a sufficient expression or indication of legislative intention that, in determining whether a journey covers a substantial distance within the meaning of that expression in s.16(7)(a) of the Act, the personal circumstances of the employee are to be excluded from consideration. If it had been intended that the question should be decided solely by reference to the actual distance in kilometres of the journey, it would have been simple for the Parliament to have so provided, either itself specifying the critical distance or providing for it to be prescribed by subordinate legislation.

4. In my opinion, no error of law is disclosed in the manner in which the Tribunal approached the question posed for its determination. The application is, therefore, dismissed. The decision of the Tribunal is affirmed. The Commission must pay the respondent's costs of the application.