DLZ (By His Litigation Guardian Iskra Nikolovski) v Transport Accident Commission
[2017] VSCA 134
•14 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0048
| DLZ (BY HIS LITIGATION GUARDIAN ISKRA NIKOLOVSKI) | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
| JUDGES: | OSBORN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 May 2017 |
| DATE OF JUDGMENT: | 14 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 134 |
| JUDGMENT APPEALED FROM: | [2017] VSC 176 (Kaye JA) |
---
ACCIDENT COMPENSATION – Transport accident – Benefits – Catastrophic injuries – Ventilator-dependent quadriplegic – Need for life sustaining equipment and 24 hour care – Need for premises to house equipment and carer – Increased rental expenses – Whether compensable – Whether need for larger premises or increased rent is a ‘medical service’, ‘disability service’ and/or ‘rehabilitation service’ – Transport Accident Act 1986, ss 3(1), 60(2)(a), 60(4) and 60(7).
STATUTORY INTERPRETATION – Text – Context – Legislative purpose – Examples – Interpretation of Legislation Act 1984, ss 35(a), 36(3A) and 36A(1).
WORDS AND PHRASES – Medical service – Disability service – Rehabilitation service – Transport Accident Act 1986, s 3(1).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram with Mr D J O’Brien | Slater & Gordon |
| For the Respondent | Mr P H Solomon QC with Mr C P Young | Solicitor to the Transport Accident Commission |
OSBORN JA
PRIEST JA
BEACH JA:
On 8 November 2014, the applicant, who was then 12 years of age, was a pillion passenger on a stationary motorcycle when the motorcycle was struck by a 4-Wheel-Drive travelling at approximately 60 kilometres per hour.
As a result of the collision, the applicant suffered catastrophic injuries. He is a ventilator-dependent quadriplegic who is also dependent upon a tracheostomy for PEG feeding. He is paralysed in all four limbs and has no voluntary movement at all. He has no voluntary bowel or bladder function, and is fully dependent on equipment and carers for all activities of daily living. Notwithstanding his extensive disabilities, he is conscious, alert and engaged but is unable to vocalise. He has been trialling an eye-tracking computer with the aim of being able to have some control over his environment and recreational activities.
Since his discharge from hospital, the applicant’s principal carer has been his mother. She is assisted by carers funded by the respondent. The applicant’s injuries require a carer to be available 24 hours a day. Additionally, the respondent has provided all of the heating and cooling facilities that are necessary for the care of the applicant, together with all of the equipment and supplies required by the applicant for his maintenance and continued survival.
The applicant, who is now 15 years of age, and the applicant’s mother live in rented accommodation. There is no dispute that, as a result of his injuries, the applicant requires more substantial accommodation than was necessary before his accident. In particular, the respondent accepts that, so far as accommodation is concerned, the applicant requires larger premises than he did before he was injured, so as to accommodate himself, his mother, a carer, and the equipment necessary for the applicant’s survival and care, including heating and cooling facilities as prescribed by medical practitioners, and the provision of vital backup equipment necessary to keep the applicant alive.[1]
[1]DLZ v TAC [2017] VSC 176 [6], [7] (‘Reasons’).
This case concerns the question of whether the respondent has any, and if so what, liability to pay or contribute to the extra amount paid in rent for, or on behalf of, the applicant to live in larger premises than he would otherwise have reasonably required, if he had not suffered his catastrophic injuries, so as to accommodate the equipment he now requires, together with necessary backup equipment, supplies and a carer.
The answer to that question falls to be determined by the proper construction of ss 3 and 60 of the Transport Accident Act 1986 (‘the Act’).
Background
On 1 May 2015, a request was made on behalf of the applicant for the respondent to contribute to the cost of renting a property of the size now necessary to support the applicant. The claim was for an amount measured as ‘the difference in cost of renting’ a property of the kind the applicant resided in before the accident and a property with the features required by the applicant ‘as a direct result of the injuries … sustained in the accident’. The claim was made to the respondent on the basis that this amount fell within the definition of ‘rehabilitation service’, ‘disability service’ and/or ‘medical service’ in s 3(1) of the Act, and the respondent was therefore liable to pay the claim pursuant to s 60 of the Act.
On 6 May 2015, the respondent rejected the applicant’s claim. On 7 October 2015, the respondent confirmed its denial of the applicant’s claim. On 13 October 2015, the applicant commenced review proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’). On 12 July 2016, VCAT affirmed the respondent’s rejection of the applicant’s claim.[2]
[2]DLZ v Transport Accident Commission [2016] VCAT 1154 (‘VCAT Reasons’).
On 11 October 2016, the applicant commenced a proceeding in the Supreme Court, seeking leave to appeal from VCAT’s rejection of his claim. In that proceeding, the applicant contended that VCAT had erred in its interpretation and application of the definitions of ‘medical service’, ‘disability service’ and ‘rehabilitation service’ in s 3(1) of the Act. The applicant’s appeal came on for hearing before a judge in the Trial Division on 4 April 2017. On 10 April 2017, the judge dismissed the applicant’s appeal.[3]
[3]Reasons.
The applicant now seeks leave to appeal against the decision of the judge. The applicant’s proposed grounds of appeal are as follows:
IThe Judge erred in the interpretation of the definition in s 3(1) of the Transport Accident Act 1986 of ‘disability service’ in determining the liability of the Respondent to pay compensation to the Applicant pursuant to s 60(2)(a) of that Act.
2The Judge erred in the interpretation of the definition in s 3(1) of the Transport Accident Act 1986 of ‘medical service’ in determining the liability of the Respondent to pay compensation to the Applicant pursuant to s 60(2)(a) of that Act.
3The Judge erred in the interpretation of the definition in s 3(1) of the Transport Accident Act 1986 of ‘rehabilitation service’ in determining the liability of the Respondent to pay compensation to the Applicant pursuant to s 60(2)(a) of that Act.
4The Judge erred in applying the decision in TAC v Salcedo (2003) 8 VR 276 in the circumstances of the Applicant's case.
5On the facts found, the Judge ought to have determined that the rental of premises occupied by the Applicant was integral to, or part and parcel of, the provision of a:
(a) ‘disability service’;
(b) ‘medical service’;
(c) ‘rehabilitation service’ -
as defined in s 3(1) of the Transport Accident Act 1986.
6The trial Judge erred in failing to find that on their correct interpretation the rental of premises necessary to store the Applicant's equipment, reserve equipment, associated supplies and carer support to maintain the effective operation of the same was not a:
(a) ‘disability service’;
(b) ‘medical service’;
(c) ‘rehabilitation service’ -
as defined in s 3(1) of the Transport Accident Act 1986.
Relevant provisions of the Act
As the judge observed,[4] the critical issue in dispute between the parties is whether the respondent is liable to pay the additional rental cost, arising from the applicant’s needs, pursuant to s 60(2)(a) of the Act. Section 60(2)(a) of the Act provides:
(2)The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident—
(a)the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs, vocational rehabilitation services and ambulance services received in Australia because of the transport accident; …
[4]Ibid [11].
The respondent’s case is that the additional rental cost associated with his needs may be properly characterised as the reasonable costs of a ‘medical service’, ‘disability service’ or ‘rehabilitation service’, within s 60(2)(a).
Section 3(1) contains the definition of each of those services as follows:
3 Definitions
(1) In this Act—
disability service means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service or a hospital service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23;
…
medical service, except in Part 10, includes—
…
(g)the provision, at the request of a medical practitioner, of room temperature control equipment for a person who is unable to adequately regulate his or her own body temperature; and
(h)the provision, at the request of a medical practitioner, of equipment intended to treat or stabilize any injury or condition resulting from a transport accident;
Examples
Examples of equipment referred to in paragraph (h) include life support equipment, ventilators and special lighting.
(i)the provision of anything needed to operate, run, maintain or repair any equipment referred to in paragraph (g) or (h);
Examples
Examples of things referred to in paragraph (i) include electricity, water, lubricating oil and replacement filters and batteries.
…
rehabilitation service means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23.
In addition to s 60(2)(a) of the Act, s 60(4) and (7) are also relevant to the issues raised on this application. Those sections provide:
(4)If a person, as a result of his or her transport accident injury, reasonably requires that a home in which he or she resides in Australia be modified, the Commission is liable—
(a) to pay the reasonable costs of modifying the home; or
(b)if for any reason the home cannot be reasonably modified, to contribute a reasonable amount—
(i)to the purchase costs of a semi detachable portable unit; or
(ii)to the costs of relocating the person to another home that is suitable for the person or that is capable of being reasonably modified.
…
(7)Nothing in this section renders the Commission liable to pay as compensation the cost of the provision to, or for, a person who is injured as a result of a transport accident of any of the following things unless the provision of a particular thing to the person is a medical service, or a hospital service, provided as a result of the injury—
(a)accommodation (including accommodation-related costs such as rent, bonds, rates, accommodation costs levied in accordance with Commonwealth legislation, capital contributions and costs associated with the buying or selling of property, but not including the costs and contributions referred to in subsection (4));
(b) food or household or personal items;
(c) power, water or any other service provided by a utility;
(d) room temperature controls;
(e)any other thing specified by the regulations for the purposes of this subsection.
The judge’s reasons
The judge’s reasons commence with a description of the background facts[5] and the identification of the relevant provisions of the Act.[6] The judge then characterised the issue in dispute between the parties as ‘whether the additional accommodation needs of [the applicant] may be properly characterised as disability services, medical services or rehabilitation services as defined in the Act’.[7] The judge then referred to three relevant cases and the enactment of s 25 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (‘the 2003 Act’). The three cases were Transport Accident Commission v McRitchie,[8] Transport Accident Commission v Salcedo[9] and Transport Accident Commission v Hogan.[10] Section 25 of the 2003 Act, which commenced on 3 December 2003, inserted paragraphs (f)–(i) into the definition of ‘medical service’ in s 3(1) of the Act, and inserted sub-ss (7)–(10) into s 60.
[5]Ibid [1]–[10].
[6]Ibid [11]–[14].
[7]Ibid [15].
[8](2003) 39 MVR 136 (‘McRitchie’).
[9](2003) 8 VR 276 (‘Salcedo’).
[10](2013) 41 VR 112 (‘Hogan’).
The judge described the facts of McRitchie in some detail,[11] before turning to those of Salcedo[12] and Hogan.[13] In the course of the judge’s analysis of these cases, the judge referred to the enactment of the 2003 Act and the Second Reading Speech made by the Minister for WorkCover in the Legislative Assembly on 16 October 2003 (a speech made after the Court of Appeal’s decision in McRitchie, but before the Court of Appeal’s decision in Salcedo).[14]
[11]Reasons [16]–[18].
[12]Ibid [19]–[21].
[13]Ibid [23]–[25].
[14]Ibid [22].
McRitchie concerned the question whether the Transport Accident Commission was liable to pay a ‘bed fee’ charged by a community house in which the claimant (who had suffered catastrophic injuries in a transport accident) lived and received attendant care services and rehabilitation. In that case, a decision at VCAT that the bed fee could not be ‘disaggregated’ so as to remove from it an amount for ordinary living expenses was upheld on appeal to the Trial Division and then again in the Court of Appeal. McRitchie, as the judge noted, was referred to by the Minister for WorkCover in the Second Reading Speech for the 2003 Act in the following terms:
In Transport Accident Commission v McRitchie, the Court of Appeal found that it could not separate ordinary daily living costs from support and health related services, such as rehabilitation and disability services, for a client living in supported accommodation.
Historically, the TAC has not considered itself liable for ordinary daily living costs not specifically related to the client’s injuries, on the basis that these are needs common to all adult members of the community, are not accident related and have not been considered separately compensable under the definitions in the Transport Accident Act.
It is proposed to amend the Transport Accident Act and the Accident Compensation Act to disaggregate ordinary daily living costs from other support expenses which are payable as compensation under both schemes and to create a new 18 month transitional benefit to assist claimants leaving a hospital or inpatient rehabilitation service. All costs that form part of the hospital or inpatient rehabilitation service will still be covered by the schemes. There are no changes in this bill to the entitlements of minors, their families or carers.[15]
[15]Victoria, Parliamentary Debates, Legislative Assembly, 16 October 2003, 1154–8 (Mr Hulls, Minister for WorkCover).
In Salcedo, as the judge observed, the Court of Appeal held that additional rental costs, that were incurred as a result of the need to accommodate the claimant’s carer, did not fall within the definitions of ‘disability service’ or ‘rehabilitation service’ in s 3(1) of the Act.[16]
[16]Reasons [20].
In Hogan it was held that a motorised vehicle that was provided for the purpose of rehabilitation came within the definition of ‘rehabilitation service’. The applicant had relied (and continues to rely) upon Hogan as authority for the proposition that, having regard to the beneficial nature of the Act, the words in s 60 and the definitions of the expressions used therein should be given a liberal construction.[17]
[17]Hogan (2013) 41 VR 112, 122 [49].
Having discussed McRitchie, Salcedo, Hogan and the legislative history of the Act, the judge then dealt with the reasons of the VCAT member at first instance,[18] and the submissions of the parties on the appeal from that decision.[19]
[18]Reasons [26].
[19]Ibid [28]–[35].
The judge recorded the submissions made to him on behalf of the applicant as follows:
1.The applicant’s application did not concern the ‘cost of rent’, but rather it related to the expense of premises necessary to accommodate the applicant, his life-sustaining equipment and supplies, and his carers. Thus characterised, the expense fell within one or more of the definitions of ‘disability service’, ‘medical service’ or ‘rehabilitation service’.
2.Salcedo should be distinguished, on the basis that that case concerned an allowance for ‘accommodation per se’, whereas in the present case the increased rent, incurred by the applicant, comprised the cost of storing the vital equipment necessary for his care and upkeep. Unlike in Salcedo, the increased rent costs claimed by the applicant were ‘part and parcel’ of the rehabilitation services provided to him in the form of equipment that is necessary to sustain him. The expenses claimed by the applicant related to the storage of his rehabilitative equipment, and thus either constituted, or are an integral part of, the cost incurred for the provision to him of an aid, appliance or apparatus for the purposes of his rehabilitation.
3.The rent that is in issue is ‘inextricably bound’ to the costs of attendant care, which is necessary to maintain the functioning of the applicant’s equipment. Such costs are not an ordinary daily living cost. Rather, the services provided by the carer constitute ‘attendant care’, ‘assistance’, ‘accommodation support’ and ‘household help’ within the definition of ‘disability service’ in s 3(1) of the Act.
4.The additional rental costs sustained by the applicant constituted a cost in respect of a ‘medical service’. The life-sustaining equipment, on which the applicant relies, and which must be housed in close proximity to him was designed to ‘adequately regulate his … own body temperature’, and ‘to treat or stabilise (his) injury or condition’. That equipment must be operated, run, maintained and repaired and is necessary for those purposes. Thus, it was contended, the costs claimed by the applicant were captured by paragraphs (g), (h) and (i) of the definition of ‘medical service’ in s 3(1) of the Act.
The judge then recorded the respondent’s submissions in opposition to the applicant’s submissions as follows:
1.The submission that the cost of rent was a ‘disability service’ or a ‘rehabilitation service’ was in direct conflict with Salcedo and there was no basis for distinguishing Salcedo from the present case.
2.The space required to accommodate the applicant’s equipment in close proximity to him does not fall within the definition of ‘medical service’. The definition of ‘medical service’ had to be construed in combination with s 60(7) of the Act. When those two provisions are read together, s 60(7) operated to make the Commission not liable to pay for the costs of the provision of items such as accommodation, food or household or personal items, or the like, except to the extent to which such items are specifically covered by the definition of ‘medical service’. The omission in the definition of ‘medical service’ of the costs of rent or accommodation costs is significant, indicating an intention by the Parliament that such items are not comprehended within the meaning of ‘medical service’.
3.It would be necessary to do ‘some violence’ to paragraph (i) of the definition of ‘medical service’ in order to bring within it the cost of rent for physical space. The cost of rent for physical space was not contemplated within the examples provided in the section.
The judge, after making two preliminary observations, commenced his analysis of whether the premises that are required to house the applicant’s carers and equipment comes within the definition of ‘disability service’, ‘medical service’ or ‘rehabilitation service’, by observing that it was not in dispute that the carer services, provided to the applicant at those premises, constituted a ‘disability service’, and that the equipment used by the applicant at those premises, and critical to maintain the applicant’s life, came within the definition of ‘rehabilitation service’ in s 3, and also within paragraphs (g) and (h) of the definition of ‘medical service’.[20] The judge then dealt with the applicant’s then primary contention that the accommodation and storage required for the equipment and carer was ‘part and parcel’ of those services, observing that the expression ‘part and parcel’ came from the Court of Appeal’s judgment in Salcedo where the Court described McRitchie as follows:
In McRitchie, the ‘rehabilitation service’ was essential to the wellbeing of the injured person, for the need was clear for special food, assistance with feeding, and so on. Payment of the ‘bed fee’ was justified because, although it included something for accommodation, albeit special accommodation, it was but part and parcel of the ‘rehabilitation service’ being provided: the cost of accommodation — the special accommodation — was incapable of being separated out.[21]
[20]Ibid [40].
[21]Salcedo (2003) 8 VR 276, 284 [22].
The judge accepted that there was no doubt that the storage or accommodation of the applicant’s equipment and carer, at the applicant’s premises, was a critical and indispensable aspect of the provision of the rehabilitation equipment and the services of the carer to the applicant. However, the judge said that, unlike in McRitchie, he did not consider that this storage or accommodation could properly be characterised as being ‘part and parcel’ of the provision of the equipment and those services to the applicant. Rather, as his Honour said, the accommodation made available could be (and was) ‘disaggregated’ from the equipment and the services of the carer.[22]
[22]Reasons [44].
Next, the judge turned to Salcedo and concluded that the provision of the accommodation sought by the applicant, on the authority of Salcedo, was not a disability service or a rehabilitation service within the meaning of the Act. The judge held that both on the authority of Salcedo, and in ‘plain parlance’, the accommodation necessary to house the applicant’s equipment and carer did not come within the definitions of ‘disability service’ or ‘rehabilitation service’.[23]
[23]Ibid [45]–[48].
The judge then turned to the question of whether the additional accommodation came within any of paragraphs (g)–(i) of the definition of ‘medical services’. Having concluded that the additional accommodation did not fall within paragraphs (g) or (h), the judge said:
The critical question is whether it comes within paragraph (i) of the definition, namely, constituting the ‘… provision of anything needed to operate, run, maintain or repair any equipment referred to in paragraph (g) or (h)’.
Clearly, the accommodation, that is in question, is necessary to house or store equipment that would fall within paragraph (g) and paragraph (h) of the definition of medical services. However, such accommodation could not, as a matter of ordinary English, be characterised as something needed to ‘operate, run, maintain or repair’ that equipment, unless that phrase were given a strained or artificial meaning. The examples, provided under paragraph (i), are each items that readily respond to one or more of the verbs contained in that definition. Those examples form part of the section.[24] They are convenient to clarify, and to illustrate, the meaning of the terms used in the statutory provision.[25] In the present case, the examples reinforce the conclusion that the verbs ‘operate, run, maintain or repair’, in paragraph (i) of the definition of medical services, are to be accorded their ordinary and natural meaning. As such, I do not consider that they extend to cover the provision of accommodation necessary to locate and store the equipment that is required to maintain and treat the plaintiff.[26]
[24]Interpretation of Legislation Act 1984 (Vic) s 36(3A).
[25]DPP v Walters (a pseudonym) [2015] VSCA 303 [7]; Brooks v Federal Commissioner of Taxation (2000) 173 ALR 235, 252 [66].
[26]Reasons [49]–[50] (citations in original).
The parties’ submissions
In his written case in this Court, the applicant sought to advance again all of the arguments that had been unsuccessful at VCAT and before the judge. In addition, it was submitted that Salcedo was plainly wrong and should not be followed by this Court. In oral argument, however, there was a substantial shift in emphasis by the applicant, and the applicant brought to the fore, and developed in greater detail, his contention that the extra accommodation needed to house the applicant’s carer and life-sustaining equipment, backup equipment and supplies, came within paragraph (i) of the definition of ‘medical service’, as being ‘the provision of anything needed to operate, run, maintain or repair’ equipment that was covered by paragraphs (g) and (h) of that definition.
In its written case, the respondent maintained its arguments in opposition to the applicant’s submissions, and supported the judge’s reasons. In oral argument, and in opposition to what became the applicant’s principal submission before us, the respondent relied upon the text and context of the relevant provisions in the Act to contend that the extra accommodation (rent) did not come within paragraph (i) of the definition of ‘medical service’.
In submitting that accommodation (rent) did not come within paragraph (i) of the definition of ‘medical service’, the respondent however accepted that, for a catastrophically injured person who owned a property, there would not be any issue about compensability because the property could (and would) be modified pursuant to s 60(4). Senior counsel for the respondent fairly conceded that it was difficult to discern a legislative purpose for treating those who rented their homes differently from those who owned their homes, saying:
And the answer to that question is no more able to be proffered by the Commission than to observe as Justice Kaye did, that the Act provides that compensation, which it does, and not more and that is a matter for the legislature.
As part of its submissions on context, the respondent took us to the Second Reading Speech for the 2003 Act, in which it was stated that ordinary daily living costs, not specifically related to a claimant’s injuries, were not compensable under the Act.
As part of its submissions about the statutory text, the respondent observed that accommodation and rent were not specifically referred to in paragraph (i), and were not ordinarily thought of as things that might constitute, or be described as, medical services. In making that submission, the respondent placed reliance upon those authorities that have said that, while the ordinary or dictionary meaning of a defined term in a statute is notionally displaced or altered by the statutory definition, the ordinary or dictionary meaning of a particular term may influence, or colour, a court’s view of the defined meaning of the term.[27]
[27]See, eg, Greater Shepparton City Council v Clarke [2017] VSCA 107 [74], citing Manly Council v Malouf trading as Fusion Point (2004) 61 NSWLR 394, 396–7 [8]–[10]; Hastings Cooperative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400 [17]; Heffernan v Comcare (2014) 2018 FCR 1, 9 [46]; British Amusement Catering Trades Association v Westminster City Council [1989] AC 147, 157.
Analysis
The applicant’s contention that Salcedo is plainly wrong and should be overruled can be disposed of in short compass. While, prior to this Court’s decision in Salcedo, it may have been arguable whether the accommodation costs claimed in that case fell within the definition of ‘disability service’ or ‘rehabilitation service’, Salcedo resolved that controversy. Moreover, while the applicant sought to contend that Salcedo was plainly wrong, no error of principle in the decision was identified by the applicant. The applicant, without identifying any actual error, merely asserted that the court in Salcedo had adopted too narrow a construction of the relevant provisions of the Act.
Further, and in any event, Salcedo is a decision that has stood for more than 16 years without it ever having been suggested that it was erroneously decided. Additionally, and of note, the Parliament has amended the Act many times since Salcedo was decided. Considerations of the kind referred to in Thompson v His Honour Judge Byrne,[28] and in this Court’s decision in Starr v Greenfreight (Services) Pty Ltd[29] now militate against any reconsideration of Salcedo at this stage — the Parliament not having sought, in any of the many amending Acts enacted since Salcedo, to amend the definitions of ‘disability service’ and ‘rehabilitation service’ so as to alter their effect as they were construed in Salcedo.
[28](1999) 196 CLR 141, 157 [40] (Gleeson CJ, Gummow, Kirby and Callinan JJ); 160 [53] (McHugh J).
[29][2016] VSCA 213 [34].
In the applicant’s written case, his next argument concerning Salcedo (if this Court did not accept that Salcedo should be overruled) was that the judge misapplied Salcedo. We reject this submission. The judge gave careful and detailed consideration to the reasoning in Salcedo, holding that, upon the reasoning in Salcedo, the applicant’s present claim could not fall within the defined terms ‘disability service’ or ‘rehabilitation service’. For the reasons given by the judge,[30] the judge was, with respect, plainly correct in the application of Salcedo.
[30]Reasons [45]–[48].
Having regard to the way in which the applicant has altered the emphasis of his argument in this Court from the way in which the applicant’s case was put at VCAT and in the Trial Division, what has now become central is whether the rent associated with the additional accommodation required by the applicant is capable of constituting the provision of something needed to ‘operate, run, maintain or repair’ life-saving and life-preserving equipment that falls within paragraphs (g) and (h) of the definition of ‘medical service’. That is, in argument before us, the central question for this Court became whether that additional accommodation (rent) claimed by the applicant comes within paragraph (i) of the definition of ‘medical service’ in s 3(1) of the Act.
There is no doubt that the applicant has particular needs for the provision of particular equipment and services as a result of the catastrophic injuries he suffered in his transport accident. The evidence of the precise equipment and services needed by the applicant is, however, not entirely clear from the record produced in this Court. That said, the respondent very fairly conceded before us that if we were of the view that paragraph (i) of the definition of ‘medical service’ was capable of having operation, so that the matter would be required to be remitted to VCAT for rehearing in accordance with our reasons, then the respondent would not maintain that there was any deficiency in the record, and the respondent would also accept that the matter could be reheard at VCAT on evidence already given and upon any additional evidence that it might be thought necessary to call.
It is now necessary to construe paragraph (i) of the definition of ‘medical service’, by reference to its text, in its context, and bearing in mind the legislative purpose of the provisions of the Act.[31] We turn first to the text. The evidence discloses that the applicant has a need for additional space within his home to house the equipment he requires and which equipment clearly falls within the wording of paragraphs (g) and (h) of the definition of ‘medical service’. Such equipment needs to be housed so that it can operate and does not break down or fall into disrepair. The housing (which in this instance is provided by rental accommodation) is needed to run, operate and maintain equipment and thus falls within the literal terms of the description contained in paragraph (i) of the definition. The examples at the foot of paragraph (i) form part of the Act,[32] are not exhaustive, and may extend, but do not limit, the meaning of paragraph (i) of the definition.[33] They simply identify things that paragraph (i) includes.
[31]Cf s 35(a) of the Interpretation of Legislation Act 1984; and see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Thiess v Collector of Customs (2014) 250 CLR 664; Talacko v Bennett [2017] HCA 15 [82].
[32]Interpretation of Legislation Act 1984 s 36(3A).
[33]Ibid s 36A(1).
Equipment of the kind needed by the applicant to maintain his life cannot simply be operated out in the open and unhoused or otherwise than in direct proximity to the applicant. Provision must be made for its care, storage and maintenance, and for the storage of necessary supplies, so that it may be run and/or operated to perform its necessary and needed functions. In the end, precisely what is needed to operate, run, maintain or repair relevant equipment, including space at the applicant’s place of residence for which rent is paid, will be a question of fact to be determined upon the evidence available to the parties.
The word ‘anything’ is itself contained in an inclusive definition of ‘medical service’. It is to be given full force in the phrase ‘the provision of anything needed to operate, run, maintain, or repair any equipment’. As a matter of ordinary language, if additional rental space is needed to run and maintain the equipment 24 hours a day, seven days a week, then provision of such space constitutes a ‘medical service’ and the applicant is entitled to recover his reasonable costs.
As to the respondent’s argument that accommodation and rent are not ordinarily thought of as medical services,[34] it might be said that neither are electricity, water, lubricating oil, replacement filters or batteries – yet they are the examples given in the Act.[35] In summary, in our view the ordinary meaning of the text of paragraph (i) of the definition of ‘medical service’ would extend to the necessarily incidental supply of additional rental accommodation.
[34]Cf Greater Shepparton City Council v Clarke [2017] VSCA 107 [74].
[35]See the examples given at the foot of paragraph (i) of the definition of medical services in s 3(1) of the Act.
While the construction of the relevant provisions in the Act must start and end with the legislative text, each of the relevant provisions must be construed in its context — such context including the surrounding provisions of the Act. In this regard it is necessary to say something about s 60(7). As the judge noted, s 60(7) does not, of itself, create any entitlement to compensation for, or in respect of, the items referred to in it — including accommodation and related costs such as rent and bonds — unless those items are compensable by virtue of s 60(2)(a).[36] That said, if the inclusive definition of ‘medical service’ is not read as potentially extending to accommodation costs or rent and bonds, then one might ask rhetorically what is the point of s 60(7)(a)? On its face, s 60(7)(a) appears to contemplate that accommodation and rent is capable of constituting a ‘medical service’ or a ‘hospital service’ (but matters of accommodation and rent can hardly be relevant to a ‘hospital service’, as that expression is defined in s 3(1) of the Act). In turn, paragraph (i) of the definition of ‘medical service’, appears to be the relevant paragraph of the definition of ‘medical service’ that might be capable of encompassing matters of accommodation and rent.
[36]Reasons [39].
To this extent the contextual consideration of the Act supports our reading of the text of the definition of ‘medical service’. Furthermore, we do not see anything in the legislative history of the Act that suggests that compensation for this necessary extra space (either by way of rental assistance or otherwise) cannot be payable under the provisions of s 60 of the Act. Indeed, the fact that it is claimable under s 60(4) of the Act for a catastrophically injured claimant who owns his or her own home tells to the contrary.
We turn then to questions of purpose. The relevant objects of the Act are twofold. On the one hand, it is an object of the Act:
(a)to reduce the cost to the Victorian community of compensation for transport accidents;[37]
[37]The Act s 8.
On the other hand, it is also an object of the Act:
(b)to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents;[38]
[38]Ibid.
We accept the thrust of the respondent’s case that in the context of the provision with which we are concerned the potential tension between these two objects is intended to be resolved by distinguishing between ordinary daily living costs on the one hand and additional costs incurred by way of and incidentally to the supply of medical services.
In the present case, the additional space in issue does not constitute space utilised for the purpose of everyday living. It does not give rise to a cost of ordinary daily living in the sense described in the Second Reading Speech for the 2003 Act, but to an additional living cost. Moreover, it is capable of disaggregation from ordinary living costs as contemplated in that speech. The applicant’s claim is for the difference between the cost of renting for the purpose of ordinary daily living and the rental cost he must now incur to accommodate the equipment, care and supplies that he now requires.
It follows that neither the language nor the context nor the purpose of the definition support the view that the applicant has no entitlement.
Adopting a construction that promotes the purpose and object underlying the Act, we would conclude that the cost of additional space needed to operate the life-preserving equipment and necessary supplies of the applicant constitutes a ‘medical service’ as defined by paragraph (i) of the definition of that expression in s 3(1) of the Act. It may also be that, depending upon the evidence, the same may be said of the space needed to accommodate a carer charged with the task of operating, running and maintaining the equipment, and/or looking after and ensuring the applicant’s survival.
It follows that, while there is no substance in grounds 1, 3, 4, 5 and 6(a) and (c), we would uphold the applicant’s contentions in respect of grounds 2 and 6(b). While we note that the arguments upon which the applicant has succeeded before us were only substantially developed for the first time in this Court, the respondent, acting as a model litigant, very fairly took no point about the shift in the applicant’s case from the way it was argued below to the way in which it was argued before us.
Indeed, the respondent made clear that its essential position is that it seeks clarification of its powers to make the payments in issue.
Conclusion
We will grant leave to appeal, allow the appeal, set aside the orders made in the Trial Division, and order that the matter be remitted for rehearing and determination at VCAT in accordance with these reasons.
- - -
3
15
0