DLZ v TAC
[2017] VSC 176
•10 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 03162
| DLZ (by way of litigation guardian Iskra Nikolovski) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 April 2017 |
DATE OF JUDGMENT: | 10 April 2017 |
CASE MAY BE CITED AS: | DLZ (by way of litigation guardian Nikolovski) v TAC |
MEDIUM NEUTRAL CITATION: | [2017] VSC 176 |
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ACCIDENT COMPENSATION – Transport accident – Benefits – Plaintiff quadriplegic – Special need for life sustaining equipment and carer – Increased rental expenses – Whether compensable – Whether costs of ‘rehabilitation services’, ‘disability services’ and/or ‘medical services’ – Transport Accident Act 1986 (Vic) s 3(1), s 60(2)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram and Mr D O’Brien | Slater & Gordon |
| For the Defendant | Mr C P Young | Solicitor to the Transport Accident Commission |
HIS HONOUR:
The plaintiff suffered severely debilitating injuries as a consequence of a motor vehicle accident in which he was involved on 8 November 2014. As a result of those injuries, the plaintiff has been and is required to be accommodated in premises that have sufficient rooms to house himself, his mother, a full-time carer and equipment that is necessary to keep him alive. The plaintiff, by his litigation guardian, his mother, applied to the defendant, the Transport Accident Commission (‘the Commission’), to be compensated for the additional rental cost of a house sufficient to accommodate the plaintiff’s needs, pursuant to s 60(2)(a) of the Transport Accident Act 1986 (‘the Act’). The Commission rejected that claim. The plaintiff made an unsuccessful application to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for review of the defendant’s decision.[1] He now appeals to this Court from that decision pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998.
[1]DLZ v Transport Accident Commission [2016] VCAT 1154.
Background
The plaintiff was born on 21 December 2001. At the time of the accident he was almost 13 years of age, and he is now 15 years of age. Before the accident he resided with his parents in rental accommodation in Mill Park. At the time of the accident, the plaintiff was travelling as a pillion passenger on a motor cycle ridden by his father. The motor cycle was stationary at an intersection in Mill Park, when it was struck by a 4-wheel drive vehicle travelling at approximately 60 kilometres per hour after the brakes of that vehicle failed. As a result of the collision, the plaintiff was thrown some 20 metres, landing heavily on the ground. On arrival, ambulance crews found him in cardiac arrest, but he was successfully resuscitated, and transported to hospital.
On arrival at the hospital, the plaintiff was found to have an extensive spinal cord injury. He is now a ventilator dependent quadriplegic, and is dependent on tracheostomy for PEG feeding. The plaintiff 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 in all activities of daily living. He is, however, conscious and alert but he is unable to vocalise.
The plaintiff’s principal carer is his mother and she is assisted by carers funded by the defendant, as the plaintiff must have a carer available for his needs 24 hours per day. He has some control over his facial movements, but he cannot breathe independently. He is fully dependent on others or appliances for mobility, nutrition and all the functions of daily living.
Notwithstanding his extensive disabilities, the plaintiff is alert and engaged. He has been trialling an eye-tracking computer with the aim of being able to control his environment and recreational activities, including reading and watching television.
It is not in dispute that since his accident the plaintiff needs accommodation to house himself, a carer, and the vital back up equipment necessary to keep him alive. In addition, he suffers from impaired thermoregulation, and he requires heating and cooling facilities in order to maintain his welfare.
There was no dispute before the Tribunal, or before this Court, that as a result of his injuries, the plaintiff requires more substantial accommodation than was necessary before his accident. In particular, the defendant has accepted that his accommodation needs are set out in the report of a senior occupational therapist dated 1 May 2015, which specified that he requires:
(a)A four bedroom house to accommodate himself, his mother, the carer, and the equipment necessary for his survival and care.
(b)Accommodation that provided the necessary heating and cooling.
There was very little evidence, before the Tribunal, as to the precise nature of the accommodation now occupied by the plaintiff as a result of his injuries. Before the accident the plaintiff was residing in a two bedroom unit with his father. However, his father was injured as a result of the accident, and, because of those injuries, and because of the additional requirements to maintain the plaintiff, that arrangement was no longer possible. I was told, by counsel, that since his discharge from hospital, the plaintiff and his mother have each been residing in adjacent units. The unit in which the plaintiff resides has been modified, by removing the internal wall between the two bedrooms, so as to create sufficient space to accommodate the plaintiff, his equipment, and some of his back up equipment. In particular, the plaintiff is reliant on hoists, a special bed, a number of wheelchairs, ventilator equipment, cardiac monitoring equipment, and other equipment, together with heating and cooling, to accommodate his severe disabilities, and in order to sustain his life. In addition, it is necessary for those caring for the plaintiff to have ready access to back up equipment and further supplies, including oxygen bottles. I was informed that most of that additional equipment, and those supplies, are stored in a garage on the premises.
As I understand it, the rental expense that is claimed from the Commission in this case comprises the rental cost of the unit in which the plaintiff and his equipment are housed. I would assume that that cost would also include his access to and use of the garage for the backup equipment and supplies.
As agreed with counsel, I received the information, that I have just mentioned, from the Bar Table. It may be necessary for those matters to be the subject of further evidence before the Tribunal, should I set aside the Tribunal’s decision.
Transport Accident Act 1986 s 60 and definitions
The critical issue is whether the defendant is liable to pay the additional rental cost, arising from those needs, pursuant to s 60(2)(a) of the Act, which 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; …
On behalf of the plaintiff, it is contended that the additional rental cost associated with the plaintiff’s needs may be properly characterised as the reasonable costs of ‘medical services’, ‘disability services’, or ‘rehabilitation services’, 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), (7) and (8) are also relevant to the issues raised on this appeal. They 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.
(8)Subsection (7) does not apply in the case of a person who is under 18 years of age and who, as a result of his or her injury, is unable to reside at the place that he or she resided at before he or she was injured.
History of decided cases
The issue on this appeal is whether the additional accommodation needs of the plaintiff may be properly characterised as disability services, medical services or rehabilitation services as defined in the Act. Before outlining the reasons of the Tribunal, and the competing submissions of the parties on the appeal, it is convenient first to refer to the statutory history of, and some cases relating to, the provisions in question.
In McRitchie v Transport Accident Commission,[2] the claimant suffered catastrophic injuries in a transport accident, that required her to be accommodated in a community house which could provide the attendant care services that were necessary for her sustenance and rehabilitation. In particular, that the claimant required specially prepared food, and that she required special care to prevent her from choking, and special steps to maintain her stable temperature. One of the issues, before the Tribunal, was whether the Commission was liable to compensate the claimant for a ‘bed fee’ of $25 per day that was levied by the community house, and was said to be a contribution ‘towards the cost of accommodation, meals and utilities’. The Tribunal considered that, as the items of accommodation, utilities and food were so completely integrated into the institutional program provided in the community house, that it would be unreasonable to seek to ‘disaggregate’ them, and accordingly held that the bed fee came within the definition of ‘rehabilitation services’ in s 3 of the Act.[3]
[2][2000] VCAT 1865.
[3]Ibid [18].
On appeal, to the Trial Division of the Supreme Court,[4] Hedigan J upheld the reasoning of the Tribunal. His Honour noted that no attempt had been made in the evidence to ‘tease out’ the component parts of the cost of $25 per day, in particular to allocate that cost to heating, food, and rental.[5] Hedigan J stated:
The argument as advanced to me is persuasive that what was here being provided under the rubric of the bed fee was not normal heating but special heating, not normal food but special food, not a normal size room but a large room sufficient to enable her to move her wheelchair around, all because she needed those matters in order to rehabilitate her to the level to which she might achieve improvement. …
Accordingly, I am of the view that the Tribunal was not incorrect in viewing her grave disabilities … as requiring special rehabilitative measures which were described and might be regarded as being connected with her rehabilitation … In my opinion a ‘rehabilitation service’ under the Act necessarily must include keeping that person in a state appropriate to facilitate rehabilitation at the relevant place … Accordingly, in my view the appeal in this case must be dismissed.[6]
[4]Transport Accident Commission v McRitchie; McRitchie v Transport Accident Commission (2001) 33 MVR 242.
[5]Ibid [27] [31].
[6]Ibid [32] [33].
The Commission appealed from that decision to the Court of Appeal. In a short judgment, the Court upheld the reasons and decision of Hedigan J, stating:
As we are of opinion that, in essence, his Honour was correct in the reasons which he gave when dealing with the Commission’s appeal from the Deputy President, it follows that this appeal … should be dismissed.[7]
[7]Transport Accident Commission v McRitchie (2003) 39 MVR 136, 137 [5] (‘McRitchie’).
In July 2003, the Tribunal delivered its decision in Salcedo v Transport Accident Commission.[8] In that case the claimant, who was seriously injured in a motor vehicle accident, had, at the time of her accident, been residing in rental accommodation. As a result of her injuries, she required ‘attendant care’ that was provided by her mother. After her discharge from hospital, the claimant needed larger and more conveniently located premises to accommodate herself and her mother as her carer. The Tribunal, following the decision of the Court of Appeal in McRitchie, held that the definition of ‘rehabilitation services’ in s 3 of the Act was sufficiently broad to include an allowance in respect of accommodation. The Tribunal Member also held that the definition of ‘disability service’ in s 3 of the Act was sufficiently broad to include the rental expense claimed in the case.[9]
[8][2003] VCAT 944 (‘Salcedo v TAC’).
[9]Ibid [19] [20].
On appeal, the Court of Appeal reversed the decision of the Tribunal, holding that the additional rental costs, that were incurred as a result of the need to accommodate the claimant’s carer, did not fall within the definition of ‘disability service’ or ‘rehabilitation service’ in s 3(1) of the Act.[10]
[10]Transport Accident Commission v Salcedo (2003) 8 VR 276 (‘Salcedo’).
The Court distinguished its earlier decision in McRitchie, on the grounds that, in that case, the accommodation component of the bed fee could not be disaggregated from the components of that fee which came within the definition of ‘rehabilitation service’. On the other hand, the Court considered that the additional rent incurred by the claimant, in Salcedo, was not ‘part and parcel’ of some wider rehabilitation service, from which it could not be separated.[11] The Court thus distinguished its earlier decision in McRitchie. It further held that, as a matter of plain statutory construction, the additional rent did not fall within the definition of ‘rehabilitation service’ or ‘disability service’ in s 3 of the Act.[12]
[11]Ibid 284 [21]–[22].
[12]Ibid 285 [24].
Following the decision by the Tribunal in Salcedo v TAC (but before the hearing of the appeal), the Accident Compensation and Transport Accident Acts (Amendment) Act 2003, which introduced s 60(7)-(10) into the Act, received royal assent. In his Second Reading Speech, the Minister for Workcover stated:
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.
Finally, it is convenient also to refer to the decision of the Court of Appeal in 2013 in Transport Accident Commission v Hogan,[13] a decision on which the plaintiff places some reliance in the present appeal.
[13](2013) 41 VR 112 (‘Hogan’).
In that case, the claimant received injuries resulting in incomplete quadriplegia while riding his motor cycle. Before his accident, motor cycling had formed a significant part of his active life, and of his social life. After the collision, the Commission contributed towards the cost of a Volkswagen Transporter motor vehicle and paid for modifications to enable the claimant to drive it. In order to enable him to return to motor cycling activities, and to resume the social life that he had enjoyed through those activities, the claimant applied for financial assistance to secure a suitably qualified quad bike to be used for those activities. The Commission declined that request on the basis that the modified bike was a ‘motor vehicle’, that ss 60(3) and (3A) of the Act were the only source of its liability to pay for the purchase or modification of a vehicle, and that, having already contributed to the purchase of one vehicle, it was not liable to contribute to the purchase or modification of a second vehicle. The Tribunal affirmed the Commission’s decision. In turn, on appeal, Croft J allowed the claimant’s appeal and ordered the Commission to fund the purchase of the quad bike.[14] The Court of Appeal dismissed the Commission’s appeal from that decision.
[14]Hogan v Transport Accident Commission (2012) 60 MVR 497.
In reaching its decision, the Court rejected the submission by the Commission that s 60(3) and (3A) constitutes a coherent code dealing exhaustively with its liability to pay for costs associated with vehicles. The Court held that the legislative history suggests that the Parliament’s intention was to enable the provision of a vehicle directed to the specific purpose of rehabilitation.[15] The Court then noted that there was no dispute that the provision of the quad bike to the complainant would achieve a rehabilitative effect. It held that although the definition of rehabilitation service does not expressly mention a vehicle, the general terms of ‘appliance’ or ‘apparatus’, in that definition, are of sufficient width to include a motorised vehicle that was provided for the purpose of rehabilitation.[16]
[15]Op cit 123 [52]–[54].
[16]Ibid 123 [52], 125 [64].
Reasons of Tribunal
In detailed and comprehensive reasons, the Tribunal Member referred to the relevant statutory provisions, together with the authorities to which I have referred. The member considered that the decision of the Court of Appeal in Salcedo is authority for the proposition that ‘accommodation’ is neither a disability service nor a rehabilitation service, and that the decision of the Court of Appeal in McRitchie is not authority for the proposition that accommodation per se can be a rehabilitation service. The member considered that the decision in Hogan is authority for the proposition that a liberal construction should be given to the words contained in the definitions in s 3 of the Act. Nevertheless, that decision did not, in the view of the member, affect the decision of the Court of Appeal in Salcedo that the increased costs of accommodation did not come within the definitions of ‘rehabilitation service’ and ‘disability service’ in s 3 of the Act. The member further considered that the definition of ‘medical services’, in s 3, could not be extended to cover the accommodation expenses sought by the claimant, no matter how liberally that definition were to be construed. Accordingly, the member found that the Commission is not liable to contribute to the additional rental cost arising from the need to accommodate an additional carer and spare equipment for the claimant.
Notice of Appeal
By his notice of appeal, the plaintiff contends that the Tribunal erred in law in the interpretation and application of the definition of ‘medical services’, ‘disability services’, and ‘rehabilitation services’ in s 3(1) of the Act, and in the authorisation for payment for those services pursuant to s 60(2)(a) of the Act.
Submissions
Mr A Ingram, who appeared with Mr D O’Brien on behalf of the plaintiff on the appeal, submitted that the plaintiff’s application for payment under s 60(2)(a) of the Act did not concern the ‘cost of rent’, but rather it related to the expense of premises necessary to accommodate the plaintiff, his life sustaining equipment and supplies, and his carers. It was submitted that, thus characterised, the expenses so incurred by the plaintiff fall within one or more of the definitions of ‘disability service’, ‘medical service’ or ‘rehabilitation service’ in s 3(1) of the Act.
Mr Ingram contended that the decision of the Court of Appeal in Salcedo is to 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 plaintiff, comprises the cost of storing the vital equipment necessary for his care and upkeep. He submitted that, unlike in Salcedo, the increased rental costs claimed by the plaintiff are ‘part and parcel’ of the rehabilitation services provided to him in the form of the equipment that is necessary to sustain him. Mr Ingram relied on the decision of the Court of Appeal in Hogan, and on the recent decision of the Court in Tuari v Transport Accident Commission[17] as demonstrating that provisions, such as s 60(2) of the Act, should be given a liberal construction. He contended that the expenses, claimed by the plaintiff, relate to the storage of his rehabilitative equipment, and thus either constitute, 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. Mr Ingram pointed out that in Hogan, the Court considered that the term ‘rehabilitation services’ comprehends not only restoration of an injured person to former health, but also restoration of the person to a better condition. Accordingly, he submitted that the cost of storing the equipment, in the present case, constitutes a reasonable cost for the provision to the applicant of rehabilitation services for the purposes of s 60(2)(a) of the Act.
[17][2014] VSCA 203.
Alternatively, Mr Ingram submitted that the rent that is in issue is ‘inextricably bound’ to the costs of attendant care, which is necessary to maintain the functioning of the plaintiff’s equipment. He contended that such costs are not an ordinary daily living cost, which the plaintiff would otherwise have incurred. 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 of the Act.
Alternatively, Mr Ingram submitted that the additional rental cost sustained by the plaintiff constitutes a cost in respect of a ‘medical service’ as defined in s 3(1). The life sustaining equipment, on which the plaintiff 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, Mr Ingram contended that the costs claimed by the plaintiff are captured by subparagraphs (g), (h) and (i) of the definition of ‘medical service’ specified in s 3(1).
In response, Mr C Young, who appeared on behalf of the respondent, submitted that the plaintiff’s contentions, that the cost of rent is a ‘disability service’ or a ‘rehabilitation service’, are in direct conflict with the decision of the Court of Appeal in Salcedo. Mr Young submitted that, contrary to the contention of the plaintiff, there is no relevant distinction to be drawn between the provision of space to accommodate a carer (as in Salcedo), and the provision of space to store equipment (as in this case). Mr Young submitted that Salcedo was decided on the basis that the Commission is not liable to pay for rental costs incurred as a result of the need for greater space for the provision of rehabilitative services to the injured person.
Mr Young further submitted that the space, required to accommodate the plaintiff’s equipment in close proximity to him, does not fall within the definition of ‘medical service’ in s 3(1) of the Act. He noted that the definition of ‘medical service’ was amended by the same legislation that introduced s 60(7) into the Act. He submitted that, accordingly, the definition of ‘medical service’ must be construed in combination with s 60(7) of the Act. When those two provisions are read together, s 60(7) operates generally 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’ in s 3(1) of the Act. No such express provision is made, in that definition, for the costs of rent or for accommodation costs.
Mr Young submitted that that omission, in the definition, is significant, as indicating an intention by Parliament that such items are not comprehended within the meaning of ‘medical services’.
Mr Young further submitted that it would be necessary to do some ‘violence’ to paragraph (i) of the definition of ‘medical service’ in s 3(1), in order to bring within it the cost of rent for physical space. Mr Young pointed out that the examples, specified under that paragraph, include the kinds of thing about which the equipment could not operate or run (such as electricity, water and oil) or which are part of the equipment itself (replacement parts). He submitted that the provision of physical space, for the equipment, is different in kind to the matter specified in the examples.
Analysis
As I stated, the critical question on this appeal is whether the additional rental cost, incurred on behalf of the plaintiff to house the equipment necessary to maintain the vital functions of his life, can be appropriately characterised as the reasonable cost of disability services, or medical services, or rehabilitation services, received by the plaintiff because of the accident.
It is clear, and indeed not in dispute, that the carer services, and the equipment stored and used at the plaintiff’s premises, are within the definition of one or more of those three services in s 3 of the Act. The issue which needs to be addressed is whether the unit, occupied by the plaintiff and the equipment necessary to sustain him, may be characterised as falling within the definition of one or more of those services.
Before addressing that issue, it is useful to deal briefly with two preliminary matters. First, as pointed out by Mr Ingram, the legislation, under consideration, is remedial, in that it is designed to provide an appropriate level of compensation and financial support in respect of persons who have been injured, or who die, as a result of transport accidents. It is accepted that such legislation should not be construed in a narrow fashion, but that it should be interpreted in a manner that gives effect to the underlying purposes of the legislation.[18] On the other hand, it must be borne in mind that the objectives of the Act, specified in s 8, include the reduction of the cost to the community of compensation for transport accidents. Certainly, the remedial nature of the legislation does not provide any warrant for the court to re-write the provisions of the Act, or to adopt a construction which is artificial or unduly strained. Insofar that there may be some deficiencies in the legislation, the remedy for those deficiencies must be a matter for Parliament, not for the court.
[18]See State Trustees Limited v Transport Accident Commission (2002) 6 VR 359, 365 [25] (Bongiorno J); cf Transport Accident Commission v Lincoln (2003) 6 VR 199, 208–9 [20] (Winneke P).
The second preliminary matter relates to the proper construction of s 60(7) and (8). It is common ground that those provisions do not, of themselves, create any entitlement to compensation for, or in respect of, the items specified in s 60(7) — including accommodation and related costs such as rental — unless those items are compensable by virtue of s 60(2)(a). Conversely, it is accepted that if the expenses claimed by the plaintiff in this case constitute medical expenses, s 60(7) does not preclude the recovery of those expenses by the plaintiff from the defendant. On the other hand, if the expenses claimed by the plaintiff are in respect of rehabilitation services or disability services, s 60(8) would have the effect that they would only be payable by the Commission to the plaintiff until he is 18 years of age.
Having made those observations, I return to the question whether the premises, that are required to house the plaintiff, his carers and his equipment, come within the definitions of disability services, medical services or rehabilitation services, in s 3 of the Act. As I stated, it is not in dispute that the carer services, provided to the plaintiff at those premises, constitute disability services as defined in s 3. Nor is it in dispute that the equipment used by the plaintiff at those premises, and critical to maintain his life, comes within the definition of ‘rehabilitation service’ in s 3, and within subparagraphs (g) and (h) of the definition of ‘medical service’ in s 3. The principal submission, made by Mr Ingram, is that the premises, necessary for the provision of those services to the plaintiff are an essential aspect of those services, so as to be an integral part of them. In particular, he pointed out that the equipment, used to sustain the plaintiff, must be permanently available to him, and that it is necessary for a carer to be in constant attendance in order to ensure that the equipment runs properly. In addition, it is necessary for the backup equipment and the supplies for the equipment to be located in close proximity to the plaintiff. In that way, Mr Ingram contended that the accommodation or storage available to the equipment and carer at the plaintiff’s premises are ‘part and parcel’ of those services, so as to come within the definition of them in s 3 of the Act.
The use by Mr Ingram, of the phrase ‘part and parcel’, derives from a passage of the judgment of the Court of Appeal in Salcedo, in which the court distinguished its previous decision in McRitchie. In that passage, Phillips JA (with whom Batt and Buchanan JJ agreed) stated:
From McRitchie, the Tribunal drew the conclusion that in certain circumstances accommodation expenses can fall within the definition of ‘rehabilitation service’ for the purpose of s.60(2)(a). There can be no dispute with that. But error followed, in my respectful view, when the Tribunal, read the definition of ‘rehabilitation service’ as sufficiently wide to include an allowance for accommodation per se. The Tribunal saw the criterion as being ‘the degree of separation, if any, between the expense referable to the accident and a living expense that would have been incurred in any event’, but that was not the purport of McRitchie. 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. Here the position is altogether different: for the respondent is seeking from the Commission the payment of such increase in rent as may be attributable to her special needs in consequence of the accident. The accommodation is not being provided as part and parcel of some wider ‘rehabilitation service’: it is to be considered on its own, albeit that there may be some need for modification of the premises due to the special needs of the respondent by reason of the transport accident. Every case must depend upon its circumstances, as the Tribunal acknowledged; but in my respectful view, this case cannot be determined by reference to McRitchie.[19]
[19]Salcedo (2003) 8 VR 276, 284 [22].
The question in this case is whether the accommodation, necessary to house the plaintiff’s equipment and carer, can be properly described as being ‘part and parcel’ of those services in the same way that the Court of Appeal, in Salcedo, characterised the items covered by the bed fee in McRitchie as being ‘part and parcel’ of the rehabilitation services provided to the claimant in that case.
In McRitchie, the bed fee was levied as a contribution to the community house, in which the claimant was placed, for the cost of the accommodation, special meals and utilities provided to the claimant. The Tribunal had found that those items were so integrated into the institutional program, provided by the community house to the claimant, that it would be unreasonable to disaggregate them in the circumstances. In his judgment, Hedigan J noted that no attempt had been made to ‘tease out’ the component parts of that fee.[20] In the same vein, the Court of Appeal, in Salcedo, noted that ‘… what was in dispute [in McRitchie] was all of a piece with the “rehabilitation service” being supplied’.[21]
[20]Transport Accident Commission v McRitchie; McRitchie v Transport Accident Commission (2001) 33 MVR 242, 252 [31].
[21]Salcedo (2003) 8 VR 276, 284 [21].
In the present case, there is no doubt that the storage or accommodation of the plaintiff’s equipment, at his premises, is a critical and indispensable aspect of the provision of the rehabilitation equipment and the services of the carer to him. However, unlike in McRitchie, I do not consider that it can be properly characterised as being ‘all of the piece’ or ‘part and parcel’ of the provision of that equipment and those services to the plaintiff. Rather, the accommodation made available to the plaintiff can be (and is) ‘disaggregated’ from the equipment and the services of the carer. It is thus a separate ‘service’ to the provision to him of the equipment and carer services, notwithstanding that, as I stated, the availability of the accommodation is critical in order that the equipment and carer services be utilised by him.
In that way, this case is distinguishaed from McRitchie. Rather, it falls squarely within the reasoning of the Court of Appeal in Salcedo. In that case, the Tribunal had noted that, because of her needs, the claimant needed to have the carer on hand to assist with the requirements of everyday living. The Tribunal noted that ‘of necessity’, the carer was required to share the claimant’s accommodation.[22] Similarly, in the present case, the plaintiff must have premises available to accommodate not only himself, but also the equipment and the carer who is required (as part of his or her duties) to maintain and operate that equipment. However, in line with the reasoning of the Court of Appeal in Salcedo, the provision of the accommodation for that purpose is not ‘part and parcel’ of the rehabilitation, disability or medical service comprising the equipment and carer necessary for the plaintiff’s wellbeing.
[22]Salcedo v Transport Accident Commission [2003] VCAT 944 [22].
The remaining question, then, is whether the accommodation, necessary to house the plaintiff’s equipment and his carer, may be characterised, of itself, to constitute a disability service, a rehabilitation service, or a medical service, as defined in s 3(1) of the Act.
In plain parlance, it would be artificial to characterise the accommodation, necessary to house the plaintiff’s equipment and carer, as a service ‘relating to’ any of the matters defined to constitute a disability service or as a rehabilitation service in s 3. The definition of ‘disability service’ does not include within it the provision of equipment and the like. It does include a service ‘relating to’ attendant care, assistance and accommodation support. However, in Salcedo, the Court of Appeal held that accommodation, required for the purposes of housing a carer, does not fall within that definition. In particular, Phillips JA stated:
Once McRitchie is put aside as not bearing directly upon the issues raised by this appeal, it is difficult to find any basis in the legislation for supposing that rental assistance, albeit when required by reason of the disability arising from the transport accident, is either a ‘disability service’ or a ‘rehabilitation service’. The respondent sought to support the view of the Tribunal that ‘disability service’ included such rental assistance because of the inclusion within the definition in s 3 of the expression ‘accommodation support’, but that seems an improbable construction to place upon the words. As Mr Maxwell submitted, the expression ‘accommodation support’ can scarcely be synonymous with ‘accommodation’ and had Parliament intended that the provision of accommodation should constitute a disability service, such that the reasonable costs of accommodation would have been compensable to the extent that they were referable to the transport accident, Parliament would surely have said so expressly. The concept of ‘accommodation support’ can be understood as something different from ‘accommodation’: for, as was submitted on behalf of the Commission, it connotes the service of providing support in connection with or in relation to accommodation (such as was at stake here when, in the letter of 19 February 2002, the Commission offered to assist the respondent ‘by referring her to a specialised disability housing organisation’). Counsel submitted that ‘accommodation support’ cannot mean the provision of accommodation as such and I agree.[23]
[23]Salcedo (2003) 8 VR 276, 285 [24].
Further, it is plain that the provision of accommodation, for the purpose of housing the plaintiff’s equipment, could not be characterised as the ‘provision … of any aid … appliance, apparatus or other service’ for the purposes of the definition of ‘rehabilitation service’ in s 3 of the Act. Again, the additional accommodation required by the plaintiff is essential to the provision to him of the equipment that is vital to keep him alive, that equipment readily falling within the definition of ‘rehabilitation service’. However, that circumstance does not, as a matter of plain English, have the consequence that the provision of that accommodation to the plaintiff constitutes the provision to him of any aid, appliance or apparatus.
Similarly, the provision of the additional accommodation to the plaintiff, for those purposes, does not, I consider, fall within subparagraph (g) or subparagraph (h) of the definition of ‘medical services’. The critical question is whether it comes within subparagraph (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 subparagraph (g) and subparagraph (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 subparagraph (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.
[24]Interpretation of Legislation Act 1984 (Vic) s 36(3A).
[25]Director of Public Prosecutions v Walters [2015] VSCA 303 [7]; Brooks v Commissioner of Taxation (2000) 173 ALR 235, 252 [66].
Conclusion
For the foregoing reasons, the Tribunal did not err in determining that the additional costs to the plaintiff, of the premises required to house his equipment and carers, did not constitute costs in respect of the provision to him of medical services, disability services or rehabilitation services for the purposes of s 60(2)(a) of the Act. For those reasons, the appeal must be dismissed.
It is with regret that I have reached that conclusion. It is a truism that hard cases can make bad law. Equally, hard cases, such as these, highlight deficiencies in the law. The plaintiff is appallingly disabled, through no fault of his own. It is most regrettable that the legislation, as currently formulated, does not provide to him relief in respect of the additional accommodation expenses necessary for the purposes of the provision of equipment and care to him that is vital to his ongoing survival.
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