Heffernan and Comcare (Compensation)

[2015] AATA 655

Heffernan and Comcare (Compensation) [2015] AATA 655 (31 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/4364
Re	Daniel Heffernan
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	31 August 2015
Place	Sydney

The decision under review is affirmed.

..................................[sgd]......................................

Professor R Deutsch, Deputy President

CATCHWORDS

Workers Compensation – whether the Applicant can be compensated for the purchase of a car – Applicant’s accepted injuries are aggravated by driving – Applicant has previously had his car altered – whether a car can be considered an aid or an appliance – statutory interpretation – the expressio unius rule – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 39

CASES

Re Allis v Commonwealth and Australian Telecommunications Commission (1985) 4 AAR 23

Re Grace and the Commonwealth (1987) 13 ALD 433
Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) 148 CLR 88
Thiele v Commonwealth of Australia (1990)22 FCR 342

Wilson v Wilson Tile Works Pty Ltd (1960) 104 CLR 328

REASONS FOR DECISION

Professor R Deutsch, Deputy President

31 August 2015

INTRODUCTION

1. On 11 June 2014 the Respondent made a determination which denied claims made by the Applicant under s 39 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to be compensated for the purchase of a 2010 Toyota Landcruiser Troopcarrier (the 2010 Landcruiser) and car seat covers for that vehicle.

2. On 22 August 2014, the Applicant applied to this Tribunal for a review of that decision.

   FACTUAL BACKGROUND

3. In 2005, the Applicant sustained serious back injuries for which the Respondent has accepted liability under s 14 of the Act.

4. It is accepted by the Respondent that the Applicant’s compensable back injuries are aggravated by driving.

5. The Applicant’s relevant recent history of car ownership is as follows:

   ·Prior to 2009 - the Applicant owned a 1996 Toyota Landcruiser (the 1996 Landcruiser).

   ·From March 2009, the Applicant owned a 2004 Nissan Patrol 4WD (the 2004 Nissan). It was purchased for $28,000. 

   ·From September 2013, the Applicant owned the 2010 Landcruiser. It was purchased for $38,000.

6. In June 2006, the Respondent accepted a claim for compensation by the Applicant in respect of a modification to the driver’s seat of the 1996 Landcruiser.

7. In 2009, the Applicant sold the 1996 Landcruiser for $10,000 and purchased the 2004 Nissan. In his written statement dated 8 January 2015 (paragraph 21), the Applicant suggested a number of reasons as to why it was necessary to sell the 1996 Landcruiser including:

   ·the vehicle “was beginning to cost me too much to keep on the road”; and

   ·“there were issues with the suspension, lack of a 3rd door and other issues noted for modification due to the proposed new Landcruiser that were impractical due to the vehicle’s age”.

8. Following the purchase of the 2004 Nissan separate assessments were carried out by two qualified occupational therapists. The reports concluded that the 2004 Nissan was unsuitable for the Applicant due to his back condition, and that due to a wide range of factors it would not be possible to modify the vehicle so as to materially reduce the discomfort that the Applicant experiences when driving (Reports of Ms Jenny Wise and Ms Beth Cheal).

9. The Applicant sold the 2004 Nissan in 2009 and purchased the 2010 Landcruiser.

10. The Applicant lodged a claim to be compensated for the purchase of the 2010 Landcruiser. The Respondent denied the claim, and it is this decision that is before the Tribunal.

11. At the hearing the Tribunal was advised that the claim in respect of the car seat covers was no longer being pressed by the Applicant.

    LEGISLATIVE BACKGROUND

12. The matter in dispute relates to the interpretation and application of one statutory provision, namely s 39(1) of the Act which is worth quoting in full. It provides as follows:

    “(1) Where:

    (a) an employee suffers an injury resulting in an impairment; and

    (b) the employee is undertaking , or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

    the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

    (c) any alteration of the employee’s place of residence or place of work;

    (d) any modifications of a vehicle or article used by the employee; or

    (e) any aids or appliances for the use of the employee or the repair or replacement of such aids or appliances:

    being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment and, where appropriate the requirements of the rehabilitation program.”

    THE APPLICANT’S CONTENTIONS

13. The Applicant contends that :

    ·Having regard to the nature of the Applicant’s impairment resulting from his work related injuries, the Applicant’s 2010 Landcruiser is an aid or appliance in accordance with s 39(1)(e) of the Act;

    ·The purchase of the Applicant’s 2010 Landcruiser was reasonably required by him as the result of his impairment in accordance with s 39(1) of the Act;

    ·The cost of the Applicant’s 2010 Landcruiser was reasonable in accordance with s 39(1) of the Act;

    ·The Respondent is liable for the reasonable cost of further reasonably required modifications to the Applicant’s 2010 Landcruiser required by him as a result of his impairment. 

    THE RESPONDENT’S CONTENTIONS

14. The Respondent contends that:

    ·A motor vehicle cannot amount to an aid or appliance for the purposes of s 39(1) of the Act;

    ·The specific reference to a vehicle in s 39(1)(d) of the Act, albeit in the context of modifications to the vehicle, strongly implies that the reference to ‘aids or appliances’ in s 39(1)(e) does not capture vehicles;

    ·Even if the 2010 Landcruiser did amount to an aid or appliance for the purposes of the Act, the vehicle purchased is not reasonably required by the Applicant having regard to the nature of his impairment;

    ·Even if it is so required, the amount that it is reasonable for the Respondent to pay towards the cost is significantly less than the full purchase price.

    THE TRIBUNAL’S CONSIDERATION

15. The central issue in contention in this case is the interpretation of s 39, and whether “the purchase of a motor vehicle” can fall into the category of the purchase of an aide or appliance referred to in s 39(1)(e) of the Act, particularly when vehicles are specifically dealt with in s 39(1)(d).

16. In attempting to interpret s 39 of the Act the Respondent relies on the Latin maxim “expressio unius est exlusio alterius”. The expression is translated as “an express reference to one specific indicates that other matters are excluded” – the consequence of this argument is said to be that because a vehicle is specifically dealt with in s 39(1)(d), it cannot also fall within the more general reference to an aid or appliance in s 39(1)(e).

17. I remain unconvinced that the expression is being correctly applied in this context, but whether or not there is an appropriate Latin maxim that is useful in the current context, it seems to be that there is an argument to suggest that because a vehicle is specifically dealt with in sub-paragraph (d), it cannot also fall within sub-paragraph (e).   

18. The issue has arisen before. In the case of Re Allis v Commonwealth and Australian Telecommunications Commission (1985) 4 AAR 23, an injured worker was told by his treating doctor to drive a vehicle equipped with power steering to avoid aggravating his compensable spinal pain. At the time the injured worker owned a 1972 Ford motor vehicle which was not equipped with power steering. In March 1984 he traded that vehicle in, in exchange for a later model that had power steering. The purchase was financed through the trade in plus the injured worker paying an additional $4000. The injured worker sought compensation in respect of the purchase of the vehicle under the now repealed s 37(3) of the Compensation (Commonwealth Government Employees) Act 1971 (the Compensation Act).

19. Section 37(3) provided:

    “Where an injury is caused to an employee, the Commonwealth is liable to pay compensation of such amount as is reasonable in respect of the cost, payable by the employee, of an alteration to a building occupied, or vehicle or article used, by him, or of obtaining any aid or appliance (other than an aid or appliance referred to in the preceding subsection) for use by him or of having such an aid or appliance repaired or replaced, being an alteration the making of which, or an aid or appliance the obtaining of which, was reasonably required as a result of the injury, but so that the total amount of compensation payable under this subsection in respect of the one injury does not exceed $780 or such higher amount as is prescribed except where the Commissioner is satisfied that the circumstances of the case justify the excess”.

20. Although not constructed in the same segmented fashion as s 39 of the Act, one can readily discern from the continuum of the words used in s 37(3) of the Compensation Act two different strands:

    ·The first deals with the cost payable by an employee of an alteration to a building occupied or vehicle or article used by him; and

    ·The second deals with the cost payable by an employee of obtaining any aid or appliance for use by him or of having such an aid or appliance repaired or replaced.

21. After some consideration, the Tribunal rejected the worker’s claim in Alliss because the Tribunal was satisfied that the express reference to a vehicle in what I describe above as the first strand, precludes the possibility that a vehicle could also be regarded as within the words “aid or appliance”  in what I describe as the second strand. Accordingly, the Tribunal concluded that the section did not extend to the provision of a new or second hand vehicle as an aid or appliance.

22. Applying the same reasoning to the present circumstances, one would conclude that the same conclusion should apply. In other words, s 39(1)(d) contemplates and deals with compensation in connection with a motor vehicle and it must be presumed that it was not the intention of Parliament to have the words aid or appliance as used in s 39(1)(e) to be read so expansively as to embrace vehicles such as to permit the payment of compensation for the acquisition of a vehicle. Interpreting the provision this way means that s 39(1)(d) covers motor vehicles exhaustively such that only modifications to motor vehicles are compensable, while s 39(1)(e) applies to aid and appliances (which cannot include motor vehicle as because they are dealt with exhaustively in the preceding sub-paragraph) and in that context, the full cost of acquisition is compensable.

23. It is well recognised that the expressio unuius rule must be applied with caution. For example, in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) 148 CLR 88 at 94 the High Court said that

    “(The) maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument…it is a valuable servant, but a dangerous master.” 

24. The Tribunal in Alliss nonetheless applied the expressio unius rule and the more structured, segmented presentation of the current legislation in s 39 of the Act would tend in my view to make the case for applying the rule even stronger – the break-up between s 39(1)(d) on the one hand and s 39(1)(e) on the other gives the appearance of a statutory formulation intended by Parliament to have the former deal with vehicles and the latter deal with aids and appliances not including vehicles. In respect of the former the intention is manifestly clear – only modifications are intended to be covered as potentially compensable items. In relation to the latter, the scope is broader allowing for potential recovery of the full cost of the said aid or appliance.

25. The Applicant sought to rely on the decision of Hill J in Thiele v Commonwealth of Australia (1990)22 FCR 342 where it was accepted that a swimming pool was capable of constituting an aid. However in dealing with the expressio unius rule Hill J specifically said at 354 :

    “Since I am of the view that it is wrong to characterise a swimming pool as a building for the purposes of the section, no question of the application of expression unius will arise for consideration.”

26. In other words, that case can be only be of limited relevance since the conclusion was reached on the basis that the swimming pool was not a building and could therefore be an aid without invoking the expressio unius principle.

27. Here, there is no disagreement that the 2010 Landcruiser was a vehicle and therefore covered by s 39(1)(d). The question is whether in such circumstances the 2010 Landcruiser could also be treated as an aid or appliance for the purposes of s 39(1)(e).

28. The Applicant also sought to rely upon the decision of this Tribunal in Re Grace and the Commonwealth (1987) 13 ALD 433 where Deputy President Breen, who found that a self-propelled mower was an aid or appliance, saw no warrant for restricting the scope of the terms in the legislation.

29. The legislation at the core of this dispute is clearly socially remedial in nature and is intended to benefit workers. As was said by Hill J in Thiele it “should be given a construction which advances its purposes as such” and most importantly “where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson Tile Works Pty Ltd  (1960) 104 CLR 328 at 335 per Fullager J. 

30. The words aid and appliance are undefined in the legislation so it is at least relevant to consider the appropriate dictionary definitions. The Shorter Oxford Dictionary thus defines “aid” as “help; give support to; further the progress of” and appliance as “a thing used as a means to an end; a device; a utensil; an apparatus”.

31. The dictionary definitions are very vague, especially in the context of the word aid and it seems to be the case that reading it at its widest the word ‘aid’ means nothing more than something which helps or assists.

32. The word appliance is in my view more limited in meaning and most commonly would not be thought of as embracing a motor vehicle.

33. Nonetheless, I conclude that even if the expressio unius rule is relevant, it is not so rigid as to preclude the possibility of a motor vehicle at the very least being considered as being an aid because motor vehicles are mentioned in s 39(1)(d). In this context, I would also note that if a vehicle were to be precluded from being an aid or appliance because of the expression unius rule, an article would need to be similarly excluded. This arises because of the express reference in s 39(1)(d) to modifications not only to a vehicle used by an employee, but also to an article used by an employee. To thus suggest that an article cannot also be an aid or appliance would seem quite absurd.

34. Having concluded that there is no hard and fast rule that a motor vehicle cannot be an aid or appliance, the next question I must consider is whether the motor vehicle in question here is in fact an aid or appliance for the use of the Applicant in this case.

35. The Applicant submits that he needs a modified vehicle. It is significant that the Applicant needs a vehicle in order to get to work. As a result of his injury he is unable to use public transport. His current work vehicle cannot be modified. The Applicant claims that if he is to be able to continue to commute to work he needs a Landcruiser that has been appropriately modified. He asserts that he is denied the mobility provided by a car unless he is provided with a vehicle that is capable of modification.

36. The expert evidence is that there is only one type of vehicle that is suitable. The Applicant has a young family and lives in an area where public transport is limited. He has indicated that his ability to move by car is of great importance to his quality of life and his psychological wellbeing. All of the medical practitioners with the possible exception of Dr Miller have indicated that there would be benefit to the Applicant if a suitably modified vehicle was provided. See the reports of Drs Wilkins, Synnott and Mitchell. Dr Miller makes no explicit reference to the fact that the Applicant would benefit from having a modified vehicle in her April 2009 report.

37. It seems to be that the question that now needs to be considered is whether in this case the motor vehicle purchased by the Applicant meets the description of an aid or appliance in order to satisfy s 39(1)(e).

38. In considering this question, the Respondent referred the Tribunal to the Macquarie Dictionary which defines an ‘aid’ as something that yields assistance. An appliance is relevantly defined as being a mechanical apparatus or device designed to assist a disabled person. The Applicant relied on the definitions from the Shorter Oxford Dictionary, which I have set out above at [30].

39. In relation to the definition of appliance, the Respondent accepts that a vehicle specifically designed to facilitate a wheelchair driver could (in some circumstances) be an appliance, however, a commercially available vehicle such as the 2010 Landcruiser would not. The Respondent suggests that while the answer to the question of whether this particular vehicle is an aid is less clear, the term should be read in context as referring to items which yield assistance in terms of coping with the effects of impairment. I would agree.

40. In approaching the question, as to whether the 2010 Landcruiser is an aid, the Respondent submits that at a factual level the critical point is that prior to his injury the Applicant owned and drove a four-wheel drive. The vehicle was purchased to address his personal and recreational needs which existed before his injury. That remains the primary function of the 2010 Landcruiser.

41. The Respondent says that the fact that it is now necessary to modify the vehicle to accommodate the effects of the Applicant’s injury does not transform the vehicle itself into an aid. Its function and purpose is not to yield assistance (Macquarie Dictionary) or help or give support to the Applicant (Oxford Shorter Dictionary), in a medical or rehabilitative sense. As the Respondent asserts, and I entirely agree, the function and the purpose of the acquisition of the 2010 Landcruiser is to provide a means of transportation in the same way that a vehicle did prior to the Applicant suffering an injury.

42. In the view of this Tribunal, in the circumstances of this case, the vehicle in and of itself has none of the qualities of an aid or appliance as those terms are used in s 39(1)(e). It is, on its own, a vehicle designed to provide transport, but it in no way is unique or special to this Applicant and cannot be taken to be an aid or appliance as far as this Applicant is concerned.

    DECISION

43. The decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

.................................[sgd].......................................

Associate

Dated 31 August 2015

Date(s) of hearing	10 June 2015
Counsel for the Applicant	Mr B McManamey
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	Mr D O'Donovan
Solicitors for the Respondent	Australian Government Solicitor