Heffernan and Comcare (Compensation)

Case [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…

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Details
AGLC
Heffernan and Comcare (Compensation) [2015] AATA 655
Case
[2015] AATA 655
Decision Date

CaseChat Overview and Summary

The case of Heffernan and Comcare (Compensation) involves a dispute regarding the entitlement of the Applicant to compensation for the purchase of a car, which he claims is necessary due to his work-related injuries. The issue was heard by the Tribunal, which ultimately affirmed the decision under review. The Applicant argued that his car should be considered an aid or appliance under section 39(1)(e) of the relevant Act, and that its purchase was reasonably required due to his impairment. Comcare, the Respondent, argued that a motor vehicle could not be considered an aid or appliance and that even if it could, the vehicle was not reasonably required by the Applicant, nor was the full purchase price a reasonable amount for compensation.

The central issue in the case was the interpretation of section 39 of the Act, specifically whether the purchase of a motor vehicle could fall under the category of the purchase of an aid or appliance in section 39(1)(e), given that vehicles are specifically dealt with in section 39(1)(d). The Respondent relied on the Latin maxim "expressio unius est exclusio alterius" to argue that since vehicles are specifically mentioned in section 39(1)(d), they cannot also fall under the more general reference to aids or appliances in section 39(1)(e). The Tribunal considered this argument but remained unconvinced that the maxim was being correctly applied in this context. However, the Tribunal did acknowledge 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).

The Tribunal concluded that the vehicle in question did not possess the qualities of an aid or appliance as those terms are used in section 39(1)(e), as it was, on its own, a vehicle designed to provide transport. It did not have unique or special qualities for the Applicant and therefore could not be considered an aid or appliance. Given the Tribunal's interpretation of the relevant statutory provisions, the decision under review was affirmed.

ORDERS:
The decision under review is affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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 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 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 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 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). 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).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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 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). 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). 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). 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). 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”.