FEDERAL COURT OF AUSTRALIA
Heffernan v Comcare [2014] FCAFC 2
Citation: Heffernan v Comcare [2014] FCAFC 2 Appeal from: Comcare v Heffernan [2013] FCA 299 Parties: DANIEL JOHN HEFFERNAN v COMCARE File number: NSD 723 of 2013 Judge(s): ALLSOP CJ, JACOBSON & KATZMANN JJ Date of judgment: 3 February 2014 Catchwords: WORKERS’ COMPENSATION – Commonwealth employee – chronic back pain – claim for cost of purchasing and modifying four-wheel drive vehicle – whether “medical treatment” – whether vehicle was “medical, surgical or other similar aid or appliance” – whether vehicle was “curative apparatus”.
PRACTICE AND PROCEDURE – new claim raised in written submissions to Administrative Appeals Tribunal – new claim had been expressly disavowed at oral hearing – no invitation by Tribunal to make submissions on new claim – Tribunal did not consider new claim – new claim raised on appeal before primary judge by way of notice of contention – whether primary judge erred in refusing leave to argue new claim – whether Tribunal’s failure to consider new claim was legal error.
STATUTORY INTERPRETATION – “medical treatment” – defined term – whether construction of statutory definition is informed by ordinary meaning of defined term.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 5
Federal Court Rules 2011 (Cth) rr 1.39, 33.21
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 14, 15, 16, 39
Workers Compensation Act 1958 (Vic) s 26
Workers Compensation Act 1987 (NSW) s 59
Workers’ Compensation Act 1926 (NSW) s 10Cases cited: Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 cited
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 cited
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 referred to
British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 cited
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 cited
Comcare v PVYW [2013] HCA 41 cited
Coulton v Holcombe (1986) 162 CLR 1 referred to
Delaney v Staples [1992] 1 AC 687 cited
Eastleigh Borough Council v Betts [1983] 2 AC 613 cited
Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318 referred to
GC Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 referred to
Goodwin v Commission of Police [2012] NSWCA 379 cited
Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678 referred to
Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 cited
House v R (1936) 55 CLR 499 referred to
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 referred to
MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47; [2005] 4 All ER 107 cited
Manly Council v Malouf [2004] NSWCA 299; 61 NSWLR 394 cited
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 cited
Newcastle City Council v GIO General Limited
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Details
- AGLC
- Heffernan v Comcare [2014] FCAFC 2
- Case
- [2014] FCAFC 2
- Decision Date
CaseChat Overview and Summary
The Court was asked to determine whether Comcare was liable for the costs of an employee's purchase and modification of a four-wheel drive vehicle due to chronic back pain sustained during employment. The case, Heffernan v Comcare, involved statutory interpretation and procedural issues regarding claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The legal issues before the Court were whether the cost of the vehicle and its modifications constituted "medical treatment" under the Act and if the vehicle qualified as a "medical, surgical or other similar aid or appliance" or "curative apparatus." The Court also examined procedural matters regarding the introduction of new claims in submissions and the Tribunal's failure to consider them.
The Court found that the statutory definition of "medical treatment" should be interpreted in light of the ordinary meaning of the term. The requirement that the curative apparatus be part of the treatment process was not intended to limit the rights of the injured employee. The Court held that the statutory language was broad enough to encompass what was reasonably required to address the employee's needs arising from the impairment. The Court further noted that the Tribunal did not consider the new claim regarding the vehicle's classification under s 39(1)(e) of the Act, but this did not amount to a legal error since Mr Heffernan had not obtained leave to argue this point, and his notice of contention was filed beyond the statutory time limit.
The appeal was dismissed with costs. The Court held that if Mr Heffernan had a claim for an aid or appliance to address his impairment, it could be made under s 39(1)(d) or (e) of the Act. The Court agreed with the primary judge's decision and noted that the procedural issue regarding the late filing of the notice of contention did not constitute an error warranting a different outcome.
The Court found that the statutory definition of "medical treatment" should be interpreted in light of the ordinary meaning of the term. The requirement that the curative apparatus be part of the treatment process was not intended to limit the rights of the injured employee. The Court held that the statutory language was broad enough to encompass what was reasonably required to address the employee's needs arising from the impairment. The Court further noted that the Tribunal did not consider the new claim regarding the vehicle's classification under s 39(1)(e) of the Act, but this did not amount to a legal error since Mr Heffernan had not obtained leave to argue this point, and his notice of contention was filed beyond the statutory time limit.
The appeal was dismissed with costs. The Court held that if Mr Heffernan had a claim for an aid or appliance to address his impairment, it could be made under s 39(1)(d) or (e) of the Act. The Court agreed with the primary judge's decision and noted that the procedural issue regarding the late filing of the notice of contention did not constitute an error warranting a different outcome.
Orders
Orders of the court
1. The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
This is an appeal from a decision of a judge of the Court to allow an appeal from the Administrative Appeals Tribunal (the Tribunal) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appeal concerns whether Comcare is liable to cover the costs of an injured Commonwealth employee’s acquisition of, and modifications to, a Toyota Landcruiser four-wheel drive vehicle.Facts The appellant, Mr Heffernan, was employed at the Australian Nuclear Science and Technology Organisation. In 2005, he was injured, with the consequence that he now suffers chronic back pain. The respondent, Comcare, accepted liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for a number of conditions at different times over the next 18 months. In 2006, Comcare accepted liability for modifying Mr Heffernan’s car, a 1996 Toyota Landcruiser. Three years later, Mr Heffernan purchased a Nissan Patrol four-wheel drive at a cost of $18,000. However, for a number of reasons concerning Mr Heffernan’s height and the nature of his back condition, occupational therapists determined that the Patrol was unsuitable for his use. One such therapist, Ms Wise, identified two alternative vehicles that would be suitable, provided certain specified modifications were made to them. On 6 August 2010, Mr Heffernan submitted a claim to Comcare to cover the cost of purchasing and modifying a Toyota Landcruiser, which was one of the vehicles Ms Wise had identified. On 26 August 2010, Comcare determined that it was not liable to pay for the Landcruiser and modifications. Mr Heffernan sought review of the decision, which Comcare affirmed on 19 October 2010. He then successfully sought review of that affirmation in the Tribunal. Comcare appealed to the Federal Court, and succeeded in persuading the primary judge to set aside the Tribunal’s decision and replace it with Comcare’s original determination that it was not liable. The present appeal challenges the primary judge’s decision. For the reasons that follow the appeal should be dismissed.Statutory provisions Section 16(1) of the Act provides that Comcare is liable for medical treatment in respect of injury:Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. That provision directs one to the statutory definitions of “injury” and “medical treatment”. The former is found in s 5A(1). Under that provision, “injury” means:(a) a disease suffered by an employee; or (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The requirement that the curative apparatus be part of the process of treatment or part of the curative process is not to limit the rights of the injured employee. The words of s 39 appear ample to provide for what is reasonably required to deal with the employee’s needs from the impairment. This is reinforced when one recognises that the phrase “curative apparatus” takes its colour from being part of a definition of “medical treatment”.Conclusion The appeal should be dismissed with costs. If Mr Heffernan has a claim for an aid or appliance to deal with his impairment, such claim may be made under s 39(1)(d) or (e). I agree that the appeal must be dismissed with costs for the reasons given by the Chief Justice and Katzmann J. I respectfully agree with the Chief Justice that the appeal must be dismissed. In large part I also agree with his Honour’s reasons. The qualification concerns the question of whether the primary judge erred in not permitting Mr Heffernan to argue the s 39(1)(e) point, raised by ground 1 of the notice of contention. On this subject I would prefer to express my reasons a little differently. The rules require that any notice of contention be filed within 21 days of service of the notice of appeal: Federal Court Rules 2011 (Cth) (r 33.21). In this case the notice of contention was filed nearly two months after the statutory period had elapsed. The court had a discretion to extend the time (r 1.39). His Honour made no order which in terms extended the time. Rather, he treated the matter as requiring the leave of the court and refused Mr Heffernan leave to rely on the first ground but granted him leave on the second. His Honour’s reasons in relation to the first ground were brief. In short, he noted the observation by the Tribunal that it was common ground that s 39 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) was inapplicable as Mr Heffernan’s current vehicle could not be modified and said that “in the face of this” he would refuse him leave to rely on the first ground. In any event, as Mr Heffernan acknowledged, the only way this decision could be disturbed on appeal is if it was affected by an error of the kind referred to in House v R (1936) 55 CLR 499 (“House v R”) and this Court was prepared to exercise its discretion differently. Mr Heffernan accepted that at the hearing in the Tribunal his counsel had not relied on s 39 of the SRC Act. But he pointed to the fact that in written submissions after the hearing had concluded he had argued “in the alternative” that:[T]he provision of a modified car is provision of an aid or appliance within the meaning of s 39(1)(e). The section provides for the supply of any aids or appliances and the repair or replacement of such appliances. This argument was added, without leave, to submissions the Tribunal had called for on another question (whether a modified motor vehicle could fall within para (f) of the definition of “medical treatment” in s 4(1)).
Ratio Decidendi
Legal Principle Established
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