Hogan v Transport Accident Commission
[2012] VSC 206
•18 May 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2011 06097
| VAUGHAN HOGAN | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | CROFT J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2012 | |
DATE OF JUDGMENT: | 18 May 2012 | |
CASE MAY BE CITED AS: | Hogan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 206 | |
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TRANSPORT ACCIDENT COMPENSATION – Application for compensation by way of purchase and modification of a high performance quad bike – whether a quad bike is a “motor vehicle” under the Transport Accident Act 1986 (Vic) and Road Safety Act 1986 (Vic) – Transport Accident Commission v Serbec [1993] 6 VAR 151 – Transport Accident Commission v Ball [1991] 1 VR 64 – Transport Accident Commission v Lees (2002) 57 MVR 78 – whether the Commission’s only power to fund the purchase or modification of a motor vehicle is Transport Accident Act (1986) (Vic) s 60, sub-ss (3), (3A), (3B) – whether the Commission has the power to fund the purchase of an appropriately modified quad bike as a “rehabilitation service” - Transport Accident Act 1986 (Vic) , s 60, sub-ss (2), (3), (3A), (3B), s 23 – Road Safety Act 1986 (Vic), sub-s 3(1), “motor vehicle”, “highway”, “road” and “road related area” definitions
WORDS AND PHRASES – meaning of “motor vehicle” – meaning of “rehabilitation service”
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Brett Mr J Valiotis | Arnold Thomas & Becker |
| For the Respondent | Mr P Solomon SC Mr C Young | Solicitor to the TAC |
HIS HONOUR:
Introduction
This is an application for leave to appeal, and if leave be granted, an appeal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) from a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) made on 18 October 2011 by Member P. Eggleston.
The proceeding before the Tribunal was a review under s 77 of the Transport Accident Act 1986 (“the TA Act”) of a decision by the Transport Accident Commission (“the Commission”), made on 29 September 2009, to refuse to fund the purchase of a high performance “Polaris RZR 800 EFI” quad bike for the appellant. The Tribunal affirmed the Commission’s decision.
Factual background
It is common ground that the appellant was injured in a transport accident on 10 June 2007. He was, on that day, riding his KTM 450 motorbike on private property at Toolern Vale. As a result of the accident, the appellant sustained severe injury, suffering a fracture of his C5 vertebra and complete quadriplegia at C6 level. The accident was most unfortunate. It occurred at low speed, but the injuries suffered by the appellant were serious and have clearly caused considerable physical and other suffering to him and, no doubt, for his wife and family.
The Commission has provided compensation to the appellant. In particular, in June 2008 it contributed towards the purchase costs of the Volkswagen Transporter and paid for modifications to this vehicle to enable the appellant to drive it. The total sum paid by the Commission for this purpose was $70,934.
On or about 30 January 2009, Ms Alison Smith, a recreation specialist, wrote to the Commission on behalf of the appellant and requested that it consider funding a quad bike for him. In an Occupational Therapy Report prepared by Mr Tom Eley, Occupational Therapist, the appellant’s request for a quad bike was reviewed. This review was undertaken at the request of the Commission’s Support Co-ordinator, Ms Eleanor Fergeus. In summary, the report describes a number of “classes” of quad bikes or, utility vehicles, and provides an assessment in relation to the appellant’s ability to manage them. This report recommends that the Commission clarify its liability to assist with the purchase of the quad bike. It also recommends clarification of the Commission’s liability to assist with modifications which, as indicated in the Report, were said to be necessary or desirable to enable the appellant to use the quad bike.
In a report dated 21 October 2010, Ms Michelle French, who describes herself as an Accredited Occupational Therapist, recommends provision of the quad bike to enable the appellant to participate in a pre-injury recreational pursuit which he greatly enjoyed and in which he could be independent. The Report makes reference to the appellant’s past recreational pursuits, which involved trail bike riding, on motorbikes, with friends and family and, on some occasions, for weekend trips. The Report and other evidence is to the effect that the appellant greatly enjoyed this activity, as physical outdoor activity, as a means of enjoyment and socialising with family and friends, and as a means of enjoying independence in a way that is not possible in ordinary day-to-day life as a result of the mobility and other restrictions imposed by his injuries.
The Commission considered and decided to refuse the appellant’s request under sub-s 60(3) and (3A) of the TA Act. In taking this course and in this and the Tribunal proceedings opposing review of this decision, the Commission emphasised that it did so because its considered view, and on the basis of legal advice, was that it did not have power to accede to the request on a proper construction of sub-s 60(3) and (3A) of the TA Act. In broad summary, the detail of which I will come to, its view was that the appellant had received all the compensation to which he was entitled under these provisions with the Commission’s contribution to the purchase cost of a Volkswagen Transporter and payment for modifications. The Commission’s view was that these provisions did not permit purchase or modification of a second “motor vehicle”, a category into which it said the quad bike fell. It was also of the view that the provision of a motor vehicle was not something that could be treated as within the definition of “rehabilitation service” under the TA Act and raised the possibility of compensation by way of contribution to its purchase and modification under sub-s 60(2) of the TA Act.
Application for leave to appeal
The orders of the Tribunal which the appellant sought leave to appeal are set out in its Proposed Notice of Appeal as follows:
“(1) That the Respondent’s determination is affirmed.
(2) That I give the parties liberty to apply with respect to costs.”
The questions of law upon which the appellant sought to rely are set out in his Proposed Notice of Appeal as follows:
(a)whether the Tribunal correctly construed ss 23 and 60(2) of the TA Act as requiring that a rehabilitation service must be the subject of some form of structured program for the respondent to incur a liability to pay for the service;
(b)whether the Tribunal correctly construed s 23 and s 60 of the TA Act relevant to review of the respondent’s decision to refuse the appellant’s application that the respondent contribute towards the cost of purchase of a high performance recreational utility vehicle [ie the quad bike];
(c)whether it was open to the Tribunal to go beyond the decision of the respondent under review, namely that the respondent was “unable to contribute towards the cost of a second motor vehicle for [the appellant]”;
(d)whether upon a proper construction of s 60(3), (3A) and (3B) of the TA Act if the utility vehicle is a motor vehicle, the respondent could have no liability to contribute to the cost of the utility vehicle as a rehabilitation expense; and
(e)whether the Tribunal’s reasons adequately disclose the path of reasoning in support of the decision to affirm the respondent’s determination under review.
The application for leave to appeal is made under s 148(1) of the VCAT Act, which provides as follows:
“A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding—
(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or
(b) to the Trial Division of the Supreme Court in any other case—
if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.”
It follows from these provisions that any appeal is dependent upon two important qualifications. First, that the appeal be “on a question of law” and the second qualification is that the Court “gives leave to appeal”.
The legislative policy underlying these provisions is that “VCAT decisions should not generally be disturbed when cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal”.[1] It follows that “[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal”.[2]
[1]Commissioner of State Revenue v Frost [2011] VSC 232 at [5] (Pagone J), referring to Secretary to the Department of Premier and Cabinet v Hulls [1991] 3 VR 331, 335-6 (Phillips JA); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163, 55 [28] (Warren CJ).
[2]Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400 at [15] (Osborn J), referring to Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.
Although the leave requirement under s 148 of the VCAT Act is designed to maintain this position, it is also clear from the authorities that whether leave to appeal should be granted must always depend upon the justice of the particular case and that “justice” in that sense means justice to all parties, not merely the particular appellant. It is also clear that, although the discretion to grant leave cannot and should not be fettered by judicial decision, it does, nevertheless, remain possible to lay down some general guidelines concerning the exercise of that discretion. So much is clear from authorities such as Secretary to the Department of Premier and Cabinet v Hulls,[3] but having regard to the note of caution sounded by Phillips JA in this context.[4]
[3][1999] 3 VR 331 (CA) at 335-7, [8]-[17] (Phillips JA; with whom Tadgell and Batt JJA agreed); see also Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48 (CA); and ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447 (CA) at 449, [1]. See also the authorities referred to by Pagone J in Commissioner of State Revenue v Frost [2011] VSC 232 at [3] and also those discussed in Roads Corporation v K-Line Mobile Mechanics Pty Ltd [2011] VSC 475, at [8]-[11] (Croft J).
[4][1999] 3 VR 331 at 335-7, [8]-[17].
On the basis of these authorities, the Commission submitted that these guidelines may be summarised and applied as follows:[5]
[5]The Commission’s Outline of Submissions dated 13 March 2012, [14].
(a)first, the appellant must identify a question of law arising out of the VCAT decision;
(b)secondly, the question of law must be relevant to the relief sought on appeal – in other words, the question must be such that, if the VCAT erred in respect of that question, the appellant’s claim to relief will be advanced;
(c)thirdly, the public or general importance of the question of law may be a relevant consideration.
Thus, if the question is one that not infrequently arises, there may be a compelling reason for granting leave so that the point may be exposed on appeal and corrected (if there be an error) before the error becomes entrenched. This consideration appears to the Commission to be applicable in this case;
(d)fourthly, the appellant need not establish that the VCAT erred in respect of the question of law: that is for the appeal if leave be granted. Rather, the appellant must establish that there is a “real and significant argument to be put that error exists”. Put another way, it must be shown that the VCAT’s decision is “attended by sufficient doubt” to justify the granting of leave;
(e)fifthly, it must be just to grant leave.
Here, there is no factor that militates against the grant of leave. For example, there is no fragmentation of the proceeding.
(f)sixthly, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice (although where the VCAT’s order is final, that injustice will often be more readily discernible).
Accepting this summary as an accurate and helpful statement of these guidelines and their application, I am of the opinion that, for the reasons which follow, it is clear that (a) and (b) are satisfied, as is (d). Additionally, it is clear from the nature of the issues raised on this appeal in relation to the provisions of ss 23 and 60 of the TA Act (and related definitions in sub-s 3(1)) that the question of law raised is one of general public importance with respect to the operation of the TA Act and the Commission’s important work in its administration for the benefit of the whole community, and, most importantly, for the benefit of transport accident victims. Finally, for the reasons which follow, I am of the opinion that it is just to grant leave and, if it were necessary to express a view, that substantial injustice would follow if leave were not granted; both to this particular appellant and also to the community and other existing or future transport accident victims. The more general considerations follow from the importance of an authoritative interpretation of these statutory provisions, which are relevant to this proposed appeal. Accordingly, leave to appeal is granted.
For the sake of completeness in relation to this issue, I do note that both the appellant and the Commission supported the granting of leave to appeal. Nevertheless, as was readily accepted, this is not a question which can be resolved merely by the consent of the parties. It was also common ground between the parties that if I allowed the appeal in whole or in part from the Tribunal decision, that I should not remit any matter or matters to the Tribunal for further consideration but should, rather, on the basis of the existing evidence, determine all matters finally in the course of the appeal. In all the circumstances, this is, in my view, the appropriate course.
Legislative provisions
The following provisions of the TA Act of relevance for these proceedings are as follows:
“60 Medical and like benefits
…
(2) The Commission is liable to pay as compensation to a person who is injured … -
(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and
…
(3) If a person, as a result of his or her transport accident injury, reasonably requires a motor vehicle used by him or her in Australia to be modified, the Commission is liable-
(a) to pay the reasonable costs of modifying the vehicle; or
(b) if the vehicle is not capable of being modified, to contribute a reasonable amount to the purchase cost of a suitably modified motor vehicle selected by the Commission.
(3A) If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle, and he or she does not have access to a motor vehicle, the Commission is liable to contribute a reasonable amount to the purchase cost of a suitable motor vehicle selected by the Commission.
…”
Sub-section 60(3B) contains provisions with respect to the determination by the Commission of a reasonable amount of money for the purposes of sub-ss 60(3)(b) and (3A).
These provisions of s 60 of the TA Act also require reference to the definitions of “rehabilitation service” and of “motor vehicle” as contained in s 3 of that Act. The definitions are as follows:
“’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.
‘motor vehicle’ means a motor vehicle within the meaning of s 3(1) of the Road Safety Act 1986”.
The definition of “rehabilitation service” also requires reference to s 23 of the TA Act. The provisions now of possible relevance are sub-s 23(1) and (2), which provide as follows:
“Commission may authorise persons or services
23. Commission may authorise persons or services
(1) The Commission may authorise-
(a) services to be disability services or rehabilitation services; or
(aa) services to be approved services for the purposes of individual funding agreements; or
(ab) a person to provide services for the purposes of section 60A; or
(b) persons to provide services for the purposes of section 60(2)(c), 60(2)(ca), 60(2)(d) or 60(2A); or
(c) a person as a provider of vocational rehabilitation services.
(2) An authorisation must be given-
(a) before the services are to be provided; and
(b) in writing.
…”
The provisions of the TA Act to which reference has been made also require reference to the following definitions which are contained in sub-s 3(1) of the Road Safety Act 1986:
“’motor vehicle’ means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle…;
‘highway’ means road or road related area;
‘road’ means-
(a) an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.
‘road related area’ means-
(a) an area that divides a road; or
(b) a footpath or nature strip adjacent to a road; or
(c) an area that is open to the public and is designated for use by cyclists or animals; or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles.”
Issues
In the context of the proper construction of the relevant provisions of s 60 of the TA Act, the broad question with which this appeal is concerned, three issues arise. The first is whether the quad bike is a “motor vehicle” as defined in the TA Act; the second is whether a request for funding the purchase or modification of a motor vehicle may only be considered by the Commission under sub-s 60(3) and (3B) of the TA Act, the provisions of the latter sub-section relating back to sub-s 60(3A) of the TA Act; and, thirdly, whether the appellant’s request is one which may be made under sub-s 60(2) of the TA Act on the basis that the provision of a quad bike and its appropriate modification to suit the needs of the appellant is within the definition of “rehabilitation service” as defined in sub-s 3(1) of the TA Act.
Motor vehicle
The Commission submitted that the quad bike, the Polaris RZR 800 EFI model, was plainly a “motor vehicle”. In support of its submission, the Commission contended that the phrase “used or intended to be used” which appears in the definition of “motor vehicle” in the definition of this term contained in the Road Safety Act 1986 has been well settled in a number of authorities, both at trial and at appellate level. The appellant did not dissent from this proposition, but argued, nevertheless, that the authorities support its contention that the quad bike was not a motor vehicle but is, rather, a recreational vehicle designed for off road use over rough terrain. In this respect, reference was also made to the evidence of the appellant that he intended to use the quad bike on farmland near Bright.
Before turning to the authorities, I should make mention of submissions by the appellant to the effect that the Tribunal did not determine whether the quad bike was a motor vehicle, which mean that it did not decide as a fact the issue which constituted the Commission’s determination. Further, it was submitted that if the Tribunal’s decision was to be read on the basis that this issue had been determined in favour of a finding that the quad bike was a motor vehicle, then the finding was one made without reasons. The Commission contended to the contrary, in both respects. In my opinion, the decision of the Tribunal does proceed on the assumption that the quad bike is a motor vehicle but, nevertheless, the reasons for that finding or assumption are not clear and are attended by sufficient doubt to conclude that there is a real and significant possibility that an error has occurred. In any event, such lack of reasons, or clear reasons, is in itself an error of law and in the present instance one of critical importance having regard to the consequences of finding, one way or the other, whether the quad bike is a “motor vehicle”.
Turning now to the authorities, I commence by making reference to Transport Accident Commission v Serbec[6] in which the definition of “motor vehicle” under the Road Safety Act 1986 was considered. Marks J (with whom Gobbo J agreed) said in this respect:[7]
“If a vehicle has been put into use on a highway or in a public place, then I think that it is ‘used’ in those places within the meaning of the definition. It is difficult, I think, to give the words another meaning. The distinction between the above two expressions and the definition of ‘recreation vehicle’ is between how a vehicle is actually used and such of its characteristics as may lead an objective bystander to think that its use is or may be, in other words, what it is ‘meant for’. It is another matter to decide what evidence will justify a conclusion of fact as to the use to which the particular vehicle is put.”
The Court in Serbec was concerned with a “dune buggy”, but there was no evidence before the Court “to say why it was so called or what the expression meant”.[8] Continuing, Marks J said:[9]
“It appears to have been assumed – probably because commonsense dictates it – that the word ‘dune’ refers to sand dunes and that the buggy was of a kind which may be used to negotiate sand dunes for pleasure and recreation.”
[6](1993) 6 VAR 151.
[7](1993) 6 VAR 151, at 155.
[8](1993) 6 VAR 151, at 153 (Marks J).
[9](1993) 6 VAR 151, at 153.
It is clear from the judgment of Marks J that his Honour regarded the expression “intended to be used” in the context of the definition of “motor vehicle” as commanding an objective test.[10] In the present circumstances, this is the only element of the statutory definition of “motor vehicle” of relevance because the quad bike in question has not been acquired by or on behalf of the appellant and so cannot be regarded as having been used, in the sense of the first part of the statutory definition.
[10]See (1993) 6 VAR 151, at 155-6.
The meaning and application of the statutory definition of “motor vehicle” was considered further, this time by the Court of Appeal, in Transport Accident Commission v Ball.[11] In this case, the respondent had been injured riding an unregistered motorcycle on a farm. The motorcycle was in a state of disrepair, but had not been adapted for use as a “paddock-bike”. The motorcycle had once been registered, but had not been used on a highway for many years, though it retained its characteristics as a “road-going” bike. In relation to the meaning of the expression “intended to be used”, as appearing in the statutory definition of “motor vehicle” in the Road Safety Act 1986, Buchanan JA (with whom Calloway and Batt JJA agreed) said:[12]
[11][1999] 1 VR 64.
[12][1999] 1 VR 64 at 66-7.
“The question whether a vehicle is ‘intended to be used'’ on a highway or in a public place is to be determined objectively: Newton v Incorporated Nominal Defendant [1970] VR 257; Burns v Currell [1963] 2 All ER 297 at 300; Transport Accident Commission v Serbec (1993) 6 VAR 151; Siciliano v Acme Knitters & Dyers Pty Ltd [1994] 1 VR 632.
Accordingly, it would not be permissible to determine the question by evidence of the state of mind of the manufacturer or the current owner. Neither, in my view, is it appropriate to rely upon evidence of facts such as the place at which a vehicle is kept or the use to which it is put for the purpose of revealing the owner’s state of mind. The question turns upon the characteristics of the vehicle itself.
In Newton v Incorporated Nominal Defendant, supra, Newton J said, at p262:
‘In my opinion a sufficient test of whether a vehicle is “intended for use on any highway” is whether a reasonable man looking at the vehicle with full knowledge of its characteristics would say that one of its users was use on a “highway” as defined in s 3 of the Motor Car Act 1958, that is “any street road lane bridge thoroughfare or place open to or used by the public for passage with vehicles”, or perhaps whether it was suitable or apt for such use.’
The Court in Siciliano v Acme Knitters & Dyers Pty Ltd, at p639, cited that passage in Newton J’s judgment. Similarly, in Transport Accident Commission v Serbec, supra, at p 156, Marks J said:
‘There was in any event sufficient evidence to justify a conclusion that the dune buggy met the objective criteria of a vehicle “intended to be used in a public place”. It was a homemade vehicle with all the attributes of one built for the purpose of enjoyment in such places as beaches and other areas to which members of the public legally have access for enjoyment in the use of such vehicles.’
In Burns v Currell, supra, the Court of Appeal took the same view of a similar definition. The question was whether a go-cart came within the description of a ‘mechanically propelled vehicle intended or adapted for use on roads’.
Lord Parker CJ, with whom the other members of the Court agreed, said, at p440:
‘I think that the expression “intended”, to take that word first, does not mean “intended by the user of the vehicle either at the moment of the alleged offence or for the future.” I do not think it means the intention of the manufacturer or the wholesaler or the retailer; and it may be, as Salmon J said in Daley v Hargreaves, that it is not referring to the intention as such of any particular purpose. Salmon J suggested that “intended” might be paraphrased as “suitable or apt”. It may be merely a difference of wording, but I prefer to make the test whether a reasonable person looking at the vehicle would say that one of its users would be a road user.’
In my view the word ‘intended’ in the definition is used in the sense of ‘suitable or apt’, as Lord Parker said, or ‘meant for’, as Marks J said in Transport Accident Commission v Serbec, supra, in a passage at p 155,[13] in which he spoke of the distinction between the expression ‘is used’ and the expression ‘intended to be used’. He said:
‘The distinction between the above two expressions in the definition of “recreation vehicle” is between how a vehicle is actually used and such of its characteristics as may lead an objective bystander to think what its use is or may be, in other words, what it is “meant for”.’
The characteristics or attributes of this motor cycle were those of a road-going vehicle, that is, they fitted it for use on the smooth surface of a highway shared with other vehicles. The motor cycle had not been modified to adapt it for use as a paddock bike. It was not fitted with knobbly tyres. The suspension had not been altered to give long travel useful for dealing with rough terrain. Its mudguards had not been raised from the tyres to prevent them from being blocked by mud. The lights had not been removed, albeit the headlight did not work. The vehicle remained one which was basically suitable or apt or meant for the highway.”
The approach in Serbec was subsequently reaffirmed by the Court of Appeal in Smith v Transport Accident Commission,[14] by reference to that case and other authorities; including a reference to an application of the Serbec test in Transport Accident Commission v Ball.[15]
[13]See the passage set out above, paragraph 23.
[14](2005) 23 VAR 424, at 429 [17] (Nettle JA).
[15][1999] 1 VR 64 at 67 (Buchanan JA).
In relation to the application of the statutory definition of “motor vehicle”, a question arose as to whether the quad bike could, in any event, be registered as a “motor vehicle” under the Road Safety Act 1986. It was common ground that there was no evidence before the Tribunal or the Court in relation to this question, but that the Tribunal had proceeded, consistently with a statement by Deputy President Macnamara (as his Honour then was) in Sweet v TAC,[16] that a quad bike cannot be registered under that Act. Nevertheless, the parties agreed that I should proceed on this basis and, in particular, did not wish the matter to be remitted to the Tribunal for determination of this question. Accordingly, I do so and, against this background, turn to the judgment of Bongiorno J (as his Honour then was) in Transport Accident Commission v Lees.[17] In the context of considering and applying the Serbec test, Bongiorno J said:[18]
“In its initial submission to the Court the plaintiff contended that one of the ways in which the Tribunal committed an error of law in accepting the defendant’s claim was in having regard to what it submitted was illegal activity by the defendant in riding his motorcycle on public roads when it was unregistered and unregistrable and in riding it at the Werribee Motocross Track in breach of a local law of the City of Wyndham. The defendant countered this argument by pointing out that if the definitions contained in the Road Safety Act 1986 with which the Tribunal was concerned in this case had incorporated into them a concept of lawfulness it would follow that an unregistered and unregistrable trail bike could be ridden on the highway with impunity in that it would be beyond the reach of the provisions of the Road Safety Act 1986. Confronted with this argument, counsel for the plaintiff, Mr C Maxwell QC properly conceded, in supplementary submissions to the Court, that his argument was, in the circumstances, untenable.”
[16][2010] VCAT 1498, at [2]. The statement of Deputy President Macnamara is a bare statement to this effect; without reasons in terms of evidence or law.
[17](2002) 37 MVR 78.
[18](2002) 37 MVR 78 at 82.
The Commission made reference to this passage from Lees in support of the contention that the registrability or otherwise of a quad bike is not a relevant consideration. Rather, the Commission submitted that it was necessary to apply the objective test with respect to the expression “intended to be used” as appearing in the statutory definition. The appellant, on the other hand, contended that the issue had not been determined by Bongiorno J but, rather, the passage from the judgment set out indicated, merely, that the point had been conceded in that case on behalf of the plaintiff. In my opinion, although reference is made to the concession on this point, Bongiorno J specifically indicated that, in his view, the concession was properly made. In the context of the consideration in Lees of the Serbec test, this observation does, in my view, indicate that Bongiorno J was of the opinion that whether or not a potential vehicle could be registered under the Road Safety Act is not a matter decisive in terms of the Serbec test.
In my opinion, the example postulated by the appellant, of a Formula 1 racing car, which, broadly speaking, may have all the attributes of a conventional motor car, is an example which well illustrates the point. It indicates, in my view, that the fact that a motorised vehicle might have, for example, headlights at the front, tail lights at the rear, a steering wheel, four wheels and brakes does not, of itself, indicate an intention to use it on a “highway” even though these characteristics may be sufficient to obtain its registration as a “motor vehicle”.
The evidence in relation to the quad bike is contained in the Occupational Therapy Report prepared by Mr Eley, a report to which reference has already been made. Mr Eley’s report does provide some descriptive material in relation to farm utility vehicles and quad bikes of the type in question which, in my view, is the sort of objective evidence contemplated by the authorities to which reference has been made.
In his discussion, Mr Eley, observes:[19]
“DISCUSSION
Utility vehicles are divided into a number of ‘classes’. They are the farm utility vehicles, performance recreational utility vehicle, the farm quad bike and the sports quad bike. The farm utility vehicles and farm quad bikes have significantly lower top speeds (farm vehicles – 40kph, performance vehicles – 100+kph), less power, less suspension travel than their performance counterparts. The utility vehicles have an integrated roll cage, the quad bikes do not.
…
Vaughan [Hogan] advised me that the vehicle he wants TAC to fully fund for him is a Polaris RZR 800 EFI. This machine is a high performance recreational utility vehicle, not an entry level base machine. It is fitted with relatively soft, long travel suspension. This will afford a smooth ride for Vaughn; however the long travel suspension provides a high centre of gravity and it is quite easy for an inexperienced person to roll the vehicle. Vaughn has ridden motorcycles all his life and he is experienced in off road driving/riding and is unlikely to get into any more trouble than an able bodied person operating one of these machines. The seating position is low in the vehicle contributing to a lowering of the centre of gravity. The vehicle comes fitted with a roll cage.
There are a number of alternate performance RUVs available; however they all have similar performance specification. These include the Kawasaki Teryx, the Yamaha Rhino and the Polaris Ranger XP. In terms of performance, these vehicles are the nearest thing available to a motorcycle, coming with a roll cage, unlike the high performance quad bike, which does not have a roll cage.”
[19]Occupational Therapy Report (10 April 2009), pp 4 and 5 (Exh LT5 to the Affidavit of Lisa Treely, affirmed 3 May 2012).
In my opinion, a consideration of this material, together with the photograph of the quad bike proposed to be acquired, supports the view that it is not a vehicle “intended to be used” on a highway. In other words, answering the question posed by Marks J in Serbec - “what is it meant for” - my view is that it is off-road recreational use. As the test in Serbec is an objective one, it is not relevant that the evidence of the appellant is that he intends to use the vehicle only on farmland.
I should also make mention of the definition of “road” in the Road Safety Act 1986, which has been set out previously.[20] The Commission sought to rely upon this expansive definition in support of its contention as to the nature of the quad bike. The effect of this expansive definition would appear to be to bring within the definition of “road” areas which look nothing like roads in the generally accepted sense. In my view, this expansive definition does not affect the application of the Serbec test in the present circumstances. The objective test to be applied in the present circumstances must, necessarily, produce an answer in the nature of a generality. It is no doubt physically possible for dune buggies, quad bikes, bulldozers and Formula 1 racing cars to be driven down William Street, Melbourne, or any other road which would be seen as such in a conventional sense. Nevertheless, that is not the test, it is a matter of objective assessment having regard to the nature of the vehicle.
[20]See above, paragraph 19.
Ambit of s 60 compensation provisions
The Tribunal, in the course of its decision, accepted that it was “not permissible to evade the other conditions imposed in s 60(3), (3A) and (3B) by reverting only to s 60(2)(a)”.[21] Consonantly with this position, the Commission contended that its liability to pay compensation in the form of meeting the cost of purchasing motor vehicles arises only under sub-s 60(3) and (3B) of the TA Act. It also contended that it follows that it is not liable to pay for the purchase or modification costs of a motor vehicle as a “rehabilitation service” under the provisions of sub-s 60(2)(a). In support of its submissions, the Commission made reference to the legislative history of the provisions of the TA Act as they relate to the purchase of motor vehicles.
[21]Tribunal’s reasons, paragraph 24.
At the commencement of the TA Act, the Commission submitted that it was only liable to pay the cost of modifying a motor vehicle because “rehabilitation service” was given a statutory meaning that extended beyond its ordinary meaning. The Commission, it said, had no power or liability to meet the cost of purchase of a motor vehicle. Thus, from 1 January 1987 (when the TA Act commenced) to 24 May 1988, s 60 of that Act relevantly provided as follows:
“(1)In addition to any other compensation paid under this Act, the Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident -
(a) the reasonable costs of … rehabilitation services … received because of the accident”.
At the same time, the definition of “rehabilitation services” was as follows:
“’Rehabilitation service’ -
(a)means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, assistance, appliance, apparatus or any other service; and
(b)without derogating from the generality of paragraph (a), includes the provision to or for a person for the purpose of rehabilitation of attendant care, household help, modifications to a home or car, counselling or transportation costs –
if the provision under paragraph (a) or (b) is –
(c)of a kind or type; and
(d)by a person –
approved by the Commission.”
[Emphasis added]
On the basis of these provisions, the Commission contended that the use of the word “includes” in paragraph (b) of the definition of “rehabilitation service” enlarged the ordinary meaning of the defined term to extend to modifications to a car (later a “motor vehicle”).[22] The Commission also emphasised that the provisions of the Act at this time did not refer to the possibility of purchasing a car.
[22]See Sherritt Gordon Mines Ltd v FCT [1977] VR 342 at 353 (McInerney J); Douglas v Tickner (1994) 49 FCR 507 at 519 (Carr J).
Amendments were made to the TA Act in 1988 in which a new sub-s 60(3) was inserted, in the following terms:
“(3)If a person who is injured as a result of a transport accident reasonably requires modifications to a vehicle or home because of the injury, the Commission may make payments to the person in respect of such part of the costs of the modifications as, in the circumstances, the Commission considers reasonable.”
[Emphasis added]
On the basis of this amendment, the Commission contended that there became two sources of its liability to pay for modifications to a motor vehicle. They were, first, as a “rehabilitation service” (where the liability was conditioned by the requirement that it be “for the purpose of rehabilitation”). The second source was under sub-s 60(3) where the liability was conditioned only by the requirement that the person was “injured” and “reasonably requires” modifications to a motor vehicle. The Commission submitted that there remained no power or liability in it to pay for the purchase cost of a motor vehicle.
The relevant provisions of the TA Act were significantly amended in 2000 and a new definition of “rehabilitation service” was inserted into the legislation, in substitution for the previous definition. It was submitted by the Commission that the new definition removed the extension of the earlier definition that was effected by paragraph (b) and with it removed the Commission’s liability to pay for the costs of modification of a motor vehicle as a “rehabilitation service”. The new definition was in the following terms:
“’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, the provision of which is an authorised service in accordance with section 23.”
The new definition narrowed its scope.[23] In any event, the Commission contended that it never included a liability to pay for purchase costs.
[23]TAC v Kutz [2011] VSC 236, at [52] (Beach J).
At the same time that the definition of “rehabilitation service” was substituted as the new definition, a new form of sub-s 60(3) was substituted as well which, for the first time, the Commission submitted, made it liable to pay for the purchase costs of a motor vehicle in some specified circumstances. The new sub-s 60(3) was in the following terms:
“(3)If a person who is injured as a result of a transport accident reasonably requires modifications to a motor vehicle in Australia, the Commission is liable to –
(a)pay the reasonable cost of modifications to the person’s motor vehicle; or
(b)contribute to the reasonable purchase of a motor vehicle, if the person does not own a motor vehicle which is capable of being modified.”
In relation to the interpretation of these provisions, the Commission relied upon parts of the Second Reading Speech on the introduction of the amendments in 2000. In particular, reference was made to the following parts of the speech of Mr Cameron, the responsible Minister, in introducing the proposed legislation in the Legislative Assembly:[24]
“Seriously injured TAC claimants and their families have often expressed confusion about the provisions of the act relating to home and vehicle modifications. Coverage of the costs of home and vehicle modifications is currently included in two separate areas of the act: firstly, as part of the definition of a rehabilitation service, and secondly, as part of the specific provisions of section 60. The TAC has received legal advice that section 60 only covers the modification of an existing home or vehicle of a claimant, which in many cases does not meet the needs of claimants.
The bill therefore includes a significantly expanded provision specifically covering the TAC’s obligations to provide appropriate modifications of a home or vehicle. This provides for the first time that the TAC will contribute to the purchase of a vehicle where the claimant’s current vehicle cannot readily be modified, and will assist a claimant to obtain modifiable accommodation where his or her current residence is unsuitable.”
[24]Parliamentary Debates (Legislative Assembly), 5 October 2000, p 937.
The present version of sub-s 60(3), (3A) and (3B) was introduced by s 18 of the Transport Accident (Amendment) Act 2004.[25]
[25]Act No. 94/2004.
The Commission submitted that the legislative history affirms that it has always been liable to pay for the costs of modifying a motor vehicle, but between 1987 and 2000 only because of an extended meaning given to the term “rehabilitation service”. After those amendments, it contended that it has only been liable to pay for the costs of purchasing a motor vehicle from 2000, and then only pursuant to sub-s 60(3) of the TA Act.
The appellant, on the other hand, contended that the provisions of s 60 do not support the position advanced by the Commission and neither does their legislative history.
The appellant accepted that recourse to legislative history on the basis indicated in the authorities relied upon by the Commission[26] was not controversial. It did, however, submit that the legislative history of these provisions does not lead to the conclusion advanced by the Commission.
[26]
Turning to the original definition of “rehabilitation service”, the appellant submitted that very broad powers were conferred by the provisions of paragraph (a) which are not circumscribed or derogated from by the provisions of paragraph (b) of the definition, provisions which refer to some particular matters. In this respect, the appellant made reference to a number of other legislative provisions by way of example which adopted the approach of conferring a general power and then illustrating the application of that power by reference to particular matters, but with the intention of, nevertheless, maintaining the ambit of the original grant of power.[27] In any event, the correctness of the approach advanced by the appellant is, in my view, confirmed very clearly by the opening words of paragraph (b) of the definition of “rehabilitation service”. Paragraph (b) of the definition introduces its provision with the clear statement: “Without derogating from the generality of paragraph
(a) …”.
[27]See, for example, the definitions of ‘criminal proceeding’ and ‘document’ in the dictionary of the Evidence Act 2008 (Vic).
Against this background, reference was made to the Commission’s submissions. The appellant submitted that the TA Act never said in the definition of “rehabilitation service” that a motor vehicle could not be purchased under the provisions of paragraph (a) of that definition. Consequently, it was submitted, that it does not follow that the reference to modifications to a home or car in paragraph (b) of the definition have the effect of circumscribing or derogating from the provisions of paragraph (a) of that definition to exclude the possibility of the purchase of a motor vehicle. The appellant submitted that it was perfectly possible to purchase a motor vehicle under the paragraph (a) provisions and no authority was pointed to by the Commission to indicate to the contrary. In summary, the appellant challenged the Commission’s proposition that there was no power in the TA Act to purchase a motor vehicle under the definition of “rehabilitation service” as that definition was originally enacted. The power, it was said arose under paragraph (a) of the definition.
On the basis of the interpretation of the original definition of “rehabilitation service” advanced by the appellant, which I accept as correct, the legislative history relied upon by the Commission does not assist its case. This is because it follows from the interpretation that I have accepted in relation to the original definition of “rehabilitation service” that the amendments to s 60 which followed from 1988 onwards, together with the amendments to the definition of “rehabilitation service”, proceeded on the basis that there was a second power to alter or buy a motor vehicle contained in sub-ss 60(3) and (3A), provisions which do not refer back to the concept of rehabilitation. Thus, these provisions empower the Commission to purchase and, if necessary, modify a motor vehicle (or simply modify an existing motor vehicle owned by the injured person) for the purpose of transportation. It follows that these provisions are directed to the acquisition and modification of a motor vehicle for transport purposes, rather than for rehabilitation purposes. The provisions of sub-s 60(2), on the other hand, are directed to rehabilitation and within the broad powers conferred by these provisions read together with the definition of “rehabilitation service”. Consequently, it follows that the Commission is empowered to purchase and, if necessary, modify or simply modify a motor vehicle for rehabilitation purposes. On this basis it follows that even if the quad bike were found to be a “motor vehicle” within the statutory definition contained in the TA Act, it would, nevertheless, as a piece of equipment, an “appliance” or “apparatus”, be something which the Commission is empowered to fund by way of purchase and, if necessary, modification or simply modification.
As indicated, I accept the appellant’s submissions with respect to the construction of the provisions of the TA Act to which reference has been made; as both supported by the language of the Act, as it now stands, and as it passed through the process of amendment to the present day. In my opinion, the passages from the Minister’s Second Reading Speech relied upon by the Commission do not assist its position as the authorities referred to with respect to legislative history and extrinsic materials emphasise that the language of the Act must be the first consideration. In any event, it appears that the Minister’s Second Reading Speech proceeds on a view as to the proper construction of the legislative provisions then being amended, which, for the preceding reasons, I do not regard as being supported by the legislative language.
Rehabilitation service
Whether the interpretation of these provisions advanced by the appellant thus far leads to the result argued for depends also on another aspect of the definition of “rehabilitation service”.
The further issue in this respect arises from the concluding words in that definition, which appear in the original Act and with some variations in its subsequent forms. These are the words “or other service …, the provision of which is an authorised service in accordance with s 23”. These concluding provisions follow a “list” of tangibles and intangibles, services and things, namely “any aid, treatment, counselling, appliance, apparatus …”. It is clear from the opening words of the statutory definition that this “list” is governed by the requirement that they or any one of them are provided for the “purpose of rehabilitation”.
The ambit and nature of “rehabilitation” and of “services” for the purposes of rehabilitation was considered by the Tribunal:[28]
[28]Tribunal decision, paragraphs 32 to 35.
“32.The commencement position with ‘rehabilitation service’ is with respect to the Court of Appeal decision of G.C. Wood (Aust) Pty Ltd v Cullen (1991) 2 VR 214 where at 225 O’Brien J said:
‘In my opinion the words emphasised should not be [read] too narrowly. A restrictive meaning should not be given to ‘rehabilitation’ having regard to the nature of the legislation. The evidence showed it is medically desirable that the Respondent should enjoy mobility by means of an electric chair. The word ‘rehabilitation’ comprehends not only restoration to former health (the narrow meaning) but also to restore partially or completely to a better condition: The Oxford English Dictionary (1989) Vol 13. Rehabilitative medicine in our community is not confined to persons who can or will be restored to former health but is available to assist persons whose health would otherwise deteriorate’.
33.In deciding the case of Keler v TAC (2002) VCAT 445, Deputy President Macnamara followed the decision of O’Brien J. In paragraph 27 of that decision however the Deputy President notes that with respect to rehabilitation and disability services that there should be a structure with that structure including a preliminary approval given and the person providing the services having authorization in advance. Additionally the Deputy President was of the view that there cannot be an ad hoc provision of transport services.
34.Deputy President Coghlan in the case of McDonald v TAC (2006) VCAT 183 also adopted a similar broad meaning of the word ‘rehabilitation’. At paragraph 69 she said that rehabilitation
‘should not be confined to restoration to former health, but is wide enough to include partial restoration to a better condition and the provision of something that will assist persons whose health would otherwise deteriorate’.
[Health was defined as a state of complete physical, mental and social well being not mere the absence of disease or infirmity].
35.Having regard to the cases the key characteristics with respect to provision of rehabilitation and disability services are that:
i There has to be a structured program
ii Within that structured program there has to be
aa person providing the services who has authorization in process; and
bPreliminary approval of the structure (although I accept as outlined by Member I. Proctor in his decision of Bekber v TAC (2010) 1264 at paragraph 24 that it does not necessarily have to be the Commission that has to approve the service provider and it could be the provider with VCAT’s ruling provided there is structure to the program).”
The other issue in relation to the construction of the definition of “rehabilitation service” was whether words such as “appliance” and “apparatus” as things (and perhaps also “aid” in some circumstances) were governed by the concluding words of the definition. In my view, they are not, and should bear their plain meaning. These words connote things, as does the word “aid” if it is seen as something like the provision of handrails in houses and, even as suggested, a walking frame or a walking stick. They are not intangibles, such as “treatment” or “counselling”, which might, if they were the genus of a list, be sensibly left flexible with the addition of words like “or other service”. This extension does not, however, make sense in relation to these “things”.
Although I accept that “rehabilitation” is a word of very broad meaning and scope in the present context, I do not accept that the proper interpretation of the definition “rehabilitation service” implies that the provision of “things” such as an “appliance” or “apparatus” – or an “aid” as discussed above – can be qualified by any requirement that a “service” be structured. The structuring of a “service”, such as “treatment” or “consulting”, is inherent in the nature of the intangible concept of “service”. Without some structure it is not defined in content and so could not properly be the subject of the Commission’s exercise of its discretion as to provision and funding, as required by the TA Act. The same is not true of the “things” referred to in the statutory definition. They are tangibles and as such are already “defined”.
Thus, on the basis of the evidence as to the rehabilitation benefits of the provision of a quad bike, it was not suggested by the Commission that it could not be provided for rehabilitation. As indicated previously, the barrier was seen as the legislative provisions, at least from the Commission’s point of view.
In my view, the reference to s 23 of the TA Act in the concluding part of the definition of “rehabilitation service” does not affect the proper interpretation of that definition. It was accepted, as appears clear from its provisions as set out above,[29] that these are internal administrative governance provisions as far as the Commission is concerned and do not affect the ambit of the power conferred by sub-s 60(2) read with the definition of “rehabilitation service”. Of course, the mere fact that the provision of some service or “appliance” or “apparatus” is within the Commission’s power does not mean that it does not properly exercise a discretion as to whether or not its provision is appropriate in the particular circumstances.[30] However, as indicated previously, that is not an issue in the present proceedings; rather, the Commission’s position is that the appellant’s request was beyond power.
[29]See above, paragraph 17.
[30]And, in this respect, see also sub-s 60(3B); and above, paragraph 16.
Summary and conclusions
For the preceding reasons, I am of the opinion that leave should be granted to the appellant to appeal the decision of the Tribunal on the basis of his Proposed Notice of Appeal and that the grounds of appeal relied upon are made out, save for the first ground which is otherwise resolved in favour of the appellant, as previously indicated.
Consequently, the orders of the Tribunal of 18 October 2011 should be set aside and the appellant’s application for review granted.
I will hear the parties further in relation to the form of orders that should be made to give effect to these reasons and also in relation to the issue of costs.
See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, at 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.” (citations omitted).
And see DPP v MN (2009) 26 VR 563, at 565 [8] (Maxwell P, Ashley JA and Coghlan AJA); Eastman Photographic Materials Company Ltd v Comptroller-General of Patents, Designs, and Trade Marks [1898] AC 571; and Smith v Ash [2011] 2 Qd R 175.
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