Keane and Telstra Corporation Limited (Compensation)
[2016] AATA 76
•16 February 2016
Keane and Telstra Corporation Limited (Compensation) [2016] AATA 76 (16 February 2016)
Division
GENERAL DIVISION
File Number
2014/6741
Re
James Keane
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member
Date 16 February 2016 Place Melbourne The Tribunal affirms the reviewable decision.
[sgd].....................................................................
Dr Damien Cremean
Senior MemberCOMPENSATION- Rehabilitation program—“aids or appliances”—vehicle hoist and quad bike—rejection of application—decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth), section 39
REASONS FOR DECISION
Dr Damien Cremean
16 February 2016
The Applicant seeks review of a decision of the Respondent dated 29 October 2014. The Respondent’s decision affirmed a determination dated 11 July 2014 of the Respondent that the Applicant is not entitled to compensation under section 39 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) for a vehicle hoist and four-wheeled motor bike (called a quad bike) in relation to a fracture of the tibia and fibula right leg for which the Respondent has accepted liability.
Despite some dissent from the Applicant, I am quite clear that this correctly sets out the scope of the decision under review. The Applicant himself was specific in his written submissions (15 January 2016) that it was this decision of 29 October 2014 which he wanted reviewed.
This raises a difficulty, however, because section 39(1)(b) of the Act applies only where an injured employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program.
The Applicant is not undertaking and has not completed a rehabilitation program. Nor has he been assessed as not capable of undertaking one. He has raised the question of a rehabilitation program with the Respondent on many previous occasions but has not pursued it further.
A jurisdictional difficulty thus arises for the Applicant and the Tribunal.
Even so, there is still a decision on foot which is reviewable.
In the circumstances, I shall address the application for review as if section 39 does apply.
The first question is whether a vehicle hoist and quad bike fall within section 39(1)(e) of the Act as aids or appliances. If they do, the second question is whether they are reasonably required by the [Applicant], having regard to the nature of [his] impairment.
In my view a vehicle hoist and a quad bike do not fall within section 39(1)(e) as aids or appliances. These words should be read in their natural and ordinary sense in the context of section 39 as a whole.
Vehicle hoists and quad bikes (unlike, say, wheelchairs, motorised scooters or similar) were not developed as products with injured or disabled persons in mind. They may happen, on occasion, to be of assistance to injured or disabled persons but they were not produced for that purpose. In my view, they do not qualify as the aids or appliances which Parliament had in mind when enacting section 39(1)(e) of the Act.
If a vehicle hoist and a quad bike are intended as aids or appliances within section 39(1)(e), then the next question is whether they are reasonably required by the Applicant, having regard to the nature of his impairment.
At the hearing the Applicant gave evidence under affirmation and he was cross-examined extensively. The Tribunal also heard from the Applicant’s life partner Cheryl Smith, but not on affirmation. No other witnesses gave evidence for the Applicant. The Respondent called no witnesses.
I am not in any doubt that the Applicant was severely injured on his bike when travelling to work on 20 June 1984. I am not in any doubt either that over the years since then he has suffered considerably with the after- effects of his injury. He has been in hospital on many occasions and has had many operations. His right side ankle, leg and hip area is still not trouble free and one doctor has recommended his right ankle could be improved with an ankle fusion. I understand an ankle fusion to be a very significant operation.
The evidence of the Applicant, which was challenged, was that he would be much better placed in doing his farm work (he says his occupation is that of farmer) with both a vehicle hoist and a quad bike.
The Applicant indicated that he walks around his property in Pakenham which is generally flat but in places bumpy. It is also damp, and often his walking stick sinks in the mud.
The Applicant said a quad bike would enable him to move around his property much more satisfactorily. He would be able also to muster his cattle. He cannot do that effectively at the moment in his small Daihatsu four-wheel drive vehicle because he is not able to make himself heard by the cattle well enough when mustering. A quad bike would give him manoeuvrability. He would ride it at slow speed. He has heard reports of quad bike deaths and injuries on farms. But he had ridden a quad bike some years before and for quite a period of time.
He said in evidence also that he carries out repairs on his farm vehicles and finds squatting to do so very awkward. It is also awkward for him to get up from under a vehicle he is repairing. A vehicle hoist would overcome these problems. He could stand under it and do his work.
Superficially, there was some appeal in the reasons he gave for wanting the quad bike and the vehicle hoist.
However, after the applicant was cross-examined, I am satisfied that he does not reasonably require a vehicle hoist or a quad bike as aids or appliances under the Act.
The state of the Applicant’s impairment is such that it calls into question how he could reasonably require a quad bike if his ankle is in need of surgery or, worse still, if it is operated on and is fused. That simply does not make sense to me –even leaving aside the safety factor of riding a quad bike in an impaired state.
In any event, the Applicant’s need for a quad bike steadily eroded as he disclosed in evidence (after questioning) that he has numbers of farm vehicles which could satisfy his purposes. Among those are tractors, Daihatsu four–wheel drive vehicles (which---or one of which---may be in a state of disrepair) and a collector’s early-model quad bike.
It is directly relevant to also mention that the Applicant collects Triumph motor cars - he has a TR6 sports car and a 2.5 litre sedan. All of the vehicles including the two Triumphs, the six Massey Ferguson tractors and the two Daihatsu vehicles the Applicant indicated he would service using the vehicle hoist. I was not satisfied therefore that the hoist would only be used for farm machinery needs and not for other purposes.
To my mind, this was critical in a finding which I make that the vehicle hoist is not required by the Applicant for his farming needs. Nor is it quite reasonably required.
As regards the quad bike, I find that it also is not required by the Applicant for his farming needs. He has other means of transport at his disposal which he could use just as satisfactorily. I found his explanation for not being able to use the Daihatsu (the cattle would not hear him) as close to absurd. Nor is the quad bike reasonably required.
I should add that I was troubled about various aspects of the Applicant’s evidence.
On occasions it was obvious to me that the Applicant was not frank with the Tribunal in his evidence. For example, he said at one point that he had never had a quote for a vehicle hoist. But after the luncheon break, a quote for a Molnar Super Auto-Lift suddenly appeared in evidence.
On another occasion, the Applicant told the Tribunal when specifically asked that he had 46 head of cattle but later said the correct figure was 28.
It was only when pressed that the Applicant admitted to the number of vehicles on his premises. Again, it was only when pressed that he could explain the nature of the vehicle hoist he had in mind. He gave a clear impression at the beginning of the hearing that it was a hip-high mechanism and not a fully hydraulic, high lift capable of lifting a large four- wheel-drive vehicle.
The Applicant gave another curious piece of evidence. This was his unconvincing denial of currently carrying on the business of slashing from his property - something he had done previously - even though a photograph in evidence clearly depicts a sign outside the entrance to the property stating Slashing and giving his mobile telephone number.
In my view, all these matters raise serious questions about the Applicant’s veracity.
That means that I should approach any evidence given by the Applicant with considerable caution - which I do.
In any event, I find the decision under review should be affirmed for the reasons I have given.
That decision is one that could not see the Applicant supplied with a vehicle hoist or a quad bike because section 39 of the Act does not apply: the Applicant as I have pointed out is not undertaking and has not completed a rehabilitation program and has not been assessed as not capable of undertaking such a program.
So the foundation for jurisdiction strictly does not exist. I If this was not an issue, I would be clear that a vehicle hoist or a quad bike are not items reasonably required by the Applicant, notwithstanding the nature of his impairment. In any event, such items are not aids or appliances under the Act to begin with.
I affirm the decision under review.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean [sgd].....................................................................
Associate
Dated February 2016
Dates of hearing 21 and 22 January 2016 Applicant In person Counsel for the Respondent John Wallace Advocate for the Respondent Nam Nguyen Solicitors for the Respondent Sparke Helmore
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