Kelly Dawn Trcek (an Infant) by Her Next Friend Dawn Patricia Trcek v State of South Australia No. SCGRG 96/1008 Judgment No. 6066 Number of Pages 6 Statutes Meaning of the Word * "Incurred* "

[1997] SASC 6066

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, BOLLEN AND DUGGAN JJ

Statutes - Acts of Parliament - interpretation - interpretation acts and clauses - Criminal Injuries Compensation Acts7(9b) - meaning of the word "incurred" in the sub-section. Criminal Injuries Compensation Act 1978s7(9b); Health Insurance Act 1973 (Cwth) s18(1)(b), referred to. Boyle v Morshead and State of South Australia (1984) 33 SASR 1; Loter v Bruza and State of South Australia (1982) 32 SASR 333; Hawkins v Bank of China (1992) 10 ALCA 588, applied. Paff v Speed (1961) 105 CLR 549; Ex parte Dawes: In re Moon (1887) 17 QBD 275; Nilsen Development Laboratories Pty Ltd v The Federal Commission of Taxation of the Cwth of Australia (1981) 144 CLR 616, not followed.

ADELAIDE, 6 February 1997 (hearing), 14 March 1997 (decision)

#DATE 14:3:1997

#ADD 22:5:1997

Appellant:

Counsel: Mr R White

Solicitors: Ward & Partners

Respondent:

Counsel: Mr W Lines

Solicitors: Crown Solicitor (SA)

Order: appeal dismissed.

DOYLE CJ

1. In my opinion the appeal should be dismissed. I agree with the reasons of Bollen J for so deciding.

2. I would add just this. The drafting of s7(9b) is such that it could easily be read in the manner for which each party contends. In particular, the word "incurred" is quite capable of being read as referring to expenses already incurred and as referring to expenses to be incurred, although clarity of drafting should lead to the second aspect being spelt out. In deciding how the provision should be read, or in attempting to determine Parliament's intention, one is entitled to consider practicalities. On the one hand, there is the question of whether Parliament intended a distinction to be drawn between expenses already incurred and those yet to be incurred. On the other hand, there is the difficulty, if expenses yet to be incurred are dealt with by the section, of saying that the claimant would recover those expenses from a health fund or scheme. That depends upon a number of matters and in particular, if private insurance is involved, the continuation of the insurance and the terms of the insurance. On the other hand, in relation to claims under the Medicare scheme, one would expect the Court to act upon the basis of the scheme as it stands at the time of the assessment.

3. In the end, I have been influenced by the view that Parliament is unlikely to have intended to draw a distinction between those expenses already incurred and those yet to be incurred. I can think of no reason for doing so, other than the difficulty, already alluded to, of determining whether future expenses will be recoverable from a fund or scheme. The answer to that would appear to be that if the Court is not satisfied that the expenses will be recoverable, then an award may be made in respect of the expenses.

4. For those reasons in brief I agree with Bollen J that the appeal should be dismissed.

BOLLEN J

5. The appeal book contains a "Statement of Agreed Facts". They are:- "1. By Summons dated 8 March 1995 the plaintiff commenced proceedings in the District Court for compensation pursuant to the Criminal Injuries CompensationAct 1978 (as amended) in respect of injuries arising from indecent assaults committed upon her in and around 1991 by her now deceased step-father.

2. Liability was not disputed by the respondent.

3. Quantum in respect of the various heads of damage was agreed between the parties before trial. That agreement is set out in correspondence between the parties in January 1996 (Appeal Book pages 6-7). It was also agreed between the parties that the plaintiff would require future psychiatric treatment. The psychiatric report from Dr Evans (Exhibit DPT3 to the Affidavit of Dawn Patricia Trcek) established the basis for that agreed fact and indicated the cost of such future treatment.

4. The only issue between the parties at trial was the sum to be awarded for such future medical treatment.

5. Section 7(9b) of the Criminal Injuries Compensation Act provides:-

'In awarding compensation under this section, the court must not make any award in respect of those hospital or medical expenses incurred by the claimant, or that part of hospital or medical expenses incurred by the claimant, that the claimant would, if an award were not made under this Act, recover from a health fund or scheme.'

6. It was agreed between the parties that the cost of the required future medical treatment was $20,280.00. The Crown were prepared to agree the sum of $3,500.00 for future medical expenses. The Crown's view was the plaintiff was not entitled to compensation from the Crown in respect of that part of the past and future medical treatment which would be met by a private or public insurer.

7. The plaintiff argued section 7(9b) spoke only of expenses 'incurred', namely, past expenses not future medical expenses. Accordingly, there was no basis under section 7(9b) to reduce the award for future medical expenses.

8. The Criminal Injuries Compensation Act provides a formula to reduce the compensation payable under the scheme. It was agreed between the parties that if the Court construed the legislation in the manner advocated by the Crown, the plaintiff should receive $43,625.00 by way of compensation. It was further agreed if the award for future medical expenses was not to be reduced by reason of section 7(9b), the plaintiff was to receive the maximum compensation of $50,000.00.

9. The matter proceeded to trial before His Honour Judge Taylor on 1 and 8 February 1996. The Affidavits of Kelly Dawn Trcek and Dawn Patricia Trcek together with any exhibits were tendered before Judge Taylor. The correspondence between the parties (Appeal Book page 8) was also tendered before His Honour. No oral evidence was called in addition to this material. His Honour heard legal argument as to the construction of the legislation and on 8 February 1996 delivered an ex tempore judgment ruling that section 7(9b) applied to reduce the award for future medical expenses to the figure of $3,500.00"

6. The appellant (plaintiff) raises one ground of appeal. It is:- "1. The Court erred as a matter of law in construing Section 7(9b) of the CriminalInjuries Compensation Act 1978 so as to cause a reduction in the damages payable by the Crown on account of the future medical expenses to be incurred by the plaintiff."

7. The appellant says that the interpretation of s7(9b) of the CriminalInjuries Compensation Act by the learned trial judge is wrong.

8. It will have been seen (Agreed Fact 7) that the appellant contends that s7(9b) speaks only of past expenses and not to the component of an award allowed for future medical expenses. That view was pressed before us by Mr White in his submissions. Mr Lines, for the respondent, contended that the sub-section speaks to, or of, both past and future medical expenses. Mr Lines said:- "What I say about that is that incurred by the claimant is one characteristic of the medical and hospital expenses to be covered by that sub-section. The other characteristics is (sic) that once incurred they would be recoverable from a health insurance fund. So the wording 'incurred by the claimant' needs to be linked with the words 'would be recoverable from a health insurance fund'. So that although it has a past tense to it in the wording 'incurred', it is also a future contingency by use of the words 'would be recoverable'. So my submission is the sub-section applies to medical and hospital expenses whenever they may be incurred, provided that when they are incurred they are of a nature that would be recoverable from a health fund or scheme."

9. This was a very telling submission.

10. Mr White wrote in his Outline (and spoke to the points in his submissions):- "2. The Appellant contends that 'hospital or medical expenses incurred' is a reference to those hospital or medical expenses already incurred, and known, as at the date of the assessment.

SUBMISSION

3. The use of the past tense 'incurred' is significant in indicating that it is those expenses already incurred which are contemplated.

- If Parliament had intended to include future expenses it would have been easy to have had S.7(9b) read 'those hospital or medical expenses incurred, or which may be incurred, by the claimant'. cf. S.18(1)(b) of the HealthInsurance Act 1973 (C/W) (copy attached). cf. S.11(2) of the CICA.

4. The words 'incurred by the claimant' are words of limitation. As one would not expect a person other than the claimant to be claiming hospital or medical expenses, the emphasis must be on the verb 'incurred'.

5. Further, the distinction between past and future special damages is well known in common law damages assessments. - Paff -v- Speed (1961) 105 CLR 549 per Fullarger J. at 558-9. - Parliament can be taken to have been aware of the distinction.

6. Difficulty of Assessment/Uncertainty. To exclude hospital or medical expenses from an award, the Court must be satisfied that hospital and medical expenses have a certain character, namely that they be such that in the absence of the award, the claimant would recover them, in whole or in part, from a health fund or scheme."

11. I do not derive any assistance from the Health Insurance Act 1973 (Cwth) nor from the case of Paff v Speed (1961) 105 CLR 549.

12. The learned trial judge said:- "This Act must mean the recovery once and for all for the damages that are to be assessed. It is common ground that there is no cause of action for negligence until the damage has occurred see Fleming's Law of Torts, 8th edition at p231 where talking about future earnings it says:

'Although future loss is commonly spoken of, especially in England, as lost earnings, the official view in Australia is that the plaintiff is entitled to damages, not for loss of future earnings, but for the present impairment of its capacity to earn in the future.'

See O'Brien v McKeown, 1868, 118 CLR, 540. Then the author goes on to say there:

'This theorem applies even to earnings prior to trial which can eventually be treated as special. In England though, loss of earning capacity is a term commonly reserved for plaintiffs who have not suffered a current loss of remuneration, but might do so in the future.'

It seems to me that the principal concern of subs(9b) hinges on the words 'the claimant would recover from a health fund or scheme'.

I am not satisfied that the authorities that have been referred to on the statutory interpretation of the word 'incurred' carry much weight in that phrase as used in subs(9b). I find that the use of the word in that section is related to s7(1) of the Act i.e. of the assessment of compensation, that it isn't assessed until the damage has occurred and it has to be assessed once and for all. I find that the word 'incurred' means in this particular sub-section that sum which is to be assessed at the date that the court makes its order and it has therefore been incurred in that sense.

As against that, the claimant again argues that that would be inconsistent with the words, the claimant would recover from a health fund or scheme.

It seems to me that in all of these matters the court is required to make an assessment. When it makes an assessment of future medical treatment it makes it on the best available information in the law and the facts as are known to it at the present time.

It seems to me in making an assessment of the words: 'The claimant would recover from the health fund or scheme' are much of the same matter and the court must make an assessment as it does looking into the future for treatment for in this case, for weekly treatment for three years, and it must make an assessment what the claimant in fact would recover from a health fund or scheme during that time.

I am of the view and I rule that 'incurred' means all heads of damages assessed at the time for once only and therefore the future matters have been incurred in that sense as they are assessed once and for all, and that I can make an order that what is anticipatory and it's a matter of making an order giving effect to the provisions of subs(9b)."

13. As will be seen, His Honour accepted the submissions of the defendant (respondent). He found that the word " incurred" in the relevant sub-section is intended to apply to both past and future medical expenses. He found that s7(9b) of the Criminal Injuries Compensation Act speaks of both past and future medical expenses. I think that the interpretation of the learned trial judge of the section and of the meaning or width to be given to the word "incurred" are correct.

14. It was common ground that compensation under the Criminal InjuriesCompensation Act is to be assessed in accordance with common law principles for assessment of damages subject to any limitations in the Act. This proposition is, in any event, established by Boyle v Morshead and State of South Australia (1984) 33 SASR 1 and Loter v Bruza and State of South Australia (1982) 32 SASR 333. That in itself carries us some way to the correct interpretation of the word "incurred" in its context here. It is a common everyday thing to calculate at (say) the time of preparation for trial an allowance for expected events such as the incurring of medical expenses in the future. A consideration of the second reading speech on the introduction of amendments to the Act does not help much here but we do find that the Minister said:- "The court will not be empowered to make an order in respect of those hospital or medical expenses which would be covered by insurance if an award under this Act were not made." (Hansard 29 October 1985 page 1567)

15. I think that the learned trial judge was correct in giving emphasis to the words "the claimant would, if an award were not made under this Act, recover from a health fund or scheme". These words speak of a future exercise as well as a past or present exercise. The exercise for the future is the recognition that there will be occurrences which require medical expenses from time to time in future months or years. The calculation of the allowance for these future expenses can and will be done before the treatment is given. Parliament, in my opinion, means the forbidding of recovery for expenses covered by a health fund or scheme to apply to past and future medical expenses. I agree with the reasoning of the learned trial judge.

16. I think there is only one case of those cited which is of any help and that is of an incidental nature. That case is Hawkins v Bank of China 1992 10 ACLC 588. There Gleeson CJ and Scheller JA spoke of the word "incurs" in a provision of the Companies Code. They said that the word as used there is not of precise or inflexible denotation. It must be applied in a practical and commonsense fashion consistent with its context and statutory purpose of the scheme. I respectfully agree. A reading of the word "incurred" here in this way supports the decision of the learned trial judge.

17. Mr White referred us to Ex Parte Dawes: In re Moon (1887) 17 QBD 275 at 282 and to Nilsen Development Laboratories Proprietary Limited v The Federal Commission of Taxation of the Commonwealth of Australia (1981) 144 CLR 616. But I think that the legislative provisions and the statutory purposes of the legislation (Nilsen) and the provisions of the deed of composition (Moon) are very different to the legislation and the purposes for which they were enacted here. I can find no help in those cases.

18. I think that the learned trial judge came to the correct decision. I would dismiss the appeal.

DUGGAN J

19. I agree that the appeal should be dismissed for the reasons given by Bollen J.