McDonald and Comcare (Compensation)
[2016] AATA 1049
•20 December 2016
McDonald and Comcare (Compensation) [2016] AATA 1049 (20 December 2016)
Division
GENERAL DIVISION
File Number
2016/3180
Re
John McDonald
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 20 December 2016 Place Adelaide The Tribunal’s decision on the preliminary issue is that Mr McDonald is entitled to have any claim for household services (including gardening) relating to a period after 1 December 1988 determined under s 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and nothing in s 124 of the SRC Act acts as an impediment to the success of such a claim.
..............[Sgd]..............................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Entitlement to compensation for household services – Preliminary issue raised – Effect of transitional provisions where compensable injury sustained prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – Whether applicant restricted to compensation of a type which would have been payable under 1971 Act – Entitlement to a particular type of compensation arising after 1 December 1988 in respect of a compensable injury is determined by direct reference to the applicable provision of the SRC Act.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 29, 124(1), (1A), (2) and (5)
CASES
Hoyle v Telstra Corporation Limited; Razmovski v Telstra Incorporation Ltd (1997) 145 ALR 148
Comcare v Levett (1995) 38 ALD 518
Brennan v Comcare (1994) 50 FCR 555
Comcare v Bozicevic (1997) 144 ALR 132
Behan v Australian Telecommunications Corporation (1990) 22 ALD 545Re Lay and Australian Postal Corporation [1999] AATA 803
REASONS FOR DECISION
Deputy President K Bean
20 December 2016
The substantive application in this matter relates to a claim by the applicant, Mr McDonald, submitted on 21 January 2013, for household assistance in the form of a gardening contractor “to help with various gardening tasks around [his] garden”.[1] This claim was initially granted and the relevant expenses were paid for several years. However, on 17 March 2016, the respondent, Comcare, determined that Mr McDonald was not entitled to compensation in respect of gardening services under the relevant provision of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), s 29.[2]
[1] T69.
[2] T89.
That determination was affirmed on reconsideration and on 17 June 2016, Mr McDonald applied to this Tribunal for review of the decision of the reconsideration delegate.[3]
[3] T1.
The application has not yet proceeded to a final hearing. However, on 2 August 2016, the solicitors for the respondent wrote to the Tribunal identifying a preliminary issue which the respondent sought to have determined by the Tribunal before the matter proceeded to a final hearing. The respondent indicated in that letter that it was likely that the Tribunal’s adjudication of that issue would be determinative of the substantive application.
The matter was accordingly listed for a preliminary hearing before me on 6 October 2016 to address the issue identified by the respondent.
THE PRELIMINARY ISSUE
The issue identified by the respondent concerns the application of the transitional provisions of the SRC Act to Mr McDonald’s circumstances. As Mr McDonald’s injury (a prolapsed intervertebral L4-L5 disc) was sustained on 2 September 1976[4], prior to the commencement of the SRC Act on 1 December 1988, there is no dispute that the transitional provisions are applicable to determination of his entitlements. What is in dispute is whether the transitional provisions have the effect of defeating any entitlement he may otherwise have had to household assistance pursuant to s 29 of the SRC Act.
[4] T33.
RELEVANT PROVISIONS
Section 29 of the SRC Act relevantly provides as follows:
Compensation for household services and attendant care services
(1)Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2)Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b)the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c)the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d)the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also subsection 4(2).
The transitional provisions are set out in s 124, and relevantly provide as follows:
Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
(5)A person is not entitled to compensation under section 29 in respect of any period occurring before the commencing day.
THE RESPONDENT’S ARGUMENT
The respondent’s argument depends primarily on subss (1A) and (2) of s 124. The respondent contends that the effect of those provisions is that a person who has suffered an injury during the currency of the 1971 Act is to be compensated as if that Act was still in force. In other words, the respondent contends that a person who suffered an injury prior to the commencement of the SRC Act is not entitled to compensation under that Act in respect of periods after the commencement of that Act on 1 December 1988, unless the compensation is of a type which would have been payable to the person under the 1971 Act.
ANALYSIS
In my view, however, the respondent’s position involves a fundamental misreading and misunderstanding of the effect of the transitional provisions. Although subss 124(1A) and (2) each refer to compensation only being payable to a person in respect of their “injury, loss or damage” if it was payable under a previous Act, on a proper construction, in my view, neither of those provisions has the effect that a person injured prior to 1 December 1988 can only ever recover the compensation which was payable under that previous Act.
I consider that these provisions do have the effect that an injury sustained prior to the commencement of the SRC Act will only be compensable under the SRC Act if it was compensable under the relevant previous Act, in this case the 1971 Act. They also have the effect that loss or damage sustained prior to the commencement of SRC Act will only be compensable under the SRC Act if it was compensable under the relevant previous Act. However, they have the further effect, read together with subs (1) of s 124, of providing that so long as the relevant injury was compensable under the relevant previous Act, a person is entitled to compensation under the SRC Act in respect of periods after 1 December 1988, or entitlements which have accrued after that date. In other words, an entitlement to a particular type of compensation arising after 1 December 1988 in respect of a compensable injury is determined by direct reference to the applicable provision of the SRC Act, without recourse to the comparable provision (if any) in the relevant previous Act. Were the position otherwise, those injured prior to 1 December 1988 would be permanently restricted to much more limited entitlements than employees in similar circumstances who happen to have sustained injuries after 1 December 1988. It would be very surprising if the transitional provisions had that effect.
In my view, the authorities which consider the transitional provisions in the context of compensation for permanent impairment are consistent with my analysis. In Comcare v Levett (1995) 38 ALD 518 at 521, the Full Court of the Federal Court noted (emphasis added):
It is not in issue in this appeal that an employee who suffered an injury before the 1988 Act came into force is entitled to compensation under s 24, if the employee suffered an impairment after it came into force, and the impairment, at the time it occurred, or later, became permanent.
Similarly, in Brennan v Comcare (1994) 50 FCR 555, the Full Court made the following comments:
Only where that impairment occurred before the commencing date do the exclusionary provisions of subs (3) [of s 124] operate. Unless they do, subs (1) holds sway, and an impairment is compensable under the 1988 Act.
Returning then to s 24, it seems quite clear that s 124 applies without difficulty to a case where a person injured before the commencing date did not suffer an immediate impairment, but the injury resulted in one after the commencing date.[5]
...
The question then arises, in a case such as the present, whether, within the meaning of s 124(1A), Mr Brennan is entitled to compensation under the 1988 Act on the ground that compensation would have been payable to him in respect of the injury, loss or damage in question under the 1971 Act. Does s 124(1A) deny an entitlement to compensation under the 1988 Act where the compensation that would have been payable under the 1971 Act was different in nature and quality? Is the consequence that absence of entitlement under the earlier legislation to a lump sum is fatal to a claim under s 24 of the 1988 Act, even though there was a right to weekly payments under the earlier statute?
...
Turning to s 124(2), the apparent conferral upon Mr Brennan by s 124(1) of rights under the 1988 Act is not removed by s 124(2). This is because compensation would have been payable in respect of an injury, loss or damage suffered by him before the commencing day under the 1971 Act as in force when the injury, loss or damage was suffered.
However, the appellant is then subject to the exclusionary effect of s 124(3). He was not entitled to receive compensation of a lump sum in respect of the impairment in question under the 1971 Act as in force when the impairment occurred. Is the result that there is no entitlement to compensation under s 24?
The crucial question then becomes whether Mr Brennan falls outside the exclusion brought about by s 124(3), and remains within the entitlement to compensation under s 24 conferred by s 124(1), because he correctly asserts that his entitlement under s 24 is in respect of a permanent impairment which occurred after, rather than before, 1 December 1988. Accordingly, it was necessary for the AAT to determine whether, on the facts as found by it, the impairment, within the meaning of s 124(3), “occurred” before 1 December 1988.
...
By virtue of s 124(1) Comcare would be liable to pay compensation to Mr Brennan under s 24 if an injury to him resulted in a permanent impairment, whether that injury was suffered by him before or after 1 December 1988. It was common ground before the AAT that Mr Brennan had sustained an injury resulting in a permanent impairment.
However, what would otherwise be his entitlement to compensation under s 24 will not exist if the impairment occurred before 1 December 1988. That is the effect of s 124(3).[6]
[5] At 557-558 (per Burchett J).
[6] At 565-566 and 569 (per Gummow J). See also Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11; [1990] FCA 295 at [13]-[15] and [19].
My construction of the transitional provisions is also consistent with Foster and North JJ’s comments on appeal in Comcare v Bozicevic (1997) 144 ALR 132 (emphasis in original):
A distinction is, therefore, made by the 1988 Act between compensation in respect of an injury for a loss and compensation in respect of a loss. Section 124(2) is concerned with injury, loss or damage in respect of which compensation is claimed, not with the areas of loss in respect of which that compensation is payable.[7]
[7] At 142.
Carr J delivered a separate judgment in that case, in which his Honour said:
It seems to me that, as a matter of statutory construction, one should look to the first head of entitlement in this matter, “injury”, and find that compensation was payable in respect of “that injury”. That means that an entitlement arises under s 124(1A) and no disentitlement results from the application of s 124(2). This legislation is beneficial in its nature. Where two constructions of such a provision are possible, that which favours the employee should be preferred.[8]
His Honour later continued:
If parliament had intended to exclude employees in the category in which the respondents find themselves from entitlement under s 27 it would have been very easy to do so, either in s 124 or in s 27 itself. An example of such a provision can be found in s 124(5)... .[9]
However, this comment can be reconciled when considered in its context, namely, payment of compensation under s 27 of the SRC Act in respect of an injury and impairment suffered before 1 December 1988. As alluded to above, the effect of subs 124(5) is to limit payment of compensation under s 29 to periods after 1 December 1988.
[8] At 145.
[9] At 146.
Further, I consider that my analysis is also supported by the decision of the Full Federal Court in Hoyle v Telstra Corporation Ltd;Razmovski v Telstra Corporation Ltd (1997) 145 ALR 148, in which the Court observed, at 152:
Upon analysis of the whole of s 124, we consider that it is clear that the parliament proceeded on the basis that, where the entitlement to compensation under the Compensation Act has a relevant nexus with a period before the commencing day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under that Act.
With respect to s 29, the Court also observed:
Section 124(5) stands outside this symmetry, but not the apparent general principle. Section 29 of the Compensation Act provides for a new head of compensation. Where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, there is a liability to pay compensation in an amount determined in accordance with that section. However, under s 124(5), no compensation is payable under s 29 in respect of any period occurring before the commencing day.[10]
[10] At 151.
I note that if the respondent’s construction were correct, subs 124(5) would be superfluous, as s 29 could have no application to a claimant whose injury was suffered prior to 1 December 1988. For completeness, I also note that s 124 effectively provides for the same approach to be taken with respect to payment of incapacity payments and medical expenses.[11] That is, employees injured before 1 December 1988 are entitled to compensation under the SRC Act for incapacity suffered or medical expenses incurred after that date.
[11] See subss (6) and (8).
If further support were needed for the construction outlined above, it is found in the fact that, following repeal of the 1971 Act, there is simply no statutory basis for the payment of entitlements which existed under that Act where the entitlement relates to the period after 1 December 1988. In my view, nothing in s 124, or elsewhere in the SRC Act, has that effect.
For completeness, I should acknowledge that in Behan v Australian Telecommunications Corporation (1990) 22 ALD 545 at 549-550, Lockhart J said:
In Re Willis the Tribunal decided that a clear expression of legislative intent is to be found from s 124 that entitlement to compensation in respect of pre-existing injuries (ie existing before 1 December 1988) is to be ascertained according to the entitlement provisions of the predecessor Act which was in force at the time the relevant injury, loss or damage was suffered. … The Tribunal held that under the 1988 Act a Commonwealth employee's entitlement to compensation in respect of injury should be determined only in accordance with the provisions of the legislation in force at the time at which the entitlement arose. Accordingly, the Tribunal found that the applicant's entitlement to compensation in the proceedings before it should be determined only in accordance with the provisions of the 1930 Act.
...
I agree also with Re Willis that it is not correct to interpret s 124 of the 1988 Act as requiring entitlement to compensation to be determined under the 1971 Act up to 1 December 1988 and thereafter under the 1988 Act. The Tribunal in Re Willis correctly rejected the contrary approach adopted in Re Farhat ... and other decisions of the Tribunal which follow Farhat.
However, with the greatest respect to his Honour, it appears to me on a close reading of Re Willis that the issue the Tribunal was there concerned with was whether compensation would have been payable to the applicant in respect of his claimed injury under the 1930 Act having regard to the notice requirement in s 16 of that Act. That issue was in turn relevant to whether he could establish an entitlement to compensation under the SRC Act, having regard to subs 124(2). The respondent in that case argued that compensation was not payable because the applicant had not lodged his claim within the time contemplated by s 16 of the 1930 Act.[12] The Tribunal ultimately found that the applicant was not precluded from receiving compensation by reason of his late claim. Accordingly, it would appear that his Honour’s remarks in Behan were made in the context of an imperfect summary of the effect of the Tribunal’s decision in Re Willis.
[12] (1989) 19 ALD 665 at 671.
In addition I note that, strictly speaking, the passages in Lockhart J’s judgment extracted above are obiter dicta, and whilst they may nevertheless be persuasive, they are not necessarily binding. Having carefully considered the context in which his Honour’s comments were made, as I have not been able to reconcile those comments with the other Federal Court authorities I have referred to above, I have decided that I should be guided by the principle established by those other authorities.
FURTHER SUBMISSIONS
At my request, the respondent filed supplementary submissions with reference to many of the authorities discussed above. The respondent also relied, inter alia, on the Tribunal’s decision in Re Lay and Australian Postal Commission [1999] AATA 803, in which Deputy President Forgie referred to Lockhart J’s remarks in Behan. However, for the reasons I have given, respectfully I do not propose to follow those decisions.
As I understand it, on the respondent’s construction, the words “compensation ... in respect of an injury, loss or damage” in s 124 relate to the types of compensation that may be payable in respect of an injury (such as medical expenses, permanent impairment, etc). This appears to be based on what is, in my view, a flawed understanding of the effect of the authorities. The respondent submitted:
55.... a person injured prior to 1988 was prevented by way of s 124 from accessing compensation that was not payable under the 1971 Act – whether or not that specific entitlement (as compared to the ‘injury’) arose before or after the commencing date.
...
65.Summarising these submissions, it follows that while s 124 provides for the ongoing compensation for injuries sustained pre-commencement, that rule is subject to two limitations:
65.1a general limitation on compensation being paid for a type of compensation for which was not payable under the Act relevant at the time of injury; but if that type of compensation was so payable
65.2the specific limitation that applies to that head of compensation as specified in ss 124(3) to (9).
66.In the present matter, the Applicant fails at the hurdle of the first limitation. Compensation was not of a type payable under the 1971 Act, and thus is not payable in respect of that injury under the SRC Act.[13]
[13] Supplementary Submissions of the Respondent dated 2 November 2016.
However, as demonstrated by the Full Federal Court authorities I have referred to above, subs 124(2) “is concerned with injury, loss or damage in respect of which compensation is claimed, not with the areas of loss in respect of which that compensation is payable”. Essentially all that is required is that the injury was or would have been compensable under the relevant previous Act. A person’s entitlement to particular types of compensation in respect of that injury will then be determined under the SRC Act, by virtue of subs 124(1), but may be limited by the other subsections in s 124 where the claimed entitlement relates to a period before 1 December 1988. Having regard to the words of s 124 and the authorities, there is simply no basis, in my view, to import a requirement that the specific type of compensation claimed under the SRC Act in respect of a compensable injury for a period after 1 December 1988 would have been payable under the relevant previous Act.
For completeness, I note that Mr McDonald also provided further written submissions after the hearing, by way of a letter dated 19 November 2016. As I have determined the preliminary issue in his favour, it is unnecessary for me to specifically address the points made in that letter.
CONCLUSION
Given that Mr McDonald’s claim was made on 21 January 2013 and relates entirely to a period after 1 December 1988, I have accordingly determined that nothing in the transitional provisions or elsewhere in the SRC Act acts as an impediment or barrier to that claim. Rather, Mr McDonald’s entitlements under s 29 are to be determined by reference to whether he satisfies the requirements of that provision with respect to the period in question.
DECISION
Accordingly, my decision on the preliminary issue is that Mr McDonald is entitled to have any claim for gardening services relating to a period after 1 December 1988 determined under s 29 of the SRC Act, and nothing in s 124 of the SRC Act creates an impediment to the success of such a claim.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
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Administrative Assistant
Dated 20 December 2016
Date of hearing 6 October 2016 Date final submissions received 23 November 2016 Applicant In person Solicitors for the Respondent Mr Peter Lehmann
Lehmann Snell Lawyers
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