Monk and Comcare (Compensation)

[2018] AATA 224

Monk and Comcare (Compensation) [2018] AATA 224 (16 February 2018)

Division:GENERAL DIVISION

File Number:           2015/5425

Re:Carmel Monk

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:16 February 2018

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision as follows:

(a)Comcare is not obliged to purchase a new van for Ms Monk;

(b)Comcare is obliged to repair Ms Monk’s existing van or it may instead purchase a good-quality second-hand van which it must then modify to meet Ms Monk’s needs.

.....................[Sgd].........................

Senior Member N A Manetta

CATCHWORDS

COMPENSATION - purchase of new modified van - whether an aid or appliance - whether purchase reasonable - held - van was an aid or appliance but purchase of new van not reasonable in the circumstances - decision under review is varied.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 39(1), (2)

CASES

Re Monk and Comcare  (1996) 43 ALD 677

Heffernan v Comcare [2014] FCAFC 2; 218 FCR1
Thiele v Commonwealth (1990) 22 FCR 342
Re Grace and Commonwealth (1987) 6 AAR 372
Re Heffernan and Comcare [2015] AATA 655

Re Allis and Commonwealth (1985) 4 AAR 23

REASONS FOR DECISION

Senior Member N A Manetta

16 February 2018

1. This is an application by Ms Carmel Monk seeking a review of a decision of the respondent Comcare. Comcare has refused to pay for the purchase and modification of a new van to assist Ms Monk in her transport needs. The claim was advanced under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).  Due to her disability, Ms Monk is unable to drive a vehicle that is not modified.  I would note at the outset that she is not able to drive a modified sedan, but requires a van.  I note further that Comcare has also determined that it is not liable to pay for repairs to Ms Monk’s existing van.  At the hearing before me, Ms Monk was represented by Ms Clark; Comcare, by Ms Walker.

   SUMMARY OF CONCLUSION

2. So far as Comcare’s decision to refuse to purchase a new van is concerned, I would affirm the decision under review.  In so far as Comcare has refused to pay for the repair of Ms Monk’s van, I would set aside Comcare’s decision and substitute a decision that Comcare must at its option repair the van or buy Ms Monk a second-hand vehicle and modify it.  I would expect Comcare to make a sensible choice in that regard in conjunction with Ms Monk.  I set out below the relevant facts and my reasons for my decision.

   FACTS

3. For the most part, the facts were not contested and were agreed between the parties.  Ms Monk, who was 69 at the time of the hearing before me, was injured in 1988.  There is no dispute over Comcare’s ongoing liability in respect of her injury, which was sustained in the workplace.  The injury has affected Ms Monk’s life substantially.  She has had some 13 spinal operations and she is confined to a wheelchair.

4. Ms Monk‘s physical limitations prevent her from entering a standard vehicle unaided.  In 1996, she requested Comcare to provide her with a modified van.  That claim was initially denied by Comcare, but this Tribunal allowed Ms Monk’s application for review.[1]  The van in question was found by the Tribunal to be a form of medical treatment for which Comcare was liable to pay compensation.

   [1] See Re Monk and Comcare (1996) 43 ALD 677

5. Both parties’ representatives submitted to me that this earlier decision was incorrect, given the full Federal Court’s decision in Heffernan v Comcare[2] dealing with the scope of the phrase “medical treatment” in s 4(1).  I am prepared to act on this view in deciding Ms Monk’s application, but I would note that, as I read the case, the Court did not decide that in no circumstances can the purchase of a vehicle amount to “medical treatment”. 

   [2] [2014] FCAFC 2; 218 FCR 1.

6. Ms Monk’s claim proceeded before me on the basis that a new, modified van is an “aid” or “appliance” under section 39(1)(e) of the Act that it is reasonable for her to have. This question was not decided by the full Federal Court in Heffernan v Comcare.

7. I shall come to that argument in due course; but to return to her history, I note Ms Monk took possession of her new VW transporter van in 1996.  It is fitted with a special ramp that allows her to enter the vehicle whilst in her wheelchair and without assistance from another person.  The driver’s side of the cabin has been modified to allow her to move herself from the wheelchair to the driver’s seat with a degree of ease.  Ms Monk is able to enter, drive, and exit the van unaided.

8. The van is now some 21 years old.  It is accepted by Comcare that in its present condition, the van is unreliable and unsafe.  On the evidence before me, it is not beyond repair, however.  Ms Monk took the van to a Toyota dealer and obtained a repair quotation.  I understand from the evidence that the van would cost some $9,000 to repair.  I note here that a quotation from a repair shop specialising in VWs would have been more helpful.  Moreover, more than one quotation would have enabled a better-informed decision to be reached.  No issue arose between the parties concerning the repair cost, however, and I shall assume that the figure of $9,000 is broadly reliable.

9. There is no doubt that Ms Monk believes the van is vital for her to live with a greater degree of independence, enabling her to participate more fully in family life.  She would wish, for example, to participate in family outings such as picnics without having to call on her children or grandchildren to lift her into their sedans, a procedure that causes her some pain in any event.  I accept that she genuinely holds this view of her situation.  I accept also that Ms Monk feels intensely that she has been deprived of much of life’s normal joys because of her unfortunate injuries.  Understandably, she has a conviction that a vehicle will make a substantial difference to her life and that it is, therefore, only reasonable for a new van to be made available to her by the authority responsible for administering the compensation scheme.

   QUESTIONS

10. The answer to Ms Monk’s application depends on the construction of s 39(1)(e) of the Act. The first question, framed by reference to s 39(1)(e), is whether a transporter van qualifies in Ms Monk’s circumstances as an aid or appliance. The second question is whether a new van is reasonably required by Ms Monk having regard to the nature of her impairment and, where appropriate, the requirements of the rehabilitation program. In respect of this latter question, I must apply s 39(2).

    CONSTRUCTION OF SECTION 39(1)

11. Section 39(1) is as follows:

    “Where:

    (a)an employee suffers an injury resulting in an impairment; and

    (b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

    the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

    (c)any alteration of the employee’s place of residence or place of work;

    (d)any modification of a vehicle or article used by an employee; or

    (e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

    being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation program.”

12. The parties addressed me in respect of the significance of paragraph (d) of s 39(1) in so far as it might bear on the interpretation of paragraph (e). Ms Walker submitted on behalf of Comcare that it may be inferred from paragraph (d), which allows only for the cost of modifying vehicles to be reimbursed, that the cost of acquiring a vehicle in the first place was not intended to be reimbursed under paragraph (e) (as the cost of an aid or appliance). The maxim of construction she referred to in this connection was expressio unius est exclusio alterius.  The Latin phrase literally means that the nomination or mention of one specific matter impliedly excludes another matter.

13. I shall come in due course to the application of that principle of statutory interpretation, but there are several points I would make immediately.  The first is that the maxim has never been treated as an absolute rule of construction and has always been applied cautiously.[3]  Relatedly, I would note that the maxim encapsulates what is, in fact, a logical proposition that depends very much on the context in any given case:  a matter may be mentioned and dealt with in such a way that another aspect of the same matter or a different matter was not intended to be covered.  In this case, the argument is that the specific mention of the modification of a vehicle in paragraph (d) is intended to be a complete or exhaustive treatment of the subject matter of motor vehicles so that it may be safely assumed that the cost of acquiring a motor vehicle was intended to be excluded from paragraph (e).

    [3] See Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88, at 94.

14. It would be wrong, in my opinion, to focus initially, and certainly wrong to focus exclusively, on paragraph (d) when considering the application of paragraph (e) to the acquisition of a vehicle.  The question before the Tribunal is not the meaning of paragraph (d), but the meaning of the expression “aids or appliances” in paragraph (e) and its application to Ms Monk’s circumstances.  The terms of paragraph (d) may, or may not, be relevant to the application of the expression to vehicles, but one should begin any analysis with the terms of paragraph (e) and their context.

15. I bear in mind that the Act is remedial legislation, and I accept that ambiguities should be resolved in favour of the injured employee.[4]

    [4] Thiele v. The Commonwealth (1990) 22 FCR 342 at 346.

16. So far as the authorities are concerned, I think it is clear that the expression “aids or appliances” has been applied widely.  For example, in Thiele v. Commonwealth,[5] his Honour Justice Hill applied the expression to a swimming pool that was required for hydrotherapy, although it was not a “curative apparatus”.  The matter was remitted to the Tribunal for determination of the question of whether the pool was reasonably required.  I note his Honour’s finding that “… but for the rail needed for access, there would be nothing that would distinguish the pool required by the applicant from any domestic swimming pool.”[6]

    [5] (1990) 22 FCR 342.

    [6] At pp 350-351.

17. I accept that in Thiele’s case, the swimming pool had a connection with rehabilitation whereas Ms Monk’s van does not. Importantly, however, his Honour approved and quoted from[7] the decision of this Tribunal in Re Grace and Commonwealth.[8]  I note that the Tribunal in Re Grace held that the relevant test is whether the item in question “is needed in order that the employee maintain personal sufficiency as largely as possible in the pursuit of his personal domestic life”.[9]  In Re Grace, a ride-on lawn mower was found to be an aid or appliance reasonably required by the employee.

    [7] At p.353.

    [8] (1987) 6 AAR 372.

    [9] At p 378.

18. I also note that this Tribunal in Re Heffernan and Comcare[10] held that a motor vehicle could be an aid or appliance.  In Re Allisand Commonwealth,[11] the Tribunal would, apparently, also have held that a motor vehicle could be an aid or appliance but for its application of the expressio unius principle of construction to the equivalent section of the 1971 Act.[12]

    [10] [2015] AATA 655.

    [11] (1985) 4 AAR 23.

    [12] See at p 27 and see Thiele at pp 352-353.

19. I am not aware of any authority apart from Re Allis that holds that a modified vehicle cannot be an aid or appliance[13]; but I do note the division of opinion between the Tribunals in Re Heffernan and Re Allis.  The division turns on the application of the expressio unius maxim.

    [13] The question was not decided in the Full Federal Court decision of Heffernan v Comcare (2014] FCAFC 2.

20. I now turn to that matter.  As I have said, Comcare’s submission is that, as the modification of a motor vehicle is expressly referred to in paragraph (d), it should be inferred that the acquisition of motor vehicles is excluded from paragraph (e).

21. I do not accept this submission.  In my opinion, it is important not to treat the maxim as a presumptive rule in the same way that some other maxims may be said to have presumptive force.  For example, the presumptive rule that the singular includes the plural is rightly described as a “rule” of construction because it will be regularly applied and establishes a prime facie position which must be clearly rebutted by context if it is not to apply.  It reflects a well-understood drafting convention.

22. In my opinion, the expressio unius principle of construction is not a rule of that type.  I have already referred to the fact that the expressio unius principle merely concerns the drawing of inferences.  I note that in Bennion[14] a passage from Cross on Statutory Interpretation is quoted which makes the point in these terms:

    “… it is doubtful whether the maxim does any more than draw attention to a fairly obvious linguistic point, viz that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded.”

    [14] Jones,O Bennion on Statutory Interpretation (6th ed) (2013) LexisNexis at  p1125.

23. It follows that much will depend on the precise statutory context.  Had s 39(1)(d) referred to “the modification of an aid or appliance or vehicle”, it would be easy to view the omission to mention a vehicle in the next paragraph, (e), as a deliberate decision to exclude the purchase of vehicles from that paragraph.  Similarly, if paragraph (e) had referred to the cost of any “article” alone without mentioning vehicles, the drafting of paragraph (d), which refers to the modification of an article or vehicle, would supply a strong inference that paragraph (e) was not intended to deal with motor vehicles.

24. Paragraph (d) differs markedly from paragraph (e), however.  The inference that is advanced by Comcare is not obvious.  Paragraph (d) is concerned with the “modification” of “vehicles” and “articles”.  The preceding paragraph, (c), refers to the modification of residences and workplaces.  It is an open question whether a vehicle is an article, and the draftsperson has put the matter beyond doubt by ensuring that the modification of a motor vehicle as well as the modification of residences, workplaces, and articles is compensable.

25. It is not clear why there is a change in language from “article” in paragraph (d) to “aids or appliances” in paragraph (e); but it does not seem to me to follow that because the draftsperson thought a motor vehicle might not be an article, it necessarily follows that he or she thought a motor vehicle could not, in some circumstances at least, be an aid or appliance.  To the contrary, as the modification of a vehicle to enable an injured employee to continue to drive is expressly made compensable under paragraph (d), there is no reason to suppose that the acquisition of a vehicle of a special type necessitated by the injury was intended to fall outside the concept of an “aid or appliance”. 

26. In Re Allis, the Tribunal applied the expressio unius principle.  Perhaps the conclusion was more easily reached because s 37(3) of the 1971 Act, as it then stood,[15] was drafted as a single sentence without paragraphs.  However that may be, I am not prepared to apply the expressio unius to the drafting of s 39(1) of the Act.

    [15] Compensation (Commonwealth Employees) Act, 1971.

27. Having regard to the beneficial nature of the legislation and the decision of the Federal Court in Re Thiele, I have decided that I should act on the principle that informed the decision of the Tribunal in Re Grace; namely, that the concept of an aid or appliance extends to articles “needed in order that the employee maintain personal sufficiency as largely as possible in the pursuit of his normal domestic life”.[16]   

    [16] Re Grace (1987) 6 AAR 372 at p.378

28. I agree with the Tribunal in Re Heffernan[17] that the concept of “aids or appliances” required by the injured employee does not encompass a vehicle that Ms Monk would have purchased in any event (i.e., had she not been disabled) because the vehicle in that case would be required by her as a normal feature of her domestic life, just as a refrigerator or any other domestic appliance would be.

    [17] [2015] AATA 655

29. Where, however, the disability has produced the need for the purchase of a larger and more expensive vehicle and one which needs to be modified before it can be used by the injured employee, that vehicle can be, in my opinion, an aid or appliance.  It follows that what is important in the present case is that the nature of Ms Monk’s injury is such that she is not able to drive a regular sedan whether modified or otherwise.  She requires a more expensive van so that her wheelchair can enter the sizable interior cabin with sufficient room for her to move across to the driver’s seat.  This is a special form of vehicle that Ms Monk would not choose to purchase for herself but for her disability. 

30. I conclude, therefore, that Ms Monk’s present van should be considered to be an aid or appliance required by her on account of her disability in the circumstances of this case.  It follows that under paragraph (e), Comcare is responsible for its repair.  It is also responsible for replacing it, provided it is reasonable to do so.

    REASONABLENESS OF PURCHASE OF NEW VAN

31. The second question is whether the purchase of a new van to replace the existing van would be reasonable in the circumstances of this case.  Ms Monk in her evidence pressed me strongly with her view that a new van is reasonable in the circumstances.  Here I find against Ms Monk.  My reasons for this conclusion follow.

32. Ms Monk’s evidence to the Tribunal is that a repair to the van would cost some $9,000 but that a new modified van would cost over $80,000.  In my opinion, a repair to the van is more appropriate in the circumstances of this case. 

33. I do accept that the van is some 21 years old, but it is not beyond repair.  I act on the basis that Ms Monk’s likely driving life is not likely to be particularly long.[18]  Accepting that my approach is somewhat broad-brush, I proceed on the basis that Ms Monk can realistically expect another six or so driving years, which would take her into her mid-70s.  I cannot say, of course, that she will inevitably cease driving at that time, but it is a reasonable supposition.  I accept that there are some people who drive into their 80s and even 90s, as Ms Clark pointed out; but that is not the norm, and I think I should approach Ms Monk’s case on the basis of what I believe is a reasonable supposition in this regard.   

    [18] Section 39(2)(a) makes this a relevant consideration.

34. Accepting that Ms Monk has six or so years of driving ahead of her, I do not think the purchase of a new van is reasonable.  It is more appropriate that Ms Monk continue to drive her present vehicle once it is fully repaired.  The alternative, it seems to me, is that Comcare should buy Ms Monk a good quality second-hand van which could then be modified by Comcare to meet Ms Monk’s needs.  I do not have any evidence before me as to the cost of such a vehicle or whether such a vehicle could be conveniently retrofitted to meet Ms Monk’s needs.  I assume that it could be retrofitted because Ms Monk’s existing van was adapted after purchase.

    CONCLUSION

35. I would, therefore, affirm the decision under review in so far as it concerns the acquisition of new van; but I would remit the matter to Comcare on the basis that Ms Monk’s van is “an aid or appliance” within s 39(1)(e) the repair of which is required by Comcare to be compensated. I shall leave Comcare with the option of purchasing a suitable second-hand vehicle and retrofitting it, but, as I have said, I would expect Comcare to involve Ms Monk in that decision.

    DECISION

1. The formal decision of the Tribunal to give effect to these reasons will be:-

   The Tribunal sets aside the decision under review and substitutes a decision as follows:

   (a)Comcare is not obliged to purchase a new van for Ms Monk;

   (b)Comcare is obliged to repair Ms Monk’s existing van or it may instead purchase a good-quality second-hand van which it must then modify to meet Ms Monk’s needs.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

......................[Sgd]............................

Administrative Assistant

Dated: 16 February 2018

Date(s) of hearing:	30 June 2017
Advocate for the Applicant:	Ms S Clark
Solicitors for the Applicant:	South East Community Legal Service
Counsel for the Respondent:	Ms G Walker
Advocate for the Respondent:	Mr A D MacGregor
Solicitors for the Respondent:	Sparke Helmore