Russell v Transport Accident Commission

[2004] VSC 442

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
PRACTICE COURT

No. 7882 of 2003

JOHN RUSSELL	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 OCTOBER 2004
DATE OF ORDER:	26 OCTOBER 2004
CASE MAY BE CITED AS:	JOHN RUSSELL v TRANSPORT ACCIDENT COMMISSION
MEDIUM NEUTRAL CITATION:	[2004] VSC 442

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Appeal – Appeal from Victorian Civil and Administrative Tribunal – Review of decision by TAC to discontinue funding for certain treatment and services – Whether measurable benefit obtained from treatment – Whether continued funding of treatment and services is “reasonable” – Transport Accident Act 1986, ss.3 and 60.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D. Martin	PILCH
For the Respondent	Mr D. Masel	TAC Law

HIS HONOUR: 

1. This is a proceeding with a very chequered history.  In August 2003 the Victorian Civil and Administrative Tribunal heard a number of appeals by the present appellant against decisions of the Transport Accident Commission to discontinue funding for certain treatment which the applicant was then receiving at the expense of the Commission.  The applicant also sought a review of the Commissioner's decision in relation to certain hospital services and ambulance services.

1. There was, in addition, an appeal following the Commissioner's decision to deny funding in relation to the replacement of certain dentures and, I understand, in relation to the provision of transport in the form of taxi transport, which the applicant used in order to meet his treating appointments. 

1. The decision of the Tribunal was pronounced on 27 August 2003.  In a judgment consisting of 91 paragraphs, Deputy President Davis affirmed the decisions under review. 

1. The applicant sought to appeal from the Deputy President's decision.  The application to appeal was not brought within time and in the end Master Wheeler on 24 March 2004, dismissed the proceeding.  Leave to appeal out of time against that dismissal is also sought in the proceeding before me.  But the substantive merits of the applicant's position were ably and properly put before me by Mr Martin on behalf of the applicant.  In those circumstances it seems to me appropriate to deal with the merits of the appeal rather than concern myself with procedural problems that might otherwise stand in the way of the merits being heard. 

1. In her lengthy reasons for decision, the Deputy President examined with care the medical and other evidence which had been presented to her during a hearing lasting several days.  The Deputy President also considered with like care the submissions that had been put to her on behalf of the Commission and by the applicant himself on his own behalf.  She then, in paragraphs 85 and following of her reasons for decision, set out her findings and, in paragraph 91, her conclusion.  It is to paragraphs 86, 87 and 88 that Mr Martin particularly directed my attention in the course of his submissions.  The Deputy President, in those paragraphs, summarises what in her view is the proper conclusion to draw upon the weight of the evidence. 

1. She first, in paragraph 86, expressed her view that the "long-term, osteopathic and psychological treatment (to periods of four years and two months, and two years and eight months respectively) have been of no demonstrable long-term, objectively measurable benefit to the applicant."  That, it seems to me, is a conclusion which is entirely open on the evidence.  Of course the Tribunal must look not to the past as the sole source of relevant evidence upon which to base its conclusion, but rather to the future.  The past is, nevertheless, relevant in considering what the future might hold. 

1. The Tribunal then turned to that future.  In doing so, it looked to the more immediate past.  The history presented to the Tribunal in relation to both the osteopathic treatment and the psychological treatment given to Mr Russell was in each case that he gained some benefit from both, but that that benefit could not be measured otherwise than by reference to his own subjective assessment.  That objective assessment is certainly a factor to be taken into account.  The Tribunal, it seems to me, did take it into account.  It is, however, not the only factor to be taken into account.  If there is no measurable benefit obtained from a particular treatment, then of course the Tribunal ought to have regard to that circumstance in deciding whether or not the liability of the Transport Accident Commission to fund the treatment should continue. 

1. The relevant provisions of the Transport Accident Act are to be found in s.3 and s.60. Section 3(1) defines the word "reasonable". In so far as is relevant for present purposes, the definition is as follows. "Reasonable", and I interpolate the word, 'means', "having regard to … (c) the determination by the Commission of reasonable costs or expenses of, or fees for, the service or provision having regard to, (i) the service or provision actually rendered, and, (ii) the necessity of the service or provision, or of the incurring of the expense, in the circumstances".

1. Section 60 then imposes liability on the Commission to pay as compensation to a person who is injured as a result of a transport accident, the "reasonable costs of … medical services … [and] rehabilitation services … received because of the transport accident". These provisions, it seems to me, require a body in the position of the Tribunal to ask, when questions whether services would continue to be funded are raised, whether the continued funding of those services is reasonable, having regard to their necessity in the appropriate treatment of the victim of the accident.

1. In assessing what expenditure is reasonable, one must therefore consider the necessity of the service upon which the expenditure is proposed to be effected.  In this context the word "necessity" is, I think, of some importance.  That word is somewhat flexible in its scope.  It does not, as I apprehend it, include only services which are vital for the continued reasonable existence of the victim as a functioning member of the community.  What is necessary would include treatment that is of a much lower urgency than that.  On the other hand, when one reaches the other point of the scale, one must presumably exclude as not being necessary treatment which is of merely temporary palliative effect, especially where that effect is not measurable. 

1. In Mr Russell's case it is, I think, clear on the evidence that the benefits obtained by him from both the osteopathic and the psychological treatment were not measurable.  The evidence was that there was no measurable clinical evidence of improved mobility as a result of the osteopathic treatment.  The evidence also was that there was no measurable benefit from the psychological treatment.  Indeed, whereas in 1999 and 2000 the psychologists reported Mr Russell as expressing the view that there was light at the end of the tunnel, treatment since then has at best prevented deterioration in Mr Russell's condition rather than improving it.  It may well be in appropriate circumstances that the prevention of deterioration is entirely appropriate.  Here, however, the treatment seems to be directed to no more than a temporary holding pattern. 

1. In any event, it is not within the jurisdiction of the court to deal with the merits of the Tribunal's finding or findings. The only question is whether those findings were made in accordance with law. Mr Martin submitted that the Tribunal was overly concerned with the lack of long-term benefit to Mr Russell. It failed, Mr Martin submitted, to consider the effect of the treatment on the short-term health of Mr Russell, and in that neglect the Tribunal misconstrued ss.3 and 60 of the Act. As I read the reasons for the Tribunal, there was no such misconstruction.

1. The Tribunal appropriately took into account, it seems to me, the definition of the word "reasonable" as set out in the Act, and the proper extent in law of the liability of the Commission in meeting the reasonable costs of medical services and rehabilitation services. It was open to the Tribunal, in my opinion, to find that the continued expenditure by the Commission on the treatment rendered to Mr Russell by the osteopath and the psychologist was not reasonable within the meaning of s.60. In my opinion that is the conclusion to which the Tribunal came, albeit that it was not expressed in those terms. That being a conclusion which was open as a matter of law, there is no basis upon which this court can interfere. Accordingly, the application for leave to appeal must be dismissed.

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