TAC v Kutz
[2011] VSC 236
•6 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5927 of 2010
| TRANSPORT ACCIDENT COMMISSION | Appellant |
| v | |
| SANDRA KUTZ | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2011 | |
DATE OF JUDGMENT: | 6 June 2011 | |
CASE MAY BE CITED AS: | TAC v Kutz | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 236 | |
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ACCIDENT COMPENSATION – Transport accident – Medical and like benefits – Disability Services – Home services – Household help – Transport Accident Act 1986, ss 3(1), 23 and 60.
WORDS AND PHRASES – Meaning of “home services” – Meaning of “household help”.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M.F. Wheelahan SC with Mr C. Young | Solicitor for the Transport Accident Commission |
| For the Respondent | Dr I.R. Freckelton SC with Mr B.R. McTaggart | Slater & Gordon |
HIS HONOUR:
Introduction
The respondent, Ms Sandra Kutz, was injured in a transport accident on 14 March 2005. The appellant (“the Commission”) is the body corporate set up pursuant to s 10 of the Transport Accident Act 1986 (“the Act”), to (amongst other objectives) manage the transport accident compensation scheme set up by the provisions of the Act.[1]
[1]See s 11 of the Act. See further s 12 of the Act.
Following Ms Kutz’s transport accident, the Commission paid for the reasonable cost of “home services” provided to Ms Kutz, namely two hours per fortnight of home services in the nature of cleaning, and two hours every three weeks of home services in the nature of gardening. Ms Kutz does not have a “severe injury”[2] for the purposes of the Act and therefore, at the expiration of five years, the Commission’s statutory obligation[3] to pay the reasonable costs of Ms Kutz’s home services ceased.
[2]Defined relevantly in s 3(1) of the Act to mean:
“(a) a significant acquired brain injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50% of the body; or
(b) any other injury specified by the Regulations for the purposes of this definition.”
[3]Under s 60(2)(d) of the Act.
By letter dated 14 July 2009, the Commission notified Ms Kutz that payment for her home services would cease on 13 March 2010. Ms Kutz sought a review of the Commission’s decision by VCAT. The application was heard before Senior Member Davis on 29 September 2010. On 7 October 2010, the Tribunal set aside the Commission’s decision to cease payment for Ms Kutz’s home services and ordered the Commission to pay for two hours per fortnight of home services (cleaning), and two hours of home services every three weeks (gardening). By its orders, the Tribunal authorised the cleaning and gardening services provided to Ms Kutz to be a “disability service” under s 23 of the Act. This meant that the Commission became liable to pay the reasonable cost of the cleaning and gardening services under s 60(2)(a) of the Act, and without any five year limitation period.
On 25 November 2010, Zammit AsJ granted leave to the Commission to appeal against the VCAT decision in respect of the following question of law:
“Whether on a proper construction of the Act the Commission may, pursuant to s 23 of the Transport Accident Act 1986, authorise to be ‘disability services’ the home services and gardening services which are claimed by [Ms Kutz], with the consequence that the reasonable costs of such services are payable by the Commission under s 60(2)(a) of the Act.”
Pursuant to the leave granted by Zammit AsJ, on 30 November 2010, the Commission appealed pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 from the orders made by the Tribunal on 7 October 2010. In its notice of appeal, the Commission set out the grounds of appeal as follows:
“1. The Tribunal erred in holding that home and gardening services claimed by the respondent [Ms Kutz] are ‘disability services’ within the meaning of s 60(2)(a) of the Act.
2. The Tribunal should have held that the home and gardening services claimed by the respondent [Ms Kutz] are ‘home services’ within the meaning of s 60(2)(d) of the Act and that on a proper construction of s 60 of the Act, the appellant [Commission] was liable to pay for such services pursuant to s 60(2)(d) and not pursuant to s 60(2)(a) or otherwise.”
Background facts
Ms Kutz was born on 14 April 1957. The transport accident occurred on 14 March 2005. Ms Kutz suffered serious injuries in the transport accident. These injuries included a fractured vertebra and injury to her back. As a result of her injuries, Ms Kutz suffers from persistent severe pain, stiffness and limitation of movement of the back and constant pain and limitation of the movement of the left leg. It was common ground before VCAT that Ms Kutz (who lives alone) has “great difficulty undertaking household tasks and gardening”.[4]
[4]Reasons below at [4]-[6].
There was no issue below concerning Ms Kutz’s need for two hours per fortnight of home services in the nature of cleaning, and two hours every three weeks of home services in the nature of gardening. Equally, it was not disputed below that Ms Kutz was, from 13 March 2010 to the time of the VCAT hearing, disabled as a result of the injuries she sustained in the transport accident.[5] The Commission ceased paying the reasonable costs of these services solely because the five year period during which these services were payable pursuant to s 60(2)(d) had expired.
[5]Cf the introductory words of the definition of “disability service” in s 3(1) of the Act.
The relevant legislative provisions
This appeal turns on the proper construction of ss 3(1), 23 and 60 of the Act.
Section 60 of the Act relevantly provides:
“60. Medical and like benefits
(1) This section specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under this Act.
(1A) …
(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident-
(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and
(b) the reasonable costs of attendant care services that would be otherwise payable under paragraph (a) if the injured person had received those services in Australia because of the transport accident, if the injured person receives those services while travelling overseas for a period of not more than 8 weeks in any year; and
(c) if the person, in the 30 days before the transport accident, was engaged in the care of a child and did not receive salary or wages in respect of that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an authorised person to undertake in Australia care of the child, but payment is not to be made in respect of more than-
(i) if, at the time of the accident, the person was in full-time paid employment for 35 hours or more per week, a total of 10 hours per week of child care services;
(ii) if, at the time of the accident, the person was in paid employment for less than 35 hours per week, a total of x hours per week of child care services where "x" is-
(A) if the result of the following calculation is less than 40- 10 + (35 - the number of hours per week of paid employment)- that number; or
(B) in any other case, 40;
(iii) in any other case a total of 40 hours per week of child care services; and
(ca) if the person, at the time of the transport accident, was the primary care-giver in respect of a disabled or elderly member of the immediate family of the person and did not receive salary or wages in respect of that care, the reasonable costs incurred after the transport accident in employing, during the first 12 weeks after the death or injury, an authorised person to undertake in Australia the primary care of that disabled or elderly member of the immediate family of the person; and
(d) the reasonable costs incurred after the transport accident in employing an authorised person to provide in Australia home services and post acute support during the first 5 years after the death or injury, but payment is not to be made in respect of more than a total of 40 hours per week of such services or support.
Note Paragraphs (c) and (d) only apply to a person who was injured in a transport accident that occurred on or after the date of commencement of section 15 of the Transport Accident (Amendment) Act 2004-see section 192.
(2AA) …
(2AB) …
(2AC) With respect to subsection (2)(d)-
(a) the 5 year limit does not apply to a person who has a severe injury; and
(b) in determining the reasonable cost of home services, the Commission may have regard to the capacity of other members of the person’s household to carry out such services.
...”
In s 3(1), the expression “disability service” is defined to mean:
“The provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service or a hospital service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23”.
The expression “rehabilitation service” is defined in s 3(1) to mean:
“The provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23”.[6]
[6]Whilst the expression “hospital service” is also defined in s 3(1) of the Act, it is not necessary for present purposes to set that definition out here.
Section 23 relevantly provides:
“(1) The Commission may authorise –
(a) services to be disability services or rehabilitation services; or
…
(b) persons to provide services for the purposes of section … 60(2)(d) … .
(2) An authorisation must be given –
(a) before the services are to be provided; and
(b) in writing.
… .”
The expression “home services” in s 60(2)(d) is not defined. Similarly, the expression “household help” in the definition of “disability service” in s 3(1) of the Act is not defined. However, in s 3(1), the expression “post acute support” (found in s 60(2)(d)) is defined to mean:
“The provision of assistance to, or for, a person who requires support in personal care, mobility, transfers, banking or shopping after being discharged from a hospital”.
Further, in s 3(1), the expression “severe injury” is defined relevantly to mean:
“(a) a significant acquired brain injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50% of the body; or
(b) any other injury specified by the regulations for the purposes of this definition”.
Before proceeding further, it is necessary to examine the legislative history relating to these provisions.
Legislative history of key provisions
Section 60(1) of the Act was originally enacted in the following terms:
“60. (1) In addition to any other compensation paid under this Act, the Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident –
(a) the reasonable costs of medical services, hospital services, nursing services, rehabilitation services and ambulance services received because of the accident; and
(b) if the person, during the period of one month preceding the accident, was engaged mainly in housekeeping duties or the care of a child and did not receive salary or wages in respect of those duties or that care – the reasonable costs incurred after the accident in employing, during the first five years after the death or injury, another person to undertake housekeeping duties or care of the child, but not exceeding –
(i) if the other person is employed for not less than 40 hours per week – the amount per week that is the average weekly earnings of all employees for Victoria last published by the Australian Statistician in respect of a quarter; or
(ii)if the other person is employed for less than 40 hours per week – the amount calculated at an hourly rate of one-fortieth of the amount referred to in sub-paragraph (i); and
(c) in the case of a person who is injured, the reasonable costs incurred after the accident in employing a person to provide services of a domestic nature or services relating to nursing and attendance but not exceeding –
(i) if the person is employed for not less than 40 hours per week – the amount per week referred to in paragraph (b) (i), less the amount (if any) paid in respect of the person under paragraph (b); or
(ii) if the person is employed for less than 40 hours per week – the amount referred to in paragraph (b) (ii), less the amount (if any) paid in respect of the person under paragraph (b); and
(d) the reasonable costs of burial or cremation where death results from the accident.”
As originally enacted, s 60 contained no reference to disability services. However, the expression “Rehabilitation service”, used in s 60(1)(a), was originally defined in s 3(1) in the following terms:
“Rehabilitation service” –
(a) means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, assistance, appliance, apparatus or any other service; and
(b) without derogating from the generality of paragraph (a), includes the provision to or for a person for the purpose of rehabilitation of attendant care, household help, modifications to a home or a car, counselling or transportation costs –
if the provision under paragraph (a) or (b) is –
(c) of a kind or type; and
(d) by a person –
approved by the Commission.”
Section 23 of the Act as originally enacted dealt with the establishment of a Road Safety Board. This provision is of no relevance in this appeal.
As can be seen from the above, the Act, as originally enacted, provided for the possibility, in certain circumstances, of payment in respect of “household help”. However, the expression “home services” was not contained in the act as originally enacted.
Over the years since its original enactment, the Act (including ss 3, 23 and 60) has been amended many times.[7] Section 23, as originally enacted, was repealed.[8] By the provisions of the Transport Accident (General Amendment) Act 1994:
[7]I will only deal with those amendments that are relevant to the resolution of the issues in this appeal.
[8]See s 41 and Schedule 2 (Item 42.1) of the Transport (Amendment) Act 1989.
(a)the definition of “rehabilitation service” was changed so as to omit all words and expressions after “(a) or (b) is” and to insert “of an authorised service in accordance with section 23”;[9]
[9]See s 15 of the Transport Accident (General Amendment) Act 1994.
(b) section 23 was inserted into the Act in the following terms:
“(1) the Commission may authorise –
(a) services to be rehabilitation services; or
(b) persons to provide services for the purposes of paragraph (b) or (c) of section 60(1).
(2) an authorisation must be given –
(a) before the services are to be provided; and
(b) in writing; and
(c) in accordance with any regulations.
(3) … .”;[10] and
(c) paragraphs (b) and (c) of section 60(1) were amended.[11]
[10]Ibid, s 25.
[11]Ibid, s 36.
The relevant provisions of the Act remained largely in this form until the enactment of the Transport Accident (Amendment) Act 2000. By s 3(3)(a) of the Transport Accident (Amendment) Act 2000, a definition of the expression “disability service” was inserted into the Act for the first time. The original definition of “disability service” was the same as the current definition, other than for the later insertion of the words “or a hospital service” after the words “other than a rehabilitation service”, by an amendment made by s 3(1) of the Transport Accident (Amendment) Act 2004.
By s 3(3)(d) of the Transport Accident (Amendment) Act 2000, the definition of “rehabilitation service” was changed to mean “the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service, the provision of which is an authorised service in accordance with s 23”. By s 8 of the Transport Accident (Amendment) Act 2000, the words “disability services or” were inserted after the words “to be” in s 23(1)(a) of the Act.
By s 19(1) of the Transport Accident (Amendment) Act 2000, ss 60(1), (1A) and (2) were substituted with the following:
“(1) This section specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under this Act.
(1A) … .
(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident—
(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and
(b) the reasonable costs of attendant care services that would be otherwise payable under paragraph (a) if the injured person had received those services in Australia because of the transport accident, if the injured person receives those services while travelling overseas for a period of not more than 8 weeks in any year; and
(c) if the person, during the period of one month preceding the transport accident, was engaged mainly in housekeeping duties or the care of a child and did not receive salary or wages in respect of those duties or that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an authorised person to undertake in Australia housekeeping duties or care of the child, but the payment of the reasonable costs is not to exceed a total of 40 hours per week of housekeeping or child care services ; and
(d) in the case of a person who is injured, the reasonable costs incurred after the transport accident in employing an authorised person to provide in Australia services of a domestic nature or services relating to nursing and attendance but not exceeding 40 hours per week, less the amount paid under paragraph (c).
(2A) The Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident—
(a) where death or severe injury results from the transport accident, the reasonable costs incurred in Australia of family counselling services provided to family members by a medical practitioner or registered psychologist not exceeding $1670 in respect of that death or severe injury; and (b) where death results from the transport accident, the reasonable costs incurred in Australia of burial or cremation.
(2B) In sub-section (2A)(a)—
"family member" means a spouse, parent, sibling or child of the person who dies as a result of a transport accident;
"severe injury" means—
(a) a severe closed head injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50 percent of the body; or
(b) any other injury prescribed for the purposes of this sub-section.
(2C) If a parent or guardian of a dependent child injured and admitted to hospital as a result of a transport accident incurs reasonable travelling or accommodation expenses by reason of visiting the dependent child in the hospital, the Commission is, subject to this Act, liable to pay as compensation, payments in respect of those expenses.
(2D) If the spouse or a dependent child of a person injured and admitted to hospital as a result of a transport accident incurs reasonable travelling or accommodation expenses by reason of visiting the person who is an in-patient in a hospital that is located at least 100 kilometres from the spouse’s or dependent child’s normal residence, the Commission is, subject to this Act, liable to pay as compensation to the spouse and any dependent child, payments not exceeding $5000 in respect of those expenses.”
By s 19(2) of the Transport Accident (Amendment) Act 2000, “section 60(2)(c) or 60(2)(d)” was substituted for “paragraph (b) or (c) of section 60(1)” in s 23(1)(b) of the Act.
The relevant provisions were again amended by the Transport Accident (Amendment) Act 2004. The principal amendment of relevance was made by s 15, which (with the exception of some amendments made by the Transport Accident and Accident Compensation Acts Amendment Act 2007, which are not relevant for present purposes) largely brought s 60 into its current form. Additionally, the definitions of “severe injury” and “post-acute support” were inserted into s 3(1) of the Act, and “(other than a disability service or a hospital service)” was inserted into the definition of “rehabilitation service”.[12]
[12]See ss 3(1), 3(2) and 15(3) of the Transport Accident (Amendment) Act 2004.
Section 15(1) of the Transport Accident (Amendment) Act 2004 substituted the following for ss 60(2)(c) and 60(2)(d):
“(c) if the person, in the 30 days before the transport accident, was engaged in the care of a child and did not receive salary or wages in respect of that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an authorised person to undertake in Australia care of the child, but payment is not to be made in respect of more than—
(i) if, at the time of the accident, the person was in full-time paid employment for 35 hours or more per week, a total of 10 hours per week of child care services;
(ii) if, at the time of the accident, the person was in paid employment for less than 35 hours per week, a total of x hours per week of child care services where ‘x’ is—
(A) if the result of the following calculation is less than 40—
10 + (35 – the number of hours per week of paid employment)—
that number; or
(B) in any other case, 40;
(iii) in any other case a total of 40 hours per week of child care services; and
(d) the reasonable costs incurred after the transport accident in employing an authorised person to provide in Australia home services and post acute support during the first 5 years after the death or injury, but payment is not to be made in respect of more than a total of 40 hours per week of such services or support.”
The explanatory memorandum in relation to clause 15 of the Bill that became the Transport Accident (Amendment) Act 2004 does not provide any assistance in determining the issues the subject of this appeal. However, the Commission relies upon the Second Reading Speech in relation to the Bill, and specifically what was said by the Minister for WorkCover under the heading “Reform of home services, child-care benefits”. The Minister said:[13]
[13]Hansard, Legislative Assembly, 14 October 2004, pp 1066-1067.
“Historically, both child-care and housekeeping benefits were only available to claimants who were ‘mainly engaged’ in this activity in the month before the accident. This precluded child-care and housekeeping support being provided to people who were working at the time of the accident.
This bill substantially reforms and improves these benefits in two major respects:
A new separate child-care benefit will be created and made available to clients engaged in this activity before the accident.
A new home services benefit will be created that combines the current non-child-care aspects of the housekeeping benefit with the domestic services benefit, creating a single widely available benefit for TAC clients who need support in the home.
The government believes that this new approach will, for the first time, provide adequate home support and child-care services to working parents.
The government has taken a prudent approach in ensuring that appropriate limits will apply where a claimant is also in receipt of income benefits. The bill also introduces an access test that addresses the capacity of others in the household to perform these tasks. The TAC estimates that up to 1500 additional claimants per year will gain access to new child-care and home services benefits.”
Submissions of the Commission
Before the Tribunal, and on appeal, the Commission’s principal contention was that the services claimed by Ms Kutz were “home services” within the meaning of s 60(2)(d) of the Act, and that the five year time limitation therefore applied. The Commission submitted further that this construction and application of the Act “ought not be circumvented by classifying the services as “disability services” (household help) pursuant to s 60(2)(a) of the Act.
Relying upon well known authority, the Commission submitted that it was an axiomatic principle of statutory construction that the Act must be read as a whole, and s 60 must be construed in a way that gives all its words work to do. Further, it was submitted that where Parliament had used different terms (“home services” and “household help”) in the same section of a statute, it may be doubted that Parliament intended to refer to the same thing.
The Commission submitted that whilst the words “household help” may ordinarily have width, on a proper construction of the Act, those words were to be read down so as to exclude services that were “disability services” – or more specifically, services that were “household help”.
Whilst the concept “home services” did not come into the Act until the commencement of the Transport Accident (Amendment) Act 2004, it was submitted by the Commission that the meaning of “household help” was not changed when the expression “home services” was introduced into the Act. This was said to be so, because the expression “home services” took over what had previously been non-child-care aspects of the housekeeping benefit and the domestic services benefit found in the original form of s 60(1)(b) and (c) of the Act. In this regard, reliance was placed upon the extract of the Second Reading Speech of the Transport Accident (Amendment) Bill referred to above, where the Minister for WorkCover said that a new home services benefit would be created that combined “the current non-child-care aspects of the housekeeping benefit with the domestic services benefit, creating a single widely available benefit for TAC clients who need support in the home”.
In support of its submissions, the Commission relied upon s 35 of the Interpretation of Legislation Act 1984, and the decisions of The King v Wallis & Anor; ex parte Employers Association of Wool Selling Brokers & Ors,[14] Leon Fink Holdings v Australian Film Commission,[15] Western Suburbs Leagues Club Illawarra Limited v Everill,[16] Project Blue Sky Inc & Ors v Australian Broadcasting Authority,[17] Lacey v The Attorney General of Queensland,[18] Saulnier v Royal Bank of Canada[19] and Kennon v Spry.[20]
[14](1949) 78 CLR 529, 550-551.
[15](1979) 141 CLR 672, 678.
[16](2001) 51 NSWLR 435, 439 [23]-[25].
[17](1998) 194 CLR 355, 381-2 [69]-[71].
[18][2011] HCA 10, [43]-[46].
[19][2008] 3 SCR 166, [16].
[20](2008) 238 CLR 366, per Gummow and Hayne JJ at 397 [90].
Section 35 of the Interpretation of Legislation Act was relied upon in support of the proposition that a construction that would promote the purpose of object underlying the act is to be preferred to a construction that would not promote that purpose of object. Wallis’ case and Fink’s case were relied upon for the proposition that where a statutory provision expressly gives a special power, subject to limitations and qualifications, a court should not exercise an unqualified power in the same Act to do the same thing. Specifically, in the words of Gavan Duffy CJ and Dixon J:[21]
“Extensive and unfettered as the authority of the court of conciliation and arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when s 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the court shall not exercise an unqualified power to do the same thing. When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
[21]In Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7.
It was submitted by the Commission that s 60(2)(a) in this case conferred the general power (or liability), and s 60(2)(d) conferred the special power (or liability) which was subject to limitations and qualifications.
Western Suburbs Leagues Club Illawarra Limited v Everill[22] concerned an amendment to the Workers Compensation Act 1987 (NSW), which included within the definition of “medical and related expenses”:
“(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity.”
[22](2001) 51 NSWLR 435.
The Commission relied upon paragraphs [23] to [25] of this judgment in support of the proposition that Ms Kutz is not entitled to the cost of providing care for others, and not entitled to the cost of domestic assistance or household help as such. At [23] to [25], Handley JA[23] said:
“[23] The injury created need for these services is a necessary, but not a sufficient, condition for the allowance of their cost under para(f). The services must also involve ‘care of a worker’. Barrell Insurances showed that the cost of domestic assistance for an injured worker could not be recovered under the Act as it then stood. Parliament then made additional provision for injured workers, but stopped short of creating a right to domestic assistance or household help as such. There would have been no difficulty in conferring a right to recover the cost of domestic assistance if that had been the intention of Parliament.
[24] In these circumstances para(f) should not be interpreted as conferring such a right. The worker who is unable to look after herself either at all, or without suffering unacceptable pain, is entitled to the cost of personal care and that much is clear. On the other hand she will not be entitled to the cost of providing care for others and she will not be entitled to the cost of domestic assistance or household help as such. Questions of fact and degree may arise but this does not justify an application of para(f) which treats it as authorising allowance for household help and domestic assistance as such when this cannot be characterised as care for a worker.
[25] Work which cannot be characterised as care for a worker does not become such merely because the injured worker cannot continue to do it without unacceptable pain or the risk of aggravating the injury. As Priestley JA pointed out during argument, that approach would support a higher award under this paragraph for a partially incapacitated worker who could do the work but for the pain and risk of aggravation, than for a totally incapacitated worker who could not do the work at all.”
[23]With whom Priestley and Meagher JJA agreed.
Reliance was placed on Project Blue Sky v Australian Broadcasting Authority[24] by the Commission for what was said at paragraphs [69]-[71]. McHugh, Gummow, Kirby and Hayne JJ said:[25]
“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[26]. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’[27]. In Commissioner for Railways (NSW) v Agalianos[28], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed[29].
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[30]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[31]. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’[32]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[33]. In The Commonwealth v Baume[34] Griffith CJ cited R v Berchet[35] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[36]
The correct approach to statutory construction was further elaborated on by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Lacey v The Attorney General of Queensland.[37]
[24](1998) 194 CLR 355.
[25]Ibid, [69]-[71].
[26]See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ.
[27]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617 per Lord Scarman, “in the context of the legislation read as a whole”.
[28](1955) 92 CLR 390 at 397.
[29]Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J.
[30]Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.
[31]See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574 per Gummow J; 116 ALR 54 at 63.
[32]Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC.
[33]The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13 per Mason CJ.
[34](1905) 2 CLR 405 at 414.
[35](1688) 1 Show KB 106 [89 ER 480].
[36]Footnotes in original.
[37][2011] HCA 10, [43]-[46].
Saulnier v Royal Bank of Canada[38] and Kennon v Spry[39] were relied upon by the Commission as authority for the proposition that statutes are to be interpreted in a purposeful way having regard to their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. Further, for particular purposes, Parliament “can and does create its own lexicon”. Thus, it was submitted by the Commission that the expression “household help” in the definition of “disability service” was limited so as to exclude services which constituted “home services” - where the benefit payable for such “home services” was said to be a widely available benefit which had contained within it what had been non-child-care aspects of an earlier housekeeping benefit together with an earlier domestic services benefit.
[38][2008] 3 SCR 166.
[39](2008) 238 CLR 366.
The Commission submitted that a disability service was a service provided to or for a person. This was contrasted with home services which might be a replacement for services that would otherwise be provided by the injured person.[40] Further, it was submitted that for a service to be a disability service, it must also be provided for the purpose of managing the disability. Reliance was again placed on Western Suburbs Leagues Club Illawarra Limited v Everill.[41]
[40]Cf s 60(1)(b) of the Act as originally enacted.
[41](2001) 51 NSWLR 435, [23]-[25].
Finally, it was submitted that VCAT made three errors in the reasoning which led to the setting aside of the Commission’s decision. First, it was submitted that VCAT erred in holding there was no difference in kind between “home services” and “household help”.[42] Secondly, it was submitted that VCAT erred in concluding that s 23 of the Act distinguished between payments made under s 60(2)(a) from those made under s 60(2)(d).[43] Thirdly, it was submitted that VCAT erred in accepting a submission made on behalf of Ms Kutz that “home services” in s 60(2)(d) had to be read with “post acute support”, so that compensation for home services was only payable in circumstances where the injured person was receiving post acute support.[44]
[42]Reasons below at [28].
[43]Reasons below at [29].
[44]Reasons below at [13], [29].
Submissions of Ms Kutz
It was submitted on behalf of Ms Kutz that the Act is beneficial legislation and must be construed accordingly. Further, it was submitted that the expressions “home services”, “assistance” and “household help” should be given their natural meaning. To this end, it was submitted that the words “home services” as used in s 60(2)(d), and the words “assistance” and “household help”, as used in the definition of “disability service”, in s 3(1), are not mutually exclusive. Specifically, it was put that just because a service is a “home service”, does not mean that it cannot also be “assistance” or “household help”. The question was said to be whether the relevant service was properly to be construed as a “disability service”.
In answer to the Commission’s submissions concerning the proper approach to the interpretation of the Act, reliance was placed by Ms Kutz upon the following passage in the judgment of Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission:[45]
“The courts will as a general rule strive ‘to adopt that [construction] which would give some effect to the words rather than that which would give none’ … and will endeavour to avoid an interpretation of a statute which renders its words redundant or tautologous … . However, it is recognised that Parliament is sometimes guilty of surplusage or even tautology … . As Jessel MR said in Yorkshire Fire and Life Insurance Co v Clayton …, ‘… it may not always be possible to give a meaning to every word used in an Act of Parliament’. From time to time provisions will be inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular.”
[45](1979) 141 CLR 672, 679 (footnotes omitted).
Analysis
The first point to be made is that the expressions “home services” and “household help” are different. To the extent that VCAT held otherwise, I agree with the submissions of the Commission that this involved error. However, simply because the expressions are different does not, as a matter of logic, mean that their contents are mutually exclusive. The possibility exists that some particular services can be both a home service and household help. Equally, some particular services might be home services, without being household help (and, although less likely, perhaps vice versa). One can accept that, in using different language, Parliament intended a different meaning. However, that is not to say that whenever Parliament uses different language, it excludes the possibility of some overlap. That is, whilst different language might be given a different construction, there is no principle why similar (but different) terms must necessarily be construed as involving mutually exclusive concepts.
The second point to be made is that, to the extent VCAT held that the expressions “home services” and “post acute support” should be read together, this also involved error. “Post acute support” is a defined term in the Act. Merely because compensation for home services and compensation for post acute support are both dealt with in the same sections[46] does not justify a conclusion that home services are only payable where there is a need for post acute support.[47]
[46]See s 60(2)(d), s 60A(1)(c)(ii) and s 60A(2)(b).
[47]Cf paragraphs [13] and [29] of the reasons below.
Thirdly, whatever may be the basis for distinguishing between “home services” on the one hand and “household help” on the other hand, I agree with the submissions of the Commission that this is not found in s 23 of the Act. Again, to the extent that VCAT reasoned otherwise, in my view, this involved error. Section 23 empowers the Commission to authorise services to be disability services (and thus give an entitlement to a benefit under s 60(2)(a)), and empowers the Commission to authorise particular persons to provide services for the purposes of s 60(2)(d) – relevantly, in this case, home services. Section 23(2) then requires the relevant authorisation to be given before the services are to be provided, and in writing.
However, the identification of the errors I have just referred to does not lead automatically to this appeal being allowed. The question remains whether or not, on the proper construction of the Act, the cleaning and gardening services claimed by Ms Kutz were payable as disability services within the meaning of s 60(2)(a) of the Act. Central to the resolution of this appeal is the proper construction of “disability service” and “household help”. In order to determine the proper construction of these expressions, it is necessary to look at the circumstances in which disability services and home services are payable by the Commission.
Pursuant to s 60(2)(d), the Commission is liable to pay as compensation to a person who is injured as a result of a transport accident, the reasonable costs incurred after the transport accident in employing an authorised person to provide home services. The only criteria that a person must establish to be entitled to home services are:
(a)first, the person was injured as a result of a transport accident; and
(b)secondly, the costs are the reasonable costs incurred after the transport accident of home services provided in respect of the injury.
However, a home services benefit under s 60(2)(d) has three further limitations:
(a)first, it only applies for five years (unless the person has a severe injury);
(b)secondly, payment is not to be made in respect of more than 40 hours per week; and
(c)thirdly, in determining the reasonable cost of home services, the Commission may have regard to the capacity of other members of the person’s household to carry out such services.
The position with respect to disability services can be contrasted. First, for the Commission to be liable to pay a disability services benefit, the claimant must again establish the two criteria of injury as a result of a transport accident and reasonableness of costs. Secondly, there is an additional criteria (not found in respect of home services), namely that the service is provided “to or for a person who is disabled as a result of the injury in the transport accident”. Thirdly, the three limitations referred to above in respect of home services have no application. Further, whilst disability services are required to be authorised pursuant to s 23(1)(a), only the persons who provide services for the purposes of s 60(2)(b) are the subject of any authorisation under s 23 (albeit that all authorisations must be given before the services are provided, and be in writing).
The next point to be made is that if Parliament intended to exclude home services from either “disability service”, or the household help part of that definition, then Parliament could have done so, in the same way that it expressly excluded, from “disability service”, rehabilitation services and hospital services. However, it chose not to do so.
Excluding rehabilitation services from the definition of “disability service” throws some light on the proper interpretation of “disability service”. A rehabilitation service is a service provided “for the purpose of rehabilitation”. It follows that to the extent that the definitions of disability service and rehabilitation service overlap, a disability service is one that is not provided for the purpose of rehabilitation.[48] It was submitted by the Commission that to be a disability service, the service must be provided “for the purpose of managing the disability”. To the extent that this submission is relevant, I reject it. If Parliament had wanted to define disability service in a way that contained this element, then it could have done so expressly – in the same way it has defined rehabilitation service by reference to the purpose of rehabilitation.
[48]It is tolerably clear that disability services and rehabilitation services are mutually exclusive concepts. Each is defined in a way that excludes the other. However, delineating the boundary between them is a matter of some difficulty having regard to the fact that wherever one starts, one is sent to the other definition, and then back and so forth.
A difficulty with the Commission’s submissions is that (on its contentions) the content of the expression “household help” (and thus “disability service”) is variable by reference to the meaning and ambit of the home services benefit referred to in s 60(2)(d) and the prior childcare and domestic services benefits (as they existed before 1 January 2005). That is, on the Commission’s submissions, the width of what was encompassed by “household help” in the definition of disability service was narrowed by the creation of the wider home services benefit on 1 January 2005 – which benefit included within it the older non-child-care aspects of the housekeeping benefit and domestic services benefit.[49] Such a variable construction is unlikely. More likely is a construction that views each benefit as an independent benefit, the eligibility to receive being determined by reference to the specific criteria attached to the relevant benefit. In my view, there is no basis for contending that s 60(2)(d) conferred a special liability (subject to limitations and qualifications) whereas s 60(2)(a) conferred only a general liability, which liability was excluded by the operation of the more specific provision. On one view, “home services” is a wider and more general concept than “household help” (making s 60(2)(d) the more general provision). However, and in any event, in order to be entitled to compensation for a disability service, there is the additional requirement that the person to or for whom the benefit is to be paid must be disabled as a result of the injury.
[49]Again, assuming that when Parliament changed the benefits by enacting the Transport Accident (Amendment) Act 2004 there was an intended change of operation brought about by the change of language.
It follows that, in my view, there is no reason why the expressions “home services”, “assistance” and “household help” should not be given their natural meaning. Further, there is no basis for concluding that, in using the expression “household help”, Parliament was creating its own lexicon.[50]
[50]Cf Saulnier v Royal Bank of Canada [2008] 3 SCR 166, [16] and Kennon v Spry (2008) 238 CLR 366, [90].
It was not suggested that the gardening and cleaning services in issue in this proceeding did not come within the expressions “assistance” or “household help”, when those expressions are given their natural meaning.[51] Further, it was not suggested that Ms Kutz did not satisfy the additional criterion in relation to disability services – namely, being disabled as a result of an injury in a transport accident. Accordingly, the appeal must be dismissed – there being no error of law in VCAT’s conclusion that the gardening and cleaning services provided to Ms Kutz constituted disability services within the meaning of s 3(1), and were thus payable under s 60(2)(a).
[51]Cf the different terms of the statute in question in Western Suburbs Leagues Club Illawarra v Everill (2001) 51 NSWLR 435, where the relevant services for which compensation was payable involved the “care of a worker” – rather than the provision of domestic assistance or household help.
For the sake of completeness, I should refer to the competing submissions of the parties as to whether the Act is beneficial legislation – which therefore should not be given a narrow interpretation. On behalf of Ms Kutz, reliance was placed upon the decision of Bongiorno J[52] in State Trustees Limited v Transport Accident Commission.[53] His Honour concluded that the Act was beneficial legislation and was therefore not to be given a narrow interpretation. However, eight months after his Honour’s decision, the Court of Appeal[54] said in Transport Accident Commission v Lincoln:[55]
“It is true that, over the years, courts which have been called upon to interpret compensation statutes have repeatedly said that the underlying scheme of those Acts is ‘beneficial’ and ought to be interpreted broadly in favour of the applicant. In this State those words are achieving a ‘hollow ring’ because one of the primary objects of the present legislation is to ‘reduce the cost to the Victorian community of compensation for transport accidents’.”[56]
[52]As his Honour then was.
[53](2002) 6 VR 359.
[54]Winneke P, with whom Phillips and Chernov JJA agreed.
[55](2003) 6 VR 199, 208 [20].
[56]See further Transport Accident Commission v Treloar [1992] 1 VR 447 per Brooking J at 462.
I do not need to resolve the question of whether the Act (or any particular provision of it) is beneficial, and therefore to be given a broad interpretation. I have reached the conclusions I have reached about the construction of the Act without the need to determine this issue. Obviously, however, if the Act was to be given a broad interpretation, then the construction I have favoured would be all the more fortified.
Conclusion
For the reasons given above, the appeal must be dismissed. I will hear the parties on the question of costs.
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