Transport Accident Commission v Burns
[2022] VSC 294
•3 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00190
| TRANSPORT ACCIDENT COMMISSION | Appellant |
| v | |
| RENEE BURNS | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 March 2022 |
DATE OF JUDGMENT: | 3 June 2022 |
CASE MAY BE CITED AS: | Transport Accident Commission v Burns |
MEDIUM NEUTRAL CITATION: | [2022] VSC 294 |
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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Respondent’s partner died as a result of a transport accident – Respondent made claim after accident for funeral and dependency benefits under the Transport Accident Act 1986 (Vic) – Respondent later sought payment of an impairment benefit under s 47 of the Transport Accident Act 1986 (Vic) – Commission declined to determine degree of impairment – Tribunal set aside Commission’s decision – Construction of ss 46A and 68 of the Transport Accident Act 1986 (Vic) – Whether the Transport Accident Act 1986 (Vic) establishes and distinguishes two independent types of claim, being (a) claims for injury benefits, and (b) claims for death and dependency benefits – Transport Accident Act 1986 (Vic), ss 35, 46A, 47, 68.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr CP Young QC with Ms CL Alden | Solicitor to the Transport Accident Commission |
| For the Respondent | Mr A Clements QC with Ms S Gold | Robinson Gill |
HER HONOUR:
On 15 February 2016, Renee Burns’ partner, George Kolyvas, was hit by a car just a few streets away from their home in Reservoir. He died of his injuries soon afterwards. Ms Burns was woken by police and taken to the scene of the accident, where she was asked to identify Mr Kolyvas. He had been pronounced dead by the time she arrived, and she waited with his body until the ambulance took him away.
Shortly after the accident, on 2 March 2016, Ms Burns submitted a claim to the Transport Accident Commission for funeral and death dependency benefits payable under the Transport Accident Act 1986 (Vic) (the Act). The Commission paid $12,851.99 in funeral expenses on 7 March 2016 under s 60(2A)(b) of the Act, and a further $115,658.40 on 5 May 2017, by way of a surviving partner benefit under s 57 of the Act.
Ms Burns moved to New Zealand in mid-2016, where she still lives. She was deeply affected by Mr Kolyvas’ death, and suffered a decline in her mental health, for which she receives ongoing treatment. Ms Burns has been diagnosed with post-traumatic stress disorder, depressive disorder and several other psychiatric conditions. In the opinion of Associate Professor Nick Paoletti, consultant psychiatrist, Mr Kolyvas’ death was the salient ‘significant contributing factor’ to these conditions, ‘through the actual loss and grief, and because of the way he died and her exposure to the post-accident scene’.[1]
[1]Report of Associate Professor Nick Paoletti dated 14 August 2020.
On 16 May 2019, Ms Burns’ solicitors wrote to the Commission making a claim for an impairment benefit under s 47 of the Act. The claim was declined by the Commission, in a letter dated 3 June 2019, which advised that the Commission was ‘unable to make an impairment determination’. The Commission’s decision was affirmed in a letter dated 12 December 2019.
On 3 March 2020, Ms Burns applied to the Victorian Civil and Administrative Tribunal for a review of the Commission’s decision not to determine her degree of impairment. The Tribunal, constituted by Senior Member Smithers, heard the application on 9 October 2020.
On 16 December 2020, the Tribunal made an order setting aside the Commission’s decision, conveyed in its letter of 3 June 2019, refusing to make a determination of Ms Burns’ degree of impairment. The Tribunal’s order was accompanied by Reasons dated 16 December 2020,[2] in which the Tribunal explained why it considered that the Commission was obliged to determine Ms Burns’ degree of impairment. In essence, the Tribunal accepted Ms Burns’ contention that her claim for funeral and death dependency benefits, made in March 2016, was a ‘claim for compensation’ under s 68 of the Act, and a basis for her subsequent request to determine her degree of impairment. The Tribunal did not accept the Commission’s contention that s 68, and the Act generally, distinguishes between two categories of claim — claims for compensation made by persons who are injured as a result of transport accidents, and claims made by dependants of persons who die as a result of transport accidents. Nor did it accept the Commission’s position that the time limit set out in s 68 applies separately to each category of claim.
[2]Burns v Transport Accident Commission [2020] VCAT 1421 (Reasons).
In this proceeding, the Commission seeks leave to appeal from the Tribunal’s order setting aside the Commission’s decision. Its application is made under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which provides for an appeal on a question of law from an order of the Tribunal. There are two questions of law identified in the Commission’s notice of appeal, as follows:
1. Do sections 35, 46A, 47 and 68 of the Transport Accident Act 1986 (Vic) establish and distinguish two independent types of claim, being (a) a claim by a person who is injured as a result of a transport accident for compensation for his or her injury; and (b) a claim by a dependent of a person who dies as a result of a transport accident for payments under section 57, 58 or 59 or for compensation under section 60(2A), (2C) or (2E)?
2.Is a person entitled to obtain an impairment determination under s 46A(1AB) of the Transport Accident Act 1986 (Vic) if he or she has not made, and cannot now make, a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E), within the period of time provided by section 68 that has been accepted by the appellant?
The Commission contends that the Tribunal was wrong to find that the making of the claim for funeral and death dependency benefits within the time provided by s 68 of the Act entitled Ms Burns to obtain an impairment determination under s 46A(1AB) of the Act for the purposes of a claim for an impairment benefit under s 47. It says that, instead, the Tribunal should have held that the Act establishes and distinguishes between two independent types of claim, the first being a claim by a person who is injured as a result of a transport accident for compensation for the person’s own injuries, and the second being a claim by a dependant of a person who dies as a result of a transport accident for death and dependency benefits.
For the reasons that follow, I do not accept either of these contentions. The Tribunal’s decision was correct. Leave to appeal will be granted, but the appeal will be dismissed.
Relevant provisions
The purpose of the Act is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.[3] The objects of the Act are set out in s 8, as follows:
(a) to reduce the cost to the Victorian community of compensation for transport accidents;
(b) to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents;
(c) to determine claims for compensation speedily and efficiently;
(d) to reduce the incidence of transport accidents;
(e) to provide suitable systems for the effective rehabilitation of persons injured as a result of transport accidents.
[3]Transport Accident Act 1986 (Vic), s 1 (the Act).
Part 3[4] of the Act provides for compensation. Section 35 provides:
[4]Act, ss 34-62A.
Persons entitled to compensation
(1)A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if—
(a)the accident occurred in Victoria; or
(b)the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was—
(i)a resident of Victoria; or
(ii)the driver of, or a passenger in, the registered motor vehicle.
(2)A dependant of a person who dies as a result of a transport accident is entitled to compensation in accordance with this Act if the person who dies was or would, but for the death, have been entitled to compensation in respect of the accident by reason of subsection (1).
(3)The Commission is not liable to pay compensation to a person in accordance with this Act unless the person is entitled to compensation.
The various benefits payable by the Commission in respect of a person who is injured or who dies in a transport accident are set out in Pt 3, Div 3 of the Act. These include:
(a) weekly payments in respect of loss of earnings, under ss 44 and 45, and in respect of loss of earning capacity, under ss 49 and 50;
(b) an impairment benefit, under s 47;
(c) a death benefit to a surviving partner, under s 57, or to surviving children, under s 59;
(d) periodical payments to a surviving partner, under s 58; and
(e) medical and like benefits, under s 60 — including funeral expenses under s 60(2A)(b).
In relation to the impairment benefit, s 47 provides:
(1)If under section 46A or 47(7A)—
(a) the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b) the degree so determined is more than 10 per centum—
the Commission must assess an impairment benefit in respect of the person.
…
(2)The impairment benefit is the amount shown, or the amount calculated in accordance with the formula, in column 2 of the following table that is opposite the person’s degree of impairment—
Degree of impairment
Impairment benefit
10% or less
0
11% – 19%
$4 500 + ((D – 10) × $1000)
20% – 49%
$15 000 + ((D – 20) × $1500)
50% – 59%
$60 250 + ((D – 50) × $1750)
60% – 79%
$78 000 + ((D – 60) × $2000)
80% – 89%
$120 000 + ((D – 80) × $4000)
90% – 99%
$164 000 + ((D – 90) × $8000)
100%
$252 000
where “D” is the person's degree of impairment expressed as a number.
…
(3)The Commission must pay to a person in respect of whom an impairment benefit or interim benefit is assessed under this section—
(a)the amount of that benefit as a lump sum; or
(b)if an interim benefit has been paid, the amount of the impairment benefit less the amount of the interim benefit; or
(c)if the person requests that part only of the benefit be paid as a lump sum, that part as a lump sum.
…
(7)Despite sections 46A(1) and 46A(1AA), the Commission may for the purposes of proceedings for the recovery of damages in respect of the injury at any time determine the degree of impairment of a person who is injured as a result of a transport accident and who—
(a)has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 that has been accepted by the Commission; or
(b) is not entitled to compensation under this Act by virtue of section 37, 38, 38A or 42—
if the Commission is satisfied that the injury has stabilised or has substantially stabilised.
(7A) If the Commission determines under subsection (7)(a) the degree of impairment of a person who is injured as a result of a transport accident, the Commission may make a further determination of the degree of impairment of that person in substitution for the determination under subsection (7) 18 months after the accident occurred or in the case of a minor, when the person attains the age of 18 years.
…
Thus, a person who is injured as a result of a transport accident is not entitled to receive an impairment benefit unless the Commission has first determined the person’s degree of impairment. An impairment determination is also a threshold requirement for a common law action for damages.[5]
[5]Act, s 93(2)(a).
Section 46A of the Act is the primary provision governing the Commission’s obligation to make an impairment determination. It provides, relevantly:
Degree of impairment
(1) The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at—
(a) if the person was not a minor when the accident occurred—
(i) when the injury stabilises; or
(ii) 3 years after the accident, or 3 years after any injury first manifests itself (as the case may be)—
whichever occurs first; or
…
(1AB)If a person applies to the Commission for a determination of his or her degree of impairment as a result of a transport accident more than 2 years after the day of the accident, or the day when any injury first manifested itself, whichever is the later day, the Commission must, if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit, determine the person’s degree of impairment—
(a) if the injury had stabilised by the date that the application was made, within 12 months after that date; or
(b) in any other case, within—
(i) 12 months after the injury stabilises; or
(ii) 2 years after the date the application was made—
whichever occurs first.
…
(1A) If the Commission—
(a) has not made a determination under this section of the degree of impairment of a person injured as a result of a transport accident who has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 that has been accepted by the Commission within the period of 6 years after the later of—
(i) the date of the transport accident; or
(ii) the date on which the injury to the person resulting from the transport accident first manifests itself; and
(b) within that period of 6 years—
(i)has not advised the person that he or she appears likely to be entitled to an impairment benefit; and
(ii) has not received an application in writing from the person requesting the Commission to carry out an impairment assessment—
the Commission is to be taken to have made a determination that the degree of impairment is 0%.
Sections 46A and 47 have been amended numerous times over the years, including with subsections ‘bolted on’ to the existing provisions.[6]
[6]Reasons, [13].
Section 46A itself was inserted into the Act by s 11 of the Transport Accident (Amendment) Act 1988 (Vic). It originally required the Commission to determine the degree of impairment of each person injured as a result of a transport accident, and who appeared to the Commission to be or to be likely to be entitled to an impairment benefit, as at 18 months after the accident or when the injury stabilised, whichever last occurred.
Subsection 46A(1AB) was one of a suite of amendments made by the Transport Accident (Amendment) Act 2004 (Vic) (2004 Amendment Act) to streamline the process for making and determining claims for impairment benefits.[7] Section 10(2) of the 2004 Amendment Act inserted sub-ss (1AA), (1AB), (1AC) and (1AD) into s 46A of the Act, after s 46A(1). The explanatory memorandum for the amending bill said that cl 10:
[A]mends section 46A of the Act to change the process for the determination of impairment under the Act. The clause makes provision for the determination of impairment at any time after the first 3 months after an accident provided the person's injuries are stable. The clause sets a general limit of 3 years after an accident by when impairment for stable injuries is required to be determined, unless a person elects to wait until their injuries are stable. In circumstances where a request for an impairment determination is made more than 2 years after a transport accident the clause ensures that the Commission has 12 months to make the required impairment determination.
[7]Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2004, 1065-6 (Rob Hulls, Minister for WorkCover).
The Commission drew particular attention to s 12 of the Transport Accident Amendment Act 2013 (Vic) (2013 Amendment Act), which amended ss 46A(1A) and 47(7) of the Act by inserting the phrase ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’. The explanatory memorandum for the Transport Accident Amendment Bill 2013 (Vic) said that these amendments:
[C]larify that a person who is injured in a transport accident must have an accepted claim for compensation in their own right for their own personal injury in order to obtain a determination of impairment and consequently seek access to common law damages.
The 2013 Amendment Act did not, however, make any changes to sub-ss (1) or (1AB) of s 46A.
Part 4[8] of the Act deals with the procedure for making claims for compensation under Pts 3 and 10. Section 64 requires a person who is the driver of a motor vehicle involved in a transport accident to make a report of the accident to the Commission, in the circumstances provided. Section 67(1) provides that a claim for compensation under the Act must be in a form approved by the Commission, and must be lodged with the Commission.[9]
[8]Act, ss 63-82.
[9]However, s 67(2) provides that a defect, omission or irregularity in a claim for compensation does not affect the validity of the claim.
Section 68 provides:
Time for making claim under Part 3
(1) A person—
(a) who is injured; or
(b) who is a dependant or a surviving partner of a person who dies—
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year—
(c) after the accident or death; or
(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.
(2) If the Commission considers there are reasonable grounds for a delay in making a claim in accordance with subsection (1), the Commission may accept a claim for compensation under Part 3 at such later time before the expiration of three years after the transport accident or death or after the injury first manifested itself, as the Commission approves.
(3) Despite subsection (1) but subject to subsection (2), if—
(a) a person who is injured or who is a dependent child of a person who dies as a result of a transport accident to which Part 3 applies was not 18 years of age at the time of the transport accident; and
(b) a claim for compensation by or on behalf of that person has not been made under that Part—
the person may make a claim for compensation under that Part before attaining the age of 21 years or within 3 years after the transport accident, whichever is the later.
Section 68(3)(a) was amended by the 2013 Amendment Act, to add the words ‘or who is a dependent child of a person who dies’ after the words ‘a person who is injured’.[10] The 2013 Amendment Act made no change to s 68(1), which has been in the same form since 2001.
[10]Transport Accident Amendment Act 2013 (Vic), s 4(2) (2013 Amendment Act).
Under s 70(1), the Commission must, within 21 days after receiving a claim for compensation, either accept or reject liability to pay compensation, or make a reasonable request for further information in relation to the claim. Where the Commission requests further information, s 70(2) prescribes the time within which it must make a decision to accept or reject the claim. Section 70(3) deems the Commission to have rejected the claim if it fails to comply with ss 70(1) or (2).
Section 77 provides that a person whose interests are affected by a decision of the Commission may apply to the Tribunal for review of the decision.
Tribunal’s Reasons
The Tribunal’s Reasons commenced with an outline of the factual background to the decision of the Commission to reject Ms Burns’ request to determine her degree of impairment. The Tribunal noted that the decision under review would have two consequences for Ms Burns — if the Commission’s decision was upheld, she would not receive impairment benefits, and would be unable to pursue a ‘potentially very significant’ claim for common law damages.[11]
[11]Reasons, [12].
The Reasons then set out relevant parts of ss 46A, 47, 67 and 68 of the Act, followed by some observations about the provisions:
15 Without referring to all aspects of these multifaceted provisions, the following observations can be made:
• Section 46A(1) requires TAC to carry out an impairment assessment of its own motion where it appears the victim of a transport accident is, or is likely to be, entitled to an impairment benefit. But it must wait a minimum of three months before carrying out that assessment (s 46A(1AA)).
• Section 46A(1AB) enables the victim themself to apply for TAC to carry out an impairment assessment. Section 46A(1AB) relates to such applications made more than two years after the day of the accident. Again, the same, or a very similar test applies: the TAC must determine the person’s degree of impairment if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit.
As noted, this is the provision relied on by Ms Burns in this case.
• Section 46A(1A) has the effect that if a person has made a claim within the limitation period in s 68 (that is, one year, extendable to three years), and TAC has accepted that claim but not made a determination of degree of impairment within six years (although that period may vary) then the TAC is taken to have made a determination that the degree of impairment is 0%.
This will satisfy one of the two requirements in s 93(2) to pursue common law damages—the requirement that TAC has determined the applicant’s degree of impairment.
Significant in relation to the arguments put, the legislative history and applicable authorities, is the fact that this provision was amended in 2013. In particular, claims for death benefits, and five other types of claims (being claims under ss 57, 58, 59, 60(2A), (2B) and (2E)) were excluded from the types of claims which can activate the deemed 0% impairment under this provision.
It was said by the TAC that the intention was to restrict the application of this provision to claims by a person ‘in their own right’, or ‘for their own personal injury’ as opposed to claims derived from injury to another person.
16 Section 47 then goes on to assign dollar amounts to degrees of impairment which have been determined under s 46A. If the degree of impairment is 10% or less, the impairment benefit is zero. Where the degree of impairment is 11% or more, a graduated scale of benefits applies.
17 Section 47(7) returns to the topic of when a determination of degree of impairment can occur. It relates to the situation where a person seeks an assessment ‘for the purposes of proceedings for the recovery of damages’. Relevantly, it provides that where a person has made a claim within the time provided by s 68 (that is, one year, extendable to three years) that has been accepted by TAC, then TAC may determine that person’s degree of impairment, if the injury has stabilised.
18 Again, however, claims under ss 57, 58, 59, 60(2A), (2B) and (2E) (non ‘own right claims’) are excluded from the operation of s 47(7).
The Tribunal clarified that Ms Burns’ primary contention was that the Commission was obliged to determine her degree of impairment under s 46A(1AB) of the Act, and that she was not relying on either s 46A(1) or s 46A(1A).[12] The senior member then set out the basis of the Tribunal’s jurisdiction to review the Commission’s decision, distinguishing it from several other cases in which the Tribunal had lacked jurisdiction.[13]
[12]Reasons, [19]-[26].
[13]Reasons, [27]-[39].
Next, the Tribunal turned to the decision of Cavanough J in Byrne v Transport Accident Commission,[14] which had been the subject of submissions from both parties. As the Tribunal explained, Byrne decided that s 46A(1A) of the Act enabled a person injured as a result of a transport accident to ask the Commission to make an impairment determination, without first having made a formal claim for compensation within the time prescribed by s 68.[15] The Tribunal noted that, although s 46A(1A) has been amended significantly since the decision in Byrne, the relevant text of s 46A(1) is unchanged.[16] The Tribunal continued:[17]
48 For present purposes however, the relevant point is that both these provisions dealt with the question of when the TAC is or is not required to make an assessment as to whether it appears that a person is, or is likely to be, entitled to an impairment benefit. In particular, is TAC required to do so where the limitation period in s 68 has already expired?
49 Justice Cavanough said that TAC will not be obliged to make an impairment determination in relation to a person who is ‘plainly out of time’ to lodge a claim. He went on to say:
But the important matter is that in each case the TAC is required in the first instance, as a matter of law, to ask itself whether the person appears to be or to be likely to be entitled to impairment benefit, not whether the person has lodged (or could lodge) a timely claim.
[14](2008) 50 MVR 37; [2008] VSC 92 (Byrne).
[15]Reasons, [41]-[46].
[16]Reasons, [47].
[17]Reasons, [48]-[49] (citations omitted).
This framed the primary issue for determination between the parties, which was whether Ms Burns’ request for an impairment assessment was ‘plainly out of time’:[18]
[18]Reasons, [50].
51 As stated, Ms Burns’ claim is made under s 46A(1AB) of the Act. This enables a person to apply to the TAC to determine their degree of impairment, and imposes an obligation on the TAC to determine that, if certain conditions are satisfied.
52 It is common ground that s 46A(1AB) only has application if Ms Burns’ claim for payment was not already statute-barred. That is, both parties accepted that this is the effect of the decision in Transport Accident Commission v Locastro.[19] Whether or not it was statute-barred, is the crux of this case.
53 The TAC says that by the time Ms Burns made an application for an impairment determination (on 16 May 2019) she was statute-barred. The limitation period under s 68 had already expired.
54 Ms Burns, on the other hand, argues that her application for funeral expenses and a death dependency benefit made on 2 March 2016 (only two weeks after the accident) was sufficient for her to pass through the s 68 ‘gateway’. It paved the way for her to make a legally valid request for TAC to determine her degree of impairment, more than three years later.
55 Section 68 relevantly provides that a person who is injured as a result of a transport accident may make a claim for compensation under Part 3 of the Act within one year after the accident.
56 Under s 68(2), that period of one year can be extended to three years at TAC’s discretion. It was common ground here that nothing turns on whether a one-year or three-year period applies. Ms Burns says her ‘claim’ was made two weeks after the accident (on 2 March 2016) and TAC says it was not made until more than three years after the accident (on 16 May 2019). As noted above, for simplicity, the time limit is referred to in this decision as three years.
57 As stated, neither party was able to refer me to any case where the question of the correct application of s 68 in relation to s 46A(1AB) has arisen for consideration by VCAT or a court before.
[19][1995] 1 VR 289 (citations omitted).
The senior member set out the parties’ respective contentions in detail, before setting out his own analysis and conclusions:
83 In my view, the application of the reasoning of Cavanough J in Byrne, which I should follow here, results in the conclusion that Ms Burns’ application for TAC to determine her level of impairment should be accepted. TAC should determine her degree of impairment.
84 There is nothing about the present claim, or the circumstances applicable, which makes the reasoning of Cavanough J relevantly inapplicable here. Although Cavanough J was dealing with s 46A(1A) in its previous form, the key aspect of his decision for present purposes is his analysis concerning the requirement that it appears to TAC that the applicant is, or is likely to be, entitled to an impairment benefit.
85 I accept the contentions put on behalf of Ms Burns in this case.
86 In accord with the analysis in Byrne, Ms Burns clearly had come to TAC’s attention within the three-year limitation period. She was ‘in the system’. She had come to TAC’s attention through, at least (in terms of information provided to the Tribunal) the Valium script of 25 February 2016, the funeral and death benefits claim of 7 March 2016 and the letter of 30 January 2017 to TAC from Ms Burns’ daughter.
87 Hence, following receipt of her application for an impairment assessment on 16 May 2019, the TAC was obliged to ask itself first whether it was of the opinion that Ms Burns was, or was likely to be, entitled to an impairment benefit (Byrne, at [29] quoted at [49] above). Associate Professor Paoletti’s report clearly indicates that to be the case, since he assessed her level of impairment due to the accident at 15%.
88 The fact that his report came after the expiry of the three-year limitation period does not prevent the report from being taken into account in this way (Byrne, at [29]). I do not accept the contention put for TAC that Ms Burns can make application for an impairment assessment after three years, but only if she had submitted a claim ‘in her own right’ within the three-year period.
89 Turning to the distinction between ‘own right’ claims and ‘dependency’ or ‘derivative’ claims. As TAC noted, the Act does reflect a distinction between a claim for compensation by a person who is injured as a result of the transport accident, and a claim for compensation by a dependent of a person who died as a result of the transport accident. That distinction is apparent from s 35, which is as follows:
(1) A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if—
(a) the accident occurred in Victoria; or
(b) the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was—
(i) a resident of Victoria; or
(ii) the driver of, or a passenger in, the registered motor vehicle.
(2) A dependant of a person who dies as a result of a transport accident is entitled to compensation in accordance with this Act if the person who dies was or would, but for the death, have been entitled to compensation in respect of the accident by reason of subsection (1).
(3) The Commission is not liable to pay compensation to a person in accordance with this Act unless the person is entitled to compensation.
90 The numerous different types of claims which may be made under s 68 are likely to be able to be separated out into one or other of these categories.
91 Section 68 also reflects this distinction. It relevantly states:
(1) A person—
(a) who is injured; or
(b) who is a dependant or a surviving partner of a person who dies—
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year—
(c) after the accident or death; or
…
92 In my view, however, none of this means that s 67 and s 68 must be interpreted as requiring that a formal ‘claim’ for an impairment assessment, or a claim ‘in her own right’ must be made within three years of the transport accident, where a death benefits claim has already been lodged within that period. The words of s 68 do not require this. They do not explicitly prescribe a separately running limitation period in relation to each of these two categories of compensation.
93 Consistently with Ms Burns’ argument, s 68 refers to ‘a claim’ in the singular, suggesting that once ‘a claim’ has been made, it is able to stand as the basis on which a future application for determination of degree of impairment may be made.
94 As Cavanough J noted at [43] of Byrne, there is a distinction between ‘a claim for compensation’ under s 68, and an ‘application’ for an impairment determination under s 46A.
95 Importantly, s 46A(1AB) does not exclude from its operation prior applications made under the six listed provisions (ss 57,58,59, 60(2A), (2C) or (2E)) whereas s 46A(1A) and s 47(7) were amended to exclude such applications. [In] my view, this is a powerful indication that the making of a death benefit claim within time is able to facilitate a later request for an impairment assessment under s 46A(1AB). For whatever reason, the legislature did not move to preclude an impairment assessment under s 46A(1AB) where a prior claim made within the three-year limitation period was for a for a death benefit. The rationale referred to in the second reading speech and explanatory memorandum obviously does not apply to s 46A(1AB) as it was not amended.
96 I acknowledge that the consequence of this analysis is that an applicant in Ms Burns’ position, having made a death benefits claim within time, would not be subject to any time limit for making of a subsequent application for impairment assessment. There may be some incongruity about this, and it was not said what the extent of the implications of this are in practice. However, that is the effect of the text of the Act, and such considerations cannot override the primacy of the text in statutory interpretation.
For those reasons, the Tribunal set aside the decision of the Commission to refuse to make a determination of Ms Burns’ degree of impairment. The senior member explained that the consequence of the Tribunal’s decision was that the Commission is required to determine Ms Burns’ degree of impairment under s 46A(1AB) of the Act, including carrying out any required medical assessments, subject only to being satisfied that Ms Burns suffered an impairment ‘as a result of a transport accident’.[20]
[20]Reasons, [98]-[99].
Question 1 – Does the Act establish and distinguish two independent types of claim?
The first question of law raised in the Commission’s notice of appeal is whether ss 35, 46A, 47 and 68 of the Act establish and distinguish two independent types of claim — the first being a claim by a person who is injured as a result of a transport accident for compensation for his or her injury, and the second being a claim by a dependant of a person who dies as a result of a transport accident for payments under ss 57, 58 or 59, or for compensation under ss 60(2A), (2C) or (2E). The Tribunal accepted that the Act reflects a distinction between a claim for compensation by a person who is injured as a result of a transport accident, and a claim for compensation by a dependant of a person who dies as a result of a transport accident. However, the Tribunal did not accept the Commission’s contention that s 68 makes a distinction between the two types of claim.
The Commission’s submissions
The Commission submitted that, at least for the purposes of determining a person’s degree of impairment and any impairment benefit, the Act establishes and distinguishes between two types of claim:
(a) first, a claim by a person who is injured as a result of a transport accident for compensation for his or her injury; and
(b) second, a claim by a dependant of a person who dies as a result of a transport accident for payments under s 57 (death benefit for surviving partner), s 58 (surviving partner — periodical payments) or s 59 (surviving children), or by a dependant of a person who is injured or dies as a result of a transport accident for compensation under s 60(2A) (counselling and funeral costs), or ss 60(2C) and (2E) (travelling and accommodation costs).
The Commission relied on the use in ss 46A(1A) and 47(7) of the phrase ‘a person injured as a result of a transport accident and who has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’. It further submitted that the distinction was apparent in the text and structure of ss 35 and 68 of the Act, and that the Tribunal had accepted that distinction at [89] to [91] of the Reasons.
In the Commission’s submission, the Tribunal’s conclusions at [92] to [93] were in error. In particular, the Commission argued that the reasoning at [93] ignored the basic rule of interpretation that words in the singular include the plural.[21] It said that, far from evincing a contrary intention, the phrase that appears in ss 46A(1A) and 47(7) confirms the existence of two types of claim.
[21]Interpretation of Legislation Act 1984 (Vic), s 37(c).
The Commission said that the Tribunal had introduced a straw person in [92] of the Reasons, by referring to ‘a formal “claim” for an impairment assessment’, when that is not what the Act requires. Rather, the Act requires a person to have made a claim for compensation for his or her injury.
Finally, the Commission argued, the Tribunal had erred by construing s 68 as a standalone provision. It should instead have construed s 68 in the context of ss 46A(1A) and 47(7) of the Act, and by reference to s 37(c) of the Interpretation of Legislation Act 1984 (Vic). The Commission submitted that, if the Tribunal had taken the correct approach, it would have concluded that a person who sought compensation for his or her injury had to make a claim separate from any earlier claim for benefits payable to a dependant of a person who is injured or dies.
The Commission relied on the structure of s 68(1), which provides that a claim for compensation under Part 3 may be made by a person:
(a) who is injured; or
(b) who is a dependant or surviving partner of a person who dies,
as a result of a transport accident. It said that this structure reflected the two kinds of claims for compensation that may be made under Act — namely, claims for injury benefits and claims for death and dependency benefits. That being so, the Commission submitted that the time limits in s 68 apply separately and independently to each kind of claim. It acknowledged that the drafting of s 68 was inelegant, and that there were other ways that this distinction might have been made clear.
Ms Burns’ submissions
Ms Burns submitted that it was not necessary to answer the Commission’s first proposed question of law in order to construe ss 46A(1AB) and 68 of the Act, which are the critical provisions in this case. She acknowledged that the benefits made available by the Act for persons who are injured as a result of a transport accident are different from the benefits it makes available to dependants and family members of persons who die as a result of a transport accident. However, she argued, the Act does not draw a consistent distinction between claims for the two types of benefits — for example, the term ‘claim for compensation’ is used throughout the Act without distinguishing between a claim for injury benefits and a claim for death and dependency benefits. The only safe conclusion to draw, in Ms Burns’ submission, is that the Act does not treat differently or independently claims for compensation by persons injured and claims for compensation by dependants and family of persons who die as a result of a transport accident.
Ms Burns characterised the Commission’s argument as an invitation to read words into s 46A(1AB), as follows:
If a person has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 and that person applies to the Commission for a determination of his or her degree of impairment as a result of a transport accident more than 2 years after the day of the accident, or the day when any injury first manifested itself, whichever is the later day, the Commission must, if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit, determine the person’s degree of impairment—
(a) if the injury had stabilised by the date that the application was made, within 12 months after that date; or
(b) in any other case, within—
(i) 12 months after the injury stabilises; or
(ii) 2 years after the date the application was made—
whichever occurs first.
She argued that there was no sufficient reason to read those words into s 46A(1AB). Rather, she said, there was a compelling reason not to do so, given that Parliament had chosen not to insert the relevant phrase into s 46A(1AB) when it added it to ss 46A(1A) and 47(7) in 2013. She relied on the authorities discussed by Cavanough J in Byrne, to the effect that it is wrong to read words into a statute in the absence of clear necessity.[22]
[22]Byrne, [36], quoting Thompson v Goold & Co [1910] AC 409, 420 (Lord Mersey). See also Byrne, [37], citing Western Australia v Commonwealth (1975) 134 CLR 201, 251 (Stephen J); Footscray City College v Ruzicka (2007) 16 VR 498, [7]; R v Young (1999) 46 NSWLR 681, [1]-[37] (Spigelman CJ).
Ms Burns pointed out that ss 46A(1AB) and 46A(1A) address different matters and so there is no need for them to have the same pre-conditions. She said that s 46A(1AB) governs the time by which the Commission must determine a person’s degree of impairment when the person applies to the Commission for a determination more than two years after the accident or the first manifestation of the injury. By contrast, s 46A(1A) sets out the circumstances in which the Commission is deemed to have made an impairment determination of 0%. She submitted that this was a further reason why s 46A(1AB) should not be construed as if it contains the words distinguishing between claims for different types of compensation that appear in s 46A(1A).
Consideration
The first question of law posed in the Commission’s notice of appeal is directed to the Commission’s preferred construction of ss 46A(1AB) and 68 of the Act. The construction exercise starts and ends with the text of the relevant provisions, and the ordinary grammatical meaning of the words used, with the object of construing the provisions so that their legal meaning is consistent with the language used and the legislative purpose of the statute.[23]
[23]See, eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39].
There are limited circumstances in which words may be read into a provision: it may be done to correct simple, grammatical, drafting errors that would defeat the object of the provision; it may not be done in order to fill gaps in legislation.[24] The exercise is one of statutory construction of the words actually used, and not judicial legislation.[25]
[24]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38] (French CJ, Crennan and Bell JJ).
[25]Taylor, [38]–[40] (French CJ, Crennan and Bell JJ). See also R v Young, [5]-[35] (Spigelman CJ).
In addition, words take some of their meaning from the context in which they appear. The meaning of the text of a provision is to be discerned by considering the text in its context, including the whole statute in which the provision is located, legislative history, extrinsic materials, the purpose and policy of the provision, and the mischief it is designed to remedy.[26]
[26]See, eg, Alcan, [47]; Consolidated Media Holdings, [39].
Where there is a choice to be made between possible meanings of a provision, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[27] A provision in a statute with a beneficial or protective purpose must be construed so as to give the fullest possible effect to that purpose.[28]
[27]Interpretation of Legislation Act, s 35(a).
[28]R vACR Roofing (2004) 11 VR 187, [43] (Nettle JA).
In the case of s 46A(1AB), the plain meaning of the words of the provision is clear. The Commission must determine a person’s degree of impairment, within the time specified, if two conditions are present:
(a) first, the person applies to the Commission for a determination of his or her degree of impairment as a result of a transport accident more than two years after the day of the accident, or the day when any injury first manifested itself, whichever is later; and
(b) second, the Commission is of the opinion that the person is, or is likely to be, entitled to an impairment benefit.
There is no grammatical or drafting error that would defeat the purpose of s 46A(1AB), so as to make it necessary to read words into the provision in the way contended by the Commission. It is in the same form it has been in since it was added to the Act by the 2004 Amendment Act. As the Tribunal noted, it has not previously been the subject of judicial consideration. Although s 46A has been amended several times since then, Parliament has apparently seen no need to clarify the operation of s 46A(1AB).
I accept that the words of s 46A(1AB) must be given meaning within the particular context of s 46A, and the broader context of the Act. In particular, the phrase ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’ in s 46A(1A) must have work to do.
Reading s 46A as a whole, it provides four separate mechanisms for persons injured as a result of a transport accident to have their degree of impairment determined by the Commission:
(a) First, under s 46A(1), the Commission must determine the degree of impairment of each person who is injured as a result of a transport accident who ‘appears to the Commission to be or to be likely to be entitled to an impairment benefit’ within the time frames provided. As explained by Cavanough J in Byrne, this obligation arises whether or not the person has made a claim for compensation under Pt 3 of the Act.
(b) Second, under s 46A(1AB), the Commission must determine the degree of impairment of a person who applies for a determination, subject to the conditions specified being present. This obligation is not expressed to depend on the person having made a claim for compensation under Pt 3.
(c) Third, s 46A(1A) deems the Commission to have determined that a person’s degree of impairment is 0%, if:
(i) the person has made a timely claim — ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’ — that has been accepted by the Commission; and
(ii) the Commission has not made an impairment determination within six years.
(d) Fourth, s 46A(1C) allows a person whose injury has not stabilised within three years to ask the Commission to determine his or her degree of impairment, or to wait until the injury has stabilised before doing so. Again, the Commission’s obligations in ss 46A(1D) and (1E) to determine the person’s degree of impairment are not conditioned on the person having made a claim for compensation under Pt 3.
It can be seen that s 46A(1A) is the only one of these four mechanisms that deems the Commission to have made an impairment determination. It is also the only one that requires a person to have an accepted claim, and the only one to distinguish between a claim for injury benefits and a claim for death and dependency benefits. The work done by that distinction in s 46A(1A) is to limit the circumstances in which the Commission is deemed to have made an impairment determination. The phrase ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’, used in s 46A(1A), achieves that purpose without any need to read those words into s 46A(1AB). To put it another way, the distinction made between two types of claim in s 46A(1A) serves the particular purpose of ensuring that every person who has an accepted claim for injury benefits also has an impairment determination. That purpose is not evident in the other three mechanisms for impairment determination provided by s 46A, none of which depends on the person having made a claim.
Turning to s 68(1), the text of the provision distinguishes between two types of claimant — a person who is injured as a result of a transport accident, and a person who is a dependant or a surviving partner of a person who dies as a result of a transport accident. This reflects the two kinds of persons who are entitled to compensation in accordance with the Act, as provided in s 35.[29] However, unlike ss 46A(1A) and 47(7), the words of s 68(1) do not differentiate between a claim for injury benefits and a claim for death and dependency benefits. Section 68(1) provides simply that either of the claimants mentioned in paragraph (a) or (b) may make ‘a claim for compensation’ under Pt 3, within the time specified in paragraph (c) or (d), as applicable.
[29]See [11] above.
Where a claimant is both injured and a dependant or surviving partner of a person who has died as a result of the same transport accident, s 68(1) contemplates that the claimant will make a single claim for compensation. It does not require, in terms, that such a claimant must make two separate claims for each of the two categories of benefits provided in Pt 3 of the Act. The way that the subsection is structured, specifying two kinds of claimant but only one ‘claim for compensation’, indicates that it was not intended that the singular ‘claim’ in s 68(1) should include the plural ‘claims’.[30]
[30]Cf Interpretation of Legislation Act, s 37(c).
The premise for the Commission’s description of this drafting as ‘inelegant’ was its contention that Parliament intended to provide for separate limitation periods for the two types of claims for compensation available under Pt 3. I do not accept that premise, because I can discern no such legislative intention. I have reached that conclusion having regard to the text of the provision, the structure of the Act, the legislative history, and the extrinsic materials for the 2013 Amendment Act. Two matters are of particular note.
First, while the 2013 Amendment Act amended s 68(3) of the Act, it made no change to s 68(1).[31] This indicates that the amendments made in 2013 to ss 46A(1A) and 47(7) were specific to those two provisions, and were not intended to establish a general distinction throughout the Act between injury benefits and death and dependency benefits.
[31]See [22] above.
Second, the purpose and objects of the Act are in general terms,[32] and do not support the Commission’s contention that the Act distinguishes between two independent types of claim, in s 68 or more generally. The purpose of the 2013 Amendment Act was ‘to further improve the operation’ of the Act,[33] by making ‘a number of amendments to maintain the integrity and improve the operational efficiency of the Victorian transport accident scheme by clarifying the intention of the Act and increasing certain benefits to persons and families of those who are injured or killed in transport accidents’.[34] Again, the legislative purpose is expressed at such a high level that it does not assist the Commission’s preferred construction of s 68.
[32]See [10] above.
[33]2013 Amendment Act, s 1.
[34]Explanatory Memorandum, Transport Accident Amendment Bill 2013 (Vic), 1.
In conclusion on this question, the phrase ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’ is used in only two places in the Act, in ss 46A(1A) and 47(7), as a result of amendments made by the 2013 Amendment Act. The legislature clearly saw a need to distinguish between claims for injury benefits and claims for death and dependency benefits for the purposes of those two provisions. The amendments do not establish a distinction between those two types of claim for all purposes, in all provisions of the Act.
It follows that I do not consider that the Tribunal erred in its construction of s 68, or its conclusion that s 68(1) does not prescribe separately running limitation periods in relation to the two categories of compensation available under the Act. Ms Burns made a claim for compensation in March 2016, within the time limit prescribed by s 68(1). It was therefore not open to the Commission to refuse her request for an impairment determination, made in May 2019, on the basis that it was statute barred.
Question 2 – What is the proper construction of s 46A of the Act?
The second question of law raised in the Commission’s notice of appeal is whether a person is entitled to obtain an impairment determination under s 46A(1AB) of the Act if he or she has not made, and cannot now make, a claim, other than a claim for payments under ss 57, 58 or 59 or a claim for compensation under ss 60(2A), (2C) or (2E), within the period of time provided by s 68 that has been accepted by the Commission. This traverses much the same ground as the first question of law. For the reasons already given, I have concluded that s 68(1) of the Act requires only that a claim for compensation is made within the time limit provided, and does not distinguish between claims for injury benefits and claims for death and dependency benefits.
In submissions, the Commission reframed its second question of law to be whether s 46A is to be construed as a whole, or whether s 46A(1AB) is to be construed independently of s 46A(1A). The Commission submitted that the Tribunal had erred, at [95] of the Reasons, in construing s 46A(1AB) independently of s 46A(1) and s 46A(1A). It said that the error stemmed from failing to read and construe s 46A as a whole, and by reference to s 47.
According to the Commission, it would be an ‘extraordinary omission’ to read both ss 46A(1) and 46A(1AB) not to be subject to the exclusion of the ‘six listed provisions’ found in s 46A(1A). It submitted that ss 46A(1) and 46A(1AB) should be read together with s 46A(1A), so as to include the ‘six listed provisions’. The Commission argued that the drafting may be inelegant, but the meaning and intention was clear — determinations of the degree of impairment under s 46A may only be made where a person has made a claim for injury benefits within the period of time provided by s 68 that has been accepted by the Commission.
The settled principles of statutory construction direct attention to the words used in s 46A, the context in which they appear within the Act, and relevant legislative purpose.[35] It may be accepted that s 46A should be construed as a whole, in an effort to give meaning to every word of the provision.[36] However, that does not warrant reading words into ss 46A(1) and 46A(1AB) that the legislature has not chosen to use.[37]
[35]See [42]-[45] above.
[36]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ).
[37]See [43] and [47] above.
As set out above, s 46A(1A) serves a particular function within s 46A as a whole.[38] It provides for a deemed determination of a person’s degree of impairment, in circumstances where:
(a) the person has an accepted claim for injury benefits — that is, a claim ‘other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E)’; and
(b) the Commission has not within six years after the accident or injury made a determination of the person’s degree of impairment ‘under this section’ — that is, under ss 46A(1), (1AB) or (1C).
[38]See [50] above.
The explanation for the inclusion of the ‘six listed provisions’ in s 46A(1A) is that Parliament meant to limit the operation of the deeming provision to persons with an accepted claim for injury benefits. The explanation for the omission of the ‘six listed provisions’ from ss 46A(1), (1AB) and (1C) is simply that Parliament did not wish to limit the scope of those provisions in the same way.
No error is made out in relation to the reframed second question of law.
Disposition
The questions of law raised in the Commission’s notice of appeal were arguable, and so I will grant leave to appeal. However, the appeal must be dismissed. The Commission has not established any error in the Tribunal’s construction of ss 46A(1AB) and 68 of the Act, or in its conclusion that the Commission is required under s 46A(1AB) to determine Ms Burns’ degree of impairment.
I will hear the parties on the question of costs.
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