Transport Accident Commission v Hogan
[2013] VSCA 335
•27 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCl 2012 0103 | |
| TRANSPORT ACCIDENT COMMISSION | Appellant |
| v | |
| VAUGHAN HOGAN | Respondent |
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| JUDGES | REDLICH, PRIEST JJA and MACAULAY AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 20 May 2013 | |
| DATE OF JUDGMENT | 27 November 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 335 | |
| JUDGMENT APPEALED FROM | [2012] VSC 206 (Croft J) | |
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TRANSPORT ACCIDENT COMPENSATION – Application for compensation by way of purchase of a quad bike – Whether a quad bike is a ‘motor vehicle’ under the Transport Accident Act 1986 (Vic) and Road Safety Act 1986 (Vic) – Transport Accident Commission v Serbec [1993] 6 VAR 151 – Transport Accident Commission v Ball [1991] 1 VR 64 – Whether the Commission’s only power to fund the purchase of a motor vehicle is Transport Accident Act (1986) (Vic) ss 60(3) and (3A) – Whether the Commission has the power to fund the purchase of a quad bike as a ‘rehabilitation service’ –Transport Accident Act 1986 (Vic), ss 23 and 60(2) – Whether the provision of a ‘rehabilitation service’ must be subject to a structured program – Keler v Transport Accident Commission [2002] VCAT 445.
WORDS AND PHRASES – Meaning of ‘motor vehicle’ – Meaning of ‘rehabilitation service’ – Meaning of ‘aid’, ‘appliance’ or ‘apparatus’.
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| Appearances: | Counsel | Solicitors |
For the Appellant | Mr P Solomon SC | Solicitor to the TAC |
| Mr C Young | ||
| For the Respondent | Mr J Brett | Arnold Thomas & Becker |
| Mr J Valiotis |
REDLICH JA
PRIEST JA
MACAULAY AJA:
Introduction
This appeal raises questions about the Transport Accident Commission’s liability to fund the purchase of a recreational motor vehicle to be used in the rehabilitation of a person injured in a transport accident.
Mr Hogan, the respondent, suffered serious injuries whilst riding a motorcycle on 10 June 2007, resulting in incomplete quadriplegia at the C5/C6 level of his cervical spine. In June 2008, the appellant (‘Commission’) contributed towards the purchase cost of a Volkswagen Transporter motor vehicle, also paying for certain modifications to enable Mr Hogan to drive it.
When Mr Hogan later sought funding from the Commission for the purchase of a Polaris RZR 800 EFI quad‑bike (‘Polaris’) to be used for recreational activities, the Commission declined that request. On 18 October 2011, the Victorian Civil and Administrative Tribunal (‘Tribunal’) dismissed Mr Hogan’s application for review of the Commission’s decision. On 18 May 2012, Croft J allowed Mr Hogan’s appeal and ordered the Commission to fund the purchase costs of the Polaris.
On 16 August 2012, the Court of Appeal (Warren CJ and Beach AJA) gave the Commission leave to appeal against Croft J’s judgment and orders, upon the receipt of undertakings given by the Commission that it would pay for Mr Hogan’s costs, both of the appeal and the proceedings below. In granting leave to appeal, their Honours emphasised that it would be in the interests of justice for this Court to consider the questions raised by the proposed appeal because the questions of law involved in the proceeding are of importance to the Transport Accident Act scheme.
Issues
Sections 60(3) and (3A) of the Transport Accident Act 1986 (‘the Act’) make specific provision for the liability of the Commission to contribute towards the costs of a motor vehicle for a person injured as the result of a transport accident:
(3)If a person, as a result of his or her transport accident injury, reasonably requires a motor vehicle used by him or her in Australia to be modified, the Commission is liable—
(a) to pay the reasonable costs of modifying the vehicle; or
(b)if the vehicle is not capable of being modified, to contribute a reasonable amount to the purchase cost of a suitably modified motor vehicle selected by the Commission.
(3A)If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle, and he or she does not have access to a motor vehicle, the Commission is liable to contribute a reasonable amount to the purchase cost of a suitable motor vehicle selected by the Commission.
In addition, the Act specifies when the Commission is liable to pay compensation to an injured person for rehabilitation services, in s 60(2)(a):
(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; …
In turn, rehabilitation service is defined by s 3 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; …
Both at the Tribunal and before Croft J the Commission had submitted that:
(1) The Polaris was a ‘motor vehicle’ as defined in the Act;
(2) Sections 60(3) and (3A) were the only source of the Commission’s liability to pay for the purchase or modification of a motor vehicle;
(3) Having already contributed to the purchase of one motor vehicle for Mr Hogan, the Commission was not liable to contribute towards the purchase of a second;
(4) Alternatively, even if s 60(2)(a) is another source of the Commission’s liability to pay for a motor vehicle, the provision of a Polaris does not qualify as a ‘rehabilitation service’ as defined in the Act.
The Commission failed on each of these submissions before Croft J. On this appeal, it re‑agitates each of those submissions.
Accordingly, the issues on appeal, as agreed by the parties, are as follows:
(a)Is the Polaris a ‘motor vehicle’? More particularly, given the definition of ‘motor vehicle’ in the Act (referred to below), is the Polaris intended to be used on a ‘highway’?
(b)Does the Commission’s liability to purchase a motor vehicle arise only under ss 60(3) and (3A) of the Act, and not under any other subsection of s 60?
(c)Is the Commission’s liability to purchase a motor vehicle under s 60(3)–(3A) of the Act a liability to purchase only one motor vehicle?
(d)If the Commission is liable to fund the purchase of the Polaris under s 60(2)(a):
(i)Is the Polaris an ‘aid’, ‘appliance’, or ‘apparatus’ for the purposes of the definition of ‘rehabilitation service’ in s 3 of the Act?
(ii)Must the provision of the Polaris for recreational purposes be as part of a structured program under s 23 of the Act in order for it to be a ‘rehabilitation service’?
For the reasons that follow we would dismiss the appeal.
Relevant facts
Mr Hogan’s injury resulted from a low speed accident while riding a motorcycle on private property at Toolern Vale, Victoria.
Now an adult, married and with two children aged 12 and 14, Mr Hogan had been a keen motorcycle enthusiast since the age of eight. Prior to his accident, motorcycling had formed a significant part of his active life, along with other outdoor pursuits such as water skiing, triathlons and cycling. Mr Hogan frequently rode motorbikes with friends, undertaking many riding trips in the high country in north east Victoria. His parents in law owned a property near Bright, often being the base for some of his trail riding activities in the bush. For him, as well as being an exciting activity, motorcycling was a significant social activity. He was involved in the organisation of these activities for groups of up to 25 friends. Weekend trips occurred around once per month. He also organised an annual six-day motorbike activity in the Dargo area.
In his written statement to the Tribunal (which was not the subject of any challenge or cross-examination) Mr Hogan said that, as a result of the accident in 2007, he underwent surgery at the Austin Hospital where his cervical spine was fused with plates and screws at C 4-5-6. He described the various effects of his incomplete quadriplegia including compromise of his bowel and bladder functions, loss of sense of temperature and limited pain reaction. In his own words he made ‘slow progress’ in his rehabilitation. He has engaged in swimming and has improved his walking and strength.
By October 2010 he had recovered active and good movement in his left arm and left leg, albeit less than normal function. At that time he was receiving physiotherapy on a weekly basis. He also performed a daily therapy program which he implemented with the assistance of therapy aids.
Due to the accident he is reliant upon wheelchairs for his mobility needs — a manual wheelchair at home and a powered wheelchair in the community. His Volkswagen Transporter vehicle, purchased for him by the Commission, has been modified for his needs.
Mr Hogan expressed a desire to return to motor cycling activities. He missed seeing many of the friends with whom he used to ride motorcycles and he wanted to become more involved in their activities. Therefore he was anxious to secure a suitably modified motorbike so that he could participate in the type of recreational activities with which he was once involved.
Alison Smith, a recreation specialist, recommended that the Commission consider funding Mr Hogan a four-wheeled (‘quad’) bike to enable him to resume those types of recreational activities which had previously been extremely important to him. Ms Smith was of the view that the provision of such a machine would help him return to his role of ‘organiser’ within his friendship network which was important for his self-esteem and sense of worth. She was also of the view it would be a good way for him to ‘normalise’ his social interaction with his friends. Additionally, with a two-seater quad bike, Mr Hogan could take his children out to enjoy the bush which, in her view, would be very significant to Mr Hogan as a father.
The Commission requested a report from an occupational therapist, Tom Eley, on the types of all-terrain vehicles which might be suitable. Mr Hogan had expressed a particular interest in a Polaris RZR 800 EFI quad vehicle. Mr Eley described it as ‘a high performance recreational utility vehicle, not an entry level based machine’. The Polaris was depicted in a number of photographs exhibited to affidavits filed at the Tribunal. From the description given by Mr Eley, and the photographs, it is apparent that the Polaris is a small left-hand drive, quad vehicle, capable of seating two persons. It is fitted with a steering wheel, foot-operated accelerator and brake, long travel suspension, knobbly tyres, a bonnet over the engine fitted with headlights, and it has a roll-cage. Mr Eley observed Mr Hogan’s management of the operation of the Polaris vehicle and made certain recommendations concerning further modifications that would need to be made to enable him to use it satisfactorily.
On 29 September 2009 the Commission rejected Mr Hogan’s request that it fund the purchase of a quad bike as recommended by Ms Smith, as it was of the view it was not empowered to contribute towards the cost of a second motor vehicle (having previously purchased the Volkswagen Transporter).
Mr Hogan appealed the Commission’s decision to the Tribunal. A further report was obtained from an occupational therapist, Michelle French. Ms French conducted an assessment and review of Mr Hogan in relation to the therapeutic and rehabilitative benefits of the provision of a modified Polaris quad bike. Ms French thought the provision of a quad bike with appropriate modifications:
… would significantly benefit Mr Hogan. The provision of such a bike would certainly increase Mr Hogan’s level independence [sic] in his ability to engage in a meaningful and motivating recreational activity, as well as furthering his overall rehabilitation program.
Ms French recommended that Mr Hogan be provided with a modified Polaris, fitted with power steering and a spinner knob and modified brake and accelerator, each of which would require input from an experienced occupational therapist.
The Tribunal affirmed the Commission’s decision that it was not liable to pay the compensation sought by Mr Hogan.
In allowing Mr Hogan’s appeal Croft J found:
(a)the Polaris quad bike was not a ‘motor vehicle’ for the purpose of the Act;
(b)the source of the Commission’s liability to pay for the modification or purchase of a motor vehicle was not limited to ss 60(3) and (3A), but was also to be found in s 60(2) for rehabilitation purposes;
(c)a Polaris quad bike is an ‘aid’, ‘appliance’, or ‘apparatus’ for the purpose of the definition of ‘rehabilitation service’ in s 3 of the Act; and
(d)upon the proper construction of ‘rehabilitation service’, there was no requirement that the provision of a Polaris quad bike be accompanied by a ‘structured program’ for it to constitute such a service.
Although initially a ground of appeal, the Commission abandoned any challenge to the trial judge’s finding that the use of the Polaris could be for the purpose of the rehabilitation of Mr Hogan.[1]
[1]Indeed, it appears that the Commission did not challenge the evidence concerning the rehabilitative benefits to Mr Hogan of the provision of the Polaris: see Hogan v Transport Accident Commission [2012] VSC 206, [54] (Croft J).
We turn to the four questions raised on appeal.
(1) Is the Polaris a motor vehicle?
The Commission argued that Croft J was in error in finding that the Polaris was not a motor vehicle for the purposes of the Act. Whether the Polaris is a motor vehicle as defined in the Act is the first step in the Commission’s argument that ss 60(3) and (3A) is the only source of liability to fund the purchase of motor vehicles, and then only one motor vehicle. As it has funded the purchase of a Volkswagen Transporter for Mr Hogan, the Commission contends it cannot be liable to fund the purchase of a second motor vehicle.
On the appeal Mr Hogan maintained, as Croft J concluded, that the Polaris was not a motor vehicle. With respect, that submission cannot be sustained. In our view the Polaris is a motor vehicle for the purpose of the Act.
The legislative path that leads to that conclusion is as follows. Sections 60(3) and (3A), set out above,[2] expressly refer to the Commission’s liability to pay for the modification or purchase cost of motor vehicles if particular conditions apply.
[2]See [5] above.
Section 3 of the Act defines a ‘motor vehicle’ by reference to the meaning of the same expression in s 3(1) of the Road Safety Act 1986. In turn, that latter Act defines ‘motor vehicle’ relevantly to mean:
… a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle.
‘Highway’ is defined in s 3(1) to mean a ‘road or road related area’. In turn, ‘road’ and ‘road related area’ are defined as follows:
Road means –
(a)an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; or
…
Road related area means –
(a) an area that divides a road; or
(b) a footpath or nature strip adjacent to a road; or
(c)an area that is open to the public and is designated for use by cyclists or animals; or
(d)an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles; or
…
So it can be seen that a motor vehicle is one that is either used or intended to be used on either a road or a road related area, which include areas that are used for the driving or riding of motor vehicles. There is a clear circularity in the definition.
The authorities make it plain that the words ‘used’ or ‘intended to be used’ in the definition of motor vehicle have different meanings. ‘Used’ refers to how the vehicle is actually used whereas the expression ‘intended to be used’ directs attention to an objective assessment of what the vehicle is ‘suitable or apt’ or ‘meant’ for.[3]
[3]Transport Accident Commission v Serbec (1993) 6 VAR 151; Transport Accident Commission v Ball (1999) 1 VR 64.
There was no evidence before the Tribunal or Croft J as to how or where Polaris quad bikes are actually used. As there was no evidence of the types of areas on which that kind of vehicle had been driven or ridden, argument centred on the second of the two limbs in the definition, namely the vehicle’s ‘intended’ use.
In Transport Accident Commission v Ball[4] the Court of Appeal was concerned with whether a motor cycle that had long fallen into disrepair and which was no longer fit to be ridden on public roads and was only used on a private farm as a paddock bike, was a motor vehicle. The definition of motor vehicle in the Road Safety Act was not then precisely the same as it is in its current form. But, with a similar structure to the present definition, motor vehicle was defined by reference to whether it was ‘used or intended to be used’ on a highway or a public place. Dealing with the limb of ‘intended’ use, Buchanan JA (Callaway and Batt JJA agreeing) focused on the attributes of the motor cycle. It was not the use in fact being made of the motor cycle that was determinative for the relevant limb of the definition; rather it was what the motor cycle was suitable, apt or meant for, having regard to its characteristics. On that analysis, the attributes of the particular motor cycle fitted it for use on the smooth surface of a highway shared with other vehicles and thus it was a motor vehicle as defined.
[4] Transport Accident Commission v Ball (1999) 1 VR 64.
This analysis shows that, when considering an ‘intended’ use, one should focus objectively on the attributes and characteristics of the vehicle in question and ask for what use is it suitable or apt. It is not a subjective issue requiring, for example, evidence of what the manufacturer might have thought the vehicle should be used for or how a particular user might wish to use the vehicle.
Adopting this analysis, the Polaris is suitable or apt for driving on bush trails or fire access tracks in forested areas, on open scrubby areas such as may be found in desert, country or in alpine regions, or perhaps on open beaches, and so forth. The knobbly tyres and long track suspension give the impression the vehicle is more suited for rough terrain driving, albeit on cleared tracks or open spaces wide enough for a four wheel vehicle, rather than on smooth surfaced carriageways of the kind found in towns or cities. Being a high performance vehicle, it might also be suitable for competition driving on dirt tracks or motor courses. The Polaris quad bike is suitable or apt for off-road recreational driving on areas of public land similar in nature to those where Mr Hogan formerly rode motor bikes.
Such areas, many of which would be open to the public, fall within the definition of a ‘road related area’. Such areas may not all be roads in the sense of areas developed for or having as one of their main purposes the driving of motor vehicles. But they are areas which are open to or used by the public for riding or driving motor vehicles.[5] Intended off-road driving use is not a contra-indication to the vehicle being a motor vehicle as defined. If the vehicle is suited for ‘off road’ driving on both public and private land, it does not matter that a particular user might only intend it for use on private land: it is nonetheless a ‘motor vehicle’.
[5]See paragraph (d) of the definition.
For these reasons, applying the concept of ‘intended’ use to the attributes of the Polaris quad bike in question, in the context of ‘road related area’ the Polaris is a motor vehicle under the Act.
(2) Are ss 60(3) and (3A) the only source of statutory liability?
As the Polaris quad bike is a motor vehicle for the purpose of the Act, the Commission’s next step was to argue that only ss 60(3) and (3A) establish any legislative power or liability in the Commission to pay for the purchase of a motor vehicle. The corollary of that argument is that s 60(2) is not a source of power or liability to fund the purchase of a motor vehicle. Those submissions cannot be sustained.
The Commission’s argument depends primarily upon tracing the legislative history of the definition of rehabilitation services, for which compensation is to be paid as provided in s 60(2)(a), and ss 60(3) and (3A) which deal specifically with funding for the provision of motor vehicles.
A study of the legislative history of a provision is, in appropriate circumstances, a valid interpretive tool to construe that provision’s meaning.[6] The history of the Transport Accident Act, so far as it is relevant, is conveniently set out in the following passage from the judgment of Croft J.[7]
[6]See for example: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 366–8 [17]–[21]; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, 254 [6]–[8]; R v Lavender (2005) 222 CLR 67, 81–85 [33]–[50]; and DPP v MN (2009) 26 VR 563, 565–570 [8]–[27].
[7]Hogan v Transport Accident Commission [2012] VSC 206, [34]–[41] (omitting discussion).
Thus, from 1 January 1987 (when the TA Act commenced) to 24 May 1988, s 60 of that Act relevantly provided as follows:
“(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 ... rehabilitation services ... received because of the accident”.
At the same time, the definition of “rehabilitation services” was as follows:
“’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 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.”
[Emphasis added]
…
Amendments were made to the TA Act in 1988 in which a new sub-s 60(3) was inserted, in the following terms:
“(3) If a person who is injured as a result of a transport accident reasonably requires modifications to a vehicle or home because of the injury, the Commission may make payments to the person in respect of such part of the costs of the modifications as, in the circumstances, the Commission considers reasonable.”
[Emphasis added]
…
The relevant provisions of the TA Act were significantly amended in 2000 and a new definition of “rehabilitation service” was inserted into the legislation, in substitution for the previous definition. …The new definition was in the following terms:
“’rehabilitation service’ means 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 section 23.”
…
At the same time that the definition of “rehabilitation service” was substituted as the new definition, a new form of sub-s 60(3) was substituted as well which, for the first time, the Commission submitted, made it liable to pay for the purchase costs of a motor vehicle in some specified circumstances. The new sub-s 60(3) was in the following terms:
“(3) If a person who is injured as a result of a transport accident reasonably requires modifications to a motor vehicle in Australia, the Commission is liable to –
(a)pay the reasonable cost of modifications to the person’s motor vehicle; or
(b)contribute to the reasonable purchase of a motor vehicle, if the person does not own a motor vehicle which is capable of being modified.”
The present version of sub-s 60(3), (3A) and (3B) was introduced by s 18 of the Transport Accident (Amendment) Act 2004. Act No. 94/2004.
The Commission’s argument rests upon the premise that, as enacted in 1987, the definition of rehabilitation service did not include the possibility of purchasing a car (ie a motor vehicle) — it allowed only for the modification of a car. The Commission then argues that when paragraph (b) was omitted from the definition of rehabilitation service — as it was in 2000 — leaving only paragraph (a) in substantially the same terms as it was first enacted, those changes carried the necessary implication that the new definition of rehabilitation service also excluded the possibility of purchasing a car or motor vehicle, and that remains the present position.
The Commission seeks to fortify its argument by pointing to the express inclusion, in 2000, of a liability to pay for the purchase of a motor vehicle, as enacted in the new form of s 60(3). The Commission argued that enactment for the first time introduced a liability to fund the purchase of a motor vehicle, a view it says is confirmed by the second reading speech made by Mr Cameron, the responsible Minister, in introducing the proposed legislation in the Legislative Assembly:
Seriously injured TAC claimants and their families have often expressed confusion about the provisions of the act relating to home and vehicle modifications. Coverage of the costs of home and vehicle modifications is currently included in two separate areas of the act: firstly, as part of the definition of a rehabilitation service, and secondly, as part of the specific provisions of section 60. The TAC has received legal advice that section 60 only covers the modification of an existing home or vehicle of a claimant, which in many cases does not meet the needs of claimants.
The bill therefore includes a significantly expanded provision specifically covering the TAC’s obligations to provide appropriate modifications of a home or vehicle. This provides for the first time that the TAC will contribute to the purchase of a vehicle where the claimant’s current vehicle cannot readily be modified, and will assist a claimant to obtain modifiable accommodation where his or her current residence is unsuitable.[8]
[8]Victoria, Parliamentary Debates, (Legislative Assembly), 5 October 2000, 937.
Like Croft J, we consider that the submission contains a number of fallacies.
First, we do not accept the Commission’s argument that the inclusion of modifications to a car in paragraph (b) of the 1987 definition meant that paragraph (a) did not encompass a liability to fund the purchase of a car (or later a motor vehicle).
The word ‘includes’ commonly signifies the extension or enlargement of the ordinary meaning of a word or expression[9] but it may also be employed by way of clarification.[10] This is to be contrasted with the general understanding of the word ‘means’ which is usually employed if the definition is intended to be exhaustive. A provision which uses both the words, ‘means’ and ‘includes’ may give rise to uncertainty where the expressions appear incompatible with one another — one limiting and the other extending.[11] That combination is found in paragraphs (a) and (b) as initially enacted.
[9]Sherritt Gordon Mines Ltd v FCT [1977] VR 342, 353; Beqiri v The Queen (2013) 271 FLR 220, [28]. See generally DC Pearce & R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011) [6.61].
[10]Hagipantelisv Legal Services Commission of New South Wales (2010) 78 NSWLR 82, [20].
[11]Cf Dilworth v Stamps Commissioner [1899] AC 99,106 and Statutory Interpretation in Australia [6.65].
The Commission argued that by the use of the words ‘includes the provision to or for a person of … modifications to a home or car’ in paragraph (b) of the 1987 definition, Parliament intended to extend or enlarge what was otherwise provided for in paragraph (a). Therefore, if a liability to make modifications to a home or car were not to be found in paragraph (a), that paragraph could not be construed as containing a liability to purchase a car. This contention does not pay sufficient regard to the language of (a).
First, reading s 60(1) with the definition of ‘rehabilitation service’, Parliament stipulated that the Commission is liable to pay as compensation the reasonable costs of the provision of any ‘appliance’ or ‘apparatus’ to a person, for the purpose of rehabilitation. Those words are very broad. Having regard to the remedial nature of the legislation, the words should be given a liberal construction.[12] In that context, the ordinary meaning of the word ‘provision’ — or to provide — would include to supply the thing in question by buying it.
[12]IW Applicant v City of Perth (1997) 191 CLR 1, 11 (Brennan CJ and McHugh J).
Paragraph (a) of the definition included a liability to provide a motor car (assuming it answers the description of ‘appliance’ or ‘apparatus’, and is for a rehabilitation purpose) by requiring that the Commission pay the reasonable costs of purchasing it. It may have been thought doubtful whether the ordinary meaning of ‘provision’ included the modification of something which the person already has. Paragraph (b) either enlarged or extending the ordinary meaning of ‘provision’ to also include the modification of a motor vehicle, or clarified that it did so. It does not follow from that enlargement or clarification that ‘rehabilitation service’ in paragraph (a) excluded the purchase of a motor vehicle.
This conclusion is supported by the prefatory words in paragraph (b) ‘without derogating from the generality of paragraph (a)’. The expression ‘without derogating from the generality' is typically used to avoid the risk that express reference to particular items might imply that the more general class of items should be construed more narrowly than its ordinary language would suggest. The use of the combined phrase ‘without derogating from the generality of paragraph (a) includes’ indicates that the particular instances of rehabilitation services mentioned in paragraph (b) are set out to make plain what may otherwise have been uncertain.[13] They are specified without any necessary intention to enlarge — but expressly with no intent to limit — the broad category of instances set out in paragraph (a).
[13]See the explanation of the expression set out by Wells J in Hollow & Kay v State Planning Authority (1981) 27 SASR 34, 39.
Second, although the current definition of rehabilitation service does not expressly mention car or motor vehicle at all, the general terms ‘appliance’ or ‘apparatus’ are of sufficient width to embrace a motorised vehicle whether of the kind falling within the definition of ‘motor vehicle’ or otherwise. In our view there is no reason to think that the definition of rehabilitation service in 1987, as now, did not include the possibility of the purchase of a motor vehicle, being an appliance or apparatus, if its provision was for the purpose of rehabilitation.
Third, we reject the Commission’s submission that ss 60(3) and (3A) constitute a coherent code dealing exhaustively with its liability to pay for costs associated with motor vehicles. The fact that the subsequent additions to the Act of these provisions established the Commission’s liability to pay for the modification to, or the purchase of, a motor vehicle without condition as to its purpose, does not undermine the construction of s 60(2) as a source of liability to fund the purchase of a motor vehicle for the express purpose of rehabilitation. In other words, there is nothing in the history or structure of the Act which suggests any lack of logic or coherency with the Legislature creating both:
·a general liability to pay for broad categories of tangible objects which includes, if it suits the purpose, a motorised vehicle (whether it is a defined ‘motor vehicle’ or not) and intangible services to meet a specific rehabilitative purpose; and
·a particular liability to pay for the modification or purchase of a defined ‘motor vehicle’ without the limitation of any expressed purpose other than it is ‘reasonably’ required.
Rather, the legislative history suggests that Parliament’s intent was to enable the provision of a motor vehicle (by purchase or modification thereof) harnessed to the specific purpose of rehabilitation. Later it decided to create a liability to provide for a motor vehicle for a use that was not confined to a rehabilitation purpose. That sequence does not give rise to the implication that Parliament intended to discard the obligation to make provision for a motor vehicle for an identifiable rehabilitative need.
Finally, the second reading speech introducing amendments is of no real assistance. The Minister speaks of a legal opinion about the construction of the legislation as it then existed which, in our view, was incorrect. It does not here advance the question of construction which must depend upon the language of the provisions.
(3) Does s 60(3A) create a liability for the purchase of only one vehicle?
There appears to be considerable force in the Commission’s contention that s 60(3A) creates a liability for the purchase of only one motor vehicle. Given the proper construction of s 60(2), we do not consider it necessary to finally decide whether s 60(3A) should be so construed. We do not however accept the submission advanced by Mr Hogan that one should read into sub-s (3A) the qualifying words which appearing in italics:
If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle for a particular purpose, and he or she does not have access to such a motor vehicle, the Commission is liable …
Those words are said to reflect Parliament’s implicit intention, that the Commission is liable to purchase as many vehicles as there are purposes for which an injured person reasonably requires access to a specific type of vehicle. The Commission’s argument, conversely, was that the use of the indefinite article in the expression ‘a motor vehicle’ appearing three times in the subsection meant, on its natural construction, that the Commission was liable to purchase only one vehicle and that there is no warrant for implying reference to any purpose in the text. To do so would amend rather than give effect to the construction of the provision.
Whatever be the proper construction of sub-s (3A) the three conditions which must exist before words may be ‘read into’ a statute have not been satisfied. In DPP v Leys[14] this court identified those requirements, quoting a passage from the judgment of McHugh JA in Kingston v Keprose Pty Ltd:[15]
First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
[14](2012) 296 ALR 96, [57].
[15](1987) 11 NSWLR 404.
In our view none of those three conditions can be satisfied in this instance to justify reading into the subsection the words which Mr Hogan suggests.
Assuming without deciding that the Commission’s liability is limited under sub-s (3A) to one vehicle, such a limitation does not affect its liability to pay the reasonable costs of a rehabilitation service under s 60(2). It is therefore necessary to determine whether that obligation may require the provision of a Polaris for rehabilitation purposes.
(4) Is the provision of a Polaris the provision of a ‘rehabilitation service’?
We have said that there is no dispute as a matter of fact that the provision of a Polaris to Mr Hogan will achieve a rehabilitation effect. Neither is there any challenge to the test as formulated in GC Wood & Son (Aust) Pty Ltd v Cullen[16] in relation to the expression ‘rehabilitation’. That is, rehabilitation comprehends not only restoration to former health but also restoration partially or completely to a better condition.
[16][1991] 2 VR 214.
The Commission first argued that the words of the definition should be confined in their meaning by reference to whether the things 'directly work' to restore the person to a better condition. To explain that concept it drew upon what was said recently by Edmonds J in Comcare v Heffernan[17] when rejecting a claim under the Safety Rehabilitation and Compensation Act 1988 (Cth) that the supply of a modified motor vehicle was 'medical treatment'. That expression was defined in the Act to mean, amongst other things, the supply of 'an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or apparatus'. In overturning the Administrative Appeal Tribunal’s acceptance of the claim, Edmonds J said one of the errors the tribunal made was to reject a test of what constituted an ‘aid or apparatus’ in that setting based on the ‘inherent nature character or attributes of an item’ and, instead, embrace one based on ‘use and result’ — ie whether it had been used for the purpose of providing assistance to a disabled person, and in fact did so.[18]
[17][2013] FCA 299.
[18]Ibid [24].
While such a criticism may have been appropriate in the context of that specific statutory test, in our view the language of the definition in that case is materially different to the language employed in the definition of ‘rehabilitation service’. Importantly, the Commonwealth provision concerns a ‘treatment’; the Victorian provision concerns a ‘service’. In the Commonwealth Act, the words ‘aid or apparatus’ are subject to the adjectival phrase ‘medical, surgical or other similar’. The Victorian Act has no such adjectives. The limitation employed in the latter Act is that the provision of ‘any aid…appliance, apparatus or other service’ must be ‘for the purpose of rehabilitation’. So the very ‘use and result’ test eschewed by Edmonds J in Heffernan is quite closely aligned to the text of the Victorian provision.
The words ‘aid’, ‘appliance’ or ‘apparatus’ construed beneficially are sufficiently wide in ambit to embrace a ‘motor vehicle’ — especially the word ‘apparatus’, one of its meanings being ‘machinery’.[19] Heffernan’s case contains a useful collection of authorities that support that view.[20] But there is no indication from the text of the Victorian provision, in context with the whole of the Act, that whether something is an ‘aid’, ‘appliance’ or ‘apparatus’ appearing in the definition of ‘rehabilitation service’ should be assessed by reference to the test posited in Heffernan, namely that it must inherently have rehabilitative attributes or character.
[19]See Macquarie Dictionary (University of Sydney, 4th ed, 2008).’1 an assemblage of instruments, machinery, appliances, materials, etc., for a particular use.’
[20]Ibid [14] referring to Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318, 332; Re Monk and Comcare (1996) 43 ALD 677.
We also reject the Commission’s submission that the Polaris would not directly restore the respondent to a better condition as it cannot be used to regain function or minimise impairment. It was not in dispute that the Polaris would significantly benefit Mr Hogan. It would enable him to resume a recreational activity that was important to him thereby increasing his level of independence. It would, as the occupational therapist opined, further advance his overall rehabilitation program.
The Commission further submitted that a service cannot qualify as a rehabilitation service unless it is the subject of a structured program.
The Commission relied strongly on a statement made by Deputy President McNamara (as he then was) in Keler v Transport Accident Commission[21] in relation to what constitutes ‘disability services’ as defined under the Act. Under s 60(2) ‘disability services’ are also services for which the Commission may be liable. The Deputy President acceded to the Commission’s argument in Keler that for a service to qualify as a disability service under the Act it must have been the subject of preliminary approval and must be the subject of some form of structured program.[22]
[21][2002] VCAT 445 (‘Keler’). See also Ward-Twaites v TAC [2002] VCAT 423; Bekker v Transport Accident Commission (General) [2010] VCAT 1265.
[22]Keler [2002] VCAT 445, [24].
‘Disability service’ is defined in s 3 of the Act in the following way:
disability service means 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.
Disability services and rehabilitation services have in common that they both must be an authorised service in accordance with s 23 of the Act. Section 23 of the Act provides that the Commission may authorise services to be disability services or rehabilitation services; such authorisation must be given before the services are provided and be in writing; and a decision to refuse authorisation may be reviewed at the Tribunal.
Other than that common feature, the definition of a disability service differs from a rehabilitation service in an important respect. A disability service is only defined in terms of a relationship between the expression ‘service’ and another objective, eg ‘community access’. By contrast, ‘rehabilitation service’ is defined primarily by reference to the provision of certain defined things such as an appliance or activities such as counselling, and the particular objective of rehabilitation. In that respect, a ‘rehabilitation service’ is more refined in its conception.
We are not persuaded that the remarks of the Deputy President in Keler in respect of disability services are apt to be applied in relation to the definition of rehabilitation services. The Deputy President considered the requirement that there be a preliminary approval process with respect to both rehabilitation and disability services and distinguished those services from those which did not require preliminary approval. He reasoned that preliminary approval implied the need for some sort of structured program to be delivered by the particular provider of the services, not merely the ad hoc provision of a mere transport service as was sought in that case.
Whether or not the qualification of a structured program should be attached to disability services under the Act, we do not consider that it is appropriate to imply such a qualification with respect to rehabilitation services. To superimpose the concept of a ‘structured program’ on a service which is intended to engender independence for the injured person — and thereby produce the rehabilitative effect — may, in an instance such as the present one, be counterproductive and undermine the very intent lying behind Parliament’s provision for rehabilitation services.
When the Commission considers whether authorisation for a service should be given under s 23, the notion of a rehabilitation service is to be considered by reference to the elements in the text of its definition. More is not called for. It is unnecessary and inappropriate to impose some further framework to give measurable content to the notion of the service.
It is not in any event as if the service which is proposed in this particular case is devoid of any framework or structure. The Polaris vehicle has been assessed for its suitability to fit the purpose; modifications to the vehicle are to be made under the auspices of a qualified occupational therapist; and the rehabilitative effect has been identified with suitable particularity.
Given that the rehabilitative effect of the provision of the Polaris is not challenged by the Commission; that the Polaris does fall within the expressions ‘aid’, ‘appliance’ and ‘apparatus’; and that there was no issue whether the cost of the provision of the Polaris was ‘reasonable’, there was no error in Croft J’s conclusion that the provision of a Polaris was a ‘rehabilitation service’.
For these reasons the appeal must be dismissed.
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