WBJM and Comcare
[2015] AATA 143
•13 March 2015
[2015] AATA 143
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5411
Re
WBJM
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 13 March 2015 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
Compensation – Liability accepted for incapacitation caused by workplace injury – Segway provided to applicant – Cost of insurance for Segway – Insurance not medical treatment – Insurance not aid or appliance – No express provision in legislation made for insurance – Respondent not authorised to pay for insurance – Reviewable decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16; 39
CASES
Heffernan v Comcare (2014) 218 FCR 1
REASONS FOR DECISION
Senior Member Bernard J McCabe
13 March 2015
Parliament did not know anything about the Segway when it passed the
Safety, Rehabilitation and Compensation Act 1988(Cth) (“the SRC Act”). In these litigious times, the user of a device like a Segway is exposed to the risk of being sued if a third party is injured or property is damaged in the event of an accident.
Comcare provided the applicant in this case with a Segway after he was incapacitated by a workplace injury. It has been a success, but the applicant thinks it prudent to insure against the risks he faces. Who should pay the cost of insurance premiums?[1] That is the question I must deal with.
[1] Or at least so much of the premiums payable under his household contents insurance policy that are attributable to coverage in respect of the Segway and any liability which might arise out of its use.
While Segways were unanticipated in 1988, questions about liability from the operation of potentially dangerous appliances like Segways – or guide dogs or assistance dogs, for that matter – were not wholly beyond Parliament’s ken. Yet the SRC Act does not directly address the question I must answer. The answer must be divined through a process of statutory interpretation. Comcare says it does not have the power under the SRC Act to pay monies in respect of insurance premiums in these circumstances, and it has on that basis determined it is not liable to pay the costs. It is right, for reasons I will explain.
Why would Comcare pay for a Segway in the first place?
Segways are a new generation of personal mobility device. They can be used by anyone. While Segways are often used for recreational purposes, they can be of particular value to individuals who have experienced a workplace injury that restricts their mobility.
The Segway may offer such a user a means of moving about that is more flexible than a scooter or a motorised wheelchair.
The applicant in this case experiences an underlying health condition that was aggravated as a result of his work. The aggravated condition stopped him from getting around as freely as he could before. Comcare accepted liability for the aggravated condition and then agreed to buy the applicant a Segway so he could return to work and move about. The initiative has worked well, by all accounts.
Comcare says its decision to buy the Segway was made under s 39(1)(e) of the SRC Act, which authorises it to compensate the employee in “such amount as is reasonable in respect of the costs, payable by the employee, of… any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances”. Comcare accepts a Segway is an aid or appliance and that it is reasonable in the circumstances of the case to pay the cost of acquiring the Segway. It has met the cost of repairs to the Segway (including the supply of spare parts). It has also met the cost of acquiring a crash helmet which must be worn while operating the Segway in a public place. Comcare says the crash helmet is itself an aid or appliance, and is in any event an integral part of the Segway (even though it is acquired separately) because the law requires that a helmet be worn by the user.
The decision to pay for the Segway, the cost of its repair and the cost of the helmet is not before the Tribunal. These proceedings focus on whether Comcare should meet an additional cost – namely, the cost of insurance.
Should Comcare now pay for the cost of insuring the Segway (including insurance against risks associated with its operation)?
The applicant uses the Segway every day to move about within the workplace and in the course of daily living. He used it to travel from his place of work to the hearing. But he says the risk of some sort of accident is always at the back of his mind. Segways can travel at reasonable speed. It is not hard to see how another person might be injured, or property damaged, in the event of a collision.
The applicant spoke with a number of insurance companies about his concerns. He said he could not insure the Segway on its own. But he was told he could get the Segway insured (at least while it was at his home) under a household contents insurance policy. That policy would also include public liability cover that may protect the applicant in the event of an accident involving the Segway. The premium quoted to the applicant on
26 November 2014 was $345.26. Mr Dubé, for Comcare, explained the insurer was unable to say precisely how much of the premium related to the risks attaching to the Segway.
That is a practical obstacle to working out a particular amount that Comcare might be called on to pay, but I must first decide whether Comcare is liable to make the payment. That necessitates a closer look at the legislation.
The SRC Act authorises Comcare to compensate the injured worker for the cost of reasonable medical treatment under s 16. The Act also authorises Comcare to meet the reasonable cost of aids and appliances under s 39. I have already noted Comcare made its determination to accept liability for the cost of buying the Segway with reference
to s 39. I will return to s 39 shortly. But I will first explain why s 16 does not assist the applicant.
There have been a number of a cases – most obviously the decision of the Full Federal Court in Heffernan v Comcare (2014) 218 FCR 1 – that discuss the importance of distinguishing between medical treatment for the purposes of s 16 on the one hand (which includes “a medical, surgical or other similar aid or appliance” within the meaning of s 4(1)(f), or a “curative apparatus” within the meaning of s 4(1)(h)) and
aids or applianceswithin the meaning of s 39(1)(e). I am satisfied the Segway used by the applicant is not part of a course of medical treatment. It is not intended to make him better: it does not perform any therapeutic or curative purpose. The device is intended to help him cope with the incapacity occasioned by his work-related health condition, not provide a remedy for the condition itself. It is a classic example of an aid – in the applicant’s case, an aid to mobility – within the meaning of s 39(1)(e).
Comcare goes further in its argument over s 16. It says it can only pay for the insurance in respect of the Segway under s 16 if one can argue the insurance policy itself is a form of medical treatment. It would be odd if insurance were seen in that way.
Happily, I do not need to reach a concluded view as to whether an insurance policy can ever qualify as medical treatment within the meaning of s 16 given I am not satisfied the Segway itself is capable of being regarded as medical treatment in the circumstances of this case.
That brings me back to s 39(1)(e). Comcare says an insurance policy is not itself an
“aid or appliance…required by the employee” within the meaning of the legislation.
That is true, as far as it goes. An insurance policy is a chose in action – a contractual right against an insurer to provide cover against identified risks. It is not the sort of thing that plays the sort of role contemplated by the expression “aid or appliance”.
It only makes sense to talk of insurance in this context on the basis that insurance necessarily forms part of the aid or appliance required by the incapacitated employee – that is, a part of the Segway itself. That argument might be attractive if the user of a Segway were legally obliged to hold insurance in the way that he or she is obliged to wear a safety helmet. (Recall Comcare paid for the applicant’s safety helmet even though a safety helmet is not an “aid or appliance…required by the employee” except in connection with his use of the Segway.) But there are still questions in that event. Comcare argues s 39(1)(e) does not explicitly authorise Comcare to expend money on the operating costs of aids or appliances. The applicant did not suggest Comcare should pay for the electricity used to recharge the Segway’s batteries, for example. Mr Dubé, for Comcare, suggests the sub-section focuses on Comcare’s obligation to pay for the costs of acquiring and repairing and replacing the apparatus, not operating costs.
The legislation does not, on its face, distinguish between the costs of operating the device and the cost of its acquisition. That distinction can probably be inferred from the fact the sub-section specifically refers to the expense of replacing or repairing the item as an example of such a cost. That reference arguably lends colour to – and limits – the word costs. The costs in question are essentially what taxpayers would refer to as capital expenses. If the legislation were intended to cover operating costs as well, Parliament would have added language like “costs incurred in the operation of…” the device.
As it happens, I do not need to decide whether the cost of compulsory insurance would be considered an integral part of the aid or appliance so that it might be covered
under s 39(1)(e). The insurance in this case was an optional extra. It certainly does not form an integral part of the aid or apparatus.
CONCLUSION
The applicant is probably right to worry about the risks associated with operating a device like the Segway. Not because there is anything wrong with, or inherently dangerous about, Segways: rather, it is because our society has become increasingly risk averse (although, to be fair, the cost of repairing almost anything – like the panels of a motor vehicle that might be accidentally scratched or dented in a collision with a Segway – can be significant).[2] Members of society are more likely to demand protection from even minor risks through recourse to insurance, if not the courts. The uninsured literally take the risk of exposing themselves to significant liability for what once might have been thought of as the exigencies of life.
[2] Segways are not road vehicles, of course: if they were, they would be obliged to carry insurance. They usually operate on pedestrian thoroughfares. But it is still easy to imagine circumstances where a Segway operator might make a misjudgement that results in him or her colliding with a parked vehicle, or running into a pram or a pushbike, or – worse still – running over someone’s foot or knocking them down. Any one of these mistakes could prove expensive to the uninsured.
The SRC Act was introduced before devices like Segways were invented. The SRC Act does not make express provision for insurance costs to be covered by Comcare
under s 39. Perhaps Parliament should have done so; but that does not help the applicant in the present case under the law as it stands.Comcare is not authorised to pay for the insurance in respect of the Segway and its operation under either s 16 or s 39 of the SRC Act in the circumstances of this case.
The decision under review must be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 13 March 2015
Date of hearing 4 March 2015 Applicant In person Counsel for the Respondent Mr B Dubé Solicitors for the Respondent Sparke Helmore Lawyers
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