Wilby v Comcare

Case [2003] FCA 1381

FEDERAL COURT OF AUSTRALIA

Wilby v Comcare [2003] FCA 1381

WORKERS’ COMPENSATION – Commonwealth employees – member of armed services – compensation for attendant care services – whether services required for essential and regular personal care – whether costs associated with carers’ travel are compensable.

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Re Wilby [2001] AATA 739 referred to
Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 considered

ANDREW WILBY V COMCARE

N 941 OF 2003

BEAUMONT ACJ
28 NOVEMBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 941 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

ANDREW WILBY
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

BEAUMONT ACJ

DATE OF ORDER:

28 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order for costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 941 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

ANDREW WILBY
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

BEAUMONT ACJ

DATE:

28 NOVEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BEAUMONT ACJ:

INTRODUCTION

  1. This is an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) by Mr Wilby, who is a quadriplegic, having suffered serious spinal injuries and burns to his arms and legs on 30 June 1989 whilst serving in the Australian Army. On 3 August 1989, Military Compensation accepted liability to pay statutory compensation. The ‘appeal’ is brought as an application in the Court’s original jurisdiction, on a question of law only, from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of Comcare (Department of Veterans’ Affairs) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).

  2. In order to understand the present matter, it is necessary to refer to Comcare’s decisions and then to the Tribunal’s reasons, so far as presently relevant.

    COMCARE’S FIRST DECISION

  3. Comcare’s first decision was evidenced by a letter to Mr Wilby, dated 5 September 2002, materially as follows:

  4. The Delegate noted that Mr Wilby was ‘planning a holiday to South Africa ... [and was] seeking financial support in meeting the cost of taking two carers with [him]’.

  5. (Mr Wilby raised another issue, which appears to be no longer relevant.)

  6. With respect to the ‘Attendant Care Costs’  issue, the Delegate said:

    ‘[In] the AAT decision, Wilby and Comcare (2001) ... Mr K L Beddoe (Senior Member) declared that “extra expenses reasonably incurred by the applicant when carers accompany him away from home should be accepted as being for attendant care services coming within section 29(3) of the Act. Such additional expenses may include cost of meals and beverages reasonably incurred, additional travel expenses over and above the applicant’s personal choice expenditure, reasonably incurred and admission prices reasonably incurred”.

    In accordance with Section 29 ... attendant care costs…

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Details
AGLC
Wilby v Comcare [2003] FCA 1381
Case
[2003] FCA 1381
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Wilby v Comcare involved a dispute between Mr. Wilby, an injured employee, and Comcare, regarding the interpretation and application of compensation provisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the case focused on the reimbursement of attendant care costs that Mr. Wilby incurred while traveling, which he claimed should be compensated at a rate higher than the statutory maximum set by the Act.

The primary legal issue the court had to address was the interpretation of Section 29(3) of the Act, which outlines the compensation payable for attendant care services reasonably required by an injured employee. Mr. Wilby argued that the compensation should cover all reasonable expenses incurred by or on behalf of the carer, regardless of whether they exceeded the statutory weekly maximum. Conversely, Comcare contended that the compensation was limited to the statutory maximum per week, without any provision for averaging costs over time or accumulating savings.

The court examined the legislative provisions and found that Section 29(3) explicitly sets a weekly maximum for compensation payable for attendant care services, which cannot be exceeded. The court concluded that the statutory language did not support any form of averaging or accumulation of costs over time. Therefore, the compensation must be calculated on a weekly basis, with the maximum amount payable being the lesser of the statutory rate or the actual expenses incurred in that week. The court rejected Mr. Wilby’s argument that the statutory compensation could be adjusted based on prior or future expenses.

The court's decision affirmed the Delegate's earlier determination that Mr. Wilby was not entitled to compensation exceeding the statutory maximum for each week. The court held that the statutory language did not permit any averaging or accumulation of savings and that the compensation must be strictly adhered to the weekly limits set by the Act.

Consequently, the court dismissed Mr. Wilby's appeal and made no order for costs.

Orders

Orders of the court

1. The application be dismissed.

2. There be no order for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BEAUMONT ACJ
With respect to the ‘Attendant Care Costs’ issue, the Delegate said:‘[In] the AAT decision, Wilby and Comcare (2001) ... Mr K L Beddoe (Senior Member) declared that “extra expenses reasonably incurred by the applicant when carers accompany him away from home should be accepted as being for attendant care services coming within section 29(3) of the Act. Such additional expenses may include cost of meals and beverages reasonably incurred, additional travel expenses over and above the applicant’s personal choice expenditure, reasonably incurred and admission prices reasonably incurred”.In accordance with Section 29 ... attendant care costs (airfares, accommodation, meals, admission costs, etc.) can only be reimbursed at a maximum rate of $317.65 per week. Any amounts above this statutory maximum will not be payable under the [Act].This means that ... the amount of compensation payable for each individual week is the lesser of the maximum amount payable under section 29 or the amount of the additional expenses incurred by or on behalf of the carer in that week ... . As an example, if airline tickets and accommodation were pre-purchased for the carer/s at a cost of several thousand dollars and made as one payment, there would only be an entitlement to a maximum reimbursement of $317.65 against the cost of airfares and accommodation, which was incurred in the week in which this payment was made.’COMCARE’S SECOND DECISION Mr Wilby having requested reconsideration, another Delegate wrote to Mr Wilby by letter dated 20 September 2002, stating:‘In your previous AAT decision, it was accepted that extra expenses reasonably incurred by you when carers accompany you away from home, should be accepted as being for attendant care services coming within Section 29(3) of the Act.Section 29(3) of the Act, states:Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of: (a)$200.00 per week; or(b)an amount per week equal to the amount per week paid or payable by the employee for those services;whichever is lessThere is no provision under Section 29(3) to allow for a weekly payment of more than the maximum amount, which is currently $317.65 per week. It is clear from this Section that the amount payable is for expenses incurred per week. It can not be converted into a yearly allowance, and it does not make provision for the accumulation of savings when the maximum costs have not been incurred to be offset against periods when more than the maximum costs have been incurred.’THE PROCEEDINGS IN THE TRIBUNAL In his opening, counsel then appearing for Mr Wilby stated that the issue for the Tribunal was ‘simply’ the interpretation, in law, of the words contained in s 29(3). In his evidence in chief, Mr Wilby said that he had recently been on a ten day cruise, taking two ‘attendant carers’ with him. He paid for one ‘attendant carer’. The other was his brother-in-law. He claimed approximately $2,000 for the cruise, airfare, meals and accommodation and was reimbursed by the Department. (As will be seen, Comcare has at all times accepted that it is liable to compensate for the cost of twenty-four hour nursing care. However, as will appear, ‘attendant carers’ have functions which differ from nurses.)

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT ACJ

Mr Wilby’s grounds of appeal are then stated as follows:‘The Tribunal erred in law in being satisfied that the approach suggested by the Tribunal in Re: Wilby ... in relation to the cost of meals, beverages and additional travel is not consistent with the interpretation of the term “attendant care services” adopted in Haberfield ... and in being satisfied that the focus of the provision in [s] 29(3) of the Act is on weekly expenditure that does not provide for any averaging process to be employed.’CONSIDERATION(a) The legislative scheme Although most of the material provisions of the Act have already been cited, it is convenient to outline the material legislative scheme, including s 29(3) itself, as follows. Compensation is provided for by Part II of the Act (ss 14 – 33). By s14(1) it is provided that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in (inter alia) incapacity for work, or impairment. (As mentioned, Comcare has accepted statutory liability here.) Section 16 provides for ‘Compensation in respect of medical expenses etc.’. As has been stated, by s 16(1) it is provided that Comcare is liable to pay compensation of such amount as Comcare determines is appropriate, in respect of the cost of medical treatment reasonably obtained in relation to the injury. By s 16(6) and (7) Comcare is liable to pay compensation to the employee in respect of, inter alia, expenditure reasonably incurred by the employee in making a necessary journey for the purpose of obtaining medical treatment where compensation in respect thereof is payable. ‘Medical treatment’, as mentioned, is defined in s 4(1). It means (inter alia) ‘nursing care’. Injuries resulting in incapacity for work are provided for in Division 3 of Part II (ss 19 – 23). By s 19(2), it is provided that, subject to Part II, Comcare is liable to pay to the employee in respect of the injury, for each week that is a ‘maximum rate compensation week’ during which the employee is incapacitated, an amount of compensation worked out using the formula then specified. ‘Household and attendant care services’ are provided for by Division 5 (s 29) of Part II. Section 29(3) provides, as has been seen, that Comcare is liable to pay compensation of the lesser of $200 (or other indexed amount) per week, or an amount per week equal to the amount per week, paid or payable by the employee for those services where, as a result of an injury, the employee obtains reasonably required ‘attendant care services’. Those services are defined by s 4(1) to mean services that are ‘required for the essential and regular personal care of the employee’, but exclude first, ‘household services’ (themselves defined as services of a domestic nature (including cooking, house cleaning, laundry and gardening) required for the proper running and maintenance of the employee’s household). Secondly, medical and surgical services, as well as nursing care, are excluded.