[107] It was submitted that, if s 78 did not apply to gratuitous services, the reference in s 78 to 'attendant care services' would have no work to do, as 'the indemnity provision' which obliges the employer to pay for professional services of this nature is contained in s 73 (e). I do not accept that submission. First, s 78 is a special provision stated to apply to a worker 'who suffers or is likely to suffer a permanent or long-term incapacity'.
[108] Second, s 78 is wider than s 73. It is not confined to 'costs incurred by the worker', but obliges the employer to 'pay the costs incurred' for the matters set out in s 78(1) without limitation as to who has incurred those costs. This has obvious application to the case of payment for the cost of home and vehicle modification since the home or vehicle in question may belong to someone else[57] (for example a spouse or parents) and the modifications in question may (not necessarily will, but may) be paid for by someone else. However, there is no reason why it ought not to apply to 'household and attendant care services' as well, and extend to the case where costs are incurred by, for example, by a parent or spouse in providing or acquiring those services.
[109] Third, it would seem to me that, although there may well be some overlap between the services covered by s 73(e) and s 78, that area of overlap will be there whether s 78 is construed so as to cover gratuitous services or not: it is not contended that s78 covers gratuitous services only.
[110] Fourth, the submission contains a hidden assumption that there can be only one 'indemnity section', and if s 73 is it, s 78 cannot be. There is no warrant in the Act for any such assumption. The operative words in s 78 governing what the employer must do are in exactly the same terms as the operative words in s 73: both state 'the employer must pay the costs incurred', and go on to set out the various matters covered by each section. There is no more reason to suppose s 73 to be 'an indemnity section' than to suppose s 78 to be one. Put the other way, there is no less reason to suppose s 78 to be 'an indemnity section' than to suppose s 73 to be one.[58]
[111] In submissions before the learned appeal judge, and before this court, the respondent relied on s 78(2) which, it was contended, contemplates that, in order to advance the rehabilitation of the injured worker, it may be necessary for family members to provide 'household and attendant care services' which it would not be reasonable to expect them to provide without remuneration. Particular reliance was placed on sub-paragraph 78(2)(d)(vii) which provides that, in determining what are reasonable and necessary household and attendant care services in a particular case, there shall be taken into account (inter alia) the extent to which a relative of the worker might reasonably be expected to provide attendant care services to him or her. It was further contended that remuneration for such services would therefore represent 'a cost incurred' because it would not be reasonable to obtain these services on any other basis.
[112] In my view this conclusion does not follow from the stated premise. First, the obvious immediate purpose of s78(2)(d)(vii) is to provide guidance to a court in determining what matters fall within the expression 'the employer shall pay the costs incurred for such ... household and attendant care services as are reasonable and necessary for the purpose of this Division' (ie rehabilitation). Not all costs incurred for such services are to be paid by the employer; only those that are 'reasonable and necessary' for the stated purpose. To the extent that a relative might reasonably be expected to provide the service, then a cost incurred for that service will not be found to be 'reasonable and necessary': in the ordinary way, family members are expected to do some things for each other without charge. If a cost is incurred in providing services which a relative could not reasonably be expected to provide, then, by virtue of s 78(1), the employer must pay that cost, regardless of who supplies the services - a family member or a stranger. It does not follow that if such services are in fact provided gratuitously - ie without a monetary cost being incurred - the employer is nevertheless liable to pay to the worker an amount equal to the commercial value of those services.
[113] Second, I do not see that remuneration for gratuitously provided services can be said to 'represent a cost incurred' simply because it would not have been reasonable to obtain those services without paying for them. Either costs have been incurred in procuring the services, or they have not. Whether or not it would be fair or reasonable to pay for those services is not to the point; the point is whether there have been 'costs incurred' in the provision of the services which, by virtue of s 78(1), the employer must pay.
[114] The respondent also relied upon the context of the Act as a whole and contended that the construction of s 78 proposed by the respondent was more consistent with the objects of the Act than that proposed by the appellant. I do not agree. There is nothing in the Act to suggest that it is the object of the legislation to provide complete compensation to an injured worker for all the consequences of a work related injury. Quite the contrary: it is clear that the Act provides compensation limited to those matters set out in the various sections of the Act.
[115] For example, more or less complete compensation for lost income is provided for the first 26 weeks of incapacity[59]; thereafter, compensation for lost earning capacity is limited to amounts calculated in accordance with s 65 of the Act. There follow a number of sections limiting the circumstances in which amounts are claimable for lost earning capacity, and setting criteria for calculating the amount claimable.[60]
[116] Section 73 follows, pursuant to which the employer is made liable to pay the costs reasonably incurred by the worker as a result of the injury for the medical, surgical and rehabilitation treatment set out in the section as well as attendance by a nurse, or other person, where the disability is such that the worker needs nursing or personal attendance.
[117] This is followed by Division 4[61] which governs rehabilitation and certain other compensation payable in the case of long term incapacity. Sections 76, 77 and 78 all deal with additional compensation payable in the case of a worker who suffers or is likely to suffer a permanent or long-term incapacity. Section 76 provides that, in such cases, the employer shall pay the costs incurred for such rehabilitation, training and workplace modification as is reasonable and necessary for the purpose of Division 4[62]. Section 77 provides that, in such cases, in certain limited circumstances set out in that section, an employer shall pay to a worker any costs incurred by the worker (in excess of those which he or she would have incurred had he or she not suffered the incapacity) as are reasonable and necessary (again for the purpose of Division 4) to enable the worker to achieve reasonable mobility in the community. Section 78, with which we are concerned, provides that, in such cases, the employer shall pay the costs incurred for such home modifications, vehicle modifications and household and attendant care services as are reasonable and necessary (again for the purpose of Division 4).
[118] In my view, the construction contended for by the respondent, whereby the phrase 'an employer must pay the costs incurred for ... attendant care services' is extended to creating a liability in the employer to pay an amount equal to the value of gratuitous services provided to an injured worker, is not more consistent with either the purpose of the legislation or the scheme of the Act than a construction which simply applies the literal or plain meaning of the words in the section.
[119] I would allow the appeal on this ground.