Clampett v Workcover Authority of NSW

THE STATUTORY BASIS 7 As at the relevant time of judgment in the Compensation Court, s59 provided: "59. Definitions (………) In this Division: …………………. Medical or related treatment includes: ………………….. (f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity. (g) the modification of a worker's home ….. directed by a medical practitioner having regard to the nature of the worker's incapacity, …… :" 8 Section 60 provided: "60 Compensation for cost of medical or hospital treatment and rehabilitation etc . (1) If, as a result of an injury received by a worker, it is reasonably necessary that: (a) any medical or related treatment be given … ………………. the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service …. …………………….. (3) Payments under this section are to be made as the costs are incurred, but only if properly verified. " 9 It can be observed in passing that, although not applicable in the present appeal, amendment to the Act with effect from 6 December 2001 inserted an additional inclusion to the definition of medical or related services in s59, namely " (f1) domestic assistance services" and a qualification to medical or related services in s60(1) "(other than domestic assistance)". Particular provisions are made for compensation for domestic assistance services in a new s60AA.

THE HEARING IN THE COMPENSATION COURT 10 No doubt with s60(3) in view, it was agreed by the parties that the trial should proceed for the purpose of findings being made as to whether proposed expenditure was "reasonably necessary" and fell within ss59 and 60. The learned trial judge adopted this procedure and, having made certain findings, stood the matter over for future mention, granting liberty to apply. Similar procedure was acknowledged with approval in Tennyson Textiles Pty Limited v Telicki 1961 NSWR 171 especially per Walsh J @ pp 178-9. 11 It was contended by the appellant that the judgment in denying his claims in part was not interlocutory. Although I do not find that contention convincing, argument was not advanced in the light of the respondent's stance that leave (if necessary) was not opposed and it was granted accordingly.

MODIFICATIONS - GROUNDS 1 and 3 12 These grounds were expressed:

"1. When holding that the home renovations, as claimed, were not reasonably necessary, His Honour erred in law by holding that the Appellant's interest as a tenant rather than owner of the premises to be renovated and the possibility that the Appellant could be ejected pursuant to NSW Department of Housing policy led to an inescapable conclusion that the home modifications were not reasonably necessary.

3. When holding that an increase in personal care attendance was not reasonably necessary, His Honour erred in law because this holding was a direct outcome of His Honour's rejection of the claims made by the Appellant for the cost of modification of the Appellant's home, which involved the errors of law set out in Ground 1." 13 As mentioned, the proposed modifications were detailed in documentary and oral testimony from a Mr Hardiman. His Honour found the requirement for direction by a medical practitioner fulfilled from the evidence of Dr Yeo. He rejected the respondent's submission that the proposal amounted to transformation in distinction from modification, and as well he rejected submissions founded upon the risks of council's refusal or imposition by council of conditions. He rejected a submission that the proposal should be regarded as "unreasonable" because in some respects it may have been possible to do something more modest. His Honour's findings on these issues were not challenged. 14 The express basis for rejection of the appellant's claims for modification is to be found in his reasons at par 24 when he observed: "There is an obvious problem, which was raised with the parties early in the proceedings about spending such a large sum of money on a property held on a weekly tenancy. How can it be reasonable?" 15 There was a costing estimate by Mr Hardiman of $238,724. 16 And at par 33 of the judgment: "However it seems to be inescapable that to spend the amount proposed on premises in which the applicant has an interest only as a weekly tenant is not reasonable and hence the house modifications are not reasonably necessary." 17 Two significant issues arise in connection with the approach manifest in those citations from his Honour's reasons. First, the relevance, if any, of tenure in the construction of the phrase "a worker's home" where it appears in s59(g) and second, the meaning of "reasonably necessary" where it appears in s60(1).

"REASONABLY NECESSARY" 18 His Honour sought guidance from two decisions of Burke CCJ dealing with the expression (it also appeared in s10 of the Workers' Compensation Act 1926) namely Rose v Health Commission 1986 2 NSWCCR 32 and Pelama Pty Limited v Blake 1988 NSWCCR 264. 19 In his application of that guidance he looked at a combination of tenure of the property and the amount intended to be expended and stated: "But the problem remains that what is sought is an order compelling the respondent to pay nearly $240,000 to modify a house from which the application (sic) can be ejected pursuant to Department policy on 7 days notice. I regret that such expenditure does not in the circumstances seem to me to be reasonable. That the applicant should rely in submissions on the threat of political action if there was any threat to his occupancy of the house points up the problem." 20 It is convenient to observe at this point that the appellant could also rely upon protections vested by the Residential Tenancies Act 1987 with reference in particular to categorization of his lease under that Act as a lease of "social housing premises". In short, he had legal recourse available to him as well as the political recourse referred to by his Honour. His Honour made reference to correspondence between the appellant's solicitors and the Department of Housing. A document (Exhibit L) to which he specifically referred as setting out the Department's policy was misconstrued in his conclusion that "only minor modifications are contemplated by the document". The misconstruction was not in that observation but in failing to recognize that the document related to modifications to be paid for by the landlord and not to those which may be paid for by the tenant. 21 He also recited part of the content of a letter in which it was stated that allowing the appellant to remain in the property was "in keeping with department policy at the time". In the same regard submissions were made to this Court by the respondent that the appellant was vulnerable to ejection according to the whims and fashions of impermanent governments and their instrumentalities. A complete analysis of the issue should have included attention to a separate letter from the department in which a response to express inquiry was "… as long as (the appellant) is not in breach of his lease there should be no reason for the Department of Housing to ask him to leave". However, as I shall later elaborate, in my view the question of tenure is of limited significance, relevant only to establishing whether particular premises are "a worker's home" within the meaning of s59(f). 22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Edn and "that cannot be dispensed with" - Macquarie. 23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context. 24 The statute does not inhibit inquiry as to what may be thought reasonable in all of, or in any, particular circumstances but its terms clearly point to predominant attention being paid to the nature of the worker's incapacity. In my opinion, to reject the appellant's proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of "necessary". 25 I do not consider that it is practicable to place defined boundaries about the surrounding circumstances which may relevantly be contemplated but the governing concept should be the appropriateness of any proposal having regard to the nature of the worker's incapacity.

"A WORKER'S HOME" 26 "Home" is a word which can be used in multiple senses but the context makes it clear that it refers to a dwelling in which the worker habitually lives and regards as his proper abode. I shall refer to this in another context later. The terms upon which possession of a dwelling is held may be relevant to establishing that the premises are such proper abode or to rebut any suggestion that they are no more than temporary shelter, or transitorily occupied or the like. 27 It is apparent that considerable attention was devoted at trial to the tenure of 10 Yethonga Avenue and the weekly tenancy became central to his Honour's conclusion. However, in my view, the inquiry required by the statute is as indicated above, namely, are the premises to which modification is proposed "the worker's home", that is, is it his habitual and proper abode. 28 An implication of the respondent's contention was that, if modifications were done and the appellant's lease was terminated (by either party) applications might subsequently be made to modify other premises as well. That speculation would be available in respect of any premises in the sense that even the holder of an estate in fee simple might quit them by choice, by compulsory acquisition for some public purpose authorized by statute, or by default under a mortgage. Those examples are not intended to be exhaustive. If the mere possibility of change of abode prevented modification from being "reasonably necessary" it is difficult to contemplate that an order could ever be made and that clearly was not the intention of Parliament. 29 The learned trial judge did not address the question whether the premises at Lane Cove were "the worker's home" within the meaning of s59(g) but directed his attention to the security of his tenure thereat.

GROUNDS 1 and 3 SUSTAINED 30 For the foregoing reasons I would find Grounds 1 and 3 made out. Because of the approach taken by his Honour, he did not address whether the proposed modifications were reasonably necessary in terms of their major ingredients, save items (air conditioning and door lock systems) which he did treat individually in favour of the appellant. It is understood to be the desire of both parties that, should the appeal succeed, the matter be returned to the Compensation Court in order, inter alia, for such assessments to be made. The practicality of that course is confirmed by observation that no such work could take place until local council approval has been given and in any event, payment is not required to be made until costs have been incurred and verified: see s60(3).

GROUND 2 - LAWN CARE AND HANDYMAN 31 Ground 2 is in these terms:

2. When holding that the landscaping lawn mowing and handyman were not reasonably necessary, His Honour erred in law in holding: (a) such services were not capable in law of being "care of a worker" even though lawn mowing and handyman work was too heavy for the Appellant to perform. (b) such services were not capable in law of being care of a worker "in the worker's home" because the services were being performed not inside the house but outside in the surrounds or yard of the home. 32 Relevant to these grounds his Honour determined: "Landscaping 44. In reality this is a claim for lawn mowing. A claim of this type was made and rejected in Perrott v Lower North Coast Area Health Service (1997) 14 NSWCCR 164 because the work did not involve care of the worker in her own home. 45. Similarly housekeeping work which was too heavy for the worker was not allowed in Western Suburbs Leagues Club v Everill (2001) NSWCA 56. (Now reported 2001 51 NSWLR 435). Once again the claim was rejected because it did not involve 'care of a worker'. 46. It seems to me that this item is not within the scheme provided for in sections 59 and 60 and should not be allowed." 33 The claim for handyman services was rejected as being similar in substance. 34 Although his Honour's reasons do not precisely sever the concepts in this fashion, the appellant's challenge was based upon the two propositions set out in the ground. In short, first, that the cutting of the grass was preventative of disease and further injury and therefore should be categorized as "care of the worker in the worker's home" and, second, that "the worker's home" included the garden and lawn area and was not limited to the dwelling house. 35 I have little difficulty in accepting the latter proposition. In The Will of Rayner 1928 Tasmania LR 41 a testator left to his adopted daughter "the home". He had lived in a cottage with her on five and half acres of orchard land. Nicholls CJ said: "In ordinary usage 'home' includes more than 'house'. Primarily, it means the place where one dwells, and is so expansive as to refer to one's country. On the other hand, its meaning often is so contracted as to include nothing but a room. Again, it is continually used to indicate the whole circle of persons and things which make up what is called the 'household'. In my opinion what the testator meant by it was his house and certainly something more; certainly some of the land around it, and, as he has given no indication of any intention to exclude part of his small orchard and garden, I cannot but think that he meant to give the whole of it with the house and to give Jean Triffitt the fee simple of the 5½ acres. If he had not, he would have used some restrictive phrase." 36 The statute, it may be observed as comparison, introduces no such restrictive phrase and I would construe the expression "the worker's home" to include the yard and garden area surrounding the house at Lane Cove. 37 The first proposition is sought to be supported in this way. There is unchallenged evidence from Mr Clune of IVEY ATP (Agricultural and Management Consultants) that unkempt lawn may harbour undesirable pests that can prove a health risk. These include spiders, mosquitoes, snakes, ticks and rodents, including rats and mice. The appellant is, as a result of his injury, lacking sensation in his lower body from the mid chest level and may not become aware of attack or invasion by such pests. Mr Clune is supported by Dr Yeo who, although disclaiming authority on whether snakes and rodents would increase in long grass at Lane Cove, emphasized that hygiene in and around the house was important because the appellant was more prone to infection than an uninjured person and he added that it was also psychologically important that his environment should be neatly and tidily maintained as a factor in his general feelings of worth and wellbeing. 38 The opinions to the above effect may be regarded as accepted but the question to be asked is whether the keeping of the lawn is "care (other than nursing care)" of the worker. I have already indicated that if it is in that category I would consider it to be "in the worker's home". 39 In Hugo v Coles Myer Limited, Compensation Court, unreported 25 July 1989, McGrath CCJ, the Chief Judge considered two forms of assistance, the second being the cleaning of a house in which the worker resided, the cooking of meals and household tasks. He held that such were not within the category of definition being rather, as he described it, "replacement of the applicant as a wife and mother". In Perrott v Lower North Coast Area Health Service 1997 15 NSWCCR 164 Neilson CCJ referring to Hugo and other cases, rejected a claim for mowing of lawns and maintenance of a garden on the basis that was outside the scope of the provision. He noted however a decision in Magick v Department of Health, Compensation Court, unreported 20 May 1997 where Geraghty CCJ found that a worker needing regular doses of morphine, and unable to dress, prepare meals or do any cleaning work was receiving services which were care for herself. This led Neilson CCJ to comment in Perrott (@ p169): "Even his Honour Judge Geraghty, who appears to have been more generous than others, would clearly distinguish between mere care of the house as he did, and this case of course is care of the curtilage upon which the house occupied by the worker stands." 40 As I have already said, I do not think that determination can turn upon some distinction between house and curtilage. 41 However, in Currall v South Eastern Sydney Area Health Service, Compensation Court, unreported 6 September 2000 Armitage CCJ allowed a claim for home care activities. Referring to Magick his Honour said: "In this way his Honour distinguished Hugo and Watkins . I agree respectfully with his Honour's approach. When one looks at the definition of 'care' as a noun in the Concise Oxford Dictionary which relevantly reads 'provide for; look after', it is apparent in my view that the concept of 'care' is not limited to care for the person of a worker; it includes also care for his or her immediate home surroundings in a way that is medically required to preserve his or her health. That is so here, and as I have said I respectfully decline to follow Hugo and McMahon ." 42 Watkins v Southern Sydney Area Health Services, Compensation Court, unreported 12 December 1996 and McMahon v Transdominion Holdings Pty Limited, Compensation Court, unreported 8 September 1997 were both decisions of Neilson CCJ in which he adopted approaches similar to that which he had in Perrott. 43 It should also be mentioned that in Harbison v Harbison 2000 19 NSWCCR 548 Armitage CCJ observed @ 574: "Bishop J also noted in passing that Neilson J has commented in Chen v Sivieng , NSWCC, No 17252/96, 22 April 1998, unreported, that the principles in Rose probably require a variant, in that treatment is within the section if it maintains the worker's state of health or slows or prevents its deterioration. Bishop J agreed with this qualification and with respect, so do I." 44 All of the above decisions pre-date the decision of this Court in Western Suburbs Leagues Club (Illawarra) Limited v Everill 2001 51 NSWLR 435. This was a claim for household help and domestic assistance sought to be brought within the definition of care under s59(f). Handley JA (Priestley and Meagher JJA agreeing) said @ p439: "The injury created need for these services is a necessary, but not a sufficient, condition for the allowance of their cost under s59(1). The services must also involve 'care of a worker'. Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd showed that the cost of domestic assistance for an injured worker could not be recovered under the Act as it then stood. Parliament then made additional provision for injured workers, but stopped short of creating a right to domestic assistance or household help as such. There would have been no difficulty in conferring a right to recover the cost of domestic assistance if that had been the intention of Parliament. In these circumstances s59(1) should not be interpreted as conferring such a right. The worker who is unable to look after herself either at all, or without suffering unacceptable pain, is entitled to the cost of personal care and that much is clear. On the other hand she will not be entitled to the cost of providing care for others and she will not be entitled to the cost of domestic assistance or household help as such. Questions of fact and degree may arise but this does not justify an application of s59(1) which treats it as authorising allowance for household help and domestic assistance as such when this cannot be characterised as care for a worker. Work which cannot be characterised as care for a worker does not become such merely because the injured worker cannot continue to do it without unacceptable pain or the risk of aggravating the injury." 45 The approach in Hugo was approved and those cases in which it was not followed have been diminished as authority accordingly. 46 Dealing with the meaning of "home", a written submission on behalf of the appellant reflected "it would be odd if a carer could provide care (for example, a glass of water or other assistance) inside the house and not in the backyard." I agree, but the further requirement of the provision is the care of the worker and, adopting the example, a glass of water is manifestly care of the worker, whereas the proposal in issue is just as manifestly care of the yard. I accept that the evidence showed that care of the lawn was potentially beneficial to the appellant, at least in a prophylactic sense, but it does not fulfil the basic criterion, that is, tending a lawn is not "care (other than nursing care) of a worker". 47 I would not sustain Ground 2. 48 My opinion on this issue is, of course, limited to the extent of reach of the definition in s59(f) and, since the hearing in the Compensation Court, it has become available to the appellant to seek remedy having regard to the extension of definition of medical or related treatment to "domestic assistance services" pursuant to the now legislated s59(f1).

ORDERS 49 Pursuant to s52 of the Compensation Court Act 1984 a matter may be remitted for determination in accordance with the decision of this Court but an order for remission would not inhibit amendment or addition to the claim if, for example, it were desired to seek remedy having regard to the supplemented definition provided by s59(f1).

(a) Appeal allowed. (b) The respondent to pay the appellant's costs of appeal. (c) Matter remitted to the Compensation Court for determination in accordance with this decision. **********

Last Modified: 03/21/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.