Denton v Transport Accident Commission [2000] VSCA 221

Denton v Transport Accident Commission [2000] VSCA 221 - VSCA 2000 case summary — Zoe

[23]

I say immediately that that seems to me to put too much emphasis on s.35(3), at the expense of s.60(1). Section 35 is found in the division of the Act which deals with entitlement to compensation while s.60 is in the division describing benefits payable under the Act by the Commission. It may be accepted that the benefits described in division 3 are, in broad terms, simply an extrapolation of the compensation to which one may be entitled under s.35, but none the less s.60 is different, and significantly different I think, from the sections preceding it. The primary benefits provided by division 3 are weekly payments for loss of earnings, an impairment benefit for lost earning capacity (whether in the form of a lump sum or an annuity) and continuing weekly payments (in certain cases) for loss of earning capacity: see ss.44 and 45, ss.47 and 48, ss.49 to 51. In these sections the weekly payments are described as payable to "an earner who is injured as the result of a transport accident" or, in the case of s.50, to a non-earner, being a person who is injured as the result of a transport accident other than an earner or a minor. The impairment benefit is described as payable to "a person in respect of whom an impairment benefit is assessed under section 47", such an assessment being linked (by s.47) to the determination of the degree of impairment which is required (by s.46A) to be made "of each person who is injured as a result of transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit". In relation to these several benefits it is entirely understandable that there should be a general provision such as s.35(3) which in effect precludes the Commission's paying any compensation "to a person in accordance with this Act unless the person is entitled to compensation". Provisions such as ss.44 and 45, authorising the payment of compensation to "an earner", are sensibly made subject to the general provision in s.35(3) which operates by qualifying the Commission's liability to pay. At the very least the general provision made by s.35(3) must have simplified the drafting of all the benefit provisions to which I have just referred.

[24]

But, as I see it, s.60 is significantly different from the sections preceding it, in that it does not identify, however broadly or loosely, to whom the payment is to be made for which the Commission is made liable. Nor do I see any reason to imply from s.35(3) that payment must be made, in a case of injury, to the injured person. The services mentioned in s.60(1) will be supplied by a great range of providers and the Commission might well choose to make payments directly to such persons for any number of reasons. I see nothing against that course; nor do I see the need to attempt to justify such payments as, in effect, payments "to" the injured person when as a matter of analysis they might well be only payments "on behalf of" or "for" the injured person. It is true that paragraph (a) of s.60(1), if read separately from all context, is perfectly general in its description of the relevant costs save that the services to which they relate must be "received in Australia because of the accident". But the context is to be found in the first four lines of the subsection and it is sufficient. The liability is only to pay the costs then described "as compensation in respect of a person who is injured or dies as a result of a transport accident" and "in addition to any other compensation paid under this Act". So far as concerns paragraph (a) at least, that means in a case of injury that, if the Commission is to be liable under s.60(1) to pay the costs in question, the costs, which must be of services "received in Australia because of the accident" occasioning the injury, must also be such that their payment amounts to compensation "in respect of" the person injured in the accident and who is otherwise entitled to compensation under the Act because of the accident. Where that is so, there is no reason, I think, to require also that the costs be paid by the Commission only to the person injured. Nor is that inconsistent with the relevance of s.35(3) to other benefit provisions in division 3, as I have already described.

[27]

In order to establish the context upon which he relied for this proposition, Mr. Maxwell referred to a number of things, including the paragraphs of s.60(1) which follow paragraph (a). These, he submitted, always made it plain that some third party was being benefited, when that was intended. Thus, he said, paragraph (b) dealt with child care, and the child was expressly mentioned. (I must say that as at present advised I am not altogether clear that paragraph (b) does deal with third party benefits, because the costs incurred would presumably be incurred not by the child; they may well be incurred by the person injured.) Counsel then contrasted paragraph (b) with paragraph (c) which refers specifically to the person who is injured and which has been held in Eccles v. Taylor[2] to deal only with the cost of services provided to the injured person. As for paragraph (ca), that refers to the costs of counselling services provided to "family members" in respect of the death, where death has resulted from the accident. Certainly it is not clear that paragraph (ca) is confined to dependants (who in the case of death are those entitled to compensation) and perhaps it is correct to say that paragraph (ca) deals with the cost of benefits provided to third parties - and, if that is so, it is made plain only by the express reference in that paragraph to "family members". Paragraph (d) is more difficult; for it is not altogether clear who is to be saved harmless by the Commission's paying the costs of burial or cremation where death results from the accident. Presumably it is the deceased's estate which may, I suppose, be regarded as standing in the shoes of the person killed: see and compare s.3(5)(c). None the less, I detect no obvious pattern in the five paragraphs; each seems to me reasonably discrete and it is difficult, I think, to justify the argument that because of the content of the later paragraphs paragraph (a) must be read as if the adjectival expression "received in Australia because of the accident" were qualified by the expression "by the person who is injured or dies". In my opinion that interpretation of paragraph (a) is not dictated by what is found in the later paragraphs of s.60(1).

[41]

In my opinion there is no such anomaly. I see no reason to distinguish the medical service which comprises an organ transplant or a blood transfusion from the case under appeal, where the service is being provided simply in order that the husband might impregnate his wife. Organ transplant, blood transfusion and impregnation by ICSI are all services being delivered to the injured person. It was not suggested by the Commission, nor could it have been, that there was any reason for the medical procedure to which the appellant's wife would have to subject herself, other than the inability of the appellant, by reason of the accident, to deliver live sperm into her body himself in the normal fashion. There was no flaw or defect in the wife herself requiring the procedure by way of ICSI. Invasion of the woman's body is part of the normal reproductive mechanism, and so it cannot be surprising that such invasion (albeit in a different manner) is needed when alternative means are employed to the same end. Whether that invasion of the woman's body comes first or last does not seem to me to alter the essential character of what is being done. Given that the only object of the exercise is to deliver for the appellant what he himself is now unable to deliver unaided, the procedure, when taken as a whole, must be seen as designed and intended to overcome that inability of the appellant for which the accident alone is responsible. I say nothing of the case where, the husband being sterile, the wife seeks to become pregnant by some third party donor through an IVF attempt; that is not this case and I offer no opinion on it. Here it is the appellant himself who would make his wife pregnant and, unfortunately by reason of his dreadful injury, ICSI is the medical procedure, and according to the evidence probably the only means, by which he can achieve it. Given its purpose and its cause, I see no justification for dividing the IVF attempt into parts and, considered as a whole, the procedure is a medical service provided to the appellant notwithstanding that it can be completed only with the wife's consent and on her body. In all the circumstances I think that the whole of the treatment, with all its component parts or services, is fairly described as received by him.

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