Haberfield v Department of Veterans' Affairs as Delegate for Comcare

Federal Court of Australia|2002-12-19|Before: Sackville J

the proceedings 1 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") from a decision of the Administrative Appeals Tribunal ("AAT") given on 12 July 2002. Although designated as an "appeal", the proceedings invoke the original jurisdiction of the Court. 2 The AAT considered the applicant's entitlement to compensation in respect of "attendant care services" pursuant to s 29(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act"). The applicant claimed that he required attendant care services by reason of serious head injuries he sustained in a motor vehicle accident in 1966, at a time when he was in the Australian Army. 3 The AAT affirmed two decisions made by delegates of Comcare, a body established under s 68 of the SRC Act. Those decisions were as follows: · A decision made on 15 December 1999, affirming an earlier determination of 12 July 1999, that Comcare was not liable under s 29(3) of the SRC Act "to pay compensation for Attendant Care Services to [the applicant's] spouse on and from 1 July 1999". (The decision refers to the liability of the Department of Defence, but it was common ground that the reference should have been to Comcare.) · A decision made on 5 September 2000 to refuse the applicant an extension of time to seek review of a decision made on 27 June 1991, to determine the compensation for attendant care services pursuant to s 29(3) of the SRC Act at $58.05 per week. The extension of time was required because s 62(3)(b) of the SRC Act provides that a request for reconsideration of a determination must be made within 30 days of the notification thereof, or within such further period as the determining authority allows. 4 The notice of appeal identifies three questions of law arising on the appeal: · First, whether the AAT denied procedural fairness to the applicant by relying on evidence that a personal alarm system would be sufficient to ensure that the applicant receives appropriate assistance if he suffered "drop attacks" (blackouts) in consequence of his injuries. The applicant contended that he had never been put on notice that the respondent intended to rely upon the availability of an alarm system as a reason for denying him compensation for attendant care services. The applicant also contended that the suitability of the alarm system had never been put to his doctors. · Secondly, whether the AAT erred in law in holding (as the applicant says it did) that "attendant care services", as defined in the SRC Act, does not include such services as driving the applicant; accompanying the applicant to shops, medical appointments and social occasions; and providing the applicant with emotional support. · Thirdly, whether the AAT erred in concluding that the applicant's requirement of one hour per day of attendant care services (as the AAT found) did not justify the award of compensation pursuant to s 29(3) of the SRC Act.

background 5 The applicant was born on 6 October 1945. He enlisted in the Army at the age of 20, and was discharged as medically unfit on 5 October 1966. He later worked in the shop fitting industry, eventually owning three businesses. He ceased work in 1989. From 1990, the applicant has lived with his present wife, whom he married in 1994. 6 On 2 April 1966, the applicant was a passenger in a vehicle involved in a serious accident. The applicant and the others in the vehicle were proceeding on leave from a Royal Australian Ar Force base. The applicant suffered a fractured skull, cerebral haemorrhage and body lacerations. He lost his memory of events four weeks either side of the accident. On 19 April 1966, he had an operation during which burr holes were drilled into his skull. 7 The applicant had a grand mal seizure as early as 1967 and further seizures in 1978 and 1979. In 1980, Dr Joffe, a physician, diagnosed the applicant as having post-traumatic epilepsy attributable to the 1966 injury. 8 In 1986, the applicant experienced episodes of imbalance and in 1990, a neurologist, Dr Ell, reported that the applicant's balance remained poor. Dr Ell's diagnosis was post-traumatic epilepsy, with brain damage and imbalance. Another neurologist, Professor McLeod, reported in 1998 that the applicant was permanently and totally disabled as the result of the 1966 head injury. Professor McLeod said that the applicant suffered frequent epileptic "drop attacks" or akinetic seizures related to frontal lobe damage. When the applicant suffered these attacks, according to Professor McLeod, he would suddenly drop to the ground and remain unconscious for about five minutes. 9 It appears that the applicant first made a claim for compensation in 1966 and that in January 1967 liability was accepted under the Commonwealth Employees' Compensation Act 1930 (Cth). He lodged a second claim on 24 April 1979. 10 On 18 June 1980, a "supplementary determination" was issued under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) accepting liability for the payment of compensation in respect of the applicant's injuries. The determination covered incapacity, medical and other expenses. Determinations covering incapacity and medical expenses were made in the following years. 11 In April 1991, the applicant claimed compensation for household services and attendant care services. On 27 June 1991, a delegate determined that payments would be made to the applicant pursuant to s 29(3) of the SRC Act in respect of attendant care services at a rate of $58.05 per week, to be adjusted in accordance with the Consumer Price Index. Compensation was also to be paid in respect of household services pursuant to s 29(1) of the SRC Act. 12 On 28 October 1996, a delegate determined that the applicant should be paid compensation for attendant care services and household services at 100 per cent of the applicable rate. 13 On 11 July 1997, a delegate decided that the amount due to the applicant for household services and attendant care services should be reduced to 70 per cent of the maximum. This determination was made after taking into account the assistance provided to the applicant by his wife. The decision, however, was revoked on 23 September 1997 and the applicant was awarded 100 per cent of the statutory rate of compensation for attendant care services. Reimbursement for the costs of certain household services was to be considered as expenses were incurred. 14 On 12 July 1999, as I have noted, a delegate decided that Comcare was not liable to pay compensation for attendant care services in respect of the applicant, as and from 1 July 1999. Another delegate affirmed this decision on 15 December 1999. The second delegate noted that the applicant believed that his wife should be paid an attendant care allowance because she had to supervise his daily activities in case he suffered a loss of balance or of consciousness by reason of his injury. According to the delegate: "this would not seem to satisfy the criteria for the payment of attendant care services as intended by Parliament when the [SRC Act] was enacted." 15 On 20 December 1999, the applicant sought review by the AAT of the second delegate's decision. 16 In the meantime, on 27 July 1999, the applicant lodged a formal request for the reconsideration of the 1991 decision that an attendant care allowance should be paid at the rate of $58.05 per week. On 5 September 2000, a delegate informed the applicant that a determination had been made not to extend the time for him to request a reconsideration of the 1991 decision. The delegate stated that an extension of at least five and a half years was required and expressed the view that Comcare would be prejudiced by its inability to obtain contemporaneous medical information. 17 On 21 September 2000, the applicant lodged an application with the AAT seeking review of the delegate's decision refusing to extend time.

the provisions 18 Section 29 of the SRC Actrelevantly provides as follows: "(3) 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 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 less. (4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters: (a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; (b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care; (c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution; (d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment; (e) any assessment made in relation to the rehabilitation of the employee; (f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services. … (6) An amount of compensation payable by Comcare under subsection … (3) is payable: (a) where the employee has paid for the household services or attendant care services, as the case may be - to the employee; or (b) in any other case - to the person who provided those services. (7) Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services." 19 The expressions "attendant care services" and "household services" are defined in s 4(1) of the SRC Act: "(1) In this Act, unless the contrary intention appears: … attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee. … household services, in relation to an employee, means services of a domestic nature (including cooking, housecleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.

construction of s 29 of the src Act 20 I was not referred to any judicial decision interpreting the provisions of s 29 of the SRC Act. It is convenient, however, to make some observations at the outset about the construction of the legislation. 21 Section 29(3) of the SRC Act imposes a liability upon Comcare to pay compensation of the specified amount if: · an employee suffers an injury (both "employee" and "injury" are defined terms); · as a result of the injury the employee obtains "attendant care services"; · he or she reasonably requires those services. 22 It follows from the language and structure of s 29(3) that Comcare is liable to compensate an employee who has sustained an injury only if he or she has obtained attendant care services and reasonably requires those services. The fact that the employee has obtained attendant care services is a necessary but not sufficient condition for the award of compensation. The decision-maker must also be satisfied that the attendant care services are reasonably required by the employee. 23 The definition of "attendant care services" is central to the operation of s 29(3) of the SRC Act. The definition excludes certain categories of services: that is, household services (a defined expression), medical or surgical services and nursing care. Services are within the definition only if they are "required for the essential and regular personal care of the employee". 24 The expression "personal care" is not defined, but would seem to be an ordinary English expression. It is a composite phrase which conveys the notion of catering for the basic needs of an individual which must be met if that individual is to function adequately within the limits of his or her physical ability and mental capacity. Without being exhaustive, the phrase embraces such tasks as bathing, grooming, eating, toileting, achieving mobility, taking medication and complying with prescribed exercise or therapy programs (some of these tasks, of course, may be outside the statutory definition because of the specific exclusions). This approach to the expression "personal care" is consistent with the Explanatory Memorandum to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988, which identified "attendant care services" as including "bathing, grooming, assistance with eating and drinking, preparing and caring for artificial aids and appliances and helping with exercise". 25 Not all services that are desirable, or even necessary for the personal care of an employee are within the definition. The qualifying words in the definition make it clear that the services must be required for the employee's essential and regular personal care. This is an important qualification. 26 Section 29(4) of the SRC Act specifies six matters that must be taken into account in "determining the attendant care services that are reasonably required". The sub-section implies that, in a particular case, some attendant care services may be reasonably required, but others may not be. In other words, s 29(4) leaves open the possibility that the decision-maker may determine that none of the attendant care services obtained by an employee is reasonably required, having regard to the six matters identified in s 29(4)(a)-(f). This is so notwithstanding that services cannot qualify as "attendant care services" unless they are required for the essential and regular personal care of the employee. 27 In making the determination contemplated by s 29(4) the decision-maker is required to take into account each of the six matters identified in the sub-section. This is not to say that each of the six matters will necessarily be relevant to the circumstances of a particular case. For example, there may be no question of the employee wishing to undertake or continue employment (cf s 29(4)(d)). Furthermore, the matters listed in s 29(4) are not necessarily exhaustive of all the considerations that should be taken into account, since s 29(4) expressly contemplates that the decision-maker may take account of other relevant matters in determining the attendant care services required in a particular case.

the issues 28 Both parties were legally represented before the AAT, which comprised a senior member and a medically qualified member. The hearing continued for four days, in February and June 2001. 29 The applicant's amended statement of facts and contentions, dated 13 September 2000, identified his contentions as follows: "1. The Applicant is entitled to 100% attendant care and household services pursuant to Section 29 from 10 April 1991 to 30 June 1996. 2. The Applicant is entitled to 100% attendant care and household services pursuant to Section 29 beyond 30 June 1999. 3. The attendant care and household services provided by the Applicant's wife from 1 July 1996 to date was and is beyond what might reasonably be expected to be provided by a family member." 30 The respondent's statement disputed the applicant's claim to a retrospective adjustment of the compensation for attendant care services determined on 27 June 1991. It also asserted that the applicant's entitlement to attendant care services from 1 July 1999 was nil: "as generally such payments are not made to relatives of the employee, and the circumstances/needs of the applicant are not such as to displace the general rule." The statement also indicated that it would rely on additional facts in a report to be prepared by Dr Henke, a rehabilitation specialist. 31 The AAT's reasons, despite running to 86 pages, do not summarise the claims made by the applicant. In his submissions on the appeal, however, Mr Daley, who also appeared for the applicant before the AAT, described the applicant's claims to compensation for attendant care services as falling into five categories. Compensation had been sought in respect of (i) assistance with such daily activities as showering, shaving, toileting and dressing; (ii) assistance with medication; (iii) the constant support said to be needed to provide immediate first aid in the event of a drop attack and to provide support or comfort during the recovery period; (iv) what was described as "emotional support and companionship"; and (v) assistance in driving the applicant and accompanying him to various places, such as shops, and for social outings. There was no dispute before the AAT that the applicant was an "employee" for the purposes of s 29(3) of the SRC Act and that he had sustained an injury within the meaning of that sub-section. 32 The hearing before the AAT took some time largely because there were factual issues in dispute. For example, the medical reports had expressed different views as to the extent of the symptoms experienced by the applicant and the degree of care he required. In the event, three doctors gave oral evidence, although a large number of medical reports were admitted into evidence. Oral evidence was given by Dr Do, the applicant's general practitioner; Dr Tam, a physician who saw the applicant for the purpose of preparing a report; and Dr Henke, who also saw the applicant for the purpose of preparing reports, and whose views differed markedly from those of Dr Do and Dr Tam. The evidence included videotapes which, according to the respondent, showed that the applicant enjoyed much more freedom of movement and independence than he had reported to the doctors.

the aat's reasons 33 The AAT did not hand down its decision until 12 July 2002, nearly thirteen months after the hearing had concluded. Whether for this or other reasons, it must be said that the AAT's reasoning is not always easy to follow. 34 Much of the AAT's reasons are taken up with an elaborate recital of the medical evidence and an account of the videotape and other evidence relevant to an assessment of the applicant's physical condition. This recital is not accompanied by specific findings on disputed factual questions. The AAT's findings are scattered throughout the reasons, under headings that do not always reflect accurately the issues discussed. On occasions, a finding and the AAT's justification for the finding are separated by many paragraphs or an erroneous cross-reference is given. For some reason, the AAT expressly addressed the applicant's submissions only after it had made findings on contested factual issues, adding to the difficulties of following the reasoning. 35 The issue on this "appeal" is not, however, whether the AAT's reasons are clear or well reasoned, but whether the applicant has made out any of the grounds on which he relies to set aside the AAT's decision. It must steadily be borne in mind that a Court exercising powers of judicial review is not concerned with looseness in the language nor with the unhappy phrasing of the decisions of an administrative decision-maker such as the AAT: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ. With that warning, I turn to the AAT's reasons. 36 The AAT ruled against the respondent's submission that s 29(3) of the SRC Act, on its proper construction, does not authorise the payment of compensation for attendant care services provided by a relative of the applicant without charge. The respondent did not challenge this ruling and no more need be said about it in this judgment. 37 The AAT then addressed factual issues. It is convenient to note some of the more important factual findings made by the AAT. 38 The AAT rejected the respondent's submission that the applicant's claimed drop attacks were not genuine. It found (at [220]) that the applicant did experience such attacks and that they were epileptic in origin. However, while not accepting that the attacks were fabricated, the AAT found (at [221]) that they occurred "relatively infrequently" outside the house. It reached this conclusion after noting inconsistencies between the applicant's evidence and the video evidence, as well as other disparities in the applicant's account. The AAT also "noted" the evidence of a number of witnesses that the drop attacks occurred "overwhelmingly" unless the applicant was standing. Accordingly, it found that the respondent was on "firm ground" in submitting that since much of the applicant's day was spent lying down or seated, this minimised "not only the likelihood of an attack, but…the chances of any harm stemming from such an attack". The AAT also found (at [240]) that the applicant could "spend lengthy periods without any need of physical support". 39 The AAT accepted Dr Henke's evidence on certain key issues. In particular, as will be seen, it accepted his evidence that an around the clock alarm system would obviate the need for 24 hour care to cater for the possibility of drop attacks. More generally, the AAT found that the views of Dr Henke were of "particular value" as he had seen the videotape evidence in addition to medically examining the applicant. The AAT specifically rejected (at [242]) the so-called "auto-pilot" theory of Dr Tam, to the effect that the apparent freedom of movement shown on the video could be explained by the applicant performing certain tasks without consciously thinking about them. It also rejected (at [242]) the applicant's explanation that he had "good" and "bad" days, the former coinciding with the videotaping. 40 The AAT did not address seriatim the five categories of claims identified by Mr Daley, in part at least because the applicant's submissions to the AAT did not classify the claims in this way. The AAT did, however, make factual findings relevant to the claims identified by Mr Daley. 41 First, the AAT found (at [211]) that the applicant had obtained services which qualified as "attendant care services to the extent that they involved bathing, shaving, and assistance with dressing". On this finding, the attendant care services required by the applicant did not include assistance with toileting. Otherwise, however, the finding accepted the applicant's claim that he required services for his "essential and regular personal care" (the words used in the definition of "attendant care services"), to the extent that they involved bathing, shaving and dressing. Implicitly, a finding in these terms rejected the applicant's claim that he required other forms of attendant care services. 42 Secondly, the AAT specifically rejected (at [229]) the applicant's claim that he required assistance to ensure that he took his medication. Thus the AAT expressly found against the second of the claims identified by Mr Daley. 43 Thirdly, under the sub-heading "Is essential and regular personal care required?", the AAT rejected (at [223]-[224]) the applicant's contention that he needed a full-time carer to assist him in the event of drop attacks. The AAT noted that Dr Henke had "credibly indicated" the risks involved in providing a full-time carer for the purpose of catching the applicant if he had an attack. The AAT also pointed out that the physique of the applicant's wife was such that she could do little to support him if he did fall in her presence. 44 The AAT thought, however, that "[m]ore to the point … was the suggestion that Mrs Haberfield should be present to call for aid when [the applicant] does have a fall that causes him injury. However, the proposition that Mrs Haberfield should attract an allowance to permit her to be present on this basis for 24 hours a day is problematic. There would appear to be considerable merit in Dr Henke's suggestion that it would be preferable to provide an around the clock personal alarm system especially one that activates automatically in the event of a precipitate fall." The AAT (at [224]) considered it "difficult to find that personal care of an essential and regular type is required by [the applicant] and so finds that it is not." 45 Fourthly, the AAT quoted a passage from the applicant's oral submissions which referred to his need for emotional support and for access to social and recreational services as a basis for his claim to compensation for attendant care services. The AAT stated (at [237]) that the force of these submissions had been undermined by several factors. It identified these as follows: · The tribunal doubts that intangible assistance in the form of emotional support and company are 'attendant care services' under the 1988 Act. · The need for and utility of these services is doubtful for reasons given by Dr Henke and accepted by the tribunal. · Much of the assistance provided by Mrs Haberfield is, as the tribunal has found, much as would be expected from any spouse. 46 Fifthly, the AAT adverted (at [228]) to the applicant's submission that he needed to have someone drive him to the shopping mall and elsewhere. The AAT stated that it had "already found that this is not attendant care services within the meaning of the term in the 1988 Act". 47 The effect of these findings is that the AAT considered that the only attendant care services required by the applicant were those involving assistance with showering, shaving and dressing. In order for Comcare to be liable to pay compensation in respect of attendant care services, s 29(3) of the SRC Act requires the employee to obtain attendant care services that he or she reasonably requires. The AAT devoted a significant section of its reasons ([214]-[225]) to the question "Are the attendant Services 'Reasonably Required'?". In fact, this section of the reasons deals with several issues, not all of which are concerned with whether the attendant care services required by the applicant were "reasonably required" by him for the purposes of s 29(3) of the SRC Act. 48 The AAT found (at [225]): "that the care provided for [the applicant], that he reasonably requires, is limited to that involving assistance with showering, shaving and dressing. These would appear to occupy only an hour or so of Mrs Haberfield's time each day. As was found above, these are attendant care services within the meaning of the 1988 Act. However, they are so little out of the ordinary course of physical assistance to be expected from one spouse in aid of the other that they do not, in the tribunal's view, attract an attendant care allowance." 49 The AAT concluded (at [247]) that the applicant did not qualify for payment of attendant care allowance in relation to the assistance provided by the applicant's wife. It therefore affirmed the decision of the delegate that Comcare was not liable to pay compensation for attendant care services on and from 1 July 1999. 50 In the last part of its reasons, the AAT decided not to extend the time within which the applicant could request reconsideration of the 1991 decision to pay attendant care allowance at the rate of only $58.05 per week. The AAT stated (at [250]) that it would have held in the applicant's favour but for the fact that it had "already found that the merits of his claim for attendant care allowance are fundamentally weak". Its conclusion on this aspect of the applicant's claim was therefore dependent on its rejection of his claim to attendant care services on and from 1 July 1999.

the procedural fairness argument 51 The applicant submitted that the AAT had denied him procedural fairness in rejecting his claim that he required attendant care services to assist him in the event of drop attacks. Mr Daley put the procedural fairness argument in a number of different ways. In substance, his contention was that the respondent had not identified the availability of an alarm system as an issue until Dr Henke gave evidence about it on the third day of the hearing. The applicant had accordingly been denied the opportunity to elicit evidence from his own doctors (Drs Do and Tam) and the respondent's counsel had failed to ask questions of those doctors about the alarm system. Since the significance of the alarm system had never been an issue in the proceedings, it was a denial of procedural fairness for the AAT to reject the applicant's claim on the basis that the system could serve his needs. It was also said to be a breach of the rule in Browne v Dunn (1893) 6 R 67, for the respondent's counsel not to have put the alarm system option to the applicant's doctors. 52 Mr Daley was, in my view, correct in his contention that Dr Henke's evidence as to the alarm system played a significant part in the AAT's conclusion on this issue. As Mr Daley pointed out, the AAT (at [223]) found "considerable merit" in Dr Henke's suggestion that it would be preferable to provide an around the clock personal alarm system, especially one that activates automatically in the event of a precipitate fall. Later in the reasons, when addressing the applicant's submissions, the AAT returned (at [245]-[246]) to the topic of the alarm system: "Mr Daley addressed Dr Henke's suggestion that an alarm system would suffice to provide the assistance required by [the applicant]. He submitted that the suggestion should be disregarded for several reasons. It emerged without warning as a suggestion at the close of the respondent's case. It had never been part of any offer of assistance by the respondent. It had never been put to [the applicant] as an option. It has not been recommended by anyone following an on-site assessment of [the applicant's] requirements. The tribunal considers that the alarm option came as something of a surprise to the respondent, as it did to the applicant's representatives, when Dr Henke suggested it. The tribunal saw Dr Henke's evidence as well considered and thoughtful when he suggested that an alarm system might best assist the applicant with his genuine disability. The tribunal considers that the respondent should give serious consideration to offering such a facility to [the applicant] in accordance with s 39(1)(e) of the 1988 Act." These passages suggest that the AAT gave some weight to the availability of the alarm system in reaching its conclusion that the applicant did not require "attendant care services" to assist him if he suffered drop attacks. 53 In order to determine whether the AAT denied the applicant procedural fairness, it is necessary to trace briefly the course of the evidence and the submissions in the AAT in relation to the personal alarm issue. As Mr Daley submitted, the respondent's statement of facts issues and contentions did not allude to the argument that an alarm system would meet the applicant's needs arising from the drop attacks. On the other hand, as Mr Elliott, who appeared for the respondent before the AAT, as in this Court, pointed out on behalf of the respondent, the applicant's own statement did not foreshadow reliance on "drop attacks", as distinct from "episodes of dizziness and imbalance leading to falls". The applicant's reliance on drop attacks only became evident later, through medical reports served in support of his case. 54 Mr Daley was correct to point out that no mention was made of alarm systems until the third day of the hearing. In response to a general question asked in examination in chief by Mr Elliott, Dr Henke referred to the role that can be played by an alarm system in protecting people prone to loss of consciousness: "[Q] Do you believe that the risk from drop attacks is such that he needs a constant carer to be present?---[A] The difficulty here is that one sees that the carer is not going to be able to stop the drop attacks…. So if we're looking at the risk of injury arising from the attack, having a carer there in a sense doesn't really change the probability of potential injury. If we accept that these are short-term attacks, a loss of consciousness lasting a minute or two, then clearly the concern then would be whether he could seek help if he was injured in such a fall. Obviously formally one can handle that by provision of some form of alarm system if people fall. If we had a person in hospital comes in with epilepsy who has it frequently, the usual thing is to recommend installation of something like what is called: Vital Call, which is an alarm system the person carries on them which if they do have an injury they can press a button for." There is no suggestion that counsel for the respondent had deliberately withheld this material when cross-examining the applicant or his medical witnesses. Indeed, the AAT found otherwise. 55 Mr Daley did not object at the time to the AAT receiving Dr Henke's evidence. Nor did he seek to cross-examine Dr Henke on the issue or to defer his cross-examination until further instructions could be obtained. In re-examination, Dr Henke explained that alarm devices could be activated by sudden movement and that the cost of monitoring them was about $1 per day. Again, no objection was taken to this evidence. 56 Further medical reports were tendered later on 7 June 2001. Not surprisingly, none addressed the significance of personal alarms for the applicant's case. At the conclusion of the hearing on that day, the matter was adjourned until 13 June 2001, to enable final submissions to be made. 57 At the resumed hearing, Mr Daley made oral submissions on behalf of the applicant. Towards the end of his submissions, he turned to what he described as "the last of the respondent's defences", as follows: "That is the alarm. That was a rabbit pulled out of the hat at about 12.30 on day 3, it has come out of left field. It wasn't something that was mentioned at any time in the decision making process. It wasn't something that reached Dr Henke's two reports. It wasn't something that was put to the applicant's doctors so the Tribunal has not been assisted by an alternate view of what benefit these alarms might be or what their practicalities might be in Mr Haberfield's specific case. We just don't know. My respectful submission is that in so far as that issue has been raised, it should be disregarded for a number of reasons. Firstly, that it has never formed any part of the respondent's case. It has literally as anything can come out of left field at the end of the case. It has never been raised by the respondent at any time in terms of something that could be put in place by the respondent to mitigate its obligations to otherwise pay the applicant compensation. There's been no offer to put it in place, even as late as today I do not understand the respondent to say well, if you give up 3 hours a day of your care claim, we will install an alarm system. It has just never been put to the applicant that that was an option and it still has not. We also don't know how valuable or how practicable it is likely to be in circumstances of Mr Haberfield's case because no one has ever gone out to assess him. Dr Henke has given evidence from the general perspective that they can be useful but I think he even conceded that in the course of his evidence that one really needs to get out there and see whether the home is set up right for it and whether the other factors in terms of practicality can be satisfied and there's just no evidence that in this particular case those things have or could be satisfied. … If the Tribunal was of the view that an alarm system was a meritorious option in this case, what I would respectfully submit is that the appropriate approach would be for the Tribunal to reinstate the applicant's case allowance, provide a recommendation that the respondent could try one of these alarm systems to see whether or not in Mr Haberfield's case they are useful and indicate a view in the Tribunal's mind that if it were successfully implemented, this could reduce the care by X number of hours per week." As has been seen, the AAT rejected the submission that Dr Henke's evidence should be disregarded. 58 The AAT is not bound by the rules of evidence: AAT Act, s 33(1)(c). It is, however, obliged to adopt "fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West (1985) 159 CLR 550, at 585, per Mason J; Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, at 207, per Spender J; Lodkowski v Comcare (1998) 53 ALD 371, at 386, per Goldberg J. The application of the rule in Browne v Dunn has been treated as an aspect of procedural fairness and, if breached, capable of vitiating a decision of the AAT: Hoskins v Repatriation Commission (1991) 32 FCR 443, at 446, per Pincus J; Dolan v AOTC, at 208, per Spender J. The rule in Browne v Dunn was formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, at 16, as follows: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn." 59 The application of the rule in Browne v Dunn as an aspect of procedural fairness must take account of the statutory functions of the AAT. The task of the AAT is not necessarily limited by the issues identified by the parties. As was said by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408, at 425, in substance the AAT's review of the primary decision is inquisitorial in character, with the AAT under a duty to arrive at the correct or preferable decision on the material before it. Subject to the rules of procedural fairness, the AAT is entitled to inform itself on any matters relevant to the pleadings in such manner as it thinks appropriate: s 33(1)(c). 60 It is true that the alarm system issue was not flagged in the statements of facts, issues and contentions filed in the AAT. But Dr Henke having answered the question in the manner he did, without objection, there was material before the AAT that was relevant to the question of whether the applicant had a need for the services of a carer on a daily basis to assist him in the event of drop attacks. Of course, the mere fact that Dr Henke's opinion was admitted into evidence without objection does not necessarily establish that it was procedurally fair for the AAT to take it into account. If, for example, the applicant had no realistic opportunity to consult with his own doctors or medical experts, or was denied the opportunity to adduce material rebutting Dr Henke's opinion, arguably it might have been unfair to allow the evidence "to come out of left field" in the manner it did. But this is not what happened. 61 Once Dr Henke's opinion on the use of an alarm was before the AAT, it was open to the applicant's counsel to apply to recall Dr Do and Dr Tam or, indeed, to call other evidence addressing this issue. In fact no such application was made. There was a gap of six days between Dr Henke's oral evidence and the date fixed for the making of written submissions. There was no evidence in this Court and no suggestion made on behalf of the applicant that that period was insufficient to enable his advisers to consult with the treating doctors or the medical experts. Nor can it be said that the applicant's counsel failed to appreciate the significance of the evidence. In fact, he strenuously endeavoured to persuade the AAT to disregard it or give it little weight, precisely because (so I infer from the transcript) he understood its potential importance. 62 In Karidis v General Motors-Holden Pty Ltd [1971] SASR 422, Bray CJ (with whom Sangster AJ agreed) observed (at 425) that, where Browne v Dunn is invoked, it is necessary to examine the rationale underlying the rule. Karidis involved the tender of a film showing the appellant's activities on two occasions, without the appellant having been cross-examined on the contents of the film. Bray CJ said this (at 425-426): "It seems to me that under contemporary practice, when the calling of witnesses in rebuttal is very common, the occasions for the intervention of courts of appeal on this ground may be less frequent. The reason for the principle is obviously that the witness ought to have the opportunity to give what explanation he can of the matter in question and that he should not be disbelieved, nor should adverse inferences be drawn against him, because of other evidence relating to the topic on which he has been unable to comment. In the present case no application was made to call the appellant or Dr Chick in rebuttal after the films had been proved by Mrs Lock. If such an application had been made and refused, or if for any reason it was impracticable for either witness to be called in rebuttal, the matter would stand differently. But there is no reason to suppose that such an application would not have been granted or that the witnesses were not available." 63 The present case has some similarities to Karidis although, if anything, there is less reason to apply the rule in Browne v Dunn. It was common ground that the respondent's counsel had not made a deliberate forensic decision to avoid questioning the applicant's witnesses about alarm systems; the issue had simply not arisen until Dr Henke mentioned it. Moreover, Dr Henke's evidence on the specific topic of the alarm system did not directly contradict the evidence of the applicant's witness or, of itself, cast any doubt on their credibility. The evidence identified a particular factor that lent weight to Dr Henke's opinion that the applicant did not require the services of a carer by reason of his susceptibility to drop attacks. It was open to the applicant's counsel to apply to adduce further evidence to address the issue raised by Dr Henke, but he did not do so. There is nothing to suggest that if he had applied to recall witnesses or to have the proceedings adjourned that the AAT would have declined the application. 64 In my view, there was no procedural unfairness to the applicant in the AAT taking into account the evidence given by Dr Henke. Counsel could have invited the AAT to receive further evidence on the significance of alarm systems, but elected not to do so. (In making this observation I intend no criticism of counsel. As Bray CJ observed in Karidis, at 426, advocacy involves a continual series of difficult choices and appellate courts should be slow to comment on a particular choice.) The issue was plainly identified and was the subject of submissions to the AAT. It follows that the applicant has not made out that the AAT's decision was affected by a breach of the principles of procedural fairness. 65 Mr Daley submitted, in the alternative, that by giving weight to Dr Henke's evidence concerning the alarm system, the AAT had taken an irrelevant consideration into account. The evidence was, however, plainly relevant to the factual questions the AAT had to determine. The weight to be given to the evidence was a matter for the AAT.

attendant care services 66 The applicant submitted that the AAT had erroneously precluded itself from considering whether he required services for his essential and regular personal care in the form of

driving or accompanying him to shops, medical appointments and social occasions; and
providing emotional support and companionship. The applicant contended that the AAT had erred in holding that services of the kind identified were incapable of coming within the definition of "attendant care services". According to Mr Daley, it was because the AAT had decided this as a matter of principle that it had rejected the applicant's claim so far as these categories of services were concerned. 67 Mr Daley submitted that the definition of "attendant care services" should be given the "widest possible" construction so as to include "[a]ll services that are compensable at common law save that the service needs to be required for the essential and regular personal care of the employee and there is a monetary limit imposed by [s 29(3)(a)]". He supported this submission by referring to Griffiths v Kerkemeyer (1977) 139 CLR 161, and other cases on the assessment of damages in respect of so-called "gratuitous services" provided for the care of a person injured as the result of another person's negligence. 68 To address the applicant's submission that the AAT had misconstrued the definition of "attendant care services" it is necessary to identify why the AAT rejected the applicant's claim to be entitled to compensation for services in the form of transport or emotional support and companionship. 69 The AAT's explicit reasoning on the applicant's asserted need for someone to drive him to the shopping mall and elsewhere is confined to a single paragraph ([228], reproduced at [46] above). The AAT simply stated that it had already found that such services were not attendant care services within the meaning of the SRC Act. 70 The cross-reference is at first blush a little puzzling, as the AAT had not previously made a finding in these terms. However, the AAT had found (at [221]) that the drop attacks were not as frequent as the applicant had maintained and that his condition was less disabling than he had suggested in his evidence. The AAT had also found that the care required by the applicant was limited to that involving assistance with showering, shaving and dressing (at [211], [225]). A fair reading of the AAT's admittedly oblique cross-reference in [228] is that it had concluded, as a matter of fact, that the applicant did not require such services for his "essential and regular personal care", accordingly, they did not constitute "attendant care services" as defined. This is simply a finding of fact, not dependent upon a particular construction of the definition of "attendant care services". Certainly it does not imply that the AAT considered that driving a person to appointments or even to a shopping centre could never constitute "services required for the essential and regular care" of an applicant. There was simply no occasion for the AAT to address that general question. 71 This interpretation of the AAT's reasons is supported by the context. The applicant had argued before the AAT that in view of the "probabilities of drop attacks", he needed someone to drive him to and from the shopping mall and social events. The AAT did not accept the applicant's case in important respects, including his evidence as to the frequency and precipitating factors for the drop attacks. It is to be expected that the AAT would have taken into account its factual findings when rejecting the applicant's claim that he should be compensated for the cost of being driven to shopping malls and the like. 72 The applicant's next submission was that the AAT had erred in holding that emotional support and companionship are not capable of constituting "attendant care services" for the purposes of the SRC Act. This submission also assumed that the AAT had rejected the applicant's claim to require attendant care services in the form of emotional support and companionship because it held that such services are incapable of constituting "attendant care services". I do not think this is a fair reading of the AAT's reasons. 73 The applicant's claim that he needed emotional support was put to the AAT on the basis that he needed supervision and "somebody to help him following the attacks for both emotional reasons and for reasons of first aid…he needs emotional support, he needs company". In other words, the claim was put primarily in the context of the applicant's needs arising from the likelihood of drop attacks. 74 It is true that the AAT expressed doubts that "intangible assistance in the form of emotional support and company are 'attendant care services'". It did not, however, develop that point. It found that the force of the applicant's submissions had been "undermined" because the "need for and utility of these services is doubtful for reasons given by Dr Henke and accepted by the tribunal". Dr Henke had expressed the view that there were significant psychological disadvantages to requiring somebody to be in a patient's presence for twenty-four hours a day. His view, as summarised by the AAT (at [101]), was that a perfectly adequate form of care for a person having drop attacks two or three times a week was to have a family member present at times when the person was moving about, coupled with an alarm system. The AAT accepted Dr Henke's approach (at [223]). It found that personal care of an essential and regular type was not required by the applicant in connection with the drop attacks (at [224]). That finding must be read, in my opinion, as intended to embrace the emotional care that the applicant claimed was needed in consequences of the drop attacks. Whatever view one takes of the clarity, or lack of clarity, with which the AAT's findings were expressed, in my opinion, its findings did not turn on the proposition of law challenged by the applicant in this Court. 75 These conclusions make it unnecessary to address Mr Daley's submissions as to the proper construction of the definition of "attendant care services". It suffices to say that the touchstone must be the statutory language itself. Caution should be exercised before attributing to Parliament an intention to incorporate common law principles of assessment of damages into a statutory compensation scheme, where there is nothing in the language of the provision to suggest any such intention. 76 The applicant's submissions in this Court suggested that a distinction had been drawn in the arguments put to the AAT between support and comfort required by the applicant in the immediate aftermath of a drop attack and his need for more general "emotional support and companionship" (see [31] above). It is by no means clear that the applicant's submissions to the AAT made that distinction; certainly the distinction was not elaborated on. Assuming the broader submission was made, I interpret the AAT's reasons as rejecting the applicant's claim that he required attendant care services in the form of general emotional support and companionship. A finding by the AAT in favour of the applicant on this point would have been inconsistent with its finding that the only attendant care services he required were those that involved bathing, shaving and dressing. I do not construe the AAT's reasons as resting on the proposition that emotional support and companionship, regardless of the circumstances, can never constitute "attendant care services" within the meaning of the SRC Act.

The application of SRC Act, s 29(4). 77 The applicant's final submission attacked the AAT's finding that the assistance provided by the applicant's wife with his showering, shaving and dressing was "so little out of the ordinary course of physical assistance to be expected by one spouse in aid of the other that [the services] do not … attract an attendant care allowance". Mr Daley submitted that the AAT had erred by regarding the criterion specified in s 29(4)(f) ("the extent to which a relative of the employee might reasonably be expected to provide attendant care services") as determinative of the applicant's entitlement to compensation in respect of attendant care services, rather as merely one of a number of factors to be taken into account. 78 There is no doubt that the AAT gave very considerable weight to its finding that the applicant's wife provided services to the applicant that were little out of the ordinary. But this is not to say that the AAT failed to appreciate that the criterion specified in s 29(4)(f) of the SRC Act was not determinative of the outcome. 79 Earlier in its reasons, the AAT stated, correctly, that s 29(4) of the SRC Act provides "non-exclusive criteria for a decision-maker to consider in making [the] determination". Moreover, the AAT expressly directed attention to the criteria in s 29(4)(c), (d) and (e) and concluded, again correctly, that they were irrelevant to the circumstances of the present case. 80 The AAT then accepted a submission from the respondent's counsel that the proper approach was to consider four issues:

What is the condition of the applicant in respect of which care is sought?
Does that condition require care provided by others?
Is that care essential and regular personal care?
How much of that care can the applicant's relatives be expected to provide? It is not entirely clear why the AAT chose this approach, rather than simply to consider the relevant statutory criteria seriatim. Nonetheless, within the framework it set for itself, the AAT did consider the nature of the applicant's injury and disabilities and the extent to which it impaired his ability to provide for his own care (s 29(4)(a)). The AAT also referred to s 29(4)(b), although medical services and nursing care do not seem to have played a significant part in providing for the applicant's essential and regular personal care. 81 If the reasons are read as a whole, I think it is very difficult to conclude that the AAT failed to appreciate that no single criterion specified in s 29(4) of the SRC Act is determinative of the question of whether attendant care services are reasonably required in the particular case. Other decision-makers may not necessarily have concluded that the services provided by the applicant's wife were so little out of the ordinary as the AAT found. Even having made that finding, not all would necessarily have concluded that the attendant care services were not reasonably required by the applicant. But I do not think that the AAT, in reaching its conclusion, misconceived the operation of s 29(4) of the SRC Act.

conclusion 82 In my opinion, the applicant has not established any of the grounds upon which he has challenged the AAT's decision. The appeal must therefore be dismissed. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 19 December 2002 Counsel for the Applicant: Mr M Daley Solicitor for the Applicant: Bryden's Law Office Counsel for the Respondent: Mr G Elliott

Solicitor for the Respondent: Australian Government Solicitor

Employees' Compensation Act 1930(Cth)

Government Employees) Act 1971(Cth)

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Cases Cited (6)