Keler v TAC [2002] VCAT 445

For the Applicant: Mr M. Waugh instructed by Watson Cudlipp & Hughes

For the Respondent: Mr P. Solomon instructed by TAC Law

1. Mr Keler was born in 1958 and came from Sarajevo in the former Yugoslavia to Australia in 1995. He is single and lives alone.

2. In 1998 on the 9th of July he was involved in a transport accident on the Geelong Freeway in which he sustained very serious injuries including a serious closed head injury. Amongst the effects of his injuries is that, and this is common ground, he is unable to drive his own car and experiences significant difficulties in using orthodox public transport such as trains, buses and trams. The difficulty apparently arises in his being alert to alight at the appropriate place for his destinations. As a result of these difficulties he has sought compensation from the respondent Transport Accident Commission under Section 60 of the Transport Accident Act 1986 for the cost of certain taxi journeys. I have been given a substantial wad of material which details the journeys which are the subject of the claim. They include journeys to visit his mother, journeys to attend Sunday Mass and journeys to go shopping or go to the movies. The respondent Commission has rejected those applications for compensation and Mr Keler seeks a review from this Tribunal.

3. There is some history behind the present structure of the Transport Accident Act and the scheme of compensation which it establishes with respect to these matters. If one considers the matters as they stood in 1998 at the time of the transport accident, one would find that Section 60 of the statute which gives persons injured in a transport accident entitlements to what the heading to this section describes as "medical and like expenses" provided for amongst other things, the payment of compensation benefits for "rehabilitation services", see paragraph (a) of sub-section (1) of Section 60.

4. The expression "rehabilitation service" was defined in Section 3 as follows:

(a) the provision to or for a person for the purpose of rehabilitation of any aid, treatment, assistance, appliance, apparatus or any other service; and

(b) without derogating from the generality of paragraph (a), includes the provision to or for a person for the purpose of rehabilitation of attendant care, household help, modifications to a home or motor vehicle, counselling or transportation cost [There follows a further paragraph which appears to relate to both of the limbs of the definition.]

if the provision of the paragraph (a) or (b) is of an authorised service in accordance with section 23."

5. Section 23 of the statute was in the following terms:

(b) persons to provide services for the purposes of paragraph (b) or (c) of section 60(1).

(3) A person whose interests are affected by a decision of the Commission to refuse to authorise a person or service may apply to the Tribunal for review of the decision.

(4) An application for review must be made within 28 days after the later of--

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given."

6. There matters stood until the principal Act was amended by the Transport Accident Amendment Act 2000 No. 84 of 2000. That amending statute made a multiplicity of changes to the law as to transport accident compensation. For present purposes its significance is that it introduced some three new definitions. First, it replaced the definition of "rehabilitation service" which I have already quoted from Section 3 of the principal Act with the following:

" "rehabilitation service" means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service, the provision of which is an authorised service in accordance with section 23;"

7. Next, it introduced a whole new definition of "disability service" in the following terms:

" "disability service" means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23;"

8. Finally, in definitional terms, a definition of "transportation cost" was introduced in the following terms:

" "transportation costs" means costs incurred travelling to or from--

(b) an approved program of disability services the provision of which is authorised in accordance with section 23;"

9. Section 23 was amended in some respects and now reads:

(a) services to be disability services or rehabilitation services; or

(b) persons to provide services for the purposes of section 60(2)(c) or 60(2)(d).

(3) A person whose interests are affected by a decision of the Commission to refuse to authorise a person or service may apply to the Tribunal for review of the decision.

[It is unnecessary for me to quote sub-section (4).]"

10. There was some debate as to whether in the circumstances the proper course was to apply the law as it stood as at the date of the accident and in the terms of the earlier provisions which I have quoted or whether the law as it now stands should govern. I heard no substantial submissions on that point, though some reference was made to the obligation of the Tribunal to give a de novo hearing rather than merely re-visit the determination that was made originally. In my respectful opinion that consideration is not the one which should principally guide a determination on this point. After all, there must be cases where the Commission is approached to provide a form of compensation which was not available at the time of an accident but which a person injured perhaps years before now seeks to avail of.

11. The question for the Tribunal as it seems to me in this case is the same as it would be for the Commission, namely which law does one apply? This does not turn as it seems to me upon the question as to whether this is to be a de novo hearing or not. As it is however Mr Waugh who appears for Mr Keler contended that the principal statute as amended by Act No. 84 of 2000 should be the proper law to consider and apply in this matter and Mr Solomon did not distinctly concede that that was the case but did not contend to the contrary. In those circumstances I believe it is proper for me to approach the matter on the basis of the present state of the Transport Accident Act and that is what I propose to do.

12. I should also add that despite the provisions to be found in both versions of Section 23 of the Transport Accident Act to the effect that rehabilitation services, disability services, call it what you will, must be the subject of a prior authorisation under that section. It has not been contended by the Commission that since Mr Keler has proceeded to incur these transport expenses and now seeks reimbursement for them ex post facto rather than seeking prior approval before they are incurred, precludes me from considering the merits of the proceeding. Accordingly I will consider the matter in that light, though having regard to the terms of Section 23 it is less than self evident that this is necessarily the appropriate course.

13. I should start I think with a passage from a decision of the Full Court of the Supreme Court of Victoria in the matter of G.C. Wood and Son (Aust) Pty Ltd v Cullen [1991] VicRp 62; [1991] 2 VR 214 where at page 225 O'Bryan J was referring to the use of the word "rehabilitation service" in the Worker's Compensation Act 1958. At line 3 His Honour said:

"In my opinion, the words emphasised should not be read too narrowly. A restricted meaning should not be given to `rehabilitation' having regard to the nature of the legislation. The evidence showed that it is medically desirable that the respondent should enjoy mobility by means of an electric chair. The word `rehabilitation' comprehends not only restoration to former health (the narrow meaning) but also to restore partially or completely to a better condition: The Oxford Dictionary (1989), vol. 13. Rehabilitative medicine in our community is not confined to persons who can or will be restored to former health but is available to assist persons whose health would otherwise deteriorate."

14. It seems to me therefore that according to His Honour's formulation, the general concept of rehabilitation covers at least three things. First, services that are intended to restore a subject to his former health, secondly, services which partially restore him or her and thirdly, services which prevent further deterioration.

15. Before going further into the effect of the definitions I should also note the contentious statement which appears in the Tribunal Book from a senior executive of the respondent Commission, Mr Tweedly. That statement records amongst other things what on the face of it is a marked and apparently unsustainable increase in the cost of the provision by the Commission of certain services to injured persons including in particular transport services. Mr Waugh on behalf of the applicant submitted that I should pay no regard to that statement and regard it as in effect inadmissible.

16. Mr Solomon on behalf of the Commission did not contend that I was entitled, as it were, to make policy judgments based upon what might be described as the community's ability to pay. Rather he said that Mr Tweedly's statement indicated the unreasonable consequences of too open ended an application of the sort of definitions that we are here dealing with. The evidence is relevant in his submission for two reasons. First, because all of these forms of compensation are payable under Section 60 of the Transport Accident Act 1986 and are all prefaced by the concept of "reasonable costs". In addition there are provisions to be found in Sections 8 and 11 which impose upon the Commission a duty to deliver compensation in an economically affordable and socially responsible sense. Mr Solomon submitted that what was being suggested here would, if accepted as a general principle, be in the teeth of those matters. It could not have been intended by Parliament that this compensation would be payable having regard to the total scheme of the compensation structure.

17. In my view Mr Waugh's objection to receipt of Mr Tweedly's statement is largely accurate. In a Tribunal which is not bound by the rules of evidence an objection to material based upon admissibility bears a rather different aspect to the one which it bears in court. In my view however, Mr Waugh was correct in his contention that the duty of the Tribunal was to determine individual disputes as to compensation on their individual merits and upon the legislation as it appeared to present itself. It would be wrong in Mr Waugh's submission for the Tribunal to engage in what one might describe as a macro-economic speculation. In my view that is correct if for no reason other than that hearings such as this do not provide the insight which a Tribunal would need to have to make judgments based upon the macro situation of a compensation fund. In any event judgments of that sort would appropriately be made, if made at a Tribunal level at all, by an expert Tribunal including for instance actuarial membership. The matters which I canvassed in Mr Tweedly's statement belong properly to the sphere of policy for the executive Government and Parliament to consider and in my view, I cannot have regard to them. In saying that I do not desire to appear to be taking too unrealistic a view of society. All round us we hear reports of tottering indemnity insurers vital to various compensation schemes in society. It can scarcely be appropriate to try and airily wave those matters away. However, the proper response to these sorts of concerns lies outside this Tribunal.

18. Next I turn to what I might describe as a related issue and that is the issue of policy. I was handed a schedule prepared by officers of the Transport Accident Commission for use and guidance in processing applications for approval under Section 23 of the Transport Accident Act. Mr Solomon submitted that this document indicated the policy of the Commission that rehabilitation services and disability services were to be considered only in the context of pre-approved structures and were not to be considered in the context of one-off measures personally organised as the present applicant's claims for compensation are.

19. Mr Solomon submitted, first, that the Tribunal was bound to respect the Commission's policy in that regard. Secondly, he submitted that if there was no legally binding obligation on the Tribunal to respect the Commission's policy it is something which the Tribunal at least ought pay some regard to.

20. Section 57 of the Victorian Civil and Administrative Tribunal act 1998 makes specific provision for procedures to be adopted rendering statements of policy binding upon the Tribunal. It has not been suggested that this mechanism has been availed of in the present case. In those circumstances I reject the contention that I am obliged to have regard to the Commission's policies. The Tribunal's legal obligations are set out in the statute and so far as the policies are consonant with the statute I am sure it is proper to have regard to them; but in my view the policies adopted by the Commission cannot modify or gloss the effect of the statute.

21. Having disposed of those generally preliminary matters I now return to the principal definitions. As to their application, Mr Waugh placed reliance upon a medical report dated the 13th of March 2002 to be found at page 107h of the Tribunal Book. The report is from Dr Michael Ponsford, a consultant physician in rehabilitation medicine. Dr Ponsford states:

"In his motor vehicle accident, Mr Keler sustained a severe closed head injury and multiple orthopaedic injuries. He continues to exhibit severe cognitive, behavioural and emotional sequelae secondary to his severe closed head injury.

It is my opinion that Mr Keler will never be able to independently drive a motor vehicle or independently access public transport.

It is my opinion that it is an essential part of Mr Keler's ongoing rehabilitation that he is able to access the community, for example, attending Mass, shopping and visiting friends, for his mental and physical well-being."

22. This last sentence formed what I take to be a gravamen of the case made by Mr Waugh. In that regard, if one accepts what Dr Ponsford has said, the services which are here sought to be funded would fall within the general concept of rehabilitation. Of course the doctor is not qualified to express a view as to the construction of the Transport Accident Act either in its earlier or later forms. In my view, his evidence on the point is very significant and something to be considered, not as indicative of the meaning of expressions in the statute but rather to explain in a general sense the significance of the services which Mr Keler is seeking to have funded. That general understanding should then be given effect to having regard to the proper legal meaning of the definitions.

23. If the matter stood as it did in 1998, I believe there would be much to be said, subject to one matter to which I will come in a moment, for the view that the services which are now sought are to be regarded as rehabilitation services. Rehabilitation as the quotation from O'Bryan J in Cullen's case shows extends not only to restoration to original health but also to partial restoration or to prevention of further deterioration. In my view the evidence in Dr Ponsford's report is to the effect that the services which are now sought are necessary or desirable or to use the doctor's words "essential" to the achievement of the second or perhaps the third of the meanings of rehabilitation to be found in Cullen's case. However, given that both Counsel have said that this matter should be determined upon the statute as it now stands, it is unnecessary for me to express a final view on the point.

24. As to the statute's amended terms Mr Waugh had placed primary reliance upon the definition of "disability service" which I have already quoted. Within that definition his reliance lent to a particular phrase, namely "community access". He noted albeit under the previous statutory regime that the Transport Accident Commission was willing to describe what Mr Keler sought as a "community access" matter. There was no reason in his submission therefore why this request should not be regarded as falling squarely in the definition of "disability service" and hence "transportation costs" in the second meaning of the definition, namely an approved program of disability services.

25. Mr Solomon on behalf of the Commission submitted that whilst it was difficult to draw what he described as a "bright line" around the precise content of the concept of "community access", it was clear enough that it did not extend to simple lifestyle matters. A visit to one's mother, a visit to go shopping, a visit to the movies, was in Mr Solomon's submission, whether one was dealing with a profoundly injured and disabled person or an ordinary able bodied person, a pure lifestyle matter. No construction of the statute should be adopted in Mr Solomon's submission which required the Commission to underwrite or indemnify the applicant's very living and in his submission to accept the contentions made by Mr Waugh would have that effect.

26. A lot was said about "bright lines", perhaps nothing very much about "floodgates". Those terms seem to be used in modern Australian legal parlance as terms of derision, as if it would seem the quest for a clear answer and a clear rule which would let everybody know where he or she stood was a trap and a delusion. In my respectful opinion all involved in the legal system would be advantaged by their being more rather than fewer "bright lines".

27. The Commission however must find itself in a difficult situation in seeking to resist the present claim when it stands unable to explain precisely what community access is. I was told that under Section 23 the Commission regularly approves matters such as courses in music or sport. I would have thought that a person who suffered serious constraint in physical mobility would be quite justified in seeking to have funded a training program, perhaps even have certain equipment made available to that person to enable him or her to "surf the internet", and thereby acquire "virtual mobility", a very clear example of community access and yet it is also obviously a matter of lifestyle. However I believe that Mr Solomon has hit upon the very significant obstacle to the success of the present application and that is based upon his submission that "disability services" relative for example to "community access" must be the subject of some form of structured program. There is as it seems to me a very significant distinction between the two forms of service which we are dealing with in the present proceeding and others which are to be found elsewhere in Section 60. Section 60 provides amongst other things for the payment of ambulance services. There is a definition of ambulance service in Section 3 to which it is unnecessary to go beyond noting that there is no requirement for some special preliminary approval process. The same might be said for 90 percent of the definition of medical service to be found in Section 3 - though there is a specific provision limiting entitlement to payment for medical reports at the very end of the definition. The requirement with respect to rehabilitation and disability services that there be a preliminary approval process to my mind indicates that they are to be seen in a significantly different light. The structure as I have noted is that preliminary approval is to be given and the persons providing the services must be authorised in advance under sub-section 1(b). Again, to my mind this supports the submission put by Mr Solomon that some sort of structured program delivered by a particular provider of these services is what is called for, not the ad hoc provision of transport services which is sought here.

28. The point is also underlined by sub-section (3) of Section 23. A person whose interests are affected by a decision of the Commission to refuse to authorise a personal service may apply to the Tribunal for a review of the decision. I think the reason for this to be a separate review entitlement beyond the one bestowed by Section 77 of the Act is to enable a group of providers whose service has not been approved by the Commission to come along here to the Tribunal and seek to have the Commission's ruling reversed. That being the case, in my opinion, though persuaded at every point of the definitions that what is being sought here is within what is provided for by the Act, the final reference to the Section 23 approval procedure indicates that structured program provided by some persons as a group of providers is what is intended not an ad hoc personal provision of services, for instance by hiring taxis.

29. It follows that albeit with great regret I believe that the Commission's determination should be affirmed.