Victorian Civil and Administrative Tribunal|2006-02-16|Before: Mr P

McDonald v Transport Accident Commission (General) [2006] VCAT 183 (16 February 2006)

General List - Transport Accident Commission - transport accident - preliminary issue to be determined - whether the Commission is liable for reasonable costs of upgrading the driveway of the applicant's parents' family home and installing ramps (the modifications) - whether the modifications can be authorised as modifications to a home in which a person resides - whether the modifications can be a disability service - whether the modifications can be a rehabilitation service - Transport Accident Act 1986 s 3(1), s 23, s 60(2)(a) and s 60(4)(a)

The decision of the respondent that it cannot be liable for the modifications sought is set aside and the matter is remitted for re-consideration in accordance with the direction that the Commission may be liable for the modifications as a rehabilitation service.

Mr P Halley of counsel instructed by Slater and Gordon

1 Mr Craig McDonald, the applicant in these proceedings, was injured in a transport accident in March 2004, such injuries resulting in complete quadriplegia. He requires full time care and is primarily cared for by a full time carer funded by the Transport Accident Commission.

2 At the time of the accident, Mr McDonald was living in rented premises in Reservoir with his partner. They had lived there since March 2003. Before that, Mr McDonald had lived with his parents in Brook Street, Sunbury, a home his parents own.

3 After the accident, after assessing various alternatives, Mr McDonald chose to live in a purpose built home in Norman Avenue, Sunbury. The Commission contributed to the costs of constructing that home in a manner suited to his injury.

4 Mr McDonald and his partner now live in Norman Avenue, Sunbury. Since the accident Mr McDonald has visited, but not stayed, at his parents' home in Brook Street, Sunbury.

5 Mr McDonald has applied to the Commission for modifications to Brook Street, Sunbury, namely modifications to the driveway and the provision of two ramps. He seeks those modifications to better facilitate visits to Brook Street, Sunbury. Further, he says that if the modifications were made, he believes he would stay there, presumably with his carer, on some occasions when his partner is away. He asks that the Commission fund the cost of those modifications which have been costed between $18,942 and $19,950.00.

6 The Commission declined to fund the modifications. Mr McDonald applied for review of that decision.

7 The proceeding came on before me for determination of a preliminary question. The parties had agreed that resolution of the particular question may avoid the need for Mr McDonald and others to give evidence and be cross-examined.

8 The question is whether or not the proposed modifications to Brook Street can be an eligible service or expense under the Transport Accident Act 1986 (the Act).

9 Taking Mr McDonald's case at its highest, including assuming the costs of the proposed modifications to be a reasonable expense, are they an eligible expense under s 60 of the Act?

10 The Act establishes a scheme of compensation for those who are injured or die as a result of a transport accident. Division 2 of Part 3 of the Act sets out the provisions concerning entitlement to compensation and Division 3, the benefits available.

11 Those benefits include for example, payments for loss of earnings, impairment benefits and medical and like benefits. This application concerns the latter benefits, and the interpretation and application of s 60 of the Act.

12 Section 60 is headed Medical and like benefits and specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under the Act (see s 60(1)). There are a number of sub-sections which set out in detail what amounts the Commission is liable for and in what circumstances.

13 For this proceeding, we are concerned with s 60(2)(a) and the current form of s 60(4)(a).

14 Section 60(2)(a) states :

(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident -

(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and

(4) If a person, as a result of his or her transport accident injury, reasonably requires that a home in which he or she resides in Australia be modified, the Commission is liable -

(a) to pay the reasonable costs of modifying the home;[1]

16 Before turning to the substantive submissions made by the parties, it is necessary to resolve the approach to be taken to the construction of the provisions, because the parties were at odds on this point.

17 Mr Halley, counsel for Mr McDonald, referred to the purpose of the Act set out in s 1

... is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.

18 He submitted that in light of this purpose, the legislation is to be interpreted beneficially for those injured in transport accidents ensuring appropriate compensation is delivered. He referred to Part 3 of the Act submitting that it should be given a broad or liberal interpretation in favour of injured persons, in particular Mr McDonald. He referred to Wilson v Wilson's Tyre Works Pty Ltd (1960) 104 CLR 328 and Dodd v Executive Air Services Pty Ltd [1975] VicRp 66; [1975] VR 668.

19 Mr Masel, counsel for the Commission, submitted that the relevant provisions are to be construed according to their plain meaning, and recognising that the enacted scheme is not intended to provide all manner of benefits in all circumstances.

20 Counsel referred to passages in TAC v Lincoln (2003) 6 VR 199[2], a decision of the Victorian Court of Appeal, and Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260[3], a decision of the High Court. He submitted that s 60 of the Act, like the legislation considered by the High Court in Brown, identifies with considerable precision the types of services and costs (benefits) which are, in the case of services eligible to be approved, and in the case of costs (if reasonable) to be paid. He submitted that costs falling outside the permitted categories are excluded from the "no fault" scheme.

21 One would accept that the Act does have remedial and beneficial objectives noting the comments made in Lincoln's case. Yet, following the reasoning of the High Court in Brown, set out below, it does not follow, positing as Mr Halley does in saying that the legislation should be given a "broad" and "liberal" interpretation in favour of injured persons, that this means I should not give to the legislative provisions the meaning that those provisions require.

22 The reasoning I refer to appears in the following paragraph of Brown's case:

The "remedial and beneficial objectives" argument

[33] To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the table to Sch 1 (which extends over 12 pages) are identified with considerable precision. The clauses in Sch 1 which precede the table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable". The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".

23 Mr Halley, counsel for Mr McDonald, submitted in summary that the modifications are an eligible compensable benefit under s 60 of the Act in that :

a) They constitute a disability service, as defined in section 3(1) of the Act, and the TAC is therefore liable to pay for such services pursuant to section 60(2)(a) of the Act.

b) In the alternative to a) they constitute a rehabilitation service, as defined in section 3(1) of the Act, and the TAC is therefore liable to pay for such services pursuant to section 60(2)(a) of the Act.

c) In the alternative to or in addition to a) or b) the family home is a home in which the Applicant resides, which the Applicant reasonably requires to be modified, and the TAC is therefore liable to pay for such modifications pursuant to section 60(4)(a) of the Act.

24 Mr Masel, counsel for the Commission, submitted in summary that :

(a)

providing the proposed modifications is not the provision of a "disability service", as it is not a "service";

(b)

providing the proposed modifications is not the provision of a "rehabilitation service", as the proposed modifications are not an "appliance" or "apparatus";

(c)

the cost of carrying out the modifications is not eligible under sub-s.60(4), as the proposed modifications are not of a home "in which [the applicant] resides".

Can the Commission be liable for the cost of the modifications under s 60(4)(a)?

25 S60(4) is the provision concerning modifications to the person's home. Ultimately, the answer to this question will depend upon whether I am satisfied the parents' home is a home in which Mr McDonald resides. This is so because s 60(4) requires that they be modifications to such a home.

26 As pointed out earlier, the legislation was amended with effect from 8 December 2004. The definition was narrowed so that modifications could no longer be made to a home, they have to be to a home in which the person resides.

27 The section permits modifications to such a home, or under s 60(4)(b)(ii) the Commission is liable to contribute to the costs of relocating the person to another home that is suitable or capable of being reasonably modified. It is my understanding that, in this case, the Commission has contributed to the costs of a purpose built new home.

28 That contribution has been the cost of what was necessary to meet Mr McDonald's needs. A Capital Service Agreement between the Commission and Mr McDonald in respect of the modifications was executed on 15 October 2004, in which the Commission agreed to contribute the sum of $58,860.30. Such an agreement is provided for in s 60(5) of the Act.

29 Mr Halley's submissions referred to Mr McDonald visiting his family 1-2 days per week and being in the process of obtaining suitable transport and anticipating visiting the family home more often. He submitted it was anticipated he will stay overnight at the family home in the future.

30 Counsel's submissions focussed on the Commission's policies, about when the Commission would contribute to the modification of a second home, set out in correspondence dated 1 October 2004.

31 Whilst Mr Halley acknowledged that the policies he referred to pre-dated the legislative amendment, he referred to further correspondence received after the amendment, dated 25 January 2005. In that correspondence, the policy in relation to secondary residences was set out as follows :

The TAC will consider funding the reasonable cost of basic access, eg ramps, rails, doorway widening and minor bathroom modifications for a secondary residence which is lived in concurrently by a TAC client, for example: where a parent who is not the primary carer, has joint custody or agreed regular overnight access visits of a child client in an agreement ratified by the Family Court or agreed to in writing by both parents.

32 Counsel referred to those policies as support for the contention that "resides" did not import a notion of exclusivity, but one of regularity recognising that a person can reside in more than one home. His contention was that a person can reside in more than one home, one being the primary residence and the other being the secondary residence. He submitted the evidence before the Tribunal shows that such a situation is applicable to Mr McDonald. The family home is or is intended to be a secondary residence and the alterations are therefore an eligible compensable benefit pursuant to s 60(4).

33 The Commission's submissions were that the expression "a home in which [the applicant] resides" does not embrace occasional visits and sleepovers as may be the case in the future on the assumed facts of the application. The real purpose for which the applicant seeks the modifications it was contended, is to better facilitate visits to his parents' home, not to modify a home in which he resides, and that is a purpose which is outside the scope of the benefits that can be paid.

34 In summary, the Commission contended

i The applicant does not presently reside (in the sense of having a 'second home') at his parents' home, and proposed future residency is outside the scope of the provision. The section speaks in the present tense and contemplates a person residing at one home (see s 60(4)(b)(ii) and s 60(5)).

ii The proposed occupation being in the nature of occasional visiting, it lacks the substantial degree of occupation necessary to consider the home to be a home in which he resides. In context the word "resides" used in conjunction with the word "home" means something more than presence or sleeping over on an occasional basis. It is the place (or perhaps a place) where a person ordinarily lives. The home in which the applicant resides is his home. It is not his parents' home at which he proposes to occasionally stay.

iii The proposed "residency" (in the sense of having a 'second home') lacks the necessary attributes of :

(a) dwelling there 'permanently', or for an 'extended period' or 'considerable time'; being habitually present at the premises; (see Macquarie Dictionary)

(b) being his regular home; his settled or usual abode, the place he ordinarily eats, morning and night, and sleeps,

(d)

by ordinary common-sense standards, being 'his home'; the proposed occupation being as a convenience for occasional visits.

iv

Having another home that is clearly his regular home and he living there, away from the "family home, the 'family home' is no longer to be seen as his home, that is to say, his residence - a home in which he 'resides'".

35 Whilst Mr Masel accepted that a person can reside in two or more places over the same period (Gregory v FCT [1937] HCA 57; (1937) 57 CLR 774), he submitted that did not mean that every place other than a person's principal residence at which the person spends some time is a house in which he or she "resides". He submitted, for example, if the applicant's home was say in New Zealand, but he stayed or proposed to stay with his parents in Victoria on occasions as now contended, it could not be said that he resided in Australia.

36 His submissions went on to refer to a number of different cases, which turned on the particular legislation and facts, but which it was submitted, were all illustrative of the Commission's contention that for the purposes of s 60(4) of the Act, the expression "a home in which [the applicant] resides" does not embrace occasional visits and sleepovers as may hereafter be the case on the assumed facts of the application for review.[4]

37 Both parties recognise that it is possible to reside in more than one place.

38 Where Mr McDonald visits the family home and anticipates he may in the future stay overnight, could it possibly be said that he also resides at the family home, his parents' home.

39 The cases Mr Masel referred to were cases concerned variously with the meaning of the words "home", "house", "residence" and "domicile". The approach taken in each was to look at the legislation and the facts, and it was in that context, it was said, that the words derived their meaning.

40 In s 60(4), not only must the premises be a "home", it must be a home in which the person "resides". In that context, it is useful to consider the meaning of "resides". Mr Masel referred to its dictionary meaning in conjunction with "home". He submitted it means :

(a) to dwell permanently or for a considerable time, to abide, lie, or be present habitually in;[5]

(b) to dwell permanently or for a considerable time, have one's regular home in or at a particular place;[6]

41 In the context of the specific legislation, it is difficult to see how one could be satisfied that his parents' home was a home in which Mr McDonald resides where, on the agreed facts

- it cannot be said that he is living there permanently where he is living elsewhere permanently

- he is not and is not planning to live there for an extended period or for a considerable time

- it is not his regular home or usual place of abode or the place he ordinarily eats, morning and night and sleeps

- it is a home in which he plans to stay occasionally

42 In those circumstances, I am not satisfied it is a home in which he resides such that the Commission is liable under s 60(4) for the modifications.

43 Section 60(2)(a) provides for the payment, as compensation, of the reasonable costs of disability services.

44 Disability services is defined in s 3 to mean :

"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 or a hospital 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**;**

45 Mr Masel submitted that the definition requires that the subject matter of the compensation be the provision of a "service".

46 He submitted that this application is to meet the capital costs of modifications to Mr McDonald's parents' home and is not a claim in respect of the cost of a service. It was not possible, counsel submitted, to circumvent the clear statutory division between "services" and home modifications by suggesting a "service" could be modifying a home.

47 Mr Halley submitted that the provision of the alterations (modifications) relate to community access and/or respite care and are thus properly characterised as a disability service. As I understand his submissions, they were that the modifications could be seen as part of a structured programme in terms of community access, enabling Mr McDonald safe access to his family's home, a part of the community he will access regularly and which is clearly beneficial for his social and emotional wellbeing, and would enable the provision of respite care to be provided in the family home, as the need arose.

48 Mr Halley referred to a decision of Deputy President Macnamara in Keler v TAC [2002] VCAT 445 as support for his contentions, a case in which the definition of "disability services" as they related to community access and the operation of s 23 of the Act upon the definition, was considered. Counsel referred to the Deputy President's finding that the hiring of taxis in that case was not a disability service, and to the Deputy President's reliance at paragraph 27 that s 23 operated in such a way

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.

49 Mr Halley submitted that the alterations were not an ad hoc provision but rather part of a structured program in terms of community access, as referred to above.

50 He relied on some observations of Deputy President Macnamara in Keler's case about what constituted "community access" and the Deputy President's rejection of a contention it could not extend to "lifestyle matters". Mr Halley particularly referred to a comment in those reasons at para 27 that

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. (emphasis added)

51 In these circumstances, Mr Halley submitted that

.... alterations to the driveway of the family home to enable the applicant to visit his family is a clearer example of community access than the provision of equipment to enable surfing of the internet.

52 "Disability service" comprehends the provision of any service relating to specified things including community access and respite care, the provision of which service is authorised.

53 There is force in Mr Masel's submissions that the claim is not one in respect of the cost of a service in that it is a claim for the one-off cost of modifications. It is difficult to see that a one-off payment could be part of a structured program.

54 Even were I satisfied that the driveway modifications were essential to the provision of a service, which is part of a structured programme, it is not so clear that the service contemplated, being visits to his parents' home or stays there, would come within the meaning of community access or respite care as Mr Halley contends.

55 Mr Masel submitted that Keler's case falls into a different category. He pointed out that that case concerned whether access by taxi was a disability or rehabilitation service. There was no question that it was a "service"; the claim did not succeed because the Deputy President accepted the submission that a structured program was called for.

56 The difficulty I have with Mr Halley's submission is that he equates one-off works with the provision of services, be they community access or respite care. Moreover, whilst no one would doubt that visiting the family home occasionally or potentially for respite would assist with Mr McDonald's rehabilitation in the widest sense, it is difficult to see how the modifications could be part of a structured programme delivered by a particular provider of services. Particularly so, where the definition of "disability services" contemplates the service being an authorised service in accordance with s 23 of the Act.

Can the modifications be a Rehabilitation Service?

57 "Rehabilitation service" set out in s 3(1) means :

"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 (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23;

58 The applicant submits that the alterations are properly characterised as being the provision of an aid, appliance, apparatus or other service for the purpose of his rehabilitation.

59 Mr Halley contended that the definition of "rehabilitation service" is not exhaustive in that it is limited to the provision of any aid, treatment, counselling etc and that the words "other service" within the definition indicate an intention to encompass any things that can be characterised as such.

60 Thus Mr Halley submitted, any service that is provided to or for a person for the purpose of rehabilitation comes within the definition unless it is a hospital or disability service.

61 Counsel went on to refer to the interpretation of "rehabilitation" used in the Workers Compensation Act 1958, and to its meaning as expressed by O'Bryan J in G C Wood and Son (Aust) Pty Ltd v Cullen [1991] VicRp 62; [1991] 2 VR 214. He submitted a broad construction should be adopted.

62 Mr Masel submitted that the definition of "rehabilitation service" encompasses the provision of certain physical things, namely an "appliance" or "apparatus" (things not otherwise a "service"), but the words "appliance" and "apparatus" (which encompass prostheses, equipment, and mechanical devices designed to assist disabled persons) do not encompass structures such as a driveway or ramp.

63 A plain reading of the definition of "rehabilitation service" indicates that it contemplates the provision for the purpose of rehabilitation of firstly, particular things such as any aid, any particular treatment, appliance etc and secondly, other services for the purposes of rehabilitation that have been authorised in accordance with s 23 of the Act. The driveway modifications, being a one-off matter, would not come into consideration as "any other service" contemplated by the definition.

64 In that context, the decision in Keler's case is of little assistance because it looked at whether or not occasional taxi trips could be any such other service as contemplated under the definition.

65 The structure of the definition of "rehabilitation service" is different from the structure of the definition of "disability service" in that the latter only contemplates any service the provision of which is authorised under s 23. In contrast "rehabilitation service" contemplates the provision of an individual thing, and perhaps an obvious example would be a walking stick, or prosthesis as Mr Masel suggested, as well as the provision of counselling, treatment and any other service, the latter which has to be authorised under s 23. Where s 23 contemplates authorising services and service providers and gives the latter particular rights of review, it is difficult to see that the authorisation of services contemplated by s 23 would apply to the provision of "any aid" in the definition.

66 The definition of "rehabilitation service" contemplates the provision of any aid for the purpose of rehabilitation. "Any aid" is not defined. Given the list which follows, which includes "appliance" or "apparatus", it seems to me that "any aid" should not be read down and confined, as Mr Masel suggests, solely to equipment and the like ruling out the provision of an aid, being a structure the purpose of which is to rehabilitate a person.

67 I think that the correct approach is to consider if the aid requested, here the upgrade of the parents' driveway and ramps, will assist with Mr McDonald's rehabilitation.

68 In that context, I agree with Mr Halley that "rehabilitation" should be given a wide meaning, such as the meaning given to it by O'Bryan J in Cullen's case. In that case, O'Bryan J was considering what were medical "aids to rehabilitation". He said at p 255 :

In my opinion, the words emphasised should not be read too narrowly. A restrictive meaning should not be given to "rehabilitation" having regard to the nature of the legislation. The evidence showed 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 English 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.

69 Following His Honour's views that the interpretation of "rehabilitation" should not be confined to restoration to former health, but is wide enough to include partial restoration to a better condition and the provision of something that will assist persons whose health would otherwise deteriorate, where "health" as Mr Halley drew my attention, is defined in the Constitution of the World Health Organisation as "a state of complete physical, mental and social wellbeing not merely the absence of disease or infirmity"; it seems to me that the provision of the driveway and ramps can be an aid for the purpose of rehabilitation.

70 In reaching this view I am mindful that on the agreed facts, Mr McDonald seeks the modifications to better facilitate visits to his parents' home. The application is not about widening doorways or any bathroom modifications. It is only about providing safe access to his parents' home and whether the upgrading of the driveway and the provision of the ramps for accessibility and safe access can be the provision of an aid for the purpose of rehabilitation.

71 Having decided the preliminary question in favour of the applicant, the parties should have the opportunity to consider and if necessary each exchange any evidence they wish to rely on, relating to the questions of whether the aid will in fact assist in Mr McDonald's rehabilitation and whether the cost is reasonable.

72 In those circumstances I order that the decision of the respondent that it cannot be liable for the modifications sought be set aside and the matter remitted for re-consideration in accordance with the direction that the Commission may be liable for the modifications as a rehabilitation service.

[1] The parties agreed that the legislation to be applied is the Act as amended by Act No 94/2004. Section 60(4)(a) previously stated :

(4) If a person who is injured as a result of a transport accident reasonably requires modifications to a home in Australia because of the injury, the Commission is liable to -

(a) pay the reasonable cost of modifications to the person's home; or

Section 19 of Act No 94/2004 substituted the current provision and made it clear that the current provision applies in this case. The current provision came into effect on 8 December 2004. Section 184 of the Act, inserted by Act No 94/2004, provides that the Act as relevantly amended applies with respect to all transport accidents, regardless of when they occurred, and to all applications in respect of such accidents, regardless of when the applications were made.

[4] see for example Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217; Koitaki Para Rubber Estates Ltd v FCT [1941] HCA 13; (1941) 64 CLR 241; Re Dickenson and Secretary, Department of Social Security [1989] AATA 190; (1989) 18 ALD 58; Beck v Scholz [1953] 1 ALL ER 814

[7] dictionary.com - hhtp://dictionary.reference.com/search?q=resides

McDonald v Transport Accident Commission

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

McDonald v Transport Accident Commission (General) [2006] VCAT 183 (16 February 2006)

Parties

Legislation Cited (1)

Cases Cited (5)