Moore-McQuillan v Workcover/Vero

4 On 6 March 2000 the President gave a direction, pursuant to WCTR 10, that all outstanding matters not part heard or pending decision were to be consolidated within what proved to be file number 680 of 2003; and that the applicant file and serve a consolidated statement of claim setting out the compensation sought "and the factual and legal basis in support thereof". The respondent was directed to file a defence to that claim.

5 In view of the then past litigation history between the parties the President informed them that, unless there was good cause, he would regard the continued filing of notices of dispute as inappropriate. He stated that he would be inclined to invoke the above Rule and direct that such proceedings not be assigned and be struck out by the Registrar.

6 The applicant filed a consolidated claim on or about 31 January 2003. In it he identified some 92 specific files raised within the Tribunal registry. He also pleaded a series of other claims for which no file references were given. As to certain of them no relevant documentation can be located within the registry.

7 However, as to 15 matters additional to the 92, documentation was recently located and formal files raised in relation to them. Although various batches of the documentation bear registry receipt stamps respectively dated 24 July 1997, 30 December 1997 and 20 January 1998, no steps were taken, at the relevant times, to process them in accordance with the relevant provisions of the Workers Rehabilitation and Compensation Act 1986 ("the Act") and/or the Rules. The reason for this is not apparent.

8 At my request the requisite formal steps were recently initiated, in relation to those 15 matters, to ensure that relevant properly identified claims, processed in accordance with the Act, could be heard and determined in accordance with the President's direction. This was a matter of some practical importance, as the hitherto non-processed claims encompassed various asserted disabilities said to consist of (or flow from) an illness or disorder of the mind. I shall globally refer to these as "psychiatric disabilities".

9 A formal defence to the applicant's statement of claim was filed by the respondent on or about 1 April 2003.

10 Having become seised of the various matters, I ruled that, to enable the disputes between the parties to be disposed of in an orderly manner, the various files within matter 680 of 2003 be grouped together in convenient, related batches for the purpose. So far as was practicable, they were called on and heard in that fashion, although some of the evidence adduced was relevant to a variety of topics and batches.

11 A third file, 8704 of 2003, was separately assigned to me by the President on 20 April 2004. As this raised issues that, in practical terms, were related to those arising within matter 680 of 2003 it was appropriate to deal with them as being, in effect, an adjunct to that matter.

12 These reasons comprise what will be the first of a series of successive reasons for determination, dealing with the various aspects that have arisen in relation to the matters encompassed by files 680 of 2003 and 8704 of 2003.

13 It is first convenient to summarise certain of the narrative history and some aspects of the history of relevant determinations and processes, prior to dealing with the specific issues arising from the many files encompassed by the present proceedings. That material also serves as a useful backdrop against which the bulk of the oral evidence arising in relation to all matters to be addressed may best be appreciated and analysed.

14 The logical commencement point for present purposes is a determination of Review Officer Lovering published on 27 August 1991.

15 This arose from the lodgement by the applicant of a claim dated 21 January 1991 for compensation under the Act. In that claim he asserted that, at 7.00 am on 9 September 1990, "While going down stairway to open door for Glen Thomas (casual employee) slip [sic] & lost footing on stairs and slid to bottom of stairway". The claim form contained a description of the resultant injury as "Damage to left knee area & left three toes".

16 On 28 March 1991 WorkCover Corporation rejected the claim on the ground that the asserted disability had not arisen out of or in the course of any relevant employment of the applicant by Wolf Air and Dive Shop.

17 The applicant disputed that rejection and, accordingly, the matter came before the Review Officer for determination at a hearing conducted in July and August 1991.

18 In her above decision the Review Officer, inter alia, made the following findings of fact:-

"The worker gave evidence and there is documentation on file that the worker had a very loose arrangement with the owner of Wolf Air and Dive Shop, Mr Wolf Seidl. The arrangement was in two parts, firstly that the worker would mind the shop whenever Mr or Mrs Seidl was not present. The shop was open between 10 a.m. and 5 p.m. weekdays and between 7:30 a.m. and 1:30 p.m. and between 6 p.m. and 7 p.m. on each weekend.

Secondly the worker had an arrangement with the Seidls that he would give diving instruction to clients who paid for courses to the Dive Shop. The worker told the hearing that the number of courses rose from about 2 to 30 per month by the time he left. The diving was organised during the shop hours but the courses, both practical and theoretical, had to be run outside shop hours. Participants paid between $200 and $320 for these courses but the worker received only $70 to $90. Mrs Skinner told the hearing she had paid $320 for an open water diving course to Mr Ian Arnott, an employee of the Wolf Air and Dive Shop in January, 1990. Mrs Seidl produced at the hearing an invoice of expenses for Catherine Skinner and this included $90 for instruction, a dive board and a manual amounting in all to $148.50. The balance of $171.50 would have been incorporated in the Dive Shop account as confirmed by Mrs Seidl at the hearing.

The worker said he was not paid by the Seidls until each course was complete and each participant had paid all their bills, including bills for purchase of equipment. It was the worker's contention that this was a quite separate business. Mr Seidl did not have instructor qualifications as did the worker who was required by law to have professional indemnity insurances to cover any accident to students. This insurance did not cover the worker himself.

To help the worker the Seidls had permitted him to live on the shop premises upstairs. He was not charged rent or electricity. Also upstairs was a club room for divers, a tank room which had a shower and a toilet nearby, a classroom to give instructions and a second smaller classroom which the worker used as a bedroom. Downstairs was a food area and a shop in which diving equipment was sold. By the time of the accident the worker was tired of the constant workload and had decided that he preferred not to work weekends. However, because he was living in the shop he would open the shop in the weekends and attend the shop until Mrs Seidl came with either Glen or Peter to do the work. He could only start his diving instruction courses on the weekends when the shop was already staffed. He said that out of hours customers would often come to the shop and bang on the door for service.

On Sunday, the 9 September 1990 the worker, who had got up earlier to check his gear, heard a loud banging on the back door at approximately 7 a.m. and on going down the steps he slipped and injured his knee. The person banging was Glen Thomas who had turned up at 7 a.m., half an hour earlier than he had been asked to do in order to help mind the shop with Mrs Seidl for that morning. Mrs Seidl told the hearing she had no idea of what the diving gear was for or how it operated and therefore had to have a helper with her. The worker said Mrs Seidl had a key. Clearly Glen Thomas was not given a key but depended on being let in by the worker.

Also present was Ms Skinner who had stayed the night with the worker and had followed the worker down the stairs and witnessed the accident. Ms Skinner and a group consisting of about seven students went to Noarlunga beach for an Advanced Rescue Course which was organised by the worker. The course lasted for about an hour and a half and in the afternoon there was a second course at the Baliana pool in Goodwood Road.

The worker gave evidence that although his knee became swollen almost immediately he had to continue directing those courses. One of the participants was a Doctor Catherine Pye who advised him to put ice on the knee and to rest it as much as possible. He attended to the shop between six and seven o'clock that night and did not rest until about eight o'clock.

As Mr Seidl was away he continued working until Wednesday, the 12th September. On his return Mr Seidl told him to go off and rest his knee and requested he returned to work on the 4th October, 1990. The worker did not instruct the beginner diving courses, which require a very fit instructor. He was able to direct advanced courses and contacted three other diving instructors to help with the course numbers for the next few months. These courses were arranged by the worker and all payments were made to the Dive Shop which also paid the instructors. The worker gave evidence by letter received on the 20 August 1991 that 55 students were involved in the courses organised between September and December 1990, which at $90 per student amounts to $4950 or $330 per week. This is in accord with his earnings as an instructor with the Seidls from July to the date of his accident when he earned $3236.50 amounting to $323.65 per week."

19 The Review Officer found that the arrangements between the applicant and the owners of the Wolf Air and Dive Shop had been terminated as of 31 December 1990.

20 On the evidence before her the Review Officer concluded that, at the time of the accident, the applicant had been employed under a contract of service with the owners of the Wolf Air and Dive Shop and that, when he went to answer the door to let in the casual shop assistant, he was, himself, already at work preparing the diving gear for the morning course.

22 As to the issue of disability the Review Officer said:-

"I find that although no formal medical certificate was tendered for the period of the 13 September to the 3 October 1990 that [sic] the worker was examined by Doctor Catherine Pye who reported on the 18 February 1991 that she had advised him to have some time off and rest his knee. I am satisfied that during that period of the 13th September and the 4th October that [sic] the worker was partially incapacitated and was sent off by his employer who did not want him back until 4th of October 1991 [sic]. For this period the worker's partial incapacity shall be deemed total".

23 The Review Officer noted that, following the termination of his arrangement with the Seidls, the worker aggravated his injury on 12 January 1991 while self-employed as a diving instructor for advanced courses. The applicant had consulted Dr Begg who gave him a backdated medical certificate and referred him to Dr Moss, an orthopaedic surgeon.

24 The formal determination made by the Review Officer on 27 August 1991 was expressed in the following terms:-

"......... I set aside the decision of the WorkCover Corporation made on the 28 March 1991 and substitute for that decision my determination that the worker suffered a compensable disability on the 9th September 1990 and has been partially incapacitated since that date.

He was put off work by his employer for the period of the 13th September to the 4th October for which closed period his partial incapacity must be deemed total. He was then partially incapacitated for a period from the 4th October to the 31st December when he sustained loss of income amounting to $330 per week.

After his dismissal by the employer he has been certified by medical practitioners as still partially incapacitated and is unfit to do his diving instruction. From the 1st January 1991 he is therefore entitled to income maintenance, the calculation of which I leave to the parties. The worker is entitled to interest on arrears of payments pursuant to section 47 of the Act."

25 The parties were unable to agree the quantum of the income maintenance payable to the applicant. Accordingly, following disputation between them, that issue eventually came before Review Officer Pope in mid 1995. By determination dated 13 October 1995 Review Officer Pope, having received considerable evidence in relation to the matter, determined that the applicant had an entitlement to $1024.19 for notional weekly earnings at the time of his incapacity for employment arising from his compensable disability.

History of relevant processes and determinations

26 The broad history of payments of weekly income maintenance by the respondent to the applicant can, in the main, be discerned from a combination of decisions of this Tribunal. The most relevant of these are Moore-McQuillan v WorkCover/Royal & SunAlliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2001] SAWCT 30 (Decision of McCouaig DP), Moore-McQuillan v WorkCover Corporation/Royal & SunAlliance Workers Compensation (SA) Ltd Wolf Air and Dive Shop) [2001] SAWCT 99 (decision of a Full Bench of the Tribunal) and my own decision reported as Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (formerly Royal & SunAlliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2004] SAWCT 38. I shall, as a matter of convenience, refer to the above three decisions as the first decision, the second decision and the third decision respectively.

27 At the risk of some oversimplification the relevant progression of events may be summarised as under:-

28 The respondent commenced making weekly payments to the applicant with effect from 9 September 1990.

29 Because the parties were unable to agree quantum following the decision of Review Officer Lovering, the respondent made the series of unilateral determinations that are referred to in par 13 of the third decision and payments based on them.

30 The payments were recalculated following a determination of Review Officer Pope, in 1995, that resolved the ongoing dispute as to quantum. Various so-called "Backpay" payments were made by the respondent to the applicant as described in the third decision.

31 Save for weeks in which either no or only reduced payments were made by reason of monies earned by the applicant, weekly income maintenance payments continued, in accordance with determinations made from time to time, up until the date of the first decision (namely, 27 March 2001).

32 On 24 February 1999 the respondent advised the applicant that it was considering a possible assessment of loss of future earning capacity as a capital loss pursuant to s 42A of the Act. It required the applicant, within 28 days, to furnish it with certain specified information to enable it to consider its situation.

33 It is said that, despite a repeated request for the information sought, the applicant did not supply it.

34 As a consequence, on 1 December 1999, the respondent determined to suspend weekly payments. The applicant thereupon filed a notice of dispute, thereby preserving a continuance of weekly payments.

35 By letter dated 22 October 1999, the respondent also gave notice of intention to conduct a s 38 review of weekly payments. It invited him to forward any written representations within 28 days. The applicant did not accede to that invitation.

36 In the result, by letter dated 1 December 1999, the respondent, having conducted such a review, determined to reduce weekly payments from $1244.58 to $220.70. This was based on an asserted earning capacity of the respondent at that time.

37 The applicant also filed a notice of dispute in relation to that determination.

38 The two notices of dispute gave rise to a lengthy hearing before McCouaig DP in December 2000 and January 2001.

39 In the first decision the learned Deputy President concluded that the request for information related to a possible s 42A assessment had been made for a collateral purpose and was not a bona fide request for the purpose stated. He also came to the view that it was not a reasonable or proper exercise of the respondent's obligation to administer the Act in an even-handed way. For that reason he set aside the determination to suspend payments.

40 As to the s 38 review determination the learned Deputy President, inter alia, reviewed a great deal of surveillance and oral evidence directed to the activities of the applicant. He concluded that the applicant was capable of working as a diving instructor - to the extent that it was reasonable to infer that he was then earning, or able to earn, not less than his notional weekly earnings. For that reason he affirmed the respondent's s 38 determination "save that, in accordance with my finding, the worker is now earning or able to earn not less than his notional weekly earnings in suitable employment as a diving instructor, his new entitlement is fixed at nil".

41 The applicant appealed against that decision. On 6 December 2001 (in the second decision) the Full Bench held that the learned Deputy President erred in making a determination that the applicant's entitlement was to be reduced to nil.

42 The appeal was allowed on the footing that, in the circumstances, the proper determination was to affirm the respondent's s 38 determination to reduce weekly payments of income maintenance to $220.70 gross. No justiciable issue had ever arisen in relation to any reduction below that figure, much less a total discontinuance of payments.

43 By determination dated 29 November 2001 the respondent conducted an annual review of entitlement to weekly payments and, pursuant to s 39 of the Act increased them to a full weekly rate of $293.81, reduced to an 80 per cent rate of $235.05. The applicant filed a notice of dispute asserting that the review failed to recognise applicable award rates (Matter 8902 of 2001). This was referred for judicial determination on 15 January 2002, but the matter was never listed for hearing.

44 The respondent, having continued payments to the applicant up to 28 March 2001 at a weekly rate of $995.67 in excess of that to which he was found entitled, instituted proceedings in the District Court to recoup $51,147.64. These moneys were said to be recoverable by it from the applicant pursuant to the provisions of s 36(5) of the Act.

45 On or about 1 November 2001 the respondent notified the applicant that it had completed a review of his entitlement to weekly payments. (See file in respect of Matter 8468 of 2001). It determined that such payments be discontinued. It is fair to say that such determination was, in the main, expressed to be based upon the factual findings of McCouaig DP in the first decision. On 21 November 2001 the applicant lodged a notice of a dispute in respect of the determination to discontinue weekly payments. On 14 December 2001, this matter was referred for judicial determination. However, once again, it has never been listed for hearing.

46 On 6 February 2002 the matter came before CAO Kohn. At that time he directed, pursuant to s 36(4)(b) of the Act, that the determination be suspended until further order. I infer that weekly payments thereafter resumed, by reason of that suspension.

47 It is to be noted that, on 24 October 2001, the applicant lodged a notice of dispute that appears on file 7760 of 2001. This appears to relate to a notice dated 4 October 2001, by which the respondent advised the applicant of its intention to conduct a review of weekly payments. The notice of dispute was said by the respondent to therefore relate to a non-reviewable decision. No further processes took place on that file and it appears that nothing further is required in relation to it.

48 The file in respect of Matter 927 of 2002 reveals that, on or about 23 January 2002, a notice was served by the respondent on the applicant advising him of the respondent's intention to conduct a s 38 review of weekly payments. The notice required him to attend Mr Peter Fry, an orthopaedic surgeon, for a medical examination on 15 February 2002.

49 A dispute then arose between the applicant and the respondent, by virtue of the fact that the former objected to an examination by Mr Fry in particular. He refused to attend as requested.

50 This dispute culminated in the writing by the respondent to the applicant of a letter dated 7 February 2002. That letter required him to show cause why weekly income maintenance payments should not be suspended as a consequence of his refusal to attend for the medical examination. The respondent wrote a further letter to the applicant on 18 February 2002. This purported to suspend his weekly payments pursuant to the provisions of s 38(6) of the Act as at the close of business on 20 February 2002. This was upon the footing that he had been given until then to supply valid reasons for not attending the nominated doctor.

51 The applicant filed a notice of dispute dated 21 February 2002 in respect of the suspension (file 927 of 2002). He had also filed two earlier notices of dispute in relation to the subject matter of the ongoing dispute concerning the proposed Fry examination.

52 A formal determination sent by the respondent to the applicant on or about 27 February 2002 asserted that the applicant had failed to respond to the requirement of the letter of 18 February 2002. It alleged a breach of mutuality and gave notice of the respondent's intention to discontinue weekly payments after the expiration of 21 days.

53 This does not seem to have precipitated a further notice of dispute by the applicant. The three notices of dispute that had been filed were referred to CAO Kohn, who, by letter dated 13 March 2002, convened a compulsory conciliation conference on the 11 April 2002. On 12 April 2002, CAO Palmer referred the matter for urgent judicial determination and, pursuant to s 36(4)(b) of the Act, directed resumption of weekly payments in the interim.

54 It is to be noted that, although the documentation before me does not contain any reference to a notice of dispute in relation to the determination of 27 February 2002, nevertheless, that determination seems to have been treated as one of the matters in dispute at the conciliation conference. It is certainly specifically referred to in the written referral and direction of CAO Palmer.

55 Running somewhat in parallel with the above developments and in the context of them, the appellant initiated a large number of processes in the Tribunal, related to other asserted entitlements under the Act.

56 Against the foregoing background it is convenient to address these sequentially, more or less in the order in which they were considered at the hearing. I will first address a series of discrete issues, as to which evidence and argument are now complete. I will separately deal with other ongoing issues in due course.

Matters Numbers 5801 to 5806, 5817 and 5825 to 5827 of 1998 - Costs related to expedited decision applications:-

57 Determinations were ultimately made in relation to all these files. At a compulsory conference held before CAO Pope on 5 November 1998, she recorded an agreement by WorkCover to pay a total of $50 disbursements in respect of the above files. (See her letter to RSA dated 9 November 1998).

58 When this matter initially came before me the applicant asserted that the $50 had not been paid to him. As a response to such assertion the respondent produced copies of its computer records indicating that a cheque for $50 was drawn in favour of the applicant on or about 24 November 2000 and presented for payment on 29 November 2000.

59 Although the applicant initially stated that he had no record of any such payment he later conceded that he had located such a record (tr 2072 - 2073).

60 Accordingly, all aspects of the above matters have been finalised and there is no outstanding, unresolved issue for my determination.

Matter 5807 of 1998 - Claim for $1350 for cost of labour to relay defective pavers at home:-

61 This matter was the subject of a compulsory conference held before CAO Pope on 5 November 1998. The outcome is recorded in the following note made by her:-

62 Once again, the respondent produced copies of its relevant computer records. These indicated that a cheque for $1350 had been drawn in favour of the applicant on or about 18 September 1998 and presented for payment on 23 September 1998.

63 As appears at tr 2072 and 2073, the applicant eventually acknowledged that he had also located the record of that payment.

64 It follows that there is no outstanding, unresolved issue on the file in question arising for my determination.

Matter 5808 of 1998 - Request for expedited decision re costs pursuant to s 95 in relation to file 61/98:

65 A perusal of the relevant file indicates that CAO Pope advised the applicant by letter dated 9 November 1998 that the request was refused as a consequence of the subject matter having been dealt with at a compulsory conference on 5 November 1998.

66 In this case also there is no residual matter remaining for determination.

Matters 5809 - 5816, 5818 - 5819 and 5823 - 5824 - Applications for expedited disposal:

67 A perusal of the related files reveals that they do not give rise to any matters now requiring expedited decision. All have been, or are being, processed in accordance with normal procedures.

Matters 5820 - 5822 of 1998 - Application for expedited decision re costs of various matters:

69 According to the relevant files, CAO Pope wrote to the applicant on 9 November 1998 confirming that an outcome of a conference held on 5 November 1998 was that the agent for WorkCover agreed to pay reasonable disbursements associated with the above matters. The CAO formally recorded "I award reasonable disbursements to you for the lodgement of the applications and attendance at the conference."

70 The applicant contends that the relevant disbursements have never been agreed or paid to him and he seeks a determination as to quantum and confirming his right to payment pursuant to the pronouncement of the CAO.

71 The files that are the subject of these matters all relate to applications for expedited decision. These, together with other files that were the subject of the award of $50 disbursements above referred to, came before CAO Pope in the context of the statutory conciliation conference to which I have earlier referred.

72 By notice in writing to the applicant dated 9 November 1998 CAO Pope, inter alia, formally pronounced the above situation in these terms:-

"I find that the outcome of the conference of 5 November 1998 is that the agent for WorkCover has agreed to pay reasonable disbursements associated with your actions on the files listed above. A decision has therefore been made on applications pursuant to section 97: 5021. 5820. 5819. 5018. 5816. 5015 and 5822 1998.

I therefore have no further jurisdiction with respect to them. I award reasonable disbursements to you for the lodgement of the applications and attendance at the conference on 5.11.98."

73 I took the parties, ultimately, to be in agreement that it would be not unreasonable to allow an average of $5 per file as a proper disbursement to cover the expense of production of each of the seven applications in question. Neither party was able to provide any accurate information as to the length of time for which the relevant conference ran. The applicant suggested that it may well have exceeded two and a half hours, whereas Mr Downs initially suggested that an hour would be an adequate time allowance. After some discussion in which I suggested that the latter estimate would appear to be a little unrealistic, he accepted that two hours would be reasonable. I agree with that concession. This would give rise to an allowance of $10 for the cost of parking. Mr Downs agreed to mileage of $18.

74 In the result, there is an amount of $63 payable to the applicant. I determine accordingly.

Matter 5487 of 1998 - Claim for interest amounting to $4276.25 in respect of various amounts the subject of determination by Thompson DP in his decision JD 2/1998:

75 In the above decision Thompson DP determined, on 19 January 1998, that the respondent was liable to pay the applicant a total sum of $11,832.77 in respect of legal costs, expenses related to house, yard and car cleaning, dental costs, costs of newspapers, analgesics and crutches and for mileage. It is asserted by the applicant that the various amounts due to him were not paid for considerable periods after the date of the determination. On the basis of computations annexed to the notice of dispute on the above file the applicant claimed the above amount of interest said to be due to him pursuant to the provisions of s 47 of the Act.

76 The response of the claims agent was to the effect that there was no statutory requirement to pay the interest in question and that s 47 was limited in its application to payment of interest in respect of late payments by way of weekly income maintenance.

77 S 47 of the Act appears under the heading "Augmentation of weekly payment in consequence of delay". It reads as follows:-

(a) a weekly payment, or part of a weekly payment, is not paid as and when required to be paid under this Act; or

(b) the making of a weekly payment is delayed pending resolution of a dispute under this Act,

any amount in arrears shall be increased by interest at the prescribed rate.

(2) No interest is payable under this section if the delay is attributable to some fault on the part of the worker.

78 There is no other provision of the Act that requires payment of interest in respect of entitlements conferred by the statute.

79 A somewhat similar issue arose in Kostek v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Venue Services) [2000] SAWCT 96. That case related to a claim for an assessment of loss of future earning capacity pursuant to s 42A of the Act. Counsel for the applicant sought payment of interest in respect of an interim assessment of a capital sum for loss of future earning capacity. It was argued that, although paid as a lump sum, an interim assessment of the type in question was dependent for its calculation on the quantum of weekly payments previously paid to the worker and that, accordingly, it was of the same genus, providing financial relief to an incapacitated worker.

80 In the course of her reasons for decision Parsons DPJ expressed the view that there was no ambiguity on the face of the relevant statutory provisions that would permit the Tribunal to apply the considerations raised by counsel for the applicant in the interpretation process. According the words of the statute their ordinary meaning and reading them in the context of the Act as a whole, it could not be said that an interim assessment of loss of future earning capacity constituted a "weekly payment" as referred to in s 47. As the entitlement to interest was limited by the section to weekly payments, there was no power in the Tribunal to award interest in other circumstances.

81 In so concluding Parsons DPJ applied the former decision of Thompson DP in Kaesehagen v The Corporation (HIH Winterthur CW and JF Martin) [1997] SAWCAT 99.

82 That case also concerned late payment of an assessment of loss of future earning capacity. The applicant there sought to rely upon an asserted common law principle that a public body responsible for the payment of moneys to a citizen should not be allowed to profit from the windfall it received as the result of a late payment for which the citizen was in no way responsible. It was further argued that the words "weekly payment" employed in s 47 were generic in nature and should be accorded a liberal interpretation.

83 Thompson DP rejected these arguments. He said that he was unable to discern any common-law principle of the nature asserted, saying "The principle for which he [counsel for the applicant] contends might well be a product of Jeffersonian idealism: but the moral ideal does not produce a legal right." He further upheld the Corporation's contention that the expression employed in s 47 was intended to convey precisely what was said and that it related only to weekly payments by way of income maintenance.

84 With respect, it seems to me that the reasoning of both Parsons DPJ and Thompson DP is clearly unassailable. I, too, am unaware of any common law principle of the nature propounded in Kaesehagen. Moreover, s 47 is expressed in clear and unambiguous language that is not capable, in context, of supporting the type of proposition sought to be advanced either by the applicant in this case or counsel for the applicants in the above authorities.

85 It follows that the claim for interest made by the applicant in this matter must be rejected. The Tribunal has no jurisdiction to allow it.

Matters Nos 8476 of 2001, 8205 and 1303 of 2002, and 8704 of 2003 - Claims for reimbursement of insurance premiums and membership renewal for these said to be payable to PADI Asia Pacific:

86 As I understand his evidence, the applicant is accredited by and holds a licence from PADI as a duly qualified master diving instructor. Associated with that licence is an insurance cover that protects him against any claims by students. The evidence suggests that, for all practical purposes, the taking of the insurance cover is a compulsory adjunct to the continuance of the licence. The continuance of the licence is subject to payment of an annual renewal fee. An annual premium is payable in respect of the insurance cover, which also runs only from year-to-year.

87 The applicant said in evidence that annual renewal of the licence is automatic, upon payment of the licence fee and insurance premium. No renewal medical examination is required. The specialist medical witness Dr Acott verified the latter aspect. The Doctor described this as, in his opinion, a distinct weakness in the system.

88 It is unlawful for a person to act as a diving instructor for reward unless that person holds an appropriate current licence issued by either PADI or some other approved licensing body.

89 The applicant conceded that, up to and including the year 2002/2003, he personally paid the annual licence fee and insurance premium. He did not pay the amounts in respect of the 2003/2004 year because, he said, he simply could not afford to do so - despite an insistence by the claims agent, over time, that he maintained his professional qualifications.

90 Early in December 2003 the applicant forwarded an account received from PADI for his annual licence renewal fee ($247.50) and insurance premium ($599) for 2003/2004 and claimed payment of those amounts.

91 By determination dated 10 December 2003 that claim was rejected on the following expressed grounds:-

"1. Prior to and after 9/9/1990 (your date of injury) you maintained your own membership of PADI. Further upon research prior payments Vero Workers Compensation is unable to identify that we have ever paid for your diving expenses.

In the opinion of Deputy President McCouaig in SAWCT 30 (2001) and on the basis of the other information, you are deemed capable of performing the duties of a diving instructor and/or dive shop manager.

Reference is made to the decision of His Honour Deputy President R. McCouaig in Judicial Determination SAWCT 30 (2001) wherein it is stated at point 141 `In terms of the Corporation's determination dated 1 December 1999, I find that the worker is capable of working as a diving instructor'.

Reference is made to the decision of His Honour Deputy President R. McCouaig in Judicial Determination SAWCT 30 (2001) wherein it is stated at point 142 `The worker's employment in 1990 also included managing a dive shop. Most of these `shop' activities he has been performing from his home. I am satisfied and find on the evidence that he has been and remains capable of performing the sort of work that he did previously in that capacity.'

Reference is made to the decision of His Honour Deputy President McCouaig in Judicial Determination SAWCT 30 (2001) wherein it is stated at point 153 `Given that his capacity to work as a scuba diving instructor/dive shop manager has not been diminished on account of his compensable disability, in the absence of any evidence to indicate otherwise, it is reasonable to infer that he is now earning or able to learn not less than his notional weekly earnings.'

In the opinion of and as found by Deputy President McCouaig in SAWCT 30 (2001) your incapacity for work has ended."

92 The various files before me reveal that, on or about 21 November 2001, the applicant filed a notice of dispute complaining of a refusal by the respondent to pay $1465 being the PADI renewal for 2001/2002 and cost of a course then to be conducted in Sydney. The respondent confirmed a rejection of the claim and this was referred for judicial determination on 14 December 2001 (file 8476 of 2001). During the course of the hearing the applicant said that he did not attend the course in Sydney because he could not afford to do so. The cost of the course is therefore no longer an issue.

93 On or about 22 November 2002 the applicant filed a notice to expedite a decision in relation, inter alia, to a claim for $465.80 being the cost of his diver qualification renewal in respect of the year 2002/2003 (file 8205 of 2002). The claim was rejected by determination made on 19 December 2002. This was followed by a notice of dispute lodged on or about 28 February 2002 (file 1303 of 2002). The refusal was confirmed on review and CAO Palmer referred the matter for judicial determination on 12 April 2002.

94 Dr Acott was a witness actually called by the applicant at trial. He is a specialist in underwater medicine and a specialist anaesthetist. He is, in particular, the Director of Diving Medicine at the Royal Adelaide Hospital in the hyperbaric medicine unit. His evidence disclosed that he, himself, is an experienced diver.

95 This witness examined the applicant on 26 February 2004. He did so for the purpose of determining whether the applicant was medically fit to hold a diving instructor's licence. He was unequivocally of the opinion that the applicant was not so fit, for a variety of reasons. Those reasons included the applicant's lack of mobility, his obesity, his grossly elevated blood pressure, his susceptibility to blackouts, his reduced lung function and his poor left ear hearing function. I took the witness to say that, in fact, any one of those factors, taken alone, was sufficient to disqualify the applicant from holding the necessary licence. He went further. He expressed the view that, having regard to the applicant's physical condition and weight, it could actually be dangerous for him to dive.

97 When, in cross-examination, the applicant was asked about the reasons why he sought to renew his licence, against the background of Dr Acott's evidence, he responded to the effect that he desired to keep his qualifications current, to be able to teach diving in the future. He said that, in 1992, WorkCover had insisted that he do so in any event.

98 The applicant conceded that he had given much of his diving equipment to various other persons and said that some of it did not meet present standards.

99 When pressed, he stated that he had no idea whether, in the future, he would resume diving activities. He did not know whether he was capable of doing so, having regard to Dr Acott's evidence. He had serious reservations, because of the lesions in the left part of his temple.

100 When asked whether he claimed to be totally incapacitated from diving he said that he `had no way of answering that'. However, he finally commented that `there would be a fair bit of concern about whether I go back and do diving'. He accepted that he was currently unfit for diving, but made the point that, if he did not renew his PADI licence, he would have to re-qualify from scratch. His medical conditions would prevent him from achieving such a re-qualification.

101 In the course of his cross-examination the applicant conceded that, between 1998 and 2000, he was able to conduct diving courses with the assistance of a person named Graham Rorie. There is no evidence before me to the effect that, thereafter, he was fit to or did engage in, diving activities or taught diving. His evidence to date would suggest that he was not.

102 The claims now prosecuted are based on s 32 of the Act. This provides that a worker is entitled to be compensated for costs of a kind stipulated in the section that are "reasonably incurred by the worker in consequence of having suffered a compensable disability." The section then sets out the following list of generic types of cost:-

(b) the cost of hospitalisation and all associated medical, surgical and nursing services;

(d) the cost of travelling, or being transported, to and from any place for the purpose of receiving medical services, hospitalisation or approved rehabilitation (but not where the worker travels in a private vehicle);

(e) where it is necessary for the worker to be accommodated away from home for the purpose of receiving medical services or approved rehabilitation--the cost of such accommodation (but not exceeding limits prescribed by regulation);

(f) the cost of attendance by a registered or enrolled nurse, or by some other person approved by the Corporation or of a class approved by the Corporation, where the disability is such that the worker must have nursing or personal attendance;

(g) the cost of the provision, maintenance, replacement or repair of therapeutic appliances;

(h) the cost of medicines and other material purchased on the prescription or recommendation of a medical expert;

(i) any other costs (or classes of costs) authorised by the Corporation."

103 The evidence indicates that the Corporation has approved five classes of costs for the purposes of subclause (i) above. These are:-

104 Mr Downs presented a multi-pronged argument in defence of the rejection by the respondent of the various claims put forward by the applicant. The points made by him may be summarised thus:

* The claims made are not of a genus recognised by s 32, or the classes of costs approved by the Corporation pursuant to subclause (2)(i) of that section.

* Even if they were a class of costs falling within the purview of the section, it could not be said, taking the applicant's evidence at its highest, that they were costs incurred by the applicant in consequence of having suffered a compensable disability; and

* In any event, in all of the circumstances revealed by the evidence, the costs in question have not reasonably been incurred to the extent that it can properly be said that they have been "incurred" at all.

105 It is fair to say that, in addressing the Tribunal, the applicant did not really come to grips with those contentions. Rather, he focused on statements said to have been made to him by case officers to the effect that, to maintain his entitlement to weekly payments, he had to continue his diving qualifications, albeit at his expense. He also stressed the need to keep current in relation to changing PADI requirements over time, and the role played by Graham Rorie in relation to his attempts to do so. He further emphasised the need to maintain his insurance cover, so as to ensure protection against claims in the future, that might stem from past events. He sought to agitate an argument to the effect that earlier determined rates failed to recognise the rates set under the Ports Corporation Enterprise and Bargaining Agreement and the requirements set for recreational divers.

106 The provisions of s 32(2) are essentially directed to medical, hospital, nursing and allied services, rehabilitation services, associated travel and accommodation costs, the cost of provision and maintenance of therapeutic appliances, the cost of medicines and other prescription items and the like. The first four additional authorised costs really fit the same mould. Their essential thrust is pitched at para-medical treatment and rehabilitation processes. The final approved class is not directly related to such topics. It deals with assistance in basic home maintenance tasks.

107 It is at once apparent that the PADI related costs do not, on the face of them, fall within any of the statutory or other approved categories. In particular, they are not even costs related to approved rehabilitation services. They are regularly recurring costs that would have had to have been met by the applicant in any event had he not sustained his injuries, in order to pursue his occupation as a diving instructor. He would have had to have done so in the same manner as a professional diver would have had to take out an annual renewal of his diving licence.

108 In the course of his submissions the applicant referred to the content of the decision of Thompson DPJ in JD1/1998. He pointed to references in that decision to the allowance, or potential allowance, of the costs of embarking upon a course in Japanese. He sought to draw some parallel between that and the present matter. The short answer to such a contention is that the costs there in contemplation were not costs that would ever have had to be incurred in any event, in the normal course. They were proposed costs related to a worker equipping himself, by way of rehabilitation, to embark upon a form of work not previously carried out.

109 Further, I consider that Mr Downs is correct when he argues that, even if it could be said that the costs somehow fell within the ambit of the section, they, nevertheless, could not properly be described as costs incurred by the applicant "in consequence of having suffered a compensable disability". In truth, as I have pointed out, they had nothing to do with his disabilities per se. They were recurring expenses that normally arose in the course of his working life, regardless of his injuries and their sequelae.

110 For the above reasons the claims made were properly refused.

111 If it be considered that I am in error in that conclusion, I further conclude that, on the applicant's own evidence, it cannot be accepted that the costs in issue were reasonably incurred. In the case of the claim in respect of the period 2003/2004 the costs have not been incurred at all.

112 As to the last mentioned claim there are three published decisions that are relevant.

113 A convenient commencement point is the decision of the Full Court of the Supreme Court in Metro Meat Ltd v Banjanovic (1989) 52 SASR 102. Although that case turned on a statutory provision which differed somewhat in precise expression from that now under consideration, the conceptual reasoning in it is equally applicable to s 32. In his judgment, King CJ stressed that the requirement of reasonableness attached to the incurring of the relevant cost by the worker. As he put it "The test is the reasonableness of action of the worker in making himself liable to pay the charge." That reasonableness of action falls to be determined having regard to all the circumstances of the case.

"...the worker must have acted reasonably in procuring of the rendering of the service and in engaging himself to pay the amount charged. I see no justification for confining the requirement of reasonableness to the quantum of the charge. A person cannot be said, according to ordinary use of language, to have incurred a reasonable expense if he acted unreasonably in procuring the service to be rendered in the sense, that is to say, that he knew or ought to have known that the service was of little or no benefit to him or that the benefit could be reasonably obtained in another and cheaper way."

115 That reasoning is implicit in the decision of the Full Bench of the Tribunal in WorkCover/Allianz Australia (Stephen Nelson Adelaide Electrical Services Pty Ltd) v Nelson [2002] SAWCT 47. It was there said that the proposed expenditure required an objective evaluation of matters such as its nature and purpose, the actual costs, and the rehabilitative benefit likely to arise.

116 As was pointed out by Hardy DP in The Corporation (Cheap Foods Mt Gambier v McKie [1996] SAWCAT 43, applying the reasoning in Banjanovic, a claim cannot arise under the section unless and until a worker has actually engaged himself to pay the amount in question.

117 Not only did such a situation not arise in respect of the period 2003/2004, but, also, viewed objectively, the renewal of the PADI membership would have been of no relevant benefit or utility on the applicant's own case.

118 The evidence of Dr Acott unequivocally indicates that the physical condition of the applicant is such that he is unfit for diving activities and that it would, in fact, be dangerous for him to engage in them. The evidence of the applicant himself reflects his own realisation of the truth of that opinion. Moreover, I take the applicant to say (or at least imply) that his present physical condition has persisted back over the periods of time relevant to the claims in question.

119 The present expressed attitude of the applicant, on his own case, really reflects what is, at best, wishful thinking. From the relevant times up to the present and for the foreseeable future there has been (and is) little or no realistic practical likelihood of him being able to exercise the privileges of a PADI licence, if he retained one.

120 Such a conclusion also sounds the death knells of the claims in respect of the periods 2001/2002 and 2002/2003, given that he did actually incur the costs in question in respect of those periods. I confirm the determinations refusing all of the claims now under consideration.

Matters 5492 of 2001, 927 of 2002 and 7760 and 8468 of 2001-- Claims for interest and also income maintenance payments said to have improperly have been suspended or discontinued:

121 This group of matters originally included claim for interest in respect of a payment of $194.42 by way of an income maintenance payment. That aspect was necessarily encompassed by my decision in matter 1623 of 1997. I therefore do not consider it further in these proceedings. The other issues are currently the subject of further evidence and argument. They will be dealt with in separate reasons published in due course.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.