[2016] TASSC 40, 77 MVR 139;

Bricknell v Motor Accidents Insurance Board (No 2)

[2017] TASSC 6, 79 MVR 197

Traffic Law - Statutory restrictions or compensation in respect of motor vehicle accidents - Tasmania - Assessment and amount of compensation - Scheduled benefits - Medical benefits - Rent incurred for purpose of obtaining medical treatment.

Motor Accidents (Liabilities and Compensation) Regulations 2010 (Tas), Sch 1, Pt 2, cl 1(1).

Judgment Number: [2017] TASFC 7

MOTOR ACCIDENTS INSURANCE BOARD v EMMA JANE BRICKNELL

MOTOR ACCIDENTS INSURANCE BOARD v EMMA JANE BRICKNELL

1. In 2015 the respondent to this appeal, Emma Bricknell, was seriously injured in a motor vehicle accident. Her home is in the country, at Bushy Park. While convalescing, she needed medical treatment in Hobart almost daily for an extended period. Her doctor recommended that she live in Hobart while receiving treatment. She rented a house in Hobart, and claimed the amount of the rent from the Motor Accidents Insurance Board, the appellant in these proceedings, as a "medical benefit" under Sch 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the regulations").
2. The Board rejected her claim. She referred the matter to the Motor Accidents Compensation Tribunal. The Tribunal upheld the Board's decision. The respondent appealed to this Court. Brett J held that, on a proper interpretation of the regulations, the respondent would be entitled to a medical benefit in respect of her rent provided the expenditure was reasonably and necessarily incurred for the provision of her treatment: Bricknell v Motor Accidents Insurance Board [2016] TASSC 40, 77 MVR 139. In a second decision, his Honour held that rent incurred by the respondent was reasonably and necessarily incurred: Bricknell v Motor Accidents Insurance Board (No 2) [2017] TASSC 6, 79 MVR 197. The Board has appealed to the Full Court. It challenges only the learned primary judge's interpretation of the regulations in his first decision.
3. I agree with the other members of the Court that this appeal should be dismissed. However, with respect, my reasons differ a little from theirs.
4. Additional background facts, the grounds of appeal, the full text of the relevant provision in the regulations, the reasoning of the learned primary judge, and the principles relevant to the interpretation of the regulations are all set out in the judgments of Estcourt J and Marshall AJ, for which I am grateful.
5. The critical question concerns the interpretation of cl 1(1) of Sch 1, Pt 2 of the regulations. What does it mean when it speaks of "expenses ... incurred ... for the provision of the treatment required by him or her"?
6. The Board contends that those words refer only to expenses incurred in consideration for the provision of the treatment. That is to say, it contends that the words in question relate only to the price paid for treatment.
7. The respondent contends, correctly in my view, that the words in question refer to all expenses incurred in order to obtain the provision of the treatment. That is to say, she contends that the words in question relate not only to the amounts charged for treatment, but also to incidental expenses including, in her case, the rent paid for her accommodation in Hobart.
8. In my view cl 1(1) is undoubtedly ambiguous. The words used, in their ordinary meaning, could be interpreted either way. To resolve the ambiguity, it is necessary to consider the purpose of the legislation, the context of the ambiguous words, and the history of the relevant legislative provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [4], [47]; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [23]- [32], [68]-[70], [88]-[89]; Talacko v Bennett [2017] HCA 15, 91 ALJR 564 at [82].
9. Section 8A of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the legislation to be preferred to one that does not. In my view the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act") and the regulations, which were made under it, constitute beneficial legislation. Ordinarily beneficial legislation should be given an interpretation favourable to the class of persons intended to be benefited - in this case, persons injured in motor vehicle accidents: R v Kearney; ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12; Solicitors' Trust v Oxenbould [2013] TASFC 2, 22 Tas R 235 at [36].
10. In 1973 the Act introduced a scheme of no-fault benefits for persons injured in motor vehicle accidents. The benefits payable included the cost of medical and hospital treatment, as well as disability allowances for employed persons and housewives. The Act also provided for funeral expenses and death benefits to be paid in relation to fatal accidents.
11. The long title to the Act begins as follows:

"An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor vehicle accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes ...".

1. Section 3A(a) provides that one of the objects of the Act is "to provide for the payment of compensation in respect of personal injury resulting from a motor accident".
2. Although the Act is a piece of beneficial legislation, a complication arises in relation to the context of cl 1(1). That subclause provides for the payment of benefits in relation to the provision of "treatment". Clause 1(3) sets out a long non-exhaustive list of things that constitute "treatment". Not surprisingly, the list includes such things as medical, surgical and dental treatment, as well as nursing care and the provision of medicine. However a difficulty arises because pars (j) and (k) of that subclause deem certain types of travel to constitute "treatment" for the purpose of eligibility for the payment of "medical benefits". Clause 1(3)(j) relates to "travel by taxi for the purpose of obtaining treatment from a registered person", subject to a maximum travelling distance of 20 kilometres each way, a time limit expiring 39 weeks after the date of the injury, and a certification requirement. Clause 1(3)(k) relates to "travel by any means for the purpose of obtaining treatment from a registered person" by a person who requires "daily care" and travels more than 20 kilometres each way.
3. Plainly cl 1(1) must not be interpreted as entitling anyone to the reimbursement of travelling expenses that do not fall within the scope of cl 1(3)(j) or (k). Otherwise those provisions would be totally ineffective. But it does not necessarily follow that other forms of incidental expenses, such as accommodation expenses, meal expenses associated with travel for treatment, or the cost of long distance phone calls made to arrange treatment, should not be regarded as expenses incurred for the provision of treatment within the meaning of cl 1(1). In my view, on a proper analysis, cl 1(1) is a general provision; cl 1(3)(j) and (k) are specific provisions that cover the field in relation to travelling expenses; and travelling expenses should be regarded as an exception to the general provision in cl 1(1) as to "expenses reasonably and necessarily incurred ... for the provision of the treatment required". Generalia specialibus non derogant.
4. From 1973 until 1985, the legislative provisions governing entitlement to the payment of scheduled benefits were set out in the First Schedule to the Act, not in regulations. That changed as a result of the Motor Accidents (Liabilities and Compensation) Amendment Act 1985.
5. In its original form, the Act provided in the First Schedule, Pt II, par 1(1), as follows:

"Subject to this Part of this schedule, where a person suffers bodily injury as a result of an accident there is [sic] payable all the expenses reasonably incurred by him or on his behalf for the provision of the treatment required by him as a result of the injury."

1. There is no material difference between that provision and its current equivalent, cl 1(1) of Sch 1, Pt 2 of the regulations.
2. The 1973 equivalent of cl 1(3) set out a non-exhaustive list of things that constituted "treatment". It was a much shorter list than today's list, containing only four paragraphs. The then par 1(3)(d) read:

"(d) the conveyance of that person to any place for the purpose of his receiving any treatment referred to in this sub-paragraph."

1. Parliament could have included a provision, for the avoidance of doubt, to the effect that such transportation expenses were to be payable under the then par 1(1). Instead, it somewhat clumsily extended the meaning of the word "treatment". As the original par 1(3)(d) referred only to transportation "to" a place for the purpose of receiving treatment, and not to return journeys, it may be that Parliament had ambulance transportation in mind. However the original par 1(3)(d) was not confined to any particular form of transport. Nowadays, cl 1(3)(h) in the regulations expressly provides that ambulance services are to constitute "treatment".
2. Ever since 1973, the clumsy drafting device of deeming various categories of travel to constitute "treatment" has been perpetuated. In 1985, the Motor Accidents (Liabilities and Compensation) Regulations 1980 were amended to include provisions as to scheduled benefits that had previously been set out in the First Schedule to the Act. No substantial change was made to the original par 1(1), nor to the original par 1(3)(d). The 1980 regulations were rescinded and replaced by the Motor Accidents (Liabilities and Compensation) Regulations 2000. Clause 1(1) of Pt 2 of Sch 1 to those regulations was in very similar terms to the current cl 1(1). Clause 1(4)(l) of that Part included certain travelling expenses in the "treatment and equipment" for which medical benefits were payable, but the scope of that provision was different from the current cl 1(3)(j) and (k). It applied to "reasonable expenses incurred in travelling for the purposes of obtaining treatment from a registered person provided that the distance travelled is greater than 20 kilometres one way". The provisions as to what travelling expenses have been deemed to constitute "treatment" may well have been amended in other ways from time to time.
3. The legislative provisions relating to scheduled benefits are not, and never have been, a masterpiece of drafting. I have already referred to a provision which, read literally, would apply only to journeys to the place where treatment was provided, and not to return journeys. In the current cl 1(4)(b), it is provided that the expense of providing treatment is taken to be unnecessarily incurred if the treatment is not "warranted, beneficial to the person and curative of the person's injury". [My italics.] Read literally, this would result in no benefits being paid to someone with a medical condition that requires treatment, but cannot be cured. Quadriplegics and amputees would be entitled to nothing. That would be an absurd result.
4. When the original par 1(1) was included in the Act in 1973, the inclusion of the "conveyance" of a person in the then par 1(3)(d) as something constituting "treatment" was, in my view, insufficient to displace the general rule that beneficial legislation should be given an interpretation favourable to the class of persons intended to be benefited. It follows that the original par 1(1) applied not just to the fees paid in return for various types of treatment, but also to incidental expenses incurred for the purpose of obtaining the provision of treatment. There is no reason why the replacement of the original par 1(1) by very similar provisions in regulations in 1985, 2000 and 2010 should result in a narrower interpretation. And there is no reason why subsequent tinkering with the legislative provisions relating to travelling expenses should make any difference either.
5. Except in relation to travelling expenses, the current cl 1(1) should be interpreted as applying not just to monies paid in return for treatment, but also to incidental expenses incurred in order to obtain the provision of treatment. The learned primary judge was right to reach that conclusion. The appeal should be dismissed.

MOTOR ACCIDENTS INSURANCE BOARD v EMMA BRICKNELL

1. This is an appeal arising from the decision of Brett J in Bricknell v Motor Accidents Insurance Board [2016] TASSC 40, 77 MVR 139 ("the primary decision") in which his Honour held that rent incurred by the respondent to facilitate proximity of access to medical treatment being administered to her for injuries sustained in a motor vehicle accident was capable of being paid by the appellant as "medical benefits" under Sch 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the Regulations") provided that it was reasonably and necessarily incurred for the provision of the respondent's treatment.
2. Subsequently, in Bricknell v Motor Accidents Insurance Board (No 2) [2017] TASSC 6, 79 MVR 197, the learned primary judge found that the cost of the rent incurred by the respondent was reasonably and necessarily incurred. That finding is not challenged on this appeal.

1. As recounted by the learned judge in the primary decision, the respondent was injured in a motor vehicle accident on 28 February 2015. Upon release from hospital, she required regular, almost daily treatment in Hobart from a number of medical service providers. She was advised by her doctor that she should live in Hobart and not return to her home at Bushy Park during the period of convalescence, which was to be in excess of a year. But for her injuries, she would have continued to live at Bushy Park. Her only practical option for living in Hobart was to rent a house there. She did so, and claimed the cost of rental as a medical benefit pursuant to Sch 1.
2. The respondent's claim was rejected by the appellant and she referred the matter to the Motor Accidents Compensation Tribunal ("the Tribunal"). The Tribunal upheld the appellant's decision, on the basis that the proper construction of the term "medical benefits", was confined to expenses which were, in the words of the Tribunal, "directly incurred in the delivery, supply or servicing of the treatment required by the injured person", and did not extend to those "which may be incurred to enable the treatment to be undertaken".
3. On 10 July 2015 the Tribunal determined that the rent had been reasonably and necessarily incurred to enable the respondent's treatment to be undertaken, but that it nonetheless did not fall within the ambit of the Regulations. The respondent appealed from the Tribunal's determination to this Court and the appellant now appeals against the orders of the learned primary judge quashing the Tribunal's determination and substituting for it a determination that the respondent has the right to be paid rent incurred to a total cost so calculated of $11,440.

"The learned trial Judge erred in his interpretation of clause 1(1) in Part 2 of Schedule 1 to the Motor Accidents (Liabilities and Compensation) Regulations 2010 (SR 2010, No 17) whereby he came to the conclusion (at [24] in the reasons for decision delivered on 29 July 2016 - 'the reasons') that 'the rent [paid by the respondent] is capable of being paid as a medical benefit under the schedule provided that it was reasonably and necessarily incurred for the provision of the appellant's treatment'. In particular:

(a) Having correctly identified (at [19]) that whether or not a particular expense comes within cl 1(1) must be determined by reference to the qualifications and conditions contained within the wording of that clause according to the ordinary meaning of those words, his Honour instead reached the conclusion that he did by identifying what he perceived to be the purpose of the provision and then by departing from the ordinary meaning of the words in order to give the provision a meaning that achieved that purpose.

(b) His Honour engaged (in par [19] of the reasons) in impermissible re-drafting of the plain words used in the clause by effectively replacing words or phrases used in it with words and phrases that altered rather than explained the meaning of the words or phrases actually used. In particular, his Honour effectively replaced the words 'for the provision of' with the words 'for the purpose of obtaining' or 'to ensure access to'.

(c) His Honour failed to give any or proper consideration or significance to the importance of the use in cl 1(1) of the phrase 'the provision of' after and in direct conjunction with the preposition 'for'.

(d) His Honour erred in giving to the word 'provision' in the context in which it appears in cl 1(1) a meaning that departed from its ordinary meaning, that is, 'supply'.

(e) His Honour should have held that the accommodation expense claimed by the respondent is not and cannot be an expense incurred 'for the provision of ... treatment' to the respondent as opposed to an expense incurred to facilitate the respondent obtaining the treatment.

(f) His Honour erred (in par [22](c) of the reasons) when he described the travelling expenses included in cl 1(3) pars (j) and (k) as 'an aberration of drafting', inconsistent with the apparent purpose of the clause. The purpose of those paragraphs as part of an inclusive definition, as with pars (f) and (h) in cl 1(3), is to extend the ordinary meaning of words to concepts or things they might not otherwise include. They are a form of deeming provision that identify particular expenses that would otherwise not satisfy the requirement in cl 1(1) that the expense be incurred 'for the provision of ... treatment' but are to be taken to satisfy that test. In the result, his Honour erred in failing to recognise the significance of the exclusion of accommodation expenses from the definition in cl 1(3)."

1. Schedule 1 of the Regulations provides relevantly:

(1) Subject to this Part, where a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits.

(2) Where any sums are paid, or required to be paid, under a law of the Commonwealth in respect of the provision of any treatment referred to in subclause (1) from which any expenses referred to in that subsection are, or may be, met, the amount payable under that subclause in respect of the provision of that treatment is to be reduced by the amount of those sums.

(3) In relation to a person who has suffered personal injury, the treatment referred to in this clause includes the following:

(a) medical or surgical treatment by, or under the supervision of, a medical practitioner;

(b) therapeutic treatment obtained at the direction of a medical practitioner;

(c) psychological services provided by, or under the supervision of, a registered psychologist;

(d) dental treatment by, or under the supervision of, a registered dentist;

(e) therapeutic treatment by, or under the supervision of, a registered -

(f) an examination, test or analysis carried out on, or in relation to, an injured person at the request or direction of a medical practitioner, registered dentist or registered psychologist and the provision of a report in respect of such an examination, test or analysis;

(g) treatment and maintenance as a patient at a hospital;

(h) road accident rescue services and ambulance services;

(i) nursing care, rehabilitation services and the provision of medicine, medical supplies, surgical supplies and any apparatus associated with such care or services, whether in hospital or otherwise;

(j) travel by taxi for the purpose of obtaining treatment from a registered person if - -

(i) the distance travelled is 20 kilometres or less one way; and

(ii) the travel occurs within 39 weeks after the date on which the personal injury was sustained; and

(iii) a medical practitioner certifies that, by reason of the injury, the person requires a taxi for the purpose of travel;

(k) travel by any means for the purpose of obtaining treatment from a registered person if - -

(ii) the distance travelled is greater than 20 kilometres one way.

(4) For the purposes of this clause, the expense of providing treatment for any person is taken to be -

(a) unreasonably incurred to the extent to which it exceeds the expense that would be incurred if that treatment had been provided in the most economical manner practicable in the circumstances; and

(b) unnecessarily incurred if the treatment is not warranted, beneficial to the person and curative of the person's injury.

Except in the case of a person requiring daily care, the payment of medical benefits under this Part, and disability benefits under Part 6, in respect of a personal injury to a person resulting directly from a single motor accident is not to exceed - -

(a) if the person has been a continuous hospital in-patient for more than 4 days commencing on the date of the accident, $500 000 in aggregate; or

1. As can be seen, benefits payable as "medical benefits" are described in Sch 1, Pt 2, cl 1(1) of the Regulations with the words "all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury".
2. In my view the ordinary meaning of the words used to describe the term "medical benefits" embraces without ambiguity the necessary symbiosis of access to and the administration of relevant medical treatment. As was pointed out by counsel for the respondent, Mr Phillips, in his written submissions, the word "for" in the present context is defined by the Macquarie Dictionary 7th edn P591 as including the meaning "in order to obtain".
3. Subparagraphs (j) and (k) of the (inclusory only), provisions of cl 1(3) on the other hand are to my mind clear provisions which limit in the manner prescribed the unbridled recovery of travel expenses incurred in the accessing of medical treatment, which expenses would otherwise be prima facie embraced by the words "expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment". (Emphasis added.)
4. Contrary to the submission of counsel for the appellant, Mr Jackson SC, the limitation of those expenses to the extent specified in those subparagraphs to my mind reinforces a legislative recognition that treatment must be accessed in order for it to be administered. In my view those sub-paragraphs were utilised by the draftsperson in order to carve out some expenses from what would otherwise qualify as reasonable and necessary travel expenses on the basis of a legislative viewpoint that it was not unreasonable for some travel access expenses to be borne personally by injured persons. The same could have been done, had it been deemed necessary, by way of carve-out of some or all of the allied access expenses involving rental or other accommodation. Recovery could have been limited for example to persons living remotely from the source of their medical treatment as specified by reference to distance or geographic location. As Mr Phillips pointed out in his submissions by way of example, persons may be injured on the Bass Strait islands and require accommodation to access outpatient treatment at a major hospital on the Tasmanian mainland.
5. It is difficult to discern a legislative purpose for treating differently those who live more than 20km away from their medical treatment and who may recover the expenses of travel by any means to obtain that treatment, and those who live too distant to be able to reasonably travel to access frequent treatment and who thus incur what would otherwise be unnecessary accommodation expenses.
6. Of course in the end it will be a question of fact to be determined upon the evidence in each case as to whether the accommodation expenses were reasonably and necessarily incurred, as required by Sch 1, Pt 2, cl 1(1). However, as I have already noted, there is no appeal in this case against the findings of the learned primary judge that the respondent's accommodation expenses were reasonable and necessary, and that the provisions of Sch 1, Pt 2, cl 1(4) had no application.
7. I detect no error on the part of the learned primary judge. His Honour's critical reasoning was at [19 ]-[20] of the primary decision as follows:

"19 The learned Tribunal Member, in his reasoning process, proceeded on the basis that the regulation should be construed according to the natural meaning of the words, without reliance upon the beneficial nature of the legislation, which he considered would give the provision 'an overly strained meaning that is inconsistent with the text of the provision'. I agree that it is a proper approach to interpret the provision according to its ordinary meaning, but do not accept the resultant conclusion reached by the member. In my view, there is no ambiguity and little difficulty in understanding the meaning of the provision. It means what it says in common and simple words; that what are recoverable as medical benefits are 'all the expenses reasonably and necessarily incurred by the person ... for the provision of the treatment required by him or her within the Commonwealth as the result of the injury'. Whether or not a particular expense comes within that definition must be determined by reference to the qualifications and conditions contained within that simple wording. The broad scope of the provision is clearly intended to ensure that an injured person is able to access the treatment required as a result of the injury. Hence, the wording is deliberately broad and the scope of its application confined only by the requirement that the expense must be 'reasonably and necessarily incurred ... for the provision of the treatment required by the injured person'. I can see no basis upon which to confine the meaning of the words 'the expenses reasonably and necessarily incurred' to those 'directly incurred in the delivery, supply or servicing of the treatment required by the injured person'. The interpretation favoured by the Tribunal Member, in my view, is an interpretation which strains the ordinary meaning of the language of the provision, rather than responds to it. It adds a qualification on payment of a benefit which is simply not a part of the definition in the clause.

20 Even if some ambiguity of meaning could be detected, or another interpretation of the words used in the provision is available, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not do so: (see s 8A of the Acts Interpretation Act 1931). The interpretation which ensures that all expenses are met, which are reasonably and necessarily incurred by the injured person for the provision of the treatment, will ensure that all treatment required by the injured person within the Commonwealth is received by that person. This must be consistent with the clear purpose of the legislation, best summed up in the preamble to the Act as follows:

'An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes, and ...'."

1. In my view that reasoning is unassailable and I respectfully adopt it. The learned primary judge did not, to my mind, depart from the ordinary meaning of the words he was construing as asserted by ground 1(a) of the notice of appeal. His Honour was conscious of his task but simply disagreed with the Tribunal Member's apprehension of that ordinary meaning which his Honour thought strained the language of the provision rather than responded to it. His Honour was entitled to take that view and as I construe the ordinary meaning of the words of the statutory text, he was correct to do so. He did not, as suggested on behalf of the appellant, approach the task of statutory construction by reference to what he might have regarded as desirable policy, impute that to the legislature and then characterise the purpose of the legislation accordingly. Indeed his Honour did not apply a purposive approach to the central question at all. As can be seen above, at [20] of his reasons his Honour eschewed the proposition that there was any ambiguity of meaning requiring the application of s 8A of the Acts Interpretation Act 1931 and the comments he made thereafter as to "the clear purpose of the legislation" as "best summed up in the preamble of the Act" were obiter dicta, (statements unnecessary for the decision). His Honour's dispositive reasoning was entirely orthodox, focussing as it did on the statutory text (see Talacko v Bennett [2017] HCA 15, 91 ALJR 564 per Nettle J at [82]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] and Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281 at [37]).
2. Nor did the learned primary judge engage in "impermissible redrafting of the plain words used in the clause" as asserted by ground 1(b) of the notice of appeal. Such a contention proceeds from the premise that the "plain words" had the ordinary meaning contended for by the appellant, and as can be seen I do not accept that premise.
3. Grounds 1(c), (d) and (e) are also without merit in my assessment. The failures and errors asserted in those grounds based on the asserted significance of particular words and their context and meaning also proceed from the appellant's anterior assumption that the reasonable and necessary expenses incurred by a person for the provision of treatment includes only the cost of the supply of the treatment and not the cost of accessing and obtaining it. For the reasons I have given I do not accept the validity of the appellant's assumption.
4. Ground 1(f) of the notice of appeal, the final ground, asserts the learned primary judge erred at [22(c)] of the primary decision when he described the travelling expenses included in Sch 1, Pt 2 cl 1(3)(j) and (k) of the Regulations as "an aberration of drafting", inconsistent with the apparent purpose of the clause.
5. What his Honour said was this:

"The Tribunal Member relied on the inclusion in the list of treatment in cl 1(3) of provision for travel, specifically in subcl (3)(j) and (k). He noted that specific reference to such enabling expenses would be unnecessary if they were included in any event in the general definition in cl 1(1). He considered that their inclusion 'indicates an intention ... to confine the Board's obligation for expenses incurred to enable or facilitate treatment to these specific travelling costs and not any other expenses'. I do not agree with the Tribunal Member's reasoning. The inclusion of enabling expenses in cl 1(3) is inconsistent with the apparent purpose of the clause to define treatment, and in that sense would seem to be an aberration of drafting. Travel to enable treatment to take place is self-evidently not treatment per se. It would seem to me that the obvious intention of the drafter of the clause was to define and limit specifically the parameters of allowance for travel, and for this reason there has been specific reference to travel. It would otherwise be dealt with solely by reference to the general qualifications in cl 1(1). It would have been more logical and convenient if this had been done in a separate paragraph, but the fact that it was not, does not require a conclusion that, because no other form of expense is so limited, it is only travel that is to be included as an enabling expense."

1. The appellant argues that the purpose of those paragraphs is to extend the ordinary meaning of words to concepts or things they might not otherwise include. That is to say that they constitute a form of deeming provision that identifies particular expenses that would otherwise not meet the description of an expense incurred "for the provision of ... treatment" but are to be taken to nonetheless satisfy that test to the extent specified. I disagree.
2. Whilst I do not necessarily agree with the learned primary judge's description of Sch 1, Pt 2, cl 3(j) and (k) as an "aberration" of drafting, his Honour nonetheless correctly identified, in my view, the true purpose of those sub-clauses as being to "define and limit specifically the parameters of allowance for travel". I reject the appellant's contention that they constitute a form of deeming provision that identifies particular expenses that would otherwise not meet the description of medical benefit. On the contrary, as can be seen from what I have already said, my view is that those sub-clauses were intended to carve out some expenses from what would otherwise be reasonable and necessary travel expenses on the basis that it was not considered unreasonable for some travel access expenses to be borne by injured persons personally. My view aligns completely with the reasoning of the learned primary judge. That is to say that if the limitations on recovery of travel expenses as medical benefits included in those sub-clauses were not specified, they would otherwise be included in the general description of "medical benefits" set out in Sch1, Pt 2, cl 1. The sub-clauses constitute a carve out from otherwise recoverable travel expenses which is not mirrored with respect to the allied access expenses of reasonable and necessary accommodation away from an injured person's existing established accommodation in order to obtain treatment.

1. It follows from all that I have said that in my view none of the grounds of appeal are made out. I would dismiss the appeal.

MOTOR ACCIDENTS INSURANCE BOARD v EMMA JANE BRICKNELL

1. The appellant, the Motor Accidents Insurance Board ("the Board") appeals from the orders made by the primary judge on 31 January 2017: Bricknell v Motor Accidents Insurance Board (No 2) [2017] TASSC 6, 79 MVR 197, which gave effect to his reasons for judgment published on 29 July 2016: Bricknell v Motor Accidents Insurance Board [2016] TASSC 40, 77 MVR 139.

1. The respondent, Ms Bricknell, was injured in a motor vehicle accident on 28 February 2015. At that time she was residing in the small rural village of Bushy Park, which is located 53 kilometres from Hobart. Ms Bricknell's injuries were severe. She was transported by air ambulance to the Royal Hobart Hospital. On 8 May 2015, she was discharged to the New Norfolk District Hospital. Three days later Ms Bricknell commenced to reside in a rental property at Glenorchy. She required regular treatment in Hobart from various medical and allied health service providers. Her treating doctor advised her to reside in Hobart during the period of her convalescence and not to return to Bushy Park due to the difficulty in accessing the services she required. The only practical option to be able to live in Hobart was to rent a house in the Hobart area.
2. The Board is established by s 4 of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). Amongst other things, the Act provides for the payment of compensation in respect of bodily injuries and the management and treatment of such injuries. Section 23(1) of the Act compels the Board to pay benefits "prescribed by the Regulations" if a resident of Tasmania suffers personal injury resulting directly from a motor accident which occurs in the State.
3. Under reg 9 of the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the regulations"), the Board must pay benefits as set out in Sch 1 to the regulations. These benefits are referred to as "scheduled benefits" and include medical benefits. Clause 1(1) in Pt 2 of Sch 1 provides:

"Subject to this Part, where a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits."

1. This appeal raises for determination the question whether the rent paid by Ms Bricknell fell within the parameters of cl 1(1) as a medical benefit.
2. Ms Bricknell claimed the cost of her rental accommodation as a medical benefit. The Board refused her claim. Ms Bricknell referred that refusal to the Motor Accidents Compensation Tribunal ("the Tribunal"). The Tribunal held that the rent paid was not unreasonably or unnecessarily incurred but was not a medical benefit within the meaning of Pt 2 of the regulations. The Tribunal said at [25] of its reasons:

"... the existence of the word 'provision' in the context of sub cl 1(1) is meant to indicate that the expenses payable as medical benefits are those directly incurred in the delivery, supply or servicing of the treatment required by the injured person. It is not meant, in my opinion, to obligate the Board to meet those expenses which may be incurred to enable the treatment to be undertaken. Meal costs, parking fees, telephone charges and the cost of child care are all examples of legitimate expenses which may be incurred by an injured person to facilitate treatment but none are payable by the Board as a medical benefit. Rental, in my opinion, falls into the same category."

1. Clause 1(3) sets out, in an inclusive way, a series of examples of what constitutes treatment in cl 1(2). The Board referred to the reference in cl 1(3) to taxi fares and other travelling costs and said if cl 1(1) was intended to cover all expenses necessary to facilitate treatment then a reference in cl 1(3) to taxi and other travelling costs would have been unnecessary. The Board considered that the inclusion of those costs in cl 1(3) shows an intention "to confine the Board's obligation for expenses incurred to enable or facilitate treatment to those specific travelling costs and not any other expenses". The full text of cl 1(1)(3) is set out in the reasons for judgment of Estcourt J.
2. Ms Bricknell appealed from the determination of the Tribunal to the Court. The primary judge, at [17], observed that her case was that the words "for the provision of treatment" mean that "any expenses reasonably and necessarily incurred in providing the treatment" is encapsulated within cl 1(1). The primary judge also noted the submission that the legislation has a beneficial purpose, and an interpretation which promotes that purpose should be preferred to one that does not.

1. The primary judge considered that the words which described what are recoverable benefits contain no ambiguity and are "common and simple words", being "all the expenses reasonably and necessarily incurred by the person ... for the provision of the treatment required by him or her within the Commonwealth as the result of the injury".
2. His Honour observed at [19] that "the wording is deliberately broad and the scope of its application confined only by the requirement that the expense must be reasonably and necessarily incurred for the provision of the treatment required by the injured person". The primary judge saw no basis to confine the meaning of the above words to expenses "directly incurred in the delivery, supply or servicing of the treatment required by the injured person". He said that such an approach "adds a qualification on payment of a benefit which is simply not a part of the definition in the clause".
3. His Honour said that his interpretation of the contested provision, in the event of ambiguity, was one which promoted the purpose or object of the Act. The primary judge referred to the preamble to the Act which summarises the purpose of the legislation. That preamble refers to the Act as being one:

"... to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes, and ...".

"... in the vast majority of cases, rent for residential premises would be neither a reasonable nor a necessary expense of the provision of treatment. However, there are clearly cases where, without meeting the expense of rent, as an additional expense to that incurred by the person in his or her pre-injury residential arrangements, the treatment required by the injured person will not or cannot be provided to that person."

His Honour emphasised that the intention of the clause is "to ensure ultimately that required treatment is provided to the injured person".

1. At [22] the primary judge dealt with other difficulties he had with the reasoning of the Tribunal. His Honour observed that the interpretation adopted by the Tribunal focused on the cost of the provision of the actual treatment, whereas cl 1(1) refers to "the expenses ... incurred by the person". The primary judge said the purpose of the clause is to meet "the actual expenses thrown up by the individual circumstances of each case, hence ensuring actual provision of the treatment".
2. His Honour did not accept the reasoning of the Tribunal that an interpretation of cl 1(1) that includes "enabling expenses such as rent" is inconsistent with cl 1(3) and (4). The primary judge said that "The clear purpose of both cl 1(3) and (4) is to define and limit the treatment which is available to the injured person under the clause." His Honour observed that the examples referred to in cl 1(3) (apart from references to travel in cl 1(3)(j) and (k)), do not deal with or limit the expenses incurred in the provision of treatment. The treatment, the subject of the benefit, is identified as being required as a result of the injury, and then further defined and limited by subcls (3) and (4). His Honour considered that "The benefits payable are then constituted by the expenses incurred by the person, which have the required nexus with that treatment" as being reasonably and necessarily incurred in the provision of the treatment.
3. His Honour said:

"The suggestion that an expense is not payable unless it is specifically listed in cl 1(3) incorrectly conflates the two subjects: treatment and expense. It may well be the intention of the clause to exhaustively define available treatment in cl 1(3), but it is clearly not intended to define or limit the expenses incurred in the provision of that treatment. Confining applicable expenses in that way is contrary to the use of the words 'all the expenses' in cl 1(1)." [Original emphasis.]

"... inclusion of enabling expenses in cl 1(3) is inconsistent with the apparent purpose of the clause to define treatment, and in that sense would seem to be an aberration of drafting. Travel to enable treatment to take place is self-evidently not treatment per se."

His Honour considered that the reference to travel in cl 1(3) was intended to "define and limit specifically the parameters of allowance for travel", otherwise it would have been dealt with solely under cl 1(1). The primary judge concluded this aspect of his reasoning by saying:

"It would have been more logical and convenient if this had been done in a separate paragraph, but the fact that it was not, does not require a conclusion that, because no other form of expense is so limited, it is only travel that is to be included as an enabling expense."

1. The learned judge then dealt with the Tribunal's reliance on cl 1(4).
2. Clause 1(4) provides:

"(4) For the purposes of this clause, the expense of providing treatment for any person is taken to be -

(a) unreasonably incurred to the extent to which it exceeds the expense that would be incurred if that treatment had been provided in the most economical manner practicable in the circumstances; and

(b) unnecessarily incurred if the treatment is not warranted, beneficial to the person and curative of the person's injury."

1. At [27] the Tribunal said that the words "providing treatment" suggest a direct link between the expense and the provision of the treatment. The Tribunal said that rent is not an expense, such as surgery, which has a direct association with the treatment. In response, the primary judge saw nothing about the use of the words "providing treatment" which is inconsistent with the ordinary meaning of the words in cl 1(1).
2. Also at [27], the Tribunal reasoned that expenses incurred to enable the provision of medical treatment could not be curative of a person's injury under cl 1(4)(b). The primary judge rejected that reasoning. His Honour, also at [22(d)], said:

"Clause 1(4) does not seek to exhaustively define or limit the meaning and ambit of 'expenses reasonably and necessarily incurred' within the meaning of cl 1(1). Rather, cl 1(4) defines specific circumstances in which expenses will be deemed not to be reasonable or necessary, not by reference to the expenses themselves, but rather by reference to the treatment in respect of which they are being incurred. Hence, if the only reason rent is being incurred is to facilitate a form of treatment which is not warranted, beneficial to the person or curative of the person's injury, then the rent, albeit that it may be reasonable and necessary for the provision of that form of treatment to the injured person, would be deemed by cl 1(4)(b) to be unnecessary." [Original emphasis.]

1. The primary judge considered that the Tribunal applied its misreading of cl 1(4)(b) when considering whether the rent expense had been unnecessarily incurred. His Honour held that the Tribunal "ignored the real question posed by cl 1, which was, was the treatment in Hobart required by the appellant as a result of her injuries, and, if so, was the rental of a property an expense reasonably and necessarily incurred for the provision of that treatment?" His Honour held that cl 1(4)(b) was irrelevant to the issue before the Tribunal because it was common ground that the treatment in Hobart was warranted, beneficial to Ms Bricknell and curative of her injuries.
2. At [23], the primary judge observed that the interpretation of "medical benefit" in cl 1 favoured by him, "sits comfortably with the overall scheme and apparent operation of the balance of the Schedule". His Honour observed that the scheme of the Schedule is to limit expenses by their nexus to a benefit. He said that in the instant case "the benefit is the treatment, defined in accordance with the clause, and the nexus to the expense is that it has been reasonably and necessarily incurred for the provision of that treatment".
3. Accordingly, his Honour held that the Tribunal erred in its interpretation of the clause. The primary judge said at [24]:

"It follows that the rent is capable of being paid as a medical benefit under the schedule provided that it was reasonably and necessarily incurred for the provision of the appellant's treatment."

1. At [24] in the judgment of 29 July 2016, the primary judge noted that the Tribunal did not directly address the question whether the rent had been unreasonably or unnecessarily incurred. His Honour dealt with that issue in his judgment dated 31 January 2017. The primary judge proceeded to rehear and redetermine the matter on the evidence which was before the Tribunal.
2. At [28] in the 31 January 2017 judgment, his Honour said he was satisfied that the treatment required by Ms Bricknell was diverse treatment which required daily attendance at treatment sources in Hobart and could not have been reasonably provided to her anywhere else.
3. At [30] his Honour found that it was reasonable and necessary for Ms Bricknell to live in Hobart during the course of her treatment. He was satisfied that the rental expense incurred by her was reasonably and necessarily incurred by her for the provision of the treatment required by her as a result of the injury. His Honour observed that there was no suggestion that the rent was exorbitant or unreasonable.
4. His Honour next dealt with cl 1(4). He was satisfied that cl 1(4)(b) was not applicable. He observed that there was no issue that the treatment received by Ms Bricknell was "warranted, beneficial to the appellant or causative of her injury". His Honour also considered that cl 1(4)(a) was inapplicable. He found that it was not practical in the circumstances that Ms Bricknell make daily trips between Hobart and Bushy Park.
5. At [44] his Honour set out the orders he made, including that there be a determination that Ms Bricknell had the right to be paid rent incurred by her over a 12-month period, less a Commonwealth benefit of $70 per week.

1. The Board challenges the primary judge's determination that the rent paid by Ms Bricknell is capable of being an expense incurred for the provision of treatment. It does not challenge his Honour's finding in his 31 January judgment that it was an expense which was reasonably and necessarily incurred by Ms Bricknell, within the meaning of cl 1(1).
2. The Board contends in appeal ground 1(a) that the primary judge identified what he perceived to be the purpose of cl 1(1) and departed from its ordinary meaning in order to give the provision a meaning that achieved that purpose. Counsel for the Board submits that his Honour overlooked the fact that "treatment" in cl 1(1) is treatment defined in cl 1(3). His Honour did not overlook that fact. At [22(b)] of his reasons of 29 July 2016, he said:

"The clear purpose of both cl 1(3) and (4) is to define and limit the treatment which is available to the injured person under the clause."

The relevant treatment included medical and therapeutic treatment.

1. The Board further contends that cl 1 is not concerned with access to treatment but the "provision of" treatment. It submits that rental is not an expense incurred "for the provision of treatment" unless the definition of "treatment" is extended as in the case of travel in cl 1(3). Counsel for Ms Bricknell contends that the phrase "for the provision of treatment" means the treatment is to be provided to the person concerned in the particular circumstances.
2. His Honour was correct to view cl 1(1) as covering the payment of all expenses reasonably and necessarily incurred for the provision of the treatment required as a result of the injury. As the primary judge pointed out at [19] of his reasons of 29 July 2016, the contrary view would limit the words "the expenses reasonably and necessarily incurred" to expenses "directly incurred in the delivery, supply or servicing of the treatment required by the injured person".
3. "Treatment" in cl 1(3)(j) and (k) includes travel in certain circumstances. As the primary judge noted, this appears to be "an aberration of drafting". As his Honour said, "Travel to enable treatment to take place is self-evidently not treatment per se." There is no reason why the failure to mention "rental expenses" in cl 1(3) means that they cannot be included in cl 1(1) if reasonably and necessarily incurred for the provision of treatment. There is nothing in the rest of the clause which excludes expenses incurred to enable treatment to take place. In certain circumstances treatment will not be capable of being provided unless certain expenditure is made. One such circumstance can be the requirement to pay rent to live near places where treatment can be accessed. If the interpretation favoured by the Board was intended by the draftsperson of the clause, cl 1(1) need only refer to all expenses reasonably and necessarily incurred for the relevant treatment and not to the provision of that treatment.
4. Counsel for the Board in par 1(b) of the notice of appeal contends that his Honour engaged in impermissible redrafting of plain words used in cl 1(1) by replacing words and phrases used with others that altered rather than explained the meaning of those actually used. It is alleged that the primary judge replaced "for the provision of" with the words "for the purpose of obtaining" or "to ensure access to". His Honour did no such thing. At [19] of his reasons he used the language of cl 1(1). He then noted that the language was broad in scope and not confined to expenses "directly incurred in the delivery, supply or servicing of the treatment required by the injured person". There is no error in his Honour's approach to the construction of cl 1(1).
5. In appeal ground 1(c), the Boards contends that:

"His Honour failed to give any or proper consideration or significance to the importance of the use in cl 1(1) of the phrase 'the provision of' after and in direct conjunction with the preposition 'for'."

This ground is not made out. At various stages at [19] of his reasons, the primary judge used the words "for the provision of the treatment required" when analysing the meaning of cl 1(1). The key to his Honour's reasoning was whether the rental expense was within the terms of the words "all the expenses reasonably and necessarily incurred by the person ... for the provision of the treatment required by him or her within the Commonwealth as a result of the injury." [Emphasis added.]

1. In appeal ground 1(d), the Board asserts that his Honour erred in giving the word "provision" a meaning that departs from its ordinary meaning of "supply". There is no basis for this submission. His Honour used "provision" in its ordinary sense. That is the giving or supply of the treatment by treating doctors and allied health professionals. The primary judge referred to "supply" in the context of saying that the clause did not refer to expenses "directly incurred in the delivery, supply or servicing of the treatment required by the injured person". There was no intention in that observation to fail to equate the word "provision" with the word "supply".
2. In appeal ground 1(e), the Board submits that his Honour should have held that the rental expense cannot be any expense incurred for the provision of treatment, but rather an expense incurred to facilitate the obtaining of treatment. This appeal ground raises the issue as to whether an expense incurred to enable treatment to be provided is an expense incurred for the provision of the treatment. That was at the heart of the critical issue before his Honour. His Honour considered that the words of cl 1(1) were unambiguous and that rental expenses fell within the words "for the provision of the treatment required ...". At [20], the primary judge considered that his interpretation, in any event, promoted the purpose of the clause. He said:

"The interpretation which ensures that all expenses are met, which are reasonably and necessarily incurred by the injured person for the provision of the treatment, will ensure that all treatment required by the injured person within the Commonwealth is received by that person."

There is no merit in this ground of appeal as the view taken by the primary judge as expressed at [19] and [20] of his reasons was correct. There is no reason why an expense for the provision of treatment cannot encompass an expense which is required to enable the treatment to occur and but for which there would be no treatment. In the event of ambiguity the view taken by his Honour promotes the purpose of the clause which is to provide payments to injured persons for the provision of treatment required by them. See s 8A of the Acts Interpretation Act 1931.

1. Ground 1(f) of the appeal grounds takes issue with his Honour's reference to cl 1(3)(j) and (k) as "an aberration of drafting". The Board submits that those travel costs in cl 1(3) extend the ordinary meaning of words to concepts they might not otherwise include. They are said to be a form of deeming provision and the failure to mention accommodation expenses in cl 1(3) shows they are not covered by cl 1. The Board points to other parts of cl 1(3) which may not strictly describe treatment. Reference is made to cl 1(3)(h) which refers to "road accident rescue services and ambulance services", and cl 1(3)(f) which refers to "an examination, test or analysis carried out on, or in relation to an injured person at the request or direction of a medical practitioner ... and the provision of a report ...". The Board also emphasises the reference in cl 1(3)(j) and (k) of travel "for the purpose of obtaining treatment". It highlights the absence of a reference to accommodation costs for the purpose of obtaining treatment.
2. Counsel for Ms Bricknell points to the fact that cl 1(3) is an inclusive provision and does not mean that other forms of expenses which are included in the ordinary language of cl 1(1) are excluded by omission in cl 1(3). In any event, as the primary judge said at [22(b)], "The clear purpose of both cl 1(3) and (4) is to define and limit the treatment which is available to the injured person under the clause." It is not clear that an examination referred to in cl 1(3)(f), or ambulance services under cl 1(3)(h) may not be treatment. His Honour was correct to categorise cl 1(3) as intending to deal with "treatment" and not with expenses for the provision of treatment. He was correct to view the reference to "travel in a subclause dealing with treatment" as "an aberration of drafting". However, if it was the intention of the draftsperson to deem certain expenses to be treatment, there is no reason to assume that other expenses which might otherwise fall within cl 1(1) would thereby be excluded.
3. For the foregoing reasons it is appropriate to order that the appeal be dismissed.