Victorian Civil and Administrative Tribunal|2004-05-27|Before: Mr P

Robb v Transport Accident Commission [2004] VCAT 983 (27 May 2004)

IN THE VICTORIAN AND CIVIL ADMINISTRATIVE TRIBUNAL

Transport Accident Act 1986 - s.60(2)(c) - whether "child" includes unborn child - whether care of child can fall within -) - engaged mainly in housekeeping duties - whether maxim reddendo singula singulis applies.

1. The Respondent is liable to pay to the Applicant as compensation pursuant to Section 60 (2) (c) of the Transport Accident Act the reasonable costs incurred after the transport accident in employing an authorised person to undertake care of her child.

2. The matter is remitted to the Respondent for assessment of the compensation referred to in paragraph 1 above.

3. The Respondent pay the Applicants costs on County Court Scale "D" the amount of such costs to be agreed if not agreed to be assessed by the Principal Registrar.

On 9 February 2004 Mr Schulze, instructed by Beck Legal

On 27 May 2004 Mr A.Keogh, instructed by Beck Legal

On 9 February 2004 Mr P Solomon, instructed by TAC Law Pty Ltd

1 This matter comes before me by way of an application by Michelle Robb ("Michelle") in which she seeks to review a decision of the Transport Accident Commission ("TAC") contained in a letter dated 7 May 2002. Because of the severity of Michelle's injuries, her mother, Lee Robb ("Lee"), has been appointed as her guardian and administrator and, through her solicitors, has conducted this application on her behalf. The letter of 7 May 2002 containing the decision under review is in fact addressed to Lee, as has been the case with other significant correspondence.

2 This case essentially involves questions of law involving the interpretation of the Transport Accident Act 1986 ("the Act"). There was little, if any, conflict concerning matters of fact. The only oral evidence given was that of Lee, who adopted written statements previously made by her and who expanded upon them to some extent. She was not cross-examined. Various documents were also tendered on behalf of Michelle. TAC called no evidence and tendered no documents.

3 Against this general background, I shall now set out the agreed or uncontested facts and the history of the litigation and the relevant correspondence which preceded the issuing of the application.

4 Michelle was born on 15 March 1983. She left home at the age of 14 years. She then lived with a boyfriend for a while at his mother's house, and, after breaking up with him, lived "on the streets" for some time. She then met up with another person and moved into another house apparently owned by that person's father and in Bayswater where she stayed for an uncertain period of either two to three weeks or a few months. Whilst at the Bayswater house, histories recorded by what could be described as welfare agencies note that "she did housework to pay her way".

5 It would appear that her last night at the Bayswater house was 10 March 1999. Via the Wesley Mission she was then referred to Fusion Australia ("Fusion"), which runs a refuge house for youth to which she was referred. The documentation from Fusion indicates that it closes between 10.00 am and 3.00 pm during which time those who live there search for accommodation, employment and the like. The documentation also reveals that there is a duty roster involving cooking and other duties, and the occupants are expected to participate in this roster. In addition, the documentation from Fusion reveals that "everyone helps out with keeping the house clean". Michelle's case notes include an entry that, on 13 March 1999, she "was nice enough to help staff dry dishes before going to bed".

6 On 14 March 1999 she was involved in a terrible motor vehicle accident. Amongst other injuries, she received a severe acquired brain injury. She has a severe cognitive deficit. While she has shown some improvement, she has been institutionalised since. She is still confined to a wheelchair. Without going into questions of assessment of the injuries, which does not form part of this case, I accept that she suffered severe physical and cognitive impairment, and is incapable of living an independent life.

7 On 29 July 1999, Michelle gave birth to her son, Nathan. The term of her pregnancy was 36 weeks. Accordingly, as at the date of the accident, she was approximately four months pregnant. Whether or not she was aware of her pregnancy is unknown. It is to be remembered that she had left home and that the history of events thereafter has almost entirely been reconstructed from histories given by her prior to the accident to the welfare agencies.

8 Nathan was placed in the care of Lee and has continued to reside with her. Given the nature of her injuries, it took Michelle some time to appreciate that she had a child. After her condition improved somewhat, she commenced visiting the child at Lee's place every second Sunday. She now visits every Tuesday and every second Sunday, her total visiting time being in the order of 10 to 15 hours per week. I accept that, whether or not she appreciates the full ramifications, Michelle has become greatly attached to Nathan. Her involvement with him has become a very significant thing in her life, and her wellbeing has been enhanced by it. I accept that, when Ms Hanby D'Wynn, her solicitor, attempted to obtain some form of statement from Michelle, she became very agitated because she believed it was some attempt to take Nathan away.

9 By a form dated 29 March 1999, Lee, on behalf of Michelle, claimed compensation from TAC. By letter dated 7 April 1999, TAC accepted liability for Michelle's medical and like expenses. By letter dated 3 September 1999 to Lee, TAC advised that it would fund provision of forty hours per week child care services commencing 6 September 1999. The letter indicates that such approval was for an initial six month period with ongoing funding subject to periodic review. It indicates an understanding that it is Lee who will be providing the child care service with support from another entity, R and J Homecare Services. A letter on the same date to that entity confirms the arrangement stating, "As you are aware the claimant's mother Lee has elected to provide the service herself for her grandson Nathan. Thank you for agreeing to have your agency support Mrs Robb."

10 On 15 March 2001, TAC commenced payment of loss of earning capacity benefits to Michelle. On 1 August 2001, Lee was appointed administrator and guardian of Michelle. The s.49 material reveals that on 2 November 2001, the claims policy group of TAC had a meeting in relation to the issue raised in this case and decided that a person cannot be considered mainly engaged in the care of a child if the child had not been born at the time of the accident, and opted to terminate payments for the child care service "in a sensitive and timely manner". Accordingly, by letter dated 7 May 2002, TAC informed Lee that:

As Michelle was not engaged mainly in housekeeping services or the care of a child at the time of the accident, TAC should not have commenced funding child care services for Nathan. Having become aware of this error, TAC is unable to continue funding this benefit and will cease payment effective from 31 May 2002.

11 A review of this decision was sought. On 11 October 2002, the decision was reaffirmed. On 19 September 2002, an application to review the decision of TAC was issued out of this Tribunal. In essence, it claims that, in the one month prior to the accident, Michelle was engaged primarily in housekeeping duties (and presumably, therefore, is entitled to benefits in accordance with s.60(2)(c) of the Act). Alternative arguments referred to in the application were not advanced at any length.

12 The interpretation and operation of s.60(2)(c) of the Act is at the heart of this dispute. Section 60(2) imposes on TAC a liability to pay compensation in certain specified circumstances. Section 60(2)(c) reads:

if the person, during the period of one month preceding the transport accident, was engaged mainly in housekeeping duties or the care of a child and did not receive salary or wages in respect of those duties or that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an authorised person to undertake in Australia housekeeping duties or care of the child, but the payment of the reasonable costs is not to exceed a total of 40 hours per week of housekeeping or child care services.

13 I should add that it was specifically stated by Mr Solomon, on behalf of TAC, that it would not be argued that Michelle, in some manner, received salary or wages in respect of any housekeeping duties performed. Payment "in kind" is not an issue.

14 Reference was also made in arguments to other provisions found in s.60 and, by way of comparison, to other provisions in the Act. Reference was also made to the definitions contained in s.3.

15 I shall now deal with the cases as presented and in order of presentation. I shall attempt to summarise the principal points advanced.

16 Payments of child care benefits pursuant to s.60(2)(c) should be made for three basic reasons. These are:

(a) In the one month prior to the accident, Michelle was engaged mainly in housekeeping duties, firstly at the house at which she stayed with a friend, and secondly at Fusion. Whilst she is incapable of giving a history of events herself, the documentation establishes this.

(b) She was engaged mainly in the care of a child because she was pregnant and was therefore caring for the child in utero.

(c) The child care provided by Lee is in fact a disability or rehabilitation service as referred to in s.60(2)(a) of the Act and as defined in s.3 of the Act. The care of Nathan constitutes a service to or for Michelle and falls within the meaning of either or both of those terms as defined in the Act.

17 These submissions were expanded upon as follows. Firstly, the documentation establishes that Michelle was in fact mainly engaged in housekeeping duties at the friend's house and at the Fusion refuge prior to the accident. Further, an analogy can be drawn between the approach adopted in this case to payment of loss of earning capacity benefits and the approach to the payment of child care benefits.

18 Secondly, (and I turn now to the written submissions previously provided by Mr Keogh of Counsel at an earlier date) no distinction is to be drawn between housekeeping duties and the care of a child in establishing the right to receive benefits. The purpose of the section is to establish a right to compensation by way of payment for substitute labour for persons who, prior to the accident, had been mainly engaged in home-based unpaid work, and who could then no longer perform same. Were it intended to divide the two - so that only those engaged in child care before the accident would be entitled to child care benefits thereafter, and the same for housekeeping duties - the legislature would have split s.60(2)(c) into two parts. Further, an attempt to divide up housekeeping duties and care of children so as to ascertain in which a person was mainly engaged leads to artificial and unacceptable results.

19 Next, Michelle, being pregnant, was mainly engaged in the care of a child - her unborn child - prior to the accident. The fact that there is no indication that Michelle was aware that she was pregnant is irrelevant. The definition of "child" in s.3 of the Act is clearly not exhaustive and is sufficiently broad to cover an unborn child. A child born after the occurrence of an accident would be entitled to benefits pursuant to s.59 of the Act. If it were the intention of the legislature to exclude unborn children from the definition of "child", it would have been easy for it so to do. Various dictionary definitions of "child" support this proposition. Reference is also made to s.59 of the Act, which originally permits payment of benefits to a child unborn at the time of the accident. The use of the word "foetus" in s.93(17) has to be seen in its context - namely that of common law damages.

20 In relation to the third principal argument, the service of child care provided by Lee to Michelle is part of a therapeutic regime and is a disability or rehabilitation service within the meaning of the Act. The definitions are sufficiently broad to encompass a service of this type - note, for example, the use of the word "other" in the definition of "rehabilitation service". The evidence establishes that Michelle is very involved with Nathan and has made extraordinary improvement. The developing by Michelle of parenting skills, which she learns as part of the care provided by Lee to Nathan, is an important rehabilitation goal. Lee is a "parental therapist" providing a service to Michelle.

21 In relation to "disability service" as defined, the service provided by Lee can be seen as one relating to attendant care. Lee is also providing to Michelle assistance within the meaning of the definition, and could also be seen as providing community access. Further, (as submitted by Mr Keogh in his written submissions) care of Nathan is covered by one of the many aspects referred to in the definition of "disability service".

22 Reliance is placed upon extracts from the decision of Hedigan J in Transport Accident Commission v McRitchie (2001) VSC 151 which emphasised that rehabilitative measures pursuant to the Act are available to persons whose health would otherwise deteriorate, and the service provided by Lee to Michelle falls into that category. The decision in Wood v Cullen [1991] VicRp 62; (1991) 2 VR 214, as quoted in McRitchie, is also relied upon, as is the decision of Deputy President Macnamara in Keller v Transport Accident Commission, 2002 VCAT 445, these cases being quoted in support of the proposition that the phrases "disability service" and "rehabilitation service" should not be given a restrictive meaning.

23 Reliance upon these phrases in s.60(2)(a) of the Act is not a "backdoor" way of obtaining childcare benefits pursuant to s.60(2)(c), as the service provided by Lee to Michelle goes far beyond care of a child and goes to Michelle's wellbeing.

24 The case for TAC, as advance by Mr Solomon, could be summarised as follows.

25 It is to be remembered that it is Michelle, and not Lee, who is in fact the applicant, albeit Lee has been appointed her guardian and administrator. It is Michelle who is the recipient of various benefits. This should be borne in mind in considering the application.

26 In this dispute, the principal and initial battleground is to be found in s.60(2)(c). In relation to that subsection, the first question to be asked is "What was Michelle mainly engaged in in the period of one month before the transport accident?". In this regard, s.60(2)(c) must be seen in its historical context. Reference is made to the decision of the Motor Accidents Tribunal in Burridge v Motor Accidents Board, delivered 8 October 1979, in order to demonstrate this historical context. The introduction of the word "mainly" in the legislation, replacing the previous words "on a full-time basis" was designed to avoid the type of result that was obtained in Burridge. In that case, the injured person could not recover because, whilst she was principally engaged in housekeeping, she also performed a very small amount of work in relation to her husband's business. The removal of the previous wording and the introduction of the word "mainly" was intended to provide coverage in a situation where someone is essentially performing housekeeping duties but, upon occasion, does "a little bit more". That is a long way removed from Michelle's situation, even assuming that the evidence regarding her pre-accident activities is sufficient.

27 Further, reference is made to two passages from a ruling of Ashley J in Eccles v Taylor (unreported, delivered 19 April 1995). In the latter of those two passages, Ashley J, commenting on the equivalent subsection, said it "...addresses a situation of a person who was, prior to being injured or killed, gratuitously undertaking services essentially for others".

28 Further, Ashley J also referred to the fact that s.60 provides, as compensation, recompense for various expenditures already incurred. Another decision of the Motor Accidents Tribunal - namely Kovatch v Motor Accidents Board (delivered 17 June 1977) also emphasises that, where payment has not been made, it must be shown that there is an obligation to make such payment in relation to the service provided.

29 In relation to the argument that, prior to the accident, Michelle was engaged in the care of a child, the meaning of "child" must be viewed in its statutory context and not interpreted according to dictionary definitions. The Act draws a distinction between a child and a foetus - see the definition of "serious injury" in s.93(17). At the time of the accident, Nathan was a foetus and not a child. Furthermore, there is no evidence to suggest that Michelle knew that she was pregnant at the time of the accident.

30 Next, the Act does not permit an applicant to "mix and match" in relation to housekeeping duties and care of a child. The Act substitutes for housekeeping duties, payment only for housekeeping duties. It is a substitution for what is lost. If before the accident Michelle was engaged mainly in housekeeping duties, she cannot then seek compensation in relation to child care after the accident.

31 In relation to the argument that what was performed by Lee in fact falls within s.60(2)(a), s.60(2)(c) is a provision specifically designed to compensate in respect of child care, and it in turn sets out specific requirements and limitations. The decision of the Court of Appeal in Transport Accident Commission v Salcedo (2003) VSC A226 deals with matters substantially different from the interplay between s.60(2)(c), with its specific requirements, and s.60(2)(a). If what are in fact child care benefits can be obtained pursuant to s.60(2)(a), the constraints contained in sub-paragraph (c) could be avoided. Well known High Court authorities have established that, in a statute, a general power not subject to limitations and qualifications cannot be exercised to do that which is the subject of a special power which is subject to limitations and qualifications.

32 There is no circumstance in which compensation for the care of a child in accordance with sub-paragraph (c) can constitute either a disability service or a rehabilitation service for the purposes of sub-paragraph (a). This is put as an absolute proposition. Apart from the fact that this is put as an absolute proposition, the accuracy of it is demonstrated by the fact that Michelle, through her counsel, has not specified any rate of pay or any number of hours per week for the payment if what is provided is a disability service or a rehabilitation service.

33 Further, and as a second but independent argument in relation to the operation of sub-paragraphs (a) and (c), pursuant to s.60(2) the only liability upon TAC is to pay to Michelle a sum of money. Mechanically, because a guardian and administrator has been appointed in the present case, TAC may be making the payment to someone else, but its liability is to pay compensation to Michelle and that liability does not extend to payments to any other person. Even though, as a matter of practice, TAC may make payments direct to the providers of medical and other services, the liability to pay is in fact one owed to the injured party. Section 60(2)(a) relates to expenditure that has actually been incurred. There has to be a liability in the injured person for which TAC is liable. Michelle can recover child care payments under sub-paragraph (c) if the conditions of that sub-paragraph are satisfied. However, if it is put that she is entitled to recover under sub-paragraph (a), she must have incurred a liability. There has been no quantification of any claim pursuant to sub-paragraph (a). What is being asked for is the gratuitous payment of a sum of money to Michelle's mother, open ended as to time and arbitrary as to amount. It is not to the point that Lee looking after Nathan is of benefit to Michelle. That does not make it a rehabilitation service or a disability service. There is no suggestion, not surprisingly, that Lee is charging or will charge Michelle for what she does. This again goes to illustrate that the legislature envisaged that child care expenses would be paid pursuant to sub-paragraph (c).

34 Finally, the various provisions to which reference has been made have to be read in their statutory context. Reference to the Act as beneficial legislation has a "hollow ring" to it - see Transport Accident Commission v Lincoln (2003) VSCA 67.

35 Some intriguing arguments have arisen out of the facts of this most unfortunate case. I shall not deal with them in the order in which they were presented, but rather in what could be described as order of simplicity of disposal. To my mind, the answer to one of the principal problems raised is relatively clear. The others have required greater thought and analysis.

36 Firstly, I reject the argument that the words "care of a child" in s.60(2)(c) can be extended to cover the care of an unborn child. In my opinion, this is so whether or not the injured person, such as Michelle, knew that she was pregnant at the relevant time. If there is no evidence that the person concerned even knew that she was pregnant, the conclusion at which I have arrived is perhaps more starkly illustrated.

37 If the legislature had intended to cover such a situation, the addition of the words "or is pregnant", or similar words, would have been a relatively simple task. No such words appear.

38 Further, when sub-paragraph (c) is read in its entirety, it seems to me even clearer that the legislature did not intend the provision to cover a situation such as this. The words following "care of a child" are "and did not receive salary or wages in respect of those duties or that care". The spelling out of a requirement that no wages be received in respect of the care provides somewhat graphic underlining of the type of child care that is envisaged. The concept of someone who is pregnant receiving wages for the care of her unborn child seems to me to be both novel and extraordinary, and even more so if the person concerned did not know that she was pregnant. There would be no need to exclude such a proposition. The provision is designed to provide compensation in respect of the reasonable costs of someone who now requires labour or assistance in relation to tasks which were previously performed by that person on an unpaid basis. In my opinion, it is not open to extend that wording or that meaning to cover an unborn child.

39 Further strength is added to that conclusion by the argument advanced by Mr Solomon in relation to the use of the word "foetus" in s.93(17). However, my primary reasons for reaching the conclusion which I have remain the specific wording of sub-paragraph (c) and what seems to me to be its obvious general intention. Section 59 seems to me to be dealing with a vastly different situation, and I make no comment as to whether or not it is intended to cover unborn children. In summary, the argument that Michelle is entitled to compensation by way of child care payments because, prior to the accident, she was caring for a child in utero, fails.

40 After some consideration, I am also of the view that the argument that the care provided by Lee to Nathan is a disability or rehabilitation service rendered to Michelle also fails. In my opinion the arguments advanced by Mr Solomon are correct. The compensation payable pursuant to sub-paragraph (c) is a specific type of compensation quite different from that referred to in sub-paragraph (a).

41 In so finding, I accept that the excellent and generous care given to Nathan by Lee is of benefit to Michelle. I accept that there has been quite extraordinary improvement in Michelle's condition and that the relationship with Nathan has played a role in this. That relationship is very important to her and plays a significant role in her life. Her visits to Nathan and Lee are probably also providing her with valuable parenting skills.

42 However, the real issue is one of interpreting the statute against the existing factual background. In my opinion, if s.60(2)(c) is not a self-contained code in relation to housekeeping services and child care, it is something which approaches that. It contains specifics which would not be subject to more general provisions. The decision of the Court of Appeal in Transport Accident Commission v Salcedo (2003) VSCA 226 does not, for example, extend the meaning of a "disability service" or "rehabilitation service" so as to cover this situation. I agree with Mr Solomon in this regard.

43 I reject the argument of Mr Schultz that the care provided by Lee to Nathan is such as to lift it over and above what is meant by child care and into sub-paragraph (a). That is in no way to criticise the care given, which, as I have stated, is both excellent and generous. However, as a matter of interpretation of the provisions, I am of the view that, no matter how excellent the standard of child care might be, the operation of sub-paragraph (a) is not attracted. The compensation sought either falls within sub-paragraph (a) or it does not. It either falls within sub-paragraph (c) or it does not. Its intensity, regularity, or standard of excellence does not lift it from one category to the other. It is not a question, as it was in Salcedo, of whether or not a particular type of care rendered in particular circumstances attracts the operation of the provision normally relevant to such care. Rather, it is a question of whether compensation for a type of care or service specifically covered in one provision can, in certain circumstances, be transposed into another provision. In my view, an argument to this effect must fail.

44 In summary, I am of the view that the argument that Michelle was entitled to compensation because the care provided by Lee to Nathan is in fact a disability or rehabilitation service within the meaning of sub-paragraph (a) is not a valid argument. Accordingly, Michelle is not entitled to succeed in this regard.

45 The third principal argument could be described as double-barrelled. The two limbs of this argument, which, to my mind, is the most difficult, are as follows. Was Michelle engaged mainly in housekeeping duties during the period of one month preceding the transport accident? Secondly, if she was so engaged, does that entitle her to compensation after the transport accident in relation to reasonable costs incurred in employing an authorised person to undertake care of Nathan?

46 After further lengthy consideration, I am of the view that the first question should be answered in the affirmative. Various things are to be remembered in this regard. Firstly, whilst I am conscious of the rules of evidence and am reluctant to depart far from them, this Tribunal is not bound by them - see s.98 of the Victorian Civil and Administrative Tribunal Act 1998. Secondly, the Tribunal may inform itself on any matter as it sees fit - see the same section. Thirdly, Michelle is a young person who had left home and found accommodation when and where she could. This includes living on the street. She has then suffered an horrendous injury which has left her with a major brain injury. The only statement which has been obtained from her is in the form of an interview which is sketchy in the extreme and concerning which she apparently had considerable fears, believing it was something to do with the removal of Nathan.

47 Bearing this in mind, the best evidence as to her activities in the one month preceding the accident, and the evidence which I believe should be adopted, is that contained in the histories given by her to the welfare agencies. In this regard, I refer to the forms headed "Day service client data form" and "Referral Form". These forms, completed in patently different handwriting, contain histories taken prior to, or at the time of, Michelle's admission to the Fusion refuge. The first of these forms, apart from including the history of Michelle moving out of home approximately one and a half years prior to either 10 or 11 March 1999, refers to her living with a boyfriend, living on the streets, and staying in a squat. The form, which, as stated, is dated either 10 or 11 March 1999 then states:

...moved in with a friend of hers (a man called Rowe who apparently has been diagnosed with psychotic depression) in Wallace Avenue, Bayswater. They had been living there for a few months (as Michelle is not on benefits she did housework to pay her way).

It is apparent that they were then ejected from that house as at the day the form was completed.

48 The other form - "Referral Form" - records the following history:

Staying in house in Bayswater - friend's dad's house - doing housework to pay her way (2-3 weeks).

It also records the early history of living on the streets. That form is dated 11 March 1999.

49 I am not convinced by the argument concerning the duties which Michelle performed at the Fusion refuge. While she may well have dried the dishes and been obliged to do certain duties pursuant to a roster, the amount which that adds to the concept of "engaged mainly in housekeeping duties" is small. I accept that it exists, but it seems to me that the best evidence available leads one to the conclusion that, prior to being ejected from the Bayswater home and moving to the refuge, Michelle was mainly engaged in housekeeping duties. These same history lead to the conclusion that she was so engaged during the month preceding the accident. She moved into the refuge on 11 March. The accident occurred on 14 March. She may well have performed minimal duties of the housekeeping type during that very brief period in the refuge. However, when the month is viewed as a whole, I am of the view that the evidence leads to the conclusion that she was engaged mainly in housekeeping duties during that month.

50 In so finding, I am aware of the arguments concerning the historical context of the provision that have been advanced by Mr Solomon. Nevertheless, the word "mainly" has been inserted in the legislation. There is no suggestion that Michelle was engaged in any other duties. To take "the other side of the coin" of the decision in Burridge which assists in providing the historical context, there is no suggestion that she was engaging in business activities for the greater part of the time with housekeeping duties playing a minor role. Nor do I believe that the word "mainly" necessitates an assessment on an "hours of the day" basis. Very few people would be engaged in a particular activity for thirteen of the twenty four hours in a day.

51 In my opinion, the limited evidence available leads me to the conclusion that, if Michelle were asked immediately before the accident, "in the last month in what have you been mainly engaged?", her answer would have been "housekeeping duties", and it would have been an accurate answer. She had not been engaged in business or employment duties. As with the rest of the community, she would doubtless have engaged in recreational and leisure activities. However, as recorded in the histories given by her almost immediately prior to the accident, the "duties" in which she had been mainly engaged were housekeeping or "housework" duties.

52 I agree with Mr Solomon that an artificial approach, or an approach calling for a percentage assessment of duties provided - whether it be a percentage division between housekeeping and other duties or between housekeeping and child-caring duties - is not required. An injured person either falls within the statutory requirement or does not. Giving the words of sub-paragraph (c) their ordinary meaning, and the meaning which, in my opinion, the legislature intended, it seems to me that, in the month preceding the transport accident, Michelle was engaged mainly in housekeeping duties. This accords with the histories provided by her prior to the accident.

53 The remaining question concerns what Mr Solomon described as the "mix and match" proposition. Given, as I have found, that Michelle was not engaged mainly in the care of a child in the one month preceding the accident but was engaged in housekeeping duties, is compensation then payable in respect of child care duties after the accident? Putting the converse argument, is there a threshold test to be passed and, once passed, is compensation then payable irrespective of the category of care or duty provided?

54 In my opinion, once an injured person satisfies the first set of requirements - namely that during the period of one month preceding the transport accident, he or she was engaged mainly in housekeeping duties or the care of a child and did not receive salary or wages - the statutory doorway to compensation is opened. If the injured person then employs an authorised person to undertake housekeeping duties or care of a child, compensation is then payable in accordance with and on the terms prescribed by sub-paragraph (c).

55 In submitting that, in applying the sub-paragraph, I should not "mix and match", Mr Solomon could be seen as in fact urging me effectively to apply the syntactical presumption reddendo singula singulis. If applied, the words "housekeeping duties" when first used and before the word "or" are then linked to the words "housekeeping duties" when next appearing and again before the word "or". The same would apply to the words "care of a child" appearing after the word "or" in each instance. This presumption is described in "Statutory Interpretation in Australia", Fourth Edition, by Pearce & Geddes at p.111 as follows:

Where two or more subjects are qualified by two or more matters, the qualifications attach to the subjects in the order in which they appear.

56 Various examples illustrating the application of the presumption are given in Pearce at pp.111-112 and in "Statutes", Second Edition, by MacAdam & Smith at pp.132-3. Further illustrations of the use of the presumption can be found in Bishop v Deakin (1936) Ch. 409 and in Chelfco Ninety-Four Pty Ltd v Road Traffic Authority [1985] VicRp 1; (1985) VR 1.

57 I would make the following observations concerning the application of the reddendo presumption.

58 Firstly, like all presumptions it can be rebutted.

59 Secondly, as stated in Pearce at p.112, "Grammatically this interpretation may be defensible ... but it presupposes a precision in writing that may well be a counsel of perfection." The authors then go on to give the very good example of s.14(2) of the Interpretation of Legislation Act 1984, and how, despite the wording, the reddendo principle could not be applied to it.

60 Thirdly, again as stated in Pearce "The approach can, however, be useful where a complex section containing multiple subjects with multiple dependent clauses has to be interpreted."

61 Fourthly, the approach of Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 is noted. At p.6 of the report of that decision, he stated:

There is, of course, a presumption that a modifying prepositional phrase of that sort following the verb does attach itself to the last preceding verb and not to preceding verbs separated from it by an alternative. But, when the whole provision is looked at ...

As could then be anticipated, when looking at the whole provision, Sir Owen Dixon opted not to apply that presumption.

62 Fifthly, it seems to me that, in s.60(2)(c) there are not two such distinct subjects with distinct qualifications as there are in the examples used in the texts. Such examples include "murder or attempted murder", "paint or varnish", and "introducing or keeping". In the present case, and as pointed out in the written submissions of Mr Keogh, there is scope for considerable overlap between the two subjects. It is not a situation of "murder or attempted murder" (clearly distinct subjects) with an appropriate penalty for each.

63 Bearing all of this in mind, and bearing in mind the wording of the whole sub-paragraph, I am of the view that the reddendo principle should not be applied in interpreting this particular piece of legislation. If Mr Solomon was not intending to direct me to the reddendo presumption, I am nevertheless against him in his argument that one cannot "mix and match". The argument and examples given in Mr Keogh's written submissions seem to me to be correct.

64 That this leads to a correct and sensible outcome can perhaps be illustrated by another hypothetical example based on facts more commonplace than those in the present case, facts which are nowhere near as tragic or singular. Assume that a mother has a young child at home. However, she is mainly engaged in housekeeping duties. She is then involved in an accident. As a result of physical injuries sustained in the accident, whilst she can and does continue to engage in the housekeeping duties, she needs assistance to care for the child. It would seem an unfair, incongruous, and almost discriminatory result if she could not obtain compensation in the form of payment for assistance for child care simply because, prior to the accident, she was mainly engaged in housekeeping duties.

65 Such an outcome, whether in that example or in the present case, does not seem to me to be what was intended by the particular statutory provision and, for that matter, is not particularly consistent with the objects of the Act. Apart from the fact that the correct application of principles of statutory interpretation does not lead to the type of outcome described above, I am mindful of the object of the legislation set out in s.8(b) of the Act:

to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured ... as a result of transport accidents.

66 The observations of Winneke P in Lincoln have been brought to my attention and it may be that words such as "beneficial" in relation to legislation such as this now have a "hollow ring" about them. However, with respect, I do not interpret the words of His Honour as meaning that such a general approach to the interpretation of compensation statutes no longer exists or has forever departed. I understand him to be saying that, in this state, such an approach is no longer in the robust condition that it once was. It may also be that an approach based upon the beneficial interpretation of compensation statutes is becoming an argument of last resort. In any event, it is a factor which, whilst relatively low on the scale of importance, I have borne in mind in the present case.

67 I should add that, as I understand it, no argument was raised on behalf of TAC that Lee is not an authorised person within the meaning of the provision if the other requirements are satisfied. The compensation payable in respect of her specifically ceased because of the arguments based upon the failure of Michelle to be previously engaged mainly in housekeeping duties or the care of a child. Apart from the fact that no argument to the contrary was raised, the original correspondence of 13 September 1999 specifically approves Lee as the provider of child care.

68 In summary, I find that Michelle was engaged mainly in housekeeping duties for which she did not receive salary or wages during the period of one month preceding the transport accident in which she was involved. I find that, pursuant to s.60(2)(c) of the Act, the Commission is liable to pay to her as compensation the reasonable costs incurred after the transport accident in employing an authorised person to undertake care of her child. Of course, the payment of such compensation is subject to the terms and conditions otherwise set out in that provision.

69 In this case, there has been sought the review of other determinations, and I understand these problems to have been resolved. It was foreshadowed that there would be both the reservation of costs and the striking out of other proceedings or of other parts of this proceeding. Given the conclusion at which I have arrived, I shall hear submissions as to the orders which should now be made.

Civil and Administrative Tribunal Act 1998

Legislation Act 1984

Robb v Transport Accident Commission [2004] VCAT 983

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Robb v Transport Accident Commission [2004] VCAT 983 (27 May 2004)

Parties

Legislation Cited (3)

Cases Cited (2)