Transport Accident Commission v McRitchie [2003] VSCA 51

Court of Appeal (Vic)|2003-05-05|Before: PHILLIPS, BUCHANAN and CHERNOV, JJ.A.

Accident compensation - Transport accident - Gravely injured patient with little freedom of movement - Resident of "community house" providing necessary services - Commission's liability for "rehabilitation services" - Whether such include the daily "bed fee" charged by community house for basic living expenses - Tribunal decision adverse to Commission - Appeal by Commission dismissed by judge - Further appeal dismissed - Transport Accident Act 1986 ss.3, 60.

This is an appeal from an order made in the Trial Division on 17 May 2001 dismissing the Commission's appeal from a decision of the Victorian Civil and Administrative Tribunal (constituted by Deputy President McNamara) delivered on 16 May 2000. The appellant alleges error below.

The short point on this appeal is whether the expression "rehabilitation services", as defined in s.3 of the Transport Accident Act 1986 for the purposes in particular of s.60, includes or does not include the so-called "bed fee" levied by Lisdale International. The respondent suffered catastrophic injuries as a result of a transport accident on 1 June 1996 while travelling as a passenger in a motor vehicle. At the time of accident she was only 20 years old. Her injuries included a serious head injury and she suffers from extensive paralysis. The respondent is now resident in a community house where the necessary attendant care services can be provided. She receives from the appellant a weekly sum by way of "loss of earning capacity" benefits under s.49. The appellant contends that the respondent should be paying the so-called "bed fee" of $25 per day levied by the operator of the community house.

The appellant otherwise accepts liability for the payment of the respondent's expenses in the community house, expenses which the appellant agrees are due to the accident. The appellant however argues that the $25 per day is referable not to the accident but to living expenses that the respondent would have incurred anyway. Both the Tribunal and Hedigan, J. held that, in the particular circumstances of the case, the two were incapable of separation; the one was but part and parcel of the other.

We agree; and in our opinion, the argument that sought to employ the notion of "compensation" expressed in the Act generally, and, it may be said, more than once in s.60, does not prejudice that conclusion.

The relevant facts are to be found in the reasons for decision of the Tribunal and in the comprehensive reasons for judgment delivered by Hedigan, J. on 17 May 2001[1]. As we are of opinion that, in essence, his Honour was correct in the reasons which he gave when dealing with the Commission's appeal from the Deputy President, it follows that this appeal, too, should be dismissed.

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