Transport Accident Commission v Moore [2004] VSCA 60

12. The respondent sustained injuries to both legs, his right arm and his back in a motor vehicle accident on 14 June 1997. A claim for compensation under the Transport Accident Act was duly lodged and liability to pay reasonable medical and like expenses was accepted by the Transport Accident Commission ("the Commission") on 8 January 1998.

15. At that stage the definition of "medical service" contained in s.3 of the Transport Accident Act 1986 included:

"(e) the provision by a medical practitioner, ... of any certificate or report required by the person, the person's dependants for any purpose relating to the operation of this".

19. On 6 June 2000 and on 13 June 2001, reports from Mr Bonomo, the applicant's treating surgeon, were given to the Commission and, on each occasion, the amount claimed in reimbursement ($500 and $600 respectively) was paid.

22. A further report from Mr Bonomo was requested and paid for by the respondent's solicitors in July 2001. However it was not provided to them until October 2001. This report was forwarded to the appellant on 15 October together with an invoice for reimbursement of the $660 paid to Mr Bonomo.

25. In the meantime, consequent upon an amendment which came into force on 1

August 2001[1],the definition now relevantly read:

"(e) the provision by a medical practitioner, ... of any certificate required by the person, the person's dependants or the Commission for any purpose relating to the operation of this Act or any report authorised by the Commission;"

30. The appellant responded to the invoice in a letter dated 26 October 2001 which stated (inter alia):

"I refer to an invoice received on 16 October 2001 for $660.00 for a medical report provided by Dr A L Bonomo. I am writing to advise that this amount exceeds the TAC's maximum reasonable rates for providing such a service. The maximum rate that the TAC can pay is $385.00 a figure that has been determined as the maximum reasonable rate based on a review of all invoices sent to the TAC over the last 12 months from doctors of this discipline. Our payment for $385.00 has been forwarded under separate cover."

34. The respondent sought a review of this decision by the Victorian Civil and Administrative Tribunal in order to secure full reimbursement. It has not been disputed before us that, at the subsequent hearing before Judge Bowman, three questions arose for determination[2], namely:

(a) Did the amendment set out above apply in the circumstances?

(b) Did the respondent require the approval of the Commission to the provision of the report of Mr Bonomo before it was secured?

(c) Were the costs associated with the obtaining of the report "reasonable" within the meaning of the Act?

40. Judge Bowman decided each of these questions adversely to the appellant. With respect to the first, he stated:

"The amendment did not merely alter the procedure for obtaining a report. It affected a substantive right in relation to the obtaining of such report. After 1 August 2001, the obtaining of a report without authorisation means that the report, on the face of it, is not a medical service concerning which compensation can be paid. In the present case the applicant had requested and paid for such a service at a time when no authorisation was required. Amongst all the comprehensive evidence introduced, there is no suggestion that those in the unusual position of the applicant were informed or in any way advised that a fresh or renewed application should be made. The applicant, in requesting and paying for the report, was acting in compliance with the existing law. Accordingly, it seems to me that the amendment does not apply and that authorisation was not required."

"Even if this not be correct, it seems to me that the second possible approach leads to the same conclusion. If authorisation was required, it seems to me that the respondent in fact authorised the obtaining of the report, albeit after the event. By its letter of 26 October 2001, which embodies the decision under review, the respondent not only did not refuse to authorise the obtaining of the report, but in fact agreed to pay for it and referred to the forwarding of a payment of $385 under separate cover. The respondent has clearly authorised the provision of the report."

46. I need not set out his answer to the third question as it has not been the subject of any complaint before us.

49. Whilst submissions have been presented by the appellant to the effect that the Tribunal fell into error in relation to each of these answers, counsel appearing on its behalf accepted without hesitation that their client was not particularly concerned with the correctness of Judge Bowman's view of the applicability of the amendment to, a situation that was unlikely to be encountered again, but with his finding that the provision of a report could be authorised after it had been secured.

52. Accordingly, it is to that issue that I will now turn. In support of the appellant's contention that the word "authorised" where it appears in the definition of "medical service" in s.3(e) is to be construed as requiring the prior approval to the securing of the report, the Court has been referred to the definition of the term employed by Jordan, C.J. in Ex parte Johnson; Re MacMillan[3] and to a number of other authorities in which that definition was applied. His Honour considered that:

"The word `authorise,' according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess."

"But the word, like any other word, may be controlled by its context; and, to give it the meaning contended for, would defeat the obvious intention of the regulation-making authority. In its present context, I am of opinion that `authorizing' in reg. 30A(1) must be read as including `requiring.' "

58. There is, I consider, no need to provide any analysis of the various contexts in which the use of the word "authorised" has been considered in the authorities as none can be seen to assist in the resolution of the particular issue with which this Court is confronted. In general terms, the various cases have involved situations in which there were claims by one party or another that a particular person or body had acted within implied authority where none had been expressly conferred, whether a conferred power encompassed the particular actions taken or a conferral of power was required at all. On each occasion, as would be expected, the court considering the matter pointed out that the meaning to be attributed to it was controlled by the context in which it was used.

61. The appellant has argued that, applying that approach to the present matter, the word "authorised", where it appears in the definition of "medical services", should be attributed what was asserted to be the natural and ordinary meaning accepted by the courts. Because in its ordinary usage, as understood in the various cases, it encompasses the notion of the conferral of a capacity or right to perform some act or function that would otherwise not be possessed, it should be seen to operate prospectively, with authorisation not being possible after the act or function has been performed. This approach, the argument proceeded, was not only required in the application of the ordinary principles of statutory interpretation to the amendment, but implemented the intention of the legislature to reduce the costs and administrative difficulties[4] involved in the operation of the compensation system up to that time.

64. I accept that "authorise", where relevantly it appears in the Transport Accident Act, does possess the natural meaning accorded to it by Jordan, C.J. in the passage set out earlier. It is also clear enough (assuming for present purposes that the amendment is applicable) that if the provision of a medical report is not "authorised" by the Commission, no reimbursement for the costs involved in obtaining it is recoverable. It does not follow from those statements, however, that the authorisation must be secured in advance, unless that consequence is implicit in the use of the word "authorised" itself. I am unpersuaded that that is the case.

67. There are many situations known to the law in which actions, the making of statements on the exercise of a power can be subsequently ratified, adopted, endorsed, sanctioned, countenanced or approved, to use some of the terms that have been employed from time to time. I can see no good reason for holding in the present context that this approach should not be adopted to the word "authorised". To hold that the necessary approval could be given after the report had been obtained would do no violence to the language of the provision and it does not appear that there is anything in the policy considerations, as identified by the Minister in his second reading speech, when introducing the amendment, that would militate against this view.

70. As a matter of prudence, of course, an applicant would be wise to obtain the agreement of the Commission before obtaining a report, but it is possible to envisage situations in which this could present real difficulties and it would be strange indeed if the Commission could not retrospectively grant approval. If in such circumstances the obtaining of the report was accepted as reasonable by the Commission, the provisions would operate flexibly and reimbursement could be made. The ability of the Commission to achieve the objectives of the amendment could not be seen to be seriously compromised in such situations. The suggestion advanced in argument on behalf of the appellant that the possibility that the obtaining of reports could be subsequently authorised would defeat the legislative intention to reduce the number and cost of reports and create substantial administrative difficulty is, in my opinion, quite unrealistic. It is noteworthy that there are currently guidelines in place which have been designed to obviate the need to secure separate authorisation for each report in any event[5]. Any practitioner with a modicum of commonsense would appreciate that compliance with them would generally be expected.

73. In the present matter, I do not consider that Judge Bowman fell into error in finding that by acceptance of the report and the forwarding of the sum of $385.00 as part reimbursement of the cost of securing it, the Commission "authorised" the provision of the report concerned. It follows, accordingly, that irrespective of the answer to the question of the applicability of the amendment of 21 August 2001, the appeal must fail. In the circumstances, particularly bearing in mind that the issue is highly unlikely to arise again, I see no point in addressing that matter.

[1] Transport Accident (Amendment) Act 2000, Act No. 84 of 2000.

[2] No question arose concerning the purpose for which the report was secured. Nor was there any suggestion that the obtaining of it might be perceived as unreasonable or that if prior approval for it had been required, this might not have been granted.

[3] (1946) 47 S.R.(N.S.W.) 16 at 18.

[4] In his second reading speech when introducing the amendment, the Minister for Workcover stated:

"Impairment disputes are increasingly expensive to resolve, and tend to rely on obtaining excessive numbers of medico-legal reports, with the claimant submitting to multiple examinations to determine their degree of impairment. The increasing cost of these procedures and the delays in delivering impairment benefits reduce the value of the benefit to the claimant and can hamper a claimant's recovery effort. The number of medico-legal reports obtained in connection with impairment disputes has been growing steadily over the last three years, notwithstanding a reduction in appeals over the same period by more than half, from 1425 in 1996-97 to 696 in 1999-2000. By contrast, the number of reports obtained to determine impairment has grown from around 9400 in 1996 to 13 350 in 1999-2000. The effect of this growth has been to drive up the cost of delivering impairment benefits to a point where it now costs more than half the total benefit - $11 million out of $20.5 million - to deliver impairment benefits to claimants." Hansard, House of Assembly Debate on the Transport Accident (Amendment) Bill, Thursday 5 October 2000 at page 938.

[5] See the witness statement of Greg Tweedly, Executive General Manager, Service Delivery for the Transport Accident Commission, dated 20 June 2002, in tribunal hearing.