Transport Accident Commission v Salcedo [2003] VSCA 226

2. The Court has before it two appeals from the Victorian Civil and Administrative Tribunal in related matters, both of them concerned with the obligation of the Transport Accident Commission to meet the costs of services provided to a transport accident victim under s.60(2)(a) of the Transport Accident Act 1986 ("the Act"). The first challenges a decision of the Vice President that the Commission is liable for certain services performed for the respondent by her mother while the respondent was in hospital after a tragic transport accident which left her a paraplegic; and the second challenges his Honour's subsequent decision that the Commission is liable for the increased cost of the respondent's renting long-term accommodation suitable to her post-accident needs, when the respondent finally moves from the transitional accommodation in which she is presently housed. As will be seen, I think that the first appeal should fail, but the second succeed.

6. On 21 October 2001 Rocca Salcedo, now the respondent, was a pedestrian when she was struck and injured by a motor vehicle. She was 25 years old at the time and had but recently arrived in Australia from her homeland, Colombia, where she was a qualified legal practitioner. She was in Australia for the purpose of complete a course in English studies before returning to her home in Bogota. At the time of the accident, she was residing in host accommodation organised through Home Stay Australia, for which she was paying $180 each week ($100 for room rental, $20 for utilities and $60 for meals).

9. Following the accident, the respondent was taken by ambulance to the Austin Hospital. She was subsequently discharged to the Royal Talbot Rehabilitation Hospital where she remained as an in-patient until 5 December 2002. Meanwhile the respondent's mother had travelled from Bogota to be with her daughter. Mrs. Salcedo was a frequent visitor to her daughter in the hospital and, when there, she would assist in a variety of ways, with grooming, exercising, transfers, toileting and other activities. Some of the assistance provided by Mrs. Salcedo included activities undertaken when nurses were not immediately available but which otherwise would have been performed by nursing staff. The respondent duly applied to the Commission for compensation under the Act and sought in respect of her mother's "attendant care" while she was in hospital the Commission's approval of her mother as an attendant carer. By letter dated 28 December 2001 the Commission told the respondent that, while the claim for "medical and related expenses" was accepted, it was unable to give the approval which was sought. The letter stated, inter alia:-

"... due to the funding arrangement with the hospitals, the TAC is unable to fund any attendant care while a claimant is an inpatient, as all your needs should be met by the hospital."

In consequence the Commission declined to provide the approval sought.

14. Following the respondent's discharge from the Royal Talbot Rehabilitation Hospital on 5 December 2002, the respondent and her mother took up residence in a unit in Heidelberg which is owned by the Royal Talbot Rehabilitation Hospital and for which the respondent paid a nominal rent. By the time of the Tribunal hearing, the respondent was awaiting transfer to another rental property in Coburg, being a property identified as better suited to her disability needs. But like the residence in Heidelberg this, too, was only transitional accommodation pending her ultimate relocation in another property suited to the respondent's longer term needs. It was the respondent's contention that when she moved into permanent rental accommodation she would require, because of her disabilities, larger and possibly more conveniently located premises than would otherwise have been the case.

17. Accordingly, through her solicitors the respondent made another application to the Commission, seeking, inter alia, financial assistance with respect to the expense of permanent accommodation. By letter dated 19 February 2002 the Commission replied that, while it could assist the respondent to find an appropriate rental property by referring her to a specialised disability housing organisation and "would consider minimum required modifications to [the respondent's] rental property if required", the Commission -

"... is not able to pay rent, utility costs or other everyday expenses."

To that extent the application was refused. What is now in issue is the respondent's claim for assistance with rent when she obtains permanent accommodation.

23. By notice dated 29 January 2002, the respondent sought to have the Tribunal review the Commission's decision of 28 December 2001. On 15 May 2002 the application for review was heard and on 21 June 2002 the decision of the Commission was reversed. The learned Vice-President delivered reasons, holding that the respondent's mother be authorised as an attendant carer of the applicant, that she be recompensed as an attendant carer on the basis of her services being provided for two hours and 20 minutes for each day that the applicant was in hospital; and that such services had been provided since 28 November 2001 and were ongoing. Each of these orders is now the subject of appeal by the Commission. That is appeal No.3741 of 2002.

26. By notice filed on 16 April 2002, the respondent sought to have the Tribunal review the Commission's decision of 19 February 2002. The hearing of that application commenced in December 2002 and was completed on 19 June 2003. On 11 July 2003 the Vice-President reversed the decision of the Commission, holding in paragraph [28] of the reasons for decision that the Commission's decision should be set aside on the ground that the Commission -

"... is liable to pay accommodation expenses or rental, reserved as to amount, but such amount being that resulting from the accident and necessary as part of the rehabilitation process, and being that over and above the expense which would have otherwise been incurred by the applicant but for the accident".

The formal order was expressed more simply: "that the [Commission] is liable to pay accommodation expenses or rental, reserved as to amount (see paragraph 28 of decision)." It is the order, interpreted in the light of paragraph 28, which is now the subject of appeal No.3739 of 2003.[1]

31. By the time the appeals came on for hearing, the Commission had already paid the respondent weekly compensation for loss of earnings in accordance with s.44 (totalling more than $23,000) together with a sum exceeding $12,000 to date for loss of earning capacity and continuing at the rate of $706 per week. None of that is now under challenge: the Commission contends only that his Honour erred in reversing its decision of 28 December 2001 in respect of the attendant care being supplied by Mrs. Salcedo to her daughter while in hospital and its decision of 19 February 2002 in respect of increased rental costs.

35. It was common ground that we should refer to the Act as it stood immediately after amendment by Act No.84 of 2000. The present respondent's claims rest ultimately upon s.60(2)(a) which reads:-

"(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident - (a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident".

There are three more paragraphs that follow in sub-s.(2): paragraph (b) dealing with "the reasonable costs of attendant care services" received overseas in certain circumstances; paragraph (c), dealing with the reasonable costs "in employing .... an authorised person to undertake ... housekeeping duties or care of the child" if the person injured was engaged mainly in housekeeping duties or the care of a child at the time of the accident; and paragraph (d), the reasonable costs "in employing an authorised person to provide ... services of a domestic nature or services relating to nursing and attendance" (less any amount payable under (c)). The notion of "an authorised person" is relevant to s.23 which I shall mention in a moment.

40. The respondent relied upon paragraph (a) of s.60(2) and, in relation to her mother's attendant care, the definition of "disability service" in s.3(1). That definition reads:

"'disability service' means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23."

The respondent contended that her mother's attention to her while she was in hospital amounted to "attendant care" and so fell squarely within the definition of "disability service". For its part, the Tribunal had no difficulty in accepting that, in large part at least, the services in question did amount to "attendant care" if those words had their natural and ordinary meaning and were unaffected by context. Nor did I understand there to be any dispute about that on this appeal. In terms, of course, the definition of "disability service" is not called into play unless the services in question are also "authorised in accordance with section 23", sub-s.(1) of which reads:-

"(1) The Commission may authorise- (a) services to be disability services or rehabilitation services; or (b) persons to provide services for the purposes of section 60(2)(c) or 60(2)(d)."

Such approval was refused by the Commission, as already mentioned, in substance because the respondent was an in-patient in a hospital.

47. As to this last, I mention an incidental matter which in the end turned out to be of no consequence. According to the letter sent by her solicitors to the Commission, the respondent had applied to the Commission under s.23 for approval of Mrs Salcedo "as an attendant carer", an application perhaps more apt to s.60(2)(c) and (d), which speak of "an authorised person", than to sub-s.(2)(a), which speaks of "services" not persons. Before us, the Commission was disposed at one stage to make something of this, counsel submitting that the definition of "disability service" surely looked to paragraph (a) of s.23(1), not to paragraph (b), and that the Tribunal had therefore fallen into error when it ruled that Mrs. Salcedo be authorised "to provide services", an obvious invocation (it was said) of paragraph (b) of s.23(1), not paragraph (a). In the end, however, the submission was put but faintly, the Commission appearing to accept that to authorise Mrs. Salcedo to provide services was, in substance, to authorise the services she was providing (if indeed they were services) "to be disability services" within the meaning of the definition of "disability service". The lack of correspondence between singular and plural in the definition and in s.23(1) is awkward but not important and, if it matters, I have no difficulty in regarding the Tribunal's order as giving authorisation under s.23(1) (a) not (b).

50. It was the respondent's case that, as the services being provided by Mrs. Salcedo to her daughter while in hospital amounted to "attendant care", then, once authorisation was obtained under s.23, those services were "disability services" within the meaning of the Act and so compensable in this case under s.60(2)(a). The Tribunal agreed, and held (standing in the shoes of the Commission on review) that such authorisation ought to be given.

53. The Commission's case (before us as below) was that, whatever else may be said of the definition of "disability service", it was affected by context and that, when properly read and understood, it did not extend to services provided to a person while an inpatient of a hospital. Such services, if covered at all by s.60(2)(a), were encompassed by another definition in s.3(1) (so the argument ran), that of "hospital service" which reads:-

"'hospital service' includes- (a) maintenance, attendance and treatment in any hospital; and (b) the provision by any hospital of- (i) medical attendance and treatment; and (ii) nursing attendance; and (iii) medicines, medical, surgical and other curative materials, appliances or apparatus; and (iv) any other usual or necessary services provided by a hospital with respect to the treatment of the injury of a person."

The Commission's case was that the assistance rendered by Mrs Salcedo to her daughter while in hospital was of the very nature of a "hospital service"; for in many respects the services that Mrs Salcedo was performing were those regularly performed by nursing staff at the hospital when such staff were available and in this instance the services were being rendered by Mrs Salcedo only because staff were not immediately available. It was submitted that such services were compensable or not according to whether they fell within the definition of "hospital service" - and these did not because, even if characterised as "nursing attendance" or perhaps as "any other usual or necessary services provided by a hospital", they were not within the opening words of paragraph (b) in that they were not provided "by [a] hospital". They were provided by Mrs. Salcedo.

58. Pointing to the fact that the Commission already funded the provision of "hospital services", counsel contended that the Commission should not be called upon to fund the provision of supplementary services to an in-patient by caring relatives or friends, and as to which Parliament itself had remained silent. There was nothing, Mr. Maxwell said, to suggest that the services being provided by the hospital in this case were inadequate and Mrs. Salcedo, in affording her daughter assistance while she was an in-patient, was providing neither "hospital services" (in that the services were not provided by a hospital) nor "disability services" (in that the services were provided to an in-patient while in hospital). Accordingly, according to counsel, the Commission was not empowered by s.23(1) to give authorisation under that section to satisfy the definition of "disability service". (It was not now suggested that the services in question were "rehabilitation services".)

61. The Commission's argument was rejected by the Tribunal and, in my opinion, rightly so. It depends upon regarding each definition as exclusive and exhaustive and, in my opinion, the argument cannot be sustained. The point can be made by looking more closely at the definition of "hospital service" and, I think, that of "medical service". As I read it, the definition of "hospital service" creates two categories: the first is what I conceive to be the maintenance of the patient, the attendance of the patient and the treatment of the patient in any hospital and the second, the provision by any hospital of medical attendance, treatment and the like and "any other usual or necessary services provided by a hospital with respect to ... treatment". That puts it very broadly of course but it suffices for present purposes. In contrast, the definition of "medical services" looks in the main to the professional individuals by whom services are provided, such as medical practitioner, registered pharmacist, and so on. It is obvious that there will sometimes be overlap between the two definitions. For example, suppose the medical practitioner who, acting altogether independently of the hospital, visits his patient in hospital instead of at home, because the doctor happens to be passing just before his patient is discharged. Are the services provided during that visit not a "medical service" because they are provided to one who is still an in-patient, however fortuitously? It is noteworthy that the definition in s.3(1) of "nursing service" expressly excludes a nursing service rendered "at a hospital". The definition of "medical service" does not.

64. Nor does the definition in s.3(1) of "rehabilitation service", which reads:-

"'rehabilitation service' means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service, the provision of which is an authorised service in accordance with section 23".

(See again s.23(1)(a).) The efforts of, say, an occupational therapist on behalf of an injured person no doubt fall within the definition of "rehabilitation service" when those services are provided to the client at home. Are they denied that character when they are provided, perhaps altogether independently of the hospital, to the client while still an in-patient? Must they then be characterised, if possible, as a "hospital service" but not as a "rehabilitation service" so that s.23(1) becomes irrelevant? There seems to me no reason for such exclusivity, or indeed such dominance of one definition - that of hospital service - over the others. (Again, the definition of "disability service" expressly excludes what is by definition a "rehabilitation service", which indicates once more that where Parliament meant exclusivity it said so.)

71. Accordingly, I do not see sufficient reason to exclude from the definition of "disability service" the provision of services by Mrs. Salcedo, simply because she is attending upon her daughter while an in-patient in the hospital. Her care of and attendance upon the respondent when at home on weekend leave (assuming such care and attendance to be necessary and appropriate) could not be excluded from the definition of "disability service" because of the place where the services were provided and so, it seems to me, those services fall within the same definition when the same care and attendance are of and upon the respondent while in hospital. It amounts to "attendant care" as the Tribunal found and I am not persuaded that, simply because "attendant care" is the sort of thing that might well be provided by one of the nursing staff of a hospital to a patient while in hospital, it therefore, and on that account alone, must fall outside the definition of "disability service" when provided in the hospital and to an in-patient (especially if, as the Commission submitted, it is not a "hospital service" which would have to be funded by the Commission in any event[2]).

74. The Commission argued strongly that it should not be expected to meet not only the costs of hospital services - the full cost of hospital services including, it may be expected, all that was necessary and appropriate by way of treatment, maintenance and attendance - and then to pick up the further costs of attendant care as a "disability service" simply because the mother of the patient thought that it was appropriate. There are two answers to this argument. First, the evidence went beyond the mere wishes of the mother: the Tribunal accepted that the mother's care and attention extended to the respondent while in hospital was both necessary and appropriate and it is not necessary to explore the facts to justify the conclusion. The conclusion on the facts was open to his Honour and the appeal is only on a question of law. The second answer is that found within the last few words of the definition of "disability service": services are within the definition only if the provision of the services is authorised by the Commission under s.23. If the Commission considers, properly, that the services being provided in addition to the hospital services are unnecessary, inappropriate, or unjustified, authorisation can be withheld. The Commission thought to withhold authorisation here but its decision in that respect was overturned by the Tribunal. But the requirement of authorisation answers the argument that the Commission might unfairly be lumbered with additional costs by unwarranted reference to the definition of "disability service". The control put in place by Parliament is to be found in s.23(1).

77. This being an appeal on a question of law, there was no challenge as to the findings of fact made by the Tribunal and in particular no challenge to the assessment made by the Tribunal of the extent to which Mrs. Salcedo's assistance to the respondent while in hospital constituted "disability services". The Tribunal did not accept that everything Mrs. Salcedo did for her daughter when she visited amounted to "attendant care": such things as the mopping of the brow, the buying of sweets and so on were rather the actions of any loving parent or charitable visitor. None the less, most of the tasks performed by Mrs. Salcedo, the Tribunal found, did amount to attendant care and hence the determination, not only that Mrs. Salcedo "be authorised as an attendant carer of the applicant", but also that she be recompensed as such "on the basis of such services being provided for two hours and twenty minutes for each day". There being no challenge to that aspect of the determination, I would dismiss the appeal for the reasons I have given.

81. Here, the dispute is over the Commission's alleged liability to assist the respondent, when she changes to permanent accommodation, with any increased rent due to her special needs in consequence of the transport accident. The Commission has offered to assist in making necessary modifications to such accommodation as may be obtained (meaning, I suppose, the provision of ramps for wheelchair access and the like). But the Commission declines to provide assistance for regular rent payments. The Tribunal concluded that the payment of rent, on a regular basis, fell within the operation of s.60(2)(a) as both a "disability service" and a "rehabilitation service" as defined in s.3(1). The definition of "disability service" was held by the Tribunal to be "broad enough to include an expense of this kind in this particular case", particularly because of the words "accommodation support", a phrase which his Honour ruled should not receive a "narrow interpretation". As to "rehabilitation service", this too, the Tribunal said, was "of sufficient breadth to include an allowance in respect of accommodation, however that may be described".

84. In so concluding, the Tribunal in large part rested upon the decision in Transport Accident Commission v. McRitchie[3], a matter which originated in the Tribunal.[4] In that case the injured person needed special heating, special food, a specially sized room, and fairly constant care and attention when she was placed in a "community house". The dispute was over "an additional daily amount described as a bed fee", one component of which was the cost of accommodation. It was held by Deputy President McNamara that "items such as accommodation, utilities and food are so completely integrated into an institutional program that it would be unreasonable to seek to disaggregate them" and so the Commission was liable for the "bed fee" in full. On appeal, Hedigan, J. agreed. In his Honour's view, what was in dispute was all of a piece with the "rehabilitation service" being supplied. The Court of Appeal agreed, too, saying that "in the particular circumstances of the case" any fee for accommodation was but part and parcel of the rest.

87. From McRitchie, the Tribunal drew the conclusion that in certain circumstances accommodation expenses can fall within the definition of "rehabilitation service" for the purpose of s.60(2)(a). There can be no dispute with that. But error followed, in my respectful view, when the Tribunal, read the definition of "rehabilitation service" as sufficiently wide to include an allowance for accommodation per se. The Tribunal saw the criterion as being "the degree of separation, if any, between the expense referable to the accident and a living expense that would have been incurred in any event", but that was not the purport of McRitchie. In McRitchie, the "rehabilitation service" was essential to the wellbeing of the injured person, for the need was clear for special food, assistance with feeding, and so on. Payment of the "bed fee" was justified because, although it included something for accommodation, albeit special accommodation, it was but part and parcel of the "rehabilitation service" being provided: the cost of accommodation - the special accommodation - was incapable of being separated out. Here the position is altogether different: for the respondent is seeking from the Commission the payment of such increase in rent as may be attributable to her special needs in consequence of the accident. The accommodation is not being provided as part and parcel of some wider "rehabilitation service": it is to be considered on its own, albeit that there may be some need for modification of the premises due to the special needs of the respondent by reason of the transport accident. Every case must depend upon its circumstances, as the Tribunal acknowledged; but in my respectful view, this case cannot be determined by reference to McRitchie.

90. Before us, neither side sought to justify its position by reference to McRitchie (which was perhaps fortunate, given that in the meantime the Commission has filed an application for special leave to appeal to the High Court[5]). But the question remains whether the increased rental cost, which the respondent anticipates will be incurred by reason of her special needs, is either a "rehabilitation service" or a "disability service", as the Tribunal held. The respondent is, of course, confined to a wheelchair and as the Tribunal said:-

"I accept that, at least in the immediate future, she will need to have a carer on hand to assist with the requirements of everyday living. Of necessity, the carer will be required to share the applicant's accommodation. That necessity has been created by the motor vehicle accident and by the injuries sustained by the applicant. ..... I accept that, as one would expect, there is a price differential between one bedroom apartments and two bedroom apartments in the areas where the applicant seeks to live .... As stated, I accept that when the applicant moves from her present accommodation, she will need accommodation that not only has been modified in various ways but which must have at least two bedrooms in order to accommodate carers ...".

While accepting that the respondent would have had living expenses, including for accommodation, in any event, the Tribunal concluded that "the expense of obtaining a two bedroom apartment as compared with a single bedroom apartment is an expense directly referable to the accident." Hence, it followed said his Honour, "that a reasonable allowance paid by the respondent should be that which represents the difference between a two bedroom apartment and a one bedroom apartment in the areas under consideration". But the detail was reserved for further consideration, given that the respondent had not yet identified the permanent accommodation she sought.

95. Once McRitchie is put aside as not bearing directly upon the issues raised by this appeal, it is difficult to find any basis in the legislation for supposing that rental assistance, albeit when required by reason of the disability arising from the transport accident, is either a "disability service" or a "rehabilitation service". The respondent sought to support the view of the Tribunal that "disability service" included such rental assistance because of the inclusion within the definition in s.3 of the expression "accommodation support", but that seems an improbable construction to place upon the words. As Mr. Maxwell submitted, the expression "accommodation support" can scarcely be synonymous with "accommodation" and had Parliament intended that the provision of accommodation should constitute a disability service, such that the reasonable costs of accommodation would have been compensable to the extent that they were referable to the transport accident, Parliament would surely have said so expressly. The concept of "accommodation support" can be understood as something different from "accommodation": for, as was submitted on behalf of the Commission, it connotes the service of providing support in connection with or in relation to accommodation (such as was at stake here when, in the letter of 19 February 2002, the Commission offered to assist the respondent "by referring her to a specialised disability housing organisation"). Counsel submitted that "accommodation support" cannot mean the provision of accommodation as such and I agree.

98. Necessarily, every injured person is in some form of accommodation following the transport accident and in many cases the injuries sustained will necessitate the making of modifications to the accommodation involved to meet altered needs. Parliament has made specific provision in s.60(4) for the funding of such modifications. That sub-section reads:-

"(4) If a person who is injured as a result of a transport accident reasonably requires modifications to a home in Australia because of the injury, the Commission is liable to- (a) pay the reasonable cost of modifications to the person's home; or (b) contribute to- (i) the reasonable purchase cost of a semi detachable portable unit; or (ii) reasonable relocation costs to another home- if the person does not own a home which is capable of being modified."

Hence, no doubt, in this case the offer made by the letter of 19 February 2002 to "consider minimum required modifications to Ms Salcedo's rental property if required". But s.60(4) makes provision for what are plainly capital costs, not revenue outgoings. The contrast is clear between the expenses covered by s.60(4) and the increased rent for which the respondent is seeking assistance in this instance.

103. As Buchanan, J.A. pointed out in the course of argument, it is perhaps curious that Parliament has made provision in s.60(4) for such capital expenditure while failing to make any provision, if the Commission is right, for increased rental costs due to the transport accident. The Commission is liable, according to s.60(4), for "the reasonable purchase cost of a semi-detachable portable unit", no doubt suited particularly to the disability of the accident victim. Why then, it may be asked, should the Commission not be liable for what might be a lesser equivalent, such as rent for an extra bedroom? The only answer that can be given is that Parliament has made provision for the one but not the other and, whatever may be thought of the policy, it is not up to the court to supply any perceived deficiency. I am satisfied that the words "accommodation support" in the definition of "disability service" cannot be extended to mean "accommodation" and so, despite the apparent contrast afforded by s.60(4), I cannot conclude that the assistance sought here by the respondent is a "disability service". There is nothing in the definition of "rehabilitation service" to suggest that the increased cost of rental accommodation on a permanent basis is included in that definition.

106. It is for these reasons that I consider that the Tribunal erred in determining on 11 July 2003 that the Commission "is liable to pay accommodation expenses or rental, reserved as to amount" (even when read in conjunction with paragraph [28] of the reasons for decision). The sort of financial assistance being sought by the respondent in this instance is not within the definition of "disability service" or the definition of "rehabilitation service" and accordingly, in the absence of any other suggested basis for liability in the Commission, the Commission is not liable to meet the expense of the extra bedroom or the like which, it seems, the respondent will need when she rents on a permanent basis.

109. Finally, in relation to the contrast apparently afforded by s.60(4), I note the provisions made recently by Act No.95 of 2003, the Accident Compensation and Transport Accident Acts (Amendment) Act 2003. By s.25(2), s.60 of the Transport Accident Act 1986 is amended to provide expressly that, unless something is a "medical service" or a "hospital service" provided as a result of the injury, nothing in s.60 exposes the Commission to liability to pay as compensation the cost of providing accommodation (including accommodation-related costs such as rent, bonds, rates and the like). There is an exception, in certain circumstances, where the victim of a transport accident, after discharge from hospital, resides in a "nursing home, aged person's hospital, group home, or facility approved by the Commission, supportive residential service" or the like. The amendments to s.60 apply only to applications for payment made after the commencement of the amending s.25, but the amendments at least indicate that when Parliament made the limited provision it did in s.60(4) it acted deliberately. I mention this only in passing: I have not relied

upon it in reaching my conclusion as to the liability of the Commission in this case.

113. It follows that appeal No.3793 of 2003 should in my opinion be allowed and the order made on 11 July 2003 set aside. Subject to anything to be said by counsel, I would substitute a determination which, in effect, affirms the decision of the Commission communicated by letter dated 19 February 2002 in so far as it related to any increase due to the respondent's disabilities in the rental cost of permanent accommodation.

117. As stated in paragraph [19] I would dismiss the appeal No.3741 of 2002. I would allow the appeal No.3793 of 2003 and make the orders indicated in paragraph [29].

122. The meaning of paragraph (a) of the definition of "hospital service", in particular whether the "attendance" referred to is that of a service provider or the like or that of the patient, is by no means clear. But it is unnecessary to express a concluded view as to paragraph (a) and I refrain from doing so. Subject to that I concur in the judgment of Phillips, J.A.

[1] On 11 July 2003, the Tribunal reviewed also the Commission's decision of 19 February 2002, not to meet the cost of taxis for access to recreational and leisure activities, and confirmed the decision of the Commission. That was paragraph 2 of the order of 11 July 2003 and it is not the subject of appeal.

[2] This assumes the correctness of the premise upon which the argument proceeded; i.e., that the services being provided by Mrs. Salcedo did not fall within the first limb of the definition of "hospital service".

[3] [2001] VSC 151, Hedigan, J., 17 May 2001; [2003] VSCA 51, Court of Appeal, 5 May 2003.

[4] McRitchie v. T.A.C. No.1999/101641, Dep. President McNamara, 16 May 2000.

[5] The application was filed in the High Court on 5 May 2003. It has not yet been determined.