FEDERAL COURT OF AUSTRALIA

Carson v Comcare [2015] FCA 50

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By s 16(6) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare is liable to pay compensation to an injured employee in respect of expenditure reasonably incurred by the employee in making a necessary journey for the purpose of obtaining medical treatment. However, by s 16(7)(a) of the SRC Act, Comcare is not liable to pay compensation under subs (6) unless the reasonable length of a journey (including the return) exceeded 50 km.

2    The question on this appeal from the Administrative Appeals Tribunal (the AAT) is whether s 16(7)(a) permits the aggregation of multiple necessary journeys made by an employee to obtain reasonable medical treatment, for the purpose of determining whether the 50 km threshold has been satisfied.

3    Comcare determined that s 16(7) does not permit aggregation of multiple journeys so as to satisfy the 50 km threshold. That construction was upheld on review by a Senior Member of the AAT.

4    In my opinion, the construction of s 16(7) adopted by Comcare and the AAT is correct and the appeal should be dismissed. My reasons follow.

Background

5    The appellant, who represented himself on the appeal, was formerly employed as a Research Scientist by the Defence Science Technology Institute. Comcare accepted that he suffered injuries in the course of his employment described as “depression, acute reaction to stress and aggravation of atopic dermatitis and related conditions”. The deemed date of injury was 24 January 1995. The appellant has received compensation in respect of those conditions since 1995. The dermatitis manifests itself periodically in rashes. From time to time, the appellant must attend a day clinic (usually the Royal Adelaide Hospital (RAH)) for treatment involving the application of topical ointments and the wrapping of his body in heated towels. A course of treatment typically takes many days. The first days of the course last from 8:00am to 3:00pm and the later days involve a stay from 8:00am to 1:00pm. At the conclusion of each day’s treatment, the appellant returns to his own home.

6    In June and July 2013, the appellant underwent medical reviews and treatment as set out in the following table:

The appellant travelled to each place using his own car. He claimed reimbursement of the costs he incurred, including the parking costs for each day of his attendance at the RAH.

7    As can be seen, none of the individual journeys (including the return journey) exceeded 50 km. In aggregate however, the journeys well exceeded 50 km.

Section 16 of the SRC Act

8    Section 16 provides:

16 Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2)    Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

…

(6)    Subject to subsection (7), if:

(a)    compensation in respect of the cost of medical treatment is payable; and

(b)    the employee reasonably incurs expenditure in doing either or both of the following:

(i)    making a necessary journey for the purpose of obtaining that medical treatment;

(ii)    remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

Comcare is liable to pay compensation to the employee:

(c)    in respect of the journey--of an amount worked out using the formula:

Specified rate per kilometre x Number of kilometres travelled

where:

specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.

numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).

(d)    in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

(7)    Comcare is not liable to pay compensation under subsection (6) unless:

(a)    the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b)    if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

(8)    The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

(a)    the place or places where appropriate medical treatment was available to the employee;

(b)    the means of transport available to the employee for the journey;

(c)    the route or routes by which the employee could have travelled; and

(d)    the accommodation available to the employee.

(9)    Where:

(a)    an employee suffers an injury;

(b)    a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and

(c)    the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;

Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.

9    As is evident, s 16(1) imposes a liability on Comcare to pay the costs of reasonable “medical treatment for a compensable injury”. The term “medical treatment” is defined expansively in s 4 of the SRC Act to mean:

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

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

(c)    dental treatment by, or under the supervision of, a legally qualified dentist; or

(d)    therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e)    an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

(f)    the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

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

(h)    nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or

(i)    any other form of treatment that is prescribed for the purposes of this definition.

It is apparent that medical treatment, as defined, may include a single attendance on one of the identified medical providers or a course of treatment extending over days or weeks by such a provider.

10    Section 16(6) imposes on Comcare a liability to pay compensation to an injured employee in respect of ancillary costs incurred by the employee in obtaining medical treatment for which compensation is itself payable. In particular, Comcare is liable to pay compensation to an employee who reasonably incurs expenditure in “making a necessary journey for the purpose of obtaining that medical treatment”. Compensation is payable in respect of journeys in accordance with the formula set out in subs (6)(c).

11    The operation of subs (6) is made subject to subs (7). By that provision, Comcare is not liable to pay compensation in respect of a journey for the purposes of obtaining medical treatment unless “the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 km”.

The AAT decision

12    In the AAT, the appellant argued that the 50 km threshold was to be applied having regard to the aggregate distance which he travelled in respect of the course of treatment he underwent in June and July 2013. Comcare, on the other hand, submitted that the 50 km threshold applied to each daily return journey which the appellant had made.

13    The AAT accepted that the SRC Act is remedial legislation and should be construed beneficially. It also accepted that the construction of s 16(7) for which Comcare contended was capable of producing arbitrary and seemingly unjust results. The Senior Member noted by way of example that an injured worker making a single journey of 51km is entitled to compensation but an employee making multiple journeys of, say, 45km day after day will not be compensated for his or her travel costs. Nevertheless, the Senior Member upheld the construction proposed by Comcare. His reasoning was as follows:

(a)    It is reasonable to suppose that the 50 km threshold is intended to have a meaningful practical operation but, if an aggregation of separate journeys is permissible, it would operate infrequently to exclude an entitlement to compensation;

(b)    The ordinary grammatical meaning of the terminology used in ss 16(6) and (7) indicates that the threshold is intended to be applied to each individual round trip;

(c)    The linking of the entitlement to travel costs to attendances for medical treatment which it was reasonable for the employee to obtain in the circumstances is significant. The AAT’s reasoning was as follows:

[12]    … The primary decision that must be made by Comcare is whether each separate attendance by an injured employee at a place of treatment is reasonably justified. It may be that a particular day’s attendance is justified, while another day’s is not.

[13]    In Dr Carson’s case, for the purposes of s 16 of the Act, each day’s attendance at the hospital has to be assessed for its reasonableness under subs (1). That is, each day’s treatment is a separate event, and the question under s 16(1) is whether the treatment on that day is reasonable in the circumstances. If not, no compensation is payable in respect of that day’s treatment under subs (1), and it must also follow that no compensation under subs (6) is payable in respect of the journey to obtain that day’s treatment irrespective of the kilometres travelled. Once it is accepted that each day’s treatment has to be separately evaluated for its reasonableness under subs (1), it follows, in my opinion, that subs (6)(b) has to be applied, and reapplied, to each day’s journey. A differential approach is implicit in s 16(1) and this flows through to subs (6) and the application of the 50-kilometre threshold in subs (7) in my opinion. …

(d)    The construction for which Comcare contended was consistent with earlier decisions of the AAT: Re Horan & Comcare [1990] AATA 278, (1990) 21 ALD 621 at [4]; Re Purser & Comcare [1993] AATA 351; Re Allen & Comcare [2001] AATA 379; Re Green & Comcare [2003] AATA 81; Re West & Comcare [2004] AATA 364, (2004) 80 ALD 776.

(e)    There were no previous decisions of the AAT favouring the construction for which the appellant contended.

The parties’ submissions

14    The appellant recognised that his appeal to this Court was confined to questions of law: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). However, being unrepresented, he had some difficulty in articulating clearly the errors of law for which he contended. Although the appellant attempted to do so, his notice of appeal did not comply with r 33.12(2)(b) of the Federal Court Rules 2011 which requires the questions of law to be raised on the appeal to be stated with precision.

15    At the heart of the appellant’s submissions was the injustice to injured employees which he perceived in the construction of s 16(7) applied by Comcare and upheld by the AAT. That injustice arose from the circumstances that an injured employee may have to make numerous journeys to obtain treatment, each less than 50 km but exceeding in total 50 km, and yet be denied compensation for the costs necessarily occurred.

16    As I understood the appellant’s submissions on the question of law, they were to the effect that there is an ambiguity in s 16(7); that that ambiguity should be resolved by giving the provision a beneficial construction so as to avoid injustice to injured employees; that, contrary to the reasoning of the AAT, it is not always necessary for Comcare to make an assessment of the reasonableness of the treatment provided each day to an injured worker, as it could be satisfied that it was reasonable for the injured employee to undergo a course of treatment extending over a period; and that the Senior Member had overlooked that two of the previous AAT decisions to which he had referred were decided at a time when s 16(7) was expressed differently.

17    Counsel for Comcare sought to support the AAT decision on the basis of the reasons given by it. In addition, counsel contended that s 23(b) of the Acts Interpretation Act 1901 (Cth), which provides that words in the singular number include the plural, could not be applied in relation to s 16(7).

Consideration

18    It is well recognised that the SRC Act is remedial or social legislation and is to be construed beneficially. In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J said:

[T]he Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees … But a liberal interpretation is one thing, rewriting the statute is another.

See also Telstra Corporation Limited v Peisley [2006] FCAFC 79, (2006) 151 FCR 275 at [35]; Comcare v Pires [2005] FCA 747, (2005) 143 FCR 104 at [44]; Guppy v Australian Postal Corporation [2013] FCA 489, (2013) 212 FCR 380 at [14]. As in all cases of statutory construction, close regard must be had to the language of the statute.

19    In my opinion, the appellant’s critique of the AAT’s reasoning by reference to s 16(1) of the SRC Act has some force. As noted earlier, the AAT reasoned that the “primary decision” to be made by Comcare was whether each separate attendance by an injured employee at a place of treatment was reasonably justified. Because that was so, the AAT reasoned that subs (6) had also to be applied, and reapplied, to each day’s journey.

20    This reasoning seems to rest on some assumptions about the way in which treatment will be provided and charged by a medical provider which may not always be sound. The elements of the liability of Comcare in respect of the costs of medical treatment under s 16(1) are these:

(i)    An employee suffers a compensable injury;

(ii)    The employee obtains medical treatment in relation to that injury;

(iii)    It was reasonable in all the circumstances for the employee to obtain that treatment for the injury;

(iv)    A cost is incurred in respect of the provision of the treatment.

When those elements are established, Comcare is liable to pay compensation in an amount which it determines is appropriate for that medical treatment.

21    As noted earlier, the definition of “medical treatment” in s 4 is capable of including a course of treatment as well as each particular attendance by a practitioner on an injured employee. The primary question for Comcare, if there be a primary question, is the reasonableness of the injured employee obtaining the treatment. It is likely that there will be at least some cases in which the liability of Comcare under s 16(1) will arise without there being any necessity to consider the reasonableness of each individual attendance by the medical provider on the injured employee. It is not uncommon for medical providers to charge a lump sum fee for a particular procedure, which fee takes into account all attendances both before, at, and after the procedure. In a case of that kind, Comcare’s focus under s 16(1) is likely to be on the reasonableness of the treatment as a whole, rather than the reasonableness of each particular attendance of the practitioner on the injured employee.

22    It may be accepted that Comcare must determine in relation to each journey for which compensation is claimed whether it was “necessary” for the purpose of obtaining the compensable medical treatment. That does require an assessment in relation to each individual journey.

23    Although the appellant did not refer to s 23(b) of the Acts Interpretation Act, many of his submissions seemed to depend for their force on its application. Section 23(b) provides that words in any Act in the singular number include the plural. The application of s 23(b) is however subject to any contrary intention appearing in the particular act: Acts Interpretation Act s 2(2). Absent the application of s 23(b), it is reasonably plain in my opinion that s 16(7) refers on its natural and ordinary meaning to each individual journey.

24    The purpose of provisions such as s 23 is to obviate the wordiness that would otherwise be necessary if the legislature had to indicate on each occasion that the singular included the plural and vice versa. The Privy Council discussed the purpose of the New South Wales counterpart to s 23(b) in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656:

Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment, both draughtsman and legislators have such provisions in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

See also Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; (2008) 170 FCR 105 at [12].

25    I accept that no manifest incongruity is apparent if one reads the terms “a journey” and “the journey” in s 16(6) and (7) respectively in plural. However, I consider that there are a number of matters which, taken together, indicate that those terms are not be understood as including the plural, that is, that there is a contrary intention of the kind contemplated by s 2(2) of the Acts Interpretation Act.

26    First, it is appropriate to reason, as the AAT did, that the 50 km threshold is intended to have practical effect. It manifests a legislative intention that injured employees have travelled a minimum distance before being entitled to reimbursement of travelling expenses. That practical effect is likely to be considerably diminished if the threshold may be satisfied by the aggregation of multiple journeys.

27    Secondly, the term “the reasonable length” in subs (7)(a) is apt in relation to a single journey, but seems less appropriate as a reference to multiple journeys. Further, if s 23(b) is to be applied to s 16(7), it should be applied consistently so that the term “reasonable length” is also understood in the plural. A requirement that the “reasonable lengths” of necessary journeys exceed 50 km is more consistent with each individual journey having to exceed 50 km and, to my mind, is a strong indication that subs (7)(a) is not apt to accommodate an aggregation of journeys to satisfy the 50 km threshold.

28    Thirdly, subs (7)(a) uses the term “such a journey”. If the legislature had intended the provision to refer to the reasonable length of journeys in the aggregate, it would, to my mind, have been much more natural to refer to “such journeys”. The same point can be made in respect of the same term in the elaboration of the expression “numbers of kilometres travelled” in subs (6)(c).

29    Fourthly, the legislature thought it appropriate to include in parentheses reference to the return part of “the” journey. This is an indication that the legislature turned its mind to matters to be taken into account in determining whether the threshold is satisfied. The fact that it did so but made no reference to journeys in the plural is, to my mind, significant. It would have been natural in this context for the legislature to have made some reference to multiple journeys, had that been what was intended.

30    Fifthly, the use of the definite article “the” in reference to the return part of the journey after the use of the indefinite article earlier in subs (7)(a) is an indication that the provision refers to a particular journey, rather than journeys generally.

31    Finally, I refer to the legislative history of subs (7). When first enacted in the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, s 16(7) provided:

The Commission is not liable to pay compensation under subsection (6) unless:

(a)    The journey covered a substantial distance; or

(b)    Where the journey involved the use of public transport or ambulance services – the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.

The expression “the journey covered a substantial distance” does not seem particularly apt to describe the effect of multiple journeys. It is reasonable to infer that the threshold of 50 km was inserted into s 16(7) in order to avoid the necessity for an evaluation in the circumstances of each individual claim necessitated by the word “substantial”, but not otherwise to change the effect of subs (7). However, the legislative history is of only slight assistance in the present circumstances.

32    The earlier decisions of the AAT to which the Senior Member referred are not of assistance in the present context. All determined that s 16(7) refers to individual journeys only and not to aggregation of multiple journeys, but none address the issues of construction involved.

33    The appellant submitted that the Senior Member had overlooked, when referring to the decisions in Re Horan and Re Purser that they concern s 16(7) in its original form. There is no evidence that the Senior Member did make that error. He said only that his conclusion was “consistent” with earlier decisions of the AAT. In that respect he was correct.

34    The appellant submitted that it was difficult to understand why the figure of 50 km, as opposed to some other figure, had been selected. That may be so, but the selection of the figure of 50 km is not a matter for review presently. This Court’s function is to construe the legislation as it stands.

Conclusion

35     For these reasons, I consider that the threshold of 50 km for a journey to be compensable is to be determined by reference to each individual journey (including its return) and not by reference to an aggregation of multiple journeys.

36    Accordingly, the appeal is dismissed.

Associate:

Dated:    6 February 2015