Lander v Comcare [2000] FCA 339

FEDERAL COURT OF AUSTRALIA

Lander v Comcare [2000] FCA 339

STATUTORY INTERPRETATION - s 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) compensation for reasonably required household services - relevant considerations - extent to which household members "might reasonably be expected to provide such services": paragraph 29(2)(d) - whether is limited to the personal provision of such services. Safety, Rehabilitation and Compensation Act 1988 (Cth), s 29, s 29(2), s 29(2)(d), s 29(2)(e) Workers Compensation Act 1987 (NSW), s 60, s 61

Bennett v Gary Bennett Holdings Pty Ltd (1997) 14 NSWCCR 317 referred IRENA LANDER v COMCARE A 66 of 1999 FINN J 14 MARCH 2000 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A66 OF 1999

DISTRICT REGISTRY

BETWEEN: IRENA LANDER

APPLICANT

AND: COMCARE

FIRST RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 14 MARCH 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. the application be allowed, with costs; 2. the matter be remitted to the Tribunal for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A66 OF 1999

BETWEEN: IRENA LANDER

APPLICANT

AND: COMCARE

FIRST RESPONDENT

JUDGE: FINN J

DATE: 14 MARCH 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 The applicant in this appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") challenges the construction placed by the Tribunal upon s 29(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in denying her any further entitlement to be paid compensation for household services she claims she reasonably requires. Section 29, insofar as presently relevant, provides: "29 (1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200. (2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters: (a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date; (b) the number of persons living with the employee as members of his or her household, their ages and their need for household services; (c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury; (d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury; (e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b). (3) Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of: (a) $200 per week; or (b) an amount per week equal to the amount per week paid or payable by the employee for those services; whichever is less. (4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters: (a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; (b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care; (c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution; (d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment; (e) any assessment made in relation to the rehabilitation of the employee; (f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services." 2 The applicant's husband, Mr Lander, is a practising solicitor who, in the Tribunal's words, "honestly and frankly acknowledged a ready ability to pay for domiciliary assistance to the extent required to cover the restriction on his wife to function". That acknowledgment resulted in the Tribunal determining that, having regard to the provisions of s 29(2)(d), Mrs Lander's claim must fail. In the Tribunal's view: "To 'provide for' an exigency means to make available for those in need of the exigency being made, the required support. In this case, household services. It cannot be said that the requirement which flows from subsection 29(2) is limited to the relevant person himself or herself physically discharging the function of providing household services. On Mr Lander's evidence he is clearly able to 'provide for' the family and for the employee the required domiciliary assistance. He is well able to pay an employee to perform the required household services. Thus he is well able to provide for such services. That part of the claim, therefore, must fail." 3 The short question raised in this application is the correctness of the construction placed on the provision, and in particular whether section 29(2)(d) extends beyond the personal provision by household members of such household services (as might reasonably be expected), to the engagement by such household members at their own expense of third persons who will provide such services. 4 The position taken by Comcare in this application is not to oppose Mrs Lander's claim. Its view is that although the matter is not free from doubt, the better view is that the Tribunal erred in its construction of s 29 of the SRC Act. It put in submissions by way of assistance to the Court for which the Court is indebted. 5 In those submissions Comcare differentiated between the expressions "to provide household services" and "to provide for household services". The primary meaning different dictionaries ascribed to the former is to supply or to furnish, whereas the expression "to provide for" means to make arrangements for supplying a service, etcetera. So, it was submitted, the expression "to provide household services" is apt to convey the personal rendering of such services by the person concerned, whereas the expression "to provide for household services" is apt to include a notion of services being purchased by the person concerned. An interpretation requiring "personal service" is, in Comcare's submission, suggested in other subsections of s 29. 6 By way of illustration, and the same point I should foreshadow is raised extensively in submissions made on behalf of Mrs Lander, I refer to the submission on s 29(2)(e), a paragraph which refers to: "the need to avoid substantial disruption to the employment or other activities of [household members]." 7 Comcare submitted that if s 29 as a whole is interpreted as being concerned with the personal rendering of household services, the terms of paragraph (e) are entirely apt because employment or other activities may, on a common sense view, interfere with the personal provision of household services. On the other hand, if the paragraph is interpreted to make relevant the possibility of a household member purchasing household services, one would not expect the paragraph to be confined to physical matters. One would expect some reference to a household member's financial circumstances. 8 Finally Comcare, as again did Mrs Lander in her submissions, highlighted the anomaly between the common law principles governing compensibility in respect of attendant care services and the statute if s 29(2) was to be interpreted as in effect introducing a means test as a factor to which Comcare had to have regard when applying s 29(2)(d). 9 The applicant's submissions, though covering the territory of Comcare's, ranged more widely and with considerably greater emphasis on the history and purpose of the statute, and on both its common law and its New South Wales statutory analogues. I mean no disrespect in not rehearsing those submissions at length although I would note that significant support analogically, though not directly, for the construction both parties propose is to be obtained from case law referred to by Mr Anforth for Mrs Lander on ss 60 and 61 of the Workers Compensation Act 1987 (NSW), and in particular the decision in Bennett v Gary Bennett Holdings Pty Ltd (1997) 14 NSWCCR 317. 10 As I have already indicated, I am in full agreement with the construction proposed by Comcare. Notwithstanding the invitation so to do in the applicant's submission, I consider it unnecessary on the material before me to express a view on the limits of what might reasonably be expected of household members in respect of their provision of household services in respect of themselves and any employee. The Tribunal, in its reasons, did not address this matter on the material before it. I would say, though, that what is clear both from the text of s 29(2)(d) considered in its context and the statutory purpose of the provision in the compensation scheme of the Act, is that the household services envisaged are those provided by the household members themselves. They are not services for which those members make provision for the injured employee through the agency of third party providers. Accordingly, I conclude that the Tribunal was in error in the construction it arrived at. 11 I will allow the application, set aside the Tribunal's decision in A97/191 and remit the matter to the Tribunal for further consideration. I would indicate that it may be appropriate to give consideration to whether the matter should be reheard by a differently constituted tribunal. 12 I will allow the application with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.