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  • 03Aug

    VCAT to again consider additional rental costs

    A young man who was rendered a ventilator-dependent quadriplegic in a motorcycle accident, has been successful in his appeal and will have his matter remitted to the Victorian Civil and Administrative Tribunal for determination as to additional rental costs.

    Background

    On 8 November 2014, when the plaintiff was 13 years old, he was travelling as a pillion passenger on a motorcycle ridden by his father. The motorcycle was stationary at an intersection in Mill Park when it was struck by a four-wheel drive vehicle travelling at approximately 60 kph after the brakes of that vehicle failed. As a result of the collision, the plaintiff suffered extensive spinal cord injury and became a ventilator-dependent quadriplegic. He is dependent on tracheostomy for PEG feeding, is paralysed in all four limbs and has no voluntary movement at all. He has no voluntary bowel or bladder function and is fully dependent in all activities of daily living. The plaintiff’s principal carer is his mother.

    The plaintiff lives in a four-bedroom house to accommodate himself, his mother, the carer and the equipment necessary for his survival and care. He applied to the Transport Accident Commission to be compensated for the additional rental cost of a house sufficient to accommodate the plaintiff’s needs pursuant to s 60(2)(a) of the Transport Accident Act 1986 (“the Act”). The TAC rejected the claim. The plaintiff made an unsuccessful application to the Victorian Civil and Administrative Tribunal (the Tribunal) to review the TAC’s decision.

    Initial appeal

    The plaintiff appealed the decision of the Tribunal in the Supreme Court of Victoria. He argued that the additional rental cost associated with his needs may be properly characterised as the reasonable costs of “medical services”, “disability services” or “rehabilitation services”, within s 60(2)(a) of the Act and that the TAC is liable to pay the additional rental costs arising from those needs pursuant to s 60(2)(a) of the Act. He also argued that the increased rental costs are “part and parcel” of the rehabilitation services provided to him in the form of the equipment that is necessary to sustain him, and that the cost of storing the equipment constitutes a reasonable cost for the provision of rehabilitation services for the purposes of s 60(2)(a) of the Act and that the rental costs are “inextricably bound” to the costs of attendant care.

    The court found that the Tribunal did not err in determining that the additional costs to the plaintiff of the premises required to house his equipment and carers did not constitute costs in respect of the provision to him of “medical services, disability services or rehabilitation services” for the purposes of s 60(2)(a) of the Act. It also found that the additional rent did not fall within the definition of “rehabilitation service” or “disability service” in s 3 of the Act.

    Further appeal

    The plaintiff sought leave to appeal against the trial judge’s decision. He sought to advance again all of the arguments that had been unsuccessful at VCAT and before the trial judge.

    The court found that the evidence disclosed that the plaintiff has a need for additional space within his home to house the equipment he requires, and which equipment clearly falls within the wording of paragraphs (g) and (h) of the definition of “medical service”. Such equipment needs to be housed so that it can operate and does not break down or fall into disrepair. The housing is needed to run, operate and maintain equipment and thus falls within the literal terms of the description contained in paragraph (i) of the definition. The ordinary meaning of the text of paragraph (i) of the definition of “medical service” would extend to the necessarily incidental supply of additional rental accommodation.

    Accordingly, the court allowed the appeal and ordered that the matter be remitted for rehearing and determination at VCAT: DLZ v TAC [2017] VSCA 134.

    For more information on the above contact Joe Bonura on 02 4626 5077 or jbonura@marsdens.net.au

    This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices