Waddilove v Accident Rehabilitation and Compensation Insurance Corporation

Decision No . 26 1 96 . IN THE DISTRICT COURT DCA No. 195/95 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN M. WADDILOVE APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Rotorua: 21 March 1996 Date of Decision: 18 APRIL 1996 No appearance for the appellant N.L. Smith as Counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The appeal succeeds. Background: The issue in this appeal is whether the appellant should have received transport costs (for various journeys he made to receive treatment) equivalent to the cheapest available scheduled public transport or at the kilometre rate. 2. The relevant regulation is Regulation 6(1) of the Accident Rehabilitation and Compensation (Costs of Transport Related to Treatment, Service or Physical Rehabilitation) Regulations 1992 (SR 1992/203). On 7 February 1995 the appellant fell in his garage and broke a bone in his hand. On 8, 10 and 21 February and 21 March 1995 he travelled from his home in Waihi to the Thames Hospital for treatment using a private vehicle. The appellant submitted a claim for transport costs based on the kilometre distance between Waihi and Thames for those four journeys. The Corporation declined that claim saying that he was entitled to payment only at the public transport rate of $26 per return journey. The appellant was advised of that decision in a letter dated 30 March 1995. On 5 April 1995 he applied for a review of that decision. In his application for review he stated that there was no public transport available and therefore he was claiming the kilometre rate. He also stated that he had already supplied an Intercity timetable and that he would supply a further timetable at the review hearing. The review hearing was held on 3 July 1995. The appellant attended the review and gave evidence. In his decision dated 27 July 1995 the Review Officer upheld the Corporation's decision on the basis that there was no proof that scheduled public transport was not available between Waihi and Thames. A notice of appeal was completed on 30 August 1995. In it the appellant stated that pursuant to Regulation 6, and the absence of any 3. scheduled public transport, he could use private transport at 51 cents a kilometre. The appellant did not attend the appeal hearing. That is understandable having regard to the distance involved and the amount of his claim. Ms Smith presented written submissions. In her submissions Ms Smith referred to s.27(1) and to the background to the appeal, to Regulation 6(1) of the Costs of Transport Regulations. In particular she submitted:- "4.1 It is accepted that the word 'available' in clause 6 of the Regulations must be read to include a requirement that the transport was available in the sense that it was reasonable for the claimant to have caught that available scheduled public transport. 4.2 According to the bus timetable supplied to the Corporation by the appellant the public transport that might have been available to the appellant between Waihi and Thames is as follows: Depart Waihi daily at 2.40 pm Arrive Thames daily at 3.30 pm 4.3 The days on which the appellant travelled to Thames Hospital for treatment are as follows: Wednesday 8 February 1995. . Friday 10 February 1995. . Tuesday 21 February 1995. . Tuesday 21 March 1995. 4.4 According to this evidence there was available scheduled public transport to Waihi every day and available scheduled public transport returning to Waihi on Fridays. The appellant 4. could therefore have arranged his treatments for Fridays and taken that transport each way if he wished to. 4.5 The appellant has not provided any evidence as to what day or time he could have made his appointments at the Thames Hospital, however the notice of appointment from the Radiology Department does show that the Department was willing to arrange appointment times around patients. It states that if this time is not suitable, please ring the above number to make a further appointment. The Corporation understands that the Radiology Department is only open on weekends for emergencies therefore it would not be reasonable to have expected the appellant to have made his appointments on Sundays. 4.6 Looking at the journeys actually undertaken by', the appellant, there is no evidence that it was necessary for, the appellant to travel to Thames Hospital on the day after his accident which was a Wednesday. However, the Corporation is prepared to accept that it would not have been reasonable to expect the appellant to wait until Friday for that first visit. 4.7 However, there is no evidence before the Court that the other appointments could not have been made for Fridays therefore there was available scheduled public transport for those further appointments and the claimant was only entitled to the lowest fare payable for the journey on the cheapest available public transport. That amount was $26.00 per journey and the appellant has already been paid that amount. 5. CONCLUSION 5.1 The appellant was entitled to the kilometre rate for the first journey on 8 February 1995, however he was only entitled to the public transport rate for the next three visits to the Thames Hospital. It is submitted that the appeal should be accepted with respect to the first journey and referred back to the Corporation for recalculation." Consideration: Section 27(1) reads:- 5. "Treatment and physical rehabilitation - (1) Where a person requires any treatment, service, physical rehabilitation, related transport, or certificate in respect of that person's personal injury that is covered by this Act (in this section called a 'specified service'), the Corporation shall contribute to the cost of that specified service to the extent required or permitted by regulations made under this Act." Regulation 6(1) reads:- "Other transport - (1) Subject to these regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by air or emergency transport by ambulance, the Corporation or exempt employer shall contribute to the costs incurred by the claimant - (a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport; or (b) Where there is no scheduled public transport, an amount calculated at the rate of 50 cents per kilometre - irrespective of the means of transport actually adopted by the claimant." Suitable dictionary meanings of the word "available" from the Shorter Oxford English Dictionary are:- "1. Capable of producing a desired result. 2 . Of advantage. 3. Capable of being turned to account; hence, at one's disposal, within one's reach." The Intercity Coachlines timetable shows that the only buses travelling daily from Waihi to Thames leave Waihi at 2.40 p.m. and arrive at Thames at 6 . 3.30 p.m. and on Fridays and Sunday leave Waihi at 8.00 p.m. and arrive in Thames at 8.55 p.m. The timetable also shows that the only buses travelling daily from Thames to Waihi leave Thames at 9.55 a.m. and arrive at Waihi at 10.45 a.m. and on Fridays and Sundays leave Thames at 8.00 p.m. and arrive at Waihi at 8.50 p.m. The appellant's attendances for treatment fall into two categories. Documents on the Corporation's file and the evidence given at the review hearing show that on Wednesday 8 February 1995 the appellant attended at the hospital at 5.30 p.m. for an X-Ray and that on Friday 10 February 1995 he attended at the hospital at 6.30 p.m. for an X-Ray and that both those visits were emergencies. The appellant could not have caught the bus leaving Waihi at 2.40 p.m. and arriving in Thames at 3.30 p.m. if those visits were emergencies. Accordingly, no scheduled public transport was available for those visits. The evidence also showed that the visits on Tuesday 21 February and Tuesday 21 March were for appointments at about 10.30 a.m. for X-Rays. At . the review hearing Mr Waddilove said that the specialist who examined him on those occasions came from Hamilton to look at him to make sure everything was okay. His evidence indicated that the specialist came especially on that day and appointments were available from 10.00 o'clock onwards, 10.00, 10.15, 10.30. From that evidence it appeared that appointments were not 7. available in the afternoon. To clarify the position Ms Smith rang the hospital during the appeal hearing and was advised that on 21 February and 23 March 1995 the appellant attended to have a fractured thumb treated. He attended the fracture clinic and appointments were available only on Tuesday morning. Accordingly, no scheduled public transport was available for those appointments. Conclusion: In this decision I have had to consider the meaning of the word "available" but, leaving aside the burden of proof, it will be appreciated that if the circumstances of the appellant's visits to the Thames Hospital had been clarified at an earlier date, the validity of his claim would have been established. The appellant is entitled to be paid for each of the trips on the basis of the mileage rate. (Imrie) District Court Judge