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Federal Court of Australia - Full Court |
Last Updated: 5 August 2008
FEDERAL COURT OF AUSTRALIA
Fellowes v Military Rehabilitation &
Compensation Commission
[2008] FCAFC 140
WORKERS’ COMPENSATION –
construction of provisions of Safety, Rehabilitation and Compensation Act
1988 (Cth) (Act) – employee suffering injury to left knee and on a
later occasion an injury to her right knee – "Guide to the
Assessment of
the Degree of Permanent Impairment" (Guide) made under s 28 of the Act
– whether employee entitled to compensation in respect of permanent
impairment resulting from second injury.
Held: she
was not, because her degree of impairment was still only in the category "Can
rise to a standing position and walk but has difficulty
with grades and steps"
signifying no change to her 10% whole body impairment for purposes of Act and
Guide.
Safety,
Rehabilitation and Compensation Act 1988 (Cth) s 28
Comcare v Van Grinsven (2002) 117
FCR 169 followed
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
distinguished
ROBYN
CHRISTINE FELLOWES v MILITARY REHABILITATION AND COMPENSATION
COMMISSION
QUD 330 OF 2007
FRENCH, MOORE AND
LINDGREN JJ
4 AUGUST 2008
SYDNEY (HEARD IN
BRISBANE)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal brought by the application be dismissed.
2. The applicant pay the respondent’s
costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A
PRESIDENTIAL MEMBER
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BETWEEN:
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ROBYN CHRISTINE FELLOWES
Applicant |
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AND:
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MILITARY REHABILITATION AND COMPENSATION
COMMISSION
Respondent |
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JUDGES:
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FRENCH, MOORE AND LINDGREN JJ
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DATE:
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4 AUGUST 2008
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PLACE:
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SYDNEY (HEARD IN BRISBANE)
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REASONS FOR JUDGMENT
FRENCH AND LINDGREN JJ:
INTRODUCTION
1 This appeal from the Administrative Appeals Tribunal (Tribunal) raises a question as to whether the decision of a Full Court of this Court in Comcare v Van Grinsven (2002) 117 FCR 169 (Van Grinsven) can be regarded as correctly decided in the light of the subsequent decision of the High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (Canute).
2 For the applicant (Ms Fellowes) who suffered an injury to her left knee, and on a later occasion an injury to her right knee, her appeal raises the question whether the respondent (Commission) is liable to pay her compensation arising out of her second injury beyond that which it became liable to pay to her arising out of her first injury.
3 The statute under which the issues are to be determined is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The legislative provisions by which the Commission, rather than either "Comcare" or the "Safety, Rehabilitation and Compensation Commission", is the relevant body liable are a little complex. We need not explain those provisions. It is not in dispute that the Commission is the body answerable in the case of Ms Fellowes. However, for consistency with the legislative provisions set out below, we will, generally speaking, refer to "Comcare". Those references, and the references in the Act to "Comcare", are to be read as if they referred to a liability of the Commission.
FACTS
4 Before the Tribunal there was a Statement of Agreed Facts which, omitting "T" references, was as follows:
1. The Applicant is 38 years of age, having been born on 20 February 1969. She enlisted in the Army on 11 November 1986 and is currently a serving member.
2. In 1986 the Applicant suffered a left knee injury which, as a result of work-related factors, resulted in a condition known as left chondromalacia patellae (the left knee condition).
3. The left knee condition is permanent.
4. The left knee condition does not result in loss of range of movement of the left knee under Table 9.2 of the Guide.
5. As a result of the left knee condition the Applicant can rise to a standing position and walk but she has difficulty with grades and steps (not distances).
6. If the Applicant suffered from no other permanent impairment apart from that which is attributable to the left knee condition, she would be entitled to compensation in respect of a 10% level of impairment under Table 9.5 of the Guide.
7. In 1987 the Applicant suffered a right knee injury which, as a result of work-related factors, resulted in a condition known as right chondromalacia patellae with medial meniscus tear (the right knee condition).
8. The right knee condition is permanent.
9. The right knee condition does not result in loss of range of movement of the right knee under Table 9.2 of the Guide.
10. As a result of the right knee condition the Applicant can rise to a standing position and walk but she has difficulty with grades and steps (not distances).
11. If the Applicant suffered from no other permanent impairment apart from that which is attributable to the right knee condition, she would be entitled to compensation in respect of a 10% level of impairment under Table 9.5 of the Guide.
12. On 14 December 2005, the Applicant lodged a claim for compensation in relation to the left knee condition. This claim for compensation included a claim for permanent impairment for the left knee condition.
13. On 14 December 2005, the Applicant lodged a claim for compensation in relation to the right knee condition. This claim for compensation included a claim for permanent impairment for the right knee condition.
14. On 14 June 2006, a determination rejected liability for the left knee condition.
15. On 27 June 2006, a determination rejected liability to pay a lump sum payment for permanent impairment arising from the left knee condition.
16. On 27 June 2006, the Applicant through her solicitors requested a review of the determination dated 14 June 2006.
17. On 11 August 2006, the Applicant through her solicitors requested a review of the determination dated 27 June 2006.
18. On 22 January 2007, a reviewable decision revoked the determination dated 14 June 2006 and accepted liability for the left knee condition.
19. On 22 January 2007, a further reviewable decision revoked the determination dated 27 June 2006 and accepted liability to pay lump sum compensation for the left knee condition on the basis that the Applicant has a 10% whole person impairment under Table 9.5. As a consequence of this decision, the Applicant was paid lump sum compensation totalling $26,679.96 in respect of the impairment to the left knee.
20. On 22 February 2007, a determination accepted liability for the right knee condition.
21. On 3 March 2007, the Applicant through her solicitors requested that she be assessed for permanent impairment in relation to the accepted right knee condition.
22. On 22 March 2007, a determination rejected liability to pay a lump sum for permanent impairment in relation to the right knee condition on the basis that the Applicant had already been compensated for a 10% impairment under Table 9.5.
23. On 14 April 2007 the Applicant requested a review of that decision.
[our emphasis]24. A reviewable decision dated 22 May 2007 affirmed the determination dated 22 March 2007.
LEGISLATION
5 Section 14(1) of the Act provides that subject to Pt II of the Act, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in, relevantly, impairment. Ms Fellowes was within the Act’s definition of "employee".
6 Section 24 of the Act provides, relevantly, as follows:
(2) ...(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(6) The degree of permanent impairment shall be expressed as a percentage. (7) Subject to section 25, if:(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(a) ...(b) Comcare determines that the degree of permanent impairment is less than 10%;
(7A) ... (8) ... (9) ...an amount of compensation is not payable to the employee under this section.
7 Section 4 of the Act contains the following relevant definitions:
injury means: (a) a disease suffered by an employee; or... impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. permanent means likely to continue indefinitely.(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
8 Paragraphs 6 and 11 of the Statement of Agreed Facts are careful to state that they are based on the assumption that Ms Fellowes suffered from no permanent impairment other than the one addressed in the particular paragraph:
If the Applicant suffered from no other permanent impairment apart from that which is attributable to the [left/right] knee condition, she would be entitled to compensation in respect of 10% level of impairment under Table 9.5 of the Guide.However, in fact (contrary to the assumption in para 11 of the Statement of Agreed Facts) when she suffered her right knee injury, Ms Fellowes was already suffering a permanent impairment, namely, that arising from the injury to her left knee. The injury to her left knee was assessed to be a 10% level of impairment under Table 9.5 of the Guide (see paras 6 and 19 of the Statement of Agreed Facts).
9 The expression "approved Guide" is defined in s 4 of the Act as the document prepared by Comcare in accordance with s 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister and is for the time being in force.
10 Section 28 provides, in subss (1), (4) and (5) as follows:
(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;(b) criteria by reference to which the degree of non economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non economic loss, as determined under those criteria, shall be expressed as a percentage.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.(5) The percentage of permanent impairment or non economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
GUIDE TO ASSESSMENT OF THE DEGREE OF PERMANENT IMPAIRMENT
11 The Guide to the Assessment of the Degree of Permanent Impairment (Guide) states (in the section entitled "Preface") that the Guide is based on the concept of "whole person impairment" which is drawn from the American Medical Association’s guides. It states (under the heading "Impairment and Non-Economic Loss" in the section entitled "Principles of Assessment") that evaluation of whole person impairment is measured against its effect on personal efficiency in the activities of daily living. In the form of tables, the Guide assembles detailed descriptions of impairments into groups according to body system, and expresses the extent of each impairment as a percentage value of the whole person function or capacity of a normal healthy person.
12 Each table contains impairment values at gradations of 5% or multiples of 5%. The Guide points out (in the section entitled "Introduction") that there is no discretion to choose an impairment value not specified in it. For example, where 10% and 20% are specified, there is no discretion to determine impairment as 15%.
13 In relation to "double assessment", the Guide points out (under the heading "Double Assessment" in the section entitled "Principles of Assessment) that this possibility must be guarded against, and gives as an example the inappropriateness of assessing a lower limb amputation by reference to both the Amputation Table (Table 9.3) and the Lower Extremity Table (Table 9.2). Where an employee suffers from more than one impairment, the values are not added but are combined using the Combined Values Table (Table 14). The purpose of that Table is to give the total effect of all impairments according to a formula as a percentage value of the employee’s whole bodily system or function.
14 The Guide contains a glossary of terms in which the following relevant expressions are defined:
Activities of Daily Living are activities which an individual needs to perform to function in a non-specific environment ie to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:Whole Person Impairment means the medical effects of an injury or disease and is drawn from the American Medical Association Guides where it is there referred to as "whole man" impairment. Evaluation of whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and on the activities of daily living. The Guides are structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this Guide.Ability to receive and respond to incoming stimuliStanding
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing dressing etc)
Sexual function
The expressions "injury" and "impairment" are defined in terms similar (but not identical) to the terms of the definitions of those words in s 4 of the Act (see [7] above).
15 Chapter 9 of the Guide is entitled "Musculo-skeletal System". It sets out Table 9.5 as follows:
Table 9.5
Limb Function – Lower Limb
(Percentage Whole Person
Impairment)
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%
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DESCRIPTION OF LEVEL OF IMPAIRMENT
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10
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Can rise to standing position and walk BUT has difficulty with grades and
steps
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20
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Can rise to standing position and walk but has difficulty with grades,
steps and distances
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30
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Can rise to standing position and walk with difficulty BUT is limited to
level surfaces
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50
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Can rise to standing position and maintain it with difficulty BUT cannot
walk
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65
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Cannot stand or walk
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16 It will be recalled from paras 6 and 11 of the Statement of Agreed Facts (set out at [4] above):
• that the first injury suffered by Ms Fellowes (the injury to her left knee), if she suffered from no other permanent impairment apart from that attributable to the left knee condition, would give rise to an entitlement to compensation in respect of a 10% whole body impairment referred to in the first line of the above table; and• that the second injury suffered by Ms Fellowes (the injury to her right knee), if she suffered from no other permanent impairment apart from that attributable to the right knee condition, would give rise to an entitlement to compensation in respect of a 10% whole body impairment referred to in the first line of the table.
The difference between the first and second lines in Table 9.5 makes it clear why the expression "(not distances)" appeared in paras 5 and 10 of the Statement of Agreed Facts. The intention in each case was to refer to a first line (or 10%) level of impairment, and not a second line (or 20%) level of impairment.
THE PROCEEDING BEFORE THE TRIBUNAL
17 The Tribunal considered that Van Grinsven governed the matter (at [34]). The learned Deputy President rejected a submission that Canute should be regarded as having impliedly overruled Van Grinsven (at [32]). The Deputy President did not accept that Van Grisven was wrongly decided and offered the opinion that the decision in Van Grinsven was plainly correct (at [33]).
18 The Deputy President distinguished the High Court’s decision in Canute on the basis that in Canute, two injuries had been suffered resulting in separate and distinct impairments (at [32]).
19 The Deputy President stated that the effect of the Guide was that two or more separate injuries that give rise to the same impairment result in a single rating of impairment (at [34]). He said (at [35]) that to view the matter in this way was not to "disentitle" Ms Fellowes to compensation or to fail to apply s 24 of the Act, but rather to give:
primacy to the notion that the scheme of the ... Act is not one that involves, relevantly, compensation for injuries that cause permanent impairment [but] provides compensation for injuries to the extent of the permanent impairment. The fact of permanent impairment creates a liability in the Commission to pay compensation but the amount of that liability is determined by reference to the extent of that permanent impairment having regard to the Guide. [emphasis in original]CONSIDERATION
20 It is first necessary to refer to Van Grinsven and then Canute.
Van Grisven
21 In Van Grisven the respondent (Mr Van Grinsven) suffered an injury to his left knee and on a later occasion an injury to his right knee. As in the present case there was a statement of agreed facts. The only difference between Van Grinsven and the present case is that the whole body impairment in Van Grinsven was that described on the second line of Table 9.5 (set out at [15] above), whereas in the present case it is that described on the first line. Thus, in Van Grisven, the description of level of impairment was "Can rise to standing position and walk but has difficulty with grades, steps and distances" and the percentage of whole body impairment was therefore 20%.
22 In Van Grinsven a Full Court of this Court distinguished between the approaches taken in Table 9.2 and Table 9.5. The Full Court stated (at [4]) that Table 9.2 is one of the Tables dealing with impairments falling within the words "the loss of the use, or the damage or malfunction, of any part of the body" in the definition of impairment. (We set out the definition of impairment in the Act at [7] above, and referred to the definition of impairment in the Guide at [14] above.) The Full Court pointed out that Table 9.5, on the other hand, evinced a different approach in that it was directed primarily to the loss of bodily function part of the definition of "impairment".
23 The Full Court stated (at [16]):
It is clear that for the purpose of Table 9.5 the respondent does not suffer from more than one impairment. He may suffer from two knee injuries, but for the purpose of Table 9.5 these only give rise to the one impairment – that is, ‘Can rise to standing position and walk but has difficulty with grades, steps and distances’.24 The Full Court rejected a submission of Mr Van Grinsven that the reference in the singular to "Limb Function" and "Lower Limb" in the heading to Table 9.5 indicated an entitlement in respect of each lower limb.
25 In their reasons, their Honours referred (at [7]) to two statements in the section of the Guide entitled "Principles of Assessment". The first statement is under the heading "Impairment and Non-Economic Loss" within that section:
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.The second statement is under the heading "The Impairment Tables" within that section:
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.Canute
26 We turn now to Canute. In that case an employee, Mr Canute, injured his back in the course of his employment and Comcare made an award of 12% whole person impairment under s 24 of the Act and the Guide.
27 Subsequently Mr Canute made a claim for permanent injury compensation in respect of a psychiatric injury in the form of an adjustment disorder.
28 The High Court held that since the adjustment disorder was an injury within the ‘disease’ category of the definition of ‘injury’ in s 4 of the Act, Comcare was liable under s 24 to pay compensation in respect of that injury even though it and the earlier back injury were caused by a single workplace incident.
29 In so deciding, the High Court emphasised (at [10]) that the Act does not create a liability to pay compensation in respect of "impairment" but in respect of "injury"; that the term "injury" is not used in the Act in the sense of "workplace accident" but in terms of the resultant effect of an injury upon the employee’s body; and that the term "injury" is not used in the Act in a global sense to describe the general condition of the employee following an incident.
The present case
30 In the present case, Ms Fellowes suffered two injuries to different parts of her body, and that fact is the starting point of the inquiry as to her entitlement to compensation in respect of the injury to her right knee.
31 In Canute, the same workplace incident gave rise to two separate injuries, the back injury and the "disease-injury", each giving rise to a separate impairment for the purposes of the Guide. The circumstances of the case explain why their Honours emphasised that the Act created a liability to pay compensation in respect of injury, not impairment. Canute does not dictate the result in the present case.
32 For the purposes of s 24 of the Act, Ms Fellowes suffered an injury to her right knee in 1987. She was already suffering from permanent impairment resulting from the earlier injury to her left knee. It was conceded on the hearing that as a matter of fact the later injury must have resulted in some further impairment, in the sense that Ms Fellowes must have been at least somewhat worse off after the second injury than she was immediately beforehand.
33 Subsection (5) of s 24 required Comcare to determine the degree of permanent impairment of Ms Fellowes "resulting from" the second injury. This necessarily required that allowance be made for her existing permanent impairment. That existing permanent impairment did not result from the second injury. Comcare was required only to take Ms Fellowes as she was: cf, from a different area of the law, Performance Cars Ltd v Abraham [1962] 1 QB 33.
34 This was not the approach taken in the Statement of Agreed Facts. What was determined (see para 11 in [4] above) was the degree of whole person impairment referable to the right knee condition on the hypothetical basis, different from the actual facts, that there was no pre-existing impairment resulting from the injury to the left knee.
35 The question that arises is what is the appropriate result on the appeal in these circumstances? In our opinion the appeal should be dismissed because, on the basis of the Statement of Agreed Facts and the legislative provisions, it would not have been open to the Tribunal to determine that the degree of permanent impairment resulting from the injury to the right knee was of the class: "Can rise to standing position and walk BUT has difficulty with grades and steps" attracting a second 10% whole person impairment. To explain why this is so, we must again refer to the provisions of the Act and the Guide.
36 Section 28 of the Act empowers Comcare to prepare a guide setting out, relevantly, criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury is to be determined, and the methods by which the degree of permanent impairment as determined under those criteria is to be expressed as a percentage. Subsection (5) of s 28 allows for the possibility that the percentage of permanent impairment suffered by an employee as a result of an injury is zero. That is to say, notwithstanding s 24(1), the Act accepts that an employee who has suffered an injury resulting in a permanent impairment may not be entitled to compensation by reason of terms of the Guide. By reasons of its descriptions of levels of impairment and percentages, the Guide proceeds similarly.
37 The Guide states that it measures impairment against its effect on personal efficiency in the "activities of daily living" in comparison with a normal healthy person: see [11] above. Table 9.5 reflects a view that in this respect a lower limb is special. That view is that in the activities of daily living the lower limbs function as a pair rather than independently of the other. Of course, one can stand on one leg, hop and spin, but in the activities of daily living the function of the lower limbs is to enable one to stand up and to walk. Accordingly, Table 9.5 is different from Table 9.4, which is entitled "Limb Function – Upper Limb" and which defines the degrees of impairment of either upper limb by reference to the use of it for certain purposes. Table 9.5 is also different from Table 9.2, which is entitled "Lower Extremity" and which describes levels of impairment in respect of particular parts of a lower extremity.
38 We think that it was open to Comcare under s 28(1) to provide in respect of "Limb Function – Lower Limb" as it has done in Table 9.5.
39 There is no suggestion, and it would be inconsistent with the Statement of Agreed Facts to suggest, that the injury to Ms Fellowes’s right knee took her level of permanent impairment up to the second level of permanent impairment within Table 9.5 by causing her difficulty with distances. Immediately before her right knee injury in 1987, Ms Fellowes could rise to a standing position and walk but had difficulty with grades and steps (not distances). After that injury, no doubt with somewhat greater difficulty, she could still rise to a standing position and walk but had difficulty with grades and steps (not distances). Her right knee injury did not cause her to suffer an impairment involving difficulty with distances, and so she did not suffer a 20% whole person impairment under Table 9.5. In terms of the Guide, and in particular in terms of Table 9.5, the classification of the degree of Ms Fellowes’s permanent impairment was the same following the injury to her right knee as it had been before it.
40 The following statement in the Guide therefore applied:
Where two or more injuries give rise to the same impairment a single rating only should be given.The two knee injuries suffered by Ms Fellowes gave rise to the same impairment in terms of Table 9.5: "Can rise to standing position and walk BUT has difficulty with grades and steps".
41 Situations can be suggested in which the operation of the Tables in the Guide understood consistently with Van Grinsven can lead to odd results, but situations can also be suggested in which the cumulative operation of the Tables supported by Ms Fellowes can lead to odd results.
42 It will be clear from what we have said above that we do not think that the Full Court decision in Van Grinsven was plainly wrong and in our view this Court should follow it.
CONCLUSION
43 For the above reasons, the appeal brought by the application should be dismissed with costs.
Associate:
Dated: 4
August 2008
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A
PRESIDENTIAL MEMBER
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BETWEEN:
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ROBYN CHRISTINE FELLOWES
Applicant |
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AND:
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MILITARY REHABILITATION AND COMPENSATION
COMMISSION
Respondent |
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JUDGES:
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FRENCH, MOORE AND LINDGREN JJ
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DATE:
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4 AUGUST 2008
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PLACE:
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SYDNEY (HEARD IN BRISBANE)
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REASONS FOR JUDGMENT
MOORE J:
44 I have had the benefit of reading the reasons for judgment of French and Lindgren JJ in a draft form. It is unnecessary to repeat their Honours' account of the facts and the relevant legislation. The applicant has argued it is difficult to reconcile the judgment of the Full Court of this Court in Comcare v Van Grisven (2002) 117 FCR 169 with the subsequent judgment of the High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535. I agree.
45 As French and Lindgren JJ have explained, the facts in Canute were not the same as the facts in the present case. Indeed, they are only similar at a high level of abstraction, in the sense that both cases concerned two injuries. In Canute, the two injuries were markedly different in the sense that the first was an injury to the body (the appellant's back) and the second injury was psychiatric. Both injuries arose from the one event. In the present matter, both the first injury and second injury were to the appellant's lower limbs, with the first occurring after the second. However, these dissimilarities should not, in my opinion, distract attention from the reasoning of the High Court in its analysis of the operation of the Safety, Rehabilitation and Compensation Act 1988 (Cth). As the Court pointed out at [8], the concept of "an injury" is of pivotal importance. The Court went on to note at [10] that Comcare's liability is to pay compensation in respect of "the injury", and not in respect of an mpairment. The High Court also noted that the definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body.
46 The High Court rejected at [11], the contention that the notion of "the degree of permanent impairment" reflected an approach of assessing impairment on a "whole person" basis. Of central importance are the following observations of the High Court at [14]:
However, it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of "an injury" (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each "injury". The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee "resulting from an injury". Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable "under this section"; that is, "in respect of the injury" (s 24(1)). [emphasis in original]47 It seems to me that this passage should be taken to indicate that the Act requires a series of questions to be asked and answered. The first is whether the employee has suffered an "injury". In respect of any (and each) "injury" the employee has suffered, the further question is whether a permanent impairment has resulted from that "injury". An affirmative answer to that question then leads to the enquiry concerning the "degree of permanent impairment" contemplated by s 24(5), which the High Court described in Canute at [6] as the "central provision" of the legislative scheme.
48 The Guide is a construct authorised by s 28. However it can operate, and only operate, to set out criteria to determine the degree of a permanent impairment. That is apparent not only from the terms of s 28 but also the terms of s 24(5). It follows, in my opinion, that the Guide cannot operate to deny the existence of a permanent impairment, given that the stated role of the Guide is to assist in determining the degree of the impairment. This is evident from s 24, which provides that where an employee has suffered an injury (as that term is defined in s 4) that results in permanent impairment (as that composite term is defined in s 4), and provided the level of impairment is no less than 10% (s 24(7)), the employee is entitled to compensation in respect of that injury. The Guide cannot derogate from this statutory entitlement.
49 Before having recourse to the Guide, the decision-maker must ascertain whether any permanent impairment resulted from a given injury. Once that is done, the Guide is the tool the decision-maker can use to determine the degree of permanent impairment. It is erroneous, in my opinion, to approach a given set of facts on the basis that even though two injuries have been suffered at different points of time, and even though each injury may have caused a degree of permanent impairment, the Guide, properly construed, requires any permanent impairment flowing from the second injury to be treated as somehow merging with the permanent impairment flowing from the first.
50 This erroneous approach, in my opinion, infected the judgment of the Full Court in Van Grinsven. It is apparent in the following passage (at [16]):
It is clear that for the purpose of Table 9.5 the respondent does not suffer from more than one impairment. He may suffer from two knee injuries, but for the purpose of Table 9.5 these only give rise to the one impairment - that is, "Can rise to standing position and walk but has difficulty with grades, steps and distances". Thus Dr Pentis’s assessment is that the respondent has a 20% "whole person impairment" and Ms Bertoldi’s assessment is that he has an "overall level of lower limb impairment" of 20%. By way of contrast, for the purpose of Table 9.2 he can be said to have multiple impairments. In Table 9.2 each single joint injury is an impairment. That is why it is necessary to use Table 14.1 to combine these impairments in order to obtain the whole person impairment percentage.The Full Court construed the relevant provision in the Guide (table 9.5) to sustain the original conclusion reached by the delegate that the employee had only suffered "one impairment" notwithstanding that he had suffered two knee injuries. However, the Guide does not exist to provide an answer to the question of whether any injury has resulted in permanent impairment. It exists to provide an answer to the question of what the degree of impairment has been.
51 It may be accepted that a person may suffer an injury with consequential impairment and then suffer a second injury which does not lead to further impairment. This might be because what is thought to be the impairment flowing from the second injury is, in truth, precisely the same impairment flowing from the first. However, it is not difficult to conceive of a situation where an injury is suffered to one knee resulting in impairment, and a second injury suffered to the other knee resulting in further impairment, although of the same general character as the first. An example was given by counsel for the appellant in this matter. According to the Guide, a 10% level of impairment to the lower limbs would be manifest by, amongst other things, difficulty climbing steps. A person with an injured right knee might have difficulty with steps, particularly with every second step when the injured right knee is used to support the body and sustain its upward movement. If that person injured the left knee as well he or she would continue to have difficulty climbing steps. However, it would be a difficulty of a slightly different character. Both legs would not provide support and sustain upward movement as had been the case before both injuries.
52 If the Guide can only be used in the way I have discussed, then it should be construed so that its operation is limited to ascertaining the degree of permanent impairment and not whether there has been any permanent impairment. Approached that way, I would probably construe the Guide in the way rejected by the Full Court in Van Grinsven at [15], namely that the reference to "lower limb" in the heading in table 9.5 should be treated as a reference to each knee in the singular. This might avoid (although may not) the issue raised in passing by the appellant in these proceedings, namely that the Guide as presently drafted travels beyond what is authorised by s 28.
53 In the present case, the agreed facts reveal that the appellant suffered two injuries, one to the left knee in 1986 and the other to the right knee in 1987. It is probable that these agreed facts reflect an assumption that each injury was an ailment which falls within the definition of "disease" and which, in turn, falls within the definition of "injury". However, for present purposes, it does not matter what was the definitional route leading to the agreed facts. But for the decision in Van Grinsven, I would conclude that the Tribunal fell into error in the approach it adopted. However, I should note that the agreed facts presented to the Tribunal (as well as the opinion of Dr Vecchio) did not differentiate, with sufficient particularity, between the disabling effects of the first injury to the left knee and, if any, the additional or different disabling effect of the second injury to the right knee. Those facts would need to be explored further if the matter was remitted to the Tribunal.
54 However, the judgment of the Full Court in Van Grinsven is a unanimous, recent and considered decision which cannot be distinguished, in any material way, from the facts of this case. I am bound to follow that judgment unless I think it is plainly wrong. That formulation insists upon a high level of conviction about earlier error as a means of maintaining certainty in the law. To repeat what I said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [8]:
The level of conviction required of the Full Court [in considering whether to depart from an earlier Full Court judgment] has been variously described as being satisfied that the earlier judgment is plainly wrong, manifestly wrong or clearly erroneous. Other formulations have been adopted: see generally the discussion in Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595. However formulated, the duty of any later Full Court to follow an earlier Full Court is founded on public policy considerations and, in particular, the need for consistency in the application of federal laws in this Court, subject always to correction of any error by the High Court or the amendment of the law by Parliament.55 In this matter, the task of determining whether Van Grinsven should be followed is, of course, not entirely straightforward, given the subsequent decision of the High Court in Canute. If I was satisfied that the ratio of the judgement in Canute can be taken to have involved an implied overruling of Van Grinsven, then my plain duty as a member of an intermediate court of appeal is to loyally follow the decision of the High Court: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 at 129; Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 at 403 [17]; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289 at [39].
56 It can be difficult to determine what is the ratio of any particular judgment: see Wu Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39 at [24] and following and also the observations of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [25] and following. I find that so in this matter. Nonetheless, I apprehend that the ratio in Canute is that s 24 operates unconstrained by s 25(4) in relation to an injury sustained from an event which led to another injury resulting in compensable impairment. Van Grinsven, on the other hand, was not determined on an erroneous understanding of the operation of s 24, but rather on what the Full Court viewed as the proper construction of the Guide. Notwithstanding that I consider the approach of the Full Court in Van Grinsven is wrong having regard to the judgment of the High Court in Canute, I do not think it is open to me to refuse to follow the earlier Full Court judgment in Van Grinsven. It is the reasoning of the High Court in Canute at a level of generality and not the ratio of the judgment that casts doubt on the approach of the Full Court in Van Grinsven. Accordingly, I would join in the orders proposed by French and Lindgren JJ.
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I certify that the preceding thirteen (13) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Moore.
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Associate:
Dated: 4
August 2008
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Solicitor for the Applicant:
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Slater and Gordon
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Counsel for the Respondent:
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Mr T Howe QC and Mr B Dube
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Solicitor for the Respondent:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/140.html