Barnett v Transport Accident Commission M26/2001

[2001] HCATrans 646

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 2001

B e t w e e n -

PAUL BARNETT

Applicant

and

TRANSPORT ACCIDENT COMMISSION

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 2.20 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR S.R. McCREDIE, for the applicant.  (instructed by J.N. Zigouras & Co)

MR M. O’LOGHLEN, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMAN, for the respondent.  (instructed by TAC LAW Pty Ltd)

GUMMOW J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, in view of the workload the Court has had this morning, I will not waste time in describing what the application is about.

KIRBY J:   Just an ordinary day it was.

MR NASH:   I am pleased that your Honour still works as hard as we do at the Bar.

KIRBY J:   Harder.

MR NASH:   The situation is that there are two issues really, overlap in the chapters of the guides and the question of rounding off.  I should say that the guides operate in Queensland, Victoria, New South Wales and the Northern Territory.  If they were only of Victorian significance we would not be here.  Of course, it may be that in a short time we will not be here.

But, in relation to overlap there is no independent discussion in the Court of Appeal and their reasoning must be taken to be that of Justice Mandie.  His reasoning appears at page 100, lines 15 and following of the application book, and, without going to it, we say that it confuses cause with effect and symptoms with impairment.

There is of course no treatment, discussion or consideration in the guides themselves of overlap.  Chapter 2 is concerned with evaluation of the central nervous system or rather evaluation of impairments to the central nervous system and this appears at application book page 6.  If I can go to that page because the essence of the applicant’s arguments in relation to this point really turn on the wording on page 6.  If we go to the second column, line 14, dealing with the brain, it says:

The effects on the patient with the established disorder provide the criteria by which the permanent impairment is evaluated.

There are then seven categories, what are called:

impairment resulting from brain disorders –

listed in the following paragraph and the next paragraph:

More than one category of impairment may result from brain disorders.  In such cases the various degrees of impairment from the several categories are not added or combined, but the largest value, or greatest percentage of the 7 categories of impairment, is used to represent the impairment for all of the types.

We say that that indicates quite clearly that what are called “categories of impairment” in the second paragraph under the heading “The Brain” are, in fact, the symptoms which are used to determine, or the criteria used to determine the actual organic damage to the brain.  If that be the case, then when one analyses ‑ ‑ ‑

KIRBY J:   Is the issue behind the arguments of the parties whether you are double dipping?  That is the bottom line, is it not?

MR NASH:   Yes, your Honour, and in relation to double dipping we say this.  The best example I can think of is if I have an injury to the back, if I injure my back, the sciatic nerve is pinched or whatever the word is, and I cannot walk, my left leg will not function, the use of my left leg is impaired.  I have an injury to the back which causes an impairment to the leg.  I am not double dipping if I am compensated both for the impairment of the use of the back and the impairment of the use of the leg.

KIRBY J:   Now, translate that into this case.

MR NASH:   This depends on the symptoms argument.  If I have impairments, using the term loosely as it is used here, under three of the seven categories, each of them is at 30 per cent, I will be 30 per cent brain impaired.  Now, perhaps the best way of explaining it would be to say, if you have two people, one suffers a 30 per cent impairment under category (3) here, disturbances of “complex, integrated” “cerebral” functions; the other suffers that but also suffers a 20 per cent impairment under language disturbances and 20 per cent impairment under category (4), “emotional disturbances”, both would receive a 30 per cent impairment under chapter 2.

If the Court of Appeal is correct and Justice Mandie is correct, gentleman or gentlewoman B would not receive any compensation under chapter 12 for the psychiatric impairment represented by the emotional and personality disturbances.

KIRBY J:   But given that these are just guidelines, it does not seem to me that it is of such normative value that the High Court could throw any light on it.

GUMMOW J:   I mean, in the end the question before the primary judge is really whether the Tribunal had made an error of law, I suppose.

MR NASH:   Yes, your Honour.

GUMMOW J:   In the review process.

MR NASH:   And we say that the Tribunal did make an error of law, the error of law being quite simple, that the chapters each deal with discrete body systems or organs. 

KIRBY J:   They are not completely discrete, though, when you get to the brain or the spine.  I mean, these are so integral that they are going to have consequences elsewhere and hence the risk of double dipping.

MR NASH:   Picking up what his Honour the presiding judge said, these are guides.  If one looks at the history of the guides as set out in chapter 1,  they were originally separate books, separate guides for each category.  They have been brought together here and what is now being said - what was held by the Tribunal is that if you have an impairment which is caused ‑ and I say “caused” ‑ by damage to the brain and that is a psychiatric impairment, you do not receive compensation under chapter 12.  What you get is compensation under chapter 2 and only compensation under chapter 2.  We say that that is not the intention of the guides and that the error lies in equating the symptoms in chapter 2 with impairments.  Clearly there is no intention to compensate what we call the symptoms.  I have said it all.  I can go on and repeat myself, but in relation to this point, I think the ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr Nash.

KIRBY J:   What do you say in relation to the suggestion that the guides have been changed and that, therefore, we would be dealing with something which has been supervened by a change in the applicable principles?

MR NASH:   We say the question of whether the various chapters overlap or whether there can be treatment of overlap between the various chapters is still an absolutely significant point and that was the reason I picked up the example of the back and the leg, which is more tangible.  What Justice Mandie says, what the Court of Appeal have said by adopting his reasoning, is if you have psychiatric impairment caused by organic damage to the brain, that is to be compensated only under chapter 2 and we say that

confuses the fact that the guides are concerned to compensate the effect, not to compensate the cause.

GUMMOW J:   Yes, thank you, Mr Nash.  Yes, Mr O’Loghlen.

MR O’LOGHLEN:   On this point, your Honour, we ‑ ‑ ‑

KIRBY J:   Are they not different, that is to say the psychiatric disability and the organic disability and are they not susceptible to a separate calculation and is that not, arguably, at least, a rather important question?

MR O’LOGHLEN:   We say not, your Honour.  The actual issue in this case concerns the finding made by the Tribunal at page 83 of the application book, which was this, that:

it was appropriate to allow the applicant an impairment of 10% pursuant to Chapter 12.

That is the psychiatric chapter, chapter 12.  The issue on appeal, both before Mr Justice Mandie and the Court of Appeal and here is whether that finding was open and we say that finding was open and is justified by reference to Mr Justice Mandie’s judgment at paragraph 21, to which you have been taken.

KIRBY J:   So, do I understand that you are not in difference with Mr Nash in respect of the principle that it is simply a question of quantification?

MR O’LOGHLEN:   As to whether psychiatric impairment can be brought about by brain damage, as Mr Justice Mandie says, it can.  The question is not whether psychiatric impairment can be brought about by brain damage but what was the effect in this case of the interaction between chapter 2 and chapter 12, having regard to the very particular passage in chapter 2, which is found at page 6 of this application book, page 61 of the guides.

GUMMOW J:   Line 25.

MR O’LOGHLEN:   In the first column under the heading “The Central Nervous System” in the second paragraph where the guides say this, that:

Evaluation of CNS impairment is difficult because of the complex relationships between the brain and the mind.

Then, this is the important bit:

It is impossible to avoid consideration of associated mental, emotional and personality processes.  When appropriate, Chapter 12 should be used in conjunction with this chapter.

KIRBY J:   What is hidden in those words “when appropriate”?  A multitude of sins, I suspect.

MR O’LOGHLEN:   Yes, it depends upon the individual facts of each case, the evidence given in each case.  The question whether it is appropriate or not was the subject of evidence in the case.  There was evidence of overlap.

KIRBY J:   So you say there is no fundamental antithesis in the guides to what Mr Nash has said, that is to say, the guides themselves, where appropriate, contemplate that there will be both organic and psychiatric compensation?

MR O’LOGHLEN:   Yes, we do say that.

KIRBY J:   But in the particular facts of this case.

MR O’LOGHLEN:   The guides themselves each show that under chapter 2 brain damage may bring about all sorts of consequences including emotional disturbances and chapter 12 shows that brain damage, or organic damage like brain damage, may bring about psychiatric disturbances.

KIRBY J:   If there is no difference in fundamental principle, the last thing the High Court of Australia would want to do would be to get into sorting out whether, in the particular facts of this case which has gone through the Tribunal, a single judge and the Court of Appeal, we would reach a different view on the facts.

MR O’LOGHLEN:   That is what we say.  We say the decision itself is not attended by sufficient doubt and that it was open to the Tribunal here to find, as it did, that some factor, which otherwise would have been assessable under chapter 12, had already been taken into account in assessing impairment under the different chapter, chapter 2.  So, that is the submission that we would make in response to what ‑ ‑ ‑

KIRBY J:   Well, Mr Nash has been brief.  That is your brief point really.

MR O’LOGHLEN:   Yes, your Honour.

GUMMOW J:   Yes, thank you.  Now, you would press your application for costs, would you, if you were otherwise successful?

MR O’LOGHLEN:   We are not minded to press the application.

GUMMOW J:   Thank you.  Is there anything you want to say in reply, Mr Nash.

MR NASH:   I am not sure where I am at the moment, if the Court pleases.  There was the second point, the question of rounding up that I  ‑ ‑ ‑

KIRBY J:   You did not address that point but, I must say, I think if the guides with authority of statute say you can round up, then a court should not be so concerned with its own dignity that it does not deal what the statute in the form of the guide says it should or can.  But, does anything really turn on that in this case?

MR NASH:   One of the problems, if the Court pleases, is that there is now a Court of Appeal decision saying, which would in respect of these guides throughout – and a similar provision exists in the current guides, be binding on courts throughout Australia.

KIRBY J:   Do they really say that?  I mean, I must admit I was a bit confused as to what the Court of Appeal was saying and Justice Mandie too, that it was not really appropriate.  But, why is it not appropriate if that is what the guides say?  Was the notion a sort of separation of powers notion?

MR NASH:   No, the notion seems to have been that the word “may” should be seen as discretionary, even though there are no criteria.  One has a criterion ‑ ‑ ‑

KIRBY J:   But you need a “may” in case you hit on a five, therefore there is no warrant to round up or round down, so that you need a “may” for that purpose and when the case exists where you are, say, four, then you round up to five and when you are two, you round down to zero.

MR NASH:   And, with respect, your Honour, we accept or endorse those views and we also ‑ ‑ ‑

KIRBY J:   What did the Court of Appeal say that stands in the way of it, because it just seems that that is what the statute and the guides require.

MR NASH:   All the Court of Appeal said, your Honour, is that they adopted what was said in Coverdale, that the guides as they stood were ‑ ‑ ‑

KIRBY J:   It is at page 114 at the top of the page:

hardly appropriate to the function of the Tribunal under the legislative scheme –

That is why I was thinking that they might have been suggesting that this is not, in some way, apt for an independent tribunal, but I cannot ‑ ‑ ‑

MR NASH:   With respect, your Honour, the argument our learned friends put was that the scheme has threshold criteria for various benefits.  Thirty per cent is one and 10 per cent is another and it was argued that if this were the case ‑ and I think this is also the reasoning in Coverdale by Mr Justice Kellam that the legislature said 30 per cent and 10 per cent.  If one had applied the mandatory rounding up that we contend exists then this would make it 28 and eight which, of course, in our submission, ignores the fact that the legislation was passed, at least giving way to the judicial fiction.

GUMMOW J:   Mr Justice Mandie dealt with this, did he not, at 103 in relation to this particular dispute?  He said he did not need to get into Coverdale, beginning at the bottom of 102.

KIRBY J:   Yes, it is at 15:

I need not decide whether the rounding‑off “provision” is applicable at all –

so that this would not be a good vehicle to consider the issue of rounding off or rounding up.

MR NASH:   Except he did say that “may” in that context does not mean “must”, but it is our contention that it does mean “must”, that it does mean that if the figure does not hit a five or a ten, particularly if you look at the guides and the nature of the guides, which are rough figures to five per cent for want of a better word, one has a situation where, if one does not round the figures, the sum is more accurate than the total of the parts, if I can put it that way.  A particular part is only accurate to five per cent.  The total can be accurate to one per cent.  If the Court pleases.

GUMMOW J:   Thank you, Mr Nash.

The Court emphasises the importance of the statement by Justice Phillips in Lake v Transport Accident Commission [1998] 1 VR 616 at 626. His Honour’s remarks were to the effect that the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, which I will call “the Guides”, are, as their title suggest, just that and that in their use for the making of determinations under the Transport Accident Act 1986 (Vic) the Guides should not become overlaid with a lawyer’s precise interpretation.

The applicant puts forward various questions relating to the proper construction of particular provisions of the second edition of the Guides.  That edition does not apply in relation to injuries sustained since 19 May 1998.  Further, the decision of Justice Mandie on review from the tribunal which was upheld by the Court of Appeal is not attended by sufficient doubt to warrant the grant of special leave.

We would add that, having regard to what Justice Mandie said in his reasons for judgment appearing at page 102 of the application book, this would not be a suitable vehicle for the consideration of this Court of the decision of Coverdale v Transport Accident Commission.  Accordingly, special leave is refused.

AT 2.42 PM THE MATTER WAS CONCLUDED