Brennan v Comcare

[1994] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Registry         No C11 of 1994

B e t w e e n -

MAXWELL FRANCIS BRENNAN

Applicant
  and

COMCARE

Respondent

Application for special
       leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1994, AT 11.14 AM

Copyright in the High Court of Australia

MR R.E. WILLIAMS, QC:   May it please the Court, in this matter I appear with MR R.L. CROWE, for the applicant. (instructed by Gary Robb & Associates)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR D.J. McGILL, for the respondent. (instructed by the Australian Government Solicitor)

MASON CJ:   Mr Williams.

MR WILLIAMS:   Your Honours, it is probably clear enough, though the judgments appealed from do not make specific reference to it, that the practical difficulty that confronted Mr Brennan was that the 1971 Act did not provide for lump sum for permanent impairment of a back.  Your Honours will recall that in the Georgiadis case, the appellant there was, amongst other bars was confronted with the same bar.  The distinction between the Georgiadis case and this present matter - and I will need to go to the Georgiadis case shortly - was that, whatever permanent impairment Mr Georgiadis might have had occurred well before 1 December 1988, probably, though the report does not make it clear, some time in 1986.  The fact is that no issue arose in Georgiadis about whether he fell within section 124(3) of the Act; there was no question there as to when permanent impairment occurred.

None the less, in a passage in the judgment of this Court in Georgiadis, in a passage in His Honour Justice McHugh’s judgment, there is potentially a fundamental hurdle for the applicant in this case, and I should take the Court to it shortly.  Certainly, Mr Justice Gummow, in the Full Court of the Federal Court attaches significance to parts of His Honour’s judgment in Georgiadis.  But before I go to that decision, could I shortly state the principal matters that arise here.  Mr Justice Neaves, whose reasoning was upheld by the Full Court, held that, in relation to section 124(3) of the Act, and in particular as to the question as to when permanent impairment occurs, that that question is addressed by ascertaining, relevantly for the purposes of the Brennan action, whether it could be said that damage to the applicant’s back was likely to continue indefinitely, before 1 December 1988.  The applicant contends that the correct test for determining when permanency occurs, not the degree of permanency, but the fact of permanency, is by having regard to the criteria listed at section 24(2) of the Act, which necessarily involves the concept of loss of function and stabilisation.

Implicit in the judgments appealed from is the rejection of the Administrative Appeals Tribunal’s approach to determining when permanent impairment occurs, which is set out in the tribunal’s decisions at page 16 in the application book.  That approach was incorrectly, we would submit with respect, characterised by the Federal Court and by the respondent here in its written submissions as holding that a permanent impairment occurs when the condition has sufficiently stabilised so as to permit the degree of impairment to be assessed.  It may be, as in this case, that one arrives by reference to the criteria at section 24(2) at the same date for fixing when permanency occurs and there is stabilisation sufficient to permit an assessment of a percentage loss.  But that is by the by. 

In other words, our case is this, in attacking the Justice Neaves statement, that one simply looks to damage and whether it is likely to continue indefinitely.  We say the fact of injury or damage or loss per se is not to the point.  Such an occurrence of, say, damage does no more than give a person a prospective right to compensation should the damage subsequently become an impairment and should the impairment subsequently be regarded as a permanent impairment having regard to the criteria laid down at section 24(2) of the Act, that is, including such questions as to whether or not there has been medical treatment, rehabilitation, an opportunity for the impairment to improve, or whatever.

The problem with the Federal Court test, we submit, is that there may be damage which does not constitute impairment, and even if there is, it may not have the permanency about it as required by section 24(2).  I hesitate to give examples because ‑ ‑ ‑

GAUDRON J:   But is that not left open on Their Honours’ reasons?  Do they not accept that?

MR WILLIAMS:   We would say no, Your Honour, because of their rejection of the Tribunal’s approach to looking at the facts at section 24(2).  We would also say no because of the reliance upon a passage in Justice McHugh’s decision in Georgiadis which I will refer Your Honours to in a moment.

An example of the problem is this:  Your Honours may recall problems that occur when damage occurs to intervertebral discs in someone’s back, even, say, a protrusion of a disc.  That damage may produce symptoms and it may not.  If it does not when the damage first occurs, it may produce symptoms at a later stage.  For reasons that are not always clear occasionally, not very often, the protrusion will resolve itself in any event.

In any event, we say that to focus on damage, as the Full Court of the Federal Court and Mr Justice Neaves, appear to have done ‑ ‑ ‑

GAUDRON J:   But you are using damage to mean injury, are you?

MR WILLIAMS:   It is not clear whether the Full Court was using damage to mean injury or not.  If they were, then we would submit the court was clearly wrong although ‑ ‑ ‑

GAUDRON J:   But if they were not, it is not so clearly wrong, is it?

MR WILLIAMS:   That is so, Your Honour, except for this, that damage might constitute or it might not constitute impairment.  Damage per se is not necessarily impairment because ‑ ‑ ‑

GAUDRON J:   It depends how you use the word “damage”.

MR WILLIAMS:   Yes, it does, Your Honour.  But when one looks at what impairment means at the definition sections of the Act, it suggests the concept of damage producing a loss of bodily function.  But even if the Federal Court is using the expression “damage” to mean impairment, that is only the first step in a two-step stage.  It is the occurrence of permanent impairment that one looks at and the court seems to have disapproved, very strongly, of the Administrative Appeals Tribunal’s approach to determining when permanent impairment occurs by having regard to the recovery process which is the very thing that the Act requires, by section 24(2). 

Could I take Your Honours to the Georgiadis decision for a moment because it may be important.  It is referred to probably more conveniently in the judgment of Mr Justice Gummow - if I could take Your Honours to that rather than to the report itself - commencing at page 75 in the application book.  Your Honours’ joint judgment is not referred to.  That is because Your Honours do not make a specific reference to the transitional provisions.  As I think I said earlier, the point did not arise in Georgiadis as to when permanent impairment occurred.

Their Honours Justices Dawson and Toohey make passing reference to the section in terms but it is the reference to Justice McHugh’s reasons at page 77 in the application book to which specific regard has to be had.  The passage is set out by Mr Justice Gummow and it would appear that His Honour Mr Justice Gummow took that passage of His Honour Justice McHugh to mean that permanent impairment occurs when the injury is sustained.

If that be correct, then, clearly, this application fails but, our submission is that it may be that that is not what His Honour is saying at all on a close reading of His Honour Justice McHugh’s statement.  It is the use of the word “and” on the fourth line that throws doubt about whether His Honour was really looking at the question of when injuries were sustained.  We would say the better view was that His Honour, in fact, was not doing that at all.  Otherwise, to achieve the view that Mr Justice Gummow seems to take of the Justice McHugh passage, one really runs together the two concepts and ignores the word “and” on the fourth line.  We would say the better view was that His Honour was saying that because the plaintiff’s injuries were sustained before the commencing date and - emphasis on “and” - he was not otherwise introducing the words “otherwise” entitled to a lump sum payment, it falls within 124(3).  That is borne out by what follows where His Honour says:

Thus, he has no right to sue at common law for damages for his injuries and no right to obtain a lump sum - - -

MASON CJ:   You cannot dispose of Justice Dawson’s statement quite so readily, can you?

MR WILLIAMS:   We say, with respect, yes we can, Your Honour, for this reason:  His Honour does use the word at line 34 in the application book - if it is convenient to refer to these passages in this way - His Honour is driven back to the word “occurred”.  I take Your Honour the Chief Justice’s point that there is the question of the word “injury”, or His Honour introduces the concept of “injury” on the second line of the quote but, none the less, by line 6 His Honour is still focusing at the end of the day on the question of when impairment occurred. 

It would be highly unlikely, we would say, that one would resolve the question of occurrence, at 124(3), by having regard to when injury was sustained because, as we put earlier and we put in our written submission, injury is not to the point.  The fact of injury does not mean anything in so far as a claim for permanent impairment is concerned.  We say that what His Honour Mr Justice Gummow seems to take from Justice McHugh’s reasons in Georgiadis are not necessarily correct on a close reading of His Honour’s judgment.  In any event, the point was not before the Court in Georgiadis.  This Court was not interested in dealing with when permanent impairment occurs for the purposes of section 124(3).  As I said before, it is very difficult to tell looking at the report, but it seems to have taken place - - -

MASON CJ:   I certainly have no recollection of this point being the subject of argument in Georgiadis.  I rather think that trying to dredge all this out of these judgments is like an ancient exploration of the entrails of a victim that is sacrificed.

MR WILLIAMS:   Your Honours, the other point is this:  when Mr Justice Gummow goes on to, having quoted from Justice McHugh’s passage in Georgiadis, His Honour then says:

Broadly, the question before us is whether the primary Judge was correct in holding that the A.A.T. had fallen into error of law in determining that, to adopt the language of McHugh J., the injuries of the appellant were sustained after 1 December 1988 -

On any reading of the tribunal’s decision, the tribunal was not guilty of looking at when injury was sustained.  Quite the opposite.  The reason we are here now - I should not put it that way.  The reason why the Federal Court was critical of the tribunal was that the tribunal was looking at something entirely different in trying to determine when permanency occurred, and having regard to the guide mentioned elsewhere in section 24, it was grappling with the concepts laid down in 24, which is directing itself to an inquiry as to when permanency occurs, that is when permanent impairment occurs.

MASON CJ:   But granted that Mr Justice Gummow may have extracted too much from these judgments, and that the question of construction is an arguable one, none the less is it a case that should attract the grant of special leave?  We have said, in a number of cases under statutes like this one, in particular Workers Compensation Acts, that the mere existence of a question of statutory construction, notwithstanding that it may apply in a number of cases, is not enough in itself to attract the grant of special leave, particularly where the question of statutory construction raises no real question of principle but is a matter of spelling something out from the provisions of the Act looked at in their entirety, having regard to the scope and purpose of the statute.

MR WILLIAMS:   The reasons why, we would submit, the matter does warrant intervention of the Court are these, Your Honour:  it is clear, though it does not arise directly in this case, that there is uncertainty and contradiction in the courts as to the approach to section 124(3).  We gave the Court a reference to a single decision of Telestra, a decision by Mr Justice Olney in the Federal Court where His Honour is saying, contrary to what is said in Brennan in the Full Court of the Federal Court, the word “impairment” in section 124(3) is not an inquiry as to when permanent impairment occurs, it is only an inquiry as to when impairment occurs.

DEANE J:   What do you say about pages 87, 88 and 89?

MR WILLIAMS:   At page 88, Your Honour, the primary judges’ summing up is reproduced and subsequently approved by Mr Justice Gummow and by the other members of the bench  who followed him, and at line 22, from Mr Justice Neaves’ decision the following appears:

The question for the [A.A.T.] was whether in those circumstances it could properly be said prior to 1 December 1988 that [Mr Brennan’s] impairment, namely damage to his back, was likely to continue indefinitely.

Now, that is the nub of it, and it is that statement that - I should interrupt myself and say it is not clear to what extent Mr Justice Gummow was subsequently relying upon or looking at when injury was sustained rather than perhaps relying upon that passage.

But we say that that is simply at odds with what section 24(2) is directing the tribunal to when it is being asked to consider - and if I can continue the answer to His Honour the Chief Justice’s point at the same time - when it is being asked to consider this transitional provision - it seems that these transitional provisions in workers compensation cases often come before this Court over the years - it is a matter that is of critical importance because our affidavit in support point to the fact that numerous cases are held up pending resolution of what appears to be a problem with interpretation of section 124(3).

There is now at least one judgment in the Federal Court which states that “permanent impairment” only means impairment and not permanent impairment - I know that does not arise - and also, though not directly arising, the problems that arise in the Blackman’s decision, referred to in the Federal Court, would be resolved by this Court granting special leave and providing some assistance on the question of interpreting what is a difficult, we would submit, transitional provision point and one that affects many people.  If Your Honours please.

MASON CJ:   Thank you, Mr Williams.  The Court need not trouble you, Mr Tracey. 

This application for special leave to appeal is brought from a unanimous decision of the Full Court of the Federal Court dismissing an appeal from the decision of Mr Justice Neaves.  The interpretation of section 124(3) of the Safety Rehabilitation and Compensation Act 1988 (Cth) adopted by all four justices in the Federal Court, which is the question sought to be raised in the proposed appeal, is a question of statutory construction involving no question of general principle.  Accordingly, the case is not one appropriate to grant special leave.  The application is refused.

MR TRACEY:   May we ask for costs?

MASON CJ:   You do not oppose costs, Mr Williams?

MR WILLIAMS:   There is nothing to say, Your Honour.

MASON CJ:   The application is refused, with costs.

AT 11.38 AM THE MATTER WAS ADJOURNED SINE DIE