Comcare v Levett

Comcare, as the successor to the Commonwealth of Australia, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) which had set aside a decision of its delegate and remitted the matter to Comcare for assessment of compensation. The Tribunal had found that Ian Gordon Levett, the respondent, was entitled to compensation for a permanent impairment of his back under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) which arose after the Act came into force on 1 December 1988. The central question in the appeal concerned the construction of s. 124(3) of the 1988 Act, in particular the meaning of the phrases "permanent impairment" and "being an impairment". The court found that s. 124(3) of the 1988 Act is intended to render s. 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force if either the employee had received a lump sum, or was not entitled to a lump sum for that permanent impairment. The court found that s. 124(3) of the 1988 Act operated to limit the circumstances in which, by operation of s. 24, Comcare would be liable to pay compensation as a lump sum. The court found that the words "being an impairment or death" in s. 124(3) followed two related phrases, namely, "a permanent impairment" and "the death of an employee". The words "an impairment or death" were a condensation and amalgamation of these two phrases. The entire phrase "being an impairment or death that occurred before the commencing date" was intended to identify a permanent impairment or death with a particular characteristic; namely, it must have occurred before the commencement of the 1988 Act. Section 124(3) was intended to render s. 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force if either the employee had received a lump sum, or was not entitled to a lump sum for that permanent impairment. The court found that it was open to the Tribunal on the whole of the evidence to reach the conclusion which it did. There was ample evidence to support the finding of the Tribunal that the respondent suffered an injury that resulted in impairment and occurred before 1 December 1988, but which did not result in permanent impairment until after that date. Accordingly, the respondent was not disqualified from entitlement to compensation in the form of a lump sum under the 1988 Act. The court dismissed the application with costs.