Comcare v Lilley

Case [2013] FCAFC 121

FEDERAL COURT OF AUSTRALIA

Comcare v Lilley [2013] FCAFC 121

Citation: Comcare v Lilley [2013] FCAFC 121
Appeal from: Lilley v Comcare [2013] FCA 26
Parties: COMCARE v WAYNE PETER LILLEY
File number: ACD 9 of 2013
Judges: KERR, FARRELL AND MORTIMER JJ
Date of judgment: 1 November 2013
Catchwords:

ADMINISTRATIVE LAW – Delegated legislation – Legislative instrument – Guide to the Assessment of the Degree of Permanent Impairment – Whether prescribed criteria of impairment fix objective standards that can be applied with certainty – Whether prescribed criteria of impairment invalid – Whether medical evidence not based on clinical testing relevant to assessment

STATUTORY INTERPRETATION – “Unable” – Whether “unable” should be construed as requiring an activity to be impossible for a person to complete or perform – Leeder v Mayor of Ballarat East [1908] VLR 214

PRACTICE AND PROCEDURE – Application to amend Notice of Contention made without notice at hearing of appeal – Interests of the administration of justice – Leave to amend refused on most grounds – Costs of appeal apportioned

Legislation: Administrative Appeals Tribunal Act 1975 s 44(1)
Legislative Instruments Act 2003 (Cth) s 13(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14(1), 24, 28
Cases cited:

Akiba v Commonwealth (2013) 87 ALJR 916
Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210
Canute v Comcare (2006) 226 CLR 535
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 293 ALR 412
Comcare v Moon (2003) 75 ALD 160
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43
Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1
King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184
Lacey v Attorney-General(Qld) (2011) 242 CLR 573
Leeder v Mayor of BallaratEast [1908] VLR 214
Lidono Pty Ltd v Federal Commissioner of Taxation (2002) 191 ALR 328
Lilley v Comcare (2013) 209 FCR 275
Murphy v Farmer (1988) 165 CLR 19
Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325
Parker v Minister for Sustainability, Environment, Water, Population and Communities (2012) 205 FCR 415
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
South Australia v Tanner (1989) 166 CLR 161
Television Corporation Ltd v Commonwealth (1963) 109 CLR 59
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409

Whittaker v Comcare (1998) 86 FCR 532

Date of hearing: 6 August 2013
Date of last submissions: 6 August 2013
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 117
Counsel for the Appellant: Mr P Hanks QC and Mr A Berger
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr T Thawley SC and Mr A Anforth
Solicitor for the Respondent: Capital Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 9 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

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Comcare v Lilley [2013] FCAFC 121
Case
[2013] FCAFC 121
Decision Date

CaseChat Overview and Summary

Comcare v Lilley involved a dispute concerning the assessment of permanent impairment for compensation purposes under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Lilley, a former firefighter, sought compensation for injuries sustained during his employment, which included bilateral compartment syndrome and nerve damage. The primary issue before the court was whether the criteria in the Guide to the Assessment of the Degree of Permanent Impairment could be applied with certainty and if they were valid. The secondary issue pertained to the interpretation of the term "unable" in the context of the Act.

The court was required to determine if the prescribed criteria of impairment set out in the legislative instrument were objective and certain, and if the term "unable" should be construed to mean that an activity must be impossible for the person to complete. The court also needed to consider whether medical evidence that did not rely on clinical testing was relevant to the assessment of impairment.

The court concluded that the Tribunal had erred by misconstruing the notes to Table 9.7 of the Guide, which did not impose a requirement for clinical testing to satisfy the criteria for a 10% degree of impairment. The court held that the criteria in Table 9.7 were valid and could be applied with certainty. Regarding the term "unable," the court found no error in the Tribunal's interpretation. The court also rejected the appeal on the grounds of leave to amend the Notice of Contention, except for one new ground. The appeal was allowed in part, and the declaration made by the Court was set aside. The court ordered that Comcare pay 50% of the respondent’s costs of the appeal.

Orders

Orders of the court

1. Leave is granted to the respondent to amend his Notice of Contention to include ground 3A as it appears in the proposed amended Notice of Contention dated 7 August 2013.

2. Leave to amend the respondent’s Notice of Contention is otherwise refused.

3. The appeal be allowed in part.

4. The declaration made by the Court on 25 January 2013 be set aside.

5. The appeal otherwise be dismissed.

6. The appellant pay 50% of the respondent’s costs of the appeal, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

What follows are our reasons for these conclusions.BACKGROUND AND PROCEEDINGS The respondent, Mr Lilley, commenced work as a firefighter in 1988. His fire brigade training involved strenuous exercise including running 7 km a day and hauling heavy equipment up training towers. He reported developing pain in his legs after performing strenuous exercise and by 2005 the pain had worsened. On 1 July 2005, his then GP diagnosed him as suffering from bilateral compartment syndrome, probably caused by his work in the fire brigade, which led him to make a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 4 July 2005. From that time Mr Lilley has undergone several bouts of surgery, and has participated in rehabilitation and modified work programs, including retraining. However, by mid-2007 he was diagnosed with psychiatric problems and has not worked since August 2009. He is also a type 1 diabetic and was fitted with an insulin pump in 2007. The Tribunal found, and it is not disputed, that Mr Lilley has cooperated to the best of his ability in his rehabilitation and work placement programs, and in the compensation process. On 12 January 2009, Mr Lilley lodged a claim for compensation pursuant to s 24 of the SRC Act on the basis that his injury had resulted in permanent impairment. That claim was rejected on 20 May 2009, and the rejection was upheld on review by a decision made on 26 February 2010. Mr Lilley then sought review in the Tribunal by an application filed on 19 March 2010. There were only two matters in issue before the Tribunal: first, the degree of permanent impairment suffered by Mr Lilley as a result of the injuries Comcare accepted he has; and second, whether Comcare was liable to pay compensation by way of non-economic loss pursuant to s 27 of the SRC Act. This latter issue does not arise on the appeal. There was evidence before the Tribunal, which it appeared to accept, of two injuries. The compartment syndrome (which the Tribunal described in [1] of its reasons as “pain affecting the front and sides of both legs when running or walking”) was the principal work-related injury. The second injury — damage to the peroneal nerve — was accepted by the parties and the Tribunal to have arisen as a consequence of surgery Mr Lilley underwent to remove a neuroma of the superficial peroneal in his left leg, which was related to his compartment syndrome. The main issue before the Tribunal concerned whether Mr Lilley reached the 10% impairment threshold for his compartment syndrome injury. It was clear in the materials before the Tribunal that the damage to his peroneal nerve did not of itself result in impairment capable of meeting the 10% threshold in the SRC Act, to which we refer in more detail below; rather, the whole person impairment in respect of this injury was at a level of 2%. The Tribunal found that Mr Lilley’s compartment syndrome injury also did not meet the minimum 10% threshold for compensation set out in s 24(7) of the SRC Act. It is this finding which was critical to the outcome of the appeal before the learned trial judge and before this Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given our conclusions, it is unnecessary for us to consider the appropriateness of the declaration made by the learned trial judge, as the declaration made will be set aside.CONCLUSION AND ORDERS We agree with the learned trial judge that the Tribunal’s decision is affected by legal error because the Tribunal misconstrued the notes to Table 9.7 as imposing a requirement that there must be “clinical testing” before Mr Lilley could be found to satisfy the criteria for a 10% degree of impairment. Although it may not have been strictly necessary to do so, given this conclusion, we have in any event considered the other arguments put to us in relation to errors in the Tribunal’s decision and we have concluded none are made out. We do not agree with the learned trial judge’s findings on the invalidity of the criteria in Table 9.7, nor with the respondents’ validity argument. Our conclusion on this means the declaration made by his Honour must be set aside. Comcare’s appeal was not limited to setting aside the primary judge’s declaration in respect of the validity of the impairment tables. Comcare has succeeded in relation to the declaration but the orders made by the primary judge in favour of the respondent have been upheld. The respondent therefore succeeds in his application to have the matter remitted to the Tribunal to be heard and determined according to law. It is an outcome which Comcare unsuccessfully resisted. To reflect those considerations but also to take into account the additional time and resources expended by the appellant in having to respond, without proper notice, to the proposed amended Notice of Contention in circumstances where we have refused leave on most of the new grounds, we consider it is appropriate for the respondent to be awarded only 50% of his costs. Accordingly, the orders of the Court are:1.Leave is granted to the respondent to amend his Notice of Contention to include ground 3A as it appears in the proposed amended Notice of Contention dated 7 August 2013.2.Leave to amend the respondent’s Notice of Contention is otherwise refused.3.The appeal be allowed in part.4.The declaration made by the Court on 25 January 2013 be set aside.5.The appeal otherwise be dismissed.6.The appellant pay 50% of the respondent’s costs of the appeal, to be taxed in default of agreement. The effect of the Court’s orders is that paragraph 2 of the orders of the primary judge remitting the matter to the Tribunal, and paragraphs 3 and 4 dealing with costs, remain in operation.

Ratio Decidendi

Legal Principle Established

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