Comcare v Lilley

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.