Confidential And Military Rehabilitation and Compensation Commission
[2013] AATA 804
•13 November 2013
[2013] AATA 804
Division VETERANS' APPEALS DIVISION File Number(s)
2012/5340
Re
Confidential
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 13 November 2013 Place Hobart The Tribunal’s determination is that the Administrative Appeals Tribunal has no jurisdiction with respect to the application for review lodged by the applicant on 23 November 2012.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
PRACTICE AND PROCEDURE – jurisdiction – validity and effect of election to sue for common law damages – whether PTSD separate injury – no claim for compensation under SRC Act made prior to election – election upheld – no compensation payable under s24, 25 or 27 in respect of permanent impairment - Tribunal has no jurisdiction
Safety Rehabilitation and Compensation Act 1988, ss 24, 25, 27, 44, 45, 53
Janssen v Commonwealth of Australia [1994] 2 Qd R 956
Canute v Comcare [2006] HCA 47; (2006) 229 ALR 445
Djordjevic v Australian Iron & Steel Ltd [1996] 67 SR (NSW)
Tuysn v State of Tasmania (No 2) [2008] TASSC 76
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Russell v Comcare [2000] AATA 243
Walsh v Commonwealth of Australia (1998) 145 FLR 194
REASONS FOR INTERLOCUTORY DECISION
Ms A F Cunningham (Senior Member)
13 November 2013
The applicant made a claim for compensation for medical conditions arising from a sexual assault which took place on 2 April 1990 during the course of his service in the Australian Army. The claim was refused and the applicant seeks a review of the decision by the AAT.
The claim for rehabilitation and compensation dated 22 November 2010 was made under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for permanent impairment, weekly benefits and medical expenses. A Delegate of the Military Rehabilitation and Compensation Commission (MRCC) accepted that the injury of soft tissue and bruising to the ribs, sides of the abdomen and legs was a result of the act of assault on 2 April 1990 and determined that the Commonwealth was liable for post-traumatic stress disorder with comorbid depression. The Delegate rejected liability for the other claimed physical conditions and determined that as the applicant had previously been awarded an amount of damages for noneconomic loss, he was legislatively barred under the SRC Act from any further permanent impairment and noneconomic payments for his accepted conditions. The applicant sought a review of the Delegate’s decision which was affirmed on 1 November 2012.
The matter was listed for a jurisdictional hearing regarding the validity, application and effect of an election dated 19 April 1994 with respect to compensation claims pursuant to sections 24 and 27 of the SRC Act for permanent impairment resulting from the accepted injuries.
The jurisdictional issues for the Tribunal to determine are:
1. Did the applicant make a valid election pursuant to subsection 45(2) of the SRC Act?
2. Was the election made with respect to the claimed condition of post-traumatic stress disorder (PTSD)?
3. Is the applicant statute barred from pursuing his claim under the SRC Act for compensation under sections 24, 25 or 27 in respect of permanent impairment for PTSD?
BACKGROUND FACTS
The following background facts do not appear to be in dispute.
The applicant enlisted in the Australian Regular Army on 12 July 1989 and was administratively discharged on 1 June 1992.
On 2 April 1990, whilst on a field exercise with 1 Field Regiment in New South Wales, the applicant was sexually assaulted by five members of his unit. The perpetrators were subsequently prosecuted in a civilian court and convicted of assault and/or indecent assault.
On 12 April 1994 the applicant’s former lawyers, “Stacks” wrote to the Commonwealth of Australia advising that pursuant to section 45(1) of the SRC Act, they were instructed to advise that their client has elected to sue the Commonwealth of Australia for damages rather than to seek compensation pursuant to sections 24, 25 or 27 of that Act for personal injuries arising from the assault.
The applicant, via his former lawyers, “Stacks” issued common law proceedings in the New South Wales Supreme Court against the Commonwealth. The claim for damages was made up of past and future economic loss, medical expenses and general damages i.e. pain and suffering, past and future gratuitous care, future care. At that stage no claim for compensation had been made pursuant to the SRC Act.
On 8 February 1999 Paul Ontong, Assistant Director, Reconsiderations and Appeals, Department of Defence stated:
“I am satisfied that the (applicant) meets the required 10% threshold for permanent impairment lump sum compensation as a result of his physical and psychiatric condition”.
The applicant’s common law claim was finalised via a settlement agreement and he was awarded an amount of damages in the maximum sum of $110,000 for non-economic loss pursuant to section 45 of the SRC Act.
On 22 November 2010 the applicant made a claim for compensation under the SRC Act for physical and psychological injuries attributable to the sexual assault.
APPLICANT’S CONTENTIONS
Mr Isolani made the following submissions on behalf the applicant.
He contended that the provisions of section 45 had no application in the applicant’s case for the following reasons:
·Because a claim for PTSD was never lodged in accordance with section 53 of the SRC Act, compensation was therefore not payable;
·The applicant’s legal representatives were not entitled to make the election on behalf of the applicant under the SRC Act;
·Prior to and at the time of the common law proceedings, there had never been a determination whereby “compensation was payable” because no claim had been made for initial liability or a claim for a no fault lump sum under sections 24 and 27 whereby the applicant could make an election to either accept a no fault lump sum or to sue for negligence;
·As no statutory entitlements were payable under the SRC Act, the applicant is not statute barred from making a claim pursuant to sections 24 and 27;
·Until the respondent accepted liability for PTSD in October 2011, the applicant was not precluded from been compensated for the condition pursuant to sections 24 and 27 of the SRC Act;
·The applicant’s common-law damage settlement was with respect to physical injury only and he retains the right for liability to be determined pursuant to section 24 of the SRC Act for the separate psychiatric injury which had not formed part of the statement of claim and common-law settlement;
RESPONDENT’S CONTENTIONS
On behalf of the respondent Ms Dowsett submitted:
·Section 44 of the SRC Act requires that a valid election under section 45 of the SRC Act must be made before common law proceedings can be instituted;
·There is no authority for the applicant’s proposition that an election pursuant to section 45(1) of the SRC Act can only be made by the applicant and not his legal representatives, nor is there any evidence that the election made on 12 April 1994 was made without the applicant’s authority;
·The authorities have established that it is not necessary for a claim for compensation under the SRC Act to have been made and determined prior to the making of a valid election;
·An action for damages is commenced by reference to a cause of action at common law and not by reference to an injury;
·A person who is injured as a result of a wrongful act has one, indivisible claim and that is an action for negligence. The claim is made in respect of the whole of the damage flowing from the wrongful act which includes any psychological/psychiatric problems;
·The validity of the applicant’s election made on 12 April 1994 is not open to challenge on the basis that he had not submitted a claim for compensation under the Act in respect of the injuries he sustained. The determination dated 8 February 1999 demonstrated that the threshold required by subsection 24(7) of the SRC Act was met;
·Pursuant to subsection 45(2)(b), compensation is not payable under the SRC Act in respect of any injury, as defined by the Act, which is also a consequence of the assault;
·There is no dispute that the applicant’s PTSD had not been diagnosed at the time of his common-law claim however the Particulars of Continuing Disabilities in the applicant’s Statement of Claim included references to psychiatric/mental health problems;
·Pursuant to the provisions of section 45 of the SRC Act compensation is not payable after the date of the election which is irrevocable under subsection (3);
Both counsel referred to a number of authorities in support of their submissions which are discussed below.
LEGISLATION
“44 Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
(3) If:
(a) an employee has suffered an injury in the course of his or her employment; and
(b) that injury results in that employee’s death;
subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first‑mentioned employee.
(4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1).
45 Actions for damages—election by employees
(1) Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non‑economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non‑economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non‑economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non‑economic loss suffered by the employee.
(5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non‑economic loss”.
CONSIDERATION
Subsection 45(1)(a) refers to compensation that is payable under section 24, 25 or 27. Subsection 45(1) goes on to state that:
“The employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth …”.
The Queensland Court of Appeal considered the meaning of these words in Janssen v Commonwealth of Australia [1994] 2 Qd R 956 and rejected the submissions of the Commonwealth to the effect that s45(1) required that a claim for compensation must have been made, and determined, as a precondition to the making of a valid election.
This decision was endorsed and followed by the New South Wales Full Court of Appeal in Walsh v Commonwealth of Australia (1998) 145 FLR 194. Mason P accepted that compensation can be deemed “payable” under section 45 even if no determination under sections 24, 25 or 27 has been made.
Mr Isolani submitted that the applicant had sustained separate injuries resulting from the sexual assault namely physical injury and psychiatric injury. He relied on the High Court’s determination in Canute v Comcare [2006] HCA 47; (2006) 229 ALR 445 which considered the concept of injury under the SRC Act and said at paragraph 10 that:
“… The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s24(1) of the indefinite article in the expression “an injury” reinforces that conclusion”.
Mr Isolani also referred the Tribunal to the High Court decision in Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38 which he submitted confirms that there should be separate assessments with respect to impairments suffered.
In considering the concepts of injury and impairment the High Court said in Fellowes v MRCC (supra) at paragraphs 14 and following:
“14. As this Court pointed out in Canute, "[t]he concept of 'an injury' is a term of pivotal importance in the structure of the [SRC] Act". Section 24(1) provided that where an injury to an employee results in a permanent impairment, Comcare (or in this case the Commonwealth) is "liable to pay compensation to the employee in respect of the injury". As the Court also pointed out in Canute, three observations may be made about the concept of injury:
"First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident."
15. It was not disputed that the appellant had suffered two injuries. Each injury resulted in a permanent impairment in the sense that each injury resulted in permanent damage to, or loss of the use of, a part of her body. Each injury caused damage to, or loss of the use of, a different part of the body: in one case the left knee; in the other, the right. The central question in the appeal is that presented by s 24(5) of the SRC Act: how was "the degree of permanent impairment of the employee resulting from" the second injury to be determined "under the provisions of the approved Guide"?
…
21. Once it is accepted, as it was in Canute, that the SRC Act hinges about the concept of "injury" and that "impairment" is to be identified in terms of effect on bodily parts, systems or functions, it follows that the appellant's arguments are to be accepted and the respondent's rejected. The conclusion reached by the Tribunal could be supported only by reading s 24(5) as directing, or permitting, Comcare to provide in the Guide for determination of the degree of permanent impairment resulting from an injury by reference to the pre-existing capacities of the particular applicant for compensation”.
The issue for the High Court was whether the appellant was entitled to a separate permanent impairment compensation payment for each knee injury. There was no dispute that the appellant had suffered two injuries which each resulted in a permanent impairment and the question arose as to how the degree of permanent impairment resulting from the second injury was to be determined under the provisions of the Guide. The High Court allowed the appeal holding that the appellant was entitled to separate permanent impairment compensation payment for each knee injury.
Ms Dowsett argued that the election contemplated by section 45 is not with respect to the “injury” but damages for noneconomic loss. Ms Dowsett referred the Tribunal to the decision of Deputy President Forgie in Russell and Comcare [2000] AATA 243 and in particular paragraph 35 where she stated:
“The election is not made in respect of an injury, the injury or that injury as such. An employee may "elect in writing to institute and action ... against the Commonwealth ... for damages for that non-economic-loss" (s. 45(1), emphasis added). The reference to "non-economic-loss" is not a reference to the compensation payable under ss. 24, 25 and 27 in respect of "that injury". It is a reference to "any non-economic loss suffered by the employee as a result of the injury" (s. 45(1)(b)). That is the natural reading of s. 45(1) and, in any event, compensation payable under ss. 24, 25 and 27 cannot be taken to be damages for non-economic loss. The Act itself distinguishes between compensation for impairment and compensation for non-economic loss. It does so in the language of ss. 24 and 25 on the one hand and s. 27 on the other and also draws the distinction in s. 28 relating to the compilation of the Guide”.
Deputy President Forgie went on to state at paragraph 36:
“In so far as the consequences of an election are concerned, the distinction between impairment and non-economic loss is irrelevant. Compensation is not payable "under section 24, 25 or 27 in respect of the injury" (s. 45(2)(b)). No distinction is made between the types of compensation. The words "the injury" refer back to "an injury" in respect of which compensation is payable under ss. 24, 25 or 27”.
And at paragraph 39:
“In summary, then, no compensation is payable under ss. 24, 25 or 27 in respect of an injury after an election has been made to institute an action against the Commonwealth for damages for non-economic loss in respect of that injury where two conditions are satisfied. First, compensation must be payable under ss. 24, 25 or 27 in respect of that injury and second, but for s. 44(1), the Commonwealth must be liable to pay damages for any non-economic loss suffered by the employee as a result of that injury. Having made an election, a person has no rights under ss. 24, 25 or 27. It makes no difference whether a person actually receives damages for a permanent impairment in the action for damages or whether he or she does not. Further, it makes no difference that a permanent impairment was apparent at the time of the election or only manifested itself at a later time and after the damages claim has been settled or determined”.
The applicant in that case had made his election to institute an action for damages for noneconomic loss with respect to “shrapnel wound left upper lateral buttock” which was described as the “compensable injury”. Mr Russell’s major depressive disorder which subsequently followed, was attributable to his injury which had resulted in a great deal of pain. Deputy President Forgie characterised Mr Russell’s depressive disorder as a consequence of his injury and concluded that it could not be treated as a disease, and therefore an injury that was contributed to in a material degree by Mr Russell’s employment independently of his shrapnel wound. Rather it was an impairment resulting from an injury and was not of itself an injury. At paragraph 46 she characterised Mr Russell’s depressive disorder as “one of the consequences which revealed themselves over time and which were permanent impairments.”
At paragraphs 47, and 48 Deputy President Forgie concluded:
“47. As Mr Russell made his election to institute an action for damages in respect of non-economic loss in respect of shrapnel wound left upper lateral buttock, a consequence of that election is that compensation is no longer payable under ss. 24, 25 or 27 in respect of that injury and so in respect of permanent impairments that result from that shrapnel wound. As his major depressive disorder has resulted from that shrapnel wound and is a permanent impairment resulting from that shrapnel wound, compensation under the Act is not payable in respect of it after 30 June, 1995. That is the effect of Mr Russell's having made an election under s. 45(1). Had Mr Russell not made the election, he might have been entitled to further compensation if the impairment subsequently increased by more than 10% in accordance with s. 25(4). As he made his election, Mr Russell is limited to the impairments foreseeable at the time of the settlement. That is one of the risks that is inherent in electing to pursue a common law claim.
48. Although, it makes no difference whether a person actually receives damages for a permanent impairment that was either apparent at the time of the election or later manifests itself, I note that the symptoms of Mr Russell's major depressive disorder had been identified in the Statement of Loss and Damage lodged in the District Court”.
Similarly Ms Dowsett contended that symptoms of the applicant’s PTSD had been identified in the Statement of Loss and Damage which is referred to above. Ms Dowsett contended that the findings of Deputy President Forgie in Russell and Comcare are not inconsistent with those articulated in the decisions of Canute, Fellowes and Robson which were all concerned with the definition of “injury” in the SRC Act rather than the question that arises here, being the effect of the election made under subsection 45(1) and (2).
It is clear from a reading of section 45 and the authorities that no action for damages can be made against the Commonwealth unless the applicant has first made an election in accordance with subsection 45(1). The applicant’s election, a copy of which is contained in the T Documents at T16, was treated as a valid election for his common-law action for damages for noneconomic loss arising from the sexual assault resulting in a damages award in the maximum amount of $110,000.
Ms Dowsett referred to the “once and for all rule” and to a number of decisions in support of her contention that a claim for damages at common law is made with respect to all of the damage flowing from the wrongful act. At page 446 the Court of Appeal in Djordjevic v Australian Iron and Steel Ltd (1996) 67 SR (NSW) 441:
“In my view it is not possible under the general law of civil liability referred to in s.63(1) to claim damages arising out of the personal negligence or wilful act of an employer or of some person for whose act or default an employer is responsible without of necessity suing in respect of the whole of the damage flowing from the wrongful act, that is to say, without including in the subject matter of the claim the damage suffered by reason of the injury which has been the subject of workers’ compensation. It may be that a plaintiff may produce no evidence upon one aspect of damage or upon one particular injury suffered, but that does not alter the nature of his claim which is taken in law to be one in respect of the whole of his damage flowing from the wrongful act. I do not think that I can do more than quote the passage from the judgment of Hardie J in Djordjevic v Australian Iron & Steel Ltd (6): “The law is well settled that, when a person is injured as a result of negligence or other wrongful act of another person, then he has one indivisible claim for damages. He cannot apportion or split it into sections, either in terms or limbs or periods of times or otherwise; he can only recover once and for all for physical injury and impairment to his bodily and mental health. In the recent decision of the House of Lords of Cartledge v E Jopling & Sons Ltd (7) Lord Pearce put it thus: ‘In cases of personal injury the law is clear and has been settled for many years. Although two separate actions may be brought, one for personal injury and one for damage to property, both being caused by the same negligence (Brunsden v Humphrey (8), only one action may be brought in respect of all the damage from personal injury. In 1701 in the case of Fitter v Veal or Fetter v Beale or Ferrer v Beale (9) the plaintiff after recovering damages for assault and battery discovered that his injuries were more serious than had been supposed. He sought to bring a second action for the fresh damage. It was held, however, that he had but one cause of action which had been extinguished by the judgment in the former case. That principle has never since been doubted. It has been applied daily in countless actions for damages for personal injuries. In each case the judge assesses the damages once and for all, with the knowledge that the plaintiff can get no further damages for the possible traumatic consequences, such as arthritis or epilepsy, which may occur in the years to come’”.
This principle was endorsed by Blow J in Tusyn v State of Tasmania (No 2) [2008] TASSC 76. The plaintiff, Walter Tusyn sued the State of Tasmania for damages in relation to sexual abuse that occurred in 1961 when he was 11 years old. He subsequently experienced psychiatric symptoms following a chance sighting of his abuser several years after the sexual abuse. The issues that arose for determination by His Honour were when did any cause of action arising from the psychiatric injury first accrue and the application of the 1974 Limitation Act. It was contended by the State that Mr Tusyn could not have a right of action for damages in respect of his psychiatric injury that was separate from a right of action for damages in respect of his physical injury. The State relied on the common law rule known as the “once and for all rule” that when a plaintiff becomes entitled to recover damages as a result of an act or omission on the part of the defendant, the plaintiff may obtain only one award of damages. At paragraph 12 His Honour said:
“To the best of my knowledge there is no reported Australian case in which it has been held that a tortious act resulting both physical and psychiatric injuries gives rise to two separate causes of action.”
His Honour went on to refer to the New South Wales Court of Appeal decision in the Djordjevic v Australian Iron and Steel Ltd as authority for the proposition that there is only one course of action in such a case. After referring to a number of other authorities His Honour concluded that whilst a separate cause of action accrued to Mr Tusyn each time he was sexually assaulted, when psychiatric harm developed as a result of those assaults many years later, no new cause of action accrued to him. The common law permitted him to bring only one action in respect of both physical injury and injury (or contingent injury) to his mental health.
Whilst the applicant’s PTSD was diagnosed sometime after his common-law damages claim and was therefore not identified as a condition in the Statement of Claim, it seems that the condition was a consequence of the injuries that he sustained in the sexual assault. In this way the circumstances of the development of the applicant’s PTSD are similar to those arising in the case of Russell discussed above where Deputy President Forgie considered that Mr Russell’s depressive disorder was a consequence of his injury and therefore did not constitute a separate injury that arose out of his employment.
As Deputy President Forgie held in Russell, because Mr Russell had made his election under section 45(1), he was limited to the impairments foreseeable at the time of settlement. This is one of the risks inherent in electing to pursue a common-law claim.
It is apparent that a clear objective of the inclusion of the provisions, namely sections 44 and 45, was to provide an applicant with the choice as to whether to sue for damages at common-law or under the provisions of the SRC Act. It is unlikely that Parliament intended that an applicant could effectively “double-dip” by claiming damages from the Commonwealth both at common law and under the SRC Act. At the time of the enactment of the SRC Act, the objectives were to provide both a fair system for employees and also limit the financial cost of the Commonwealth for damages arising out of employment related claims. So much is clear from the Explanatory Memorandum. At page 199 Mason P in Walsh v Commonwealth refers to the Parliamentary history of section 45 and quotes from the Supplementary Explanatory Memorandum regarding the objectives of the clause that became section 45:
“… To provide employees with an election to take either compensation for permanent impairment and economic loss under the Bill or to take a common law action for nominal economic loss only, subject to an impairment threshold of 10% of the whole person and a monetary limit of $110,000.”
The clause was further explained as follows:
“Where the employee elects to sue at common law, no amount will be paid out under the Bill for permanent impairment or noneconomic loss and the common law action will be subject to an impairment threshold of 10% of the whole person and a monetary limit of $110,000. Where an employee elects to receive compensation under clauses 24, 25 or 17, the employee will forfeit rights to sue at common law for noneconomic loss. Once an election is made either way, it is irrevocable.”
In this case the applicant received the maximum compensation payable at common law. It is not possible to dissect the damages award to ascertain what amounts were paid with respect to individual ailments. It cannot have been the intent of the legislation to allow an applicant to make an election to sue at common law, receive the maximum amount of damages payable and then have the option to make another claim against the Commonwealth for further impairments arising from the same event. This is clear from the excerpts from the Explanatory memorandum cited above.
I am satisfied that the applicant made a valid election pursuant to subsection 45(2) of the SRC Act and reject the contention it was not valid because it was not personally signed by the applicant. There is no support for Mr Isolani’s contention that the applicant’s legal representatives were not entitled to make the election on the applicant’s behalf. In line with the authorities namely, the decisions in Janssen and Walsh, I further find that the election made by the applicant to seek common law damages was irrevocable and precluded him from subsequently seeking compensation under sections 24, 25 or 27 of the SRC Act despite the fact that no claim had been made at the time of his election. It is relevant that an assessment had been made that the applicant met the required 10% threshold for permanent impairment lump sum compensation and would thus have been eligible for compensation under the SRC Act.
In accordance with the provisions of subsection 45(2)(b), the applicant’s election to sue for damages for noneconomic loss resulted in him being ineligible to seek compensation under sections 24, 25 or 27 in respect of the injury. Despite the fact that the election pursuant to section 45 is with respect to damages for noneconomic loss, I am satisfied that the applicants “injury” included his PTSD condition which was a sequela to his compensable injury and is not of itself a separate injury as a term is understood under the Act. As Deputy President Forgie found in Russell, if the applicant had not made an election under section 45(1), he might have been entitled to further compensation if the impairment subsequently increased by more than 10%. Deputy President Forgie said this consequence is irrespective of whether the applicant had in fact received damages for permanent impairment. In this case however, the applicant received the maximum compensation payable of $110,000.
In accordance with these findings it is my determination that no compensation is payable to the applicant under s24, 25 or 27 in respect of permanent impairment resulting from any injury arising out of the assault on 2 April 1990 and accordingly, the AAT has no jurisdiction with respect to the application for review lodged by the applicant on 23 November 2012.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) [Sgd]
Administrative Assistant
Dated : 13 November 2013
Date(s) of hearing 25 September 2013 Solicitors for the Applicant Mr G Isolani, KCI Lawyers Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Mr D Wilson, AGS
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