Fellowes v Military Rehabilitation and Compensation Commission

[2009] HCATrans 19

[2009] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 2008

B e t w e e n -

ROBYN CHRISTINE FELLOWES

Applicant

and

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 FEBRUARY 2009, AT 11.27 AM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC:   If the Court pleases, I appear with my learned friend, MR R.F. KING‑SCOTT, for the applicant.  (instructed by Slater & Gordon Lawyers)

MR T.M. HOWE, QC:   May it please your Honours, I appear with my learned friend, MS L.A. WALKER, for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Griffin.  Can we just clear up the affidavit questions?  You rely on ‑ ‑ ‑

MR GRIFFIN:   Mr Mason’s.

HAYNE J:   And your opponent relies on the affidavit of Mr Ontong.

MR GRIFFIN:   Yes, your Honour.

HAYNE J:   Can we take both those affidavits as read without objection?

MR GRIFFIN:   Yes, your Honour.

HAYNE J:   Yes, Mr Griffin.

MR GRIFFIN:   As your Honours will be well aware, most jurisdictions now provide or have legislation in which personal injuries compensation is assessed according to a table.  The object is apparently to promote uniformity in awards to avoid the type of award variation that used to occur in relation to common law damages.

HAYNE J:   Or supposed simplicity of administration, Mr Griffin, yes.

MR GRIFFIN:   And perhaps as well, yes, your Honour.  Such tables do not ordinarily describe the injuries in medical terms, rather, they tend to use descriptions relating to function and impairment following the American Medical Association tables.  Whatever form the tabulation happens to take, if one encountered a situation in this case in which a claimant sustained an injury to one leg of such severity that it entitled the claimant to compensation and then in a later separate event sustained an injury of similar severity to the other leg, one would be very reluctant, we would submit, to apply the tabulation in such a way as to deny compensation to the second injury.

HAYNE J:   Understanding that to be the underlying point you wish to make, there are two things particularly I would be glad to have argument about.  One, where exactly do you say the Full Court departs from what this Court held in Canute and, second, why is this a point of continuing importance?  Deal with those in such order and such manner as you see best, but they are two particular aspects I would be interested in.

MR GRIFFIN:   Well, your Honour, if I could go straight to that.  Your Honours have seen what Justice Moore said about the conflict between what appears in the joint judgment and what appears in Canute.  If I could take your Honours to that first.  What he said was that the joint judgment really amounts to using the guide in such a way as it brings about a derogation of the fact that the Act provides for ‑ ‑ ‑

HAYNE J:   I had understood page 37, paragraph 50, two injuries can give one impairment, which he identifies by reference to Van Grinsven, as being the essence of the point you sought to make, but do I misunderstand that?

MR GRIFFIN:   The point we seek to make is this, that what Canute provides is that the guide cannot operate in such a way as to derogate from the Act.  The Act provides for compensation for injuries in section 28(1).  Here this woman obviously had such an injury because the previous identical injury was compensated.  What Justice Moore said was:

The Guide is a construct authorised by s 28.  However it can operate, and only operate, to set out criteria to determine the degree of a permanent impairment.  That is apparent not only from the terms of s 28 but also the terms of s 24(5).  It follows, in my opinion, that the Guide cannot operate to deny the existence of a permanent impairment, given that the stated role of the Guide is to assist in determining the degree of the impairment.  This is evident from s 24, which provides that where an employee has suffered an injury (as that term is defined in s 4) that results in permanent impairment (as that composite term is defined in s 4), and provided the level of impairment is no less than 10% (s 24(7)), the employee is entitled to compensation in respect of that injury.  The Guide cannot derogate from this statutory entitlement.

In this case the court was concerned with a tabulation that appears at page 28 of the application book and the elusive part is the 10 per cent provision.  Your Honours see its headed “Limb Function – Lower Limb”:

10Can rise to standing position and walk BUT has difficulty with grades and steps.

That is in the guide which is authorised by section 28, which appears at page 26, and that section authorises Comcare to prepare a document called a guide and has set out therein the criteria by reference to which the degree of the permanent impairment is to be determined and the methods by which the degree is to be expressed as a percentage. 

The reason it is said that the applicant obtains no compensation in respect of the right leg injury here is that the guide in table 9.5 which is headed “Limb Function”, provides a loss of function requirement as the determinate of the required 10 per cent level of impairment and, as your Honours see, that says:

Can rise to standing position and walk BUT has difficulty with grades and steps.

Ms Fellowes’ left leg injury answered that description and so did the subsequent right leg injury.  The table does not make it clear as to whether it is intended that that stated impairment may be satisfied by injuries to each leg or whether it only gives rise to the one nominated loss of function so that it can only be satisfied once.  The joint judgment held that the description could only be satisfied once and for that reason held that no compensation was payable. 

Justice Moore would not have construed it that way.  He would have emphasised the use of the term “lower limb” in the singular, as your Honours see, and he would have that the loss of function could be satisfied by the satisfaction of that requirement by each leg.  Additionally, of course, the impairment to Ms Fellowes’ right leg is not in fact the same impairment as that of the left leg.  It only happens to answer the same description of the loss of function that the guide selects there as the determining factor for the presence of which will represent a 10 per cent impairment. 

However, the case involves a much more significant issue than the simple issue of construction, although, in our submission, the resolution of the more significant issue resolves the issue of construction.  Despite the uncertainty that appears from reading the provision in the guide, this case ought, in our submission, to have been resolved in the applicant’s favour because of statements that this Court made in Canute, that your Honour Justice Hayne will recall.

Canute is at tab 1 of the authorities bundle.  It is the case of Canute v Comcare and Canute, as has been pointed out, did not involve the same factual circumstances as those in the present case.

HAYNE J:   Mr Griffin, I think we have grasped the way in which you say there is an error.  Can you come at once perhaps to why this is of continuing importance?  We have competing views about statistics.  One point that I was struck by in the papers is the contention in your reply at paragraph 4, page 64, about effect in relation to the GARP M table.

MR GRIFFIN:   Your Honour, can I say this.  In relation to the point that your Honour is raising generally, your Honours have an affidavit from Mr Mason that shows that there are not an inconsiderable number of cases yet to be litigated, notwithstanding that there is a new edition of the guide.  Furthermore, the new edition of the guide does not apply across the board.  It does not apply, for example, to military personnel because they opposed the second edition of the guide, and there are other operations of the second edition as well.

Your Honour, more importantly, the promulgation of the second edition of the guide does not overcome the problem that the instant case creates.  The relevant page in the second edition is at page 85 of the bundle, and probably page 84 is the more important part.  At about point 3 on that page it states:

A single assessment only may be made under Table 9.7, irrespective of whether one or two extremities are affected by the injury.  The impairment assessed is of overall lower extremity function, rather than that of individual extremities.

BELL J:   I am sorry, Mr Griffin, what page is this in the bundle?

MR GRIFFIN:   It is 84, your Honour, at about point 3.

BELL J:   Thank you.

HAYNE J:   That may in turn present a question, may it not, of how that intersects with section 24, in particular, injury results in permanent impairment where “impairment” is defined as:

the loss, the loss of the use, or the damage or malfunction, of any part of the body ‑ ‑ ‑

MR GRIFFIN:   Yes, that is correct.  But, furthermore, the Act has not been amended.  This is only an amendment to the guide.  So that all this really does is to declare in the guide what the joint judgment held to be the proper construction of the table.  They held that a single assessment only was possible.  So it really does not answer the basic question.  Because the amendment has been made to the guide and not to the Act, the fundamental issue as to whether the guide can be used in such a way as to deny an entitlement that the claimant would otherwise have to compensation is not removed by that stipulation.

All that does is make it clear that the problem cannot be resolved, as we contend presently it can be, by a process of construction.  The amendment simply renders it perfectly clear that the intent of the guide is to

achieve the effect of the joint judgment; that is to say, you can only have a single assessment.  The new formulation simply raises even more squarely than the previous one did the issue whether, as Justice Moore put it, the guide can make provision to remove the statutory entitlement of a claimant who has otherwise a 10 per cent disability which brings about an entitlement to the compensation provided for by the Act.

HAYNE J:   Mr Griffin, it may be of assistance, I think, if we heard from Mr Howe, at this point.

MR GRIFFIN:   If your Honour pleases.

HAYNE J:   Yes, Mr Howe.

MR HOWE:   If the Court pleases, there are two principal objections to the grant of special leave and they are the points identified by your Honour Justice Hayne.  If I could deal with those in reverse order.  Firstly as to the question of whether the pointed issue is of sufficient general importance to warrant a grant of special leave.  Your Honours, table 9.5 has been present in the guide and part of the compensation scheme applicable to Commonwealth employees for 16 years since the Act commenced in 1988.  It generated very few cases before the Administrative Appeals Tribunal or the Federal Court.  In fact, in the whole of the 16 years, despite its application to literally hundreds of thousands of Commonwealth employees, there are a handful only of cases which considered the precise point which the applicant wishes to agitate and, more importantly, since 2004, your Honours, the significance or implications of the proper construction of table 9.5 have actually diminished further.

HAYNE J:   But, Mr Howe, does this case tender the question of which is the dog and which is the tail?  In particular, does this case tender the question of whether section 24(1) dictates the outcome rather than any question of construction of the table on the footing that there is an injury, the injury results in a permanent impairment as defined because the injury results in the loss of use or damage or malfunction to a part of the body, namely – forgive me, I cannot remember whether it was the right or the left leg which was the second injury but ‑ ‑ ‑

MR GRIFFIN:   The right leg.

HAYNE J:   The right leg which was the second injury.

MR HOWE:   We would say not, your Honour.  Firstly, that is not the way in which the argument went below and that is not the point that was resolved by the judgment below, but, secondly, in any event, as Canute itself made clear, it is section 24(5) which has primacy, notwithstanding section 24(1).  If the terms of section 24(1) are satisfied, then the determination of the degree of assessable, compensable permanent impairment is to be made under the provisions of the guide.  In Canute it was accepted that section 24(5) in fact has primacy and the fact that section 24(1) does not drive one toward a necessary payment of compensation in the event of permanent impairment is reflected as well, your Honours, in section 28(5) of the Act which appears at page 63 of the bundle.  Your Honours will see that it is there specifically provided that:

The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.

So, it is clear, in our submission, that section 24(1) does not ordain a result whereby any employee who suffers a compensable injury which leads to a permanent impairment is thereby entitled to a payment of compensation.  The question of the assessment of the degree of compensable impairment is to be made under the provisions of the guide in accordance with section 24(5).

BELL J:   But was not Justice Moore’s point that 24(5) directs you to the guide with respect to the degree of permanent impairment, not to whether by reason of the injury to the left leg there has been permanent impairment when one looks at the two together.  That is the point, is it not?

MR HOWE:   Yes, that is the point of Justice Moore’s approach and we say in response that, in fact, section 24(5) directs one to the guide for the assessment of the degree of compensable impairment.  As well as the degree of impairment, one assesses the degree to which that impairment is assessable as compensable by reference to the guide, and that is the point:  Comcare shall determine the degree, in effect, of compensable permanent impairment by reference to the guide. 

BELL J:   Understanding that is the point, is not that point raised under the second edition, paragraph 9.7 as well as 9.5?

MR HOWE:   We would say not, your Honour, and, indeed, the second edition of the guide makes clearer what the position was pursuant to Van Grinsven under the first edition of the guide.  Could I take your Honours, for instance, to page 84 of the bundle of materials.

BELL J:   But you are taking us to the guide and so does that not squarely raise the point, if Justice Moore is right?

MR HOWE:   Not, in our submission, because one interprets the second edition of the guide according to the principles of assessment as well as the tables and under the second edition the principles of assessment provide, at page 84 at about point 3 on the page:

A single assessment may be made under Table 9.7, irrespective of whether one or two extremities are affected by the injury.

HAYNE J:   And if that table had been engaged in this matter, how would that help you, because it hinges about “affected by the injury” and you must first find the injury?  Here there were two.

MR HOWE:   Yes, and that was, frankly, accepted ‑ ‑ ‑

HAYNE J:   Just so.  So how would this help to resolve the issue even if it applied?  Does it not illustrate that the basal question remains tendered regardless of the move to a new edition?

MR HOWE:   We would say, no, because under both editions of the guide it is made clear that table 9.5 of the first and table 9.7 of the second are each distinctive in that they require an assessment of a degree of compensable impairment by reference not to body part but by reference to body function, and the body function selected is that of walking, which is something which obviously is required or requires the use of both limbs.  This is the approach that the Full Federal Court took in Van Grinsven.  The Full Court in that case contradistinguished the distinctive methodology of table 9.5, which directs attention to walking, with, for instance, tables 9.2 and 9.4, which make it clear that attention is directed to the effects on the whole person of the individual limb.

Your Honour, it was put against us that the issue agitated here remains live under GARP M.With respect, we say that is simply not the case.  It was not in the bundle of authorities or materials, but could I hand up to your Honours a copy of the relevant principle of assessment under GARP M.  If your Honours could turn to page 54.  This is in the GARP M guide and under the heading “Step 4”, calculation of functional impairment by reference to table 3.2.2.  Your Honours will see it provides that the table:

measures the loss of function relating to the two lower limbs together.  Only one rating is to be given from this table for any condition or combination of conditions.  To attract a particular rating, the degree of impairment must be greater than that described at all lower levels.

So, again, we say that one would interpret GARP M not only by reference to the table, but the principle of assessment articulated there and, again, the outcome of any appeal, if special leave is granted, will not have implications for the proper construction of GARP M.

The second point we make about the diminished significance, your Honours, is this, that since February 2006 table 9.5 has ceased to apply to civilian employees in respect of all and any claims lodged after that time.  Your Honours, so far as we are aware, and it is apparently not disputed otherwise, there is not a single case pending in the AAT or in the Federal Court which directs attention to the discrete issue of construction involving table 9.5 which the applicant seeks to agitate.

Next, your Honours, the second principal point of opposition is that the applicant enjoys insufficient prospects of success because there is not sufficient doubt as to the correctness of the judgments below.  In our submission, Canute is plainly distinguishable, it is not binding and, indeed, is not even influential as to the proper construction of table 9.5 having regard to the provisions of the Act that involve section 24 and section 28 and the like.  In our submission, the plurality judgment below is plainly correct.  It accords with the ordinary meaning of the words “results from” because prior to the second injury the applicant answered the description as against the 10 per cent level of impairment and after the second injury she answered the description as against the second level of impairment.

In the judgment of the plurality below there is a reference to the position which would obtain even in a common law damages claim.  At page 32 of the application book, paragraph 33 of the plurality judgment, there is reference to the case Performance Cars Ltd v Abraham.  In that case, your Honours, there was damage to, I think, a front panel of a Rolls Royce and a judgment obtained and subsequently there was damage to a back panel of the Rolls Royce.  As a result of the first damage the Rolls Royce required a respray and the owner of the Rolls Royce took action to recover damages, including the cost of the respray, from the second tortfeasor.  It was held that the Rolls Royce was in need of a respray at the time of the second accident and, accordingly, no damage with respect to respray resulted from the second accident.

In our submission, that accords with the ordinary meaning of “results from” in section 24(1).  The approach in the plurality judgment also accords with the plain statement in the first edition of the guide at page 5 to the effect that where one injury results in multiple impairments under table 9.5 only a single rating should be given.

HAYNE J:   Do their Honours in the plurality engage with the reasoning in Canute 226 CLR 535 at 548, paragraphs 37 and 38?

MR HOWE:   Pardon me a minute.

HAYNE J:   Paragraphs 37 and 38, page  548 of the report, Mr Howe.

MR HOWE:   Yes. 

HAYNE J:   In particular, for example, the second‑last sentence at paragraph 37:

That “whole person” approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an “injury”.  The statutory criterion of an “injury” is antecedent to the concept of “whole person” impairment –

And the distortion of which the Court speaks in paragraph 38.  Is that engaged within the reasoning?

MR HOWE:   Yes, it is, your Honour.  If I could just take the Court to that.  At paragraph 29 of the plurality judgment at page 31 of the bundle their Honours noted that:

the High Court emphasised that the Act does not create a liability to pay compensation in respect of “impairment” but in respect of “injury” –

and that one could not beguile the distinction by characterising something which answered the description of an injury as an impairment and thereby denying permanent impairment compensation.  They referred to the fact that injury is not used in a global sense but a distinctive sense.  Then at page 30 of the plurality judgment, their Honours frankly accepted that the applicant had suffered two injuries to different parts of her body where as in Canute, their Honours go on to say in paragraph 31 the:

workplace incident gave rise to two separate injuries . . . Canute does not dictate the result in the present case. 

Your Honours, in our submission, their Honours frankly accepted the primacy of injury, but they said that when one approaches the provisions of the guide in accordance with the Act, it is not every permanent impairment that might happen to result from an injury which warrants a payment of compensation.  It is only those which are assessed as compensable in accordance with the guide and when one looked at the distinctive language of table 9.5, their Honours held that the decision in Van Grinsven was correct.

Your Honours, finally, we would say that the result obtained in the judgment below accords with the general proposition that the guide does not seek at all to achieve perfect compensation.  For instance, it is absolutely clear that the tables are incremental; 10 per cent and 20 per cent.  If their

permanent impairment falls between 10 and 15 per cent, it might even be 19 per cent, then payment of compensation is not made.  Likewise, section 28(5) specifically provides that an assessment might result in a rating of zero. 

Therefore, in our submission, no question of disentitlement arises.  So it is not as though we seek a result whereby 24(1) confers an entitlement and then by reference to the guide the employee is disentitled.  Rather, we seek to read section 24(1) in its context including section 24(5), section 28(5) and the provisions of the guide.  May it please, those are the matters we say in opposition.

HAYNE J:   Thank you, Mr Howe.  There will be a grant of special leave to appeal in this matter.  Are counsel agreed on how long this case would take on appeal?  It would seem to me to be less than a day.  Is that plain?

MR GRIFFIN:   Yes, your Honour.

HAYNE J:   Will it take more than half a day?

MR HOWE:   I think it only took half a day in the Full Federal Court, your Honour, we would think half a day is sufficient.

MR GRIFFIN:   Yes, we would agree with that, your Honour.

HAYNE J:   If I say half a day to a day, is that something that counsel feel comfortable with?  If counsel are not quite aware of what is happening, they are being verballed ‑ ‑ ‑

MR GRIFFIN:   We would think a half a day to a day would be more than adequate.

HAYNE J:   Thank you.

MR HOWE:   Likewise, your Honour.

HAYNE J:   Thank you.

AT 11.59 AM THE MATTER WAS CONCLUDED