Fellowes v Military Rehabilitation and Compensation Commission

This case concerned an appeal to the High Court of Australia by Ms Fellowes against the Military Rehabilitation and Compensation Commission. The dispute centred on whether Ms Fellowes was entitled to compensation for a permanent impairment to her right knee, given that she had previously been compensated for a similar impairment to her left knee, and the assessment method under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) stipulated that only a single rating should be given where two or more injuries give rise to the same impairment.

The High Court was required to determine the meaning of "degree of permanent impairment" within the context of the Act and the *Guide to the Assessment of the Degree of Permanent Impairment*. Specifically, the Court had to decide whether this phrase referred to the impairment of the whole person or the impairment of a particular part of the body, and whether compensation was payable for a subsequent injury to the right knee if it did not increase the overall degree of permanent impairment already assessed from a prior injury to the left knee.

The Court reasoned that the *Guide* assesses impairment by measuring the effect on an employee's ability to function, and that the statutory scheme requires the degree of permanent impairment to be "resulting from" the injury in question. In this instance, the appellant's injury to her right knee did not increase the 10% loss of function in her lower limbs, which had already been assessed following her left knee injury. Therefore, the Court concluded that the degree of impairment did not result from the second injury as required by section 24(5) of the Act. The Court also overruled the Full Court of the Federal Court's decision in *Comcare v Van Grinsven*, which had been relied upon by the lower courts.

The appeal was allowed with costs. The orders of the Full Court of the Federal Court were set aside, and in their place, the High Court ordered that Ms Fellowes' appeal to that Court be allowed with costs. The decision of the Administrative Appeals Tribunal was also set aside, with a direction that the respondent determine the amount payable to the applicant under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) in respect of the right knee condition, assessed as a 10% degree of permanent impairment. The respondent was also ordered to pay the applicant's costs of the review by the Administrative Appeals Tribunal.