Harmat and Department of Family and Community Services - [2000] AATA 661

DECISION AND REASONS FOR DECISION [2000] AATA 661

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/486

GENERAL ADMINISTRATIVE DIVISION )
Re Ms Lilly Harmat

Applicant

And Department of Family and Community Services
Respondent
DECISION

Tribunal Mr R.P. Handley, Senior Member

Date4 August 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a new decision that, in accordance with the Social Security Act 1991, s.1184 (1), that part of the Applicant's compensation settlement which results in the compensation part of the Applicant's lump sum compensation payment, being $15,000, be treated as not having been made.

.....[Sgd] R P Handley.....
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/486

GENERAL ADMINISTRATIVE DIVISION )

ReMs LILLY HARMAT
Applicant

AndDEPARTMENT of FAMILY and COMMUNITY SERVICES
Respondent

ORDER TO AMEND WRITTEN DECISION

TribunalMr R P Handley, Senior Member
Date28 August 2000
PlaceSydney
WHEREAS:

The Tribunal released a written decision in this matter, dated 4 August 2000; and
It has come to the Tribunal's attention that details on the cover sheet containing the decision were incorrectly stated;
The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL ORDERS:

That the decision should read as follows:
DecisionThe Tribunal sets aside the decision under review and substitutes a new decision that given the special circumstances of the Applicant's case it is appropriate to exercise the discretion in s 1184 (1) of the Social Security Act 1991 by treating that portion of the lump sum settlement as not having been made, which results in the compensation part of the lump sum being $15,000.
..............……..............................
R P Handley
MEMBER

CATCHWORDS
Social Security – lump sum preclusion period – compensation settlement – whether special circumstances exist
Social Security Act 1991, s1184(1)
Re Sales and Secretary, Department of Family and Community Services (1999) AATA 963
Re Secretary, Department of Social Security and Beel (1995) 38 ALD 736
Secretary, Department of Social Security v Banks (1990) 23 FCR 416
Re Fowles and Secretary, Department of Social Security (1995) 38 ALD 152
Re Ivovic and Director-General of Social Services (1981 3 ALN N95
Secretary, Department of Social Security v Smith (1991) 30 FCR 56
Secretary, Department of Social Security and McFetrish (1998) AATA 367
Kertland v Secretary, Department of Family and Community Services (1999)
Beadle v Director-General of Social Security (1985) 60 ALR 225
Groth v Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v a'Beckett (1990) 26 FCR 349
Social Security, Department of v Hulls (1991) 22 ALD 570
Department of Social Security v Hales (1998) 153 ALR 259

REASONS FOR DECISION

R P Handley, Senior Member

This is an application by Lilly Harmat ("the Applicant') for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 1 March 1998 which affirmed a decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") and an authorised review officer to impose a preclusion period from 15 March 1995 to 16 September 1997 and recover $20,637.43 from the Applicant's compensation settlement in respect of Social Security benefits paid during that period.
At the hearing, the Applicant was represented by her solicitor, Anthony Williamson, and the Respondent was represented by Susan Mantaring of Centrelink. The evidence before the Tribunal comprised the documents lodged pursuant to s37 of the Administration Appeals Tribunal Act 1975 (" the T Documents"), together with exhibits tendered by the parties. The Applicant and Mr. Williamson gave sworn evidence.
BACKROUND
The Applicant, who is aged 42, was injured in a motor vehicle accident on 15 March 1995. On 31 August 1998 her compensation claim was settled for $107,500.00 including $15,000.00 stated to be in respect of past and future economic loss. The Applicant received $62,075.77 after payment of the Social Security charge, medical expenses, and legal costs and disbursements.
Pursuant to s17 of the Social Security Act 1991 ("the Act"), the Respondent treated 50 per cent of the compensation settlement of $107,500.00 as being the "compensation part of the lump sum". Then, pursuant to s1165, the Respondent divided this by average weekly earnings of $410.00 to give a lump sum preclusion period of 131 weeks, beginning on the day that the loss of earning capacity began, which was 15 March 1998, and ending on 16 August 1997. The Respondent determined that Social Security benefits totalling $20,637.43 had been paid to the Applicant during the preclusion period, which the Respondent was entitled to recover from the compensation settlement. This was the Social Security charge imposed.
The Respondent's decision to recover $20,637.43 from the Applicant's compensation settlement was made on the 4 August 1998 and confirmed by the original decision-maker on 30 September 1998. The Applicant sought further reviews. The decision was affirmed by an authorised review officer on 12 January 1999 and by the SSAT on 1 March 1999. On 6 April, the Applicant lodged an application for a review by the Administrative Appeals Tribunal.
APPLICABLE LEGISLATION
The Applicant does not dispute how the lump sum preclusion period was calculated. However, she contends that there are special circumstances to justify exercise of the Secretary's discretion to treat the whole or part of her compensation settlement as not having been made. Section 1184 (1) of the Act states:
1184(1)For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a)not having been made; or
(b)not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

THE APPLICANT'S EVIDENCE

The Applicant said she left Oaks Flat High School at the end of Year Seven, in 1973. She married in 1975 and had three children, now aged twenty-one, twenty-four and twenty-six, but separated from her husband about six years ago. She has never worked in either full-time or part-time employment.
On 15 March 1995, the Applicant was injured in a motor vehicle accident. Following the accident, she experienced pain in the neck and back, but pain in her arms only became apparent later. She still has pain in her neck and back, and also ongoing headaches. She used to do tapestry but cannot do this now because her arms are numb.
The Applicant said the most serious injury was to her neck. After her neck pain did not resolve, she had a C6/C7 cervical fusion performed by Dr John Matheson at the Prince of Wales Hospital in August 1997. She pointed to the scarring on her neck from the surgery.
The Applicant remembered that the settlement of her compensation claim took place following a conference in Sydney lasting about two hours. The defendant agreed to pay the sum of $107,500.00 on the following basis (A-A):
1. Non-economic loss (28%)  $64,500.00
2. Past out of pocket expenses                $9,000.00
3. Future out of pocket expenses            $4,000.00
4. Economic loss past and future            $15,000.00
5. Costs   $15,000.00
6. Total   $107,500.00.

The Applicant said that of the settlement, she received $62,075.77 (A-B). However, from this amount, she had various loans to repay and bills to pay:
·     Loan from her solicitors:  $5,199.00     (A-EE)
·     Loan from Frank Stevanec:  $19,600.00    (A-C)  (Used to pay medical bills and travelling
expenses)
·     Loan from Dianne Restovska:  $1000.00      (A-D)  (Used to pay bills for her car etc)
·     Loan from Zoran Suleski:  $3000.00      (A-E)       (Her son-in-law loaned money to enable
the Applicant to visit her sick mother in Melbourne)
·     Loan from AVCO  $14,705.00    (A-F)  (Used for the purchase of a car)
·     Loan from Waters Store  $3,971.00     (A-G)  (In respect of the purchase of furniture)
·     Loan from Charter Mercantile  $1478.41      (A-H)  (In respect of payment of her youngest
daughter's mobile phone bill - the phone
     was in the Applicant's name)
·     Loan from Dunn and Bradstreet  $865.00         (A-I)  (In respect of her daughter's mobile phone bill)
·     Payment of her daughter's (her second child's)      $10,000.00  wedding expenses
·     Loan from Moree Hot Spar  $2000.00  (Treatment and accommodation expenses for
the Applicant)

Payment of Dapto Physiotherapy Account $202.00 (A-J)
Loan from loan G&C Manchester $550.00 (A-K) (Gift of gold to daughter)
Loan from George Grigoris $4830.00 (A-L) (Used to make purchases for her daughter's wedding)

The Applicant said that as a result of the injuries from the motor vehicle accident, she has trouble sleeping and cannot drive any more because of pain in her hands and back. Her husband is using her car at the moment. She is currently taking Panadeine Forte for pain. She also has other non-accident related health problems. She suffers from Meniere's Disease, which makes her dizzy so that she does not know what she is doing. In cross-examination, the Applicant said that last month she suffered dizziness and fainting on two or three days a week. She suffers deafness in the left ear. She had a hysterectomy about four years ago and her gall bladder removed about two years ago, from both of which operations she has recovered.
The Applicant said she is currently receiving Newstart Allowance, which is not activity tested because of her current health problems. She said she could not look for work because of pain following the motor vehicle accident.
The Applicant said she lives alone, renting a Housing Commission house ($82.60 per fortnight). She receives no financial assistance from her children. She has no assets apart from her car - a Mitsubishi Lancer worth $8000 to $9000, her household furnishings, personal effects and clothing. She has no money in the bank but no debts except about $1000 outstanding on the debt owed to George Grigoris.
ANTHONY WILLIAMSON'S EVIDENCE
Mr Williamson said he has been in practice for nearly 20 years and a partner for 16 years, specialising in personal injury work. He acted on behalf of the Applicant in relation to her motor vehicle accident compensation claim and attended the settlement conference with her in Sydney, which lasted between one and two hours. He referred to the component parts of the settlement of $107,500.00 (A-A) noting the $15,000.00 paid in respect of economic loss. Mr Williamson said that although the Applicant had not been in any paid employment, the Court, as is usual in such a case, would have been likely to make an award in respect of economic loss even if this had been difficult to calculate. He said, in his opinion, the figure of $15,000.00 included in the settlement as a result, was a proper and reasonable amount in the Applicant's case.
In cross-examination, Mr Williamson said he was aware of the 50 per cent formula used in calculating the applicable lump sum preclusion period in such cases. He advised the Applicant of this and that the Respondent would seek to recover approximately $20,000.00 from the settlement in respect of Social Security benefits paid during the preclusion period. Mr Williamson also advised the Applicant of the appeal process by which a review of a Departmental decision might be sought and the possibility of challenging a decision on the ground of the special circumstances of her case.
SUBMISSIONS
APPLICANT
Mr Williamson, for the Applicant, said the Applicant does not dispute the application of the 50 per cent rule and the calculation of the preclusion period. The Applicant also accepts the need for such a rule and the reasons for it, for example to prevent "double dipping". However, Mr Williamson said that in some cases it was necessary to examine more closely the terms of settlement. He referred to the Tribunal decision in Re Secretary, Department of Social Security and Beel (1995) 38 ALD 736, where the settlement figure was examined to see the component parts. In that case, the Tribunal accepted that there had been no artificial juggling of the figures - it was clear that the economic loss component was less than half the total settlement. The Tribunal decided it was unfair to apply an arbitrary formula because this would lead to an unfair result.
Mr Williamson said the facts of Beel were similar to those in the Applicant's case, and it was proper and reasonable to examine the components of the Applicant's settlement and take account of the fact that only $15,000.00 was paid in respect of economic loss. He sought to distinguish the Federal Court decision in Secretary, Department of Social Security v Banks (1990) 23 FCR 416, where the facts were very different and, in particular, unlike in the Applicant's case, liability was a live issue. Similarly, the decision in Re Fowles and Secretary, Department of Social Security (1995) 38 ALD 152 should be distinguished – there again liability was a live issue and, furthermore, the Applicant's injuries were much more serious and there was a work history.
Mr Williamson referred to the decision in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, where the Tribunal decided that a strict enforcement of the law would be unjust, unreasonable or otherwise inappropriate. In Secretary, Department of Social Security v Smith (1991) 30 FCR 56, the test applied by the Federal Court was whether application of the 50 per cent formula would lead to a clearly unjust result.
Mr Williamson said that in the Applicant's case there were other matters which should be considered part of the special circumstances of her case. Apart from the health problems suffered as a result of her motor vehicle accident, the Applicant's other health problems also reduced her economic capacity. Furthermore, it should be noted that the Applicant's compensation settlement had been largely spent in repaying debts. The Applicant has no significant assets, lives in a house rented from the Housing Commission and is dependent on Social Security benefits.
Mr Williamson said that if the preclusion period had been calculated on the basis of the actual $15,000.00 economic loss component of the Applicant's settlement, then the Social Security charge would have been approximately $5,000.00 and not $20,000.00, a difference of $15,000.00, which was a considerable sum to the Applicant.
RESPONDENT
Ms Mantaring, for the Respondent, referred the Tribunal decision in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, where special circumstances were described as "unusual, uncommon or exceptional". Ms Mantaring contended that the Applicant's circumstances were not special in this sense. Ms Mantaring referred to von Doussa J's discussion of the application of the 50 per cent formula in Banks (supra) where, at paragraph 20, he said the formula "should be viewed as a broad attempt to balance the interests of the recipient of the payment with the competing interests of others in the community".
Ms Mantaring also referred to von Doussa J's comments in Secretary, Department of Social Security v a'Beckett (1990) 26 FCR 349 about the difficulty, which often arises when a compensation claim is settled by negotiation, of dissecting the settlement into component parts in any meaningful way. In Social Security, Department of v Hulls (1991) 22 ALD 570, O'Loughlin J. concurred with these comments.
Ms Mantaring submitted that the approach adopted in Fowles (supra) should be followed. In that case, Bulley J. decided that the fact that the compensation claim was settled out of court because there were difficulties in proving economic loss, should not be considered a special circumstance.
Ms Mantaring argued that the decision in Beel (supra) was not consistent with the other decisions and should be disregarded. She noted that in Secretary, Department of Social Security and McFetrish (1998) AATA 367, the Tribunal decided that a relatively small loss of earnings component did not negate the application of the 50 per cent formula.
Ms Mantaring submitted that the Applicant's expenses in relation to her compensation claim were not unusual. The 50 per cent formula was intended to take account of such expenses. Ms Mantaring also submitted that the Applicant's medical conditions would not restrict her capacity to undertake gainful employment in the longer term. Ms Mantaring referred to the medical report by Dr. E. Wassenaar of Health Services Australia dated 8 October 1999 (R1). Dr Wassenaar considered that the Applicant was "temporarily unfit for all work for three to six months because of her depression and back pain". He said her other conditions do not prevent suitable work.
With regard to the Applicant's financial situation, Ms Mantaring noted the Applicant's rental payments of $82.60 per fortnight are low compared to private rentals and that she is currently receiving the maximum rate of Newstart Allowance for a single person of $337.00 per fortnight including a Pharmaceutical Allowance of $15.00. Ms Mantaring said the Applicant's financial circumstances could not be considered special when compared with other Social Security recipients.
Finally, with regard to Mr Williamson's submission as to the injustice of applying the 50 per cent formula in the Applicant's case, Ms Mantaring contended that there was no element of uniqueness about the Applicant's case. She submitted that there should be consistent application of the 50 per cent formula and, in the Applicant's case, there were no special circumstances which would justify overturning application of the formula.
CONSIDERATION OF LAW AND FINDINGS
The issue to be determined by the Tribunal is whether, pursuant to s 1184 (1) of the Act, there are special circumstances which justify exercise of the Secretary's discretion to treat the whole or part of the compensation settlement as not having been made. Although the Act provides no guidance as to the meaning of "special circumstances", this has been the subject of statutory interpretation by the Federal Court and the Tribunal.
RELEVANT CASE LAW
The leading case law is probably Beadle v Director-General of Social Security (1985) 60 ALR 225, a decision of the Full Federal Court. In Beadle, the Court did not think it possible to lay down precise limits or precise rules. It would depend on the circumstances of a particular case as to whether they constituted special circumstances. Moreover, even though the phrase 'special circumstances' lacks precision, it "is sufficiently understood in our view not to require judicial gloss" (at 228).
In that case, the Court affirmed the decision of the Tribunal under review in that case, Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which the Tribunal, whilst acknowledging that the phrase 'special circumstances' is "incapable of precise and exhaustive definition", said, nevertheless, that the circumstances "must have a particular quality of unusualness that permits them to be described as special" ( at 3).
In Groth v Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J, after referring to the Federal Court's decision in Beadle (supra, 1985), observed that special circumstances:
"Would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case…it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

In the Federal Court decision in Secretary, Department of Social Security v Hales (1998) 153 ALR 259 at 267, French J said of the "concept" of special circumstances that the evident purpose "is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness" in the event of a rigid application of the law. "It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words."
The Tribunal then considered the line of cases which deal specifically with the exercise of discretion under s 1184 (1) where it is alleged that the economic loss component of the compensation settlement is significantly less than the 50 per cent of the compensation settlement which is used to calculate the lump sum preclusion period. In Banks (supra) at 424, von Doussa J said of the 1947 Act equivalent of s.1184 (1):
"The paragraph seeks to eliminate double dipping in a practical way which operates effectively in a straightforward manner. In the very nature of an arbitrary provision, sub para (i) could possibly entail a degree of unfairness in a particular case…"
At 422, von Doussa J quotes the Second Reading Speech on the relevant Social Security Amendment Bill by the Honourable Mrs Kelly MP (Hansard, 13 April 1988, p.1497):
"Settlements of lump sum compensation particularly in the worker's compensation jurisdiction are being manipulated to obscure the economic loss component and to avoid recovery of Social Security payments. To prevent this abuse the Minister announced on 8 Febuary 1988 that, for personal injury settlements made by agreement or by consent order, 50% of the lump sum compensation will be deemed to be in respect of economic loss. This Bill gives effect to this proposal. O'Loughlin J. quoted von Doussa J.'s analysis with approval Halls (supra) at 578."
In Smith (supra), von Doussa J once again examined this issue. In this instance, he considered whether the 1947 Act equivalent of s.1184 (1) could be used to address an apparently unjust outcome reached as a result of the application of the 50 per cent formula. It had been argued that the equivalent of s.1184 (1) could not have been intended to permit the overriding of an injustice that was the product of legislation itself. Von Doussa J said, at 60, that he was
"Unable to accept this argument. The fallacy of the argument lies in its failure to read s 156 as part of the overall scheme…"
He continued [later], at 61:
"The arbitrary nature of the provisions of s 152 would have been quite apparent to the legislature…At the same time the legislature must have recognised that from time to time a case must arise where the degree of unfairness to a recipient of a payment by way of compensation would bring about an unreasonable or unjust result which was outside that which could be justified by the practical expediency of the arbitrary nature of the provisions in ss 152 and 153."
Thus, it is clear from von Doussa J's analysis that s1184 (1) can be used to address an injustice arising as a result of the application of the 50% formula. The issue is one of degree.
In Fowles (supra), Presidential Member Bulley J decided s1184 (1) should not be applied in the case of an out of court settlement of $333,000.00, exclusive of costs, where no component for lost earnings or lost capacity to earn was identified. He said, at 163, that an
" approach of seeking to dissect the lump sum into components by disguising it under the phrase "special circumstances" pursuant to s.1184 should not be countenanced."
However, in Beel (supra), s1184 (1) was applied in a case that involved a worker's compensation settlement of $60,000.00 of which $10,500.00 was designated as compensation for loss of income and earning capacity. The Tribunal noted, at 738:
"No evidence was placed before the tribunal which would allow an inference to be drawn that the quantum of each component of the consent order was in any way manipulated to achieve a specific result with implications for social security benefits. In fact the quanta arrived at under paragraph 3 (I) and (2) of the consent order were taken from the Table, Compensation for Permanent Injuries which forms part of the Workers Compensation Act 1987 (NSW) No 70. I find that there was no manipulation of the individual components of the order."
The Tribunal, at 739, decided that "it would be unfair, unjust and quite inappropriate under there circumstances" to leave the compensation part of the lump sum at $30,000.00 (ie. 50 per cent of $60,000.00). It therefore exercised its discretion under s 1184 (1) to:
"treat that portion of the lump sum as not having been made which results in the compensation part of the lump sum being $10,500."
In McFetrish (supra), Ms McFetrish received a compensation settlement of approximately $23,00.00. Applying the 50 per cent formula to this sum, the Department imposed a charge of $3,113.06 in respect of parenting allowance paid during the preclusion period. The defendant's solicitors in respect of the compensation settlement stated that the economic loss component was $2,000.00. The Tribunal did not, however, consider it appropriate "to dissect the lump sum" (at paragraph 14), and did not consider the financial disadvantage to Ms Fetrish and the fact that she had had the care of a disabled child sufficient to establish special circumstances.
Re Sales and Secretary, Department of Family and Community Services (1999) AATA 963 involved a compensation settlement of $35,000.00 which, under the 50 per cent formula, resulted in the compensation part of the lump sum used to calculate the preclusion period being $17,500.00. The actual economic loss component of the settlement was $10,000.00. The Tribunal decided that this and other circumstances were not sufficiently "special" to warrant exercise of the s1184 (1) discretion.
Finally, of more recent cases, there is the Federal Court decision in Kertland v Secretary, Department of Family and Community Services (1999) FCA 1596. The facts of this case concerned the operation of the Transport Accident Act 1986 (Vic) which, in the words of Merkel J, at paragraph 14:
"operated to preclude the applicant from being awarded damages in respect of pecuniary loss (which included loss of earnings and loss of earning capacity) resulting from incapacity to work during the period of 18 months after the accident."
After analysis of the case law and, in particular, of von Doussa J's judgement in Smith (supra) quoted above, Merkel J decided that:
"In the present case, it was open to the AAT to find that no part of the compensation the applicant received related to a period during which social security payments were payable with the consequence that, as there has been no "double payment", there were "special circumstances" for the purposes of s1184 (1). In such circumstances the exercise of the discretion under s1184 (1) would not be inconsistent with the policy and purpose of the statutory scheme."

CONSIDERATION OF THE APPLICANT'S CASE

There is no dispute that the Applicant received a compensation settlement of $107,500.00 following a motor vehicle accident. The Tribunal finds that this sum included $15,000.00 in respect of "Economic loss past and future" (T12). The Tribunal notes the identification of this component of the settlement appeared in the offer letter from the defendant's solicitors in the District Court proceedings initiated by the Applicant. The Tribunal accepts Mr Williamson's sworn evidence that this was a proper and reasonable amount in the Applicant's case, given that she has never been engaged in paid employment. The Applicant was receiving Social Security benefits at the time of the accident on 15 March 1995 (T5). The Tribunal therefore finds there was no manipulation of the settlement figure to obscure the economic loss portion of the settlement and, since the economic portion is clearly identified, no dissection of the overall lump sum compensation payment is necessary.
Mr Williamson told the Tribunal that he was aware of the application of the 50 per cent rule in calculating the lump sum preclusion period in such cases. He advised the Applicant of this and the likelihood of the Respondent seeking to recover approximately $20,000.00 from the compensation settlement in respect of Social Security benefits paid during the preclusion period. He also advised the Applicant of the process by which a review of the Respondent's decision might be sought and the possibility of challenging the decision on the ground of the special circumstances of her case.
The Tribunal notes the Applicant's ongoing ill-health, in part unrelated to the motor vehicle accident, for example the dizziness consequent on her suffering Meniere's Disease, and her depression. She also has ongoing pain in the back and hands related to the accident. The Tribunal notes the Health Services Australia medical assessment by Dr E Wassenaar dated 8 October 1999 (R1), who stated that the Applicant was temporarily unfit for work for three to six months. The Applicant's evidence is that she is unable to look for work because of pain following the accident.
The Tribunal also notes the Applicant's financial situation. She rents a her Housing Commission house and has no other assets other than her car, household furnishings and personal effects. She is currently entirely dependent on Social Security payments for her income.
In the Applicant's case, application of the 50 per cent formula resulted in the compensation part of the lump sum being $53,750.00. However, the identified component in respect of economic loss past and future was $15,000.00 ie. 14 per cent of the total settlement. If the $15,000.00 were used in the calculation of the lump sum preclusion period, the charge in favour of the Respondent would be significantly less - probably of the order of $5,500.00 to $6,000.00, instead of $20,637.43. The Tribunal agrees with the view expressed by Mr Williamson that, in the Applicant's situation, the difference of $15,000 is a considerable sum of money.
In the Tribunal's view, the operation of the 50 per cent formula gives rise to such an unreasonable and unjust result in the Applicant's case – when considered against the background of her medical and financial situation – that application of the s1184 (1) discretion is warranted. In the Tribunal's view, such an exercise of discretion is consonant with von Doussa J's analysis of the law in Smith (supra) at 61, cited above. Such an outcome would also be in line with the policy of the Act, since no double dipping would result, and the identification of the specific economic loss component did not involve any manipulation of the figures so as to avoid or lessen a Social Security payback obligation, nor is any difficult dissection of the compensation settlement necessary.
The Tribunal therefore concludes that given the special circumstances of the Applicant's case, it is appropriate to exercise the discretion in s1184 (1) of the Act by treating that portion of the lump sum settlement as not having been made, which results in the compensation part of the lump sum being $15,000.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  5 June 2000
Date of Decision  4 August 2000
Representative for the Applicant              Mr A Willamson
Representative for the Respondent        Ms S Mantaring