Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 222
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1583
GENERAL ADMINISTRATIVE DIVISION )
Re PETER IRWIN Applicant
And
BORDER EXPRESS PTY LTD
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr B. Hughson, MemberDate1 April 2011
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Mr Irwin has a 20 percent permanent impairment as a result of an injury to his right lower limb. He is entitled to compensation for permanent impairment and non-economic loss in respect of his accepted injuries.
The matter is remitted to Border Express to calculate the amounts of compensation that are payable to Mr Irwin, consistent with this decision.
The parties have 14 days in which to file submissions, if any, in respect to orders for costs.
......................[sgd]........................
Mr S. Webb, Presiding Member
CATCHWORDS
WORKERS COMPENSATION - injury - permanent impairment – meaning of ‘impairment’ - degree of impairment - Comcare approved Guide - construction of instructions in Chapter 9 of the Guide concerning Tables 9.1, 9.2 and 9.7 – Principles of Assessment - procedures in Guide to be applied – ambiguity – beneficial construction preferred - decision set aside
Legislative Instruments Act 2003 s 13
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 24, 27, 28, 67
Canute v Comcare [2006] HCA 47
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Comcare v Broadhurst [2011] FCAFC 39
Comcare v Fiedler (2001) 34 AAR 237
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151
Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
I W v City of Perth (1996) 191 CLR 1
Martin v Australian Postal Corporation [1999] FCA 655
Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Page v Telstra Corporation Ltd [2004] FCAFC 80
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44
Shi v Migration Agents Registration Authority [2008] HCA 31
Sloane v Minister for Immigration, Local Government and Multicultural Affairs (1992) 37 FCR 429
Stingel v Clark (2006) 226 CLR 442
Thompson v Goold & Co [1910] AC 409
Waters v Public Transport Corporation (1991) 173 CLR 349
Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
1 April 2011 Mr S. Webb, Presiding Member
Dr B. Hughson, Member1. Peter Irwin was injured in the course of his employment by Border Express Pty Ltd – a forklift drove over his right foot. He claimed compensation.[1] Border Express accepted liability[2] and paid compensation for…
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- AGLC
- Irwin and Border Express Pty Ltd [2011] AATA 222
- Case
- [2011] AATA 222
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was the interpretation of the Comcare approved Guide concerning the Tables in Chapter 9, which detail the assessment of permanent impairment. The court was required to determine the correct procedure to be applied when assessing the degree of impairment and whether the decision-maker had correctly interpreted and applied the Guide. The ambiguity in the Guide's instructions was a central point of contention, with the court needing to decide whether a beneficial construction was appropriate.
The court found that the decision-maker had erred in their interpretation of the Comcare approved Guide, particularly in their application of the Principles of Assessment. The court held that the Guide's instructions were ambiguous and could be interpreted in more than one way. In such cases, a beneficial construction was preferred, meaning that the interpretation that favoured the injured worker was to be adopted. The court found that the decision-maker had not appropriately applied this principle, leading to an incorrect assessment of Irwin's impairment. Consequently, the decision under review was set aside, and the matter was remitted for reassessment of the compensation payable to Irwin.
Orders
Orders of the court
The decision under review is set aside and in place thereof the Tribunal decides that Mr Irwin has a 20 percent permanent impairment as a result of an injury to his right lower limb. He is entitled to compensation for permanent impairment and non-economic loss in respect of his accepted injuries.
The matter is remitted to Border Express to calculate the amounts of compensation that are payable to Mr Irwin, consistent with this decision.
The parties have 14 days in which to file submissions, if any, in respect to orders for costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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