FEDERAL COURT OF AUSTRALIA
Newport v Australian Postal Corporation [2015] FCAFC 194
Citation: Newport v Australian Postal Corporation [2015] FCAFC 194 Appeal from: Re Newport and Australian Postal Corporation [2015] AATA 261 Parties: LINDA NEWPORT v AUSTRALIAN POSTAL CORPORATION File number: SAD 137 of 2015 Judges: ALLSOP CJ, BESANKO & FLICK JJ Date of judgment: 23 December 2015 Catchwords: COMPENSATION – two injuries – impairment assessed at less than 10% for each injury – no compensation payable Legislation: Safety, Rehabilitation and Compensation Act1988 (Cth), ss 4, 5A, 14(1), 24(5), 24(6), 24(7), 25(4), 25(5), 28
Administrative Appeals Tribunal Act 1975 (Cth), s 44Cases cited: Broadhurst v Comcare [2010] FCA 1034, (2010) 189 FCR 561
Canute v Comcare [2005] FCA 299, (2005) 87 ALD 11
Canute v Comcare [2006] HCA 47, (2006) 226 CLR 535
Comcare v Canute [2005] FCAFC 262, (2005) 148 FCR 232
Comcare v Lofts [2013] FCA 1197, (2013) 137 ALD 522
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Fellows and Military Rehabilitation and Compensation Commission [2007] AATA 1740, (2007) 97 ALD 220
Fellowes v Military, Rehabilitation and Compensation Commission [2008] FCAFC 140, (2008) 170 FCR 531
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38, (2009) 240 CLR 28
Re Newport and Australian Postal Corporation [2015] AATA 261
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101, (2013) 214 FCR 1Date of hearing: 27 November 2015 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: Mr LT Grey with Mr JP Mrsic Solicitor for the Appellant: Tindall Gask Bentley Lawyers Counsel for the Respondent: Mr P Hanks QC with Mr MJ Gollan Solicitor for the Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 137 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LINDA NEWPORT
AppellantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGES:
ALLSOP CJ, BESANKO & FLICK JJ
DATE OF ORDER:
23 DECEMBER 2015
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 137 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LINDA NEWPORT
AppellantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGES:
ALLSOP CJ, BESANKO & FLICK JJ
DATE:
23 DECEMBER 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE COURT
The Applicant, Ms Linda Newport, is a former employee of the Australian Postal Corporation (“Australia Post”). She worked for Australia Post for some 19 years.
While employed with Australia Post she suffered separate injuries to her right and left shoulder. She claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act1988 (Cth) (the “Compensation Act”). In July 2013 she was assessed as having:
·a 5% permanent impairment to her…
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Details
- Case
- [2015] FCAFC 194
- Decision Date
CaseChat Overview and Summary
In the case of Newport v Australian Postal Corporation, the Federal Court of Australia was asked to consider the compensation payable to Ms. Newport for two separate shoulder injuries. The Administrative Appeals Tribunal had previously dismissed her claim for compensation, concluding that each of her injuries resulted in an impairment of less than 10%, and therefore, according to the provisions of the Compensation Act, she was not entitled to any compensation. The central issue before the court was whether the impairments from each of Ms. Newport's injuries should be assessed separately and, if so, whether the Tribunal's approach to the assessment was correct.
The court examined the legal principles established in previous cases, particularly the High Court decisions in Canute v Comcare and Fellowes v Australian Postal Commission, which emphasized the need to assess the degree of impairment separately for each injury. The court also considered the relevant provisions of the Guide to the Assessment of Permanent Impairment, which instructed that where two or more injuries give rise to different whole person impairments, each injury should be assessed separately. The court found that the Tribunal had correctly applied the Guide but ultimately concluded that the statutory provisions meant that, since neither injury resulted in an impairment exceeding 10%, Ms. Newport was not entitled to compensation.
The reasoning of the court was grounded in the statutory framework and the principles established in prior cases, which mandated separate assessments of impairments for multiple injuries. However, the court acknowledged that this approach could disadvantage claimants, as it did in Ms. Newport's case. Despite this, the court held that the Tribunal's application of the law was correct, and the appeal was dismissed. The appellant was ordered to pay the costs of the respondent.
The court examined the legal principles established in previous cases, particularly the High Court decisions in Canute v Comcare and Fellowes v Australian Postal Commission, which emphasized the need to assess the degree of impairment separately for each injury. The court also considered the relevant provisions of the Guide to the Assessment of Permanent Impairment, which instructed that where two or more injuries give rise to different whole person impairments, each injury should be assessed separately. The court found that the Tribunal had correctly applied the Guide but ultimately concluded that the statutory provisions meant that, since neither injury resulted in an impairment exceeding 10%, Ms. Newport was not entitled to compensation.
The reasoning of the court was grounded in the statutory framework and the principles established in prior cases, which mandated separate assessments of impairments for multiple injuries. However, the court acknowledged that this approach could disadvantage claimants, as it did in Ms. Newport's case. Despite this, the court held that the Tribunal's application of the law was correct, and the appeal was dismissed. The appellant was ordered to pay the costs of the respondent.
Orders
Orders of the court
1. The appeal be dismissed.
2. The Appellant pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The decisions in Canute and Fellowes again came before a Full Court of this Court in Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101, (2013) 214 FCR 1. Again the need separately to assess the degree of impairment resulting from each injury was emphasised. Mr Robson had been a member of the Australian Army. Over the years he suffered three injuries which attracted a right to claim compensation, namely:·post-traumatic stress disorder arising from service in Rwanda with the United Nations Peacekeeping Force from August 1994 to February 1995; ·aggravation of that disorder resulting from a parachute accident suffered in February 2004, when he suffered fractures to both ankles, his pelvis and coccyx and a duodenal haematoma; and ·a major depressive disorder arising from the parachute accident.The Administrative Appeals Tribunal declined separately to assess compensation for either the aggravation of the post-traumatic stress disorder or the major depressive disorder “because it felt that the medical evidence provided it with only a final overall assessment of the applicant’s psychological state.” Cowdroy, Buchanan and Katzmann JJ concluded that the approach of the Tribunal “was contrary to the directions given by the High Court in Canute and Fellowes”: [2013] FCAFC 101 at [24], (2013) 214 FCR at 6. In so concluding, their Honours reasoned in part as follows: [31] The respondent attempted to defend the approach taken by the AAT by referring to an instruction in the Guide in the following terms:6. Combined Impairments… Where two or more injuries give rise to the same impairment a single rating only should be given.[32] That is the same instruction with which the High Court dealt in Fellowes. The first difficulty with the argument is that the AAT made no reference to this instruction and did not implement it. Rather than concluding that the applicant’s MDD gave rise to the same impairment as the PTSD, the AAT declined to assess that separate condition at all upon the basis that the applicant’s overall condition reflected whole person impairment of 50%. The AAT then concluded that, as liability to that level had already been accepted, no further compensation was payable.The decision of the Tribunal was, accordingly, set aside.The facts of the present case In rejecting the claim for compensation for the two injuries to Ms Newport’s right and left shoulders, the Tribunal concluded as follows:[37] Returning to the facts of this matter, there is no dispute that the applicant has suffered two separate shoulder injuries. It follows from Canute, in our view (and from the terms of the Guide, properly construed) that the provisions of the Guide must be applied separately to each injury, and the resulting impairments cannot be combined to arrive at an overall impairment rating, as they could if both impairments had resulted from a single injury.[38] Unfortunately for the applicant, this has the consequence that, as the High Court in Canute envisaged would occur in some cases, the construction of the Act adopted by the court operates to her “disadvantage”. That is because neither of her injuries has resulted in a permanent impairment of more than 10%, and therefore subs 24(7) dictates that her impairments are not compensable.[39] This is regrettable from the applicant’s point of view, but for the reasons we have given, we consider it to be the inevitable consequence of the High Court’s decision in Canute.Concurrence is expressed with that reasoning.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The assessments made in respect to Ms Newport’s impairments in July 2013, it may be noted, were carried out pursuant to the “approved Guide” prepared pursuant to s 28, namely the Guide to the Assessment of Permanent Impairment (edition 2.1) (the “Guide”). That Guide, in turn, contains “Principles of Assessment”, including the following:Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated for each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the combined values chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added ……Where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.The Guide further provides in the Introduction to Part II of Division 1, which relates to “Upper Extremities”, as follows:The WPI rating for one extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14, where the notes appearing prior to Table 9.14 are to be followed.“WPI” is an acronym for “whole person impairment”.The decision in Canute & its aftermath The decision relied upon by the Tribunal, and a decision of seminal importance to the manner in which the Compensation Act is administered, is the decision of the High Court in Canute v Comcare. Mr Canute had been employed by the Department of Defence as a civilian contractor engaged in cleaning and maintenance duties. In 1998 he injured his back. Comcare awarded him lump sum compensation for 12% whole person impairment under s 24 of the Compensation Act. Mr Canute lodged a second claim for compensation in respect of an adjustment disorder with anxious and depressed mood arising from his back condition. The Tribunal assessed the whole person impairment arising from this adjustment disorder as 10%. But the Tribunal further found that the back injury and adjustment disorder combined produced a whole person impairment of 21%. Of central relevance were s 25(4) and s 25(5) of the Compensation Act which at the time provided as follows:(4)Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.(5)If Comcare has made a final assessment of the degree of permanent impairment of an employee constituted by a hearing loss, no further amounts of compensation are payable to the employee in respect of a subsequent increase in the hearing loss, unless the subsequent increase in the degree of binaural hearing loss is 5% or more.Since the whole person impairment of 21% did not result in a 10% increase on the 12%, the Tribunal found that no further lump sum compensation was payable.
Ratio Decidendi
Legal Principle Established
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