Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/355
GENERAL ADMINISTRATIVE DIVISION )
Re STEPHEN POWERS Applicant
And
NDC LTD
Respondent
DECISION
Tribunal Dr EK Christie, Member Date31 March 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Mr Powers’ whole person impairment is 10%. The Tribunal remits the matter to the respondent with a Direction that the respondent now calculate the compensation entitlements for Mr Powers in respect of his permanent impairment.
..................[Sgd].......................
EK Christie
Member
CATCHWORDS
COMPENSATION – ‘Guide to the Assessment of the Degree of Permanent Impairment’ preparation pursuant to section 28 of the Safety, Rehabilitation and Compensation Act 1988 - construction of section of Guide ‘14. Combined Values Chart’ – Interpretation of Instruments: interpretation of uncertainty in statutory instrument – expert evidence
Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 28
Whitaker v Comcare [1998] FCA 1099
Comcare v Fiedler [2001] FCA 1810
Page v Telstra [2004] FCAFC 80
Comcare v Ticsay (1992) 38 FCR 181
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Comcare v Mihajilovic [2000] FCA 285
Comcare v Roser [2002] FCA 243
Polivitte Ltd v Commercial Union Insurance Company Pty Ltd [1987] 1 Lloyds Rep 379REASONS FOR DECISION
31 March 2005 Dr EK Christie, Member 1. This is an application by Stephen Powers for a review of the decision made by the Independent Review Officer on behalf of NDC Ltd on 24 March 2003 that Mr Powers’ whole person impairment as a result of “the injury” on 21 August 2000 was less than 10%. Consequently, Mr Powers was not entitled to compensation in respect of permanent impairment.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant was represented at the hearing by Mr T Willis of Counsel instructed by Short, Flynn & Co. The respondent was represented by Mr C Clark of Counsel instructed by Sparke Helmore.
Issues before the Tribunal
4. The only issue for the Tribunal to decide was whether Mr Powers’ whole person impairment for multiple impairments arising from a single event or incident was 10% or more. This, in turn, was dependent on the interpretation and application of Table 14.1 (the “Combined Vales Charts”); the expert evidence indicates that individual impairment values did not occur at gradations of 5% or multiples of 5%.
Factual and Opinion Evidence
§ Evidence of Stephen Powers
5. On 21 August 2000, Mr Powers was carrying out his normal duties as a truck driver. He was a member of a plough crew laying fiberoptic cable on site. Mr Powers was using a length of steel pipe to loosen the chain binder on a light drum when the pipe became dislodged and flicked up, striking him on the…
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- AGLC
- Powers and NDC Ltd [2005] AATA 270
- Case
- [2005] AATA 270
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was the correct interpretation of section 14 of the 'Guide' and whether the uncertainty within this statutory instrument warranted reliance on expert evidence to determine Mr Powers' whole person impairment. The Tribunal needed to consider the statutory interpretation principles applicable to such instruments, the extent of discretion afforded to tribunals in exercising their powers under the Act, and the weight to be given to expert evidence when statutory instruments are ambiguous. This included assessing the relevance and reliability of expert evidence and how it should inform the Tribunal's decision.
In reaching its decision, the Tribunal first examined the relevant statutory provisions and the established principles of statutory interpretation. It considered the case law, including Whitaker v Comcare and Comcare v Fiedler, which provided guidance on interpreting statutory instruments and the role of expert evidence. The Tribunal held that the ambiguity in section 14 of the Guide necessitated an interpretation that aligned with the purpose of the Act, which is to provide fair and just compensation. The Tribunal found that the expert evidence provided by Mr Powers' medical experts was reliable and persuasive, leading to the conclusion that the appropriate degree of whole person impairment was 10%. The Tribunal set aside the previous decision and substituted it with its own, directing Comcare to recalculate Mr Powers' compensation entitlements based on the 10% whole person impairment assessment.
The Tribunal's final orders were that the decision under review be set aside and replaced with a decision that Mr Powers' whole person impairment is 10%. The matter was remitted to Comcare with a direction to recalculate Mr Powers' compensation entitlements based on this assessment.
Orders
Orders of the court
The Tribunal sets aside the decision under review and in substitution therefor decides that Mr Powers’ whole person impairment is 10%. The Tribunal remits the matter to the respondent with a Direction that the respondent now calculate the compensation entitlements for Mr Powers in respect of his permanent impairment.
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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