Return to Work Corporation of South Australia v Summerfield - [2021] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v SUMMERFIELD
[2021] SASCFC 17
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Doyle)
11 March 2021

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS
Appeal from a decision of the Full Bench of the South Australian Employment Tribunal (SAET).
The Full Bench of the SAET dismissed an appeal from Cole DP who had found that the respondent’s lumbar spine impairment was not sustained as a result of the respondent’s impairment to his hip resulting from a fall at work in 2016, such that the two impairments did not arise from the “same trauma” for the purpose of s 58(6) of the RTW Act but, nevertheless, went on to find, following the judgment of this Court in Return to Work Corporation (SA) v Preedy [2018] SASFC 55, (2018) 131 SASR 86 (Preedy), that combination under s 22(8)(c) of the RTW Act was permissible because the impairments arose from the “same injury or cause”.
The issue before this Court on appeal is whether the SAET erred in its construction of the composite phrase “same injury or cause” in s 22(8)(c) of the RTW Act, having regard to the ratio of this Court’s judgment in Preedy and whether this Court’s example in the reasons in Preedy concerning the operation of s 22(8)(c) of the RTW Act was inconsistent with its ratio.
Held per Stanley J (Kourakis CJ and Doyle J agreeing), dismissing the appeal:
1. The reasons in para [55] of Preedy are consistent with the reasons in the preceding paragraph and form part of the ratio of the decision. The implication in s 22(8)(b) of the RTW Act is that impairments from related injuries or causes are not to be disregarded in making an assessment of permanent impairment. Injury and cause are distinct concepts although related in the context of s 22(8).
2. The word “cause” in s 22(8)(c) of the RTW Act should not be construed narrowly. Impairments which are not from the same injury but are from the same cause are to be assessed together or combined to determine the degree of impairment.
3. Section 22(8)(c) of the RTW Act posits a statutory test of “cause”, not a common law test of causation. It is an evaluative test to be applied adopting a common-sense approach.
4. Section 22(8)(c) of the RTW Act deals with combination. The principle enshrined in s 22(10) of the RTW Act is not related to the concept of combination in s 22(8)(c). There is nothing in Preedy which warrants construing “cause” as equivalent to “an event, or series of events out of which a work injury arises”
5. A narrow construction of s 22(8)(c) of the RTW Act would result in it being more difficult for workers to be assessed as seriously injured and would not provide a reasonable balance between the interests of workers and employers in accordance with s 3(2)(c) of the RTW Act.
Return to Work Act 2014 (SA) S 22(8)(b), s 22(8)(c), s 22(8)(d) s 22(8)(e), s 22(8)(f), s 22 (10), s 22(7), s 22(7)(b), s 56, s 58; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86, applied.
Marrone v Employers Mutual Ltd (as an agent for WorkCover Corporation of South Australia) 116 SASR 501, distinguished.
Return to Work Corporation of South Australia v Mitchell (2019) 135 SASR 315; WorkCover Corporation v Sherriff Unreported judgment, Supreme Court of South Australia, Full Court, 1 October 1986 No. S5831, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v SUMMERFIELD
[2021] SASCFC 17

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Stanley J.
STANLEY J:
Introduction
This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (SAET). The appeal concerns the proper construction of the phrase “same injury or cause” in s 22(8)(c) of the Return to Work Act 2014 (SA) (RTW Act).
The Full Bench of SAET dismissed an appeal from Cole DP[1] who had found that the respondent’s lumbar spine impairment in 2017 was not sustained as a result of the respondent’s impairment to his hip resulting from a fall at work in 2016, such that the two impairments did not arise from the “same trauma” for the purpose of s 58(6) of the RTW Act but, nevertheless, went on to find, following the judgment of this Court in Return to Work Corporation of South Australia v Preedy,[2] (Preedy) that combination under s 22(8)(c) of the RTW Act was permissible because the impairments arose from the “same injury or cause.”[3]
[1] Summerfield v Return to Work SA (McCormack Freightlines Pty Ltd) [2019] SAET 106.
[2] [2018] SASFC 55, (2018) 131 SASR 86.
[3] Summerfield v Return to Work SA [2020] SAET 106.
At issue on the appeal is whether the SAET erred in its construction of the composite phrase “same injury or cause” in s 22(8)(c) of the RTW Act, having regard to the ratio of this Court’s earlier judgment in Preedy and whether the example given in this Court’s reasons in Preedy concerning the operation of s 22(8)(c) forms part of the ratio of that case and, in any event, was inconsistent with the ratio.
In short, the appellant contends that Preedy is correctly decided but the example given in the reasons of the Full Court is inconsistent with the ratio of that case.
Factual background
On 18 May 2016 the respondent sustained injuries arising from a fall in the course of employment. The respondent fractured his left femur and injured his left hip. The respondent underwent a total hip replacement. Subsequently, he underwent revision surgery and a replacement hip was inserted. He claimed weekly payments of compensation. That claim was accepted for the fracture to the left femur and the hip replacement.
In a medical report dated 30 November 2017, Dr Long reported that the respondent had an obvious limp favouring the left leg with a well healed surgical scar at the left hip. He recorded the respondent as suffering pain in the left hip region, together with tenderness over L5-S1 centrally and to the left of the mid‑line and extending to the left buttock. There appeared to be a five to ten millimetre shortening of the left leg. He went on to express the view that the lumbar complaints, including pain, were most likely the cause of the respondent’s left hip injuries and resulting problems, including altered gait and limp, shortening of his left leg resulting from the left hip replacement, left leg wasting due to pain in the left leg and changes in the way he was using the muscles in that leg.
The respondent made a further claim for compensation for his left hip, left leg, lumbar spine, scarring and altered gait. The appellant accepted the claim for the lower back injury but rejected a further claim for compensation for injuries to the left hip, left leg, lumbar spine, scarring and altered gait. That determination was disputed and consent orders were subsequently made in the SAET accepting the claim in respect of the altered gait as a consequence of the compensable injuries of the fractured femur and total left hip replacement.
The respondent made a claim for lump sum compensation pursuant to s 58 of the RTW Act. The appellant determined the claim on the basis of a 31 per cent whole person impairment (WPI) for the left femur, left hip and surgical scarring for the injury on 18 May 2016 and a WPI of eight per cent for the lumbar spine injury dated 9 May 2017.
Relevant provisions of the RTW Act
In order to understand the issues in the appeal it is necessary to set out relevant provisions of the RTW Act and those parts of the reasons of the Full Court in Preedy concerned with the construction and application of s 22(8)(c) of the RTW Act.
Section 22 of the RTW Act provides:
22—Assessment of permanent impairment
(1)     This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2)     An assessment under this section—
(a)must be made in accordance with the Impairment Assessment Guidelines; and
(b)must be made by a medical practitioner who holds a current accreditation under this section.
(3)     The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
(4)     The guidelines under subsection (3)—
(a)must be published in the Gazette; and
(b)may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c)must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and
(d)may specify procedures to be followed in connection with an assessment; and
(e)may have effect on a day specified by the Minister by notice in the Gazette; and
(f)may be amended or substituted by the Minister from time to time.
(5)     The Minister must, before publishing or amending the Impairment Assessment Guidelines, consult with professional associations representing the class or classes of medical practitioners who hold accreditations under this section.
(6)     An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect.
(7)     An assessment of the degree of impairment resulting from an injury—
(a)must not be made until there is evidence that the injury has stabilised; and
(b)must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c)must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
(8)     An assessment must take into account the following principles:
(a)if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b)impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c)impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d)impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e)in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f)in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g)any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre‑existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines;
(h)assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
(9)     A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of whole person impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines.
(10)   Subject to subsections (11) to (15) (inclusive), only 1 assessment may be made in respect of the degree of permanent impairment of a worker from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently develop or manifest itself or develop after the assessment of impairment is made will not be assessed).
(11)   For the purposes of subsection (10), an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioners and their assessments combined so as to create 1 assessment under that subsection.
(12)   Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury.
(13)   Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court).
(14)   An interim decision under section 21 will not be taken to constitute an assessment for the purposes of subsection (10).
(15)   Subsection (10) does not apply in any circumstances prescribed by the regulations.
(16)   For the purposes of this section, the Minister must establish an accreditation scheme after consultation with the Advisory Committee.
(17)   The accreditation scheme—
(a)will provide for the accreditation of medical practitioners who are determined, under the scheme, to be suitably qualified to undertake assessments for the purposes of this section; and
(b)will work on the basis that the Minister will issue the accreditations; and
(c)may provide for the suspension or cancellation of accreditation by the Minister on specified grounds; and
(d)may be amended or substituted by the Minister from time to time after consultation with the Advisory Committee.
(18)   An accreditation will be issued by the Minister—
(a)for a period specified by the Minister; and
(b)on conditions determined by the Minister.
Section 56 of the RTW Act relevantly provides:
56—Lump sum payments—economic loss
(1)     Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for loss of future earning capacity by way of a lump sum.
…
(7)           For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines).
(8)     Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable).
Section 58 of the RTW Act provides:
58—Lump sum payments—non‑economic loss
(1)     Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.
(2)     An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%.
(3)     An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm.
(4)     Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(5)     Regulations made for the purposes of subsection (4) must provide for compensation that at least satisfies the requirements of Schedule 8 taking into account the assessment of whole person impairment undertaken for the purposes of this Division.
(6)     If a worker suffers 2 or more work injuries arising from the same trauma—
(a)the injuries may together be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines (and assessed together using any combination or other principle set out in the Impairment Assessment Guidelines); and
(b)the worker is not entitled to receive compensation by way of lump sum under subsection (4) in respect of those injuries in excess of the prescribed sum.
(7)     If—
(a)a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and
(b)compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines.
(8)     For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines).
(9)     Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable).
(10)   Subsection (9) does not apply in any circumstances prescribed by the regulations.
(11)   Compensation is not payable under this section after the death of the worker concerned.
Return to Work Corporation of South Australia v Preedy
In Preedy I considered the construction of s 22(8)(c). Kourakis CJ and Parker J agreed with the construction I adopted. Relevantly, I said:[4]
[4] [2018] SASCFC 55 at [49]-[51], [54]-[68], (2018) 131 SASR 86 at 103-104, 106-109.
49.The principal tension in the Act for the purposes of this appeal is between the provisions in s 22(8)(c) and s 58(6). In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ said:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Citations omitted].
50.These provisions can be reconciled so that the Act functions in an harmonious and coherent fashion by recognising the different work each performs. Section 22(8)(c) requires that, under the Act, in assessing the degree of WPI, impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Guidelines). Section 58(6)(a) provides that for the purposes of assessing an entitlement to lump sum compensation for non‑economic loss, where a worker suffers two or more injuries arising from the same trauma, the injuries may together be treated as one injury to the extent set out in the Impairment Assessment Guidelines (assessed together using any combination or other principle set out in the Guidelines).
51.It can be seen that, pursuant to s 58(8), in determining a worker’s entitlement to compensation for non-economic loss by way of a lump sum, the degree of the worker’s permanent impairment is to be assessed in accordance with s 22. The principles relevant to that assessment are generally prescribed in s 22(8). Section 22(8)(c) prescribes the approach to be taken in assessing impairments from the same injury or cause. That principle is reinforced by the terms of s 22(8)(b) which provides that in undertaking an assessment of WPI, impairments from unrelated injuries or causes are to be disregarded. The implication in s 22(8)(b) is that in undertaking an assessment of the degree of WPI regard is to be had to impairments from related injuries or causes. Accordingly, s 22(8)(c) prescribes the approach to be adopted in assessing impairments from the same injury or cause. By way of contrast s 58(6)(a) prescribes the approach to be taken in determining an entitlement to lump sum compensation for non-economic loss where a worker suffers two or more injuries arising from the same trauma. “Trauma” is defined in s 4(1) of the Act to mean an event, or series of events, out of which a work injury arises. “Impairments” and “injury” are related but distinct concepts. “Impairment” is a condition which results from an “injury”. I have set out the definition of “injury” earlier in these reasons.
…
54.I accept that on its face there appears to be some blurring of the distinction between “injury” and “impairment” given that the definition of “injury” in the Act includes reference to “impairment”. But that definition is conditioned by the opening words of s 4(1) of the Act, namely, “Unless the contrary intention appears”. I consider there is a contrary intention to be found in s 22 and s 58. In the case of s 22 and s 58, I consider it is clear that “injury” and “impairment” are used in the different sense I have explained. To construe these provisions by reference to the definition of injury would be circular. In these provisions there is a distinction between causes and consequences. That construction is reinforced by the reference in s 22(8)(c) to “the same injury or cause”. That expression should be construed ejusdem generis. The words “injury” and “cause” convey a related concept which is concerned with the thing or event from which an impairment results, but they are not necessarily identical otherwise there would have been no need for the Parliament to refer to a “cause”. The relevant “cause” is the cause of the impairments. This construction is also reinforced by consideration of the terms of s 22(8)(d), (e) and (f) all of which refer to “impairment” resulting from physical or psychiatric injury. It is unnecessary for the purposes of the disposition of this appeal to consider the full extent of the meaning of this term.
55.However, the causal test propounded in s 22(8)(c) can be demonstrated by way of illustration where a worker suffers an injury to her right knee at work which causes her to favour that leg with the result that the added pressure on the left knee causes injury to that knee. The worker suffers two separate impairments: one to each leg. Those impairments can be said to be from the same injury or cause, namely, the injury to the right knee. But even if the impairment to the left leg is not from the injury to the right knee, the impairment of the left leg can be said to have been caused by the injury to the right knee.
56.Further, in the context of this case, when considering the “cause” of any impairment resulting from the provision of surgical or medical treatment for a work injury, regard should be had to the provisions of s 22(7)(b). That impairment resulting from medical or surgical treatment of a work injury is to be treated as being from the same cause as the work injury is the necessary implication of the terms of s 22(7)(b).
57.If the Tribunal finds as a matter of fact that a worker suffers more than one impairment from the same injury or cause, those impairments are to be assessed together or combined to determine the degree of impairment of the worker in accordance with s 22(8)(c).
58.Where a worker brings a claim for lump sum compensation for non-economic loss pursuant to s 58 (or a claim for loss of future earning capacity pursuant to s 56) and the Tribunal finds that the worker has suffered two or more work injuries arising from the same trauma, those injuries may be treated as a single injury to the extent set out in the Impairment Assessment Guidelines and assessed together using any combination or other principles set out in the Guidelines.
59.That is an approach required in conducting lump sum assessments under either s 56 or s 58 and is a separate statutory injunction from the requirement of s 22(8)(c).
60.In my view the Full Bench was correct in identifying s 22 as being the leading and dominant provision in relation to undertaking assessments of whole person impairment under the Act. So much is apparent from the structure of the Act and the inclusion of s 22 in Part 2, the opening words of s 56(1) and s 58(1) and the terms of s 56(7) and s 58(8).
61.Section 58 cannot be construed as providing the only basis upon which the assessment of WPI can occur by combination or assessment together. Section 22(8)(c) requires the assessment together or combination of impairments from the same injury or cause in determining, inter alia, a claim pursuant to s 58. As s 58(8) makes clear, the assessment of the worker’s WPI for the purposes of determining his or her entitlement to compensation pursuant to s 58 is to be undertaken in accordance with s 22.
62.This construction is not undermined by the terms of s 22(10) which is mirrored by the terms of s 58(9) and s 56(8). These are provisions of limitation. They apply to a prescribed category of assessments, namely, assessments of impairment from one or more injuries which arise from the same trauma. They provide that where a worker suffers permanent impairment from one or more injuries (including consequential injuries) arising from the same trauma, there is only one assessment of WPI to be made. That has the consequence that once the assessment has been undertaken if any injury subsequently develops or manifests itself after the assessment of WPI has been made, there will be no further assessment of WPI in respect of that subsequently developed or manifested injury. But this provision of limitation operates only in respect of impairments from one or more injuries that arise from the same trauma. It does not apply to assessments of impairments from more than one injury which do not arise from the same trauma. The operation of s 22(10) is not inconsistent with the construction I have given to the operation of s 22(8)(c) or s 58(6). It is not a provision which affects the textual analysis of s 22(8)(c). Section 22(10), s 56(8) and s 58(9) address a different subject from s 22(8)(c).
63.Further, I do not consider that the reasoning adopted in Marrone compels a different construction. Marrone considered the proper construction of the expression “arising from the same trauma” in s 43(6) of the 1986 Act. At the relevant time, “trauma” was defined in the 1986 Act to mean an event, or a series of events, out of which a compensable disability arose. The question was whether two discrete compensable disabilities arose out of the same series of events, within the meaning of that statutory term, if one or more events in that series were common, but not the exclusive, causes of both injuries. At the time s 43(6) was in comparable terms to s 58(6) of the Act. The relevant difference was that instead of the expression “work injuries”, s 43(6) referred at that time to “compensable disabilities”, and “injury” and “injuries” were referred to as “disability” and “disabilities”. White J, with whom Sulan J agreed, held that s 43(6) was confined in its operation to the circumstance in which one and the same event, or series of events, causes multiple compensable disabilities. With the exception of disabilities arising from a series of events, it had no application to traumas suffered successively. White J distinguished the meaning to be attributed to the expression “rights arising from the same trauma” in s 54(5) and (7)(b) of the 1986 Act. His Honour referred to a series of authorities on the meaning of that provision and said:
The application of the reasoning of Manser v Spry by this Court in Wardleworth v Green, Beckwith and, to a lesser extent, Hillier, in relation to s 54(5) and (7)(b), suggests that “rights” will arise from the same trauma if a disability in respect of which damages are paid, and in respect of which compensation could have been paid, had a common cause, even though other causes were disparate events. That supports the construction for which Mr Marrone contended.
In my opinion, the reasoning in Wardleworth, Beckwith and Hillier is not decisive of the proper construction of s 43(6). Section 54(7)(b) refers to “rights” arising from the same trauma as gave rise to the “rights” to compensation, whereas s 43(6) refers to “compensable disabilities” arising from the same trauma. The emphasis in the former is on the legal entitlement and the bundle of circumstances giving rise to it, whereas in the latter it is on a physical occurrence. There is a close relationship between the two because it could be said that the existence of the right is dependent on the happening of the occurrence. However, the difference in wording reflects the different subject matter of the two provisions and perhaps a difference in emphasis.
It also appears that the expression “compensable disabilities” may not be used in s 43(6) with exactly the same meaning as in s 54(5), to which s 54(7) gives effect. Section 54(5) uses the term “disability” in the sense of “injury”. The subject matter of s 43, on the other hand, is permanent impairments resulting from compensable disabilities (see subss (1) to (4) and (10)). It is the impairments, and not the disabilities causing them, for which the lump sum compensation is payable. In this context, s 43(6) seems to use the expression “compensable disabilities” in reference to the resulting impairments or at least to both the disabilities and the impairments, rather than to the disabilities which cause those impairments. It is true that s 43(1) distinguishes the compensable disability, on the one hand, and the resulting impairment, on the other, but the distinction does not seem to be maintained in subs (6). The disabilities to which it refers seem to be injuries in the sense of impairments. The same was true of the counterpart provision in the 1971 Act as s 69 of that Act used the word “injury” to describe the impairments in the table for which compensation was payable. The reference in s 43(9)(a) to the prescribed sum to be applied with respect to a particular “disability” seems to be a similar usage of the term “disability”.
64.White J concluded that the opening words of s 43(6), namely, “if a worker suffers two or more compensable disabilities arising from the same trauma”, should be understood as referring to a worker who suffers two or more compensable disabilities arising from one and the same trauma.
65.In separate reasons Kourakis CJ came to the conclusion that the opening words of s 43(6) must be understood to mean that for it to apply, two or more impairments had to arise out of the same series and all of the events in the series must have operated as a cause of those impairments.
66.The reasons in Marrone must be considered in the very different statutory context of the Act. An important feature of that different statutory context is the enactment of s 22. In enacting s 22 the legislature included in s (8)(c), (8)(d), (8)(e), (8)(f) and (8)(g), (10), (11), (12), (13), (14), (15) and (18), provisions that were not in the repealed s 43A. Unlike s 43A, s 22 is not merely facultative. It is a provision critical to the operation of the statutory scheme. It governs the approach to assessing the degree of a worker’s WPI. For the reasons explained earlier, this is a central feature of the scheme of compensation established by the Act which formed no part of the 1986 Act. The enactment of s 22 evinces a legislative intention to distinguish between injury and impairment such that s 22(8)(c) is addressing a different, if related, subject matter from s 58(6). The distinction is between cause and effect. In that context, the terms of s 58(6) are significant. Section 58(6) addresses the situation where a worker suffers two or more injuries arising from the same trauma. The significance is the change from the concept of compensable disabilities found in s 43 of the 1986 Act, which the Court in Marrone treated as being synonymous with “impairments”. In these circumstances that construction, adopted in Marrone, can no longer be sustained in relation to s 58(6).
67.For the purposes of undertaking a lump sum assessment pursuant to s 58, if a worker suffers two or more work injuries which arise from the same event or series of events, those injuries may be treated as a single injury to the extent set out in the Guidelines. In addition, in undertaking an assessment of the degree of WPI pursuant to s 58, impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment using any principle set out in the Guidelines. That is the clear statutory injunction in s 58(8).
68.For these reasons I do not accept the construction adopted by the Full Bench that for the purposes of making an assessment under s 22, multiple impairments from the same injury or cause, are to be assessed together or combined, but in connection with an assessment of non-economic loss under s 58, they are only combined if they arise from the same trauma.
[Footnotes omitted]
The appellant’s submission

The appellant submits that it is not sufficient to engage the combination provisions in s 22(8)(c) to identify mere causal commonality between different impairments. The statutory text requires that the evidence persuade the trier of fact that the impairments arose from the same injury or the same cause. It is a comparative exercise regarding the cause of the impairment and whether it is the same as the cause of another impairment. The text, context and purpose of the RTW Act manifests an intention that s 22(8)(c) is construed narrowly so as to be confined to impairments arising from the “same cause” and does not extend to the impairments having a “common cause”. In this case, the impairments plainly related to different injuries to the left hip and the lumbar spine respectively, occurring as they did on separate days, a year apart. Accordingly, the appellant submits the impairments are not from the same injury, nor can it be said that the impairments are from the same cause. The impairments may have a common cause in that the trauma and treatment causing the hip injury ultimately contributed to the back injury, but they are different injuries and so cannot be characterised as being from the same cause for the purposes of s 22(8)(c).
The appellant further submits that its construction of s 22(8)(c) is consonant with the reasons in Preedy at para [54] but directly inconsistent with the example provided at para [55]. The appellant submits that I was correct in concluding s 22(8)(c) distinguishes between injury and impairment, which is a distinction between causes and consequences. It submits I was also correct in concluding that the compendious expression “the same injury or cause” should be construed ejusdem generis; and the words “injury” and “cause” convey a related concept, which is concerned with the “thing or event from which the impairment results”. It further submits this focus upon “injury” and “cause”, in both instances being concerned with the event out of which a work injury arises, is entirely consistent with the requirement for the impairment to arise out of a single trauma, as explained in Marrone v Employers Mutual Ltd (as an agent for WorkCover Corporation of South Australia[5] (Marrone) as is evident from the definition of “trauma”, namely, “an event, or series of events, out of which a work injury arises”.
[5] [2013] SASCFC 67, (2013) 116 SASR 501.
The appellant submits that once it is accepted the expression “the same injury or cause” should be construed ejusdem generis it is inconsistent to then apply an expansive concept of “cause” that invokes a common law causation test which bears no relation to “the same injury”.
The respondent’s submission
The respondent submits that the example given in para [55] of Preedy forms part of the dispositive reasoning of the Court. Rather than being mere obiter dicta the reasons in para [55] form part of the ratio of the case. Accordingly, this Court is bound by the reasons in Preedy. It should follow Preedy unless satisfied it is plainly wrong.[6] In any event, the appellant has not sought to argue that Preedy should not be followed. Its contention that the Court’s reasoning in para [54] of Preedy is consistent with the construction it advances is wrong. The causal test propounded in s 22(8)(c) permits an impairment from a consequential injury to be combined with an impairment from an original work injury on the basis that the impairments are “from the same cause”, namely, the original work injury. The Full Court in Preedy recognised that the ultimate finding was a question of fact and remitted the matter to the SAET to determine that question of fact. The respondent submits that in the facts of this case there can be no doubt that the impairments were from the same cause, if not from the same injury. The root cause of all the impairments was exactly the same. Unless the respondent remained forever stationary, his gait was inevitably altered as a result of the hip injury and the surgery leading to back pain and an impairment. The narrow construction of s 22(8)(c) for which the appellant contends is inconsistent with both Preedy, and the ordinary principles of statutory interpretation, and should be rejected.
[6] Return to Work Corporation of South Australia v Mitchell [2019] SASCFC 34 at [46], (2019) 135 SASR 315 at 330 referring to Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19 at 24 and 62; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 52 SASR 148 at 157.
Consideration
In my view, the appeal must be dismissed. The reasons in para [55] of Preedy are consistent with the reasons in the preceding paragraph and form part of the ratio of the decision. It is not plainly wrong. As I said in Preedy at para [54] the relevant “cause” is the cause of the impairments. This construction is reinforced by consideration of the terms of s 22(8)(d), (e) and (f) all of which refer to “impairment” resulting from physical or psychiatric injury. These provisions maintain the distinction between injury and impairment which is critical to the operation of s 22(8)(c). The implication in s 22(8)(b) is that impairments from related injuries or causes are not to be disregarded in making an assessment of permanent impairment. Injury and cause form part of a class of a thing or an event from which an impairment results. Section 22(8)(c) is to be construed disjunctively and distributively. Plainly, injury and cause are distinct concepts, albeit they are, in the context of s 22(8), related. The adjective “same” applies to both injury and cause. Impairments from the same cause are to be assessed together or combined. But that does not mean there is any warrant for construing the concept of “cause” in s 22(8)(c) to mean “trauma”. If the Parliament had intended to convey the same concept it could have used the same term. The use of a different expression in this particular context, where s 22(10) uses the expression “trauma”, clearly conveys a different meaning.
Equally, there is no warrant for construing “cause” in s 22(8)(c) narrowly to mean a single cause. There is nothing in the reasoning in para [54] of Preedy which supports such a construction. The use in s 22(8)(c) of the definite article must be understood in its context. The subject of s 22(8)(c) is “impairments” plural. Impairments which are not from the same injury but are from the same cause are to be assessed together or combined to determine the degree of impairment. This construction is supported by the terms of s 22(7)(b) which implies that impairment resulting from medical or surgical treatment of a back injury is to be treated as being from the same cause as the work injury. The causal test permits an impairment from a consequential injury to be combined with an impairment from another injury where, as a matter of common sense, the impairments are so connected that the trier of fact is satisfied that the impairments are from the “same cause”.
The appellant’s submission that the example in para [55] invokes the common law test of causation is neither accurate nor helpful in construing s 22(8)(c). To characterise the test of causation in s 22(8)(c) as a common law test is inaccurate and does not assist in construing its meaning. Section 22(8)(c) posits a statutory test of “cause”. It is to be construed in accordance with its text, context and purpose. It is an evaluative test. That evaluative test is to be applied adopting a common sense approach that recognises that more than one event might have been the “cause” of the impairment.[7]
[7] See the discussion by Lander J, with whom Bollen and Nyland JJ agreed, of the concept of causation in the different statutory context of the Workers Rehabilitation and Compensation Act 1986 (SA) in WorkCover Corporation v Sherriff (unreported judgment, Supreme Court of South Australia, Full Court, 1 October 1986 No. S5831.
The appellant’s submission based on Marrone was rejected in Preedy. The reasons in paragraph [55] of Preedy can only be disregarded by accepting the appellant’s Marrone submission. The appellant’s submission based on Marrone cannot be accepted. Marrone was decided in an entirely different statutory context, as identified in Preedy and, as I have referred to above, the judgment in Marrone relied on different language from s 22(8)(c). In that context, it is notable that s 22(10), in considering an entirely different subject matter, uses the language of “arising from the same trauma” in contradistinction to the expression “from the same injury or cause” in s 22(8)(c). The principle enshrined in s 22(10) is the one assessment principle which has nothing to do with the concept of combination in s 22(8)(c). There is nothing in Preedy which warrants construing “cause” as equivalent to “an event, or series of events out of which a work injury arises”.[8] This was addressed in Preedy at para [51].
[8] See the definition of “trauma” in s 4(1) RTW Act.
In the scheme of s 22 of the RTW Act s 22(8)(c) prescribes the circumstances where combination applies. The other provisions generally are directed to other subject matters. They do not provide any contextual indicia which would justify adopting the narrow construction of s 22(8)(c) for which the appellant contends.
Section 22(8)(c) provides for circumstances where impairments are to be combined to determine the degree of impairment. A combination will effect an increase in the degree of impairment. The appellant’s position is that the Court should adopt a construction of s 22(8)(c), contrary to the construction that is illustrated by the example in para [55], in order to narrow the circumstances in which combination is permitted. That approach would result in it being more difficult for workers to be assessed as seriously injured. I find it difficult to adopt a purposive construction consistent with that result. That would not provide a reasonable balance between the interests of workers and employers.[9] There is no textual basis for adopting such an approach to construction of this provision. That the Parliament eschewed the language of “trauma” in enacting s 22(8)(c) is a further indicium that the statutory scheme enacted in s 22(8)(c) was not intended to reflect the outcome in Marrone. So much is clear from the differing language utilised in s 22(8) and s 22(10). Further, the narrow construction of “cause” for which the appellant contends is inconsistent with the operation of s 22(7).
[9] RTW Act s 3(2)(c).
Accordingly, considering the text, context and purpose of s 22(8)(c), I see no good reason to depart from the construction adopted in Preedy, the operation of which was illustrated by the reasons in para [55].
This conclusion makes it unnecessary to consider the respondent’s alternative contention.
Conclusion
I would dismiss the appeal. I would hear the parties as to costs.
DOYLE J:I agree that the appeal should be dismissed for the reasons given by Stanley J.