TAC v Weigert
[2010] VSC 20
•5 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 04105 of 2010
| TRANSPORT ACCIDENT COMMISSION | Appellant |
| v | |
| KENNETH WEIGERT | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2010 | |
DATE OF JUDGMENT: | 5 November 2010 | |
CASE MAY BE CITED AS: | TAC v Weigert | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 20 | |
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ACCIDENT COMPENSATION – Appeal from VCAT – Transport accident – Determination of level of impairment – AMA Guides to the Evaluation of Permanent Impairment (4th ed) – Multiple impairments – Transport Accident Act 1986, ss 46A and 46C.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Masel with Mr MF Fleming | Solicitor to the Transport Accident Commission |
| For the Respondent | Mr AJ Keogh SC with Mr J Valiotis | Arnold Thomas & Becker |
HIS HONOUR:
Introduction
On 2 March 2007, Mr Kenneth Weigert, the respondent, was injured in a transport accident. On 9 February 2009 the Transport Accident Commission (“the Commission”), the appellant, determined the respondent’s degree of impairment pursuant to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (4th ed) (“the AMA Guides”) at 7%.[1]
[1]See ss 46A(1) and (7) of the Transport Accident Act 1986.
On 21 September 2009, the respondent applied for a review at VCAT of the Commission’s determination of his impairment. The application for review came on for hearing before Deputy President Macnamara on 1 July 2010.
At the hearing of the application for review, the parties agreed that the respondent had a 5% whole person impairment by reason of injuries to his cervical spine, a 3% whole person impairment due to injuries to his left shoulder, a 2% whole person impairment due to neurological injury, a 2% whole person impairment due to primary psychiatric impairment in accordance with s 46B of the Transport Accident Act 1986 (“the Act”) and a 1% whole person impairment for scarring. What divided the parties at VCAT (and still divides the parties) is what collective whole person impairment these agreed figures yield. According to the Commission, the figure should be 12%. According to Mr Weigert, the figure should be 13%. After hearing argument, Deputy President Macnamara determined that the figure should be 13% and an order was made that the Commission’s determination be varied “such that [Mr Weigert] suffers a whole person impairment of 13% as a result of the transport accident on 2 March 2007”.
On 19 August 2010, Mahony AsJ gave leave, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, to the Commission to appeal, on questions of law, from the decision of Deputy President Macnamara. On 19 August 2010, the Commission commenced this appeal pursuant to the leave granted by Mahony AsJ. The appeal concerns the proper construction of ss 46A and 46C of the Act and the AMA Guides. Central to the resolution of this appeal is the proper construction and operation of the AMA Guides and, in particular, the way in which multiple different impairments are to be combined so as to arrive at a whole person impairment.
The legislation
Section 46A of the Transport Accident Act relevantly provides:
“46A Degree of impairment
(1) The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at [a specified date[2]].
…
(7) In this section A.M.A Guides means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by this Act.
… .”
[2]Determined by reference to whether the claimant was a minor when the accident occurred, and by reference to when the injury stabilises.
Section 46C of the Act provides:
“46C Rounding of assessments of impairment
(1) Despite anything to the contrary in the A.M.A. Guides, in determining a person's degree of impairment for the purposes of section 46A, 47, 54 or 55, no number determined under the A.M.A. Guides is to be rounded up or down, regardless of whether the number represents an initial, an intermediate, a combined or a final value, unless the rounding is expressly required or permitted by this Act.
(2)A number determined under the A.M.A. Guides must be rounded to the nearest whole percent.
Example:
A final degree of impairment of 9⋅5% must be rounded to 10%. A final degree of impairment of 8⋅4% must be rounded to 8%.
Note
Section 180 sets out the transitional provisions that apply to this section.”
For present purposes s 46C of the Transport Accident Act is materially the same as ss 91(9) and (10) of the Accident Compensation Act 1985, which were the subject of consideration in Nicholls v Corlett & Ors[3] (“Nicholls”).
[3][2010] VSC 115.
Combining multiple impairments
There are various parts of the AMA Guides which deal with the issue of combining multiple impairments. In section 2.2 of the AMA Guides it is stated:
“If the physician believes that the patient has two significant, unrelated conditions and that the extent of each should be estimated, this may be done. The whole person impairment estimates for the two separate conditions then would be combined into an overall impairment estimate using the Combined Values Chart.”
Whilst s 3.1(e) deals with fingers and hands, it provides useful text in explaining the concept of combining impairments. Specifically, s 3.1(e) provides:
“When there is more than one impairment of a member, such as abnormal motion, sensory loss, and amputation of a finger, the impairments must be combined before the conversion to the next larger unit, in this case the hand, is made.
The method for combining impairments is based on the idea that a second or a succeeding impairment should apply not to the whole, but only to the part that remains after the first and other impairments have been applied. The combined value determination is based on the following formula: A% + B% x (100% - A%) equals the combined value of A% plus B%.
The Combined Values Chart on p 322 may be used to determine the combined value of two impairment percents or, in succession, any number of impairment percents.”[4]
[4]Emphasis in original.
The combined values chart consists of three pages of the AMA Guides which permit the user to combine any two impairments between 1% and 99%. On the first page of the combined values chart, the following explanation is given:
“The values are derived from the formula A + B (1-A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings. In the chart all values are expressed as percents. To combine any two impairment values, locate the larger of the values on the side of the chart and read along that row until you come to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value.
For example, to combine 35% and 20% read down the side of the chart until you come to the larger value, 35%. Then read across the 35% row until you come to the column indicated by 20% at the bottom of the chart. At the intersection of the row and column is the number 48. Therefore, 35% combined with 20% is 48%. Due to the construction of this chart, the larger impairment value must be identified at the side of the chart.
If three or more impairment values are to be combined, select any two and find their combined value as above. Then use that value and the third value to locate the combined value of all. This process can be repeated indefinitely, the final value in each instance being the combination of all the previous values. In each step of this process the larger impairment value must be identified at the side of the chart.
Note: If impairments from two or more organ systems are to be combined to express a whole-person impairment, each must first be expressed as a whole-person impairment percent.”
When one examines the figures in the combined values chart, one immediately sees that the combined values have been rounded to the nearest whole number. For example, in Nicholls I noted that the combined value of 10% plus 7% is shown as 16% in the chart, whereas applying the formula A + B (1-A) produces the following result:
.10 + .07 (1-.10) = .163 (or 16.3%)
Whilst rounding to the nearest whole number after combining two impairments does not produce a problem (and is arguably contemplated by s 46C(2) of the Act), when combining three or more impairments, rounding as one goes has the capacity to produce different end results. For example, in Nicholls I noted that 19 combined with 8 produces 25, which, when combined with 5, produces 29. However, 8 combined with 5 produces 13, which, when combined with 19, produces 30. On the other hand, if one applied the formula to these three impairments, then (in whatever order the calculation was to be performed) the result would be 29.206% (or 29% if rounded in accordance with s 46C(2) of the Act).
The decision below
The learned Deputy President accepted a submission by counsel for Mr Weigert that in combining the four impairments of 5%, 3%, 2%, 2% and 1%, rounding to the nearest 1% should occur at each intermediate stage.
In accepting this submission, the learned Deputy President rejected the Commission’s submission that rounding should only occur after the final whole person impairment had been calculated. The different methods contended for by the parties (and using the formula A + B (1-A)) may be summarised as follows:
(a)Rounding at intermediate steps:
.05 + .03 (1 - .05) = .05 + .0285 = .0785
rounded to .08
.08 + .02 (1 - .08) = .08 + .0184 = .0984
rounded to .10
.1 + .02 (1 – .1) = .1 + .018 = .118
rounded to .12
.12 + .01 (1 - .12) = .12 + .0088 = .1288
rounded to .13 or 13%
(b)Rounding only of final whole person impairment:
.05 + .03 (1 - .05) = .05 + .0285 = .0785
.0785 + .02 (1 - .0785) = .0785 + .01843 = .09693
.09693 + .02 (1 - .09693) + .0180614 = .1149914
.1149914 + .01 (1 - .1149914) = .1149914 + .00885 = .1238414
rounded to .12 or 12%
The parties’ contentions on appeal
At the hearing of this appeal, the Commission maintained its position that, in combining Mr Weigert’s five impairments, there should have been no rounding at intermediate stages. In essence, the Commission submitted that this was consistent with Nicholls.
On the other hand, counsel for Mr Weigert sought to support the judgment below – contending that rounding at intermediate steps was countenanced by Nicholls. Additionally, counsel for Mr Weigert contended that the ultimate result below (13%) was correct by reference to the combined values chart. In a notice of contention, it was contended on behalf of Mr Weigert that the Tribunal was wrong to use the formula[5] and that the Tribunal should have used the combined values chart which produces an impairment figure of 13% in respect of all possible combinations of Mr Weigert’s five impairments.
[5]A + B (1 – A).
Legal principles
The principles governing the construction of the guides are now well established. They were helpfully summarised by Kyrou J in H J Heinz Company Australia Ltd & Anor v Kotzman & Ors.[6] For present purposes, the following principles are relevant:
“(1) The construction of the Guides is a question of law. On the other hand, the determination of a level of impairment, according to the Guides, is a question of fact.
(2) The rationale of the Guides is to make as objective as possible the process of estimating impairment, and, thereby, to promote precision, certainty and consistency.
(3) However, on the other hand, the Guides have been written, not by statutory draftspersons, but by medical practitioners, who are expert specialists in the various fields covered by the Guides. As their title accurately suggests, they are “guides”. They are designed to be applied by medical practitioners in expressing their factual opinion as to the degree of impairments in a particular case. For that reason, it is important that the Guides not be burdened with a legalistic interpretation which would render them a legal “minefield”, thus depriving them of utility to both doctors and lawyers.”[7]
[6][2009] VSC 311, [24] – [28].
[7]Transport Accident Commission v Serwylo [2010] VSC 421, [25] (Kaye J).
Analysis
There are 120 different ways in which Mr Weigert’s five impairments can be combined.[8] A significant number of these possible combinations are relevantly identical. There are two reasons for this:
(a)first, two of the impairments are identical (the left shoulder and the neurological injury both being 2%); and
(b)secondly, when combining any two of the five impairments or when combining one of the five impairments with a combination of any number of the other impairments, it does not matter in which order the two figures are combined.
[8]5 x 4 x 3 x 2 x 1 (or 5!).
Nevertheless, in order to determine that either:
(a)using the combined values chart to combine the five individual impairments results in a final whole person impairment of 13%, no matter the order in which the impairment figures are combined; or
(b)rounding at each intermediate step results in a final whole person impairment of 13% - again, in which ever order the impairment figures are combined,
one has to work through all of the relevant combinations. As I said in Nicholls, one would not lightly conclude that such an inconvenient and cumbersome approach was necessitated by the Act and the Guides.[9]
[9]During the course of his submissions, counsel for Mr Weigert stated that the fact of potentially large numbers of different combinations should not be a matter of great concern to the Court. This was said to be so because of the existence of computer programs that were capable of performing large numbers of calculations and producing spreadsheets. Notwithstanding the existence of any such programs, it seems unlikely that the Parliament ever contemplated such an exercise being performed.
The fact that in the present case (if one uses the combined values chart or intermediate rounding) it can be established that in whatever order Mr Weigert’s five impairments are combined, one arrives at the same result (13%), does not mandate such an approach (i.e., using the combined values chart or intermediate rounding) in circumstances where different combinations of other impairments will produce different results if there is intermediate rounding or use of the combined values chart.
The only method that produces the same answer when combining multiple impairments (no matter what the impairments are and no matter the order of the combination) is the application of the formula A + B (1 – A) without intermediate rounding.
In Nicholls, I demonstrated that using the combined values chart for more than three impairments can produce different results depending upon the order of combination. That the same applies to rounding at an intermediate stage can be demonstrated by the following example:
(a)combine 10%, 6% and 5% (rounding at the intermediate step):
.1 + .06 (1 - .1) = .154
rounded to .15
.15 + .05 (1 - .15) = .1925
rounded to .19 or 19%
(b)using the same method but combining in the order 6%, 5% and 10%:
.06 + .05 (1 - .06) = .107
rounded to .11
.11 + .1 (1 - .11) = .199
rounded to .20 or 20%
In multiple impairment cases where different results are capable of being achieved by combining impairments in different orders and rounding at intermediate steps, the approach which has the benefit of precision, certainty and consistency,[10] and thus best achieving the objects of the Act, is the application of the formula A + B (1 – A) without (unless it is necessary – a matter about which I will say more below) intermediate rounding. Such an approach eliminates (as it should) the possibility of rights being affected by matters no more substantial than rounding errors that might operate randomly in favour of one party or against the interests of another party.
[10]See Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204, [10] and H J Heinz Company Australia Ltd & Anor v Kotzman & Ors [2009] VSC 311, [27].
During the course of argument, reliance was placed by Mr Weigert in what I said in paragraph [45] of Nicholls – and specifically footnote 54, which dealt with whether s 91(10) of the Accident Compensation Act permitted rounding at an intermediate stage. At paragraph [45] of Nicholls I stated:
“The answer to this submission is that if one applies the formula to the entire assessment process, the correct rounded result is 30%. This is so because of an application of the formula at an antecedent stage to that referred to by the fifth defendant. The right ring finger was found to have a DIP joint impairment of 5%, a PIP joint impairment of 64% and an MP joint impairment of 25%. When one applies the formula to these three impairments, one arrives at 74.35%. If one then applies the formula to this figure and the 40% impairment in respect of the rotational deformity of the right ring finger, one arrives at 84.61%. Rounding 84.61% in accordance with s 91(10) produces 85%,[11] which then produces a hand impairment associated with the right ring finger of 9% instead of 8%.[12] This then follows through to an upper extremity (arm) whole person impairment of 20%. Applying the formula to impairments of 20%, 8% and 5% produces 30.08% - rounded down in accordance with s 91(10) to 30%.[13]
[11]Footnote 54: Whilst it was submitted that s 91(10) could not operate to round 84.61% to 85%, s 91(10) provides “A number determined under the AMA Guides must be rounded to the nearest whole percent”. At the foot of s 91(10), an example is given in the following terms: “A final degree of impairment of 9.5% must be rounded to 10%. A final degree of impairment of 8.4% must be rounded to 8%.”
[12]Footnote 55: During argument it was put that the conversion from 84% in relation to the right ring finger to 8% of the right hand and 85% to 9% mandated by Table 1 on p 3/18 of the Guides supported the proposition that one could not round 84.61% or use the formula to arrive at this figure. However, when one has regard to the permissive use of the combined values chart referred to in the third paragraph of section 3.1e extracted above, one sees that nothing in Table 1 on p 3/18 mandates against the use of the formula and then appropriate rounding. Further, it was suggested that because the Guides do not explain (by reference to a formula or otherwise) how the conversion from finger impairments to hand impairments is calculated in Table 1 on p 3/18, there should be no use of the formula A + B (1 - A) at this level of the assessment. This argument is without merit. Merely because the Guides do not provide the formula used to make the conversion from finger impairments to hand impairments does not militate against the use of the formula in circumstances where it is clearly contemplated by the Guides that the calculation is to be based upon the formula.
[13]Footnotes in original (54 and 55 respectively).
The figure of 84.61% in Nicholls was obtained from the application of the formula to three impairments in Mr Nicholls’ right ring finger. There was no rounding at intermediate stages in the calculation of the figure 84.61%. However, it was then necessary to convert that right ring finger impairment into a hand impairment (and then to an upper extremity (arm) whole person impairment).
The table in the AMA Guides that converts ring finger impairments to hand impairments is Table 1 on page 3/18. The relevant column of this table provides:
% Impairment of
Ring or littleHand
finger0 - 4 = 0 5- 14 = 1 15- 24 = 2 25- 34 = 3 35- 44 = 4 45- 54 = 5 55- 64 = 6 65- 74 = 7 75- 84 = 8 85- 94 = 9 95-100 = 10
As can be seen from this table, impairments of a ring or little finger between 4% and 5%, 14% and 15%, 24% and 25%, 34% and 35%, 44% and 45%, 54% and 55%, 64% and 65%, 74% and 75%, 84% and 85%, and 94% and 95% must be rounded before a hand impairment can be arrived at. In Nicholls I held that ss 91(9) and (10) of the Accident Compensation Act permitted this rounding to occur. It seemed to me that it was “expressly required or permitted by [the Accident Compensation Act]” within the meaning of s 91(9). To hold otherwise, would have meant that the figure of 84.61% in relation to the right ring finger could not then have been converted into a hand impairment – a step which was necessary in the calculation of Mr Nicholls’ whole person impairment.
During the course of argument, both sides relied upon various examples of particular combinations of impairments which produced different results depending upon whether the formula was used or whether the combined values chart was used.[14] Counsel for Mr Weigert contended that it was not possible to identify a set of numbers in respect of which the formula achieves a different result from, but greater than, that achieved by use of the chart. This proposition was disputed by counsel for the Commission, and examples were given.[15] However, in respect of each of these examples, counsel for Mr Weigert contended that if the combined values chart was used by combining the figures in a different order from the order used by the Commission, then the ultimate figures arrived at were the same as (but not greater than) those achieved by using the formula.[16] The nub of Mr Weigert’s submission was that use of the formula without intermediate rounding is “skewed against applicants for compensation”. I do not accept this submission. Rounding occurs in both directions. Any calculation that produces an answer somewhere between two whole numbers is as likely to be rounded up (.5 and above) as it is to be rounded down (below .5).
[14]The respondent’s examples were: 1, 2, 3, 4, 5; 2, 3, 10; 1, 1, 2, 3, 3, 5, 5; 2, 2, 3, 3, 5, 5; 1, 9, 11, 12; 1, 9, 10, 13; 6, 5, 2 and 7, 5, 1. The appellant’s examples in answer to the respondent’s examples were: 8,8,4; 10,6,5; 15,4,3; 20,8,2; 49,36,25; 61,52,34; 60,53, 55 and 73, 68, 48.
[15]8,8,4; 10,6,5; 15,4,3; 20,8,2; 49,36,25; 61,52,34; 60,53,55 and 73,68,48.
[16]The orders relied upon by the respondent were (respectively): 8,4,8; 6,5,10; 4,3,15; 8,2,20; 36,25,49; 57,32,61; 55,53,60 and 73,48,68.
As to the suggestion on behalf of Mr Weigert that “it has not been possible to identify a set of numbers in respect of which the appellant’s formula achieves a result different from, but greater than, that achieved by use of the chart, the following points can be made:
(a)First, in the absence of any evidence, the suggestion is a bold one having regard to the number of possible sets of numbers. In support of his contentions, the respondent relies upon examples of three impairments, four impairments, five impairments and seven impairments. In a three-impairment case (taking into account all possible orders and combinations) there are one million sets of numbers (100 x 100 x 100); in a four-impairment case there are one hundred million sets of numbers;[17] in a five-impairment case there are 10 billion sets of numbers;[18] and in a seven-impairment case there are one hundred trillion sets of numbers.[19]
(b)Secondly, the suggestion is not correct. One example suffices – three different impairments of 16%, 16% and 16%. Using the chart one arrives at a whole person impairment of 40%. Using the formula one arrives at 40.7296% (41%).
[17]100 x 100 x 100 x 100.
[18]100 x 100 x 100 x 100 x 100.
[19]100 x 100 x 100 x 100 x 100 x 100 x 100.
The examples relied upon by the respondent to support his contention that the formula is skewed against applicants, all contain low impairment values. What the respondent’s examples in fact demonstrate is that the combined values chart for low impairment values mirrors A + B rather than the formula upon which the guides are based – namely A + B (1 – A). If anything, rather than the formula being skewed against applicants in mid and high range cases, the combined values chart is skewed by rounding errors in favour of applicants when one has regard to the values in the chart being “derived from the formula A + B (1 – A)”.[20]
[20]See paragraph [10] above.
During the course of argument, counsel for Mr Weigert submitted that there was a “somewhat capricious nature…[in the] use of the formula”. Further, it was submitted that being able to go to the second, third or fourth decimal point produced “nonsensical results”; and that was said to be why the AMA Guides contained the combined values chart. It can be accepted that the original authors of the AMA Guides never intended impairments to be calculated to any number of decimal points. The Guides provide:[21]
“A final estimated whole-person impairment percent, whether it is based on the evaluation of one organ system or several organ systems, may be rounded to nearer of the two nearest values ending in 0 or 5.”
[21]Page 2/9.
However, for the purposes of the Transport Accident Act, rounding to the nearest five per cent is prohibited by s 46C.
The Transport Accident Act gives benefits on the one hand, and takes rights away on the other hand, dependent upon the assessment of a claimant’s whole-person impairment to the nearest percentage point. However, the prescribed method for assessing whole-person impairments is (at least in some circumstances) arguably no more sensitive than to the nearest five percentage points. Whilst any number of pejoratives might be used to criticise such a scheme, it is the scheme provided for by the provisions of the Transport Accident Act.
Put another way, it is no more “capricious” or “nonsensical” to apply the formula than to apply the combined values chart in circumstances where the authors of the AMA Guides never intended that significant rights might be affected when a whole-person impairment was assessed at as little as one percent above or below a particular figure or threshold. However, the flaw in the respondent’s submissions is that the combined values chart has some legitimacy over and above the underlying formula A + B (1 – A) upon which it is based.
Whatever problems can be identified in relation to the method prescribed for assessing whole-person impairments, they are not solved by the application of the combined values chart to the exclusion of the formula in cases where each produces (or has the capacity to produce) a different result. Underlying the assessment process mandated by the provisions of the Transport Accident Act is a requirement that in calculating a whole-person impairment there should be precision, certainty and consistency. The application of the formula in multiple impairment cases produces precision, certainty and consistency. The use of intermediate rounding, or the use of the combined values chart, in multiple impairment cases, does not: both of their uses have the capacity to produce different results depending upon the order of combination, thereby detracting from the objects of precision, certainty and consistency.
In support of his submissions on this point, senior counsel for the respondent contrasted two examples: first, 6%, 5%, 2%, using the chart produces 13% - but using the formula produces 12.486% (rounded down to 12%); secondly, 7%, 5% and 1%, using the chart, again produces 13% - but using the formula produces 12.5335% (rounded up to 13%). It was said that this was a difficult outcome to explain to applicants. However, I suspect it is no more difficult than explaining to an applicant with two 40% impairments that he or she will be treated less generously (at 64%) than a person with one 80% impairment. Any “unfairness” in either of these outcomes is simply an example of the way in which a combination system that does not use the formula A + B works. Put more bluntly, that is the system mandated by the provisions of the Transport Accident Act.
Intermediate rounding is not the solution
I have already demonstrated that intermediate rounding has the capacity to produce different impairments depending upon the order in which individual impairments are to be combined. For example 10%, 6% and 5% when combined in that order with intermediate rounding produces 19%, whereas when combined in the order 6%, 5% and 10%, with intermediate rounding, the result is 20%. The intermediate rounding of multiple impairments is thus wrong for the reasons I gave in Nicholls. Further, the parties having conducted the proceeding below on the basis that the formula A + B (1 – A) was to be applied, there was no basis for performing intermediate rounding.
The respondent’s notice of contention
Notwithstanding the way in which the case was conducted below, the respondent, in his notice of contention, contended:
“The Tribunal should have held that where, no matter which order in which the different impairments were combined using the combined values chart, the same figure for permanent whole person impairment was achieved there should be no reference to the mathematical formula.”
The Commission objected to the notice of contention on the basis that it ran contrary to the way in which the case was conducted below. However, the respondent contended that the notice of contention was merely a question of law and that no different evidence would have been called had the respondent run this argument below. The respondent relied upon Whisprun Pty Ltd v Dixon[22] as supportive of his position.
[22](2003) 77 ALJR 1598.
The short answer to the respondent’s notice of contention is that I am not persuaded it is correct. Taking again the example of an applicant with impairments 16%, 16% and 16%, why should the chart (with its rounding errors) be used to produce a combined whole person impairment less than that which would be achieved by the application of the formula?[23]
[23]16% combined with 16% combined with 16% using the combined values chart gives a whole person impairment of 40% - whereas, applying the formula, the result is 41%.
The respondent’s notice of contention appears to proceed on the basis that any combination of impairments (2, 3, 4, 5, 6, 7 or even more) using the combined values chart will produce a result that is equal to (if not greater than) that produced by the formula A + B (1 – A). The respondent has failed to establish that proposition. Underlying the Transport Accident Act is the notion that people with identical impairments should be treated the same way. To do anything else would be arbitrary.[24] The use of the combined values chart, in multiple impairment cases, is thus wrong, again for the reasons I gave in Nicholls.
[24]Whilst no party thought to argue that the Charter of Human Rights and ResponsibilitiesAct 2006 had any relevant application in this case, cf the decision of Kaye J in WBM v The Chief Commissioner of Police [2010] VSC 219 concerning s 13 of the Charter and the meaning of the word “arbitrary” at paragraphs [51] to [57].
Conclusion
It follows from what I have said above that in performing intermediate rounding when applying the formula, the learned Deputy President erred in law. Paragraph 1 of the Orders of the Tribunal of 1 July 2010 should be set aside and in lieu thereof it be ordered that the Commission’s determination be varied such that Mr Weigert suffers a whole person impairment of 12% as a result of the transport accident on 2 March 2007.
In accordance with an agreement between the parties, there will be an order that the Commission pay Mr Weigert’s costs of the appeal, to be taxed on a solicitor/client basis.
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