Thompson, William Andrew v Australian Telecommunications Commission

[1984] FCA 27

Re: WILLIAM ANDREW THOMPSON
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G248 of 1982
Administrative Law
1 FCR 104

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Administrative Law - Commonwealth Employees' Compensation - Appeal from Administrative Appeals Tribunal - Lump Sum - Whether the loss of one testicle amounts to the loss of the genitals.

Compensation (Commonwealth Government Employees) Act 1971 - secns. 39, 40, 41, 42.

Administrative Law - Commonwealth Employees' Compensation - Appeal from Administrative Appeals Tribunal - Lump Sum - Whether the loss of one testicle amounts to the loss of "the genitals" - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 39, 40, 41, 42 - Words and Phrases - "the genitals" - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 39, 40, 41, 42.

HEADNOTE

The applicant suffered an employment injury to one testicle which necessitated an operation for its removal. He still had one testicle and he had not lost the capacity to engage in sexual intercourse. The evidence did not indicate any impairment in this regard and it had not been suggested that he had lost reproductive capacity.

The Administrative Appeals Tribunal having rejected his application for compensation under the Compensation (Commonwealth Government Employees) Act 1971, the applicant appealed to the Federal Court. He submitted that a testicle is a genital and that the phrase "the loss of the genitals" in s. 40(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) should be regarded as applying to it.

Held, that the loss of a testicle without loss of reproductive capacity is not a loss of "the genitals" within the meaning of that expression in s. 40(1).

HEARING

Sydney, 1984, February 10. #DATE 10:2:1984

T. Kavanagh, for the applicant.

B. Ferrari, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: McClellands.

Solicitor for the respondent: T. A. Sherman, Commonwealth Crown Solicitor.

M. P. SPENCER.

ORDER

1. The appeal be dismissed.

Orders accordingly.

JUDGE1

In this appeal from the Administrative Appeals Tribunal I am considering the meaning of the words "the loss of the genitals" in s.40(1) of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"), the provisions of which were, at the relevant time, as follows:

40. -(1.) The compensation payable under this Act in respect of an injury that results in the loss of the genitals or the total and permanent loss of the capacity to engage in sexual intercourse is $12,500 or such

higher amount as is prescribed and is payable to the employee."

1. The applicant suffered an employment injury to one testicle which necessitated an operation for its removal. He still has one testicle and he has not lost the capacity to engage in sexual intercourse. The evidence does not indicate any impairment in this regard. It has not been suggested that he has lost reproductive capacity.

2. The submission is that the "loss of genitals" includes the loss of one testicle. In general understanding the "genitals" would include both testicles and the penis. As the term is normally related to external organs, in relation to a male, the term probably does not include any further organs, but this is not a matter I have to decide on this occasion.

3. Section 40 is one of three sections (secns. 39, 40 and 42) which provide for lump sum payments in respect of particular employment-related losses. The payment under s.39 is in addition to periodical payments of compensation, awarded under other provisions. The table which is part of s.39(4) sets out a list of losses, a few being losses of function, but most being losses of a purely physical nature. Sub-section (11) deals with partial loss of the efficient use of a part of the body specified in sub-s. (4). There is no reference to the genitals in s.39. Section 41 deals with disfigurement.

4. It is submitted that a testicle is a genital and that the phrase in s.40(1) should be regarded as applying to it. This in my view is not in accordance with the language of the sub-section, which refers to loss of "the genitals". It seems plain enough that the reference is to the "genitals" as an entity and not to a particular part of them. This is emphasised by the use of the particular article "the". The phrase cannot be paraphrased so as to read "genital-loss" or even loss of genitals. There is not, I think, a current usage of "genital" as a singular noun (see Shorter Oxford English Dictionary 3rd ed., at p.785). The fact is that a testicle cannot be regarded as a genital.

5. This is not to say that the section only applies when there has been a loss of both the testicles and of the penis. This is not a matter I have to decide. The word "genital" seems to have its etymalogical derivation in reproduction, and in some dictionaries is given the meaning of external organs of reproduction. Although, in contradiction to the alternative limb expressed in s.40, it is a physical loss which is referred to, it is possible (I say no more) that the first limb of s.40 would be satisfied by the loss of such part of the genitals as resulted in a total loss of reproductive capacity.

6. The claim is really one for partial loss. The Act in many places deals specifically with partial losses, such as partial losses of earning capacity, partial losses of limbs, partial losses of function, but it does not seem to me that a partial loss of "the genitals" I comprehended within s.40, except possibly when a total loss of reproductive power ensues.

7. If there is such a physical loss respecting the genitals as results in total and permanent loss of the capacity to engage in sexual intercourse, then of course there is the alternative limb bringing s.40(1) into operation. The emphasis there is on loss of the capacity to engage in sexual intercourse, with which a loss of capacity to reproduce is not co-extensive. In relating the two limbs, it can be borne in mind that there can be a permanent loss of capacity to have sexual intercourse which is caused by disease or psychosomatic condition. Presumably there can also be a loss of the genitals amounting to a loss of reproductive capacity where there was no existing capacity to have intercourse.

8. Having in mind the second limb of s.40(1) I find it difficult to accept that something substantially less than total and permanent loss of the capacity to engage in sexual intercourse is to be compensated under the first limb by the same amount.

9. The legislature was concerned to deal with two situations meriting special attention, and doubtless was not particularly concerned to distinguish the one from the other. I do not think there is much more that can be added on the construction of this phrase.

10. I dismiss the application and make no order as to costs.