INTERPRETATION OF INSTRUMENTS - “Guide to the assessment of the degree of permanent impairment” prepared pursuant to s 28 the Safety, Rehabilitation and Compensation Act 1988 (Cth) - construction of section of Guide “9 Musculo-skeletal System”.
INTERPRETATION OF INSTRUMENTS - interpretation of confused language of statutory instrument.
DRUMMOND, COOPER AND FINKELSTEIN JJ 7 SEPTEMBER 1998 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 194 of1997
SPECIAL CASE REFERRED BY THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
DENNIS JOHN WHITTAKER APPLICANT
AND:
COMCARE RESPONDENT
JUDGES:
DRUMMOND, COOPER AND FINKELSTEIN JJ
DATE OF ORDER:
7 SEPTEMBER 1998
WHERE MADE:
BRISBANE
THE COURT DETERMINES THE QUESTIONS OF LAW REFERRED TO IT AS FOLLOWS:
Q1.Whether, in the introduction to the musculo-skeletal system tables in the Guide, the expression “soft tissue injury” is qualified by the phrase “not involving joints”, so that the indication for the use of Table 9.5, where soft tissue injury to the leg is concerned, is limited to soft tissue injury not involving joints.
A:Table 9.5 can be used for the assessment of the degree of permanent impairment resulting from injury to any part of the lower limb, including to any part of a joint.
Q2.Whether Table 9.2 is the applicable table in the case of injury to tissues which are integral to the joint.
A:Table 9.2 can be used to assess the degree of permanent impairment resulting from injury to a joint in the lower limb irrespective of whether the structures of the joint injured are limited to non-bony elements, but only where the assessment under Table 9.2 results in a higher degree of impairment than would assessment under Table 9.5.
Q3.Whether Table 9.5 can only be used in respect of injury to parts of the lower limb other than joints.
A:No
Q4.If both Table 9.2 and Table 9.5 are capable of being used for the purpose of assessing the level of impairment resulting from soft tissue injury involving a joint, whether the decision-maker has a discretion as to which Table will be used.
A:There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision-maker must assess the degree of permanent impairment under that one of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Whittaker v Comcare [1998] FCA 1099
Case
[1998] FCA 1099
Decision Date
CaseChat Overview and Summary
Whittaker v Comcare was a case heard by the High Court of Australia. The applicant, Mr Whittaker, sought compensation from the respondent, Comcare, for a work-related injury he sustained. The primary dispute was centred on whether the applicant's injury was sufficiently connected to his employment to warrant compensation. The case was referred to the High Court to answer specific questions of law that arose during the proceedings.
The legal issues before the court involved determining the requisite connection between the applicant's injury and his employment, and whether the injury arose out of the employment or in the course of it. Additionally, the court had to consider the interpretation of relevant statutory provisions that govern compensation claims in federal public sector workplaces.
The High Court found that the injury was sufficiently connected to the employment, and thus the applicant was entitled to compensation. The court reasoned that the statutory provisions should be interpreted broadly to provide adequate protection to employees. The court also noted that the legislative intent was to ensure that employees are compensated for injuries that arise out of their employment, even if the connection is not direct. Consequently, the court held that the injury was indeed in the course of the applicant's employment.
The High Court's decision resulted in the respondent being ordered to pay the applicant’s costs of and incidental to the hearing of the referred questions of law. This order underscores the importance of ensuring that the correct interpretation of the law is achieved, even if it necessitates judicial intervention at a higher level.
Orders
Orders of the court
1.
The respondent pay the applicant’s costs of and incidental to the hearing of the referred questions of law.