Express law No. 45

6 October 2006

Canute and Comcare

Every 'injury' as defined by section 4
of the Safety, Rehabilitation and Compensation Act 1988 (the
Act) which results in an 'impairment' must
be the subject of a separate assessment pursuant to section
24. Subsection 25(4) and the Combined Values Chart in the
Guide to the Assessment of the Degree of Permanent Impairment
(the Guide) do not apply to separate injuries which result
from the same event or incident.

Canute v Comcare [2006] HCA 47

Canute v Comcare [2006] HCA 47, 28 September 2006, S154/2006

The appellant received compensation under section 24 of
the Act in respect of a 12% whole person impairment resulting
from 'L5/S1 spondylolisthesis'. He later submitted
a second claim for compensation under section 24 of the
Act in respect of 'adjustment disorder with depression'.

Comcare denied liability to pay compensation in respect
of the second claim on the basis that the appellant did
not meet the threshold increase in the degree of whole
person impairment imposed by subsection 25(4) of the Act.
Comcare's decision was affirmed on reconsideration,
and by the Administrative Appeals Tribunal. The matter
then went on appeal to the Federal Court1 and the Full
Court of the Federal Court.2

The Act does not distinguish between primary and secondary
injuries

The decision to deny liability in respect of the appellant's
second claim for compensation under section 24 of the Act
was based upon a construction of the Act which considered
conditions arising as a consequence of an 'injury' as
contributing to the degree of whole person impairment resulting
from the primary injury. However, the consequential or
secondary injury was not recognised and assessed as a separate
injury. The High Court3 rejected this approach:

… there is no foundation in the Act for any such
distinction between "an injury" and a consequential
or secondary injury. Neither of these qualifiers finds
any expression in the Act. The act speaks exclusively in
terms of "an injury".

The High Court4 continued:

The Act only adopts the "whole person impairment" approach
with respect to permanent impairments resulting from each "injury".
That "whole person" approach cannot properly
be used to deny the applicability of s 24 to something
which corresponds to the legislative definition of an "injury".
The statutory criterion of an "injury" is antecedent
to the concept of "whole person" impairment,
not the other way around.

Implications

The High Court's decision in Canute requires a fundamental
change in the manner of determining the amount of compensation
payable in respect of claims under section 24 of the Act.

When a claim is made, a separate assessment will be required
in respect of each condition which satisfies the definition
of 'injury'.

The Combined Values Chart will only be relevant where
an 'injury' results in multiple impairments.
For example, as in the case of the appellant's first
claim for compensation under section 24, L5/S1 spondylolisthesis
may result in an impairment to the back and to the lower
limbs.

The operation of subsection 25(4) will be limited to circumstances
in which the degree of impairment resulting from an 'injury' increases.

Depending upon their individual circumstances, this decision
may be detrimental, or beneficial, to employees claiming
compensation under the Act.

The decision will be detrimental to employees who suffer
multiple injuries that result in minor degrees of impairment.
The percentage impairment resulting from each injury must
satisfy the minimum threshold imposed by subsection 24(7)
(10% whole person impairment for impairments other than
hearing loss) or subsection 24(7A) (5% whole person impairment
for hearing loss).

The decision has the potential to be slightly beneficial
to employees who suffer multiple injuries each of which
result in an impairment that satisfies the minimum thresholds.
For example, an employee who sustains one injury resulting
in a 10% whole person impairment, and a second injury resulting
in a 15% whole person impairment will now receive an amount
of compensation equal to the full 25%. (Under the construction
of the Act applied prior to this decision, the impairments
had been combined, so the employee would have received
compensation for a 24% whole person impairment.)

Text of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2006/47.html

For further information please contact:

Cathy Dowsett
Senior Executive Lawyer
T 02 6253 7411 F 02 6253 7381
cathy.dowsett@ags.gov.au


Notes

1 (2005) 40 AAR 327
2 (2005) 148 FCR 323
3 [2006] HCA 47 at [34]
4 [2006] HCA 47 at [37]

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