Ajinvan P/L v Laurie Fry [2001] VSCA 148

Court of Appeal (Vic)|2001-09-07|Before: ORMISTON, PHILLIPS and BATT, JJ.A.

Accident compensation - Workers' compensation - Entitlement to weekly payments after 104 weeks - Dependent upon worker's having "serious injury" or being "totally and permanently incapacitated" - "Serious injury", previously afflicting the worker, ceasing upon change in the legislation - Finding that worker "totally and permanently incapacitated" thereafter - Whether in conflict with opinion of medical panel that worker subsequently "partially and permanently incapacitated" - Effect of medical panel's opinion - Absence of any intervening event or change in circumstances of significance - Accident Compensation Act 1958 s.93B(3).

On 23 January 1997 the respondent Fry (to whom I shall refer throughout as "the plaintiff") filed a writ in the County Court seeking, inter alia, weekly payments of compensation under the Accident Compensation Act 1985 ("the Act") for injury allegedly sustained by him in the course of his employment with the appellant ("the defendant" or "the employer"). According to the further amended statement of claim (filed on 8 January 1998) the injury was occasioned by the physical stresses of employment "throughout the course of that employment and in particular on or about 9 March 1994". It was alleged that "in particular" the plaintiff suffered injury as the result of lifting a glazed window frame into position (presumably on 9 March 1994) and, as well, "by gradual process as a result of the heavy and awkward lifting and prolonged bending required of him in his employment as a carpenter". The particulars of injury included injury to the back, to the right leg and to the groin and pain, distress and anxiety. It was claimed that the plaintiff had sustained "serious injury" within the meaning of s.93B of the Act and was "totally and permanently incapacitated" within the meaning of that section.

The plaintiff first submitted a claim for compensation to the employer on 10 October 1996 and when that was rejected, and after conciliation, he commenced this proceeding. The matter came on for trial in the County Court on 2 December 1997. On 18 December 1997 the judge delivered a "preliminary ruling" that the plaintiff was a "worker" within the meaning of paragraph (a) of the definition in s.5(1) of the Act. On 9 February 1998, upon the trial resuming, the defendant requested the court under s.45(1)(b) of the Act to refer five medical questions to a medical panel. On 27 February 1998 his Honour ruled on that request and referred four questions for

opinion and on 27 May 1998 the medical panel provided a certificate of opinion on those four questions. Question 2 and its answer read as follows:-

"Q: On the balance of probabilities, is the plaintiff either wholly or partially incapacitated for work or suitable employment and if so, what is the extent of such incapacity and will such incapacity be permanent? A: It is the opinion of the Panel that the plaintiff is partially incapacitated. This incapacity will be permanent. It will affect his ability to work in an area where heavy lifting and frequent bending is required and in addition, it would affect his ability to maintain a static posture, either sitting or standing for prolonged periods."

The important part of this opinion was that the plaintiff "is partially incapacitated" and that "this incapacity will be permanent"; for, by virtue of s.68(4) of the Act, "for the purposes of determining any question or matter", that opinion was "to be adopted and applied by [the] court ... and must be accepted as final and conclusive ...". About that there is no dispute.

On 17 May 1999, the trial judge delivered judgment, dealing finally with the plaintiff's claims for compensation. The judge made orders for compensation under ss.98 and 98A, for medical and like expenses, as well as for weekly payments, but we are now concerned only with the last. In that respect the judgment read thus:

"4. The Defendant to pay the Plaintiff weekly payments of compensation from 9 March 1994 to 26 May 1998 as follows: (a) At 95 per cent of his pre-injury average weekly earnings for the first 26 weeks of this period. (b) At the rate of 90 per cent of the Plaintiff's pre-injury average weekly earnings, and being the rate appropriate for serious injury from the expiry of the said 26 weeks period until 13 November 1996 inclusive. (c) At the rate of 70 per cent of the Plaintiff's pre-injury average weekly earnings, being the rate appropriate for total and permanent incapacity from 14 November 1996 to 26 May 1998 inclusive."

From the judgment given on 17 May 1999 the defendant appealed to this Court under s.52 of the Act. At one stage it looked as though the defendant was intending to challenge all orders for compensation and each of the steps along the way but by the time this appeal was called on for hearing the employer was challenging only the order for weekly payments in paragraph 4(c) (from 14 November 1996 to 26 May 1998) and that only on one ground: namely, that the judge had failed to adopt and apply, as required by s.68(4), the opinion of the medical panel in respect of Question 2. The medical panel having expressed the opinion on 27 May 1998 that the plaintiff was partially though permanently incapacitated, the employer contended that, as a matter of law, it was not open to the judge to find (and then to award weekly payments on the footing) that as from 14 November 1996 to 26 May 1998 the plaintiff was totally and permanently incapacitated. That finding and thus the order were said to be in conflict with the opinion of the medical panel by which the court was bound. In my opinion this contention is correct and the appeal should be allowed accordingly.

The award of weekly payments until 13 November 1996

In order to understand the orders made below, something more must be said of the relevant provisions of the Act and of the evidence at trial. Section 93A provided that for the first 26 weeks of incapacity, if the incapacity was total, the worker was entitled to weekly payments of compensation at the rate of 95 per cent of pre-injury average weekly earnings - and so it was ordered in paragraph 4(a) of the judgment. This appeal, however, turns on s.93B to which paragraphs 4(b) and (c) must be referred. At the relevant time (as to which see Reprint No. 4) that section read as follows, so fas relevant:-

"93B. After 26 weeks incapacity (1) A worker is entitled, subject to and in accordance with this Part, to weekly payments while incapacitated for work (not being a period during the first 26 weeks of incapacity) at whichever of the following rates apply- (a) if the worker has a serious injury - (i) and has no current weekly earnings, the rate of- (A) 90 per cent of the worker's pre-injury average weekly earnings; ... (b) if the worker does not have a serious injury but is totally incapacitated, the rate of- (i) 70 per cent of the worker's pre-injury average weekly earnings; ...". [Emphasis added]

The expression "serious injury" was defined in s.93B(5) to mean injury occasioning a level of impairment of 30 per cent or more if assessed according to the methods specified in the American Medical Guidelines to the Evaluation of Permanent Impairment (2nd edition).

Both paragraphs 4(b) and 4(c) of the judgment are referable to these provisions of s.93B, the first (being an award of 90 per cent of pre-injury average weekly earnings for "serious injury" until 13 November 1996) to s.93B(1)(a), and the second (being an award until 26 May 1998, at the rate of 70 per cent of pre-injury average weekly earnings for "total incapacity") to s.93B(1)(b). As we will see, the difference turned on a change in the law.

Although, unlike s.93A, s.93B is concerned with the making of weekly payments after the first 26 weeks, the judge had evidence of the injuries sustained by the plaintiff on and after 9 March 1994. Much of the evidence was directed to compensation under ss.98 and 98A and there is no need to go into the detail, but in the course of his reasons for judgment the Judge said this about the plaintiff's evidence generally:-

"The plaintiff impressed me as an honest witness. It is clear that he was a very conscientious man in the performance of his work and that the injury he suffered to his back not only constituted a severe physical injury, but also has eroded his self esteem resulting in significant psychiatric sequelae. The injury to the plaintiff's back from when he injured it on 9 March 1994 to the date of the opinion of the Medical Panel, has caused the plaintiff severe low back pain with associated restriction of movement. He has been totally incapacitated from carrying out the work which he did prior to the injury, or any suitable employment as defined in s.5 of the Act. His back pain has resulted in severe pain in the right leg. The medical reports which have been tendered provide an overall picture of a severely incapacitated and distressed plaintiff who prior to the Medical Panel's opinion had spent more than four years trying to cope both physically and mentally with the severe injury he had suffered to his back."

This led the judge to make a lump sum award for "pain and suffering" under s.98A(5) of 60 per cent of the maximum.

From 9 March 1994 to 13 November 1996, the judge was satisfied that the plaintiff had a "serious injury" within the meaning of s.93B(5). That was because of the important psychiatric and psychological consequences which attended the plaintiff's injury. His Honour said:-

"From 9 March 1994 until 14 November 1996 when a new s.91 inserted by Act 60/1996[1] came into force, psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury, were included for the purpose of deciding whether a worker had suffered a serious injury within the meaning of s.93B(5) of the Act. On 14 November 1996 [a new s.91] came into force [which excluded such considerations]."

His Honour had before him formal assessments of the plaintiff which spanned a period of some 20 months but, as his Honour observed, he had had "the opportunity to review the effects of the plaintiff's injuries upon him over a period of more than four years". On the evidence, the judge considered that the reasonable inferences were that there had been "little or no change in the plaintiff's long term whole person impairment during that period of more than four years" and that accordingly the plaintiff had a 15 per cent whole person psychiatric impairment from 9 March 1994 until 26 May 1998. The physical impairment throughout that period was 20 per cent. His Honour then concluded:-

"Adopting the principles laid down in Dahl & Anor. v. Grice [1981] VicRp 50; [1981] V.R. 513, I find that the plaintiff had a physical whole person impairment of 20 per cent throughout the period of four years. When a full psychiatric impairment of 15 per cent is added up to 13 November 1996, a combined AMA assessment of 32 per cent results, which represents a serious injury pursuant to s.93B(5). However, as from 14 November 1996 pursuant to [the new] s.91(2) ...., only the plaintiff's primary psychiatric impairment of 7.5 per cent can be taken into account and the addition of the plaintiff's physical impairment and psychiatric impairment results in a converted total of 26 per cent from that date onwards, which falls short of the 30 per cent required by the definition of `serious injury'".

This, then, explains the order for weekly payments up until 13 November 1996. It rested squarely on the finding that until that date the plaintiff had a "serious injury" within the meaning of s.93B(5), a finding which is not now under challenge. Section 93B(1)(a) accordingly justified the award of weekly payments up until 13 November 1996 (which is to be found in paragraph 4(b) of the judgment), but not beyond; and, as already mentioned, it is the award of weekly payments from 14 November 1996 that is now in dispute.

The award of weekly payments from 14 November 1996.

As to that further period the judge continued thus in the reasons for judgment, immediately after the passages last quoted: -

"However, on the totality of the evidence I find that the plaintiff was at that date [14 November 1996] totally and permanently incapacitated and remained so until 26 May 1998."

On its face this would have justified an award of weekly payments under s.93B(1)(b), which applied in terms if the worker was totally incapacitated. The difficulty lay in the fact that on 27 May 1998 the medical panel had certified its opinion of partial and permanent incapacity and by that the judge was bound, by virtue of s.68(4) of the Act. On that account payments were not ordered beyond 26 May 1998. Certainly in the light of the opinion of the medical panel weekly payments could not be justified after 26 May 1998 under s.93B(1)(b), for that provision depended upon total incapacity, not partial; and although s.93B(1)(c) provided for weekly payments at a different rate in a case of partial incapacity, by May 1998 some four years had passed since the injury sustained on 9 March 1994 and s.93B(3) denied entitlement to weekly payments after 104 weeks, save in limited circumstances. These included serious injury but did not include partial incapacity, and it is upon that provision that this appeal turns.

At the relevant time s.93B(3) read as follows:

"(3) The worker's entitlement to weekly payments under this section ceases after the worker has been incapacitated for 104 weeks unless the worker- (a) has a serious injury; or (b) is totally and permanently incapacitated."

In itself this subsection must have denied to the plaintiff any entitlement to weekly payments under the preceding subsections as from 9 March 1996 (the expiry of the 104 weeks), had it not been for the judge's finding of serious injury. That finding lasted only until 13 November 1996 because (as the judge saw it) of the change in the legislation that occurred the day after, on 14 November. From that day any entitlement depended solely upon the judge's finding that the plaintiff was totally incapacitated, a finding which was in conflict (the employer submits) with the opinion of the medical panel expressed on 27 May 1998, especially as the judge's finding was that the total incapacity afflicting the plaintiff (which was relevant from 14 November 1996) was permanent. How could the total incapacity be permanent, the employer asks, if on 27 May 1998 the medical panel found it to be only partial? And if not total, there can have been no entitlement in the plaintiff to weekly payments on and after 14 November 1996 when he ceased to be afflicted by "serious injury" as defined.

The difficulty posed for the plaintiff by the opinion of the medical panel was not ignored by the judge in his reasons for judgment. First, his Honour saw it as open to him, upon the evidence of course, to determine for himself the condition of the plaintiff up until 27 May 1998, without his thereby coming into conflict with the medical panel. As noted by the judge, plaintiff's counsel had submitted that "the questions referred to the medical panel were expressed in the present tense and the opinion handed down by the medical panel binds the court only in respect of those matters dealt with on that day." The judge accepted that submission and, as the medical panel's certificate was dated 27 May 1998, the opinion expressed therein was taken to relate solely to the plaintiff's condition on that day, and to nothing earlier. Weekly payments were not to be ordered beyond 26 May 1998 because of the opinion as certified, but until the date of the certificate it was a matter to be determined by the judge, unembarrassed by the opinion of the medical panel. And in his Honour's opinion, on the totality of the evidence, the plaintiff was "totally and permanently incapacitated" - that is, until 27 May 1998 when he became bound to "adopt and apply" the opinion of the medical panel.

There is more than one problem, however, with the judge's finding of total and permanent incapacity "from 14 November 1996 to 26 May 1998 inclusive". First, the contrast between total and permanent incapacity on 26 May and partial though permanent incapacity on the day afterwards is striking, particularly when the only relevant event at the time was the expression of opinion by the medical panel. The judge was not unmindful of this apparent absurdity for he dealt with it in the course of his reasons for judgment, saying:-

"While at first glance the total and permanent incapacity assessment I have made, when compared with the opinion of the Medical Panel, might suggest a miracle cure, it may well find its basis in the application of different factors to the concept of `incapacity'."

His Honour then referred to the definition of "total incapacity", which had been inserted in s.5(1) of the Act by s.6(m) of Act No. 67 of 1992[2] (with effect from 1 December 1992) and later repealed (as from 12 November 1997) by s.30(1)(e) of Act No. 107 of 1997[3], and also the definition of "suitable employment" upon which that definition of "total incapacity" had drawn. Perhaps his Honour had in mind that the factors which were relevant to "total incapacity" as defined between 1 December 1992 and 12 November 1997 became somewhat different after 12 November 1997 (and thus by the time the medical panel came to express its opinion) but if so it was a difference which plaintiff 's counsel did not seek to identify for us in argument and so a difference upon which he did not seek to rely for the purposes of the appeal. In short, the judge's reference to the possibility of "different factors" applying to "the concept of incapacity" was something not explored in argument and the contrast between the judge's finding of total and permanent incapacity on 26 May and the panel's opinion of partial but permanent incapacity on 27 May is not to be explained, it seems, by a change in the legislation.

Nor, in my view, is it to be explained on the ground that the medical panel was expressing its opinion about the plaintiff's condition on 27 May 1998 - and only on that date. True it is, as counsel submitted below, that that the medical question numbered 2 was asked in the present tense and the answer given similarly. But it cannot be, as was suggested by plaintiff's counsel at one stage in the argument before us, that the medical opinion is of value about the plaintiff's condition as at the day on which the opinion is expressed, and none other. As framed, s.93B(3) appears to turn on the plaintiff's condition on the day on which the period of 104 weeks expires: according to that subsection the plaintiff's entitlement to weekly payments under s.93B "ceases" unless he "has" (presumably at the end of the 104 weeks) a serious injury, or "is" (presumably at that time) totally and permanently incapacitated. Yet surely it cannot be that the opinion of the medical panel, if sought for the purpose of s.93B, must be expressed on and as at the very day on which that period of 104 weeks expires, if it is to be of any use at all under subs.(3). And I reject the plaintiff's submission to the contrary.

Section 68(4) requires that the opinion expressed by the medical panel be accepted by the court as "final and conclusive", and the extent to which a finding can be made which is different from that opinion will surely depend upon the nature and extent of the difference, and I include in that a difference in the date at which the medical panel is speaking and the date as at which the other finding is being made. Dates do not matter in this case; for there is no relevant difference when the judge's finding runs right up until the date on which the medical panel expressed its opinion (albeit that it is expressed in the present tense). In this instance the conflict is stark indeed and, with great respect, I consider that a finding that the plaintiff was totally incapacitated on 26 May was plainly inconsistent with an opinion that the plaintiff was only partially incapacitated on 27 May, given that there was no circumstance or event occasioning such a dramatic alteration: no "miracle cure", as the judge put it. In my respectful opinion it was simply not open to the judge, being bound by the medical panel's opinion on 27 May 1998, to make such an inconsistent finding about the plaintiffs' condition up until that date.

In so concluding I do not deny that there is some force in the submission made by plaintiff's counsel, that total incapacity is always but a present assessment and, given an alteration in circumstances, it may be one that ceases to be correct. In McDonald v. Director-General of Social Security[4], the Federal Court was dealing with the concept of permanent incapacity as a qualification for an invalid pension under s.24 of the Social Security Act 1947 (Cth). Woodward, J. said[5]:-

"The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent. In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future."

It is unnecessary for present purposes to resolve the question, considered in that case, whether it was better to describe permanent incapacity as incapacity which was "likely to persist in the foreseeable future" or as "likely to last indefinitely", or even as "likely to last forever". (I simply note in passing that in AMP Workers Compensation Services v. Chalkley[6] (13 August 1998, unreported) McDonald, J. was content to adopt the first of these three, in line with what I have just quoted from the judgment of Woodward, J.) For present purposes the relevant point is this: that, whatever the true test might be of a permanent, as distinct from a temporary, incapacity, the test must be applied at a given time and in the light of the circumstances as they are, according to the evidence before the fact finding tribunal. As McDonald, J. said in Chalkley[7], in relation to the phrase "totally and permanently incapacitated" as now appearing in the Accident Compensation Act:-

"The issue of a worker's incapacity and whether it is total at a particular time or whether it is total and permanent at a particular time may well vary as a fact from time to time. The finding by the court on 30 November 1994 that Chalkley [the worker] was totally and permanently incapacitated did not give rise to an estoppel preventing the appellant [the employer's insurer] from raising in subsequent proceedings between it and Chalkley the issue, that at a time subsequent to the finding of the court, Chalkley was then not totally incapacitated or not totally and permanently incapacitated. The finding that as at 30 November 1994 Chalkley was totally and permanently incapacitated was no more than a finding that it was more likely than not that such incapacity would persist in the future but it was not determinative of whether such incapacity did in fact persist in the future."

It can be accepted, then, that a finding of total and permanent incapacity is made at a given time but about the future and so must be capable of review if circumstances subsequently change significantly. Woodward, J. suggested a number of possible changes in circumstances which could perhaps justify a change from permanent to temporary incapacity, but nothing like that happened here; nor indeed was there time in view of the judge's finding up until 26 May 1998. Nothing of significance occurred on that day so there was nothing to justify or explain the change in the plaintiff's condition, from total incapacity on 26 May to partial incapacity on the day after.

Thus far, it might be said that the matter should be referred back for a further finding about the plaintiff's condition closer to 14 November 1996, but that is not the case because there is a second, and insuperable, difficulty in the way of the judge's finding that from 14 November 1996 until 26 May 1998 the plaintiff was "totally and permanently incapacitated". That difficulty arises because the judge was being required to make his determination of incapacity on 17 May 1999 in the light of, and not in ignorance of, the opinion expressed by the medical panel almost a year earlier. This is not a case like Chalkley where an earlier determination was under review in the light of subsequent events; the only determination here about the plaintiff's condition from 14 November 1996 to 26 May 1998 was being made on 17 May 1999. According to the opinion of the medical panel, which was binding on the judge, on 27 May 1998 the plaintiff was "partially and permanently incapacitated", and it was not then open to the judge to find in May 1999 that at any time prior to 27 May 1998 the plaintiff was not only totally incapacitated, but permanently so. Any such finding was simply given the lie by the medical panel whose opinion in this regard was binding. The plaintiff could not be adjudged totally incapacitated, on a permanent basis, at any time before 27 May 1998 (and whether on and after 14 November 1996 or otherwise) when, by the time that judgment was made, it was known (through the opinion of the medical panel) that he was, at least on and from 27 May 1998, only partially incapacitated. The condition of prior total incapacity, on a permanent basis, was simply not possible consistently with the subsequent opinion - yet anything less than total and permanent incapacity could not satisfy s.93B(3). Plaintiff's counsel sought to emphasise the opinion, expressed by Woodward, J.[8] that in many cases it will be difficult to draw the line between temporary and permanent incapacity, but that is not the difficulty here.

The principal argument put to us by plaintiff's counsel in support of the judgment below concentrated on the meaning of the phrase, "totally and permanently incapacitated" as used in s.93B. Thus far I have assumed that that phrase refers to a total incapacity which is permanent: in other words, I have taken it that the word "and" is used conjunctively, to link the two words which describe on the one hand the extent, and on the other hand the duration, of the incapacity in question. But Mr. O'Loghlen submitted that that was an unwarranted assumption. He submitted that, as the expression was comparatively new to this legislation, we should not leap to the conclusion that both adverbs, or the equivalent adjectives, related to the same incapacity. At least, that is how I understood his argument. Thus, as I followed him, a worker could satisfy the description in s.93B(3)(b) if he were totally incapacitated in one respect and permanently incapacitated in another, provided that he was both at the same time. For example a worker who is temporarily rendered unconscious in an accident is no doubt totally incapacitated for the time being, although not permanently so; and if in the same accident the worker lost a finger, he might be permanently incapacitated although not totally so. The submission was, in effect, that that would satisfy the phrase "totally and permanently incapacitated", but I think not. To my mind the argument is altogether unreal; it seems to me that the legislature had no such complex situation in mind in adopting the expression found in s.93B(3)(b).

First and foremost, if by describing the worker as "totally and permanently incapacitated" Parliament was intending not to refer to the one incapacity which was both total and permanent, the expression used in s.93B(3)(b) would surely have been "totally incapacitated and permanently incapacitated", which might then have allowed for different incapacities to satisfy the descriptions "total" and "permanent". Although the expression "totally and permanently incapacitated" has not hitherto been common in this statue, an equivalent has been in common use elsewhere for many years. For example the "Totally and Permanently Incapacitated Soldier" was a feature of the Australian Soldiers' Repatriation Regulations 1918 (Cth)[9] and in 1919 that phrase was defined[10] to mean this:-

"a soldier whose capacity, as a result of the war, has been so reduced as to preclude his earning other than a negligible percentage of a living wage, or who cannot be usefully employed in national workshops or provided with such other employment as is approved by a State Board and whose total incapacity is likely to continue indefinitely."

There can be no doubt but that this refers to a total incapacity which is permanent[11]. Much the same can be gathered, I think, from what the Full High Court said in Wicks v. Union Steamship Co. of New Zealand Ltd. [12] with respect to the Workers' Compensation Act 1936 (N.S.W.):

"The Commission was, therefore, called upon to decide whether the worker had been permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning is gone except for the chance of obtaining special employment of an unusual kind."

See also and compare clauses 1(b)(iv) and (v) of the clauses to s.9 of the Workers Compensation Act 1958 (Vic.) and the discussion of incapacity in Hill & Bingeman, Principles of Workers' Compensation (1981)at p.81.

The common thrust of the foregoing is that an expression such as totally and permanently incapacitated is referring to total incapacity which is permanent (which, I might add, seems to be the way in which McDonald, J. approached the expression in Chalkley). I have no doubt but that that is its meaning in s.93B and I reject the submission to the contrary. Accordingly, I think that, with respect, the learned County Court judge fell into error when he made a finding that the plaintiff was totally and permanently incapacitated up until 26 May 1998, only to be partially but permanently incapacitated on 27 May 1998. His Honour made findings that indicated no change in the plaintiff's condition throughout the period of the four years under review. The judge found that the plaintiff ceased to have a "serious injury" within the meaning of s.93B(5) on 14 November 1996, only because the legislation changed and thereafter excluded the plaintiff's psychiatric impairment from consideration. For more than one reason, as I have said already, it seems to me that it was not open to the judge, being bound by the opinion of the medical panel to

find that the plaintiff was only partially (though permanently) incapacitated on 27 May 1998, to find that he was none the less totally and permanently incapacitated before and up until that date. That being error (and in my opinion error of law), the order for weekly payments from 14 November 1996 to 26 May 1998 was also error. By virtue of s.93B(3) the plaintiff ceased to be entitled to weekly payments on 14 November 1996 when he ceased to have a "serious injury" and was not "totally and permanently incapacitated".

For these reasons I would allow the appeal and set aside paragraph 4(c) of the judgment given by the judge on 17 May 1999. There is no need, I think, for us to make any order in substitution. All other orders made on 17 May 1999 can stand, including the order for costs. The appellant should have its costs of the appeal, but the respondent should have a certificate under the Appeal Costs Act.

[1] Accident Compensation (Further Amendment) Act 1996 s.9

[3] Accident Compensation (Miscellaneous Amendment) Act 1997

[11] Compare also, of the Comonwealth, the Superannuation Act 1976 s.54B which attributes meaning to the description of a person as "totally and permanently incapacitated"; the Veterans' Entitlements Act 1986 s.24(1)(b) which provides a special rate of pension for the veteran who is "totally and permanently incapacitated" as described therein; and the Superannuation Act 1990, First Schedule, clause 1.1.1 which contains a definition of "totally and permanently incapacitated". In the Australian Capital Territory, see Workmen's Compensation Ordinance 1951-59, First Schedule para.13, which excludes redemption by lump sum in a case of "total and permanent incapacity"; see also ss.10(1), 12(2). In South Australia the phrase "total and permanent incapacity" appears in the Workers Rehabilitation and Compensation Act 1986 s.43(9). In Western Australia, the expression "totally and permanently disabled" appears in reg.5 of both the Fire Brigades (Superannuation Fund) Regulations 1986 and the Coal Industry Superannuation Regulations 1990; while "total and permanent disablement" is defined in the State Superannuation Regulations 2001, reg.3. In Queensland the phrase "total and permanent disablement" is defined in the Parliamentary Contributory Superannuation Act 1970 s.18A, and also in at least two of the deeds made under the Superannuation (State Public Sector) Act 1990.

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties