Bayliss v Transport Accident Commission [2004] VSC 102

The determination of the respondent made on 1 March 2002 is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 23% arising out of the transport accident on 7 June 2003.

9. Leave to appeal was granted on 5 September 2003 by Master Wheeler, limited to the following questions of law:

1. Does the directive ("the Directive") contained at page 100 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition ("the Guides") that:

"With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment."

have any force in assessing an impairment of a spine under Chapter 3 of the Guides?

2. Should the impairment of the Appellant's cervico-thoracic spine under Chapter 3 of the Guides be assessed pre-operatively in accordance with the Directive?

16. The legislative provision which prescribes the use of the Guides in assessing impairment is section 46A of the Transport Accident Act 1986 ("the Act"), which reads as follows, so far as relevant:

(1) The [Transport Accident] 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) If the person is not a minor when the accident occurred-

(2) In this Part, a reference to the determination of a degree of impairment is a reference to a determination by the Commission-

(ii) methods prescribed for the purposes of this section-

and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and

(b) if the Minister has approved a training course in the application of those Guides or methods, made after an assessment by a medical practitioner who has successfully completed such a training course.

(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.

It is common ground that there are no relevant prescribed methods or operational guidelines; and that each of the medical practitioners who gave evidence before the Tribunal relating to the spinal injury had successfully completed a relevant training course. My attention was not directed to any relevant modification to the Guides effected by the Act.

34. Sections 47 and 48 of the Act provide for the calculation of impairment benefits payable to a person injured as a result of a transport accident, in each case by a formula related to the degree of impairment of the person as assessed pursuant to section 46A. Section 93 provides that a person whose degree of impairment is assessed at 30% or more may recover damages at common law in respect of the injury.

37. The appellant sustained a number of injuries in a transport accident on 7 June 2003. The most serious injury was a fracture of the cervical spine of a kind which Mr Shannon, orthopaedic surgeon, said in evidence carried a high risk of death. After surgery he made a good recovery from that injury, although with some continuing limitation of movement.

40. The Transport Accident Commission made a determination on 1 March 2002 assessing the appellant's whole person impairment at 13%. The Tribunal, by the order under appeal, set aside that determination and substituted a decision that the appellant's whole person impairment was 23%. As part of that finding, the Tribunal assessed the impairment of the appellant's musculoskeletal system as a result of the injury to his cervical spine at 5%.

43. It was put to the Tribunal that the application of the Directive meant that the impairment of the appellant's spine must be assessed in accordance with its condition after the transport accident and before the operation. Mr Shannon considered that an appropriate assessment of the impairment of the spine at that time would have been 25%. It is not in issue that that assessment, combined with the unchallenged assessment of the degree of impairment deriving from the other injuries of the appellant, would give a whole person impairment in excess of 30%, thus not only increasing the amount of impairment benefit payable to the appellant, but bringing him within the "common law gateway" in section 93.

46. After careful consideration of the legislation and the Guides, the Tribunal rejected that submission as to the application of the Directive, saying:

43. It is clear to us that the overwhelming thrust of the Fourth Edition Guides is that any impairment is to be permanent and the equally overwhelming directive of the legislation is that impairment is to be assessed at the expiration of 18 months post-accident or when the injury stabilizes, whichever last occurs. What then is the effect of the directive on p 100 that impairment is to be assessed pre-surgery whether or not surgery has produced favourable or unfavourable results? It is hard to imagine why this paragraph has been inserted. It is difficult to envisage what logic gave rise to it. The quandary is that any impairment estimated pursuant to that directive has the potential to be wrong on two counts. Where corrective surgery has been successful, the pre-surgery assessment might over-estimate the permanent impairment; likewise where someone with an injury to the spine had unsuccessful corrective surgery and was left worse off, then the pre-surgery estimate might be a totally inadequate reflection of the applicant's stabilized and permanent condition.

44. Whatever may have been the intention of the authors, we are not satisfied that this directive, read in the context of the overall tenor of the legislation and the Guides, can stand in isolation or have any effect. To implement that directive would strike at the very heart of the underlying philosophy of the legislation and the guides mandated by it. It follows that we do not consider the applicant's injuries justify a pre-surgery impairment rating under DRE Category IV. In coming to this conclusion we were guided to some extent by what was said by Phillips JA in Lake v Transport Accident Commission [1998] 1 VR 616 at p 625. His Honour was commenting on certain provisions in the Second Edition of the AMA Guides. He stated -

It must be remembered that the Guides are only guides, though they are to be applied as required by the regulations.

45. We were initially troubled by the slightly more elevated standing of the Fourth Edition Guides, mandated as they are by statute, and by the effect of the maxim generalia specialibus non derogant on the direction at page 100 of the Guides. Although neither counsel advanced any submissions on the subject we did give consideration to the point and concluded that in the face of such an obvious intention expressed in section 46A and in the face of the overwhelming references to permanency and stabilization in the Guides, the maxim had no place.

53. In forming the view expressed in the first sentence of paragraph 43 above, the Tribunal relied on the text of the Guides, including the following passages:

A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change.

From page 2/9, under the heading "General Comments on Evaluation":

An impairment should not be considered "permanent" until the clinical findings, determined during a period of months, indicate that the medical condition is static and well stabilized.

It is emphasized that if an impairment evaluation is to be accepted as valid under the Guides criteria, the impairment being evaluated should be a permanent one, that is, one that is stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy. [emphasis in the Guides]

From the Glossary at page 315, under the heading "Permanent Impairment":

If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to Guides criteria. [emphasis in the Guides]

64. One submission can be briefly dealt with. Mr Forrest, for the appellant, referred to the views of two of the medical witnesses, expressed in their evidence, as to the meaning of the Directive. However, those views are not of assistance to the Court in determining the questions before it. If the Directive is read independently of the other provisions of the Guides, its meaning is entirely clear, and the medical witnesses have, understandably, interpreted it according to its tenor. The real issue is whether it can stand with the other provisions of the Guides and with the Act.

67. Mr Forrest's principal submission began with the proposition that a perusal of Chapter 3 of the Guides, dealing with the musculoskeletal system, demonstrated that for the purpose of assessing injuries to the spine, the Fourth Edition had introduced a unique scheme, not appearing in previous editions. Spinal injuries were now to be assessed by a diagnosis of the injury, as opposed to an evaluation of the impairment consequent upon the injury. The new method was called the "injury model" as opposed to the "range of motion model", which, it was said in Chapter 3, had proved difficult to implement. Chapter 3 provided that if the patient's condition was one of those listed in Table 70, the injury model was to be employed. The appellant's spinal injury was described in evidence by Mr Klug, a neurosurgeon, as a loss of motion segment integrity, a condition which is listed in Table 70. The injury model was described in sections 3.3a to 3.3i of Chapter 3 of the Guides, and the Directive appeared in section 3.3d. Accordingly, the Directive was applicable to the assessment of the appellant's injury.

70. If I understood him correctly, Mr Forrest then submitted that section 46A(1) did no more than establish at what time the Guides should be consulted - eighteen months after the accident or when the injury stabilized, whichever last occurred. Section 46A(2) directed how the Guides should be applied. The concept of stabilization was relevant to sub-section (1), but not to sub-section (2). Neither provision required the impairment to be assessed as at the time of stabilization; the time as at which the impairment was to be assessed depended on the terms of the Guides. In the present case, the Guides required that the assessment was to be performed in accordance with the injury model. That being so, he submitted, the Directive, which was a component of the injury model, required that the assessment be performed as at the time between the injury and the operation, and not as at the time of stabilization of the injury after the operation. The Tribunal should not have departed from the plain words of the Directive, contained in the Guides, which it was required by section 46A(2) to apply.

73. As the Tribunal pointed out, the use of the Fourth Edition of the Guides has been mandated by statute, specifically by section 46A(2) and (7), since the coming into operation of section 8 of the Transport Accident (Amendment) Act 1998. Prior to that amendment, the assessment of impairment was to be effected in accordance with the Second Edition. However, that requirement was contained in Regulation 6(1) of the Transport Accident (Impairment) Regulations 1988, not in the Act itself. Mr Forrest submitted that this change indicated an intention to enshrine the injury model in legislation.

76. However, in my view, section 46A(2) does not demonstrate that intention. The wording of that provision does not suggest that the Guides become part of the Act. It is to be noted that sections 46A(2) and 46AA, when read together, in effect empower the making of regulations to vary the operation of section 46A(2) to (7). The Second Edition of the Guides was considered by Phillips JA, with whom Brooking JA agreed, in Lake v TAC [1]. His Honour said:

It was contended on this appeal that different words must be presumed to import different meanings and so much may be true - or perhaps should be true - of a legal document. But the guides are not a legal document: they were drawn by doctors for use by doctors and the presumption, which is a lawyer's, loses much of its weight. . . .

It is important, I think, not to become too legalistic about the guides themselves. . . .

It must be remembered that the guides are only guides, though they are to be applied as required by the regulations. The task of assessment is far from being an exercise in an exact science and plainly it is to be assisted by medical opinion - in this instance from experts in neurology. Their efforts will not be helped if the guides become overlaid with a lawyer's precise interpretation, derived from one or two cases that are regarded by the lawyers as testing and which are probably governed, to a greater or lesser degree, by their own particular facts. In too short a time the guides would become a legal "minefield", and be of much less help to doctors and lawyers alike, although for different reasons.

82. I do not consider that the introduction of section 46A(2) alters the nature of the Guides, and I would, with respect, adopt those passages from Lake as equally relevant to the use of the Fourth Edition. Mr Forrest submitted that the Tribunal was in error in not applying the maxim generalia specialibus non derogant [2] to the question before it. If the maxim were to be applied, the Directive, as a specific provision, would override the general provision in section 46A(1). However, a lawyers' technicality of that kind, however useful in the interpretation of legislation, which has by definition been drafted with the maxim in the mind of the drafter, cannot govern the interpretation of a document such as the Guides, prepared, as Phillips JA said in Lake, by doctors for use by doctors.

85. Mr Maxwell, for the respondent, referred to section 8(b) of the Act providing that one of the objects of the Act was "to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents." He emphasised the word "just" in that paragraph, and submitted that an interpretation of the Directive strictly according to its tenor produced results which could not be regarded as "just" and thus were inconsistent with the object of the legislation. Justice in this context involved treating like cases alike. He referred to the potential for injustice enunciated in the following terms in paragraph 43 of the reasons for decision of the Tribunal:

Where corrective surgery has been successful, the pre-surgery assessment might over-estimate the permanent impairment; likewise where someone with an injury to the spine had unsuccessful corrective surgery and was left worse off, then the pre-surgery estimate might be a totally inadequate reflection of the applicant's stabilized and permanent condition.

I note that it is common ground that complications in surgery occasioned by an injury in a transport accident are regarded as causally linked with the transport accident.

90. As to Mr Forrest's principal submission, Mr Maxwell submitted that if sections 46A(1) and (2) were read together, section 46A(1) could be seen to impose an obligation in the following terms in respect of the applicant:

(1) The Commission must determine the degree of impairment of [the appellant] [in accordance with the AMA Guides] as at-

He submitted that the clear legislative intent was to delay the determination until the time when there was likely to be an accurate assessment of true permanent impairment. Section 46A(2) was an interpretive provision, and did not impose a duty.

100. He submitted that, if the appellant's arguments were adopted, the assessment of spinal injury would not be made as at 18 months after the accident, or at the time when the injury had stabilized, but would be made as at a time well before stabilization.

103. Mr Maxwell submitted further that, accepting what had been said in Lake, there were principles of interpretation which were a matter of common sense rather than legal technicality, and which could appropriately be applied to the interpretation of the Guides. He cited a passage from the judgment of Chernov J in Connelly v MMI Workers Compensation (Vic)[3], where His Honour cited from the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [4] as to the meaning of the word "may" in a statute and continued:

In my view, his Honour's observations as to the ordinary meaning of "may", although expressed in the context of the construction of a statute, are apposite to the interpretation of that word in the rounding off provision [of the Guides].

107. He also referred to the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority [5] where their Honours said (omitting some references to authorities):

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed." Thus the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet [1794] EngR 1806; (1688) 1 Show KB 106 (89 ER 480) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

I accept the submission of Mr Maxwell that the principles there enunciated are appropriately applied to the interpretation of the Guides, consistently with the passage cited above from the judgment of JD Phillips JA in Lake.

114. It is clear from the content of the Guides, beginning with the title, and looking at the passages set out in [10] above and other passages throughout the volume, that the purpose of the Guides is the assessment of permanent impairment. It is equally clear from section 46A that that assessment is to take place eighteen months after the accident or whenever the injury stabilizes, which ever last occurs. The introductory material, dealing generally with spinal injuries, at page 3/94 of the Guides, makes clear that, whether the injury model or the range of motion model is adopted, it is the impairment, not the injury, which is being assessed. And that introductory material concludes with the passage cited from page 3/94 at [10] above, which is entirely inconsistent with the Directive.

117. Like the Tribunal, I cannot imagine why the Directive was included in chapter 3 of the Guides. I can only conclude that its inclusion was an oversight. Requiring as it does the assessment of impairment for a spinal injury to be effected as at a period before surgical intervention, the Directive is inconsistent with the whole purpose and tenor of the Guides, and with the provisions of section 46A(1). The passage cited in [10] above from page 3/94, appearing as it does among the general principles applicable to assessment of impairment of the spine, serves only to highlight that inconsistency, as does the problem of the potential for injustice as between individuals depending on the result of the surgery. It is not possible to apply the Directive while at the same time assessing impairment for a spinal injury in accordance with the remaining relevant provisions of the Guides or of the Act. I find no error of law in the decision of the Tribunal.

120. For the reasons given, the answer to both questions must be No. The appeal will be dismissed. Counsel may wish to make submissions as to costs.

[1] [1998] 1 VR 616 at 621, 625 and 626

[2] see Pearce & Geddes: Statutory Interpretation in Australia 5th edition at 7.18.

[3] [2003] VSCA 60 at [24]

[4] [1971] HCA 12; (1970) 127 CLR 106

[5] [1998] HCA 28; (1998) 194 CLR 355 at 381-2