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[1994] AATA 488
General information, not legal advice.
Administrative Appeals Tribunal of Australia
1994-04-27
Dr J
Original judgment source is linked above.
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(i) That the identification of the applicant on the first page of the written reasons be amended to read: "David Grime";
(ii) That the date on the first page of the written reasons be amended to read "27 April 1994".
1. This is an application to review a decision of the respondent dated 17 March 1992. The applicant sought review of this decision in his application lodged with the Tribunal on 21 September 1993, although that decision was itself affirmed by the respondent's delegate on 24 June 1993, pursuant to subsection 62(1) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
2. Logically, it is the later determination that should be the subject of review by this Tribunal, as, upon reconsideration, it and not the earlier decision becomes the operative determination from the time it is made until any new redetermination. The respondent, in the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents), treated the application as seeking review of the decision of 24 June 1993.
3. Both decisions are to the same effect, finding that compensation was not payable for an injury suffered by the applicant on 17 May 1991, and therefore nothing turns on which decision the Tribunal proceeds to review, but the Tribunal considers that it is the decision of 24 June 1993 that is properly before it. That determination provides:
" ... [I] find that the Claimant suffered an injury arising out of or in the course of his employment on 17 May 1991 which resulted in a period of incapacity for work and a degree of permanent impairment. I also find that the injury referred to was caused by serious and wilful misconduct on the part of the Claimant within the meaning of section 14(3) of the Act by virtue of the operation of Section 4(13) of the Act. I further find that the permanent impairment suffered by the Claimant as a result of the injury he sustained is not of a degree sufficient to be considered to be "serious" within the meaning of Section 14(3) and does not therefore operate to restore his entitlement to compensation by the operation of that Section...".
4. As identified by the parties at the hearing of this matter on 10 March 1993, the principal issues before the Tribunal are: whether the applicant's injury arose out of, or in the course of his employment, as required by section 6 of the SRC Act; whether the injury incurred by the applicant resulted in serious impairment as required by subsection 14(3) of the SRC Act. It was not in dispute that the applicant had engaged in serious and wilful misconduct as defined in section 4(13) of the SRC Act, nor that the impairment of the applicant, at whatever level it was found to be, was permanent. Nor is it in issue that the applicant's serious and wilful misconduct was the cause of his injury.
5. Before the Tribunal were the T Documents, two legal submissions tendered by the applicant, and a legal submission and report of Associate Professor Starmer dated 21 February 1994 tendered by the respondent. The applicant, who gave oral evidence, was represented by Mr McKenzie of counsel, and the respondent by Mr Wallace of counsel.
6. The applicant's evidence in chief was that he had worked for the respondent since December 1972, and in May of 1991 was working as an acting Communications Officer, grade 5. His job often required that he stay in hotels while working on location, and he was paid an allowance by the respondent to cover his expenses. On Thursday night, 16 May 1991, Mr Grime was staying at the Sovereign Hotel at Mayfield, and was working that week at the Stockton line depot.
7. At approximately 5.30pm, the applicant finished work and returned to the Sovereign Hotel. He went to the Tubemakers' Club (also known as the Phoenix Club) with two other employees of the respondent at about 7.00pm that evening, and he drank about 16 "Toohey's Blue" middies between arriving at and leaving the club at approximately 12.30am. He and his co-workers travelled from and returned to their hotel by taxi. The applicant stated in cross-examination that he always caught taxis when he went to clubs, as he knew that if he had more than four drinks, he could not drive. The applicant gave evidence that to the best of his knowledge he drank only light alcohol beer that night, as did one of the other men, while the third drank full strength beer. Mr Grime did not buy all his own drinks, as the three men drank in shouts, but he believed that he was being bought low alcohol beer by his companions.
8. The applicant went to bed at approximately 1.00am and rose at around 4.45am, showered, dressed, and had a cup of coffee. The applicant stated that he did not feel affected by alcohol at this time. He set off to Stockton at about 5.40am in the work car provided by the respondent, and was involved in a motor vehicle accident at 6.05am.
9. The applicant cannot recall many details of the accident. He was taken by ambulance to Mayfield Hospital, and then to John Hunter Hospital in Newcastle, where he had surgery to his right foot and ankle.
10. At document T37, there is record of the applicant having been convicted of driving with a middle range prescribed concentration of alcohol (PCA), it being 0.136%, on 17 May 1991 at 6.05am, the time of the accident. This was not put in issue by either party. The applicant was fined $400 and suspended from driving for 3 months.
11. The applicant's injury report of 27 May 1991 does not record the applicant suspecting that he had an illegal blood alcohol level. The applicant wrote, in a letter to the respondent of February 1992 (T18) that he was "... honestly astounded when I found out in September that I had shown a high reading ...", and stated that he had drunk only a small quantity of low alcohol beer the night before.
12. In cross examination it was put to the applicant that he had knowingly drunk full strength beer the previous night, which he denied. It was also put to the applicant that he knew he was affected by alcohol when he left for work the following morning, which he also denied. The applicant did agree that if he was aware that his blood alcohol level was above 0.05%, then he would not have gone to work. The respondent sought to show, by the applicant's letter to the respondent dated February 19 1992 (T18), and the non admission by the applicant to Dr Evans of his conviction for drink-driving when giving a history (T23), that the applicant tried to mislead the respondent as to both the quantity of alcohol the applicant had drunk, and the conviction that had been recorded against him. The applicant stated that he did not inform the respondent of his conviction of his own volition as he did not think it would affect his entitlement to workers' compensation. He also stated that prior to his conviction, he contacted his superiors at work so as to obtain references from them in preparation for his court appearance.
13. In questions from the Tribunal, the applicant stated that after one or two drinks, it was difficult to pick the difference between low alcohol and full strength beer. The respondent's counsel later put it to the applicant that even though the taste difference may be negligible, the applicant would notice the different effect, to which the applicant replied that it would depend on the number of beers consumed. Mr Grime also stated that on the night in question he knew that he had 'had a drink', but was not slurring his words, and did not think he was affected by alcohol.
14. A report of Associate Professor Starmer of 21 February 1994, tendered by the respondent, suggested that for the applicant to have a blood alcohol content of 0.136 at 7.25am on 17 May 1991 (the time the blood specimen was collected), it would have been necessary for the applicant to have drunk 27.4 middies of light beer the previous evening, and that at the time he went to bed, his blood alcohol level would have been 0.200% to 0.264%, the upper range of which is higher than the generally accepted minimum lethal blood alcohol concentration. Associate Professor Starmer concludes that the applicant had " ... greatly understated his alcohol consumption for the evening prior to the collision ...".
15. The Tribunal generally finds the applicant a credible witness who was not evasive under questioning. However, the Tribunal has difficulty reconciling the applicant's testimony with the report of Associate Professor Starmer and the applicant's conviction for a mid range PCA. The applicant did not put in issue the scientific findings of Associate Professor Starmer, and the Tribunal accepts these findings, as opposed to the opinion expressed by him based on them.
16. The Tribunal finds that the applicant had more alcohol on the night of 16 May 1991, than his evidence suggests, and accepts Associate Professor Starmer's report on this point. A possible mechanism for this was that the applicant was being shouted full strength beers, although he thought they were "Toohey's Blue". Whatever the cause, the Tribunal finds that the applicant was more probably aware than not, when he went to bed at approximately 1.00am on 17 May 1991, that he had, to use his own words, 'had a drink', and knew that he was unable to drive. His own evidence of catching a taxi to and from the club and the reason for it is consistent with this finding.
17. The Tribunal finds, however, that when the applicant set off for Stockton at approximately 5.40am, he believed that he was not driving with an illegal blood alcohol concentration, and that he was not affected by alcohol. The Tribunal accepts that the applicant approaches both working and driving seriously, and would not have driven the respondent's vehicle to Stockton if he thought it was illegal. Associate Professor Starmer's report is not inconsistent with this finding, as it offers no opinion on the applicant's state of mind on the morning of the accident, and it is unlikely that such evidence would carry any weight with the Tribunal.
18. Before going on to consider the applicant's injury, it is convenient to consider whether the injury occurred in the course of the applicant's employment. Subsection 4(1) of the SRC Act relevantly defines an injury as being " ... an injury ... suffered by an employee, being a physical ... injury arising out of, or in the course of, the employee's employment; ...". Subsection 6(1) provides for an injury to be treated as having arisen out of, or in the course of, the employee's employment if it was sustained:
(i) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment; ...".
19. There is no issue between the parties that, had the applicant not been driving with a mid-range PCA, he would have fallen within the deeming provision and his injury would have been treated as having arisen out of, or in the course of, his employment.
" ... Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury...".
21. The respondent submitted that subsection 6(3) applied, in that the applicant voluntarily, that is, without force, and unreasonably, having regard to his blood alcohol level, submitted himself to an abnormal risk of injury, the risk of crashing being increased more than 25 fold when the applicant was driving, according to Dr Starmer.
22. Voluntary is defined in the The Macquarie Dictionary (Second Revision) as " ... 1. done, made, brought about, undertaken, etc., of one's own accord or by free choice: ... 4. Law. a. acting or done without compulsion or obligation. b. done by intention and not by accident: voluntary manslaughter. c. made without valuable consideration: a voluntary conveyance or settlement...".
23. In WORDS AND PHRASES legally defined (Third Edition, Butterworths), it is noted that there is no unanimous usage of the word "voluntary" in legal texts or leading judgements. Tomlin J in Re Wilkinson, Page -v- Public Trustee [1926] Ch 842, defined voluntarily as " ... the doing of something as the result of the free exercise of will ...".
24. The subsection may well contemplate the common law notion of voluntary assumption of risk, and the CCH Australian Workers' Compensation Guide (loose leaf) at paragraph 25-430, introduces its discussion to this subsection under the heading "Voluntary assumption of risk". The notion of voluntariness in this context requires that the person submitting to the risk must be in a position of full knowledge and appreciation of it; see Flemming, Law of Torts, Eighth Edition, chapter 13 at page 302. There is no room in the assumption of risk for any concept of constructive knowledge (supra, at 300).
25. In the context of the SRC Act, the Tribunal considers that "voluntarily", for the purpose of subsection 6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken.
26. Given the Tribunal's finding that the applicant was not aware, at the time of leaving for work on 17 May 1991, that he was affected by alcohol, it cannot be said that Mr Grime voluntarily submitted to an abnormal risk of injury. The Tribunal therefore does not accept the respondent's submission on this point.
27. Alternatively, the respondent submitted that the applicant's blood alcohol level was such that any injury sustained by him was not in the course of his employment. This submission had two bases. Firstly, it was submitted that the applicant had given evidence to the effect that if he knew he were over the legal blood alcohol level as prescribed for driving, then he would not have worked and hence not have been driving. Therefore, the applicant could not himself have considered that he was working, and his injury should not be treated by the Tribunal as having arisen out of, or in the course of, his employment.
28. This argument appears reliant upon the Tribunal finding that the applicant knew that he was affected by alcohol when driving to work on 17 May 1991, and loses much of its force given that the Tribunal has found that the applicant did not know he was affected by alcohol at that time. Taken to its conclusion, the submission implies that workers' compensation is only available for injuries that are sustained in circumstances where the worker considers those injuries to have arisen out of, or in the course of, his or her employment. This submission is rejected by the Tribunal.
29. Additionally, the respondent argued that the applicant, by driving while so affected by alcohol, had conducted himself in such a way as to take himself outside the course of his employment. On this point, the applicant submitted that a high blood alcohol level, of itself, does not disqualify the applicant from benefits under the Act. This was evidenced by the preservation of benefits in cases of death, and serious and permanent impairment, where an applicant has been intoxicated and hence guilty of serious and wilful misconduct. Both parties referred the Tribunal to various authorities.
30. In Hatzimanolis and A.N.I. Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473, the majority of the High Court (at 484) stated:
" ... Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment...".
31. The applicant submitted that the case law did not support the proposition that the applicant was guilty of gross misconduct for having driven with a PCA of 0.136%.
32. In Commonwealth of Australia and Robinson (1983) 5 ALD 381, an employee who travelled home after attending an official function and while having a blood alcohol level of 0.13% was not found to have taken himself out of the course of his employment. In Duncan and Commonwealth of Australia (1983) 5 ALD 431, where the applicant, a serviceman, had attended a club on the Base precincts after work, and then had driven home with a blood alcohol concentration of 0.10%, the Tribunal stated:
" ... We accept that the degree of an employee's intoxication may become such that he is no longer to be regarded as in the course of his employment ... In our view, however, the applicant's intoxication was not of that degree...".
34. In Murray -v- Moppett [1958] S.R.(NSW) 59, the applicant had drunk a large amount of rum while performing droving work, and became comatose. He was eventually transported back to camp, and slept by a fire that night. He remained unconscious until the following morning, and it was discovered that his feet had been so severely burnt by the fire that one had to be amputated. In determining that the applicant's injuries arose out of his employment, and that his drunkenness in itself did not disqualify him from compensation, Owen J noted that:
" ... It is natural at first sight to form an impression that the applicant should not receive compensation, but on reflection it seems to me that the real reason for that impression is that his injuries were due to his own serious and wilful misconduct, and not because he was not in the course of his employment or that the injuries did not arise out of it...".
35. The Tribunal accepts that an employee's drunkenness can take him or her outside the course of employment, either because it constitutes gross misconduct (Hatzimanolis), or because the employee is so drunk that she or he cannot be regarded as acting in the course of employment (e.g. Duncan). It well may be that the proper basis of the later proposition since Hatzimanolis is that such drunkenness is an example of disqualifying gross misconduct.
36. Although the High Court in Hatzimanolis did not elaborate on the meaning of "gross misconduct", the Tribunal would not regard misconduct as gross unless there were some degree of flagrancy or deliberateness in the misconduct. In circumstances where the Tribunal has found that the applicant believed himself to be sober, and would not have driven if he had known that his blood alcohol level was above 0.05%, the misconduct of the applicant, although defined in the statute as serious and wilful, does not, to this Tribunal's mind, constitute "gross misconduct".
37. Further, the Tribunal is persuaded to find that the applicant's injuries did arise out of, or in the course of, his employment. His blood alcohol level was found to be 0.136%, and even the level of 0.156% postulated by Associate Professor Starmer is not sufficient in this Tribunal's mind to take the applicant outside his employment, especially given his genuine lack of insight.
38. The Tribunal notes that the decisions of Robinson, Duncan, and Maunder were based on the Compensation (Commonwealth Government Employees) Act 1971, and that the provisions in that Act in relation to deeming employees to be acting in the course of their employment differ significantly from those in section 6 of the SRC Act. It may be that the exclusion provisions in subsections (2) and (3) are exhaustive, but given the Tribunal's findings, and that no argument was made to this effect, the Tribunal expresses no opinion on that point.
39. Further, applicant's counsel did not submit to the Tribunal that the whole period that the applicant was away from his home on work duties was one continuous period of employment for the purposes of workers' compensation legislation. Given the decision in Hatzimanolis, such a submission may well have been accepted by the Tribunal. But given the narrower ground upon which the Tribunal found that the applicant was acting in the course of his employment, it is unnecessary for the Tribunal to further consider this point.
40. The applicant's injury, having arisen out of, or in the course of his employment, is compensable under section 14 SRC Act, which relevantly provides:
" ... (1) Subject to this part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment...
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.".
41. As a preliminary point, the Tribunal notes the respondent's submission that, on its proper construction, section 14 of the SRC Act does not preclude the Tribunal from finding that the applicant's serious and wilful misconduct, which caused his injury, took him outside the course of his employment, and accepts this submission. The Tribunal has found, however, that the applicant's injury arose out of, or in the course of his employment. The Tribunal agrees that it must find that the applicant was acting in the course of his employment when injured before going on to consider if subsection 14(3) leads to disentitlement, and in this sense subsection 14(1) acts as a condition precedent to the operation of subsection 14(3).
42. As previously noted, both parties accept that subsection 4(13) of the SRC Act deems the applicant's conduct in driving with a blood alcohol level of 0.136%, to be serious and wilful misconduct. Both parties also agree that the applicant's injury was caused by his serious and wilful misconduct. It is also not in issue that, at whatever level the applicant's impairment, the impairment is permanent.
43. The only further matter to be decided by the Tribunal is whether the applicant's impairment is "serious" as required by subsection 14(3) SRC Act.
44. The applicant submitted that, as compensation for permanent impairment is payable where the degree of impairment is not less than 10% (subsection 24(7) SRC Act), any impairment greater than 10% should be regarded by the Tribunal as "serious". Alternatively, the applicant submitted that whether an injury was serious or not is a question of fact, that inquiry incorporating the applicant's subjective response to the impairment, and medical evidence.
45. The respondent submitted that the applicant's impairment is minor, and has no substantial effect on his ability to enjoy life. It was submitted that caselaw points to "serious" as being grave or considerable, and that the impairment should not be of a trivial nature.
46. The Tribunal had regard to the authorities cited in argument, and notes as a preliminary point that it is the applicant's impairment, and not the initial injury, that must be serious, and that the assessment of the degree of seriousness of the initial injury is not directly relevant to the inquiry into the applicant's impairment. The Tribunal also notes that impairment relates not only to the applicant's ability to perform work functions but also to the loss of use or function of part of the body.
47. The Tribunal agrees that whether or not the applicant's impairment is serious is a question of fact; see Broken Hill Pty Company Ltd -v- Kuhna (1992) 8 NSWCCR 401.
48. The Tribunal rejects the applicant's submission that an impairment of 10% or more is to be regarded as serious . The fact that a 10% impairment is required in order to receive lump sum compensation (section 24, SRC Act), provides no basis for this then to become the threshold for compensation for serious and permanent impairment under subsection 14(3), SRC Act. In fact, if this were the case, the use of the word "serious" in subsection 14(3) would not have been necessary.
49. In Humphries -v- Poljak [1992] VicRp 58; [1992] 2 VR 129, the majority of the Victorian Supreme Court, in considering the expression "serious long term impairment or loss of a body function" in paragraph 93(17)(a) of the Transport Accident Act (Vic) 1986, observed that:
" ... To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to the pecuniary disadvantage and/or pain and suffering. In forming a judgement as to whether, when regard is had to such consequence, an injury is to be held to be serious the question is asked: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least "very considerable" and certainly more than "significant" or "marked"? Beyond such guidance, it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility ...".
50. This construction, requiring that the impairment caused by the injury be "very considerable" in order to be regarded as serious, is further supported by the juxtaposition of "death" next to "serious and permanent impairment", such that it colours the later phrase with a sense of gravity so as to require that the impairment be more than "marked" or "significant", that is to say, that it be very considerable.
51. The Tribunal considers that, to be serious, the impairment must be very considerable, that is to say, more than marked or significant. Factors such as the financial impact on the applicant, and the residual disabilities, will all be relevant in the determination of this factual issue. Given the newness of the SRC Act, the Tribunal has no recourse to a discernible trend in the consideration of the seriousness or otherwise of an applicant's impairment. In some cases, such as paraplegia (Duncan) or limb amputation (Murray -v- Moppett), it will generally not be in issue that the applicant has a serious impairment.
52. Mr Grime's evidence was that he did not recall the motor vehicle accident of 17 May 1991, but remembers parts of the aftermath, including being taken first to Mayfield Hospital, and then to John Hunter Hospital in Newcastle, where he was operated on by Dr Harrington. The Doctor reported, on 22 July 1991 (T9), that the applicant had sustained a comminuted fracture of his right talus and medial malleolus, this fracture being internally reduced and fixed with two screws.
53. The applicant said he was in hospital for five days, and off work for five months, returning on October 1991. His right foot was painful on return to work, and he used a cane for several weeks.
54. The applicant gave evidence that his right ankle still gives him difficulties. It affects the way he sleeps, and in the morning its stiffness makes him slow to mobilise. Although it "feels good", the applicant is aware of the problem with his right leg, and is restricted in his sports such that he cannot play a full round on a hilly golf course, or kick a football around with his children, or play squash, or jog or swim freestyle without discomfort.
55. The applicant walks six kilometres a day, and can play a full 18 rounds on a flat golf course. He can drive, though not for long periods, and can care for his garden, excepting that he is unable to mow the steep portion of his back lawn. The injury has not caused the applicant to miss work (excluding one week when his ankle was swollen), nor does it hamper him in his work.
56. In cross-examination, the applicant stated that his right foot healed well in the first six months, but has not improved much since this time. The applicant agreed that there is no tenderness or aches in the right ankle.
57. Subsequent reports of Dr Harrington chronicle the gradual improvement following surgery, and with the aid of physiotherapy. In March of 1992 (T21), Dr Harrington notes that the applicant has a good range of movement and can " ... walk for as far as he likes ... he is doing marvellously well ... ".
58. A report of 3 July 1992 (T24) notes that the applicant was making " ... surprisingly good progress from a nasty fracture/dislocation...". The doctor notes that the fracture is fraught with complications and that " ... one couldn't give him carte blanche for the future...", as there remained the possibility of a vascular necrosis of the talus. He assessed the applicant's disability as 10% lack of movement mainly of the subtalar joint, but notes that this could "rocket" if avascular necrosis developed.
59. In his report of 19 April 1993, Dr Harrington notes a percentage disability for the applicant's ankle of 15%, although he states that this could rise quite high if the applicant developed complications, and that the assessment of the percentage disability should be held over for 2 or 3 years.
60. Dr Evans examined Mr Grime on 25 June 1992 (T23), and reported that the applicant's fracture was skilfully treated and that the symptoms in his ankle were moderate. The applicant's main problem was his ankle's residual stiffness, and this and his discomfort were likely to continue. The doctor assessed the applicant's whole person impairment as 15%, and the doctor opined that " ... Mr Grime does have a serious impairment as a result of this injury ...".
61. Dr Khan reported on Mr Grime on 19 January 1993, after an examination and assessment at the request of the respondent (T35). The doctor notes the "remarkable recovery" of the applicant since his "alleged motor vehicle accident", and records that the applicant:
" ... now presents with minimal symptoms of stiffness and restriction of movement of the right ankle with no significant restriction in work-related activities, normal activities of daily living and recreational activities.
Examination carried out today revealed more than a 50% restriction of movements of the right ankle and subtalar joint movements. However the fractures appear to have healed up soundly...".
62. The doctor notes that the restriction in movement is likely to be permanent, and that there is a small possibility of some premature degenerative change in the right ankle. He gives a 15% whole person impairment rating, and records no restrictions in work or leisure activities recounted by the applicant.
63. Although there is some conflict in the medical opinions, and between some of the medical reports and the applicant's evidence, the common ground between them, and the Tribunal's finding, is that the applicant, who fractured his right ankle, suffers a residual movement restriction of approximately 50%. Dr Harrington's reports assess the residual loss of movement at 10% (T24) or 15% (T43), but there is some confusion as to whether he in fact was referring to a whole person impairment rating. While giving evidence before the Tribunal, the applicant demonstrated the movement of the right ankle, and it appears consistent with a 50% movement restriction.
64. There is also much common ground in the evidence as it relates to the subjective effects on the applicant: he can walk for long periods, but not go jogging; he can play a round of golf, provided the course is not too steep; he can perform all his work duties; he can still fish, though has difficulties rock fishing. He does not suffer great pain or discomfort in his right ankle.
65. Having regard to the lifestyle restrictions that the applicant's right ankle injury has subjected him to, the Tribunal can in no way characterise the impairment as "serious", that is to say, very considerable when compared with the range of possible impairments, and more than marked or significant.
66. The Tribunal accepts that the impairment cause the applicant discomfort, and restricts in small but important ways the leisure activities of his life. The applicant's right ankle impairment also makes common occurrences such as getting up in the morning less pleasurable or more difficult, and infringes on his life in countless small ways.
67. But the applicant's injury has healed "remarkably", and he is almost without pain. Mr Grime is able to perform the same work as he did prior to his injury, and can participate in almost all of the leisure activities that he enjoyed prior to the car accident. He leads a full and in no sense disabled life. That in the future he may develop an osteoarthritis does not sway the Tribunal from this view.
68. Properly understood, the opinion of Dr Evan's that the applicant's injury is "serious", is not inconsistent with the Tribunal's finding. It is more that the doctor could not have employed the correct test is assessing the applicant's impairment, and there is nothing in his report that could be taken to qualify the applicant's injury as very considerable or "serious" as required by subsection 14(3) SRC Act.
69. Hence, the Tribunal finds that the applicant did not suffer a serious and permanent impairment as required under subsection 14(3) SRC Act, and hence is not entitled to compensation pursuant to subsection 14(1) SRC Act.
70. The Tribunal therefore affirms the decision under review.
(1992) 173 CLR 473
(1983) 51 ALR 44
(1992) 8 NSWCCR 401