Consideration of the issues
30 The Tribunal concluded that Mr Parker suffered an injury as that term is understood for the purposes of s 6A(2) of the SRC Act (Comcare v Houghton [2003] FCA 332 per Lindgren J [20]) as an unintended consequence of medical treatment paid for by the Commonwealth (s 6A(2)(a) and (b)). Thus, Mr Parker suffered, as a statutory construct, an injury arising out of or in the course of his employment.
31 That injury resulted in impairment as the injury to Mr Parker's right eye resulted in the 'loss of the use or the damage or malfunction of [a] part of the body' of Mr Parker (see the definition of impairment in s 4(1) of the SRC Act) and thus a liability arose to pay compensation to Mr Parker in respect of that injury (s 14(1) of the SRC Act).
32 However, the injury resulted in impairment that was 'likely to continue indefinitely' (see the definition of permanent in s 4(1) of the SRC Act). That state of 'likelihood' was satisfied because Mr Parker's right eye was found to be dead, shrunken and potentially in need of removal [11]. However, for the purpose of determining whether an impairment is permanent, s 24(2) requires these matters to be considered:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
33 Accordingly, having regard to the findings of the Tribunal, Mr Parker suffered impairment, namely, the loss of use of his right eye; that loss will endure for the rest of his life; it cannot improve as the eye is, in every relevant sense, dead; and the analysis of the problem has been the subject of extensive medical consultation and review. Mr Parker's impairment is thus a permanent impairment.
34 Subject to Part II of the SRC Act, s 14(1) which forms part of Division 1 of Part II (Part II - Compensation; Division 1 - Injuries, property loss or damage, medical expenses) provides for a liability in the respondent to pay compensation in respect of an injury resulting in impairment. Section 24(1) of the Part II specifically addresses a liability to pay compensation in respect of an injury where that injury results in a permanent impairment. An injury contemplated by s 6A(2)(b) suffered by a person to which s 6A applies, is an injury for the purposes of s 24(1) if such an injury results in a permanent impairment. A liability arises in the respondent to pay compensation to Mr Parker in respect of that injury.
35 The facts as found establish that Mr Parker suffered an injury which resulted in a permanent impairment.
36 Section 24 is contained in Division 4 of Part II of the SRC Act. Division 4 deals with 'Injuries resulting in impairment' and s 24 deals with 'Compensation for injuries resulting in permanent impairment'. Section 24 is in these terms:
24. Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 24, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
An amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
An amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
37 In Canute v Comcare [2006] HCA 47; 80 ALJR 1578, their Honours, Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ at p 1580 [6] described the structure of s 24 of the SRC Act in these terms:
Section 24(1) is the general provision imposing liability upon Comcare to pay compensation where an injury results in a permanent impairment. However, s 24(4) renders s 24(5) the central provision. Section 24(5) requires Comcare to determine 'the degree of permanent impairment of the employee'; this is to be expressed as a percentage (s 24(6)). The compensation payable under s 24(1) is the equivalent percentage of the 'maximum amount' (s 24(3), (4), (9)), subject to the threshold in s 24(7). The content of the phrase the 'degree of permanent impairment of the employee' is not specifically stated in the Act; that is left to the 'approved Guide' (s 24(5)).
38 Section 24(5) directs the respondent to determine the 'degree of permanent impairment of the employee' resulting from an injury, under the provisions of the approved Guide. The 'key statutory criterion of the occurrence of "an injury"' resulting in a permanent impairment has been fulfilled as found by the Tribunal. Section 24(5) requires the respondent to approach the 'criteria and methodologies set out in the Guide' through the 'prism' of an injury and assess the degree of permanent impairment of Mr Parker 'resulting from that injury' (Canute v Comcare (supra) [14]). In that sense, the terms of s 24(5) are 'quite clear'. (Canute v Comcare (supra) [14]).
39 Accordingly, s 24(5) requires the respondent to determine the degree of permanent impairment of Mr Parker resulting from an injury, 'under the provisions of the approved Guide'. Prima facie, the Guide as a subordinate instrument cannot alter the burden of the clear statutory inquiry and determination required by s 24(5) by adding a qualification to the question or matter to be determined. For example, the question is not 'what degree of permanent impairment of Mr Parker has resulted from the injury suffered by Mr Parker having regard to whether, had the injury not occurred, Mr Parker would have suffered permanent impairment or the same degree of permanent impairment as a result of other causes (including the progression of an underlying pre‑existing condition)'. Since the key criterion of an injury resulting in permanent impairment has been fulfilled, the only inquiry required by s 24(5) is a determination of the degree of permanent impairment of Mr Parker resulting from the injury. That determination requires an acceptance of the 'fulfilled' nexus between the injury and permanent impairment and directs reference to the provisions of the approved Guide for the purpose of calculating the degree of permanent impairment of the individual in order to give voice to the percentage and thus the amount of compensation to be paid having regard to s 24(3) and s 24(4).
40 Section 28 provides that Comcare may from time to time prepare a written document to be called the Guide under the title previously mentioned [12]. Section 28(1) requires the Guide to set out:
(a) criteria by reference to which the degree of permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
41 The Guide may from time to time by instrument in writing be varied or revoked (s 28(2)); the Guide or any instrument of variation or revocation is of no force or effect unless approved by the Minister (s 28(3)); where Comcare, a licensee (which includes a Commonwealth authority or a corporation that is licensed or taken to be licensed under Part VIII - Licences to enable Commonwealth authorities and certain corporations to accept liability for, and/or manage, claims) is required to assess the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding and any assessment shall be made under the relevant provisions of the approved Guide (s 28(4)); the percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in s 28(1)(c) may be 0% (s 28(5)); in preparing criteria for the purposes of s 28(1)(a) and (b) (or variations) regard must be had to medical opinion 'concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed' (s 28(6)); copies of the Guide or any variation must be laid before each house of Parliament as required (s 28(7)); and copies of the Guide as approved by the Minister are to be available to a person upon application and payment of a fee (s 28(8)).
42 Section 28(9) provides that ss 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 (Cth) apply in relation to an approved Guide or an instrument varying or revoking the Guide approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document. Section 28(10) provides that for the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with s 28(9), a document referred to in s 28(9) shall be taken to have been made on the date on which it was approved by the Minister.
43 Sections 48, 49 and 50 of the Acts Interpretation Act 1901 were repealed from 1 January 2005 by the Legislative Instruments (Transitional Provision and Consequential Amendments) Act 2003 (Cth) (No. 140, 2003) and subsections (7), (9) and (10) of s 28 of the SRC Act were repealed from 13 April 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (No. 53, 2007).
44 The first edition of the Guide was approved by the Minister of State for Industrial Relations by Notice dated 27 July 1989. That Guide, described as the first edition of the Guide, was revoked pursuant to s 28(2) on 1 September 2005 in respect of claims made under s 24 received after 28 February 2006. The second edition of the Guide dated 1 September 2005 was approved by the Minister on 30 September 2005. Since Mr Parker's claim was made prior to 28 February 2006, the first edition of the Guide is the applicable instrument (see pp (iii) and (iv)) of the second edition of the Guide).
45 The Guide, of course, is a Guide to a particular task, namely, the assessment of the degree of permanent impairment of an individual resulting from an identified injury. Part A of the Guide sets out 12 categories of permanent impairment of functional aspects of the human condition, for example, the cardiovascular system (Item 1), skin disorders (Item 4), the visual system (Item 6), ear, nose and throat disorders (Item 7), neurological function (Item 12). Item 13 sets out some miscellaneous matters to be considered and Item 14 is a combined values chart which sets out decimal equivalents of impairment ratings. Part B of the Guide deals with non‑economic loss and addresses matters such as pain and suffering, loss of amenities of life, loss of expectation of life and related matters. The Combined Values Chart enables an impairment to be expressed as a percentage value of the individual's 'whole person impairment' based upon an adoption of 'concepts' used by the American Medical Association in formulating particular Guides for similar purposes, relevantly adapted however to suit the specific needs of relevant Commonwealth legislation.
46 Pages 3 ‑ 6 of the Guide set out the principles of assessment and pages 7 and 8 set out the glossary of terms which adopt defined terms from the SRC Act. The Guide recites these principles:
Impairment and Non-Economic Loss
Impairment … relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person. The measure of 'activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
Non‑economic loss … is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.
Whilst 'activities of daily living' are used to assess impairment they should not be confused with 'lifestyle effects' which are used to assess non‑economic loss.
Permanent
[The Guide quotes the definition of permanent and the criteria identified in s 24(2) of the SRC Act, and observes] An impairment will generally be regarded as permanent when the recovery process has been completed, ie. when the full and final effects of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved.
The Impairment Tables
Part A of the Guide is based on the concept of 'whole person impairment' …
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
… this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide.
Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to a multiple loss of function.
Likelihood of Reduction in Degree of Impairment
Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed. In particular, regard shall be had to an employee's unreasonable failure or refusal to act in accordance with medical advice or to submit to medical treatment which would reduce the degree of impairment.
Aggravation
An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre‑existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil.
Where it is possible to isolate the compensable effects of an injury upon a pre‑existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.
47 The principles of assessment, in essence, recognise that the task to be addressed is one of determining the degree of permanent impairment of an individual resulting from an identified injury. The method is to strike that degree of permanent impairment to the individual as a percentage of whole person impairment as a measure of the diminution in function of a normal healthy person. The respondent relies upon the provision of the Guide that address aggravation. The respondent says the Tribunal properly construed and applied the provision of the Guide addressing aggravation on the footing that Mr Parker's permanent impairment is attributable to the natural progression of a pre‑existing or underlying condition of a 'right central retinal vein occlusion'. The respondent says Mr Parker would have suffered permanent impairment in the form of a permanent loss of sight in the right eye in any event by reason of the natural progression of a loss of sight as a result of the occlusion causing a deprivation of blood flow to the retinal cells.
48 There seems to me to be two difficulties with this construction.
49 First, the section of the Guide dealing with aggravation contemplates that the individual's impairment must be 'entirely attributable to a pre‑existing or underlying condition' or alternatively to the 'natural progression of such a condition'. As a matter of construction, it may be that permanent impairment must be either entirely attributable to a pre‑existing or underlying condition or 'entirely attributable' to the natural progression of such a condition. In other words, it is not clear whether the phrase 'entirely attributable' governs the notion of the natural progression of such a condition. Clearly, Mr Parker's impairment is not 'entirely attributable' to a pre‑existing or underlying condition because the medical evidence accepted by the Tribunal and the finding of the Tribunal is that Mr Parker suffered an injury in the form of a tractional retinal detachment or retinal elevation as an unintended result of a medical procedure. In other words, there is a direct nexus between an injury and resultant permanent impairment not an impairment entirely attributable to a pre‑existing or underlying condition.
50 The second difficulty is that the impairment is neither attributable nor entirely attributable to the natural progression of a pre‑existing or underlying condition because the medical evidence is clear and the findings of the Tribunal are to the effect that Dr Ambler recommended and conducted a therapeutic intervention which he hoped would be efficacious in stabilising and possibly restoring sight to the right eye but which resulted in an unintended consequence of an injury resulting in permanent impairment. As a matter of textual construction, neither limb of the provision dealing with aggravation applies to Mr Parker's circumstances.
51 In this case, there is an identified injury to Mr Parker which has resulted in a permanent impairment.
52 The key statutory criterion has been satisfied and the question the respondent must determine is the degree of permanent impairment so as to enable a percentage calculation to be struck so as to bring about the calculation of the amount of compensation to be paid. The criteria and methodologies set out in the Guide must be applied through the 'prism' of the injury Mr Parker suffered resulting in permanent impairment. Reliance by the respondent on the 'aggravation' provision of the Statement of Principles in the Guide fails to recognise that Mr Parker suffered an injury resulting in permanent impairment and not impairment entirely attributable to a pre‑existing or underlying condition, or to the natural progression of such a condition. In relying on the aggravation provision of the Guide, the respondent is essentially postulating that permanent impairment has not resulted from an injury and that the 'key criterion' in reliance upon which the determination under s 24(5) is to proceed is not satisfied. However, the Guide only operates in circumstances where an injury has been suffered by an employee resulting in permanent impairment.
53 To the extent that the Guide seeks to operate in circumstances where an individual has suffered an injury resulting in permanent impairment, by qualifying the determination of the degree of permanent impairment by asking, additionally, whether Mr Parker would have suffered blindness in the right eye had the injury not occurred, the Guide cannot do so. As a subordinate instrument, the Guide cannot alter or qualify the statutory burden imposed upon the respondent by s 24(5) of the SRC Act by introducing into the determination a notion of what would have occurred but for the injury. Nor can the respondent refuse to make the determination of the degree of permanent impairment of the individual as required by s 24(5) by considering that matter or, having considered that matter, reduce the compensation to nil by finding a 0% (degree) of permanent impairment.
54 There is nothing in ss 24 or 28 of the SRC Act that diminishes the obligation of the respondent to determine the degree of permanent impairment by examining the injury and the resultant permanent impairment by making that determination through the prism of the injury and the permanent impairment resulting from that injury. What might have occurred had the injury not been suffered giving rise to resultant permanent impairment is not to the point.
55 Accordingly, the Tribunal erred in the construction of s 24 of the SRC Act and the role and construction of the Guide.
56 The decision of the Tribunal must be set aside.
57 Section 44(4) of the AAT Act confers a power upon the Court in the exercise of the jurisdiction conferred by s 44(1), to make such order as the Court thinks appropriate by reason of its decision. Mr Parker has engaged in a long process of decision‑making, internal review and review by the Tribunal in relation to these questions. The applicant by the Amended Notice of Appeal seeks an order that the respondent is liable to pay compensation to the applicant in respect of the injury suffered by him resulting in permanent impairment, pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (Cth). However, it seems to me that the proper course is to set aside the decision of the Tribunal in relation to the s 24 decision (Decision Q2005/572) and order that the matter be remitted to the respondent to make the determination required by s 24(5) of the SRC Act without the hearing of further evidence subject to the following directions:
(i) the respondent is liable to pay compensation to the applicant pursuant to s 24 of the SRC Act in respect of an injury to the applicant's right eye resulting in permanent impairment by reason of the total loss of sight in the applicant's right eye; and
(ii) in making the determination required by s 24(5) of the SRC Act the provision of the Guide under the heading 'Aggravation' has no application in the making of the determination.
58 It should be noted that for the purposes of applying the SRC Act to defence‑related claims and matters arising out of those claims, Part II applies as if references in that Part to Comcare were references to the respondent (s 147, Division 3, Part XI).
59 Since Mr Parker suffered the injury in or about March 2001 and it is now August 2007, I propose to make a further order that the respondent determine the degree of permanent impairment of Mr Parker resulting from the injury, identify the amount of compensation payable to Mr Parker and pay the amount of compensation in discharge of the liability arising under s 24(1) of the SRC Act, within 30 days of these orders.
60 I propose to give liberty to apply on two days notice should circumstances emerge that render it not possible for the respondent to comply with this latter order within 30 days although such circumstances would necessarily, of course, be extraordinary.
61 As to the question of costs, I propose to reserve the determination of costs. It seems to me appropriate to order the respondent to pay the costs of and incidental to the proceeding. However, I am also minded pursuant to the discretion conferred by s 44(4) of the AAT Act to order the respondent to pay the costs incurred by the applicant in seeking to establish the merits of the position before the Tribunal. Such an order may be appropriate although I have not had the benefit of any submissions on the question of costs, whether confined to the proceeding in this Court or otherwise.
62 Accordingly, the Court directs that the applicant file short submissions on costs within seven days and the respondent file submissions within a further seven days.