Pham v Workcover/Allianz Australia

4 The worker seeks compensation pursuant to s 43 in respect of this on the basis that he has, by reference to the specified disabilities contained in Sch 3, suffered :-

"Total and incurable loss of intellectual capacity resulting from damage to the brain."

5 The worker contends that because he has suffered a permanent loss of intellectual capacity that resulted from damage to his brain he is entitled to the full amount prescribed, that is 100 per cent of the relevant prescribed sum.

6 The respondent contends that the applicant is only entitled to such sum as reflects his actual percentage loss of intellectual incapacity resulting from his organic brain damage.

7 In developing the argument placed before us, the worker's counsel, Mr Beazley, took us to cl 2 of Sch 3 which relevantly provides:-

"Where a disability consists of the permanent loss of a proportion (but not all) of the full efficient use of a physical or sensory faculty, a worker is entitled to a percentage of the compensation payable for total loss of the faculty equal to the percentage of full efficient use lost by the worker. ..."

8 He submitted that intellectual capacity could not be said to be a physical or sensory faculty such that there was no scope to apply cl 2 and make a reduced award to reflect a partial loss. In other words this stipulated impairment is an all or nothing provision. Next he said that Parliament could not have intended for "loss of intellectual capacity" to mean absolute loss of intellectual capacity as this would mean that only a worker in a vegetative state could make a claim under this head of loss. He submitted that the remedial nature of the legislation under consideration suggests that this is a construction that we should strain to avoid.

9 Mr Beazley submitted that the expression "loss of intellectual capacity" should therefore be construed as meaning something less than an absolute loss of intellectual capacity. He contended that we should construe the expression as meaning no more than that the worker's intellectual capacity had been seriously compromised. In this case it was submitted that because it was clear that the worker's loss of intellectual capacity required medication to overcome the effects of epilepsy and had resulted in a total incapacity for work we ought to conclude the worker had, for the purposes of the provision, suffered a total and permanent loss of intellectual capacity.

10 Underpinning the worker's argument is the assertion that cl 2 of Sch 3 does not apply to an assessment of total and incurable loss of intellectual capacity resulting from damage to the brain.

11 There is no obvious reason why Parliament would have intended to treat this specified disability any differently than any other disability specified in Sch 3 and we would require much clearer language to reach that conclusion. It does not strain the language of the relevant provisions to conclude that what this head of loss actually compensates is a worker's permanent damage to the brain, which is of course a physical faculty to which cl 2 can apply. Presumably Parliament considered that "brain damage" was difficult to assess and so what it has done is prescribe the method of assessment of that permanent disability, namely, that it is to be reckoned by the extent of the loss of intellectual capacity.

12 In our view, this is how the provisions under consideration should be construed.

13 It was agreed by the parties that this was the only issue before us and, in light of these reasons, it remains to be determined as to what entitlements the worker has in respect of this claim for compensation. The matter will now have to proceed before a single Member. We therefore remit the matter to the Chamber Judge for general directions.