Case: Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535
Outcome: followed
In aid of this submission, Mr Bryant pointed to observations made by the Full Court in Lees v Comcare (1999) 56 ALD 84 , at [39] to the effect that the powers and discretions conferred on the Tribunal by s 43 of the AAT Act are conferred for the purpose of reviewing the decision under review and are not powers able to be exercised at large. Reference was also made to observation of the Full Court of the High court in Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , at 542, [14], taken up by Greenwood J in Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624 , at [52], to the effect that the Approved Guide fell for application through the "prism" of the injury which the claimant had suffered resulting in permanent impairment. Reliance was also placed upon the proposition, flowing from the rejection of a submission to the contrary by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 , at 96, that s 24(5) of the SRC Act was not to be construed in a way which admitted of an assessment of the degree of permanent impairment proportionate to the causal contribution of the incident giving rise to the compensation claim. 40 In Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , in a joint judgement, a Full Court of the High Court emphasised by repetition (226 CLR at 548, [37] and [38]) that the task under s 24(5) involved the assessment of compensation " resulting from an injury ". As the High Court put it, the occurrence of an "injury" "both actuates and defines the ambit of Comcare's duty under s 24 of [the SRC Act]" (226 CLR at 548, [37]). The suffering of an "injury" as defined is antecedent to that assessment task which in this case fell on the Commission rather than Comcare to undertake because Mr Bryant was a member of the Defence Force. 41 As is revealed by the portion of para 50 of the Tribunal's reasons emphasised in the excerpt quoted above, the Tribunal seems to have conceived its task to be to decide whether it was satisfied that the Mr Bryant suffered a degree of whole person impairment " which can be attributable to service life ". With respect, Mr Bryant's entitlement, if any, to permanent impairment compensation was not just to the extent that his employment with the Commonwealth contributed to that impairment to a material degree. It was to compensation in an amount which reflected the degree of permanent impairment resulting from an injury. 42 Canute v Comcare revealed one type of impermissible conflation of inquiry in the determination of permanent impairment compensation, the treating as relevant to the inquiry as to the degree of permanent impairment resulting from an injury something which independently satisfies the statutory definition of an "injury". This case, in my opinion, reveals another, the treating of employment contribution as relevant to the determination of the degree of permanent impairment "resulting from an injury". The contributors to an ailment may be multi-factorial. If an employee's employment by the Commonwealth contributed in a material degree to the employee's ailment, than that employee has suffered a "disease" and thus an "injury" for the purposes of the SRC Act . That "injury" then provides the "prism" through which permanent impairment compensation "in respect of the injury" is determined: s 24(1) SRC Act . So far as that "injury" is concerned, and subject of course to the Tribunal's ability to revisit that antecedent question, the focus of inquiry then shifts to the degree of permanent impairment resulting from that injury as assessed by reference to the Approved Guide. In that inquiry, it is nothing to the point that there may be other contributors to the "injury" apart from employment with the Commonwealth. 43 This type of conflation of inquiry is also evident in part of the emphasised portion of para 49 of the Tribunal's reasons, "the headaches reported could not then be attributable to service life and therefore be compensable under Table 13.1". The reference to "compensable under Table 13.1" is also, strictly, erroneous as the source of the liability to pay permanent impairment compensation is s 24 of the SRC Act , not the Approved Guide. This reference though was not the subject of any complaint and seems to me to be but infelicity or casualness of expression.