Compensation test case

Press, 27 February 1980, Page 7

Compensation test case

A married woman severely, injured in a motor accident! in 1976 should have been! awarded several times the I limit of $lO,OOO allowed: under the Accident Compensation Act, 1972, Mr Justice Casey said in a test case reserved decision given in the Administrative Division of the Supreme Court. Norma Mary • Florence Jones, the wife of a trotting trainer, was originally awarded $2OOO by the Accident Compensation Commission. On a review of that decision by a hearing officer under section 154 of the act the amount was increased by 54500 and $5500.

Mrs Jones appealed! against that decision to the Accident Compensation Ap-i peal Authority (Judge Blair)! who refused to increase the; sum and confirmed the! award of $6500. The matter was then taken to the Administrative Division of the Supreme Court and the case was heard on October 29, 1979, when Mr. I. J. D. Hall appeared for Mrs Jones and Mr J. A. L. Oliver for the Accident Compensation Commission. In his deicsion Mr Justice Casey said that Mrs Jones appealed against the decision of the .Appeal Authority confirming an award of $6500 made to her by way of lump sum under section 120 of the act.

•In January. 1976, Mrs' Jones suffered severe injuries in a motor accident. The . injuries included fractures of the right thigh bone, both upper shin bones and ribs and lacerations to the face and hands. She was awarded $2OOO by the Commission but that was increased to $6500 on review by a hearing officer. “His decision outlines the very serious disabilities

irom which Mrs Jones will suffer for the rest of her life. She is now 45 and bothi her knees . are disorganised and deformed, with considerable scarring; her legs are bowed and she is in considerable continuous pain walking with an awkward and ungainly gait. “Any movement is clearly undertaken only with pain, and therefore only deliberately. She suffered from depression and at the time of the hearing in April, 1978, was being treated with tranquillisers. She can look forward to continuous pain, probably worsening throughout the rest of her life and cannot walk at all on unSeven ground and requires help upstairs,” said Mr Justice Casey; quoting from the report of the hearing officer.

“This lack of mobility has) [had a profound effect on Mrs Jones’s lifestyle. Before the accident her life was with horses. Her major interest and enjoyment was in helping in the care of her own and her husband’s stable, riding, driving, feeding and currying, and gll the myriad of tasks that need to be done in the breeding, training and care of.trotters. “All she can now do is to observe frbm a distance the efforts of others. Nor can she look forward to improvement. The medical evidence is that arthritic changes are already developing in the left knee joint,” the report said. Within 10 years Mrs Jones would certainly require . further treatment dependent on the level of pain she could sustain. The hearing officer had also detailed other social and leisure activities which Mrs Jones could no longer engage in and he summed up: “From being a physi-

cally Adv e person who: enjoyed performing a wide; range of activities, she has: become a person whose! lenjoyment must now be at (second hand.” Without further dis-, cussion or reasons the hearing officer simply increased the sum of $2OOO by an additional $4500, Mr Justice Casey said.

Mrs Jones took the matter to the Appeal Authority who confirmed that award in a judgement in December 1978.

In that judgment the Authority said that section 120 had to be read in its context in the act which did not purport to grant complete restitution, which he described as:

“A principal of common law based on fault and requires a person whose fault has caused injury to restore the injured, person to his original position by the payment of appropriate damages. This principal has no place in the Accident Compensation Act which has rejected the idea of fault as the basis for compensation in favour of a scheme whereby all accident victims are eligible for practical aid and compensation payments which will cushion the effects of the accident but not necessarily provide full restitution in the common law sense.” The Authority then referred to earlier section of the act whereby “losses and hardship flowing from accident can be minimised.” Those included rehabilitation and retraining aid, the payment of a percentage of loss of earnings and compensation as provided for certain other losses within defined limits. He instanced permanent loss of bodily function as being compensated “not by

:the yardstick of restitution but by a system of sched uled payments with a maximum amount.” Section 119 [fixed the maximum for [those items at $7OOO. The Authority had felt that the hearing officer would be aware that no award of money could be an adequate recompense and, unlike the common law sys-' tern, the Commission’s responsibility would not necessarily end with the payment of a lump sum under section 120 because, if her condition should deteriorate, the award under section 119 might be increased and further medical treatment would be taken care of.

In dismissing the appeal the Authority had said that he was unable to say that the Hearing Officer had misinterpreted the section.

His Honour said that the appeal to the Supreme Court was on a question of law, or if the case was one which by reason of its public importance or for any other reason ought to be submitted to the Supreme Court.

The major issue before him, Mr Jutsice Casey said, was whether the limitation of $lO,OOO meant that the Commission was entitled to exercise its discretion byfixing its award in relation to a scale in which $lO,OOO represented an appropriate payment for the worst possible injury. Or alternatively, as Mr Hall had contended, that that figure merely represented an upper limit or ceiling to an award.

Mr Justice Casey held that Parliament did not mean to impose a further limit by way of a scale of values within the figure of $lO,OOO. Quoting from a Queensland case, Mr Justice Casey said that the judge thought that the approach which should be adopted was “to do the best one can to award a sum which will afford proper compensation for the injury received. subject to the limitation of the figure set.” “This seems an apt description of the way' the Commission should approach its task under section 120.

“Having regard to the disabilities described in the hearing officer’s decision, about which there is no dispute, I have no hesitation in finding that the sum of $6500 is so far below what could be reasonably regarded as adequate compensation for the matters mentioned in section 120, that both he and the Appeal Authority must have applied a wrong principle in their assessment.

“A consideration of the Authority’s decisions on this section suggest that the scale approach which 1 have found to be inappropriate has. been adopted in this case.

“On a proper approach, the award of compensation should have been several times the limit of $lO,OOO imposed. In these circumstances there is nothing to be gained by sending the matter back for reconsideration.

“The decision of the Appeal Authority is modified by increasing the compensation to the maximum allowable under section 120 of $lO,OOO. Mrs Jones is entitled to costs which I fix at $5OO together with expenses,” said Mr Justice Casey.