Whittaker, Dennis John v Comcare [1998] FCA 1099

Whittaker, Dennis John v Comcare [1998] FCA 1099

Where both Tables 9.2 and 9.5 of the Guide are applicable for assessing permanent impairment from lower limb injury, the assessment yielding the most favourable result to the employee must be adopted; the Guide should be construed to permit assessment of any lower limb injury, including to joints, under Table 9.5 if that results in a greater impairment, and there is no discretion to select a less favourable table.

Jurisdiction
Australia
Judgment Date
07 September 1998
Procedural Posture
Special Case / Determination of Questions of Law Referred by Administrative Appeals Tribunal
Outcome
Questions of law answered as set out; costs awarded to applicant
Legal Topics
['interpretation of Statutory Instruments' 'permanent Impairment Assessment' 'employee Compensation' 'construction of Compensation Guides']
['administrative Law' 'statutory Interpretation' "workers' Compensation"] ['interpretation of Statutory Instruments' 'permanent Impairment Assessment' 'employee Compensation' 'construction of Compensation Guides']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Special Case / Determination of Questions of Law Referred by Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether Table 9.5 in the Comcare Guide can be used for assessment of permanent impairment from injury to any part of the lower limb, including joints;' 'Whether Table 9.2 is the applicable table for injury to tissues integral to a joint;' 'Whether Table 9.5 is limited to parts of lower limb other than joints;' 'Whether there is a discretion in selecting between Tables 9.2 and 9.5;' 'The basis for exercising any such discretion.']

Ratio Decidendi

Where both Tables 9.2 and 9.5 of the Guide are applicable for assessing permanent impairment from lower limb injury, the assessment yielding the most favourable result to the employee must be adopted; the Guide should be construed to permit assessment of any lower limb injury, including to joints, under Table 9.5 if that results in a greater impairment, and there is no discretion to select a less favourable table.

Court Disposition

Questions of law answered as set out; costs awarded to applicant

Orders

  • ['Table 9.5 can be used for assessment of permanent impairment from injury to any part of the lower limb, including joints.' 'Table 9.2 is applicable to joint injury where assessment under it yields a higher impairment than under Table 9.5.' 'Table 9.5 is not limited to non-joint injuries.' 'No discretion exists...