Lilley v Comcare [2013] FCA 26

Lilley v Comcare [2013] FCA 26

The Tribunal erred in law by requiring clinical testing for criteria that do not prescribe it, and by accepting as valid objective standards criteria in Table 9.7 that are not fixed with certainty and delegate measurement to decision-makers. Consequently, the criteria for 5% and 10% impairment in Table 9.7 are invalid and the Tribunal's decision is set aside.

Parties
Applicant: Wayne Peter Lilley; Respondent: Comcare
Jurisdiction
Australia
Judgment Date
25 January 2013
Procedural Posture
Appeal / Judgment on Appeal From Administrative Appeals Tribunal
Outcome
Appeal allowed. Tribunal decision set aside. Matter remitted. Declaration of invalidity.
Legal Topics
Assessment of Permanent Impairment, Construction of Legislative Instruments, Validity of Delegated Legislation, Interpretation of Compensation Criteria
Administrative Law Statutory Interpretation Assessment of Permanent Impairment Construction of Legislative Instruments Validity of Delegated Legislation Interpretation of Compensation Criteria

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Parties

Wayne Peter Lilley

Applicant

Comcare

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Administrative Appeals Tribunal

Legal Issues

  1. 1 Whether the Tribunal erred in requiring clinical testing over other medical evidence for assessment of permanent impairment
  2. 2 Whether the criteria for 5% and 10% impairment in Table 9.7 of the Guide provide objective standards capable of certain application or are invalid
  3. 3 Whether the expression 'unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails' imports complete incapacity

Ratio Decidendi

The Tribunal erred in law by requiring clinical testing for criteria that do not prescribe it, and by accepting as valid objective standards criteria in Table 9.7 that are not fixed with certainty and delegate measurement to decision-makers. Consequently, the criteria for 5% and 10% impairment in Table 9.7 are invalid and the Tribunal's decision is set aside.

Court Disposition

Appeal allowed. Tribunal decision set aside. Matter remitted. Declaration of invalidity.

Orders

  • The decision of the Administrative Appeals Tribunal made on 6 July 2011 be set aside.
  • The matter be remitted to the Tribunal to be heard and determined according to law.