3.4.2 Effect of Canute, Fellowes & Robson

The High Court decision in Canute was the first case to cast significant doubt on whether the 'whole person' approach taken by the Guide was supported by the wording in the SRCA. The judgment made in this case decided that under subsection 24(5) of the SRCA, there should be a separate assessment of the degree of PI for each separate injury suffered by an employee that results in a permanent impairment.  This includes sequela injuries (injuries which arise from, occur subsequent to, or are caused by the initial injury or associated treatment) that satisfy the definition of injury in section 5A of the SRCA. See Chapter 5 for information regarding calculation of WPI amounts.    

The High Court decision in Fellowes reinforced the judgment in Canute, and added that where two injuries result in separate impairments to separate body parts, they must be assessed separately, even if they are assessable under the same Table in the Guide. In determining whether distinct impairments to separate body parts have been suffered by the employee, the delegate must be satisfied that all conditions meet the SRCA definitions of injury, permanent and impairment and that the effects of the conditions can be isolated from one another i.e. the person is not being compensated twice for the effects of one condition.

The Full Federal Court decision in Robson reinforced that the SRCA requires an injury-based approach, and that separate injuries and their associated impairments must be assessed separately and in isolation, even if they relate to the same body part, system or function, or there is a causal relationship between the two injuries.

References are still to WPI in this manual.  As the Federal Court judgment in Broadhurst v Comcare (2010) FCA 1034 states:

The High Court did not say in either Canute or Fellowes that it was not permissible to ultimately assess a measure of compensation for each impairment by reference to an assessment of the degree of whole person impairment represented by an individual impairment.

...It is now clear that what must be assessed is an individual impairment but there seems no reason why that assessment may not be expressed in terms of whole person impairment. Secondly, such an approach is the only way to avoid anomalous results...

I am satisfied, therefore, that neither Canute nor Fellowes requires a conclusion that the notion of whole person impairment may not be used to express a degree of individual impairment of an employee provided each impairment is, as required by Canute and Fellowes, assessed individually and without reduction.

Overall, careful consideration would need to be given on the basis of the medical evidence, as to whether each condition is a distinct and separate injury/disease (as defined in the SRCA). The impairment arising from each injury must individually meet the appropriate permanent impairment  threshold in the SRCA for PI compensation to be payable for that injury.