Last amended: 10 October 2013
It sometimes happens that an incapacitated person suffers from more than one ailment, each one of which is on its own, capable of causing incapacity for work. Alternatively, a person may suffer from several medical conditions, each not of itself a cause of incapacity, but incapacity has nevertheless arisen from the aggregated effects of all these conditions.
Cases involving the action of several incapacitating conditions – i.e. each capable of causing total incapacity on their own – cause no problems where all of those conditions are compensable. It is clear that there is an entitlement to weekly payments in all such cases.
However, complications may occur where not all of these totally incapacitating conditions are compensable. In such a case, it is only the first condition i.e. the first one to cause total incapacity, which has significance in relation to incapacity payments.
Obviously, if a medical condition has already removed all capacity for employment, it is not possible for a second and equally severe condition to cause any additional loss of capacity. In fact, while the second condition might be even more severe than the first and equally capable of causing incapacity for work, there is no residual capacity for work for that second condition to remove.
This means that where the person suffers from two or more conditions, each capable of incapacitating him/her for all work:
- Entitlement to weekly payments applies only where it was a compensable condition which first produced totally incapacitating effects. This entitlement continues while that condition continues to produce incapacitating effects i.e. regardless of the relative severity of other potentially incapacitating ailments.
- Conversely, weekly payments may not be made where it was a non-compensable condition that first caused total incapacity. This state of affairs continues while that non-compensable ailment continues to produce effects. The relative severity of a subsequent compensable ailment during this period, is not relevant.
This approach is based upon the High Court case of Dawkins v Metropolitan Coal (1947) which concerned a coal-miner who, in 1938, was diagnosed with both non-compensable tuberculosis and a compensable pulmonary fibrosis. The fibrosis however, was not very advanced at that stage. Only the tuberculosis incapacitated him and weekly compensation was not therefore payable. In 1945 however the pulmonary fibrosis had advanced so far that it would have incapacitated Mr Dawkins on its own, i.e. 'quite independently', even if he had not suffered from the tuberculosis. The tuberculosis however, also continued to incapacitate him in 1945 and had done so continuously since 1938. The court declared that there was no basis to make weekly payments as the tuberculosis had already removed any and all capacity for work so that there was now no additional loss of capacity for the Act to compensate.
In other words, Dawkins v Metropolitan Coal affirmed the principle that one can not be simultaneously incapacitated twice-over and it is therefore the initial removal of capacity for work which is deemed to be the sole cause of incapacity.