Precedent Cases

Past decisions that have been handed down have not provided an overall clear direction for future claims where an injury was sustained prior to 01/12/1988 and claims for permanent impairment were then lodged after 01/12/1988.

However, some definition of sections 124, 24, and 27 of the Act has occurred.

Of the cases heard by the Federal Court, there are four which are particularly relevant to the present application of the Act and which offer guidance in determining transitional cases:

• Brennan;

• Schlenert;

• Miles; and

• Levett.

In these cases, the Court found:

• in the Brennan case:

Despite an injury resulting in impairment prior to 01/12/1988, claims for permanent impairment lodged after that date should be determined having regard to sections 124 (3) and 124 (4) of the Act.

The date of permanence of an impairment, notwithstanding when the injury stabilised, must be used to establish under which Act a lump sum is payable.  Section 124 (3) precludes payment for impairment where there was no entitlement under the previous Act;

• in the Schlenert case:

The amount calculated under section 124 (4), in accordance with an entitlement under a previous Act, is determined using section 24 of the 1988 Act.

As payment is determined under section 24, entitlement to non-economic loss under section 27 is then automatically payable.  Consequently section 27 is available to both pre and post 1988 impairments determined after 01/12/1988;

• in the Miles case:

Transitional impairments must satisfy both the following criteria:

-the 10% whole person threshold under section 24; then

-an impairment recognised under the Act in force at the date the impairment became permanent (using section 124).

If the impairment does not satisfy criterion one, then the claim does not proceed to criterion two, even though the impairment would have been payable under a previous Act.

If the impairment does satisfy both criteria, then the mechanics are in place for payments under both sections 24 and 27, as per Schlenert;

• in the Levett case:

The words “permanent impairment” play a pivotal role in the operation of section 124 (3).  A claimant may have an impairment, but the date of permanence is the critical issue.