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5.7.5 Scoring NEL in Pre-1/12/1988 Cases Affected by New S27(3)
In Schlenert v Australian and Overseas Telecommunications Corporation (1994), the Full Federal Court held that an impairment which became permanent under the 1971 Act or the 1930 Act must be compensated both under S24 for the physical effect of the impairment (with the quantum calculated under the previous Acts) and under S27 for non-economic loss (NEL). The decision was based on a particular statutory interpretation of Sections 24, 27 and 124 of the 1988 Act by the Court and resulted in pre-1/12/1988 clients receiving NEL compensation even though NEL was not compensated under the 1971 or 1930 Acts.
The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 introduced a new subsection 27(3), which effectively reversed the Schlenert decision, stating that no entitlement to a NEL payment for a pre-1/12/1988 impairment arises where the claim for NEL was made on or after 7 December 2000.
Determining the appropriate scores for NEL (on or after 7 December 2000)
The exclusion of NEL compensation in pre-1/12/1988 cases by new S27(3) is not intended to affect NEL payments already determined and paid. Therefore, where a NEL entitlement was properly paid under the previous law, the client continues to be entitled to that amount and it must not be recovered by default by allowing it to be offset against a new S24 entitlement arising from a reassessment.
More detailed discussion of this issue appears in Chapter 7 of this manual.
- Canute v Comcare (2006) HCA 47 : discrete injuries to be assessed separately
- Fellowes v Military Rehabilitation and Compensation Commission (2009) HCA 39 : separate injuries resulting in separate impairments are assessed separately, even when under the same table in the Approved Guide
- Robson v MRCC  FCAFC 101: separate injuries and their associated permanent impairments must be assessed separately and in isolation, even if they relate to the same body part, system or function
- Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144/2001), item 21, Part 4, Schedule 2 : Reversal of Schlenert entitlement to NEL
- Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139; 121 ALR 67; 19 AAR 305 (compensation for NEL in respect of 1930 Act and 1971 Act impairments)
- JPA No. 2001/4: Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (April 2001)
- JPA No. 2001/13: Amendment to the SRCA 1988 – Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (October 2001)