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Locking in the right interpretation

Feature Articles

Cite as: (2003) 77(10) LIJ, p.48

The courts have a role to ensure that the AMA guides to permanent impairment are not confined to narrow interpretations.

By Pru Connolly

Colin Dickinson’s case[1] highlights the ambiguities and deficiencies in the methods used to assess impairment under the AMA Guides to the Evaluation of Permanent Impairment (the Guides). The case also demonstrates the importance of the court’s role in continuing to interpret the Guides.

Colin Dickinson suffered severe brain damage in a transport accident that occurred on 6 January 1996.

Although he had a history of suffering from schizophrenia, at the time of the accident he was leading a fairly full life. He was living with his de facto partner Julie and they had just had a child together. Colin was working full-time at a metal polishing factory in Clayton.

On 6 January 1996, Colin threw himself in front of a bus. He suffered serious injuries including a severe brain injury. Since that date, the State Trustees has administered Colin’s finances and he remains under a community based order with the Alfred Hospital.

Colin now lives in Crosbie House, a hostel providing 24-hour care for its residents. Hostel staff supervise all Colin’s activities – his meals, laundry, cleaning, gardening and shopping. Due to his injuries, Colin will never be fit to work again.

On 29 January 1999, the Transport Accident Commission (TAC) determined Colin’s level of impairment at 30 per cent. This meant that on the third anniversary of the accident, Colin’s loss of earning capacity benefits ceased.

VCAT proceedings

An application for review was lodged with the Victorian Civil and Administrative Tribunal (VCAT) challenging the impairment determination and deputy president MacNamara heard the appeal in August 2000. The deputy president concluded that Colin had a 45 per cent whole person impairment.

The result was not unexpected. A determination of 50 per cent was of great significance to Colin. It would have meant that he had an entitlement to ongoing weekly benefits until retirement age.

The issue

VCAT focused on Category 2 of chapter 2 of the second edition of the Guides:

Disturbances of complex integrated cerebral functions

  1. There is a degree of impairment of complex integrated cerebral functions, but there is ability to carry out most activities of daily living as well as before onset – 5 per cent to 15 per cent.
  2. There is a degree of impairment of complex integrated cerebral functions such as daily activities need some supervision and/or direction – 20 per cent to 45 per cent.
  3. There is a degree of impairment of complex integrated cerebral functions that limits daily activities to directed care under confinement at home or in other domicile – 50 per cent to 90 per cent.
  4. There is such a severe degree of impairment of complex integrated cerebral functions that the individual is unable to care for self in any situation or manner – 95 per cent”.

The deputy president placed Colin at the top of the second descriptor on the basis that he could not satisfy the criteria of descriptor three because he was not “under confinement at home or in other domicile”.

To aid VCAT in its interpretation of the word “confinement”, the TAC cited the 1971 decision of Hurren v Hurren[2] and argued that as Colin was not under lock and key, he could not be confined and therefore could not attract a 50 per cent rating. Anderson J in Hurren v Hurren interpreted “confined” to mean “restrained within physical limits, shut up, imprisoned”.[3]

Ultimately, the deputy president agreed. Although he found that Colin’s activities of daily living were subject to “strict supervision or carried out by others”, he concluded that as Colin’s movements were not at all constrained he would stop short of placing him in the next category.

The appeal

Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 sets out the procedures to follow when appealing a decision of VCAT. An appeal as of right only lies against decisions made by judicial members. Accordingly, leave had to be obtained to appeal against the decision of the deputy president. An application was made to Master Wheeler in the Supreme Court who refused to grant leave and declined to provide reasons for his refusal. An appeal against Master Wheeler’s ruling was heard by Beach J who also refused leave and stated that he was not required to provide reasons for his refusal.

At that stage, in November 2000, it was generally understood that there was no right of appeal against Beach J’s decision.

Roy Morgan Research Centre

On 9 August 2001, the High Court handed down its decision in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue.[4] The Court, comprised of Gaudron, Gummow, Kirby, Hayne and Callinan JJ, stated that unless otherwise expressly provided, an appeal lies to the Court of Appeal from the refusal of a single judge of the trial division of the Supreme Court to grant leave to appeal from the decision of VCAT under s148 of the VCAT Act.

On becoming aware of this decision an application was lodged with the Court of Appeal. Ormiston and Calloway JJ heard the application and granted Mr Dickinson leave to appeal. Their Honours found that Master Wheeler and Justice Beach had erred by failing to find that there was a significant argument to be put that deputy president MacNamara had erred in law.

Grounds of appeal

The appeal was heard before Bongiorno J on 26 March 2002.

There were two main grounds of appeal, but the one of interest here was that for the purposes of the Transport Accident Act (TAA) the term “confinement” does not require physical detention.

VCAT had recognised Colin’s brain injury as gross. It was accepted that he had suffered the equivalent of a frontal lobotomy. It was submitted on Colin’s behalf that the distinction between Category 2 and Category 3 could most logically be determined by reference to the extent of directed care and supervision rather than a one-dimensional matter such as detention. The submission was fortified by the fact that Category 3 has an impairment range of between 50 per cent and 90 per cent. If mere detention were the sole criteria for a Category 3 determination, then how would a tribunal work out where in the range to place an accident victim?


Bongiorno J disagreed with VCAT’s interpretation of “confinement”. Instead, his Honour said that:

“Confinement need not necessarily involve an externally imposed restraint, whether by law or otherwise. It might be imposed by one’s work or other similar commitment ... For example, to say that a barrister was confined to her chambers by an ever mounting pile of paperwork briefs or that she was confined to Melbourne by her devotion to her husband and family or, even more commonly, that she was confined to bed for three days by a cold are all entirely appropriate uses of the past participle of the verb to ‘confine’”.[5]

His Honour said that the concept of confinement does not require a “literal or total and complete confinement”. For a barrister to be confined to her chambers by work or a cold, does not preclude periods out of bed or away from chambers.[6]

Instead, Bongiorno J placed the emphasis on the phrase “directed care”. He said that:

“The degree and intensity of the directed care required by the person being assessed as well as his/her capacity to function under such directed care were matters to be taken into account when electing the point between 50 per cent and 90 per cent in which to assess the subject’s level of impairment”.[7]

In Colin’s case the facts were that the hostel staff supervised all of his activities. His meals, laundry, cleaning, gardening and shopping were all provided by the staff at Crosbie House. His tram tickets were purchased for him; his money, medication and cigarettes were doled out. He had to be reminded to shave and shower and was told what to wear, depending on the weather.

It is hard to imagine a higher degree of supervision.

VCAT rehearing

The matter was remitted to deputy president MacNamara for rehearing in January 2003. Although he ultimately found that Colin fell into Category 3, deputy president MacNamara placed him at the bottom of Category 3 with a 50 per cent determination on the basis that there was a very limited form of “confinement” and a “relatively benign process of directed care to which his activities are subjected”.[8]

Interpretation of the Guides

Bongiorno J’s decision is significant because of his interpretation of the Guides and also for his reminder that the TAA is beneficial legislation and as such should not be given a narrow interpretation.

Phillips J in Lake v TAC[9] stated:

“ ... efforts will not be helped if the Guides become overlaid with a lawyer’s precise interpretation derived from one or two cases that are regarded by the lawyers as testing and which are probably governed to a greater or lesser degree by their own particular facts. In too short a time the Guides would become a legal ‘minefield’ and be of much less help to doctors and lawyers alike, although for different reasons”.[10]

Ormiston J in Masters v McCubbery[11 ]stated that “the proper interpretation of the Guides is a question of law and not a question of medical opinion”.[12]

Although it is clear that the interpretation of the Guides is a job for the courts, the question of what principles of interpretation are to be applied is far less obvious. Bongiorno J made it clear that for the purposes of the TAA, the Guides are to be interpreted “broadly”. He said that it would be “inappropriate to exclude an accepted meaning of a word where to do so would limit or exclude an otherwise appropriate entitlement to benefits”.[13]

However, in a recent High Court decision, Gifford v Strang Patrick Stevedoring,[14] McHugh J stated that “there is a presumption – admittedly weak these days – that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so”. He goes on to prescribe caution in applying the assumption stating that:

“Nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right ... it is weak when the right is merely one to take or not take, a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the ‘presumption’ of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in some cases its effect must be so negligible that it can only have weight when all other factors are evenly balanced”.[15]

Where to now

Some consideration was given to challenging VCAT’s ultimate finding of 50 per cent. If a person in Colin Dickinson’s position were placed at the bottom of Category 3, how would anyone else achieve a higher level of impairment in that category, or indeed be placed in Category 4?

When the matter was remitted to VCAT, counsel for the TAC argued that mere residence at Crosbie House did not, in itself, indicate confinement or even directed care. So too in Lakes and Jonasson,[16] it was held that “the need to remind someone to perform tasks of daily hygiene does not constitute supervision and/or direction for the purposes of (the Guides)”.

Bongiorno J’s emphasis on the concept of “directed care” has been a positive move away from a more literal scrutiny of the activities of brain-injured applicants. His Honour shows an understanding of society’s current treatment of the mentally ill. They are no longer institutionalised and, as such, the categories described in the second and fourth editions of the Guides reflect a different era and a different attitude towards the treatment of mental illness.

While the finding of 50 per cent was of great significance to Colin Dickinson, the case highlights the ambiguities in the Guides and the importance of the role of the courts in their interpretation of the Guides in a modern context.

PRU CONNOLLY is a partner with Riordan & Partners’ personal injury department. She is also an LIV TAC Committee member and a member of the Australian Plaintiff Lawyers Association. She practises exclusively in transport accident law.

[1] State Trustees (as guardian for Colin Dickinson) v Transport Accident Commission [2002] VSC428.

[2] Hurren v Hurren [1971] VR 459.

[3] Note 2 above, at 462.

[4] [2001] HCA 49 (9 August 2001).

[5] Note 1 above, para 23, p8.

[6] Note 1 above, para 24, p8.

[7] Note 1 above, para 28, p10.

[8] State Trustees, Guardian for Colin Dickinson v Transport Accident Commission (28 January 2003).

[9] (1997) 11 VR 260.

[10] Note 9 above, 271.

[11] [1996] 1 VR 635 as cited by Paul Mulvany, “AMA Guides: Role, structure and use of the Guides”, presented on 26 June 2003.

[12] Note 11 above.

[13] Note 1 above, para 25, p9.

[14] [2003] HCA 33 (18 June 2003).

[15] Note 14 above, 36.

[16] Jonasson v Transport Accident Commission (1995/29697) VCAT.


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