CATCHAOPRS Administrative Law - Anpea? fr m Administrative Apne Sesricle amounts te the loss of the 1°] 0, 41, 42. : : We? DO MPeNER c 3 ten (Cemmonwealth Government FE Ss. 4 + Q » WIELTAM ANDPEW THOMPSON LGSTPALTAN PELECIMMUNICAT IONE COMMISSTON 3b hb wv td s a wy x i a an i cd c''S A ro EasLb ct om D No. G2492 of 1982 Fox 7. 19 February 1984 Sydney. of Ii THE FEDERAL COURT OF ANMSTPALZA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G248 of 1982 ) GENERAL DIVEIION fopanrn, poet fo ows APPEAL FROM A DECTSION OF THE ADMINISTRATIVE APPEALS TRIBMNAL BETWEEN : WILLIAM ANDREW THOMPSON Applicant AND: AUSTRALIAN TELECOMMUNICATICNS COMMISSION Respondent ORDER JUDGE: Fox J. DATE OF QPDER: 10 February 1984 WHERE MARE: Svdney THE COURT ORDEFPS THAT: 1. The appeal be dismissed. No. G248 of 1982 APPEAL FROM A DECTSTON OF THE ADMINTSSRATIVE APPEALS TE -SUNAL BETWEEN : WILLTAM ANDPRW THOMPSON Apolicant AND: AUSTFALIAN TELECOMMUNZCATIONS COMMISSION CORAM: FOX d. (EX TEMPORE) REASONS FOR JUDGMENT FOX Cc) In this appeal from the Administrat ve Aoveals Tribunal I am considering the meaning of the words "the loss of the genitals" in 3.40(1) of the Ccmsensation 'Commonwealth Government Employees) Act 1971 ("the Act"), the provisions of wnich were, at ™ the relevant time, as follows: ro eangage in sexual untercousse is ¢12,500 dsr such nigher amount as 1s prescribed and 15 oavable to the employee." The applicant suffered an employment injury to one tasticle which necessitatea an operation for its removal. He still has one testicle and he has not lost the capacity to engage in sexual intercourse. The evidence does not indicate any impairment in this reaqard. It has not been suggested that he has lost reproductive capacity. The submission 1s that the "loss of genitals" incliides the loss of one testicle. In generai understanding the "genitals" would wunclude both testicles and the vneris. As the term 1s normally related to external organs, in relation toa male, the term probably does not include any further organs, but this 15 not a matter T have to decide on this occasion. Section 40 aus one of three sections (secns. 29, 40 and 42) which provide for lump sum payments in respect a a £ particular amployment-related losses. The sayment under s.39 15 1n addition fo perlodical payments of compensation, awarded under other provisions. The table which 1s part of §.39'4) sets cut a list of losses, a few being losses of function, but most being losses of a purely ohysical nature. Sub-secticn (11) deals with sartial loss of the efficient use cf a veart of the nsodv scacitied in sup-s. (4). There is no reference to the geritais in $.39. Section 41 deais with disfigurement. plain enough that the reference 1s to the and not to a warticular part of them. This 1s emohasised by the use of the particular article "the". The phrase cannot be earaphrased 39 as to vead '""yenital-loss or even loss of genitals. There 1s not, I think, a current usage of "genital" as a singular noun (see Shorter Oxford English Dictionary 3rd ed., at 0.785). The fact is that a testicie cannot be regarded as a This is not to say that the section only arplies when thers has been a loss of both she testicles and of the penis. This is not a matter I have te decide. The word "genital" seems to have its etymalogical derivation in reproduction. and in some dictionaries is qiven the meanina of external organs of reproduction. Although, in centradiction to the alternative Limb expressed in s.40, it 18 a physical loss which 1s referred to, it is possible (I say no more) that the first timb of s.40 woula be satisfied by the loss of such part of the genitals as resulted in a total loss of reproductive capacity. The claim 1s realiy one for parcial irss. The Act in many places deals specifically with wcartial icsses, such as partial losses of earning capacity, scartiai lesses of limbs. od vartial losses of function. but it does net seem to nm@ that a partial loss of "the genitals" I comprehended within s.40, except c st a a we ' , possibly when a tatal las? of reoroductive "ty Tf there is such a physical loss respecting the genitals as results in total and permanent loss of the capacity to engage in sexual intercourse, then of course there is the alternative Limb bringing +¢.40(1) into operation. The empnasis there is on loss Oo f the cavacity to engage in sexual intercourse, with which a loss of a2 'S apacity to reproduce is not co-extensive. In relating the two limbs, it can be borne in mind that there can be a permane '3 t loss of capacity to have sexual interccurse which 1s caused by disease or psychosomatic condition. Presumably there orf (0) can also be a loss of the qenitals amounting to a ios reproductive cavacity where there was no 8x1isting cayacity to Py have intercourse, Having un mind the second limb of ¢.40(1) I find 1t and vevmanent loss of the capacity to engage in sexual situations meriting special attention, and deubtless was not oarticularly concerned to distinguish the one from the other. I do not 'Think there ius much mere that can ¢ added on the Wh "Ss in and make no grder as to cn I certify that this and the four (4) preceding vaqdes are a frue copy of the Reasons for Judement herein of his Honour Mr. Justice Fox. Associate Dated: 10 February 1984