' woe Sudgement No. | a!R o> CATCHWORDS REPATRIATION - General rate pension - Degree of incapacity - Whether Administrative Appeals Tribunal bound to have regard to Guide to Assessment of Incapacity issued by Department - Whether Tribunal entitled to consider degrees of incapacity set out in Schedule 4 of Act - Failure of Tribunal also to refer to Schedule 5. Repatriation Act 1920 s.35, Schedules 3, 4, 5. Re McPherson and Repatriation Commission (1985) 8 ALD 484, Wicks v Firth [1983] 2 Ac 214, Hanning v Maitland [1970] 1 0B 580 and Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 1 WLR 270 referred to. NSW G.81 fo 1986 ROBERT HARRY APTHORPE v_ THE REPATRIATION COMMISSION Wilcox J Sydney 23 March 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.81 of 1986 ) ) GENERAL DIVISION BETWEEN: ROBERT HARRY APTHORPE Applicant AND: THE REPATRIATION COMMISSION Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 23 MARCH 1987 REASONS FOR JUDGMENT The question which arises upon this appeal concerns the manner of assessing the degree of partial incapacity of a veteran claiming benefits under the Repatriation Act 1920. I emphasize the reference to that Act because the legislation which has now superseded that Act, the Veterans' Entitlements Act 1986, contains express provisions -- see ss.22 and 26-29 -- which deal with the subject matter of this case. But those provisions are not relevant to this appeal, which questions the legal correctness of a decision made by the Administrative Appeals Tribunal (Mr B J McMahon, Senior Member, and Mr S Crawshaw and Dr M Thorpe, Members) under the previous legislation. Section 35 of the Repatriation Act provided that, subject to an immaterial provision, "the rates of pension payable ... are those specified in the Schedules". Schedules 1 to 5 inclusive dealt with pension rates. Schedule 1 set out inter alia a basic pension rate payable on total incapacity, with provision for additional payments in certain circumstances. These included (cl.6) inability to earn a living, in which case an additional payment was to be made. That higher rate is often referred to as "the intermediate rate". Schedule 2 contained provisions relating to the Special Rate (or TPI) pension. Schedule 3 dealt with pensions payable on death (Table A), total incapacity (Table B) and partial incapacity (Table C). The terms of Table C are important in the present case and should be set out: "Rate of Pension Payable -- Such rate, being less than the rate or the maximum rate, as the case may be, prescribed by Table B of this Schedule, as 1s assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the cases to which those Schedules apply." Schedules 4 and 5 dealt with payments in respect of incapacity occasioned by certain specified disabilities. Schedule 4 opened with the following words: "The rate of pension payable to a member of the Forces who is incapacitated by reason of a disability specified in the first column of this Schedule 1s a rate equal to such percentage of the General Rate of pension to which the member would be entitled under Schedule 3 if he were totally incapacitated as 1s set out in the second column of this Schedule opposite to the description of the disability." There followed a table containing a list of disabilities with a figure alongside each item specifying the percentage of the general rate to be assessed as applying to an applicant suffering that disability. The Tribunal also rejected the claim to a general pension at a rate greater than 70%. Its decision to take that course is the only matter under present challenge and, of course, in that regard the applicant is limited to an appeal upon a point of law: see s.44 of the Administrative Appeals Tribunal Act 1975. In its reasons for decision the Tribunal dealt at some length with the relationship between Mr Apthorpe's decision to retire and his neck and knee disabilities; it being by then common ground that the heart condition was not war related. The Tribunal concluded that the retirement was not caused by the war related disabilities alone. It then turned to a consideration of the appropriate percentage of the general rate. The Tribunal noted that the Veterans' Review Board had sought assistance, in making its assessment, from a document, entitled "Guide to Assessment of Incapacity", which was apparently used by Departmental Medical Officers in assessing entitlements to general rate pensions. A copy of this document is reproduced in the Appeal Papers in this Court. It is dated February 1975; although there appear to be some later amendments. The document states (para.3) that the guidelines and the formulary set out in the document have been drawn up to assist Departmental Medical Officers when assessing incapacity, inter alia, after applications for the grant of a pension or for an increase in a pension rate. Paragraph 8 contains a table setting out what are called applicant has, with for example the loss of two or more limbs, the loss of both eyes, the loss of one eye together with the loss of a leg, foot, hand or arm, the loss of both arms, the loss of both legs and so on. These are the types of disabilities apparently intended by Parliament to qualify for a pension at 100% of the general rate. Referring to similar considerations, the Tribunal in Re McPherson noted that the loss of an arm or hand is equated with the rendering of such parts of the body permanently and wholly useless. Are the applicant's disabilities as great as these? It 1s clear to us that the types of disabilities suffered by the present applicant are nowhere near as serious as the types described in Schedule 4 that attract 100% of the general rate. Comparing the present disabilities insofar as they affect all aspects of the applicant's life with those to which we have referred, we consider that the present assessment rate of 70% 1s a generous one and should not be increased." Counsel for the applicant contends that, in reaching that conclusion, the Tribunal fell into legal error in three respects. First, he says, the Tribunal erred in excluding from its consideration the "Guide to Assessment of Incapacity"; secondly, it was erroneous for the Tribunal to have regard to Schedule 4 of the Act; and, finally, if Schedule 4 was to be considered, the Tribunal erred in failing also to take account of the terms of Schedule 5. In support of the first submission counsel refers to a number of decisions of the Tribunal in which, in the course of the assessment of an applicant's disability, reference has been made to the contents of the Guide. But the fact that the Tribunal has, from time to time, referred to the Guide in making its assessment does not help to resolve the question whether it erred 1n rejecting its assistance in the present Nonetheless, I do not think that it would be an error of law for the Administrative Appeals Tribunal to have considered the terms of the Guide in a case where it thought that this course would assist it in assessing the degree of incapacity of a particular applicant. It is true that the Guide was not issued pursuant to any statutory authority and that, at the time of the Tribunal's decision, there was no statutory provision which required that it be taken into account in the making of an assessment. Of course, nothing in the Guide could be allowed to derogate from any relevant statutory provision but it seems to me that the Tribunal was always free, 1f 1t wished, to use the document for guidance in the difficult task of fixing a percentage appropriate to an applicant's degree of disability. That degree has to be expressed somewhere along a line between nil incapacity at one extreme and total incapacity at the other. It is almost inevitable that any assessor will consider how much worse off, or better off, a claimant might be. If the assessor thinks it useful, in that consideration, to refer to a previously formulated table, setting out different degrees of incapacity, rather than to make comparisons ad hoc, I see no error of law in so doing. Of course, the table should remain the servant, not the master. No table can anticipate the circumstances of every case. In the end, after taking into consideration such guidance as the document may furnish, the assessor must make his or her own judgment as to the appropriate percentage. ll. The second submission of the applicant, that the Tribunal erred in having regard to Schedule 4 for comparitive purposes, is plainly untenable. Schedule 4 is part of the statute under which the Tribunal had to assess the applicant's degree of incapacity. It indicated the percentage of the general rate appropriate to be applied in the cases of the disabilities which it specifies. To that extent the Schedule provides a legislative assessment of disability. Had Mr Apthorpe's disabilities fallen within the Schedule, a particular specified percentage would have applied : automatically and by force of the Schedule. That was not the case, as the Tribunal correctly understood. Nonetheless the list may provide assistance in other cases. It gives some guidance as to the degree of incapacity intended by the Parliament in its use of the phrase "total incapacity" in Table B of Schedule 3; which concept is picked up by Table C of that Schedule. As Davies J pointed out in McPherson, in ordinary parlance a person is not "totally incapacitated" unless he or she is in a coma. But Schedule 4 helps to 'show that, in this legislation, Parliament had in mind that a lesser state of incapacity may be regarded as "total". It also helps to show the type of incapacity which it had in mind. The items specified in Schedule 4 are comparatively few. In many cases the incapacity suffered by an applicant will be so different from any of the items that the Schedule will provide no more than general guidance. On other occasions, the disability may be so close to a specified disability -- although not itself specified -- that a direct comparison may be made. 13. I certify the twelve (12) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. ' e Associate: Come, ached Date: 23 March ' Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Dates of hearing: Mr I Khan Australian Legal Aid Office Ms P Fleming OC with Mr J S Hilton Australian Government Solicitor 4 March 1987