Broadhurst -v- Comcare Federal Court Appeal – Announcement

Press Release

Capital Lawyers is pleased to announce that the Federal Court of Australia will hear an appeal from the Administrative Appeals Tribunal on Tuesday, 17 August 2010 in the matter of Broadhurst –v- Comcare.

This appeal is of great significance to the Commonwealth worker’s compensation jurisdiction and has wide ranging implications for any injured worker in the Federal jurisdiction who has lodged a claim for permanent impairment compensation since March 2006.

The Federal workers compensation jurisdiction applies to any employee or public servant of the Commonwealth and the Australian Capital Territory as well as many of Australia’s largest companies including Telstra Corporation, Optus and BHP Billiton Limited.

The original decision of the Administrative Appeals Tribunal which is being appealed was handed down on 9 April, 2010.

The central issue in the appeal is whether Comcare’s Guide to the Assessment of Permanent Impairment (2nd Edition), which is used to determine the extent of an injured employee’s impairment and in turn, their entitlement to lump sum compensation for permanent impairment, is valid in whole or in part and whether Comcare, a statutory authority of the Commonwealth Government, exceeded the powers given to it by the Commonwealth Parliament pursuant to the Safety, Rehabilitation and Compensation Act1988 (Cth) when drafting the Guide which came into effect in March, 2006.

Capital Lawyers, on behalf of Mrs Broadhurst, will argue that the Guide is unfair to injured workers as it was drafted with the deliberate intention of restricting payments to injured persons which Parliament intended to be compensated.

Specifically, Capital Lawyers will submit that Comcare deliberately drafted the Guide in a manner that:

  1. Rendered categories of impairments that fall within the definition of ‘impairment’ in the Act as non-compensable because it either provides no means for the quantification of such impairments or by defining some impairments to be less than the statutory minimum of 10% irrespective of the actual degree of severity of the impairment;
  2. Adopts a definition of ‘impairment’ that is inconsistent with the definition of ‘impairment’ in the Act and ignores the functional nature of the definition of ‘impairment’ in the Act and conflates the concept of ‘impairment’ with the concept of an ‘injury’;
  3. Makes it impossible to determine whether an injured worker satisfies the statutory threshold of 10%; and
  4. Increase the minimum compensable impairment from the statutory 10% threshold to a higher level without the sanction of the Parliament.

In the event that the Federal Court declares the 2nd Edition of the Guide to be ultra vires and invalid, then any employee who has lodged a claim for permanent impairment compensation since March, 2006 will be entitled to have their claim re-assessed.

Therefore, it is estimated that this appeal, if upheld, will effect the rights of many thousands of injured workers and will cost the Commonwealth Government and other licensed insurers millions of dollars.

Capital Lawyers have briefed the well known and respected Mr Paul Menzies QC and Mr Allan Anforth, barrister to appear on behalf of Mrs Broadhurst at the hearing which is scheduled to commence at 10.15 am before Justice Buchanan in Canberra.

Further details and information relating to the appeal will be posted to the Legal News section of Capital Lawyers’ website at

Any injured workers who thinks they may be effected by this appeal are urged to contact our Senior Partner, Daniel Steiner on (02) 6262-5355 or by e-mail at