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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Saturday, May 29, 2010

Presumption that Statute is In conformity with International Law

The basic rule is that Parliament is to be presumed to intend to legislate in conformity, and not in conflict, with international law. [See Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77,80-81; Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42; Minister for Foreign Affairs v Magno (1992) 37 FCR 298 at 303-305 per Gummow J; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-66; Kartinyeri, above n35, at 745; Sir Anthony Mason "International Law as a Course of Domestic Law" in Opeskinand Rothwell (eds) International Law and Australian Federalism. Melbourne: Melbourne Uoiversity Press, 1997, at 220-222.] [Please see/visit the Link of the matter quoted]

Ambiguity: Per Maxewell

In 1906 Justice OfConnor in the High Court, immediately after his reference to the broader sense of the word "ambiguity", quoted with approval the following passage from the third edition of

Maxwell on the Interpretation of Statutes:

"General words admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contemplation. They may convey faithfully enough all that was intended, and yet comprise also much that was not; or be so restricted in meaning as not to reach all the cases which fall within the real intention. Even, therefore, where there is no indistinctness or conflict of thought, or carelessness of expression in a statute, there is enough in the vagueness or elasticity inherent in language to account for the difficulty so frequently found in ascertaining the meaning of an enactment, with a degree of accuracy necessary for determining whether a particular case falls within it.[ Bowtell v Goldsborough Mort & Co Limited]

The basic proposition was well put by Lord Reid in the following citation that is fairly impressive and general words may have some other meaning is fairly established[Blogger]:

"There are many cases where general words in a statute are given a limited meaning. That is, not only when there is something in the statute itself which requires it, but also where to give general words their apparent meaning would lead to conflict with some fundamental principles. Where there is ample scope for the words to operate without any such conflict it may very well be that the draftsman did not have in mind and Parliament did not realise that the words were so wide that in some few cases they could operate to subvert a fundamental principle. In general, of course, the intention of Parliament can only be inferred from the words of the statute, but it appears to me to be well established in certain cases that, without some specific indication of an intention to do so, the mere generality of words used will not be regarded as sufficient to show an intention to depart from fundamental principle." [Smith v East Elloe Rural District Council [I9561 AC 736 at 764-765]

However, what are fundamental principles while interpreting an Act, it is intent of legislature or the object of the statute[blogger]The following shall also say the same in regard to the fundamental principles .i.e the fundamental rights shall not be infringed. Thus we have two meanings assigned to the word fundamental. However, the following contains a popular presumption to the statutes that the Act cannot override the constitution.;blogger]

"One can point to other 'rules of construction' which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such 'rules' are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively, which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction or which would take away property without compensation. The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is 'in the least degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used '[Bropho. Citation not given here]

Courts not to Amend the language

It is to be borne in mind that there must be a plain meaning and the Court cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words and in that case, the real intention of the legislation must be gathered from the words used and the intention of the legislation must be found out from the scheme of the Act[Consortium Self Financing v. State of TN - WP.20212 of 2007 [2007] INTNHC 2130 (2 July 2007)]
In another case we find the following argument quite convincing: 
The above reasoning cannot be a justification for the Court to virtually amend the statute when the statute is plain, precise, clear and unambiguous and does not admit more than one meaning, and such a course is impermissible having due regard to the principle Casus omissus. According to this principle, a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction as held by the Privy Council and the Supreme Court in large number of pronouncements starting with HANSRAJ GUPTA v. DEHRA DUN LMUSSOORIE ELECTRIC TRAMWAY CO. LTD.[ AIR 1933 PC 63]; HIRADEVI v. DISTRICT BOARD, SHAHJAHANPUR[ AIR 1952 SC 362]; and the pronouncement in WALIRAM WAMAN HIRAY (Dr.) v. MR. JUSTICE B.LENTIN [AIR 1988 SC 2267]. Secondly, ignorance of the situation highlighted by the learned single Judge cannot be attributed to the Legislature which has enacted sub-Section (3) of Section 79. It is not for the Court to question the wisdom of the Legislature. [N. Sanjiva Rao v. The Regional Joint Director of School - W.A.No.849 of 2000 [2000] INAPHC 214 (12 September 2000). "If we were to interpret Section 10 (5) and Rule 70 (4) in the manner the respondents want this Court to do, we will enter into an arena where the courts do not normally tread. Amendment, addition or subtraction from the statue is the function of the Legislature and not of the Courts and except in a case where result of a plaint interpretation of the statute leads to extremely absurd situation or causes grave public mischief, the Court cannot rewrite the statute or make some addition or election from a statutory provision. It is also one of the well settled principles of interpretation that if the words of the statute are precise and unambiguous ten the Court must expound those words in their natural and ordinary sense because the words themselves declare the intent of the law giver."[COMMISSIONER OF INCOME TAX, BHOPAL (M.P.) v. FRONTLINE SOFTWARE & SERVICES PVT. LTD. - MAIT--133/2006 [2007] INMPHC 247 (26 March 2007) Hon'ble Supreme Court in the case of Vemareddy Kumaraswamy Reddy & Anr. Vs. State of A.P. JT 2006 (2) SC 361 to contend that where the words of statute are unambiguous and clear and the intention of the legislature is clearly conveyed there is no scope for the court to innovate or take upon itself the task of amending or altering statutory provisions.In this connection Supreme court has made a very clear statement that:"In Nasiruddin and others vs. Sita Ram Agarwal : (2003) 2 SCC 577 this Court stated the law in the following terms :- "37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression "shall or may" is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character." Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See : : Swedish Match AB and another vs. Securities & Exchange Board, India and another : 2004 (7) Scale 158.) In High Court of Gujarat and another vs. Gujarat Kishan Mazdoor Panchayat and others : (2003) 4 SCC 712 this Court held :- "35. The Court while interpreting the provision of a statute, although, is not entitled to rewrite the statute itself, is not debarred from "ironing out the creases". The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable.'NATHI DEVI V. RADHA DEVI GUPTA [2004] INSC 770 (17 December 2004 In para 16 of the judgment, it has quoted an excerpt from its earlier judgment in the case of  Nasiruddin and others Vs. Sita Ram Agrawal (2003) 2 SCC 577, which is reproduced below:-
"37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given  case the court can iron out the fabric  but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of expression ''shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character."Faujdar v. The D.D.C., Azamgarh And Others - WRIT - B No. 1056 of 2002 [2006] INAHHC 410 (6 January 2006) the rule of interpretation requires to give a literal interpretation to the statute where the language is plain and clear as it does not require any interpretation whatsoever. Adding or subtracting of any word or re-writing of the provisions could itself amount to an amendment to the Act, which is not permissible. (Vide Union of India Vs. Mohindra Supply Company, AIR 1962 SC 256; Madanlal Fakir Chandra Dudhediya Vs. Shri Changdeo Sugar Mills Ltd., AIR 1962 SC 1543; Mangi Lal Vs. Sugamchand Rathi, AIR 1965 SC 101; Union of India Vs. Sankal Chand Himmat Lal Seth, AIR 1977 SC 328; Commissioner of Sales-Tax, U.P. Vs. Auriya Chambers of Commerce, Allahabad, AIR 1986 SC 1556; P.K.Unni Vs. Nirmala Industries, AIR 1990 SC 933; and Union of India Vs. Deokinandan Agarwal, AIR 1992 SC 96).Umesh Verma, Advocate v. Union of India & Another - WRIT - C No. 3253 of 1995 [2004] INAHHC 78 (17 February 2004) 
In the case of Gurudevdatta Vksss Maryadit and others Versus State of Maharashtra and others reported in (2001) 4 SCC 534, the Apex Court held as follows:"Further we wish to clarify that it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinaly or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite  surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute."
There is uniformity in the judiciary world over about this type of construction 

Justice Scalia of the United States Supreme Court observed and criticized the Church of the Holy Trinity case on the following basis:
"Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former . . . Church ofthe Holy Trinity is cited to us whenever counsel wants us to ignore the narrow, deadening text of the statute, and pay attention to the life giving legislative intent. It is nothing but an invitation to judicial law making”
There is very popular cannon of construction that judges do not amend the statuet by adding or subtracting words in the statute[blogger]
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Considering Act as a whole

In In re Bidie v General Accident Fire & Life Assurance Corporation Ltd [1949] Ch 121 at 129-130 Lord Greene MR explained that:

"The first thing to be done ... in construing particular words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that their meaning is entirely independent of their context. The method of construing statutes that I myself prefer is not to take out particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified, it is to read the statute as a whole and ask myself the question: `In this statute, in this context, relating to this subject-matter, what is the true meaning of that word?' ... The real question that we have to decide is, what does the word mean in the context in which we here find it, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy."
“As a matter of statutory construction, it was necessary to read the statutes as a whole  and to determine whether the legislature intended that steps ….”[Cited from para-10:Ahearn v State of New South Wales Department of Gaming and Racing [2004] NSWIRComm 40 (8 March 2004) 16.05.2010]
There are many other citations that clearly states the proposition that the statute must be read as a whole:
 "It is one of the important cannons of construction that entire statute should be read as a whole treating the parts as parts of a unified whole as there is inherent presumption that there is internal consistency and that the statute is presented in economic and organised manner.The following is cited from the Canadian Judgement.
"Background of the statute as a whole  were summarized the principles of interpretation of a statute as a whole:
[TRANSLATION] [I] t must respect the basic rule that no one can claim to have understood any part of any law or any other document before reading it in full . While she has not done, that person can not say that all or part of the law or document is clear and unambiguous. [ Attorney-General v. Prince Ernest Augustus of Hanover , [1957] AC 436 (HL), at p. 463.]
 [T] he duty of a good interpreter of a law passed by Parliament is to interpret the various parts together, and not part separately; nemo enim aliquam partem recte intelligere posse, antequam totum iterum atque iterum perlegerit [. ..] and thus before our era laws have been interpreted by the elders, judges and other sages of the law. [ Lincoln College's Case (1595) 3 Co. Rep.. 58b, 76 ER 764, at p. 767.] [Emphasis added.]
207 The rule nemo enim aliquam partem recte intelligere posse, totum iterum atque iterum antequam perlegerit literally means no one can understand a part until you have read and reread all full . This rule is part of the common law for over 400 years and has been codified in Quebec, in respect of contracts, art.
1427the Civil Code of Quebec, SQ 1991, ch. 64 (formerly art. 1018 of the Civil Code of Lower Canada ). We must therefore read and reread all the law in full before deciding on the definition that we seek to establish. If necessary to understand the economics of law, we will even read and reread the regulations made thereunder. The underlying reason for the justification of the rule nemo intelligere possible antequam iterum perlegerit is as follows. It must be assumed that the law is consistent. The principle of internal coherence of the law is common law since the seventeenth century: Chamberlain's Case (1611), Lane 117, 145 ER 346 at p. 347 (J. Tanfield):
[TRANSLATION]... the meaning of an Act of Parliament should be interpreted by examining the intent of its drafters, freed of all its provisions, so as to ensure there is no inconsistency, but rather an agreement between all its parts ... [Emphasis added.]
208 I note that the modern expression of the principle of internal consistency, which is part of our law since the reformulation was that Lord Atkinson in the casev. City of Victoria Bishop of Vancouver Island , [1921] 2 AC 384 (PC), at p. 388, was re-enacted by this Court in The King v. Assessors of the Town of Sunny Brae 
1952 CanLII 34 (CSC) , [1952] 2 SCR 76, at p. 97
[TRANSLATION] In my opinion, the interpretation of a statute that produces such anomalies is contrary to well established rules of interpretation.
If possible, a statute must be construed "so that there is no inconsistency or conflict between its parts or components" ... [Emphasis added.]
209 According to Driedger on the Construction of Statutes op. cit. , p. 176, the presumption of internal consistency of a statute is virtually irrefutable:
 [TRANSLATION] The provisions of a statute are presumed to work together, both logically and teleologically, as parts of a whole. The parties are presumed to fit together logically to form a rational, internally consistent.
. The presumption of consistency is virtually irrefutable . [Emphasis added.]"
The above is summed up in the following: 
“As the product of a rational and logical legislature, the statute is considered to form a system. Every component contributes to the meaning as a whole, and the whole gives meaning to its parts: ‘each legal provision should be considered in relation to other provisions, as parts of a whole’ . . .”: Côté, at p. 308.  See also Dubois v. The Queen1985 CanLII 10 (S.C.C.), [1985] 2 S.C.R. 350, at p. 365.
"It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has often been asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in the statute, words broad enough to include an act in question, and yet a consideration of the whole legislation or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such a broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular Act".[ Church of the Holy Trinity v United States (1892) 143 US 457 at 459.]
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Intent: Touchstone of Interpretation

Legislative intent and its derivation is the part and parcel of interpretation as it shows the object of the statute and its purpose[blogger].As long ago as 1660 the Barons of the Court of the Exchequer said:

"And the judges of the law in all times past have so far pursued the intent of the makers of statutes that they have expounded Acts which were general in words to be but particular where the intent was particular.[Stradling v Morgan (1660) 75 ER 305 at 312.]

And added:

". . . the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another and sometime by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion.”[Stradling as above and also see: See also Bowtell v Goldsborough Mort b Co Limited, above n4, at 457- 458; Commercial Union Insurance Co Ltd v Colonial Carrying Co of New Zealand Ltd [I9371 NZLR 1041 at 1047-1049]

Matter cited from Statutory Interpretation: Identzhing the Linguistic Register byThe Honourable J J Spigelman AC *[Chief Justice of New South Wales. This article is an edited version of the 1999 Sir Ninian Stephen Lecture. The Sir Ninian Stephen Lecture was established to mark the arrival of the first group of Bachelor of Laws students at The University of Newcastle in 1993. It is an annual event which is to be delivered by an eminent lawyer at the commencement of each academic year.]

Purposive approach to identify the Intention

The purposive approach to statutory construction is now enshrined in statutes. [E.g. Interpretation Act 1901 (Cth) sl5AA; Interpretation Act 1987 (NSW) s33] It is not without its difficulties. It must not be forgotten that the task is to identify the meaning of what Parliament said, not to identify what Parliament meant to say.”[ Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG above n3, at 613 per Lord Reid, 645 per Lord Simon of Glaisdale; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byme v Australian Airlines Ltd (1995) 185 CLR 410 at 459.]

Reading the purpose of the Act provides the context as well. The following statement would also provide a support to depart from the literal meaning when it cannot be applied.[blogger]

A good short hand description of this approach is "literal in total context". E. Driedger, Construction of Statutes 2nd Ed. Scarborough: Butterworths, 1983; Barnes "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law- Part One" (1994) 22 Fed LR 116 at 134.] Wherever general words must be construed, it is essential for the interpreter to bear in mind that a statute has a context, it has a background and it reflects assumptions as to the circumstances in which it will operate. The words of a statute do not exist in limbo’[Morris v Beardmore [I9811 AC 446 at 449 per Lord Edmund-Davies.]

When To Depart from Ordinary or Plain Meaning Rule

It is a long standing presumption that Parliament does not want any absurd results from the operation of any statute. We derive interpretive rules accordingly.[blogger]
It is a well long-established principles of statutory interpretation, the courts will often imply qualifications into the literal meaning of wide and general words in order to prevent them having some unreasonable consequence which Parliament could not have intended. He cites such compelling authority as Stradling v Morgan (1560) 1 Plow 199; R (Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209, para 25; R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 573-575, 588; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131; and R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, paras 8, 44-45.
"that general words such as section 2(1) should not be read as authorising the doing of acts which adversely affect the basic principles on which the law of the United Kingdom is based in the absence of clear words authorising such acts. There is no more fundamental principle of law in the UK than the identity of the sovereign body. Section 2(1) should not be read as modifying the identity of the sovereign body unless its language admits of no other interpretation". Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) 

The propriety of departing from the literal interpretation extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provision."[ Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR]
The departure from the plain meaning or Literal meaning may be undertaken in case where the object of the statute is clear and there is some degree of uncertainty about the literal meaning.[blogger]

"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

We have a second situation where we have to depart from the plain meaning approach as it is stated the words may not have plain meaning alway.It is also clear from the following citation that words may not have plain meaning.[Blogger]

"Over the long history of the common law there have been fluctuations in the degree of emphasis which the Courts have given to a literal interpretation of words on the one hand, and the context, subject matter and purpose of legislation on the other hand. We are now in an era where the latter is more frequently determinative than may have been the case until a decade or two ago. This is particularly the case with respect to the construction of general words. Those who would strictly apply a "plain meaning" rule have to recognise that general words do not necessarily have a "plain meaning".[ Maunsell v Olins, above nl, at 385-386 per Lord Wilberforce]
One of the important derivations of the rulings of the court will help us in stating the use of literal rule. One may deviate from the normal rule of interpretation if the meaning is clear and is not subject of discussion or any form of confusion. The literal rule for statutory interpretation is not applicable and the terms must be given the ordinary meanings ascribed thereto in dictionaries, including medical and legal dictionaries, where applicable.The following was observed in regard to the that has been stated in these lines.[Blogger]
"The Act does not define “permanent impairment” beyond the noted reference in s. 153 to a “permanent anatomical deficit”. The Regulations are also silent beyond confirming in s. 36 that compensation for permanent impairment is to be determined on the basis of Appendix B. In turn, Appendix B does not specifically address conditions akin to those suffered by the claimant, save as noted above. Thus, the literal rule for statutory interpretation is not applicable and the aforementioned terms must be given the ordinary meanings ascribed thereto in dictionaries, including medical and legal dictionaries, where applicable.
[See: Pierre-André Côté, The Interpretation of Legislation in Canada, 2d ed. (Cowansville: Les Éditions Yvon Blais Inc., 1991), at 219 and 237.] The court referred to The Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1973),Stedman’s Medical Dictionary, 26th ed. (Baltimore: Williams & Wilkins, 1995) and  Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West Group, 1999) to arrive at the meaning of ‘permanent disability’]"