Barker v Eureka Lodge Pty Ltd
[2023] VSC 63
•22 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04354
| WAYNE BARKER | Plaintiff |
| v | |
| EUREKA LODGE PTY LTD & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2023 |
DATE OF JUDGMENT: | 22 February 2023 |
CASE MAY BE CITED AS: | Barker v Eureka Lodge Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 63 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel that plaintiff has ‘current work capacity’ for ‘suitable employment’ as a retail nursery hand – Whether opinion open, ‘illogical’, ‘irrational’ or whether panel made jurisdictional error or failed to take into account relevant considerations – Consideration of panel’s reasons – No error – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Swidryk Investments Pty Ltd & Anor v El-Najjar & Ors [2023] VSCA 11 – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | E Makowski | Arnold Thomas & Becker Lawyers |
| For the First Defendant | FC Spencer | Lander & Rogers |
| For the Second to Seventh Defendants | No appearance | Victorian Government Solicitor’s Office |
HIS HONOUR:
A. Introduction
The plaintiff was born on 3 August 1984 and grew up in Euroa in central Victoria. He lives in a house 14-15 kilometres out of Euroa that he shares with his ex-partner.
The plaintiff attended Euroa Secondary College until the age of 14, at which time he left school after experiencing learning difficulties.
In 1999, the plaintiff commenced working as a farmhand/maintenance worker at a horse training centre in Euroa known as ‘Rockmount Farm’ (‘farm’). The farm was an approximately 200-acre equine stud and pre-training agistment facility which raised and cared for about 80 horses at any given time.
The plaintiff commenced employment with the first defendant in about February 2006, when ownership of the farm changed hands and was transferred to the first defendant. The plaintiff continued working as a farm/maintenance worker at the farm on a full-time basis. The plaintiff generally worked alone for about 40 hours per week.
The plaintiff’s role involved a variety of duties including maintaining the paddocks by spraying, mowing and whipper snipping the grass, maintaining the pool that was used by the horses, erecting and repairing fences, unloading feed deliveries, operating farm machinery and hand-held power tools, and cutting and collecting firewood.
On 28 July 2015, whilst performing his employment duties and attempting to cut a fallen tree trunk using a chainsaw, the plaintiff was injured when the chainsaw ‘kicked back’ and struck him in the face, in turn causing deep lacerations across his right cheek and nose and rapid hyperextension of the neck (‘incident’).
The plaintiff was immediately taken to Seymour Hospital and subsequently transferred to the Northern Hospital where he underwent plastic surgery. The plaintiff was discharged four days later.
Shortly after the incident, the plaintiff developed neck pain radiating into the right scapular region and down the right arm into the thumb. He later also developed left sided pain.
On 11 August 2015, the plaintiff made a claim for workers’ compensation in respect of injuries sustained in the incident, which was accepted. On 25 July 2016, the plaintiff made a claim for impairment benefits in respect of his ‘neck injury, facial lacerations, nerve damage, injury to nose and psychiatric injury’ arising from the incident, which was also accepted.
In September 2015, the plaintiff returned to full-time employment with the first defendant on restricted duties, and continued to work until about July 2018, at which time the business was sold and he was made redundant. The plaintiff has not worked since 16 July 2018.
Following his redundancy, the plaintiff resumed receiving weekly payments of compensation.
By notice dated 28 February 2020, the plaintiff’s entitlement to weekly payments was terminated with effect from 13 June 2020 (subsequently extended to 12 December 2020) on the grounds that –
Weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not) and:
• You have a current work capacity;
•Alternatively, you have no current work capacity but it is not likely to continue indefinitely.[1]
[1]Court Book (‘CB’) 127.
The plaintiff thereafter brought proceedings in the Magistrates’ Court disputing this decision, claiming, amongst other things, a declaration that the notice be set aside and an order that weekly compensation payments continue from 12 December 2020.
On 2 July 2021, pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘Act’) and at the request of the first defendant, the Magistrates’ Court referred five questions to a medical panel.
The panel was constituted by an otolaryngologist, two psychiatrists, an occupational and environmental physician, a pain medicine physician and a neurosurgeon.
The plaintiff was examined –
(a) separately by the otolaryngologist on 6 August 2021;
(b) jointly by the psychiatrists on 3 September 2021; and
(c) jointly by the physicians and neurosurgeon also on 3 September 2021.
The panel was provided with a collection of medical reports and other documents, including the written submissions prepared on behalf of the plaintiff and first defendant respectively. The panel said that it formed its opinion with regard to those documents as well as the history provided by the plaintiff and its examination findings.[2]
[2]CB61.
On 23 September 2021, the panel issued a certificate of determination stating and answering the following presently relevant medical questions –
Question 2. In the period from 12 December 2020 to the date of the Medical Panel’s examination (and specifying what period), did the Plaintiff have:
(a) a ‘current work capacity’ within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)‘no current work capacity’ within the meaning of the Act?
Answer: (a) Yes.
(b) No.
Question 3. As at the date of the Medical Panel’s examination, does the Plaintiff have:
(a) A ‘current work capacity’ within the meaning of the Act; or
(b)‘no current work capacity’ within the meaning of the Act?
Answer: (a) Yes.
(b) No.
The panel’s certificate of opinion was accompanied by written reasons.
B. The panel’s reasons
In its reasons for opinion, the panel identified the manner in which the referral had been made and the matters that were agreed between the parties.
The panel recorded the plaintiff’s account of his occupational history, the incident, his subsequent history of treatment and his present status.[3] In the latter connection, the panel recorded that –
The Plaintiff currently complains of constant pain of variable severity involving the posterior aspect of his neck that is increased by physical activity, and he said that “reaching the wrong way” with his right arm causes a sudden, severe pain, “like a shotgun” in his neck. He described radiation of his neck pain into his right upper limb, and he told the Panel that turning his head sharply to the right precipitates a “shooting pain” into his right arm.
He told the Panel that he also suffers similar, but less frequent, “shooting pains” radiating into his left upper limb, affecting the same digits as the right (that being the thumb, index and middle fingers).[4]
[3]CB61-64.
[4]CB64.
The panel thereafter recorded the plaintiff’s account of his activities of daily living as follows –
The Plaintiff told the Panel that since the termination of his weekly payments entitlement in December 2020 he has been in receipt of Jobseeker benefits, but he said that he has a “medical exemption” and does not actually look for work. He told the Panel that he is independent in terms of his personal care, and he said that at present he is living in a house 14-15 kilometres out of the small Victorian country town of Euroa, which he shares with his ex-partner. He told the Panel that since his ex-partner works full-time, he generally cooks the evening meals and tries to deal with the housework, but he said that tasks such as hanging up the washing and vacuuming tend to increase the pain in his neck.
He told the Panel that his ex-partner does the grocery shopping and “drives me to the shops” when he needs anything because he cannot afford to repair his car, which is “off the road”, and also because, more recently, he has lost his license.
The Plaintiff told the Panel that apart from housework he currently occupies his time with listening to music, taking his dog for walks and watching movies. He told the Panel that he no longer engages in his hobbies of dirt-bike riding and fishing because both activities increase the pain in his neck, and he said that for the same reason he has stopped playing golf, which he also used to enjoy prior to the incident.
The Panel noted that there is no regular public transport service from the Plaintiff’s residence to Euroa.[5]
[5]CB65-66.
The panel then addressed the plaintiff’s past history, its observations upon clinical examination and the various reports arising from radiological investigation.
In that connection, the panel diagnosed the plaintiff as suffering from, amongst other things, ‘dysfunction of the cervical spine without radiculopathy’. Specifically, it described the condition as a ‘symptomatic aggravation of a pre-existing, but previously asymptomatic, constitutional cervical spondylosis’.[6] The panel considered the condition to have been provoked by the incident and to be subsisting.
[6]CB68.
The panel thereafter embarked upon a psychiatric assessment. In the course of surveying the relevant history, the panel recorded that the plaintiff had recently lost his driver’s licence after he was ‘charged with drink-driving, breaking into a car and theft’[7] and that he had also recently moved from his parents’ home (in Euroa) to share a house with his ex-partner outside of Euroa.
[7]CB69.
In that context, the panel recorded aspects of the plaintiff’s account of his daily activities and then turned to its psychiatric examination and diagnosis. The panel diagnosed the plaintiff as ‘currently suffering from a chronic post-traumatic stress disorder’ attributable to the incident.[8]
[8]CB72.
The panel then considered the presently relevant issue of ‘work capacity’. In that connection, the panel stated –
Based on its clinical and psychiatric examination findings and its analysis of the radiological reports, the Panel considered that either the Plaintiff’s current physical condition of the cervical spine, and/or his current psychiatric medical condition, preclude him from performing the full duties and hours of his employment with the Defendant, both currently and in the period from 12 December 2020 to the date of the Panel’s assessment.
The panel thereafter turned to the definition of ‘suitable employment’ and all relevant aspects of that definition. Among other things, the panel considered –
•The nature, extent and severity of the Plaintiff’s current physical medical condition, including his current analgesic intake, which the Panel considered to preclude him from employment involving heavy manual handling, remaining in one position for extended periods of time, and operating heavy machinery;
…
•His place of residence in rural Victoria, 14 – 16 kilometres out of a small country town, which the Panel considered to somewhat limit his employment options and opportunities;
•His current lack of a driver’s licence, and the lack of public transport in his local area, which the Panel considered to significantly limit his employment options given his place of residence;
…
•His transferrable skills, which include a favourable personal representations, good communication skills, and good English literacy and numeracy skills, but no computer skills, a lack of any formal vocational qualifications but experience in operating machinery, including ride-on mowers, tractors, slashers and frontend loaders, and a demonstrated ability to work both independently and in a team and to prioritise, instruct in and supervise a vast variety of tasks required in the management of a commercial rural property;
…
•The opinion of one of the Plaintiff’s treating general practitioners, Dr Zhi Su, expressed in his report dated 10 February 2020, wherein Dr Su considered that the Plaintiff did not have a current work capacity.[9]
[9]CB73.
In that context, the panel referred to the two vocational assessment reports in the material, particularly the potential employment options identified therein. It is apparent from its reasons that the panel asked the plaintiff about each of those positions, and recorded the substance of his responses as follows –
The Panel asked the Plaintiff about his own perception of his current work capacity with respect to each of the alternative employment options considered to be potentially suitable for him, and the Plaintiff expressed particular interest in the role of a meter reader, which he felt that he could easily undertake. He told the Panel that he also considered himself capable of working as a ride-on mower operator and/or an earthmoving plant operator, but he said that he was “not sure if I could last a full day at work” in these roles. He pointed out that he has no qualifications in security, nor any experience in that industry, and that due to his current lack of a driver’s license he could not work as a delivery driver, and he was uncertain about the role of a nursery hand. He said, however, that if he could obtain a job reasonably close to home, his ex-partner could drive him to and from work.[10]
[10]CB74.
No part of that reasoning – indeed, no part of the panel’s reasons recording the plaintiff’s history – is presently said to have been inaccurate.
Immediately thereafter, the panel stated -
The Panel considered the physical, intellectual, educational and qualifications requirements of the above vocational options in relation to the Plaintiff’s [sic: Plaintiff] in conjunction with the suitable employment criteria detailed above, and in relation to his current physical and psychiatric medical condition.[11]
[Emphases added]
[11]Ibid.
The panel thereafter addressed the issue of the plaintiff’s psychiatric condition and then expressed its views concerning the suitability for the plaintiff of the various identified potential employments –
In relation to the Plaintiff’s physical medical condition, the Panel considered that the duties of a machine operator, a retail assistant, a ride-on mower operator, a sales representative (industrial products) and an earthmoving plant operator would involve manual handling, and/or sustained sitting, and/or exposure to vibration forces on the cervical spine beyond either the Plaintiff’s current functional capacity and/or beyond his tolerance. Consequently, the Panel formed the view that these occupational options would not constitute suitable employment for the Plaintiff. Noting that a Certificate III in security operations, which the Plaintiff does not have, is generally required to work as a security officer in CCTV surveillance and monitoring, the Panel also considered that this option would not be suitable for him without retraining.
The Panel gave consideration to the vocational options of a process worker, a delivery driver (light items), a meter reader and a nursery hand. The Panel considered that, with respect to the Plaintiff’s cervical spine condition, employment as a meter reader and/or as a light-item delivery driver would be well within his current functional capacity (including the loading and unloading of a delivery vehicle), as well as within his current skills, training and experience, and the Panel noted that the Plaintiff himself expressed an interest in working as a meter reader. However, the Panel also noted that both roles required a current driver’s licence … which the Plaintiff has recently lost. Consequently, the Panel considered that neither of these options would constitute suitable employment for him at this time.
In relation to the vocational option of a process worker, the Panel noted that this is a generic term encompassing a multitude of jobs in many different industries, with very varied physical functional requirements. In this regard the Panel considered that the duties of a process worker in selected light manufacturing could potentially be suitable for the Plaintiff. However, the Panel noted the absence of any light industry in a geographical proximity to the Plaintiff’s place of residence, and the Panel therefore considered that this vocational option would not be suitable for him.[12]
[12]CB74-75.
In respect of the role of a retail nursery hand, the panel stated –
The Panel considered the task analysis of a retail nursery hand contained in the Vocational Assessment report dated 31 October 2020, which also included images of a typical workplace environment for this role. The Panel noted that the physical requirements of this occupation fall into the “light” category, that no formal qualifications are needed, and that the tasks involved would not be beyond the Plaintiff’s level of education, intellect, skills and experience, particularly given that on-the-job training would generally be provided to any new incumbents.
The Panel considered that the vocational option of a retail nursery hand would not involve frequent heavy manual handling, or remaining in one position for extended periods of time, which would be beyond the Plaintiff’s current physical capacity and tolerance. The Panel also considered that the tasks of a retail nursery hand would not exacerbate or aggravate the Plaintiff’s current physical medical condition of either the cervical spine or the olfactory system in any way. Consequently, the Panel considered that the Plaintiff could perform the duties of a retail nursery hand on a reliable and consistent basis as a settled or established member of the wage earning workforce, and the Panel also considered that this has been the case in the period from 12 December 2020 to the date of the Panel’s assessment.[13]
[13]CB75.
Consequently, the panel concluded that the plaintiff had a current work capacity, and that this had been the case since 12 December 2020 up to and including 3 September 2021.
For completeness, the panel considered the views of some of the other medical practitioners evident in the referral material, particularly Dr Amanda Sillcock, occupational physician. In that regard, the panel specifically referred to and agreed with Dr Sillcock’s opinion that, among other things, the plaintiff has ‘a physical capacity to do alternative duties that do not require heavy lifting’.[14]
[14]CB76. See also, CB229.
The panel also noted the plaintiff’s submission that he ‘does not have a current work capacity’. In that connection, the panel stated –
The Panel reached a different conclusion, and the Panel considered that its Reasons above, clearly explain the rationale which formed the basis for the Panel’s opinion.[15]
[15]CB76.
C. The present proceeding
The plaintiff brings this proceeding by originating motion dated 19 November 2021 seeking judicial review of the panel’s opinion on the following stated grounds –
11. In finding that the Plaintiff had a current work capacity on and from 12 December 2020 and ongoing, the Panel has erred in failing to apply the definition of suitable employment.
…
12.Further or alternatively, the Panel has erred in that it has made an irrational and/or erroneous finding of fact going to jurisdiction and/or constituting a failure to perform its statutory task when it failed to record the one role proximate to the Plaintiff’s residence namely “Gardens on Archer” required heavy lifting which was outside the capacity of the Plaintiff as found by the Panel.
13. In the premises, the Panel has:
i. Erred in forming its opinion that retail nursery hand was suitable employment in accordance with law;
ii.Failed to consider the plaintiff’s place of residence and/or whether the particular role existed within reasonable distance from the plaintiff’s place of residence;
iii.Misunderstood its statutory task and/or misconstrued the law concerning suitable employment when opining that the role of retail nursery hand was suitable employment and/or did not involve heavy manual handling.
14. Further or alternatively, in circumstances where the Panel explicitly found that the Plaintiff resided in rural Victoria, 14 to 16 km out of a small country town and the fact that the Plaintiff lacked a driver’s license, the Panel has committed error in concluding retail nursery hand as constituting suitable employment when this was not open and/or by failing to consider the plaintiff’s place of residence, and/or by making such a finding that was illogical and/or irrational based upon the material to which the Panel referred in its Reasons and when applying the term suitable employment, in light of the Panel’s other findings and conclusions in relation to the plaintiff’s incapacity and personal circumstances and the unsuitability of the other proposed suitable employment options which were found not to constitute suitable employment.
15.In the further alternative, the Panel has failed to disclose a sufficient path of reasoning when coming to its conclusion that retail nursery hand constituted suitable employment as that term is defined in the Act.
The plaintiff seeks orders in the nature of certiorari quashing the panel’s opinion and mandamus remitting the medical questions to a differently constituted panel in order to be reconsidered in accordance with law.
The plaintiff and first defendant each filed and served extensive written submissions directed to the issues broadly sought to be identified in the notice of appeal.
In that connection, notwithstanding the rather lengthy form of the grounds stated in the notice of appeal, it is evident that the central issue is whether the panel erred in forming the opinion that the plaintiff has a ‘current work capacity’ for ‘suitable employment’, particularly in respect of the position of ‘retail nursery hand’.
In that regard, the plaintiff’s argument is directed to multiple claimed grounds of judicially reviewable error, particularly –
(a) failure to take into account relevant considerations;[16]
[16]CB24.
(b) jurisdictional error in the sense of ‘fundamental mistake of fact’;[17]
(c) that the conclusions of the panel were ‘not open’, illogical or irrational;[18] and
(d) failure ‘to sufficiently reason’.[19]
[17]CB26 and CB41.
[18]CB26.
[19]CB24.
Notwithstanding the conceptual differences in those various grounds, the core of the plaintiff’s argument was advanced via a sequence of contentions directed to whether the panel could properly have concluded that ‘retail nursery hand’ was ‘suitable employment’. In that regard, counsel for the plaintiff addressed –
(a) the plaintiff’s place of residence;
(b) the position of ‘retail nursery hand’;
(c) aspects of the plaintiff’s other personal characteristics; and
(d) various alleged ‘deficiencies’ in the reasoning of the panel.
Ultimately, the plaintiff submitted that the panel had failed to assess the plaintiff’s suitability for employment in a ‘holistic’ manner.[20]
[20]CB28.
For its part, the first defendant contended that, properly understood, the panel had not so erred. The defendant submitted that the plaintiff was inviting the Court impermissibly to engage in a merits review of the determination of the panel.
The other defendants – comprising the members of the panel – did not participate in the hearing and had advised the Court that they would abide the result.
D. Relevant principles
The principles relating to the judicial review of a medical panel’s opinion are established and well understood.[21]
[21]See: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’), Chang v Neill (2019) 62 VR 174, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 242 (‘Gruma’), Maimonis v Bourke [2019] VSCA 302, Didani v Downes-Brydon [2021] VSCA 281, Sidiqi v Kotsios [2021] VSCA 187 (‘Sidiqi’).
In particular, in Sidiqi v Kotsios (‘Sidiqi’), the Court of Appeal confirmed that –
(a) the opinions of a medical panel on medical questions of fact raised by the questions before it will necessarily be informed by expertise which the Court does not possess;
(b) it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of the panel;
(c) it is for the medical panel itself to determine what information is sufficient to found an opinion with respect to a medical question; and
(d) the panel’s reasons must enable a court to assess whether the panel’s opinion involved an error of law, but a panel is not required to give reasons of the kind which would be required by a tribunal carrying out an adjudicative function or of a judge giving reasons for final judgment after the trial of an action.[22]
[22]Sidiqi (n 21) [34], [36], [41], [64].
In the present instance, the panel was required to, and said that it did, consider the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ as defined in the Act.[23]
[23]CB73.
The terms ‘no current work capacity’, ‘current work capacity’ and ‘suitable employment’ in relation to a worker are all defined in s 3 of the Act as follows –
(a) ‘no current work capacity' means –
a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment
(b) ‘current work capacity’ means –
a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment
(c) ‘suitable employment’ relevantly means –
employment in work for which the worker is currently suited –
(a) having regard to the following –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether –
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market.
In the present instance, particularly in respect of the statutory definitions of ‘no current work capacity’ and ‘suitable employment’, the plaintiff emphasised certain paragraphs in the reasoning of Ashley and Kaye JJA in Richter v Driscoll (‘Richter’).[24]
[24]Richter v Driscoll (2016) 51 VR 95, 114-15 [77], 117 [82], 132 [127]-[128] (‘Richter’).
As to reasons, in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’) the High Court identified that –
(a) the function of a medical panel is to ‘form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’;[25]
(b) the reasons of a medical panel must explain the actual path of reasoning by which it formed its opinion and in detail sufficient to enable a court to see whether the opinion does or does not involve any error of law;[26] and
(c) a medical panel is ‘under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else’.[27]
[25] Wingfoot (n 21) 499 [47].
[26]Ibid 501 [55].
[27]Ibid 502 [56].
Subsequently, in Gruma Oceania Pty Ltd v Bakar, the Court of Appeal confirmed that the reasons of a medical panel are entitled to a beneficial construction; they must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[28]
E. Whether the panel erred in concluding that ‘retail nursery hand’ was ‘suitable employment’
[28]Gruma (n 21) [29]. See also, Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322, [9], [20] and Swidryk Investments Pty Ltd & Anor v El-Najjar & Ors [2023] VSCA 11, [55], [82], [89], [94], [108] (‘Swidryk Investments’).
It will be evident that despite the elaborate form of the notice of appeal and supporting written submissions, at its core the contention of the plaintiff was simply that the panel had erred in concluding that the position of ‘retail nursery hand’ was ‘suitable employment’ within the meaning of the Act.
To a considerable extent, that involved pointing to aspects of the panel’s reasons and/or parts of the underlying material and submitting that the reader was ‘left wondering’[29] about the panel’s determination, particularly the conclusion that, in the circumstances, the position of ‘retail nursery hand’ was ‘suitable employment’.
[29]CB25.
The first of the plaintiff’s particular points of emphasis concerned the plaintiff’s place of residence and associated personal circumstances. In that regard, the plaintiff referred to various aspects of the panel’s reasons, particularly that –
(a) the plaintiff had recently moved to a house shared with his ex-partner 14 to 15 kilometres outside Euroa;[30]
[30]CB65. In that regard, the panel later noted that the plaintiff had recently moved into that house from his parents’ home [in Euroa]: CB69-70.
(b) there was no regular public transport service from there to Euroa;[31]
[31]CB66.
(c) the panel considered the plaintiff’s current place of residence to ‘somewhat limit his employment opportunities and options’;[32]
[32]CB73.
(d) the plaintiff had also lost his driver’s licence (after being charged with drink-driving, breaking into a car and theft);[33]
[33]CB69.
(e) the panel considered the plaintiff’s ‘current lack of a driver’s licence’ to ‘significantly limit his employment options given his place of residence’;[34]
[34]CB73.
(f) the panel referred to the plaintiff’s current lack of a driver’s licence when determining that employment as a meter reader or light item delivery driver (for each of which the panel considered the plaintiff to have current ‘functional capacity’) would not constitute ‘suitable employment at this time’;[35]
(g) the panel had also referred to ‘the absence of any light industry in a geographical proximity to the plaintiff’s place of residence’ when determining that employment as a process worker ‘would not be suitable for him’;[36] and
(h) the panel had, however, not expressly referred to those considerations when reasoning that the plaintiff ‘could perform the duties of a retail nursery hand on a reliable and consistent basis as a settled or established member of the wage earning workforce’[37] – which, in oral argument, was said to be a ‘glaring omission’.[38]
[35]I should say that there is, in my view, much to be said for the submission of the first defendant that the panel might have considered whether or not such a loss was ‘indefinite’ or otherwise excluded it as not arising from the injuries complained of and therefore irrelevant: cf., Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 163 (‘Act’) and Seadon v Seniors Community Care Pty Ltd [2021] VSC 30, [93].
[36]CB75.
[37]Ibid.
[38]Transcript (‘T’) 5.
In that context, the plaintiff referred to established authorities which have emphasised that employment is not ‘suitable’ if it is ‘situated too far from the worker’s place of residence’; the classic example being that ‘a specialist factory in Mildura will not ordinarily be regarded as providing “suitable employment” for a worker resident in Melbourne’.[39]
[39]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 636 [25] and Richter (n 24) 114-115 [77].
From that point, the plaintiff submitted that either the panel overlooked such ‘seriously inhibitory and fundamental considerations’[40] in respect of the position of ‘retail nursery hand’ or failed ‘sufficiently to reason’ in respect of it.
[40]CB21.
In regard to the latter, in oral argument counsel for the plaintiff submitted that the panel had failed to –
reconcile the plaintiff’s lack of public transport, place of residence and lack of driver’s licence with a suitability of employment.[41]
[41]T30. Cf., CB25. In that connection, the plaintiff referred to Denham v Consolidated Herd Improvement [2014] VSC 520, [38] and Gruma (n 21) [38].
It will be evident that the above contentions linked to further submissions directed to ‘suitability of employment’ as a retail nursery hand. In that regard, the plaintiff submitted that –
(a) the panel had relied upon a ‘task analysis’ of ‘one role’ which was, in fact, at a nursery in Hampton Street, East Brighton (in Melbourne);[42]
[42]CB21.
(b) that role was derived from a vocational assessment report (‘CoWork report’) which, it was said, identified the physical demands of a nursery hand as ‘heavy’;[43]
[43]Ibid.
(c) the CoWork report, in respect of the East Brighton role, discloses no consideration of the plaintiff’s residence or lack of driver’s licence;[44]
[44]CB22.
(d) none of the other vacancies identified in the CoWork report could constitute ‘suitable employment’ because they were in Shepparton, Kew East and Skye respectively. Even in respect of the vacancy at the closest location to the plaintiff’s residence (in Shepparton), it was submitted that the role’s location ‘deem[ed] it unsuitable’;[45]
[45]CB22-23.
(e) further, the description of the vacancy in Shepparton describes it specifically as requiring ‘heavy lifting’;[46]
[46]CB22.
(f) there was ‘no evidence of any retail nursery hand role existing in a suitable location geographically speaking compared to where the plaintiff lives’;[47]
[47]CB24. As I have earlier noted, it was also said that the panel’s finding regarding the suitability of the role of retail nursery hand was ‘not open’, ‘a fundamental mistake of fact’, illogical and irrational.
(g) further, the panel had reasoned that employment in security would not constitute ‘suitable employment’ because the plaintiff did not have a certificate III in security operations;[48]
[48]CB27.
(h) however, the task analysis relating to a nursery person (retail) required a certificate III or IV in horticulture – although it was stated not to be mandatory if the person had a passion for plants and excellent knowledge of gardening and plants;[49]
(i) the panel did not refer to any passion or knowledge of the plaintiff in respect of gardening and plants;[50] and
(j) in light of all of the above, the panel had ‘failed to sufficiently reason as to why the retail nursery hand role constituted “suitable employment”’[51] and failed ‘to genuinely assess the requirements of the role coupled with the plaintiff’s personal and other characteristics’.[52]
[49]CB27.
[50]CB27.
[51]CB24.
[52]CB28. In this connection, it was submitted that the panel had erred in ‘failing to comply’ with Richter (n 24).
The plaintiff’s argument came to be focused in oral submissions. Counsel placed ‘great reliance’ upon certain parts of the reasoning in Richter,[53] and submitted that –
[53]T6: ‘we place great reliance [upon Richter] in this case as well as some other cases’.
(a) the plaintiff has a physical capacity for employment as a retail nursery hand,[54] but the panel had focussed only upon his ability ‘to do tasks’;[55]
[54]T14.
[55]T5.
(b) the CoWork report identified the physical demands of employment as a ‘nursery person’ as ‘heavy’, whereas employment as a ‘retail nursery hand’ is very different;[56]
[56]T8.
(c) in that connection, the CoWork report referred only to ‘a particular role that’s light’ (and in East Brighton);[57]
[57]T10-11.
(d) the panel did not explain whether there were jobs as a retail nursery hand available near the plaintiff;[58]
(e) the CoWork report ‘would have shown an example of something close to the plaintiff’s residence that was light, if the author could have’;[59] and
(f) it would be ‘speculation’ and ‘too conjectural’ to conclude that there was employment as a ‘light retail nursery person within a reasonable distance of the plaintiff’s residence’.[60]
[58]T14.
[59]T11.
[60]T14. Cf., T16-17.
As highlighted in the recent decision of the Court of Appeal in Swidryk Investments Pty Ltd & Anor v El-Najjar & Ors[61] (‘Swidryk Investments’) in respect of an argument of the present general kind –
[61]Swidryk (n 28).
(a) the essential issue is whether the panel engaged appropriately with the issues which it was required to determine;[62]
[62]Ibid [81].
(b) the mere identification of matters not contained in the reasons of the panel does not necessarily say anything about the adequacy of those reasons;[63]
[63]Ibid [82].
(c) a panel’s reasons cannot be read in isolation and must be read in the context of the material provided to it;[64]
(d) the expression by a panel of conclusions in a certain sequence does not necessarily indicate a failure to consider the evidence as a whole;[65] and
(e) focus upon selected text in a panel’s reasons without examining the ‘big picture’ can lead to error.[66]
[64]Ibid [84].
[65]Swidryk (n 28) [89].
[66]Swidryk (n 28) [94].
In the present instance, I have already extracted most or all of the relevant parts of the extensive and detailed reasons of the panel.
From those extracts, it will be evident that the panel well understood that the plaintiff had recently moved to a house 14-15 kilometres outside Euroa and also lost his driver’s licence.[67] In that general connection, the panel recorded that –
[67]CB65 and CB69.
(a) there is no regular public transport service from the plaintiff’s residence to Euroa;[68]
[68]CB66.
(b) nonetheless, the plaintiff attends his general practitioner in Euroa ‘once a month’ and ‘reiterated that he plans to seek an appointment with his neurosurgeon in the near future’[69] (i.e., Mr King, who is in Melbourne);
(c) his ex-partner drives him to the shops when he needs anything;[70] and
(d) his older brother (who lives in Euroa) had brought him to the panel assessment (in Melbourne).[71]
[69]Ibid.
[70]CB65.
[71]CB71.
The aspects of the plaintiff’s account to which I have referred plainly informed the panel’s later conclusion that a lack of public transport together with the plaintiff’s current lack of a driver’s licence ‘significantly limit his employment options given his place of residence’ [emphasis added].[72]
[72]CB73.
That conclusion is, however, to be contrasted with the earlier conclusion of the panel that the plaintiff’s current condition would ‘preclude’ him from both his pre-injury employment and other heavy employment.[73]
[73]CB72-73.
Accordingly, while the panel was of the opinion that the plaintiff could not do pre-injury or ‘heavy employment’ at all, his other employment options were only ‘significantly limited’ by his current place of residence and loss of driver’s licence.
Further, and in connection with the various employment options which the panel discussed with the plaintiff – particularly the ‘role of nursery hand’ – the panel recorded that the plaintiff had said that ‘if he could obtain a job reasonably close to home, his ex-partner could drive him to and from work’.[74]
[74]CB74.
It may be noted that the plaintiff did not tell the panel that he was restricted to his house or immediate area; nor did he say that any such job would need to be in any particular nearby town such as, for example, Euroa.
In argument, it was not contended that Euroa (a regional town adjacent to the Hume Freeway) was not reasonably close to some of the other towns in the region (some of which are bigger than Euroa; and others of which are smaller).
In any event, the panel had the benefit of hearing and understanding in proper context the plaintiff’s use of the expression ‘reasonably close to home’,[75] and the general manner in which it understood that expression is evident in the panel’s later reference to ‘geographical proximity to the plaintiff’s place of residence’.[76]
[75]Which, in rural areas, is capable of meaning a little further afield than might ordinarily be thought to be ‘reasonably close’ in, for example, metropolitan Melbourne.
[76]CB75.
These observations serve to explain much of the panel’s subsequent reasoning concerning the suitability for the plaintiff of employment as a meter reader, light-item delivery driver, process worker in light manufacturing and as a retail nursery hand.
In particular, as to meter reader and light-item delivery driver, it is evident from the job title that each option would likely require a driver’s licence and so much is made clear in the relevant reasoning of the panel.[77] That reasoning says nothing about the suitability for the plaintiff of employment as a retail nursery hand.
[77]CB75.
As to process worker, as I have noted, the panel observed that there was no ‘light industry’ in ‘geographical proximity’ to the plaintiff’s place of residence.[78] It follows that the panel plainly understood what the plaintiff had said to it, as well as the requirements of the definition of ‘suitable employment’ (which it specifically referred to and addressed) and the general effect of the authorities to which I have earlier referred.
[78]Ibid.
In my view, the passage concerning the option of ‘process worker’ shows that the panel was specifically mindful of the need for any potential employment to be ‘geographically proximate’ (or, in the language of the plaintiff, ‘reasonably close’) to the plaintiff’s current residence.
Commencing in the next paragraph, the panel addressed the suitability for the plaintiff of what it had earlier described as the vocational option of nursery hand.[79]
[79]Ibid.
I have earlier extracted that passage of the panel’s reasons (at [33] above) and, as I have noted, counsel for the plaintiff described it as containing a ‘glaring omission’ in that it does not specifically refer to the plaintiff’s ‘place of residence or geographical location’.[80]
[80]T5.
In the context to which I have referred, however, I cannot accept that the panel simply overlooked the point. After all, the panel referred to the point repeatedly in the lead up to the passage concerned.
In particular, as I have earlier noted, at the commencement of its consideration of the suitability of the various vocational options (including nursery hand), the panel specifically stated that it had considered each option ‘in conjunction with the suitable employment criteria detailed above’.[81] Those criteria, of course, included the panel’s conclusion that the plaintiff’s current loss of driver’s licence and lack of public transport ‘significantly limit’ his employment options.
[81]CB74.
In addition, as I have noted, the panel relied upon the very point specifically to exclude the option of process worker in the paragraph of reasoning immediately preceding that to which counsel directed particular attention.
In that setting, it seems plain enough that –
(a) the panel did exactly what it said it did – namely, consider all of the ‘suitable employment criteria’ in conjunction with each of the ‘above vocational options’ including nursery hand; and
(b) in the passage to which counsel drew attention, the panel did not refer to the point in connection with the vocational option of retail nursery worker because, in contrast to the immediately preceding option of process worker, it did not consider the plaintiff’s current place of residence and loss of driver’s licence to preclude him from that employment.
I am conscious that the reasons of a panel are both written by medical practitioners and entitled to a beneficial construction. In my view, however, it is not necessary to go so far in the present instance. On a natural reading, it seems to me to be plain that the panel did what it said it had done in the course of which it considered the plaintiff’s place of residence and loss of licence in respect of the option of ‘retail nursery hand’. In that regard, it seems clear enough that the panel must have considered such employment to be an available option – in the relevant sense[82] – in the area ‘reasonably close’ to the plaintiff.
[82]See, definition of ‘suitable employment’ in the Act (n 35), s 3(1), particularly sub-paragraph (b). Cf., Bainbridge v Westside Meats Pty Ltd [2021] VSC 320, [51](c).
Such a conclusion is, of course, essentially the second of the plaintiff’s two major criticisms of the panel’s reasoning and I have earlier referred to the manner in which that criticism came to be focussed in oral argument.
In my view, however, those submissions are founded in an exceedingly narrow focus upon the two paragraphs in the panel’s reasons to which counsel drew particular attention, as well as a narrow and rather jaundiced interpretation of the CoWork report.
In that regard, viewed in proper context, I cannot accept that the panel relied only upon a ‘task analysis’ derived from the CoWork report in respect of a ‘particular role’ which was in East Brighton and therefore unsuitable (as well as the further alleged requirement that any such worker have a certificate III or IV in Horticulture).
In the present instance, the panel was comprised of an unusually large number of members. The presiding member was Dr Susanne Homolka, who is identified in the panel’s certificate of opinion as an occupational and environmental physician.[83] Broadly speaking, such a practitioner is expert in, among other things, the nature and suitability of types of employment.[84]
[83]CB59.
[84]In the present instance, the plaintiff’s solicitors obtained and provided to the panel the report of another consultant occupational physician, Dr Amanda Sillcock (CB223-234). Similarly, the solicitors for the first defendant obtained and provided the reports of Associate Professor Umberto Boffa (CB157-161).
Prior to the passage to which counsel for the plaintiff directed particular attention, the panel relevantly recorded the plaintiff’s accounts of –
(a) his occupational history;[85]
(b) his return to work in full time restricted duties;[86] and
(c) his activities of daily living, including his place of residence and current loss of licence.[87]
[85]CB62.
[86]CB64.
[87]CB65-66.
In that context, the panel gave detailed consideration to the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ and, as I have noted, stated that it considered ‘the above vocational options’ in conjunction with ‘the suitable employment criteria’.[88]
[88]CB73-74.
As I have noted, the panel determined that the plaintiff was precluded from both his pre-injury employment and heavy employment.[89] Those determinations are, in substance, said to be based in the ‘nature, extent and severity of the Plaintiff’s current physical medical condition’.[90] However, such assessments inevitably also called upon the expertise of the panel.
[89]CB72-73.
[90]CB73.
In that setting, the panel turned to ‘the two vocational assessment reports’ in the referral material (including the CoWork report) and referred to the potential employment ‘options’ or ‘roles’ there identified, including that of ‘nursery hand’.[91]
[91]CB73-74.
The panel thereafter recorded the plaintiff’s own ‘perception of his current work capacity with respect to each of the alternative employment options’ (some of which he considered himself to be capable of doing),[92] and then turned to its own consideration of those options.
[92]CB74.
A significant part of the plaintiff’s criticism of the passage to which attention was directed was premised in the proposition that the panel had simply acted upon the CoWork report without exercising any expertise or experience of its own.[93]
[93]CB41.
I have already identified an earlier passage which, it seems to me, must have been premised in the relevant expertise of the panel. However, I consider the exercise of the panel’s expertise to be equally evident from both the general context and specifically the reasons of the panel concerning the alternative employment ‘options’ (including its reasons concerning the option of ‘retail nursery hand’).
As to context, the author of the CoWork report ultimately did no more than ‘propose … potentially suitable employment options’.[94] In order to accept or reject particular suggested options as ‘suitable’, the panel was necessarily called upon to exercise its own expertise and experience.[95]
[94]CB387.
[95]Which was essentially no different to that which had been done by Dr Sillcock, the consultant occupational physician retained by the solicitors for the plaintiff: CB223-234.
In my view, that the panel did so specifically is reflected in its consideration of the options of machine operator, retail assistant, ride-on mower operator, sales representative (industrial products) and earthmoving plant operator.
In that regard, the panel considered each of those options to be precluded because they ‘would involve manual handling, and/or sustained sitting, and/or exposure to vibration forces on the cervical spine’.[96] That language neither directly quoted nor traced the terms of the CoWork report, and is consistent with the panel’s familiarity with the options concerned and an exercise of its own expertise when discarding them.
[96]CB74.
Similarly, in respect of the option of ‘process worker’, the panel stated –
… this is a generic term encompassing a multitude of jobs in many different industries, with very varied physical functional requirements. In this regard the Panel considered that the duties of a process worker in selected light manufacturing could potentially be suitable for the Plaintiff. However, the Panel noted the absence of any light industry in a geographical proximity to the Plaintiff’s place of residence, and the Panel therefore considered that this vocational option would not be suitable for him.[97]
[97]CB74-75.
The option of ‘process worker’ was proposed in the vocational assessment report of Nabenet,[98] not the CoWork report. In any event, the language of the panel again suggests its familiarity with and expertise concerning the ‘multitude of jobs’ that can come within the description of ‘process worker’.
[98]CB369-380.
Further, the Nabenet report relevantly referred to only one ‘potentially suitable vacancy’ as a casual production worker in Tatura, which was identified as being 60 kilometres from Euroa.[99] The report is not specific concerning the work involved or whether the industry concerned is heavy, light or other.
[99]CB375.
Nonetheless, the panel discarded the option of process worker on the basis of an ‘absence of any light industry in a geographical proximity to the Plaintiff’s place of residence’. In the circumstances, that statement seems likely to have been based in the expertise of the panel, particularly a familiarity with the employment profile in the area reasonably close to the plaintiff’s current place of residence outside Euroa.
That brings me to the passage to which counsel for the plaintiff directed particular attention. I have earlier extracted that passage, but it is perhaps convenient to re-state it –
The Panel considered the task analysis of a retail nursery hand contained in the Vocational Assessment report dated 31 October 2020, which also included images of a typical workplace environment for this role. The Panel noted that the physical requirements of this occupation fall into the “light” category, that no formal qualifications are needed, and that the tasks involved would not be beyond the Plaintiff’s level of education, intellect, skills and experience, particularly given that on-the-job training would generally be provided to any new incumbents.
The Panel considered that the vocational option of a retail nursery hand would not involve frequent heavy manual handling, or remaining in one position for extended periods of time, which would be beyond the Plaintiff’s current physical capacity and tolerance. The Panel also considered that the tasks of a retail nursery hand would not exacerbate or aggravate the Plaintiff’s current physical medical condition of either the cervical spine or the olfactory system in any way. Consequently, the Panel considered that the Plaintiff could perform the duties of a retail nursery hand on a reliable and consistent basis as a settled or established member of the wage earning workforce, and the Panel also considered that this has been the case in the period from 12 December 2020 to the date of the Panel’s assessment.[100]
[Emphases added]
[100]CB75.
I have highlighted various features of the passage which, again, suggest the exercise by the panel of its expertise together with a familiarity with such a role, particularly –
(a) the identification of the photographs as ‘a typical workplace environment for this role’ – in circumstances where the photographs concerned are derived from a particular workplace (in East Brighton) and simply titled ‘images of work environment’;[101]
[101]CB414.
(b) the panel’s assessment that the tasks involved ‘would not be beyond the Plaintiff’s level of education, intellect, skills and experience’;
(c) the statement that ‘on-the-job training would generally be provided’ – which may be partly interpretative of the worksite assessment and task analysis, but is also suggestive of the panel’s familiarity with such a role beyond the description appearing in the CoWork report;
(d) the statement that the role ‘would not involve frequent heavy manual handling, or remaining in one position for extended periods of time’ – which may also be partly interpretative of the worksite assessment and task analysis, but is also likely to contain an element of expert evaluation based in a familiarity with such a role; and
(e) the panel’s assessment that ‘the Plaintiff could perform the duties of a retail nursery hand on a reliable and consistent basis as a settled or established member of the wage earning workforce’.
In the circumstances, the submissions that the panel did little more than adopt what was put before it by CoWork and focussed only upon the ability of the plaintiff ‘to do tasks’ must be rejected. Plainly, the panel was mindful of and familiar with what it described as a ‘typical workplace environment’ for the role concerned, and the basis upon which it assessed the plaintiff as having a capacity to perform that role went well beyond any mere assessment of ‘physical capacity’.
In my view, it is plain that the panel considered that ‘typical’ employment as a ‘retail nursery hand’ was available in the relevant sense in the area ‘reasonably close’ or ‘geographically proximate’ to the plaintiff. As I have indicated, I consider that such a conclusion was based at least partly in the panel’s expertise and familiarity with both the role concerned and the area.
In that sense, I cannot accept that the panel either failed to engage with the relevant issue or that a reasonable reader of the panel’s reasons is ‘left wondering’ whether the issue had been given proper consideration.
Nonetheless, as I have noted, the plaintiff essentially submitted that the panel must have misinterpreted the CoWork report, in that, it was submitted –
(a) the CoWork report is directed primarily to employment as a ‘nursery person’, which is ‘heavy’;[102]
[102]T9-10.
(b) the only exception is a ‘particular role’ found in East Brighton that was ‘not heavy’, but demands a certificate III or IV in horticulture;[103]
(c) the author of the CoWork report would have found light work close to the plaintiff’s residence ‘if the author could have’;[104] and
(d) consequently, any conclusion of the panel that employment as a retail nursery hand was available ‘reasonably close’ to the plaintiff’s current residence was ‘speculation’ and ‘too conjectural’.[105]
[103]T10.
[104]T11.
[105]T16-17.
The submissions to which I have referred focussed upon one page of the CoWork report[106] – particularly, the passages directed to the ‘physical demands’ of a nursery hand and ‘job availability’ – and, to a lesser extent, the separate worksite assessment and task analysis to which I have already referred.[107]
[106]CB403.
[107]CB412-414.
However, those parts of the CoWork report were shortly preceded by the following –
Nursery worker (retail) – Mr Barker enjoys gardens and continues to maintain his own. Although many job vacancies specify the need for applicants to be physically fit, the requirements of this type of work do vary, and he is advised to focus his job search on positions that predominantly involve customer service and sales, watering, weeding, propagating at bench height, and where other postures/manual handling requirements (ie, bending, heavy lifting) are minimal and not repetitive. In a retail nursery, customer purchases are lighter in nature than a wholesale supplier. Assisting some customers [to] carry bags of soil may be an occasional requirement and a two-person lift and use of a trolley for this would be appropriate.
…
The most compatible ‘real-world’ occupations identified as suitable for Mr Barker do not necessarily ensure a neat and tidy fit with the ANZCO job codes. In discussing the options below, I have identified the closest classification to the ‘real-world’ vacancies presented as examples of jobs advertised in the current labour market.[108]
[108]CB400-401.
It follows that the author of the CoWork report – who is an occupational therapist – identified both that there is light nursery work within the ‘ANZCO job code’ and that such codes are not ‘a neat and tidy fit’. Indeed, in my view, that passage is consistent with the proposition that such work is regularly included under that code together with other heavier roles as a nursery person and therefore, is commonly available.
That, in turn, explains the later passages – directed to ‘ANZCO Code: 3624-11’ – specifically relied upon by counsel for the plaintiff. In that regard, as to ‘physical demands of occupation’, the CoWork report states –
The physical demands of this job are assessed as heavy in the Job Markets database, with no distinction made between work carried out in a wholesale nursery compared to that in a retail nursery. CoWork’s Task Analysis of a Nursery Person employed in a retail nursery, revealed that the physical demands of this occupation are light.[109]
[109]CB403.
As to ‘job availability’, it is stated that –
According to the Job Markets database, there were about 6 jobs for Nurserypersons in Victoria’s South Goulburn region, which includes the areas of Benalla, Strathbogie, Euroa and Nagambie. … [The author then referred to the effect of the pandemic upon job opportunities in that occupation]. Full restoration of lost jobs and working hours are not expected before 2022. The mid-term potential for new jobs is below average, but a reasonable number of vacancies results from turnover in existing positions.[110]
[110]Ibid.
I have noted that counsel for the plaintiff relied upon these passages in support of the general submission that the CoWork report revealed employment as a nursery hand to be heavy and to have only identified ‘one particular role’ that was light.
Viewed in proper context, however, it seems to me to be plain that the author of the CoWork report was making the point that despite the formal categorisation of employment as a nursery person as ‘heavy’ in the ANZCO database, that category, in fact, commonly contains vacancies for employment as a retail nursery hand, which can be light work. In that connection, the CoWork report attached the ‘worksite assessment and task analysis’ of the job in East Brighton by way of example of that particular kind of light employment.
It follows, if it be relevant, that in my view the observation of the panel that the example given in the CoWork report was ‘a typical workplace environment for this role’[111] was not to misinterpret that report. In any event, as I have indicated, I consider that observation to have been based, at least in part, in the panel’s own expertise.
[111]CB75.
Further, it will be evident that the CoWork report identified six jobs for nursery persons in the ‘South Goulburn region’, which includes Euroa (as well as Benalla, Strathbogie and Nagambie).
In argument, counsel for the plaintiff invited me to take judicial notice of the distance from Euroa to Shepparton (said to be 48 kilometres).[112] The CoWork report, however, does not identify Shepparton as being within the ‘South Goulburn region’.
[112]T6.
In the circumstances, it does not seem to me to be remotely erroneous for the panel to have evidently considered both that at least parts of the South Goulburn region would be ‘geographically proximate’ to the plaintiff’s place of residence and that at least some of the six jobs identified in the CoWork report would be likely to be properly categorised as light work as a ‘retail nursery hand’.
In that regard, counsel for the plaintiff did not really resist the proposition that Benalla, Nagambie, Euroa and Strathbogie were nearby to the plaintiff’s place of residence.[113]
[113]T8-9.
Further, I do not find it remotely surprising that the expert panel must have concluded that locations of that kind would be likely to contain retail nurseries that have the capacity to offer light work as a nursery hand.
In that sense, I do not regard the evident conclusion of the panel to be either ‘speculative’ or ‘too conjectural’. Properly understood, the CoWork report identified that there were such jobs in the South Goulburn region and that the job category concerned commonly contains light jobs.
In any event, as with the observation of the panel concerning ‘a typical workplace environment for this role’, I consider that such a conclusion was likely to have been based, at least in part, in the panel’s own expertise.
In response to much of the above, counsel for the plaintiff sought to suggest that an adverse inference ought to have been drawn in respect of the CoWork report because, in effect, the author would have included an example of light nursery work close to the plaintiff’s home ‘if [she] could have’.[114]
[114]T11.
In truth, such a submission really amounted to a suggestion that the panel ought to have drawn such an adverse inference – albeit that no such suggestion was made in the written submissions of the plaintiff provided to the panel.[115]
[115]CB105-114.
In any event, such a submission makes some rather large assumptions about the motivations and professionalism of the author of the CoWork report (who, as I have noted, is an occupational therapist); which assumptions are both untested and essentially untestable.
Nor is there any particular feature of the general circumstances that would support the formation of such a jaundiced view concerning the contents of the CoWork report or the motivations of its author. After all, the report addresses potential suitable employments in respect of the plaintiff – including as a retail nursery hand – in circumstances where, among other things –
(a) the plaintiff in fact returned to full time work in restricted duties for roughly three years until being retrenched by a new owner of the business;
(b) in that context, Associate Professor Boffa, consultant occupational and environmental physician, considered the plaintiff to have ‘a current work capacity’[116] and, in substance, that various kinds of light employment constituted ‘suitable employment’;[117]
[116]CB159.
[117]CB160-161.
(c) the plaintiff is recorded as having told the author of the CoWork report that, among other things, ‘he likes gardens and the outdoors’ and continues to maintain his garden;[118]
[118]CB397 and 400.
(d) Dr Sillcock, consultant occupational physician, was subsequently retained by the solicitors for the plaintiff, evidently assessed the plaintiff, and was provided with a copy of the CoWork report. She cast no aspersions upon the contents of the CoWork report. Consistently with the CoWork report, she identified that employment as a nursery worker ‘may require heavy lifting which would be unsuitable’.[119] It is not recorded that in consultation with Dr Sillcock the plaintiff either said that there were no nurseries in his area or that the author of the CoWork report had wrongly identified him as liking gardens and the outdoors. In respect of ‘suitable employment’, Dr Sillcock stated –
[119]CB228.
Mr Barker was performing suitable employment until he was made redundant by his employer. He was working full-time but was doing “light duties”. I believe that he has a physical capacity to do alternative duties that do not require heavy lifting, but he has other barriers such as his rural location, his low level of education and his only experience being as a farmhand.[120]
(e) in interview with the panel, the plaintiff was asked about his perceptions concerning the options identified in the vocational reports, including the CoWork report, and ‘expressed particular interest in the role of meter reader’ and also considered himself capable of other roles. In respect of some other roles, he identified reasons why they would not be suitable. In respect of nursery hand, he was ‘uncertain’. Immediately thereafter, the panel recorded that the plaintiff had said that if he could obtain a job ‘reasonably close to home’, his ex-partner could drive him to and from work.[121]
[120]CB229.
[121]CB74.
In short, the contents of the CoWork report –
(a) were not out of keeping with the general circumstances; and
(b) came to be considered by both professional experts and the plaintiff and none of them cast upon it the aspersions now sought to be advanced by counsel for the plaintiff.
Further, the example of light retail nursery work given in the CoWork report was stated to have been generated following a visit to the premises concerned, a one hour interview with a worker and part owner (‘Kathryn’) as well as observations of two nurserypersons undergoing their usual duties.[122] It is not obviously the case that such an opportunity would be available in respect of all or any of the six jobs earlier identified as being in the ‘South Goulburn region’.
[122]CB412.
For that matter, the six jobs in the ‘South Goulburn region’ seem merely to have been drawn from the ‘Job Markets database’. There are no details given in respect of any of those jobs – including the name of the business, or whether the work is heavy, light or other. On the strength of the reference in the CoWork report, it would not be possible to conclude that any such information was available in the ‘Jobs Market database’.
In that regard, the CoWork report also attached three examples of job vacancies identified as being in Shepparton, Kew East and Skye. All of those examples are outside the South Goulburn region and none of them could be one of the six jobs identified in the CoWork report. The fact that such examples had to be given suggests that the author of the CoWork report did not find or otherwise have access to the business names or any other details that might have generated any such information in respect of the six jobs identified as being in the South Goulburn region.
Notwithstanding the above, counsel for the plaintiff sought to emphasise the job in Shepparton – in respect of which, among other things, the advertisement identified a requirement that the applicant be ‘physically fit (heavy lifting is a requirement of the job)’.[123] However, that was no more than consistent with the author’s earlier observations that ‘many job vacancies specify the need for applicants to be physically fit’ and that the requirements of nursery worker (retail) ‘do vary’.[124]
[123]CB415.
[124]CB400.
As to the other two examples, neither identified the work as ‘heavy’ or as requiring ‘physical fitness’.[125] Again, that was consistent with the author’s earlier observation that the requirements of the work ‘do vary’.
[125]CB417-419.
I should, perhaps, add that it does seem to me to be rather contrary to the aspersions sought to be cast upon the motivations and professionalism of the author of the CoWork report that she included an example of a job vacancy which included a requirement of ‘heavy lifting’.
In the circumstances, I could not conclude that the panel erred in failing to draw an adverse inference against the author of the CoWork report of the kind now invited.
In addition to all of the above, I should make it clear that I do not accept the submission that the panel erred because the position of nursery hand generally or the specific position identified in East Brighton demands a certificate III or IV in horticulture.[126]
[126]T10.
In that regard, it is sufficient merely to extract the material before the panel. As to the position of nursery hand generally, the CoWork report stated, relevantly –
No formal qualification or minimum education is essential for this occupation, however a certificate III or IV in retail nursery, production nursery, horticulture or agriculture may be useful.[127]
[127]CB403.
As to the specific position in East Brighton referred to in the worksite assessment and task analysis, it was stated –
… Employees may have a vocational certificate in Horticulture and/or a passion for gardens and plants. Must have some knowledge of plants and gardens.
…
•Cert III or IV Horticulture (not mandatory if applicant has a passion for plants and excellent knowledge of gardening and plants)
•In house training in use of cash register, receiving stock, pricing and other administrative tasks.[128]
[128]CB412.
In reply, counsel for the plaintiff submitted that there was no evidence that the plaintiff had ‘passion or experience’.[129] I have earlier referred to the history given by the plaintiff to the author of the CoWork report and the fact that it was not later sought to be displaced on any of the several occasions on which it might have been. In any event, such ‘passion’ is referred to only in the specific example; not in respect of the general position, in respect of which ‘no formal qualification or minimum education is essential’.
[129]T32.
Notwithstanding all of the above, I have earlier indicated that the expert panel was entitled to form its own view by reference to its own knowledge and experience, and it is evident from the language used in its reasons that it did so.
In the circumstances, I cannot accept that the panel erred in its consideration or failed to consider whether the position of retail nursery hand required training of a kind that would preclude the plaintiff from performing such a role.
For completeness, I have earlier referred to the reliance placed by counsel for the plaintiff upon certain passages in the reasons of Ashley and Kaye JJA in Richter.[130]
[130]Richter (n 24) 114-15 [77], 117 [82], 132 [127]-[128].
Such reasoning derives much of its force from context. In that connection, in Richter, among other things –
(a) the applicant was 59 years of age, had little experience in employment prior to injury, suffered a serious back injury in employment and did not return to work for more than 19 years prior to her payments of compensation being terminated;[131]
[131]Richter (n 24) 96-7 [5].
(b) the termination was based upon a vocational assessment report which identified ‘light process/production worker’ as suitable;[132]
[132]Ibid 103 [44].
(c) the panel specifically misdirected itself by focussing ‘upon the applicant’s physical capacity to perform tasks’;[133]
(d) the vocational assessment report was ‘a most unsatisfactory document’;[134] and
(e) the panel had ‘acted upon’ the duties described in that document, and not purported to apply its expertise and experience.[135]
[133]Ibid 123-4 [104].
[134]Ibid 131 [126]. See also, 101-3 [26]-[46].
[135]Ibid 130 [123].
Such circumstances are very far removed from those presently under consideration.
Nonetheless, counsel for the plaintiff directed particular attention to the following two paragraphs of reasoning in Richter –
[127]Moreover, without there being some exposition of what the Panel took to be the duties involved in some job falling within the broad job title, it was not possible to say whether a job fitting that description was available when regard was had to the applicant’s place of residence. The observation by the Panel that the applicant ‘lives in Wodonga which is a large regional centre with a variety of jobs available’ was meaningless – and irrelevant – unless it was intended to imply that there was some light process worker job in fact available either in Wodonga or within a reasonable driving distance of the applicant’s place of residence, the physical demands of which the Panel concluded were within the applicant’s capacity.
[128]The only suggestion that some job fitting the job title was available was in the Assessment’s assertion that as at August 2013 – which was 12 months before the time of the Panel’s determination – there were ‘four potentially suitable roles’ identified within ‘reasonable travelling distance’ of the applicant’s residence. What those potentially suitable roles involved was not stated in the Assessment.
In that connection –
(a) it will be evident that those passages are directed to the detail of the particular case;
(b) the circumstances in Richter – unlike the present – include that the panel did not evidently bring its own expertise to bear;
(c) further, in Richter, the underlying vocational assessment report was relevantly directed to the role of light process worker in circumstances where it was not possible to say that such a position could be available;
(d) by contrast, the material before the present panel tended to suggest that the role of retail nursery hand was regularly available under the general job description ‘nursery person’ and that six such jobs (as nursery person) were evidently available in the South Goulburn region – and, in any event, it is apparent that the panel relied upon its own expertise;
(e) further, in Richter, the vocational assessment report proffered the position of process worker which, as it happens, the present panel excluded as ‘generic’ and otherwise by reference to its expertise or experience.[136]
[136]CB75.
More generally, it is perhaps important to note that such reasons should be not read as if they are the provisions of a statute.[137] I should not be thought to be in any way critical of counsel for the plaintiff, but in my view some aspects of the present argument did rather tend in that direction.[138]
[137]Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, 6 and Pateras v State of Victoria [2017] VSCA 31, [54].
[138]Cf., the various submissions advanced with reference to specific parts of several other decisions, particularly Woolworths (Vic) Pty Ltd v Jeffreys & Ors [2007] VSC 45, Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120, North v Homolka [2014] VSC 478, Denham v Consolidated Herd Improvement [2014] VSC 520 and Combined Enterprises Pty Ltd v Brister [2016] VSC 807.
In light of the above, it will be evident that, in my view, the present panel engaged appropriately with the material and issues presented and determined those issues with reference to its expertise and in reasons that make it sufficiently plain what it decided and why. It was not required to do more.
For these reasons, I reject the various contentions of the plaintiff that the panel erred in –
(a) failing to take account of relevant considerations;
(b) the sense of ‘fundamental mistake of fact’;
(c) reaching conclusions that were not open, illogical or irrational; and
(d) failing ‘to sufficiently reason’.
F. Conclusion
It follows from the above that the plaintiff’s grounds of review must be rejected and the proceeding dismissed. I will hear counsel concerning the form of appropriate orders and the issue of costs.
SCHEDULE OF PARTIES
S ECI 2021 04354
BETWEEN:
| WAYNE BARKER | Plaintiff |
| - and - | |
| EUREKA LODGE PTY LTD | First Defendant |
| MR BRIAN COSTELLO | Second Defendant |
| DR DENNIS HANDRINOS | Third Defendant |
| DR DIANNE KIRBY | Fourth Defendant |
| DR SUZANNE HOMOLKA | Fifth Defendant |
| ASSOCIATE PROFESSOR GEORGE CHALKIADIS | Sixth Defendant |
| MS JULIET CLAYTON | Seventh Defendant |
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