Brambles Industries Ltd v Nisselle
[2005] VSC 82
•24 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8914 of 2004
| BRAMBLES INDUSTRIES LIMITED | Applicant |
| v | |
| PAUL NISSELLE & ORS | Respondents |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2005 | |
DATE OF JUDGMENT: | 24 March 2005 | |
CASE MAY BE CITED AS: | Brambles Industries Limited v Nisselle | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 82 | |
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Administrative Law – Tribunal – Adequacy of reasons – Certiorari – Error on face of record – s 10 Administrative Law Act 1978, Div 3 Part III Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Chamings | Sparke Helmore |
| For the First to Fourth Respondents | Ms Poh (Solicitor) | Monahan & Rowell |
| For the Fifth Respondent | Dr K Hanscombe QC with Mr N Horner | Workforce Legal |
HIS HONOUR:
This proceeding concerns the judicial review of a decision of a Medical Panel convened pursuant to Division 3 of Part III of the Accident Compensation Act 1985 given on 8 October 2004. The decision concerned Mr Philip Santa, an employee of the applicant who claimed a disability arising out of his employment.
The proceeding was commenced by the obtaining of an order for review from Master Wheeler on 8 November 2004 pursuant to the Administrative Law Act 1978. That order contained seven grounds upon which it was ordered that the respondents to the application show cause why the decision of the Medical Panel should not be reviewed. Upon the hearing of the proceeding, however, only those grounds which related to the Panel’s decision as to the causal connection between Mr Santa’s work and his injury and its finding as to the nature of his work were pursued.
The Medical Panel and the Convenor of Medical Panels were all respondents to this proceeding, but in accordance with ordinary practice took no part in the hearing other than to provide some minor documentation. Their solicitor was excused from attendance.
The facts
Philip Santa commenced employment with Brambles Industries Limited on about 5 August 2003 at its premises at Rickets Road, Mount Waverley. Prior to commencing employment with Brambles, Mr Santa had been employed by Landmark Recruiting, which was a labour hire company supplying labour to Brambles at the Rickets Road premises. He had commenced with that company on 6 August 2002.
On about 29 January 2004 Brambles received a claim from Mr Santa, in the form of a “Worker’s Claim Form” under the Accident Compensation Act 1985, in which he claimed to have been injured whilst carrying out his normal duties in the course of his employment. He said that his injury was a “disc protrusion in lower back causing pain”. He said that his job involved lifting and twisting and bending.
On 23 February 2004 Brambles’ Worker’s Compensation and Rehabilitation Manager, Ms Megan Weston, rejected Mr Santa’s claim on behalf of Brambles on the grounds that he did not sustain an injury within the meaning of the Accident Compensation Act, his claimed injury did not arise out of or in the course of his employment and/or that his employment was not a significant contributing factor to his claimed injury. Ms Weston informed Mr Santa of that decision by a letter of 23 February. Ms Weston’s letter was accompanied by a document entitled “GROUNDS, REASONS AND DECISION TO REJECT YOUR CLAIM FOR MEDICAL AND LIKE EXPENSES”. It repeated the grounds upon which his claim had been rejected and gave further particulars of that rejection by reference to his claim form and a report received by Brambles from a Dr Peter Battlay who had examined Mr Santa on 12 February 2004. It also referred to the fact that although Brambles had requested a report from Mr Santa’s treating doctor, Dr K G Teh, such a report had not been received. It formalised the decision to refuse Mr Santa’s claim in the following terms:-
“ DECISION
Based on the expert medical opinion to hand, Brambles Industries Limited has established that you do not have an entitlement to medical and like expenses as employment is not a significant contributing factor.
Therefore in accordance with section 99 of the Accident Compensation Act 1985 (as amended), you do not have an entitlement to compensation.”
Following the rejection of his claim, on 1 March 2004, Mr Santa referred the matter to the Accident Compensation Conciliation Service, as he was entitled to do in accordance with s 55 of the Act.
On 24 May 2004 the Accident Compensation Conciliation Service conducted a conciliation conference with respect to Mr Santa’s claim. Brambles was represented at that conference by Ms Weston. The conciliator was Ms Sharon Brennan, a conciliation officer. The matter was not resolved by conciliation and on 27 May 2004 Ms Brennan wrote to Ms Weston informing her that she was considering referring the matter to a Medical Panel pursuant to the provisions of the Accident Compensation Act 1985. She informed Ms Weston, however, that before she made such a reference she would consider any comments and/or additional information which Ms Weston provided. Ms Brennan’s proposed referral was to be in relation to four questions:
“1.What is the nature of Mr Santa’s medical condition including any sequelae relevant to the claimed lower back injury?
2.Was Mr Santa’s employment in fact, or could it possibly have been, a significant contributing factor to the claimed injury, including any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?
3. Is Mr Santa capable of performing his pre-injury duties?
4.If Mr Santa is not capable of performing his pre-injury duties, does his incapacity for work result from, or is it materially contributed to by, the claimed injury?”
As well as containing formal details concerning Mr Santa’s employment with Brambles, Ms Brennan’s proposed referral set out the fact that Mr Santa’s claim was for a lower back injury and that pain “came on during late October 2003 and re-occurred on 19 December 2003”. It noted that a report was made in Brambles’ Injury Register on 19 November 2003 and that the employer requested that a work site assessment be undertaken by the medical panel as part of their determinative processes. Significantly, Ms Brennan also set out what she asserted was an agreed fact namely:-
“• Mr Santa has been employed as a process worker in the area cleaning and repairing grocery crates used by supermarkets.”
Ms Brennan also stated that she was not aware of any facts which were in dispute between the parties in relation to the medical questions to be determined by the Medical Panel.
Finally, Ms Brennan attached to her proposed reference a list of documents which it was proposed to put before the Panel. There were eight such documents which included, as well as the referral itself, Brambles’ Notice of Rejection, reports from Mr Battlay and a Mr Teichtahl (a physiotherapist), a report from Dr Teh, documents from the Eastern Wing Chun and Tai Chi Academy as to Mr Santa’s attendance, photographs purportedly of Mr Santa’s work place and a “submission” by Mr Santa comprising a number of pages, some written by Mr Santa and some emanating from Brambles.
On 10 June 2004 Ms Weston wrote to Ms Brennan taking issue with a number of matters concerning the proposed referral of Mr Santa’s case to a Medical Panel. She objected to the reference itself and complained that a number of matters referred to in it were neither appropriate nor accurate.
On 14 July 2004 Ms Brennan responded to Ms Weston’s complaints. Her response included a revised draft referral to the Medical Panel in which under the heading “Issues in Dispute and Reason for Referral” Ms Brennan included the following:-
“Mr Santa alleged at conference that he developed an injury over a period of time through bending lifting and twisting in the work place. The employer disagreed with the allegations regarding the work place and the requirement to lift, bend and carry items. At conference the parties were unable to agree on the issue of liability. I have elected to refer the dispute to the medical panel for an opinion.
The employer has requested that a work site assessment be undertaken by the medical panel as part of their determinative process.”
The second paragraph of the above quotation was rendered in bold type. Its inclusion in the referral was erroneous. In fact the suggestion for a site assessment emanated from Ms Brennan herself in her covering letter dated 24 August 2004 to the Convenor of Medical Panels enclosing the final version of the reference. Brambles did not agree to this course. In a letter to the Convenor (or, more accurately, his Deputy Registrar) of 8 September from its solicitors, Brambles objected to such a course on the ground that Mr Battlay had already conducted a site inspection and reported on it on 7 August. That report was highly favourable to the employer’s case.
Ms Brennan’s second draft referral also had attached to it all of the documents which had been attached to the first draft together with a statement of a Mr D Salton, Brambles’ Manager dated 10 June 2004, as to Mr Santa’s workplace activities, and a CT or CT report of Mr Santa’s lumbar spine. There is no evidence of Brambles having maintained any objection to this referral in its then form going forward to a Medical Panel. Ms Brennan sent it under cover of the letter of 24 August to which reference has already been made.
On 8 October 2004 a Medical Panel constituted pursuant to the Accident Compensation Act 1985 comprising Dr David Barton, Mr Keith Elsner and Dr Richard Travers issued a “Certificate of Opinion” signed by Dr Barton. It was in the following terms:-
“As presiding member of this panel, I have discussed the answers herein with the other panel members and this is the opinion of the panel on the medical question set out below.
1.What is the nature of Mr Santa’s medical condition including any sequelae relevant to the claimed lower back injury?
In the panel’s opinion the worker is suffering from an aggravation of pre-existing lumbar spondylosis without radiculopathy, relevant to the claimed lower back injury.
2.Was Mr Santa’s employment in fact, or could it possibly have been, a significant contributing factor to the claimed injury, including any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?
In the panel’s opinion the worker’s employment was in fact a significant contributing factor to an injury to the lower back.”
Attached to that certificate was a one and a half page document, also signed by Dr Barton, entitled “Reasons for Opinion”. Although the Medical Panel did not, in terms, answer the four questions put to it no issue was made of this in this proceeding by either party.
The Medical Panel’s reasons for decision refer to its having considered the documents sent to it, the history provided at examination by Mr Santa and the findings on that examination. The document recounted Mr Santa’s history in some detail, referred to a CT scan which was available of his lumbar spine and concludes with the statement:-
“The panel accepted the worker’s history as to the nature of his work, considered the history of symptoms, the various reports supplied and concluded that the worker’s employment was in fact a significant contributing factor to the claimed lower back injury.”
Mr Chamings of counsel for Brambles did not address the grounds set out in Master Wheeler’s order which raised a number of matters upon which there was apparently no real dispute but rather submitted that the reasons for the Panel’s decision did not explain why it preferred Mr Santa’s account of his working conditions to that of Mr Salton and Mr Battlay, whose statement of 10 June and report of 7 August respectively it had, and why it accepted those conditions as causative of Mr Santa’s medical problems and rejected any alternative cause such as his having engaged in Kung Fu or other activities. Mr Chamings submitted that having regard to the provisions of s 10 of the Administrative Law Act 1978 this failure to explain itself constituted an error of law on the face of the record making the Medical Panel’s decision amenable to judicial review. He sought an order in the nature of certiorari which would have the effect of having the matter referred for re-determination by another Panel.
Dr Hanscombe QC for Mr Santa addressed each of the grounds set out in Master Wheeler’s order and met Mr Chamings’ submission by arguing that the Panel’s reasons taken as a whole and, in particular, the last paragraph of those reasons adequately explained why it reached the conclusion it did in respect of those questions which it answered. She said that the panel was entitled to accept the evidence to which it referred and to come to its own clinical conclusions. Dr Hanscombe referred to a number of well known administrative law decisions culminating with Minister for Immigration and Ethnic Affairs v Wu Shan Laing[1] and referred to the warnings sounded in that case by the High Court against an over zealous examination of the reasons of administrative decision makers in an attempt to find reviewable error. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd[2]; Kioa v West[3] and Spurling v Development Underwriting (Vic) Pty Ltd[4].
[1](1996) 185 CLR 259.
[2](1993) 43 FCR 280.
[3](1985) 159 CLR 550 at 584-5.
[4][1973] VR 1 at 11.
In Spurling v Development Underwriting (Vic) Pty Ltd, Stephen J, whilst a judge of this Court, was reviewing a decision of the then Town Planning Appeals Tribunal. His Honour placed particular emphasis on the fact that that Tribunal was an expert tribunal, “ … the members of which are no doubt expected to bring to their task of adjudication those qualities which have qualified them for membership”. In the instant case, of course, the Medical Panel is similarly appointed because of its expertise. Its function, as Callaway JA pointed out in Masters v McCubbery[5] is to provide a medical opinion and to give reasons for that opinion “ … in sufficient detail, and only in sufficient detail, to show (the parties) that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience”.
[5][1996] 1 VR 635 at 661.
Mr Chamings referred the Court to a decision of Williams J, Kamener & Ors v Griffin & Ors[6] in which Her Honour quashed a decision of a Medical Panel where she considered that the reasons for its opinion did not enable the parties to the dispute in that case to see whether relevant or irrelevant considerations had or had not been taken into account in reaching the opinion which was formed. But that case involved a number of stated factual disputes which her Honour set out including a dispute as to the worker’s veracity whereas in this case such dispute as there was was raised directly by the documents provided to the Medical Panel and upon which its opinion was sought. Kamener is thus distinguishable.
[6][2004] VSC 235.
The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court. If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure. See Repatriation Commission v O’Brien[7]; Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW)[8]; Sullivan v Department of Transport[9] and Kentucky Fried Chicken Pty Ltd v Gantidis[10]. A Medical Panel’s decision is not a judgment of a Court. It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version.
[7](1985) 155 CLR 422 especially per Brennan J at 445.
[8](1949) 79 CLR 296.
[9](1978) 20 ALR 323 at 348, 349 and 352.
[10](1979) 140 CLR 675 per Barwick CJ at 679.
In this case the Medical Panel clearly had before it the task of determining what work the plaintiff undertook in the course of his employment and whether that work was causative of the injury of which he complained. It had, with respect to that issue, the plaintiff’s history as he gave it to the Panel and also the material in the documentation which accompanied the reference of the medical questions to it. That material included Mr Battlay’s reports (perhaps, especially, that of 7 August) and the statement of Mr Salton. The panel read that material. It acknowledges having done so. It also had material relating to activities of the plaintiff outside his work which may have been associated, in a causative way, with the injury of which he complained. It also read that material. It framed its decision in terms of having accepted Mr Santa’s history as to the nature of his work. When it appraised the nature of that work, considered the history of Mr Santa’s symptoms, its own examination and the other material supplied it concluded that his employment was a significant contributing factor to his claimed lower back injury. The fact that the panel did not refer specifically to the material provided to it which put a contrary version of the facts does not lead to an inference that it did not consider that material in reaching the decision which it expressed. The more reasonable inference is that it did but preferred the worker’s version. This it was entitled to do.[11]
[11]S.65(1) Accident Compensation Act 1985
In the circumstances there is no basis for a finding that there was reviewable error in the reasons for opinion given by the medical panel in this case. The Court will make the following orders:
1.That the orders of Master Wheeler of 8 November 2004 requiring the respondents to show cause why the decision of the second, third and fourth respondents, being a medical panel convened pursuant to ss 56 and 63 of the Accident Compensation Act 1985, should not be reviewed be discharged.
2.That the applicant pay the respondents’ costs of this application, including any costs reserved.
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