Clarke v National Mutual Life Insurance Ltd

[2013] VSC 536

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4554 of 2008
No. 4569 of 2008

KENNETH CLARKE	Plaintiff
V
NATIONAL MUTUAL LIFE INSURANCE LTD & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 7 June 2012
DATE OF JUDGMENT:	10 October 2013
CASE MAY BE CITED AS:	Clarke v National Mutual Life Insurance Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 536

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Referral of medical questions – Answers given in certified opinion – Alleged inadequacy of panel’s statement of reasons – Post-hearing developments affecting relevant principles – Principles remaining unsettled – Inappropriate to rule on corresponding grounds of review – Alleged error of law – Divorcing the symptoms of mental disorder from the disease – Misunderstanding of “exacerbation” of a mental disorder – Error of law established – Answers vitiated - Opinion quashed - Accident Compensation Act 1985 ss 5, 67, 68, 82.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. G. Uren QC and Mr A. D. B. Ingram	Holding Redlich Lawyers and Consultants
For the Defendant	Dr K. P. Hanscombe SC and Ms J. M. Forbes	Minter Ellison

HIS HONOUR:

1. Before the Court are two applications brought by Kenneth Clarke for judicial review of an opinion relating to him given by a medical panel.  The opinion is constituted by the panel’s answers to four medical questions referred by a County Court Judge.  The medical questions were referred in relation to a pending claim in the County Court brought by Mr Clarke against three entities sued (partly in the alternative) as his former employers and also against the Victorian WorkCover Authority.  The County Court claim is for weekly payments and reasonable medical expenses under the Accident Compensation Act 1985 for alleged mental injury. A major issue in the County Court proceeding is the relationship, if any, between the plaintiff’s employment with one or more of the entities sued and his alleged mental injuries. If the medical panel’s opinion were to stand the County Court would be obliged to adopt it,[1] and its effect would be to compel a finding that there is no relationship between the employment and at least some of the mental injuries that are presently alleged in the plaintiff’s County Court pleadings. It may also extend to preclude a claim in relation to other mental injuries that the plaintiff intends to allege by way of amendment.[2] 

   [1]Accident Compensation Act 1985, s 68(4).

   [2]The plaintiff has indicated that he intends in due course to renew an abortive application he previously made for leave to amend his statement of claim in the County Court in relation to the description of his mental injuries and in other respects:  see Clarke v National Mutual Life Assurance Ltd [2010] VSCA 43.

1. The parties have agreed that only one of the applications for judicial review, namely proceeding no 4569 of 2008, being an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, should proceed to substantive hearing and determination.  It is agreed that the other proceeding (no 4554 of 2008), being an application under the Administrative Law Act 1978, is to remain alive only in relation to the question of costs, and that that question should be reserved for later hearing and determination. Judgment in the Order 56 proceeding has been deferred until now in the circumstances referred to under the next heading.

1. For the reasons set out below, I have concluded that the opinion of the medical panel is invalid as a matter of law and should be quashed. 

The plaintiff’s inadequate reasons grounds:  developments since the hearing:  deferral of judgment

1. Although certain other grounds were argued, the plaintiff’s principal attack on the medical panel’s opinion was based – at least initially – on the alleged inadequacy of its written statement of reasons for its opinion.  The law relevant to that attack was unsettled at the time of the hearing and, despite a series of intervening developments to which I will shortly refer, it remains unsettled. 

1. The medical panel’s opinion pre-dated the 2010 amendments to the Accident Compensation Act 1985 by which medical panels were required to give written reasons for their opinions independently of any request under s 8(1) of the Administrative Law Act 1978 for a statement of reasons.[3]  That is to say, the relevant statutory provisions in force at the time of the giving of the opinion were the same as those which had been in force when the opinion the subject of the Court of Appeal’s decision in Sherlock v Lloyd[4] was given.  It was held in Sherlock v Lloyd that there was no common law obligation on a medical panel to provide an adequate or any statement of reasons for its opinion, and that the only remedies for inadequacy in a statement of reasons furnished pursuant to a request under s 8(1) of the Administrative Law Act 1978 were the remedies provided for by s 8(4) of that Act.

   [3]In this case both the opinion and the statement of reasons were dated 30 November 2007. It appears that on or shortly after that date a copy of the opinion, but not a copy of the statement of reasons, was sent to the plaintiff’s solicitors; that, by letter dated 7 December 2007 sent on the plaintiff’s behalf, the solicitors requested written reasons pursuant to s 8(1) of the Administrative Law Act 1978; and that on 12 December 2007 the solicitors received a copy of the statement of reasons dated 30 November 2007:  see CB 6 and 674.

   [4](2010) 27 VR 434.

1. The plaintiff does not seek a remedy under s 8(4) of the Administrative Law Act 1978.  He makes a formal submission that Sherlock v Lloyd was wrongly decided.  Further, he submits that Sherlock v Lloyd is distinguishable. He says that certain directions as to the arrangement of the business of medical panels which had been given by the Convenor of Medical Panels pursuant to s 65(7) of the Accident Compensation Act 1985 in September 2006 imposed an enforceable legal obligation on medical panels to produce statements of reasons for their opinions, and adequate statements at that.  Although those directions had been in existence at the time to which the decision in Sherlock v Lloyd related, the aggrieved party in that case had not relied on the Convenor’s directions and they were not dealt with in the judgment. 

1. At the time of the hearing before me, the plaintiff’s claim to rely upon the Convenor’s directions fell to be considered in the light of what had been said by Osborn J (as his Honour then was) in Georgiou & Ors v Capitol Radiology Pty Ltd & Ors[5], notwithstanding that Georgiou arose in connection with a decision of a medical panel given under the Wrongs Act 1958 as distinct from the Accident Compensation Act 1985 and notwithstanding that Georgiou related to a set of directions to medical panels which, although similar to the directions on which the plaintiff relied, were not identical thereto.  

   [5][2011] VSC 158 (20 April 2011).

1. There were other respects, too, in which the obligations of medical panels in relation to statements of reasons were controversial at the time of the hearing before me, especially in relation to the standard required and in relation to what remedies might be available for an inadequate statement after the abovementioned 2010 amendments to the Accident Compensation Act 1985.  I had earlier discussed some of those matters in Kocak v Wingfoot Australia Partners Pty Ltd[6].

   [6][2011] VSC 285 (27 June 2011).

1. Both Georgiou and Kocak were the subject of substantial submissions by the parties in the present case.  Each of those judgments was under appeal to the Court of Appeal at the time of the hearing.  Subsequently, the appeal in Kocak was allowed.  That occurred on 23 October 2012.  If the plaintiff could overcome Sherlock v Lloyd, the decision of the Court of Appeal in Kocak might have assisted him in relation to the required standard of reasons and in relation to available remedies.  However, Kocak was made the subject of an application to the High Court of Australia for special leave to appeal.  Special leave was ultimately granted on 10 May 2013.  In the meantime, on 20 December 2012, judgment was delivered in Gamble v Emerald Hill Electrical Pty Ltd & Ors[7] in which President Maxwell and I noted[8] that there may be a question whether certain observations made by the Court of Appeal in Kocak relating to the standard of reasons required from medical panels were reconcilable with the view previously expressed by the Court of Appeal in Sherlock v Lloyd[9] that, in providing an opinion on a medical question referred to it, a medical panel was performing an expert medical function, not a judicial function.  Next, on 20 March 2013, the Court of Appeal handed down judgment in the appeal in Georgiou (sub nom Colquhoun & Ors v Capitol Radiology Pty Ltd)[10].  The judgment in Georgiou/Colquhoun, if it stands, would appear to present very serious difficulties for the success of the plaintiff’s attempt before me to distinguish Sherlock v Lloyd by reference to the directions issued in 2006 by the Convenor of Medical Panels.  However, the Court of Appeal’s judgment in Georgiou/Colquhoun is itself the subject of an application to the High Court for special leave to appeal.  That application has not yet been heard.

   [7][2012] VSCA 322.

   [8]At [19]-[20].

   [9](2010) 27 VR 434, 439 [20]-[21].

   [10][2013] VSCA 58.

1. In the substantive appeal in Kocak, the respondent therein – who, like Mr Clarke, is represented by Mr Uren QC and Mr Ingram – has invited the High Court to say, if necessary, that certain aspects of the judgment of the Court of Appeal in Sherlock v Lloyd were wrongly decided.[11]  He has also suggested that Georgiou/Colquhoun was wrongly decided.[12]

   [11]See the respondent’s written submissions in the High Court filed 5 July 2013, paras 27(d) and 43.

   [12]Ibid, para 42.

1. On 14 August 2013 the oral argument in the substantive appeal to the High Court in Kocak was heard and judgment was reserved.

1. As each of these developments has occurred, I have considered whether to relist the present matter for further hearing or invite further written submissions.  I have done neither, partly because on no occasion has there has been any request from the parties to do so, partly because none of the developments has yet produced any apparent finality as to the relevant legal principles, partly because the actual statement of reasons in issue in this case is arguably adequate on any view, and partly because I have been conscious throughout that the proceeding might, on due reflection, fall to be determined in the plaintiff’s favour on other grounds in any event.

1. Normally, in a judicial review case, a court would not wish to leave undetermined the moving party’s principal ground or grounds of review.  However, it seems that it may be quite some time yet before the legal principles relating to the present plaintiff’s inadequate reasons grounds are settled.  In any event, as a matter of natural justice, I could not determine the inadequate reasons grounds now without giving the parties a proper opportunity to be heard on the developments to which I have referred.  That would probably require a further oral hearing, with concomitant expense and further delay.  There is already a long and unfortunate procedural history to the underlying dispute between the plaintiff and his former employers.[13]  In the circumstances I have examined the plaintiff’s other pleaded grounds of review in order to determine on a final basis whether any of them has been made out.  As a result, I am satisfied that the whole of the panel’s opinion should be quashed on a conventional ground, namely error of law. 

   [13]See Clarke v National Mutual Life Assurance Ltd [2010] VSCA 43; Clarke v National Mutual Life Assurance Ltd & Ors (No 2) [2010] VSC 96. See further below.

1. Further, as was recognised by the parties during the latter stages of the hearing, the plaintiff’s inadequate reasons grounds are somewhat inconsistent with his error of law grounds.  That is because the inadequate reasons grounds assume that the plaintiff’s case is that he has a mental injury of a particular description (as pleaded in his County Court statement of claim) whereas the error of law grounds assume that he has a mental injury of a different description (not yet specifically pleaded).  Hence, if the error of law grounds are good (as I am now satisfied they are) then the inadequate reasons grounds tend to fall away. 

1. It follows that it is not necessary or appropriate to decide whether the panel’s opinion also falls to be quashed on the ground of an inadequate statement of reasons.

The issues relating to the error of law grounds

1. Under the error of law grounds the plaintiff contends that if the medical panel had possessed a proper understanding of the relevant law and had applied it to the facts actually found, then it could not have concluded, as it did, that the plaintiff’s employment was not a significant contributing factor to a current mental injury of the plaintiff.  Indeed, the plaintiff contends that the panel would have been bound to conclude that his employment was a significant contributing factor to a current mental injury constituted by a recurrence, aggravation, acceleration, exacerbation or deterioration of a condition diagnosed in the plaintiff by the panel itself, namely a “Personality Disorder Not Otherwise Specified (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder, and narcissistic personality disorder”.[14]  However, the plaintiff seeks only a quashing of the panel’s opinion.  He does not suggest that he should have a declaration in this proceeding that he has suffered compensable injury.  Hence it is sufficient for the plaintiff’s purposes to show that the answers given by the panel were affected by error of law.  If he can do that, he can succeed in having the panel’s opinion quashed without going so far as to demonstrate that the panel was obliged to give answers that would have established completely an entitlement to compensation on his part.

   [14]Panel’s statement of reasons, page 6.

1. The plaintiff’s contentions are covered by the pleaded grounds of review, at least if the grounds be read in combination.[15]  They are also addressed in the plaintiff’s written outline of submissions.[16]

   [15]See especially ground (c) and, indirectly, ground (e) of the grounds set out in the order nisi of 8 February 2008 and grounds (b) and (d) (and, to a lesser extent, grounds (f) and (g)) set out in the summons and supporting affidavit of 4 February 2011.

   [16]See especially paras 21-24 thereof.

1. The relevant defendants[17] submit that the panel’s conclusions were factual conclusions based on its medical expertise and did not involve any misunderstanding or misapplication of the law.  In the alternative they say that, even if the panel did err in law as alleged, the error was of no consequence, because the plaintiff has not (yet) pleaded in the County Court that he was suffering from a work-related “recurrence, aggravation” etc of a personality disorder.  They say that the medical questions referred to the panel were restricted to the injuries currently pleaded in the County Court claim.  Hence, they submit, any error of the kind alleged did not vitiate the panel’s answers to the actual questions referred to it.  Therefore, they say, its opinion should not be quashed on this ground. 

   [17]See below.

The remaining grounds:  insufficient or unresponsive answers: the issues

1. I turn to the issues relating to the remaining grounds of review.  They relate to the form of the panel’s answers to the referred questions.  Those questions and the panel’s answers are set out in paragraph 36 below.

1. Independently of the error of law grounds, the plaintiff submits that the panel’s answers to questions 1 and 2 are insufficient in that they do not deal with each part of each of those questions individually.  As to question 3, the plaintiff submits that the panel’s answer is unresponsive in that the question means to ask whether or not the plaintiff has a “current work capacity” generally, but the answer is confined to whether the plaintiff has a “present inability to return to pre-injury employment arising from an injury”.  Since question 4 is consequential on question 3, the plaintiff contends that the panel’s answer to question 4 must also fall.

1. The relevant defendants deny that the panel was required to answer questions 1 and 2 more specifically than it did.  They accept that the panel’s answers to questions 3 and 4 are not appropriately responsive to the questions asked, but they submit that there would be no utility in quashing those answers because the panel’s answers to questions 1 and 2 would defeat the plaintiff’s claim in any event. 

The parties and the identity of the plaintiff’s employers between 1986 and 1996

1. The following matters relating to the parties and to the plaintiff’s employment by the relevant defendants (or some of them) between 1986 and 1996 emerge from the documents that are before the Court in this proceeding, especially the pleadings, an agreed statement of facts that was sent to the medical panel[18] and the panel’s opinion and statement of reasons.[19]  As I will indicate, the material leaves the identity and correct names of the relevant employers of the plaintiff a little unclear.    

   [18]The agreed statement of facts was prepared by the parties to the County Court proceeding and was included in the referral to the medical panel:  CB 18-21.

   [19]CB 436-448.

1. On 2 April 1986 the plaintiff commenced employment as an analyst/programmer in Melbourne with an insurance organisation whose name included the expression “National Mutual”.  The hearing before me has proceeded on the basis that that organisation is also the first defendant in the County Court proceeding and the first defendant in this proceeding.  However, the name of the first defendant has been stated in several different ways in headings and other parts of documents filed in the two proceedings.  It may be that the title of one or other or both of the proceedings will need to be corrected in that regard in due course.  Otherwise, nothing turns on this.  So, for the sake of simplicity, I will hereafter refer to the organisation with which the plaintiff commenced employment on 2 April 1986, and to the first defendant in each of the two proceedings, as “National Mutual”. 

1. The plaintiff continued as an employee of National Mutual until 3 November 1994.  During the latter part of that period of employment he performed work in a “Division” of National Mutual known as Nexis.[20]  However he was still an employee of National Mutual.  At some stage a company called Nexis Pty Ltd was formed.  Apparently, it was owned by National Mutual.  On 14 October 1994 Nexis Pty Ltd was sold to another company.  The purchaser, according to the statement of agreed facts, was “Suncorp Metway Staff Pty Ltd”.[21]  The statement of agreed facts continues as follows:

The Plaintiff commenced employment with Nexis Pty Ltd or Suncorp Metway Staff Pty Ltd starting on 3 November 1994.  The Plaintiff resigned his employment with Nexis Pty Ltd or Suncorp Metway in April 1996.  At all relevant times the plaintiff was employed and [sic] an analyst/computer programmer.  For the purpose of this referral it is of no concern to the parties, or to the Medical Panel, whether his employment after 3 November 1994 was with Nexis or Suncorp.

The reference in the agreed statement of facts to Suncorp Metway Staff Pty Ltd may or may not be another mistake.  None of the other documents filed by the plaintiff in the County Court proceeding refers to Suncorp Metway Staff Pty Ltd.  Rather, each refers to “Suncorp Metway Pty Ltd”.  For example, the plaintiff’s further amended statement of claim in the County Court (“FASC”) alleges that the plaintiff was employed from 3 November 1994 until 1 April 1996 by “the Second and/or Fourth Defendants”.  In the heading to the FASC, the Second Defendant is listed as Suncorp Metway Pty Ltd and the fourth defendant is listed as Nexis Pty Ltd.  On the other hand, the schedule to the amended defence of the first and third defendants in the County Court proceeding lists Suncorp Metway Staff Pty Ltd as the “Secondnamed Defendant” to that proceeding.[22]  In this Supreme Court proceeding, the corresponding party is everywhere described as “Suncorp Metway Pty Ltd” and as the “Secondnamed Defendant”.[23]  There may be a need in due course to correct the name of the second defendant also, but, once again, for the sake of simplicity, I will hereafter refer to the relevant Suncorp entity – meaning the entity which took over Nexis Pty Ltd and which may itself have become the plaintiff’s employer between 3 November 1994 and 1 April 1996 – as “Suncorp Metway”. 

[20]County Court statement of agreed facts, para 2:  CB 18.

[21]Apparently by mistake, the statement of agreed facts refers to Suncorp Metway Staff Pty Ltd as “The Third Defendant”, whereas, according to all of the other County Court documents that are before me and that contain schedules or lists of parties, the third defendant in the County Court proceeding is the Victorian WorkCover Authority. 

[22]CB 63.

[23]See, eg, the schedule of parties to the second amended originating motion dated 23 April 2012:  CB 609.

1. As indicated above, it is common ground that, if the plaintiff was not employed by Suncorp Metway between 3 November 1994 and 1 April 1996, then he was employed by Nexis Pty Ltd during that period.  Nexis Pty Ltd is listed as the “Fourthnamed Defendant” in the County Court proceeding.  Apparently, Nexis Pty Ltd later changed its name to Kaz Business Services Australia Pty Ltd.  In this Supreme Court proceeding the Thirdnamed Defendant is listed as “KAZ BUSINESS SERVICES AUSTRALIA PTY LTD (formerly known as NEXIS PTY LTD)”.  Notwithstanding the change of name, for the sake of clarity I will refer to this corporate entity as “Nexis”. 

1. The other parties to this Supreme Court proceeding are as follows. The Fourthnamed Defendant is Dr Peter Lowthian (as Convenor of Medical Panels pursuant to s 63 of the Accident Compensation Act 1985).  The Fifthnamed Defendant is the medical panel (constituted by Dr Stephen Adlard, Dr John Lloyd and Dr David Kotzman).  The Sixthnamed Defendant is the Victorian WorkCover Authority. 

1. The Fourthnamed and Fifthnamed Defendants have simply agreed to abide the decision of the Court in the usual way.  The other defendants (“the relevant defendants”) oppose the plaintiff’s application and have been represented jointly by a single set of counsel. 

The pleading of the County Court claim and the history of the related litigation

1. As mentioned already, certain problems of nomenclature have attended the proper identification of the parties to the County Court proceeding and the parties to this proceeding.  In addition, problems have beset the articulation by the plaintiff of his underlying claim for compensation.  This in turn has hampered analysis of the referral to the medical panel and of its outcome and has contributed to a long history of legal skirmishing both in the County Court and in this Court.

1. In the FASC, the plaintiff alleges that in the course of his employment with the relevant defendants between 1986 and 1996 he was exposed to certain listed “psycho-social stressors, the effect of which caused the Plaintiff to suffer injury”.  The particulars of injury are then pleaded, as follows:

(a)Chronic adjustment disorder with mixed disturbance of emotions and anxiety;

(b)Anxiety and Depression and/or in the alternative;

(c)Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in

(i)Chronic Adjustment Disorder with mixed disturbance of emotions and conduct; and/or

(ii)Anxiety and depression.

1. Unfortunately the FASC does not otherwise mention, much less specify the nature of, the “pre-existing psychological ailment”, which is alleged in the alternative in the particulars of injury.  Significantly, there is no reference to a pre-existing personality disorder.  Indeed, at least until recently, the plaintiff’s primary position has been that he did not have a pre-existing personality disorder and in particular that he did not have a pre-existing paranoid personality disorder.[24]  Rather, at least until recently, he has primarily asserted that he has a chronic adjustment disorder and/or anxiety and depression directly referable to the employment in question.[25] 

   [24]See the judgment, referred to below, of J Forrest J in Clarke v National Mutual Life Insurance Ltd & Ors [2007] VSC 341 esp at [44], [51], [54]-[55] and [59]-[61]. So far as the plaintiff’s “inadequate reasons” grounds are concerned, that might still be his primary position.

   [25]Ibid.

1. In the County Court, the plaintiff’s claim as set out in the FASC is for weekly payments for incapacity from 1 November 2000 until 15 June 2001 and from 2 February 2002 to date and continuing.  There is no claim for any incapacity prior to 1 November 2000.  However, work at National Mutual/Suncorp Metway/Nexis between 1994 and 1996 is alleged to be a cause of the alleged subsequent incapacity. 

1. As indicated above, four medical questions were formulated for referral to a medical panel.  Some of the questions had multiple parts.  The form of the questions was agreed between the parties to the County Court proceeding.  On 3 May 2006, Judge Hicks referred the questions, together with a very large quantity of documentary material, to the Convenor of Medical Panels.  On or about 30 June 2006 a medical panel (“the first panel”) returned a certificate of opinion and a statement of reasons.  The panel answered the medical questions adversely to the plaintiff.  In its reasons it said that the plaintiff had a pre-existing paranoid personality disorder, unrelated to work; that he suffered a temporary exacerbation of this disorder in September/October 1994 when in the employ of National Mutual, resulting in a temporary period of anxiety and depression; but that the effects of this temporary exacerbation had resolved by early 1995.  The first panel also found that the plaintiff was fit for his usual work as an analyst/computer programmer.   

1. The plaintiff sought judicial review of the first panel’s opinion.  On 18 September 2007 the opinion was quashed by virtue of a judgment of the Honourable Justice J Forrest.[26]  His Honour accepted a submission by the plaintiff that the first panel had provided an inadequate statement of reasons, in that it had not explained, sufficiently or at all, why it had concluded that the plaintiff had had a pre-existing paranoid personality disorder, or why it considered that the effects of the temporary exacerbation of that disorder had resolved by early 1995, or why it disagreed with the plaintiff’s treating psychiatrist, Dr Cooper, who had expressed the view in a medical report in 2006 that the plaintiff had suffered, and continued to suffer, from symptoms of adjustment disorder. 

   [26]Clarke v National Mutual Life Insurance Ltd & Ors [2007] VSC 341.

1. As a result of the judgment of J Forrest J, a fresh medical panel was assembled, being the panel with whose opinion I am now concerned (“the second panel”).  Its opinion and its reasons were both dated 30 November 2007.  They are set out in paragraphs 36 and 37 below, respectively.  It will be seen that the second panel, like the first, answered the referred questions adversely to the plaintiff, albeit in somewhat different terms; that, according to its statement of reasons, the second panel, like the first, considered that the plaintiff had a pre-existing[27] personality disorder; that, as mentioned above, it considered the proper diagnosis to be “Personality Disorder Not Otherwise Specified (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder and narcissistic personality disorder”;[28] that it accepted that the plaintiff had had an “Adjustment Disorder with depressed mood which developed in 1995 (as diagnosed by Dr Cooper) in response to workplace stressors at that time”; that, however, it considered that this had developed independently of his personality disorder and had resolved by 1996; that it accepted that the plaintiff had and continued to have violent and revengeful fantasies in relation to National Mutual and its staff but considered that these were “symptoms” of his Personality Disorder and not of his Adjustment Disorder; that it recognised that the plaintiff had a continued sense of injustice concerning events at work, but considered that these were merely a focus of his Personality Disorder and not a cause or an aggravating factor; and determined that, although the “nature and extent of the Plaintiff’s Personality Disorder is such that he is not capable of performing any work, his Personality Disorder is not related to his employment”. 

   [27]The relevant defendants do not concede that the finding was of a pre-existing personality disorder but I think that this is plainly implied in the second panel’s reasons.  See below.

   [28]CB 447.

1. The plaintiff commenced this proceeding in January 2008.  However, he put it on hold while he applied to a County Court Judge for leave to further amend the FASC so as to take account of the second panel’s findings in its statement of reasons insofar as they favoured him.  The County Court Judge refused the application, without prejudice to any future application that the plaintiff might make after the hearing and determination of this Supreme Court proceeding.  The plaintiff then sought leave to appeal to the Court of Appeal from that ruling.  The Court of Appeal held that the County Court judge should not have even entertained the application for leave to amend while the present judicial review proceeding was pending.[29]  The plaintiff then proceeded to make a series of amendments to his pleadings in these Supreme Court judicial review proceedings. 

   [29]Clarke v National Mutual Life Assurance Ltd [2010] VSCA 43.

The second panel’s opinion and reasons

1. The second panel’s certified opinion dated 30 November 2007, which incorporates the four medical questions referred by Judge Hicks on 3 May 2006, is as follows:

“Question 1: What is the nature of the Plaintiff’s medical condition, relevant to the Plaintiff’s mental state being:

Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in

i)Chronic adjustment disorder with mixed disturbances of emotions and conduct and/or;

ii)Anxiety and depression.

Answer:The Panel is of the opinion that the Plaintiff is not suffering from any recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

Question 2:Was the Plaintiff’s employment:

a)with the First Defendant up until 3 November 1994 (‘the first period of employment’) in fact, a significant contributing factor to a:

i)recurrence and/or

ii)aggravation and/or

iii)acceleration and/or

iv)exacerbation and/or

v)deterioration  -

of a pre-existing psychological ailment resulting in:

x)chronic adjustment disorder with mixed disturbance of emotions and conduct and/or

y)anxiety and depression

z)or a similar injury.

Answer:       No.

b)with the Second and/or Fourth Defendant between 4 November 1994 and April 1996 (‘ the second period of employment’) in fact, a significant contributing factor to a:

i)recurrence and/or

ii)aggravation and/or

vi)acceleration and/or

vii)exacerbation and/or

viii)deterioration –

of a pre-existing psychological ailment resulting in:

x)chronic adjustment disorder with mixed disturbance of emotions and conduct and/or

y)anxiety and depression

z)or a similar injury.

Answer:No.

Question 3:a)        Does the Plaintiff have a current work capacity?

Answer:The Panel is of the opinion that the Plaintiff has no present inability to return to pre-injury employment arising from an injury.

b)If no to part (a) hereof, is the Plaintiff likely to continue indefinitely to have no current work capacity?

Answer:Not applicable.

Question 4:  If the answer the [sic] question 3(a) is ‘no’:

a)does the Plaintiff’s incapacity for work result from, or is it materially contributed to by, the injuries, and if so which of the injuries, identified in the answers to:

i)question 2a) and/or

ii)question 2b)?

Answer:       Not applicable.”

1. It is also desirable to set out in full the statement of reasons dated 30 November 2007.  It reads:

REASONS FOR OPINION

Re:     Mr Kenneth CLARKE

Medical Panel Ref:  No:  M107/3147

1.      The referral to the Medical Panel was received on 3 May 2006.  The documents considered by the Panel are described in Enclosure A.

2.      The Plaintiff was examined by the Panel Members on the following date:

Member	Specialty	Examination
Jointly by:
Dr Steven Adlard	Psychiatrist	27 November 2007
Dr John Lloyd	Neuro Psychiatrist	27 November 2007
Dr David Kotzman	Occupational Physician	27 November 2007

3.      The Panel formed its opinion by reference to -

(a)the documents and information referred to in Enclosure A; and,

(b)the history provided by the Plaintiff and the examination findings elicited by the Panel at the above mentioned examination of the Plaintiff.

4.      The reasons for the Panel's opinion are as follows:

The Plaintiff stated that he began working with National Mutual in April 1986.  He said that he was employed as an analyst/programmer, on a full-time basis.

He said that he began working with a division of National Mutual called Nexis in 1988, but that this division was always part of National Mutual.  He reported that on the whole he had enjoyed his work with National Mutual/Nexis.

He reported that he had an appraisal at the end of 1993, and two other workers got a better appraisal and better pay than he did.  He disagreed with this, and wanted it corrected.  He did not sign the appraisal, and felt that he was being blamed for other people’s errors.

The Plaintiff told the Panel that he was deliberately not working hard in 1994 because he was unhappy with the appraisal.  He admitted that this was partly to get at his employer for the negative appraisal.

He stated that in September/October 1994 Nexis was purchased by Suncorp Metway.  At that time he said he raised the issue that he was in his view still a National Mutual employee.  He said that the general manager of Nexis did not transfer National Mutual employees to Nexis and he thought this was an attempt to get away from paying redundancy payments from National Mutual.  He said that he spoke  to the human resources  manager at Suncorp Metway, but the human resources manager didn’t want to talk about who his employer was.  The Plaintiff said that he forgot to tell the human resources manager about his negative appraisal at the end of 1993.

The Plaintiff added that two days prior to the sale of Nexis he spoke to a human resources manager (the Panel was unclear whether this was a human resources manager at Suncorp Metway or National Mutual) who he alleged agreed that the Plaintiff was a National Mutual employee and told the Plaintiff  that he would get 4-5 weeks pay.  The Plaintiff said that this “stank” because he felt he was entitled to a redundancy payment.  He reported that on the first day after the sale of Nexis he asked for an employment contract.  He said that two weeks later he got a bit of paper but he didn’t sign this.

The Plaintiff said that he approached his union, and alleged that he was told to “go with the flow” and accept the situation.

The Plaintiff reported that at the time of the purchase of Nexis by Suncorp Metway he was still generally happy in himself, there were no family  problems, and he was keen to work until the age of 55 years.

The Plaintiff stated that for the first two months of working for Suncorp Metway he had little to do and got a bit bored.  He said that he started working a bit harder for his new boss, and hoped to get a pay rise, but was disappointed when he did not get one.

He reported that in April 1995 he became angry because he noted that contract workers were earning more than he was.  He said that because of his anger he attended his general practitioner.  He also reported that he was angry that he had not been given a work contract, and didn’t get a pay rise that he expected.  In addition to his anger he reported impaired sleep, lowered mood, tiredness, an increased need for coffee, and reduced concentration.  When he saw his general practitioner he was given three days off from work.

The Plaintiff said that sometime between February and June 1995, when he tried to get to sleep at night he started imagining his former manager at National Mutual and began having thoughts of attacking him, with a knife, or hammer.  At that stage he did not think of acting on these thoughts.

The Plaintiff said that in about October 1995 he read about depression and re-attended his general practitioner, asking for a referral to a psychiatrist.  He then attended a psychiatrist, Dr Cooper, in December 1995.  The Plaintiff said that Dr Cooper suggested that he leave his job when his long service leave was available.  The Plaintiff said that he told Dr Cooper of his thoughts of violence but that Dr Cooper did not take this seriously.  He only saw Dr Cooper on one occasion at that time.

The Plaintiff said that he began thinking of acting on his violent thoughts towards his former employer from about March 1996.  He said that because he did not want to get caught if he carried out any murders, he began reading forensic science books.

The Plaintiff said that he resigned from Suncorp Metway in April 1996.  He said that his long service leave became available at that point, and that he was advised by Dr Cooper to leave.  He had been looking for a job elsewhere from January 1996, and said that he had a job lined up for when he left Suncorp Metway.  He also told the Panel that he left Suncorp Metway partly so he could take legal action against his former employer.

He commenced working with Coles Myer in April 1996.  He told the Panel that at that time his mood was still a little lowered, but he was more optimistic because he could take action at the Australian Industrial Relations Commission (AIRC).  He said that he went to the AIRC in May 1996.  The Plaintiff said that at that hearing National Mutual mentioned that they could launch a counter claim for vexatious litigation.  He voluntarily left Coles Myer at the end of 1997, because he said he could earn more money as a contractor.

The Plaintiff said that from the start of 1998 he did contract IT contract [sic] work in his own business.  From the end of 1998 until August 1999 he did contract IT work overseas.  He said that during his spare time he read legal books, and that in the back of his mind he was saving up money for future legal costs.  From August 1999 until November 2000 he worked for Telstra in IT work.  He said that he thought in that time he was “slightly depressed, I suppose”,  and he was continuing to think of taking legal action.

The Plaintiff said that in November 2000 he returned to his general practitioner and told him about his thoughts of killing people.  He was referred back to Dr Cooper whom he saw in January 2001. Dr Cooper referred him to Professor Mullen for a second opinion in June 2001.  He said he had submitted his first WorkCover claim in December 2000.

The Plaintiff said that he did further contract work in the United Kingdom from June 2001.  He was to work into 2002, but the contract was ended in November 2001 because the business he was working for was taken over.  He returned to Australia in February 2002.

The Plaintiff said he has not worked since he returned to Australia in February 2002.  The Plaintiff said that because of his thoughts of killing people at work, it was best not to go.  He also said that going to work was “putting the cart before the horse”, and that he would use the WorkCover process to improve his mental health by resolving the National Mutual situation.

The Plaintiff also reported that in February 2002 his wife suggested a separation.  He said that she wanted him to go to work.  He said that he wanted to follow through his WorkCover claim.

In February 2002 the Plaintiff said that whilst he was lying in bed watching the TV news his mother-in-law attended to take his daughter to school (she had already taken his son to school).  He said that she yelled at him, that she was in a bad mood, she came in and turned off the television and wouldn't leave the bedroom.  He reported that he got increasingly  angry and threatened her, saying, “if you don’t go, I'll hit you”.  He said that he punched her, but she still didn’t move.  He told the Panel that he said to her “if you don't go, I will hit you with a chair”.  She did not move, so he said he hit her with the chair twice.  He said that she noticed that she was bleeding and called for her granddaughter.  He said he saw some blood and got a tea towel, before calling an ambulance.  He said that his reaction was that he felt tired, so he therefore  had a cup of coffee.  He said he had no thoughts about his mother-in-law; no anger, no sadness for her, but he did feel a bit uneasy.

The police arrived, and the Plaintiff said that he was admitted to the Austin Hospital psychiatric unit for two weeks.  He was treated with Efexor-XR 150 mg daily, which he said calmed him down and dampened his emotions.

After discharge from hospital he lived in a number of youth hostels until October 2002,·before returning to live in the family home until mid-2003. During that time he slept on a mattress on the floor.  There was a financial separation in June 2003, following which he shared a flat, before living in his own rented flat since June 2006.

The Plaintiff said that he continued to consult Dr Cooper at 1-2 monthly intervals until mid-2006.  During that time he ceased the Efexor-XR medication in 2004, to see how he was without it.  He said that he was more alert off the medication and he did not become depressed.  He stopped seeing Dr Cooper in mid-2006 because he felt it was of no use, and monitoring him was not useful to him. He reported that he continued to see his general practitioner at monthly intervals.

The Plaintiff said that he has spent much of his time since 2002 pursuing his legal claim.  He said that if his current legal claim failed, he might go and kill people, but he would also pursue a separate legal claim for his superannuation. He said that he could not go and work now because he would not be able to handle his thoughts at work, he would not be able to concentrate, and he also needs time to get National Mutual to correct their mistakes.  He said it was a full-time-job to improve his mental health and gain time for his financial and legal settlement.

The Plaintiff described the following current symptoms:

•That his mood varied, from slightly low to normal.  He said that when he thought of his WorkCover/legal issues this affected his mood.

•That he had ongoing thoughts of killing people when the idea of work comes up.  Sometimes this is specific people, such as former management at National Mutual.  He has thoughts of using hammers, axes, knives, even Molotov cocktails. He said that sometimes the thoughts made him feel good. He said he would like to bankrupt National Mutual, and could attempt to do this by killing people who had life insurance.  He said that this thought helped cheer him up.  He realised however that it practically would not be possible to kill sufficient people to financially damage such a large company; it is a theory.

•When asked why he was able to stop acting on his violent thoughts, the Plaintiff said that he feared being caught, that time was on his side, and he would still prefer to settle the matters legally.

•No auditory hallucinations.

•No ideas of being followed or filmed (though he is aware that insurance companies sometimes filmed people for insurance purposes).

•No delusions of reference.

•That his sleep was mostly normal.

•His weight and appetite are normal.

•That his concentration was okay, but if he were at work he would be concerned by his morbid thoughts and unable to concentrate.

The Plaintiff said that he attended a gym most days.  He said that he spends about two hours per day on the Internet, looking at dating sites, e-mailing people and sending jokes.  He reported spending some time doing legal research, in particular looking up WorkCover cases.  He said he recently had a girlfriend, but the relationship  had broken down.  He reported that he did not see his children very often, and he was a bit disappointed that they do not contact him.  He said that his ex-wife was not supportive of his legal claim; he said that a lot of damage had been done and he needed to correct this, and hence the imperative of settling his legal cases favourably.

The Plaintiff denied any past psychiatric history (prior to 1994) and takes no antidepressant medication currently. He has no active psychiatric treatment. He said that he drinks the occasional glass of wine, but does not use any illicit substances.

The Plaintiff told the Panel that he was born in England.  He is one of four children. He said that his family were not very well off financially, and that it was a strict upbringing.   He said that he was told off a bit, and was controlled by both parents. He reported that his father punished him with a stick.  Despite all this he said that he was moderately happy overall, and had some friends.

He reported that he kicked his pet cat a few times as a child, moderately hard. Between the ages of 8-10 he said he stole twice, and lit two fires, one near a church. On one of the fire lighting occasions the fire brigade were called.  He said that he was involved in some fights between the ages of 9 to 15 years.

He said that he attended school to advanced levels, before doing a university degree in mathematics.  He said that whilst at University he was never lonely, and had a few friends, but never had a girlfriend.  From 1982 he has worked in the computer/IT industry.

The Plaintiff said that he came to Australia in 1979, because he wanted to travel and then become a resident here.  He married in 1983 and the couple had three children, now 19, 20, and 22 years.  He reported that he had hit his wife on two occasions.  He told the Panel he was once playing chess when his wife came in and deliberately knocked over some chess pieces.  He said that he punched her in the face, causing bruising to her face.  He was the subject of an Intervention Order following the incident with his mother-in-law in 2002.

On mental state examination the Panel noted that the Plaintiff presented as a small man, with balding grey hair and a beard. He had a cold stare. He appeared restricted in affect, and did not appear depressed, anxious or agitated. He was not tearful.  He related his history in an obsessive manner, with an exact knowledge of dates and details.  He did not appear distressed at all about the details described to the Panel, including the violent and homicidal fantasies, the assault on his mother-in­ law, or punching his wife, for example.  He appeared to have a single-minded determination about him. There were no frank psychotic symptoms expressed, such as auditory hallucinations, thought control, or clear delusions. His cognition was normal; he appeared of above average intelligence,  and his concentration and memory were objectively normal.

The Panel accepted that the Plaintiff was upset by the changes at his place of employment between 1994 and 1996.  The Panel noted that he attended his general  practitioner in 1995 and was seen by a psychiatrist in December 1995 and that Dr Cooper diagnosed the Plaintiff as suffering from an Adjustment Disorder with depressed mood at that time.

The Panel noted however that the Plaintiff was able to stay at work during this period and he voluntarily left his place of employment in April 1996, to take up other full-time employment. He had consistent paid employment history both in Australia and the United Kingdom until late 2001.  The Panel noted that the Plaintiff did not seek psychiatric help in Australia or the United Kingdom for any psychiatric or psychological condition until he returned to his general practitioner in December 2000 (the date of his first Workcover claim).

The Panel carefully took account of the following:

•the Plaintiff had reported the onset of violent and revengeful fantasies from about mid-1995, and he thought about acting on these from about March 1996;

•the reported childhood thefts, childhood fire lighting, fights, kicking of the pet cat;

•his admitted assault of his wife on more than one occasion;

•the Plaintiff's intense sense of injustice, the sense of entitlement;

•his presentation at the Panel's psychiatric interview;

•the self reported pleasure gained by some of his violent fantasies;

•the goal directed nature of his behaviour;

•the assault of his mother-in-law and his response to that.

The Panel also carefully considered the information provided to the Panel, as outlined in the Schedule of Attachments.  It particularly noted the opinions expressed by the treating doctors, Dr Cooper and Dr McColl, and their diagnoses. The Panel also particularly noted the diagnoses made by other examining psychiatrists (including the possible diagnosis of querulous paranoia made by Professor Mullen), as well the comments made by the psychologist Dr Kennedy.

The Panel concluded that the Plaintiff suffers from a Personality Disorder Not Otherwise Specified, (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder, and narcissistic personality disorder.

The Panel also considered the possibility that the worker could have a psychotic disorder. While no frank bizarre delusions or hallucinations were identified the Panel noted the worker's continuing rumination in relation to potential work situations and his stated intentions to kill employees of his former workplace.  The Panel also noted his seeming indifference to those he has attacked previously and his general restriction of affect in the interview situation. The Panel concluded that elements of a borderline psychotic state were probably present, but a formal diagnosis of a paranoid psychotic disorder could not be substantiated.

The Panel considered the worker does not currently have an Adjustment Disorder based on its consideration of the nature of the Plaintiff’s current symptoms and its findings on his presentation at psychiatric examination. 

The Panel accepted that the Plaintiff did have an Adjustment Disorder with depressed mood which developed in 1995, as diagnosed by Dr Cooper, in response to workplace stressors at that time.  The Panel considers this condition developed independently of his Personality Disorder and it could not be determined to be a recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment as suggested by the questions from the Court. 

The Panel considers the Plaintiff’s Adjustment Disorder resolved shortly after the time the Plaintiff ceased his employment (as this was the stressor causing his Adjustment Disorder) with Suncorp Metway in April 1996 and at about the time he thought of acting on his violent and revengeful fantasies, which were symptoms of his Personality Disorder and not his Adjustment Disorder.

Based on the nature of the Plaintiff’s symptoms and the Panel’s findings on examination, the Panel considers the Plaintiff’s employment had no effect on his Personality Disorder as the continued sense of injustice for the events at work were merely a focus of his Personality Disorder and not a cause or an aggravating factor. 

- The Panel therefore concluded that the Plaintiff is not suffering from any recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

As the Panel considers the Plaintiff developed an Adjustment Disorder directly as a result of the circumstances of his employment and that his employment had no effect on his Personality Disorder, the Panel concluded that the Plaintiff’s employment with National Mutual, Nexus and Suncorp Metway was not in fact, a significant contributing factor to any alleged recurrence, aggravation,  acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

The Panel does consider the nature and extent of the Plaintiff’s Personality Disorder is such that he is not capable of performing any work, but as the Panel has determined that the Plaintiff’s initial Adjustment Disorder has resolved and that his Personality Disorder is not related to his employment, it concluded that the Plaintiff has no present inability to return to pre-injury employment arising from an injury.

Dr Steven Adlard  (Presiding Member)              

For  and on behalf  of the Medical Panel            Date:   30/11/07

1. Attached to the statement of reasons was a schedule entitled Enclosure A.  The schedule was signed by the presiding member and dated 26 November 2007.  It listed 77 documents, some of them containing multiple pages.  Immediately above the list is a declaration by the presiding member as follows:

I refer to the Medical Panel convened in this matter of which I am a member and acknowledge receipt of the medical and other material listed in the schedule and confirm that the Panel took this information into consideration in forming the opinion.

Relevant legal principles

1. I am satisfied that in reaching its conclusions and answering the questions referred, the second panel did not properly appreciate, or did not apply, the relevant legal principles.  To demonstrate this, it is necessary to refer to the applicable provisions of the Accident Compensation Act 1985 and to some relevant authorities.

1. Given the dates of the events in question, it is appropriate to have regard to the relevant provisions of the Accident Compensation Act 1985 as they stood on 1 November 2000 or thereabouts.  It is not suggested that those provisions were significantly different at any other relevant time. 

1. The plaintiff’s County Court claim is brought pursuant to s 82(1) of the Accident Compensation Act 1985, which provided:

(1)     If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.

1. So far as presently relevant, s 5 of the Act defined “injury” as follows:

“Injury” means any physical or mental injury and without limiting the generality of the foregoing includes –

(a)…

(b)…

(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;

1. The word “disease”, which appeared in paragraph (c) of the definition of “injury”, was itself defined in s 5 as follows:

“disease” includes –

(a)any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development; and

(b)the aggravation, acceleration, exacerbation or recurrence of any pre-existing disease;

1. Finally, the expression “current work capacity” was defined in s 5 as follows:

“Current work capacity, in relation to a worker, 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.

1. For the purposes of the error of law grounds, the plaintiff now proceeds principally on the basis that he will in due course apply, again, to amend the FASC to allege (at least in the alternative) that he suffered a work-related injury constituted by a recurrence, aggravation etc of the personality disorder diagnosed by the second panel.  Such an injury would be an injury in the paragraph (c) sense (“recurrence, aggravation etc”), as distinct from an injury in the primary sense.[30]  Hence, if permitted to amend, he would need to satisfy the County Court, under this heading, that he had a pre-existing mental injury or disease (here, the personality disorder); that there was a recurrence, aggravation, acceleration, exacerbation or deterioration of it; that the recurrence etc of it was an injury arising out of or in the course of his employment with one or more of the relevant defendants; and that the employment was a significant contributing factor.[31]  On the other hand, the plaintiff still contends that, regardless of any proposed amendment to the FASC, the legally erroneous approach allegedly adopted by the panel vitiated the answers it actually gave to the questions actually referred. 

   [30]Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296.

   [31]Ibid.

1. Section 5(1B) of the Act required that, in determining whether a worker’s employment was a significant contributing factor to an injury, each of the matters listed in paragraphs (a)-(g) thereof had to be taken into account. The panel makes no express reference in its reasons to any of those requirements as such, but the parties have not referred to or complained about that circumstance in this proceeding, and it need not be further considered.[32] 

   [32]Cf St Mary’s School v Askwith [2011] VSCA 90.

1. The leading Australian workers’ compensation case on psychological injuries and their aggravation etc is Federal Broom Company Pty Ltd v Semlitch[33].  In that case a worker with a history of functional mental illness predisposing her to delusions sustained a muscular strain in the course of her work.  She sought workers’ compensation in respect of a continuing incapacity resulting from a delusional condition following upon the physical injury.  The Worker’s Compensation Act of New South Wales, under which she claimed, defined “injury” in a manner similar to the manner in which “injury” was defined in Victoria as indicated above.  She was successful before the Workers’ Compensation Commission of New South Wales.    

   [33](1964) 110 CLR 626.

1. The worker’s employer appealed to the Full Court of the Supreme Court of New South Wales.  By majority (Else-Mitchell J dissenting) the appeal was dismissed.  A further appeal by the employer to the High Court was also dismissed.  The High Court held that, in determining whether there has been an “aggravation etc” of a functional mental illness, the underlying illness is not separable from its symptoms; and that, on the evidence, a finding that there had been an “aggravation etc” had been open to the Worker’s Compensation Commission in that case.  The High Court further held that it had been open to the Commission to find that the injury at work precipitated the new delusion and that the employment contributed to the worsening of the disease.

1. McTiernan J considered that the worker’s proofs of deterioration in her mental disease were sufficient.  The disease had deteriorated in that symptoms which she either did not have, or did not have to the same degree, immediately before the employment incident appeared after such incident and had an effect on her, so that her condition of health, in a material sense, became worse so she could not work.[34]  Further, according to McTiernan J, it had been open to the Commission to find that the worker’s employment was a contributing factor to such “deterioration”.  Her belief that she was unable to work was a psychological condition; it was a form of madness which she had never exhibited before.  A psychiatrist called by the employer had said that people tend to become more disabled as their schizophrenia goes on and that it was likely that in the end she would have become unable to work.  However, the evidence had raised no probability that the “end” was near at about the time of the workplace incident.  The psychiatrist called by the worker said that in his opinion the accident at work precipitated the delusion that the respondent was unable to cope with her work.  On this evidence and on the contrast between the respondent’s ability to work before the date of the incident and her loss of capacity soon after that date, it was reasonably open to the Commission to find that the injury sustained on that date and the pain and distress it caused the respondent brought on the new delusion that she was unable to work.  Those facts were sufficient to prove a nexus between the employment and the deterioration of the respondent’s mental condition.  They raised the inference that it was more probable than not that the employment was a contributing factor to the worsening of the disease from which the respondent was suffering.

   [34](1964) 110 CLR 626, 629.

1. Kitto J delivered a separate judgment with which Taylor and Owen JJ agreed.  Kitto J set out the appellant’s argument and explained why it was wrong.  It was an argument very similar, in my view, to the second panel’s approach in the present case.  Kitto J said:[35]

Before this Court the contention has been put again which was put to the Supreme Court, that the evidence did not support a finding that the delusion causing the respondent’s incapacity for work was anything more than an effect, or a symptom, or a manifestation of the underlying mental disease.  It was said that the only permissible conclusion on the evidence of the expert witnesses was that the disease itself, as distinguished from the particular delusions to which it gave rise from time to time, was not made any worse by the incident of 1st December 1960, and that therefore the definition of “injury” is not satisfied in this case.  The argument took it for granted that the collection of substantives in the definition—aggravation, acceleration, exacerbation, deterioration—could be rolled into one so that the question for decision could satisfactorily be rendered:  whether it was open to the Commission on the evidence to find that the development of the respondent’s new delusion as a result of the incident of 1st December 1960 was a worsening of the disease from which she suffered or was only a new manifestation of a disease which itself was not worsened.  But fallacy lurks in paraphrase.  To ask whether the disease became worse or merely issued in the new delusion while itself being no worse is to invite a discussion upon which a court could not properly pronounce unless guided for the whole distance by expert evidence, that is to say a discussion as to whether the nature of the relevant kind of mental disease is such that a distinction may legitimately be drawn between the disease, as an underlying general condition, and the particular delusions stemming from it under the influence of particular occurrences or circumstances.

To pursue that discussion, however, seems to me to risk distraction from the real point of the case.  The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all.  They are not all given their true force by asking simply whether the disease has been made worse.  Moffitt J placed at least some of his emphasis upon the word “exacerbation”, and it seems to me that that word is the critical word for this case.  As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development.  “A temporary increase in the violence of the symptoms of a disease” is the medical sense of the word according to Funk and Wagnall’s Standard English Dictionary.  In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition.  It is not a technical word, requiring scientific explication or application.  It is an ordinary English word to be applied by the Court to the proved facts.  Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word.  Moffitt J was right, I think, in saying:  “There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.  The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.  Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.  Equally, where an untoward occurrence in a worker’s employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.

[35]At 633-634.

1. Likewise, the judgment of Windeyer J in Semlitch contains several passages which are illuminating for present purposes.  His Honour said:[36]

A rigid separation of a disease from its symptoms is difficult in the field of psychosomatic and neurological ailments.  In the field of purely functional mental disorders I think it is impossible.  What was urged for the appellant was that the irrational actions, hallucinations and delusions of a person afflicted in mind as the applicant was are but the symptoms of an underlying deep-seated disease of the mind:  and that one cannot say that the disease itself has worsened merely because changes occur in, for example, the nature of a delusion or in the objects upon which a fixed idea is focussed.[37]  That I shall assume to be so.  But to go from the idea that irrational beliefs and behaviour betoken an underlying disorder of the mind to thinking of the mind as an entity, a disorder of which may manifest itself in symptoms that are apart from rather than a part of the disease itself, seems to me a mistakenly simple view of a complex phenomenon.  As I cannot conceive of the mind apart from its functioning, I cannot conceive of it as being disordered or diseased apart from its manifestly disordered functioning.  I therefore find it impossible to conceive of the malady as distinct from its manifestations.  They are, it seems to me, of its essence.  That view may be the result of the limitations of my knowledge.  I am not equipped to consider questions of that kind.  Nevertheless the view that I take accords, I think, with the manner in which, for the purposes of classification, mental disorders are commonly described and given what one of the witnesses in this case called “a diagnostic label”.  Classification of functional abnormalities of mind appears to be based largely on the manner of their manifestations, in emotional states, irrationalities, delusions, and aberrations in behaviour.  That, at all events, is the conclusion that I draw from what the two psychiatrists said in this case.  The applicant was said to be suffering from schizophrenia.  Doctor Ellard described this form of mental disorder in terms of a syndrome.  So far as the evidence showed, it could not be described otherwise.

The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact.  It is a question on which the opinion of psychiatrists may obviously be helpful.  But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious.[38]  The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community.  It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.

[36]At 636-637.

[37]My emphasis.

[38]My emphasis. 

1. Windeyer J proceeded to say:[39]

The next question then is, was there in December 1960 “an aggravation, acceleration, exacerbation or deterioration” of the disease?  The words have somewhat differing meanings:  one may be more apt than another to describe the circumstances of a particular case:  but their several meanings are not exclusive of one another.  The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.  To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.  The word “acceleration” probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached—its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli.  If the word “accelerated” stood alone, I would be inclined to agree with the view that Else-Mitchell J took in his judgment in this case, and think that it was only to such progressive diseases that the relevant part of the definition of “injury” in the Act could apply.  But the word does not stand alone; and I think, with respect, that the application of par.(b) of the definition cannot be confined as he suggested.  Schizophrenia is according to the evidence progressive in that it produces delusions which may tend to become chronic.  But in the present case the words “aggravation” or “exacerbation” are more apt than “acceleration” to describe the matters on which the case for the applicant depends.

[39]At 639-640.

1. Windeyer J next summarised the essential facts.  Having described the worker’s delusions, his Honour said: [40]

As a result of these delusions she firmly believes it is impossible for her to work.  And because she is persuaded that she cannot go to work, in fact she cannot.  That is undisputed.

His Honour summarised the worker’s post-accident condition as follows: [41]

She was still a schizophrenic.  But her irrational beliefs were continuously disturbing her, and were incapacitating her to a much greater extent than formerly.  Apparently they had become a fixed idea and were persistent.  Her disordered state had seemingly become chronic.  In short, judged by comparison with the attitudes and capacities of a normal person she had become more abnormal.

[40]At 640.

[41]At 641.

1. Windeyer J then passed to the question whether this aggravation or deterioration was contributed to by her employment.  He said: [42]

This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all.  When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.  The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.  In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed[43] her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work.  A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs.  The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles.  But said the appellant, all that it did was to focus[44] her existing delusional tendencies in a particular way:  it was a cause of her condition only in the sense that it acted as a precipitant.  That may be true:  nevertheless, Doctor Ellard agreed that “something obviously happened in December to her to cause a change in her way of life”.

The question involved is difficult.  Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor?  Ordinary concepts of cause and consequence are perhaps not applicable.  Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it.  It was said that in any event she might have broken down sooner or later:  that some other incident might have provided a focus[45] for her delusions.  But it was this event at work that in fact did so.

[42]At 641-642.

[43]My emphasis.

[44]My emphasis.

[45]My emphasis.

1. In Commonwealth Banking Corporation v Percival[46] the Full Court of the Federal Court said that it was “fundamental to compensation law that a symptom of an injury or a disease is a part of the condition in respect of which compensation for incapacity is granted”.  The Court gave the example of pain, which the Court described as “probably the most common symptom of injury or disease” and as being, equally, “the most common factor leading to compensable incapacity”.[47]  The Court cited Semlitch as establishing that, in the case of a functional or mental illness, “the underlying illness was not separable from its symptoms”.[48]

   [46](1988) 20 FCR 176, 180.

   [47]Ibid.

   [48]Ibid.

1. For a mental injury to “arise out of or in the course of any employment”, it may be necessary that there be “real”, as distinct from “imagined”, events or circumstances at work which contribute to the worker’s injury.[49]  However, as was held by the New South Wales Court of Appeal in State Transit Authority of New South Wales v Chemler,[50] the “egg shell psyche” principle may apply.  Hence a misperception by the worker of the relevant events or circumstances will not necessarily disqualify him or her.  In St Mary’s School v Askwith,[51] a decision of the Victorian Court of Appeal, these principles, which were common ground between the parties, were accepted as being correct and as being applicable to the facts of that case.  They were again accepted by the New South Wales Court of Appeal in Commissioner of Police v Dalziel.[52]  As Basten JA said in State Transit Authority of New South Wales v Chemler[53], in contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor. Even if the plaintiff’s claim in the County Court could be characterised as a “stress claim” for the purposes of s 82(2A) of the Accident Compensation Act 1985, nevertheless the relevant defendants have not suggested that the defence of reasonable employer action provided for in that section stands in the way of the grant of the relief sought by the plaintiff in the proceedings before this Court.

   [49]State Transit Authority of New South Wales v Chemler [2007] NSWCA 249, [32]-[56] per Spigelman CJ, [67]-[69] per Basten JA and [70] per Bryson AJA.

   [50]Ibid.

   [51][2011] VSCA 90, [12].

   [52][2011] NSWCA 290, [25]-[26].

   [53][2007] NSWCA 249 [69].

The second medical panel’s findings relating to the plaintiff’s personality disorder

1. As its statement of reasons indicates, the second medical panel apparently accepted the factual history given to it by the plaintiff.  It recited that history in detail and said little or nothing to indicate non-acceptance of any part of it, although it also took into account the mental state examination carried out by members of the panel and the opinions and diagnoses of other medical practitioners contained in the voluminous material transmitted by the County Court judge.

1. The plaintiff’s history included instances of the plaintiff having engaged in disordered and aggressive behaviour from childhood.  The panel obviously saw this as significant.  According to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (DSM-IV), the authoritative work published by the American Psychiatric Association to which the panel referred in diagnosing the plaintiff[54], early manifestation is a feature of all personality disorders.  Contrary to the submissions of the relevant defendants, it is plain that the second medical panel concluded that the plaintiff had had a personality disorder (of the diagnosed type) prior to the happening of the events in question at National Mutual/Nexis/Suncorp Metway. 

   [54]During the hearing, counsel for the relevant defendants invited me to have regard to the provisions of DSM-IV for another purpose: see transcript 142.

1. The plaintiff’s history, as accepted by the second medical panel, also indicated that there were actual events and circumstances at work to which, rightly or wrongly, the plaintiff took exception.[55]  At National Mutual, at the end of 1993, two other workers got a better appraisal and better pay than the plaintiff did.  The plaintiff “disagreed with this, and wanted it corrected.  He did not sign the appraisal, and felt that he was being blamed for other peoples’ errors”.  The plaintiff was deliberately not working hard in 1994 because he was “unhappy with the appraisal”.  This was partly to “get at” his employer for the negative appraisal.  There was a significant controversy between the plaintiff and National Mutual over his claimed redundancy entitlements when Nexis was purchased by Suncorp in September/October 1994.  After the takeover, the plaintiff was again disappointed when he was denied a pay rise.  In April 1995 he “was angry” because contract workers were being paid more than him and because he was not given a work contract.  These things upset him so much that he attended his GP and was given three days off work.

   [55]Cf St Mary’s School v Ashwith [2011] VSCA 90 [12]; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [55], [69]; Commissioner of Police v Dalziel [2011] NSWCA 90 [26]-[27] per Basten JA (dissenting).

1. Between February and June 1995, the plaintiff began to imagine attacking his former manager at National Mutual with a knife or hammer.  This occurred when the plaintiff tried to get to sleep at night.  In October 1995 he saw the psychiatrist, Dr Cooper, and told him about his thoughts of violence.  He began thinking of acting on his violent thoughts towards his former employer from about March 1996.  He did not wish to be caught if he carried out any murders and so began reading forensic science books.  He left Suncorp/Metway in April 1996 partly in order to take legal action against his former employer.  Although he did other work for some five years thereafter, he was continuing to think of taking legal action.  He returned to his GP in November 2000 and told him of his thoughts of killing people.  He had not worked after returning to Australia from the UK in February 2002.  Because of his thoughts of “killing people at work” he thought it was best not to go.  He also wanted to use the WorkCover process against National Mutual.  He had spent much of his time since 2002 pursuing his legal claim.  He still had thoughts of killing people.  He “could not go and work now because he would not be able to handle his thoughts at work, he would not be able to concentrate, and he also needs time to get National Mutual to correct their mistakes”.[56] 

   [56]My emphasis.

1. The panel found that the plaintiff’s current “symptoms” included:

•Mood variation when he thought of his WorkCover/legal issues; and

•Ongoing thoughts of killing people when the idea of work comes up.  Sometimes this related to former management at National Mutual.[57]  He would like to bankrupt National Mutual by killing people who had taken out life insurance with it. 

[57]My emphasis.

1. The panel expressly accepted that the plaintiff was upset by the changes at his place of employment between 1994 and 1996, noting that he had attended medical practitioners at that time.  On the other hand, the panel observed that the plaintiff had been able to stay at work during that period and had remained in gainful work both in Australia and United Kingdom until late 2001.

1. The panel said that it took into account that the plaintiff had reported the onset of violent and revengeful fantasies from about mid-1995 and that he had thought of acting on this from about March 1996.  The panel also took into account “the Plaintiff’s intense sense of injustice, the sense of entitlement”.

1. Next, the panel set out its diagnosis of the plaintiff (to which I have already referred), to wit:

The Panel concluded that the Plaintiff suffers from a Personality Disorder Not Otherwise Specified, (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder, and narcissistic personality disorder.[58]

It is common ground that the reference to DSM IV was a reference to the above mentioned Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition, published by the American Psychiatric Association.  It follows that, on the panel’s findings, the plaintiff was suffering from a recognised mental health disorder before and at the time of his examination by the panel in 2007.

[58]CB 447.

1. Indeed, after setting out its diagnosis, the panel mentioned that it had considered the possibility that the plaintiff might even have a psychotic disorder.  In this regard the panel mentioned particularly the plaintiff’s “continuing rumination in relation to potential work situations and his stated intentions to kill employees of his former work place”.  The panel concluded that “elements of a border line psychotic state were probably present, but a formal diagnosis of a paranoid psychotic disorder could not be substantiated”.

1. As already mentioned, the panel went on to accept that in 1995 the plaintiff had had an adjustment disorder which developed in response to work place stressors at that time.  However, as has also been mentioned, the panel concluded that the Adjustment Disorder developed independently of the personality disorder and that the former “resolved shortly after the time the Plaintiff ceased his employment (as this was the stressor causing his Adjustment Disorder) with Suncorp/Metway in April 1996.  …  “.

1. However that may be, the panel clearly accepted that the plaintiff began to have “violent and revengeful fantasies” about National Mutual and its staff in the first half of 1995 and that he began to think about acting on those fantasies from April 1996.  The panel described these “violent and revengeful fantasies” as “symptoms of his Personality Disorder and not of his Adjustment Disorder”.  It went on to refer to the plaintiff’s “continued sense of injustice for the events at work”.  It accepted that the nature and extent of the plaintiff’s Personality Disorder was such that he was “not capable of performing any work”. 

1. Nevertheless, as mentioned above, the panel concluded that the plaintiff’s employment “had no effect on his Personality Disorder”.  It sought to explain this conclusion by saying that the plaintiff’s continued sense of injustice for the events at work” was “merely a focus of his Personality Disorder and not a cause or an aggravating factor”.  On this basis the panel determined that the plaintiff’s Personality Disorder was not related to his employment.  It followed, the panel said, that the plaintiff “has no present inability to return to pre-injury employment arising from an injury”.  That last conclusion is, of course, reflected in the panel’s answer to question 3.

The panel’s error of law:  divorcing the symptoms of a mental disorder from the disease:  “exacerbation” of a mental disorder

1. I am satisfied that the second medical panel failed to appreciate that, for the purposes of workers’ compensation law, a mental disorder is not separable from its symptoms.  On the panel’s own findings, from mid 1995 the symptoms of Mr Clarke’s personality disorder included “violent and revengeful fantasies” with respect to the staff at National Mutual.  Previously, Mr Clarke had not experienced any such fantasies.  The violent and revengeful fantasies represented new symptoms of the personality disorder.  They were so intense that Mr Clarke could no longer perform any work.  As he submits, his experience of the personality disorder was thus “increased or intensified by an increase or intensifying of its symptoms”.[59]  On the authority of Semlitch, that necessarily amounted to an “exacerbation” of his personality disorder, if not also an “aggravation” or “deterioration” of it.  The panel’s failure to recognise this represented an error of law.

   [59]Submissions, para 21.

The significance of the error

1. The error made by the panel, being an error of law on the face of the record, will be sufficient to warrant the setting aside of its opinion if and to the extent that its opinion might have been different in the absence of the error.[60]

   [60]Penev v County Court of Victoria [2013] VSC 143 [68] (Emerton J).

1. In my view, if the panel had appreciated that the plaintiff’s violent and revengeful fantasies amounted to an exacerbation of his personality disorder, the panel might well have incorporated, expressly or impliedly, a finding to that effect in each of its answers to the four referred medical questions.

1. Further, if the panel had appreciated that there had been an “exacerbation” of Mr Clarke’s mental disorder, the panel might well have proceeded to find that the exacerbation had occurred in the course of, or had arisen out of, the plaintiff’s employment and also that the employment was a significant contributing factor to the exacerbation.  After all, the violent and revengeful fantasies began while the plaintiff was at work at National Mutual.  Moreover, these disordered thoughts of the plaintiff sprang from resentment on his part with respect to actual events that occurred at work at National Mutual.[61]  To use the panel’s own expression, the events at work were a “focus” of the plaintiff’s disordered thoughts.[62]  It is not necessary for this Court to determine whether or not the panel would have been bound to determine that the exacerbation was work-related (in a relevant sense), although on the facts found by the panel itself, it is strongly arguable that the panel would have been so bound.  However that may be, it cannot be doubted that, if the panel had directed itself properly in law, the panel might have determined that the exacerbation was work-related. 

   [61]Cf St Mary’s School v Askwith [2011] VSCA 90 [3], [7]-[17], [20]-[21], [41]-[47].

   [62]Compare Semlitch (1964) 110 CLR 626, 636, 641-642 per Windeyer J (passages set out above).

1. Contrary to the relevant defendants’ submission, I consider that, if the panel had accepted that the plaintiff had suffered an exacerbation of his personality disorder – and all the more so if the panel had gone on (as would have been likely) to determine that the exacerbation was work-related – the panel, quite properly, might then have answered each of the four referred questions quite differently and in a way considerably more favourable to the plaintiff.

1. As to question 1, it is true that the wording of the question largely followed the language of the particulars of injury contained in the FASC and, accordingly, that question 1 does not expressly ask about a personality disorder.  Hence I acknowledge that, on any view of the law, it would have been open to the panel to answer question 1 in the very words which it did happen to use for that purpose.  The relevant defendants go further and submit that the panel was confined to such an extent by the language of question 1 that the panel could not lawfully have included in its answer to that question any reference to the plaintiff’s personality disorder.  I do not accept that submission.  Question 1 is not so tightly drafted.  Indeed it is not very clearly expressed at all.  I think that question 1 left room for the panel to include in its answer a statement – if only for the avoidance of doubt or by way of clarification – to the effect that the plaintiff did indeed have a “pre-existing psychological ailment”, namely a personality disorder, and that the plaintiff was suffering from an exacerbation of that disorder manifested by violent and revengeful fantasies relating to National Mutual.  To that extent, the panel’s answer to question 1 might have been different in the absence of the error of law. 

1. Question 2 is a lengthy question of numerous parts.  Instead of simply answering “No” to both Part (a) and Part (b), the panel, in the absence of the error of law, might properly have framed its answer on the basis that the exacerbation of the plaintiff’s personality disorder amounted to a “similar injury” within the meaning of subparagraph (z) of sub-questions 2(a) and 2(b).  And, given the strong work place connections, the panel could properly have indicated in its answer that the plaintiff’s employment with one or more or all of the relevant defendants was a significant contributing factor to the exacerbation. 

1. Question 3(a) inquired as to whether the plaintiff had a “current work capacity”.  The definition of that term in the Act is set out above.  Question 3(b) inquired as to whether, if the plaintiff did not have a current work capacity, the plaintiff was likely to continue indefinitely to have no current work capacity.  As already mentioned, it is common ground that these questions were of general application. Given the panel’s finding that the plaintiff was unable to perform any work at all, the panel could simply have answered question 3(a) “No” and question 3(b) “Yes”.  Instead, the panel answered question 3(a) by saying that the plaintiff “has no present inability to return to pre-injury employment arising from an injury” and it answered question 3(b) by saying “Not applicable”.  Even if question 3(a) had been framed in a narrower fashion such that an answer of the kind given by the panel would have been fully responsive, the panel’s error of law would still have vitiated its answer.  The answer was based on the panel’s conclusion that the plaintiff was not (any longer) suffering from an “injury” within the meaning of the Accident Compensation Act 2005.  However, for the reasons already given, the panel might have arrived at a different conclusion, and might therefore have given a different answer, if it had appreciated that an intensification of the symptoms of a mental disorder amounts to an exacerbation of the disorder, and thus to an injury, within the meaning of the Act.  Of course, because the answer to question 3(a) is vitiated, so also is the answer to question 3(b).

1. Question 4 is also linked to the answer to question 3(a).  If question 3(a) had been answered “No”, as it might have been, then, instead of answering question 4 by saying “Not applicable”, the panel could properly have answered question 4 by saying that the plaintiff’s incapacity for work resulted from or was materially contributed to by an injury consisting of an exacerbation of the plaintiff’s pre-existing personality disorder. 

1. It is inherent in what I have already said that I do not accept the relevant defendants’ submission that the panel’s error of law was of no consequence.  In my view, in the absence of the error of law, the panel might legitimately have answered each of the four questions differently and in a way that was more favourable to the plaintiff.  I would accept that, generally speaking, a medical panel should answer only the questions put.[63] I accept that, in interpreting a medical question referred by a court, it is legitimate to take into account the terms of the pleadings in the court. However, I do not accept the relevant defendants’ submission that a medical question that travels beyond the current pleadings can never be validly asked. I see nothing to support that submission in the definition of “medical question” or in s 67 of the Accident Compensation Act 1985 (being the provisions to which the relevant defendants have referred in this context).[64]  In the present case, both sides agreed to the inclusion in the second medical question of the expression “a similar injury”.  That expression does not appear in the FASC.  Plainly, its inclusion in the second medical question takes that question and, in consequence, question 4, beyond the pleadings.

   [63]The plaintiff himself makes that very point in another context in paragraph 25 of his written submissions (CB 656), relying upon Di Genova v Lefkovits [2004] VSC 491 at [31]-[32] (Kaye J).

   [64]See esp. para 19 of the relevant defendants’ written submissions (CB 666-667).

1. Further, it seems to me that the present submission of the relevant defendants is hard to reconcile with the submission which they reportedly made to the County Court judge in the course of opposing the plaintiff’s application for leave to send a further referral to the medical panel and for leave to amend the FASC.  According to the judgment of Hansen AJA (as his Honour then was) in Clarke v National Mutual Life Assurance Ltd[65], counsel for the relevant defendants had submitted to the County Court judge that the amendment should not be allowed because it would have no utility and was likely to cause waste, delay and embarrassment, for several stated reasons.  The stated reasons included that the extant opinion of the second medical panel had disposed of all of the medical questions sought to be asked by the proposed further referral and had also disposed of the fresh allegations of an injury of “personality disorder not otherwise specified”.  Thus (the relevant defendants submitted to the County Court judge) the further referral would be otiose (to the extent the answers were the same as those already given), or embarrassing to the Court (if different answers were received, both of which were binding on the same issue).  Apparently, it was further submitted that the answer to question 3(a) determined that Mr Clarke had no compensable injury at all.  It was said that the balance of the further questions proposed to be referred had already been answered and that there was therefore no utility in asking the further questions.  The relevant defendants cannot have it both ways. 

   [65][2010] VSCA 43 at [23]-[24].

1. In my opinion, the entirety of the panel’s opinion is vitiated by the error of law made by the panel. 

Insufficient and unresponsive answers

1. Strictly speaking, it is unnecessary to say any more about the grounds of review that separately allege that the answers contained in the panel’s certified opinion are insufficient or unresponsive to the questions asked. 

1. For completeness, however, I indicate that I do not uphold the grounds of this character that relate to questions 1 and 2.  I do not accept that the panel was obliged to be any more specific than it was in its answers to those questions.  The answer given to question 1 could have been more detailed and could have included qualifications, but the same were not mandatory.  The answer given is sufficiently responsive to every aspect of question 1.  The answer given to question 2(a) is, simply, “No”.  I would read that answer as expressing a negative response in relation to each and every part, and each and every combination of parts, of question 2(a).  That, too, is sufficient. The same goes for question 2(b). 

1. On the other hand, as mentioned already, it is common ground that the panel failed to appreciate the full scope of questions 3 and 4.  However, had it not been for the panel’s error of law, I would have declined to grant any relief in relation to the panel’s answers to questions 3 and 4.  I would have accepted the relevant defendants’ submission that there would be no utility in quashing the answers to questions 3 and 4 because the panel’s answers to questions 1 and 2 would have defeated the plaintiff’s claim in any event.

Conclusion and orders

1. For these reasons, I propose to order, in proceeding no 4569 of 2008 (the Order 56 proceeding) that the entirety of the certified opinion of the medical panel dated 30 November 2007 be quashed. I will reserve liberty to the parties to apply, within 28 days, for any order they may consider to be needed to correct the name of the firstnamed defendant or the name of the secondnamed defendant.

1. I will hear the parties as to what order should be made to dispose of proceeding no 4554 of 2008 (the Administrative Law Act 1978 proceeding).

1. I will also hear the parties as to costs, including the costs of the proceeding under the Administrative Law Act 1978.