Community Services Victoria v Bradbury
[1999] VSC 32
•22 February 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 7510 of 1998
IN THE MATTER OF an appeal under Section 109 of the Magistrates' Court Act 1989
| COMMUNITY SERVICES VICTORIA | Appellant |
| v | |
| WILLIAM BRADBURY | Respondent |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 February 1999 | |
DATE OF JUDGMENT: | 22 February 1999 | |
CASE MAY BE CITED AS: | Community Services Victoria v. William Bradbury | |
MEDIA NEUTRAL CITATION: | [1999] VSC 32 | |
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Accident Compensation - Question referred to medical panel - Meaning of question and opinion of panel - Whether question referred was a "medical question" - Accident Compensation Act 1985 ss.98(1) and (5) [before repeal by Act No. 67/1992], 98A [as inserted by Act No. 67/1992].
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr A. Cavanough, QC with | Purves Clarke Richards |
| For the Respondent | Mr M. O'Loghlen, QC with with Mr I. Fehring | Slater & Gordon |
HIS HONOUR:
The proceeding
This is an appeal brought pursuant to s.109 of the Magistrates' Court Act 1989 from the final order of a magistrate made on 16 September 1998 in a proceeding brought under the Accident Compensation Act 1985 ("the Act").
The magistrate, pertinently, ordered that the appellant, properly described as the Secretary to the Department of Human Services, pay the respondent William Bradbury the sum of $38,616.
The respondent was, between August 1986 and May 1994, employed by the appellant as an intellectual disability officer. In about September 1992 he became incapacitated by psychiatric injury. He resumed work thereafter, but had to finish up in May 1994. Thereafter, until September 1996, he was paid weekly compensation at the maximum rate. Then payments were reduced, the insurer having determined that the respondent was totally and permanently incapacitated, but that he was not suffering from "serious injury" as defined.
The respondent contested the insurer's decision. He commenced a proceeding in the Magistrates' Court. The opinion of a medical panel was taken. It was adverse to the respondent. Eventually, his claim to an increase in weekly payments was dismissed with costs.
In February 1998 the worker amended his statement of claim to add, as a particular of injury:
"Loss of mental powers",
and to claim, additionally to weekly payments
"an Award pursuant to s.98 of the Act for the loss of mental powers"
and
" ... an award of compensation pursuant to the provisions of s.98(5) ... in respect of pain, suffering, distress and anxiety occasioned or to be occasioned by the injury."
The appellant filed an amended notice of defence. That document did not specifically address the question whether compensation could be payable (as the amended statement of claim contended) under s.98(1) of the Act for loss of mental powers, and pursuant to s.98(5).
A new request to refer questions to a medical panel was filed by the employer on or about 14 April 1998.
In the course of opening the matter in the Magistrates' Court counsel for the respondent informed the learned magistrate that his client was in receipt of weekly payments, and that
"the only matter in dispute between the parties is now whether or not and to the extent Mr Bradbury is entitled to a benefit under s.98 for loss of mental powers. That is the issue that is now to go to the panel."
The remark was seized upon by Mr Cavanough, senior counsel for the respondent before me. He submitted that it revealed a commonly understood position of the parties when a question was thereafter referred to a medical panel - that is, that all aspects of a section 98 claim in respect loss of mental powers could be and were to be referred to a panel. Three points may be made. First, the February 1998 amendments to the statement of claim are not readily compatible with such a common understanding. Second, what was said by Mr Cavanough to be the commonly understood position of counsel on the first day of the hearing was plainly not the position of the respondent's counsel on the second day of the hearing. That leads me to have some doubt whether the so‑called common understanding ever existed. Third, the true import of the question referred for the opinion of the panel and of the panel's opinion raised, according to and necessarily for the appellant's case, questions of law. The court is not foreclosed from dealing with the matter by an informal statement of counsel.
In the event, the learned magistrate referred a single, abbreviated question for the opinion of a panel. It was this:
"What, if any level of impairment does the plaintiff have by way of total and incurable loss of mental powers involving inability to work expressed as a percentage?"
That was the first portion of the first of two questions framed by the solicitors for the appellant by their notice of request.
The medical panel, by a certificate dated 21 July 1998, reframed the question as:
"What is the loss of mental powers?"
Its answer was:
" ... The claimant has a permanent and incurable loss of mental powers which is work related to the extent of 20%."
The matter came back before the Magistrates' Court on 16 September 1998. Counsel for the respondent accepted that his client was bound by the opinion of the medical panel. But he argued, counsel for the employer arguing to the contrary, that his client was also entitled to "a loading for s.98(5)". The magistrate, evidently being of opinion that the question referred to the panel, and the panel's opinion, did not exhaust the content of an award of compensation under s.98, then heard evidence from the respondent as to his pain and suffering. Thereafter he made the award for $38,616 to which I earlier referred.
The issues exposed
As I noted a few moments ago, the question referred for the opinion of the medical panel was this:
"What, if any, level of impairment does the plaintiff have by way of total and incurable loss of mental powers involving inability to work when expressed as a percentage?"
The reference to "total and incurable loss of mental powers involving inability to work" replicated the language of an item in the Table appended to s.98(1) of the Act. That item appeared in the first version of the Act. It so remained until its removal by Act No. 67/1992.
The phrase "level of impairment" replicated the language of paragraph (d) of the definition of "medical question" as introduced by Act No. 64/1989. That paragraph of the definition remained in that form until amended by Act No. 67/1992.
I noted, a few moments ago, the opinion of the medical panel. Its statement of the question was abbreviated. Its answer should be taken to mean, as the learned magistrate and the parties took it to mean, that the panel was of opinion that the respondent had a 20% incurable loss of mental powers involving inability to work, which loss was itself work-related; that was the "level of impairment".
The learned magistrate was obliged by s.68(4) of the Act to adopt and apply the opinion, to accept it as final and conclusive. The magistrate purported to act in accordance with those obligations. Broadly, the issue raised by the appeal is whether he did so. Within that issue are two sub-issues, which may be stated as questions: first, was it correct for the magistrate to conclude, as he did, that the panel's opinion did not embrace all aspects of an award of compensation to be made under s.98? Second, if he was correct in so concluding, was the methodology whereby he arrived at the amount awarded flawed? Counsel for the appellant asserted, and counsel for the respondent disputed, that these questions were questions of law.
A finding of fact was made
The period of the respondent's employment by the appellant which is relevant for present purposes ended on 1 December 1992. For that is when the item "total and incurable loss of mental powers ... " was removed from the Table; and it was then that the repeal of s.98(5) in its original form took effect.
The respondent in fact continued work with the appellant after 1 December 1992. The panel's opinion was not given until July 1998. It was an issue at trial whether the loss of mental powers which the panel identified was a loss in whole or in part suffered after 1 December 1992. The learned magistrate decided that the entirety of the loss was suffered before 1 December 1992. That finding is not challenged on this appeal.
The first question
The first question arises this way: until May 1991 anyone familiar with workers' compensation law would have said, if asked, that the Table of Maims provided compensation simply for the losses there identified. No element of compensation for pain or suffering was to be discerned. Such a person would have said that "loss" was to be understood as meaning loss or loss of use for industrial purposes. That was the way in which a "just and proportionate" amount was to be determined: see s.98(4) of the Act, and its predecessor, s.11(2) of the Workers' Compensation Act 1958. This approach was considered to be correct and was applied by the Full Court in Fry v. Jenkins [1955] VLR 184 at 189 to 195 per Sholl, J. The Full Court thus endorsed an approach which had been taken over a long period of time by very experienced judges of the Workers' Compensation Board, and which had, indeed, been the subject matter of a published "announcement" as early as 1940: see [1940] ALR (CN) 364.
The longstanding approach to the assessment of compensation for Table injuries did not change when the Workers' Compensation Act was superceded by the Act. That is so despite s.98(5) whose original form was this:
"(5) Compensation under this section is in respect of permanent
impairment and other non-pecuniary loss."
Certainly, although s.98(5) was not debated, the conventional approach to assessment of compensation under s.98(1) and (4) was taken by the Full Court in Accident Compensation Commission v. Hawkins [1992] 1 VR 589. The leading judgment was delivered by Murphy, J. His Honour said this (at 593):
"Most of the injuries set out in the table to the Act lend themselves to a calculation of 'the degree of injury suffered' by an assessment of the loss of use of the particular physical member of the body which is involved. It was this characteristic which led some judges, in earlier times, to refer to the table as a table of maims. However, as additional items were added to the original table, and when in 1946, in Victoria, compensation under the table became payable for partial loss of the items set out therein, the table gradually assumed a role not so much as a table of maims as a table of specific permanent disabilities or impairments."
Notice the reference to "specific permanent disabilities or impairments".
Then, in connection with an injury of the kind involved in the present case, his Honour said this (at 593-4):
"But the additions to the table of 'Total land incurable loss of mental powers involving inability to work', 'Total and incurable paralysis of mental powers' and also of such physical injuries as 'Impairment of the back', 'Impairment of the neck', 'Impairment of the pelvis' do not appear to me readily to fall into a category of injuries which allow any ease of calculation.
Particularly is this so when the degree of a partial loss, being 'a lesser but substantial degree of any injury for which compensation is payable under sub-section (1) - ' (see s.98(4)(b)), is to be calculated.'"and
"This table injury is really a condition of impairment. It is a description of a result of an injury: c.f., per Gowans J., in Stevenson v. Buchanan & Brock Pty. Ltd. [1971] V.R. 503, at p.511, and per Barwick C.J. in Commissioner for Railways v. Bain (1965) 112 C.L.R. 246, at p.259. This injury by its own description involves a loss of capacity."
and
"I am of the view that the tribunal was correct to have regard to the inability of the respondent to continue his employment as a policeman, because of his incurable loss of mental powers consequent upon his injury.
Before the accident, he was capable of working as a policeman and did in fact so work. The tribunal was also correct to consider that the respondent, as a result of his injury, no longer had the ability,
which he enjoyed before loss of mental powers, to do the sort
of work that he was capable of doing before the injury.
In my opinion, these were appropriate matters to consider when assessing what was 'just and proportionate to the degree of injury suffered'."
Mr Cavanough relied upon his Honour's description of an injury constituted by loss of mental powers as being "really a condition of impairment". He submitted that it supported the proposition that an enquiry as to the "level of impairment" addressed the entirety of what was compensable in respect of such an injury; and that the panel's opinion, addressing that question (although in different language), also did so. That submission appears to me to be wide of the mark. The thrust of his Honour's judgment was that the Table made compensable specific permanent disabilities - or impairments - in respect of which the assessment of compensation might properly have regard to industrial consequences for the particular worker. The language which his Honour used is simply not compatible with a perception that assessment of compensation for Table injuries was to take account of pain and suffering. His Honour's references to impairments and to conditions of impairment must be understood in that context.
One day after judgment was delivered in Hawkins the High Court delivered judgment in Haines v. Bendall (1991) 172 CLR 60. Although the specific point at issue was the amount of damages for personal injuries in respect of which interest should be calculated, the court had occasion to consider the injury for which compensation was awarded under s.16 of the Workers' Compensation Act 1926 (NSW) - a section approximating s.98 of the Act. In their joint judgment Mason, CJ, Dawson, Toohey and Gaudron, JJ said (at 69) that an award under s.16 "is compensation for ... the loss of the part of the body ... or the function of the body". But they also said that a s.16 injury "is an injury or loss for which common law damages are recoverable against a tort feasor". They acknowledged (at 70) that "It is not quite so easy to equate the injury or loss for which compensation is payable under s.16 with particular heads of damage". Notwithstanding that difficulty, their Honours rejected the contention that compensation under the section was "confined to physical impairment only, without regard to what is termed pain, suffering and the loss of amenities of life" (at 70-71). McHugh, J in his dissenting judgment powerfully and persuasively stated, if I may respectfully say so, the contrary (and traditional) position. But his dissent, in which Deane, J agreed, remains just that.
Judge Gorton of the former Accident Compensation Tribunal applied Haines in Brown v. Accident Compensation Commission [1992] VACR 72-231. That judgment was delivered in August 1992, only a few months before the loss of mental powers item disappeared from the Table and before s.98(5) in its then form was repealed. The judgment remains relevant to cases of s.98 injury suffered before 1 December 1992. His Honour's careful analysis of the various provisions of the Act led him to conclude that
"The expression in sub-s.(5) that the compensation payable under s.98 is to be in respect of permanent impairment and other non-pecuniary loss effects a fundamental and radical alteration to the position which existed under s.11" of the Workers Compensation Act 1958.
His Honour further concluded that the expression "other non-pecuniary loss" should be given the same meaning in s.98(5) as in s.135 - it meaning "in general terms, damages for pain and suffering and loss of enjoyment of life suffered as a result of the injury".
In the event, his Honour approached s.98 as requiring an assessment of compensation which took account of both physical impairment and considerations of "common law damages for pain and suffering and loss of amenities". He fixed upon a single percentage loss of mental powers which he converted into a money sum.
Victorian WorkCover Authority v. Taylor [1995] VACR 73-412 followed on from Haines and Brown. Byrne, J said this (at 82, 255):
"Section 98 as it stood provided a table which permitted the calculation of a sum of compensation and a list of specified injuries. The sums payable in respect of those injuries represented compensation not only for the physical aspects of the injury but also for its non-physical aspects, such as pain, suffering and loss of amenities of life: Haines v. Bendall (1991) 172 C.L.R. 60; Brown v. ACC (1992) V.A.C.R. 82,266. See also s.98(5) of the Act. This was changed in 1992 when s.98(5) was repealed and the question of the non-physical aspects of compensable injury fell to be determined under s.98A."
and
"In his reasons (the magistrate) made an assessment dealing with the Worker's physical impairment as he might have done under the regime currently in force, and a further assessment dealing with her
non-pecuniary loss. These were added together and the global assessment formed the basis of his determination of the claim.
It is put on behalf of the Authority in so doing his Worship awarded her, to a greater or less extent, double compensation. To my mind he did not do so. It is clear that he divided the assessment into two parts. Whether this was from habit, or because there was in his mind the possibility of uncertainty as to the effect of s.98(5), or simply because he wished to explain to the parties how he arrived at his final assessment is of no consequence. His Worship's attention was directed to the relevant authorities and he was aware of the components of the assessment which he was required to make."
What flows from the language of the Act at the relevant time, Haines, Brown and Taylor is that, between the commencement of the Act in 1985 and 1 December 1992 an award of compensation under s.98(1) was required to address two aspects - a particular permanent disability (or impairment) for industrial purposes; and pain and suffering and loss of enjoyment of life suffered as a result of the injury. Consideration of those two aspects could not yield a greater sum than the amount available for total loss of a sense or limb. But that should not be taken to mean that the figure assigned for total loss did not bring the second aspect to account. In partial loss cases the tribunal considering a claim had the opportunity of addressing its mind, publicly, to the two aspects to which it was required to give consideration.
In my opinion it very clearly follows from the legislation and the authorities to which I have referred that the reference to "impairment" in s.98(5) should be taken to have referred to the first of those two aspects; and that the reference to "other non‑pecuniary loss" should be taken to have referred to the second. The fact this situation went unrecognised for years is beside the point. It is also beside the point that in the New South Wales legislation there was no equivalent of sub-s.(5). I add that there was no basis for confining the reference to "impairment" in sub-s.(5) to the items in the Table which made use of that word. The language of the sub-section made that clear.
Against the framework thus established, the first question which I framed is exposed. The panel's opinion was sought as to the worker's level of impairment in respect of the particular Table item. Was this a referral which enquired after both aspects of an award which was to be made under s.98? More importantly, did the opinion address both aspects? The magistrate answered those two questions in the negative. In my opinion he was right to do so.
Most simply, focussing upon the language of s.98 at the relevant time, I consider that an enquiry as to the "level of impairment" directed attention to the aspect of permanent disability comprehended by the word "impairment" in sub-s.(5). That was to be contrasted with an enquiry as to the occurrence and extent of pain and suffering and loss of enjoyment of life - the subject matter of the reference in sub‑s.(5) to "other non‑pecuniary loss". The appellant's contention that the Table was concerned, broadly, with "impairment", only one sum being ultimately awarded in respect of a Table injury for that "impairment", did not come to grips with the language of sub-s.(5). It is true that, under section 98, only one sum was to be awarded. Consistently with that, sub-s.(5) referred to "compensation under this section". It might also be the case (I specifically leave the issue open) that in the absence of an "impairment" as I have described it there could not have been a s.98 award. But it is another thing to say that the two aspects which were to be considered when fixing upon a sum in respect of a Table injury were addressed by a question as to the "level of impairment". As the content of s.98 compensation prior to 1 December 1992 was understood when the panel's opinion was sought, a question couched in those terms did not address both aspects of s.98 compensation; nor did the opinion, whose language was no less confined than was the question, and which should be understood as a response to the question which was referred.
Mr Cavanough submitted that the definition of "medical question" introduced into the Act in 1989 showed that a question as to the "level of impairment" addressed the entire compensability of a s.98 injury as understood after Haines. In my opinion that is not so.
The Accident Compensation (General Amendment) Act No. 64/1989 introduced the concept of medical panels into the Act. It much amended the footing upon which weekly compensation was to be paid. It set up a new organ in the administration of the compensation scheme - the WorkCare Appeals Board.
Pertinently, for present purposes, the 1989 Act defined "medical question" to mean:
"(d) A question as to the level of impairment of a worker."
By s.93B weekly compensation could be reduced if the worker's "level of impairment" resulting from injury would, if assessed according to methods prescribed for the purposes of s.100A, be less than 15%.
Section 100A provided that
"100A. Where a reference of a medical question to a Medical Panel requires the panel to assess the level of impairment of a worker resulting from, or materially contributed by, the injury, the panel must give its opinion as to the percentage degree of impairment of the worker after assessing the impairment according to the prescribed methods."
The language of s.100A thus mirrored the language of s.93B(2)(a) and (4)(a).
By s.72E the Accident Compensation Tribunal and the WorkCare Appeals Board could refer medical questions to a medical panel. The WorkCare Appeals Board had jurisdiction to review the decisions of the Accident Compensation Commission and self‑insurers. The Commission and self‑insurers were the initial decision makers in respect of s.98 claims; so also in respect of assessment of the level of impairment in s.93B cases. The Tribunal had jurisdiction to review decisions of the WorkCare Appeals Board.
The scheme of the 1989 amendments makes it likely that paragraph (d) of the definition of "medical question" was by intention linked to referral of questions arising under s.93B (s.100A then coming into play). Were that so, paragraph (d) gave no warrant for the WorkCare Appeals Board or the Tribunal referring any aspect of a s.98(1) determination to a medical panel for opinion. It may be that it is now too late so to conclude. Again, paragraph (d) has been subsequently amended. If for either reason paragraph (d) must be construed to permit referral of a question in connection with s.98 compensation to a medical panel, then I agree with the observation of Byrne, J in Austin v. Amcor Ltd & Anor (Butterworths unreported cases, BC 98-1104 at 8) that
"Given the historical meaning of impairment in this area of law I would construe such a question to involve an assessment of the level of the loss of industrial usefulness of the affected bodily part."
The appellant's submission that the one sum which must be awarded in respect of a Table injury was for "impairment" involved, I think, giving the concept of "impairment" an ambulatory meaning - that is, attaching itself to whatever the entire perceived content of Table compensation was at any particular time. The impact of such an approach can be seen when one considers the amendments effected by the Accident Compensation (WorkCover) Act No. 67/1992. That Act, as I have said on a number of occasions, deleted the Table item loss of mental powers, and repealed s.98(5). It inserted a new s.98A. I should set out sub-ss.(1) and (5) of that section.
"98A Compensation for pain and suffering
(1)A worker who has suffered a loss mentioned in the Table in section 98 (or 2 or more of any such losses as a result of the same injury) is entitled to receive by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.
...
(5)In this section -
'pain and suffering' means -
(a)actual pain; or
(b)distress or anxiety -
suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment."
The 1992 Act also repealed s.100A. A new s.93B was substituted. It referred to "serious injury", which was defined to mean injury in respect of which the "level of impairment" according to methods specified in the American Medical Association's Guides to the Evaluation of Permanent Impairment was 30% or more. A new sub‑s.(2)(e) of s.98 called the Guides in aid in determining "the degree of impairment" in the case of injuries to the back, neck or pelvis. See also s.135A, which referred to the Guides in connection with "serious injury" in the context of common law action. Understandably, in light of the various references to the Guides, paragraph (d) in the definition of "medical question" was expanded to include "a question of the degree of impairment of a worker" assessed in accordance with the Guides.
It is, I think, clear indeed that the repeal of s.98(5) and the introduction of s.98A was intended to and did have the effect of removing from a s.98 award of compensation the aspect of "other non-pecuniary loss". What was left was the impairment entitlement as traditionally understood. Two points may be made. First, if paragraph (d) of the definition of "medical question" embraced questions as to the extent of s.98 entitlement, then according to the appellant's argument "level of impairment" for s.98 purposes had a different perceived content before Haines, after Haines and before 1 December 1992, and after 1 December 1992. Such a conclusion ought be avoided. Second, after 1 December 1992 I do not think it could be contended (and Mr Cavanough did not contend) that a question concerning the quantum of s.98A compensation could spawn a "medical question" - whether by reference to paragraph (d) of the definition, or by reference to any other paragraph. It would be strange if an issue concerning that compensation could earlier have fallen within the scope of a "medical question" for the reason that it was one element of an award of compensation in respect of which another element (let it be assumed) could give rise to a "medical question".
Since 1992 the Act has been often amended. The later the amendments, the less light they cast on the true nature of the question in respect of which the opinion of the medical panel was sought. That said, I should refer to several of the amending provisions. First, by the Accident Compensation (Amendment) Act No. 50/1994 a new s.104 was substituted. It related to claims for compensation under ss.98 and 98A. It provided that if a worker disputed a decision of the authorised insurer, Authority or self-insurer, the worker, before commencing a proceeding must refer "the claim" to a medical panel
"for an opinion as to ...
...
(b) the extent of any relevant loss, impairment, disfigurement or pain and suffering".
That provision has subsequently been amended. But several points emerge. First, what had to be referred to a panel was a "claim" to s.98 or s.98A compensation, not a "medical question". This distinction was noted by Byrne, J in Austin. Second, for that reason the provision does not lead to a conclusion that the definition of "medical question" would enable referral of a claim for s.98A compensation to a panel. This serves to emphasise the lack of consistency there would be if a question as to level of impairment were to be read (until 1 December 1992) as encompassing the "other non‑pecuniary loss" content of s.98 compensation.
Second, by the Accident Compensation (Miscellaneous Amendment) Act No. 107/1997 a new paragraph (d) of the definition of "medical question" was substituted. It now included "a question whether or not that impairment is permanent". By the same Act, compensation under ss.98 and 98A was restricted to injuries arising before 12 November 1997; and a new regime was introduced which was to provide compensation for non-economic loss in cases of permanent impairment (s.98C) and provide a safety net in the case of certain total loss injuries (s.98E). Questions arising out of the application of the last two mentioned sections were able to be referred to a medical panel by reliance upon the expanded paragraph (d) and a new paragraph (e) of the definition of "medical question". It is true that the regime introduced by s.98C provided a ready made estimate by which a degree of impairment was to be correlated with an amount of non-economic loss. But that is far from suggesting that an opinion as to "other non-pecuniary loss" in the case of a person with a s.98 "impairment" had at relevant times been within the purview of a "medical question"; rather the contrary.
Mr Cavanough made other submissions to which I should refer. He contended that the panel should be taken to have known the aspects or elements of s.98 compensation prior to 1 December 1992; and to have addressed all of them. He submitted that there had been "judicial exposition" of the content of the "impairment" for s. 98 purposes (see per Byrne, J. in Austin at 11-12) and that the panel must have and must to be taken to have applied it when giving its opinion.
I do not accept those submissions. No case has decided that the “other non-pecuniary loss” previously referred to by s. 98(5) should, in light of the separate reference in that sub-section to “impairment” also be described as "impairment"; still less that a question as to "level of impairment" in connection with s. 98 was a question as to the entirety of s. 98 compensation before 1 December 1992. For reasons that I have attempted to explain analysis of the legislation points strongly against the conclusion that referral of a question as to the "level of impairment" of a worker was a question which embraced the "other non-pecuniary loss" referred to in sub-s. 5. It should not be supposed that the opinion, couched as it was in terms of permanent and incurable loss of mental powers, went beyond the question.
Mr Cavanough further submitted that referral of a question to a medical panel which required evaluation of a worker’s pain and suffering should not be thought to be outside the likely purview of a “medical question” so as to lead to a reading down of a relevant paragraph of a definition. He pointed out that questions seeking opinion upon matters of mixed law and fact have been held to be within the purview of medical panels: Masters v. McCubbery [1996] 1 V.R. 635. I accept that submission. But it does not mean that a question should be given a meaning that it does not bear. Moreover (and this is a matter to which I shall return), it does not lead to the result that the legislation must be tortured to make a “medical question” out of something that is not as a matter of proper construction within the definition of that term.
Mr Cavanough submitted, again, that the court should not be ready to find that a medical opinion was not clearly expressed, as would lead to it being so useless as not to amount to an opinion at all. He argued that a question and an opinion should be read reasonably, fairly and beneficially. He cited Smith v. Mann (1932) 47 C.L.R. 426 at 452 per Dixon, J and several other authorities. Those submissions do not advance the appellant’s case. The problem that the appellant faces is not lack of clarity in the opinion, or want of precise correlation between the question asked and the opinion given. It is that, properly read, neither the question nor the answer addressed one aspect of s. 98 compensation.
Mr Cavanough also relied upon the judgment of Hedigan, J. in HIH Winterthur Workers Compensation (Vic) Ltd v. Greeves [1998] V.S.C. 97. The present case, he submitted, is the mirror image of Greeves; and the vice in what the learned magistrate did was essentially the same. His Worship heard further evidence, so setting at nought the legislature’s intent that the opinion of a panel be acted upon, not subverted by evidence.
I reject that submission. It assumes that the opinion addressed the subject matter of the later evidence. That assumption is not well founded.
In explaining why neither the question referred to the panel nor the panel’s answer should be taken to have adverted to “other non-pecuniary loss” I have so far focused upon analysis of the legislation at the time, the pointers which emerge from subsequent amendments to the legislation, and authorities. I should refer to two further submissions. They were advanced by Mr O'Loghlen, senior counsel for the respondent.
Mr O’Loghlen first submitted that the definition of “medical question” did not permit a question to be asked concerning “other non-pecuniary loss”. He contended that paragraph (d) was, most favourably for the appellant, confined to the first aspect of s. 98 compensation. No other paragraph could be called in aid by the appellant. The learned magistrate was only empowered to refer a “medical question” to a panel; and the panel was only empowered to answer such a question. The question which was referred and the answer which was given should be read so as to be within power.
In my opinion that submission was correct. I have already discussed the meaning of “impairment” where used in the context of s. 98 generally and specifically in the old s. 98(5). Whether or not paragraph (d) of the definition as originally enacted was intended to or did incidentally pick up s. 98 impairment, neither in that form nor in any later form has it picked up "other non-pecuniary loss”. Further, whilst the five paragraphs of the definition of "medical question" introduced in 1989 have now increased to no less than thirteen, Mr Cavanough only adverted to paragraph (a) as a second possible source of power to refer a question with respect to such loss. In my opinion the language of paragraph (a) gives no support for that submission.
Mr O’Loghlen submitted, secondly, that it was for the learned magistrate to decide, as a question of fact, the meaning of the question asked and the answer given. So long as the meaning attributed by his Worship to the question and answer was not such as was not reasonably open, no error of law was disclosed.
I doubt the correctness of that submission. The circumstances of this case are not akin to those considered in authorities to which he referred me. But I refrain from expressing a finally concluded view upon the matter. Making an assumption favourable to the appellant, it is not in any event assisted.
The Second Question
On an assumption that, until 1 December 1992, an award of compensation in respect of a Table injury contained several aspects (or elements), Mr Cavanough correctly submitted that the learned magistrate’s task was to award a single amount of compensation as appeared to be “just and proportionate” to the degree of injury suffered. He submitted that (if the panel’s answer did not address both elements) his Worship was obliged to fix upon a percentage disability which reflected both elements, then convert this into a money sum. He submitted that the learned magistrate had erred by taking the panel’s assessment as a starting point and then simply adding $20,000; and, as a corollary, that his Worship had considered the pain and suffering element at large, free of necessary statutory constraints.
Question (a) as framed by the master’s order arguably enabled the first of those submissions to be made. I think that no question authorised the second of them. But I shall deal with both. To do so will not alter the fate of the matter; and it may be useful in the disposition of matters in the future.
In my opinion, in determining what amount was just and proportionate to the degree of injury suffered the learned magistrate was not obliged to follow the methodology proposed by Mr Cavanough. He was obliged to heed and act upon the opinion of the panel. This he did. At the end of his exercise he was obliged to fix upon a single amount which reflected both aspects (or elements) of s.98 compensation. He was not obliged to do so by fixing on a particular cumulative percentage and turning that into a money sum.
I turn to Mr Cavanough’s second submission. The learned magistrate was obliged to fix an amount whose starting point was that the legislature had determined that for total and incurable loss of mental powers involving an ability to work the amount payable - that is, for both impairment and other non-pecuniary loss - was $93,080. In determining what amount was just and proportionate to the degree of injury suffered the learned magistrate, taking $18,616 as the "impairment" component, was bound to keep in mind the statutory maximum.
There is before me, as is often the case in appeals such as this, a solicitor's notes of the learned magistrate’s comments when he disposed of the matter. It is not a very satisfactory record. That said, his Worship evidently concluded that the respondent’s pain and suffering and loss of enjoyment of life attributable to the compensable injury had been and continued to be very considerable. He said this:
“His daily life has been considerably interfered with. He has a miserable life now and for reasons clear and I accept him when he tells me of it, I feel he has suffered considerable pain and suffering and loss of enjoyment of life. He has been reduced from a happy functioning man to an unhappy non‑functioning man and has considerable pain and suffering and loss of enjoyment of life.”
The learned magistrate is then reported to have said this:
“...if the question was for the overall assessment of pain and suffering prior to and after 1 December 1992 was before the Court, it would be inappropriate for this Court as the totality would easily exceed the jurisdiction of this Court.”
and
“From the strong position of forming the view that the plaintiff's entitlement to pain and suffering and loss of enjoyment would exceed the jurisdiction if we come back by way of discount or say claw back from an amount in excess to make an allowance of $20,000 for pain and suffering.”
Mr Cavanough submitted that the learned magistrate thereby disclosed, in effect, that he had arrived at the sum of $20,000 without reference to the statutory maximum; or, for that matter, without regard to the fact that the respondent had worked on after 1 December 1992 - whereby his pain and suffering and loss of enjoyment of life might be said to be in part a result of non-compensable injury. I reject those submissions. It appears to me that his Worship was rather saying that, if this had been an assessment of pain and suffering damages in a common law context, the appropriate amount of damages would have exceeded the amount of compensation that could be awarded under the Act; but that, this being a claim subject to the Act, there had to be adjustment to reflect the existence and significance of the statutory maximum amount. It further appears to me that his Worship, recognising that maximum amount, fixed upon an amount for "other non-pecuniary loss" which, when cumulated with the "impairment" amount, produced an award of compensation which he considered just and proportionate to the degree of injury suffered. The fact that the overall amount was greater than the respondent's counsel contended for does not disclose or suggest error.
Orders
In these reasons I have answered the questions framed by the learned Master. Subject to anything that counsel may say I shall make orders in accordance with the following minutes:
1. Appeal dismissed.
2. Appellant pay the respondent’s costs, including any reserved costs.
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