Denham v Consolidated Herd Improvement Services Co-Op Ltd
[2014] VSC 520
•15 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 3279 of 2013
| ANDREW DENHAM | Plaintiff |
| v | |
| CONSOLIDATED HERD IMPROVEMENT SERVICES CO-OP LTD | First Defendant |
| and | |
| ASSOCIATE PROFESSOR GEOFFREY LITTLEJOHN and ORS | Second, Third, Fourth, Fifth and Sixth Defendants |
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JUDGE: | T. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2014 | |
DATE OF RULING: | 15 October 2014 | |
CASE MAY BE CITED AS: | Denham v Consolidated Herd Improvement | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 520 | |
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ADMINISTRATIVE LAW – Judicial Review – Workers compensation – Opinion of a Medical Panel – Inadequate Reasons – Whether Medical Panel failed to explain its actual path of reasoning – Reasons not sufficiently detailed to enable Court to review for error – Whether appropriate in the circumstances to consider other grounds of review – Other grounds not considered – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 – Bakar v Gruma Oceania Pty Ltd [2014] VSC 206 – Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 – Accident Compensation Act 1986 (Vic), s 68.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Gorton QC with Mr E. Makowski | Arnold Thomas & Becker Pty Ltd |
| For the First Defendant | Mr M. Fleming QC with Ms R. Kaye | Injury Disputes Practice Lawyers |
HIS HONOUR:
Introduction
This is an application for judicial review brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Andrew Denham, the plaintiff, seeks an order in the nature of certiorari, quashing the legal effect of a Medical Panel’s certified opinion dated 29 April 2013 (‘the Opinion’). The Opinion was accompanied by a written statement of reasons for the Opinion (‘the Reasons’).
The first defendant formerly employed the plaintiff. The second to sixth defendants comprise the Medical Panel (‘the Panel’) constituted under pt III div 3 of the Accident Compensation Act 1985 (Vic) (‘the Act’).[1] By letter of 17 June 2014 the second to sixth defendants advised that they will submit to such orders as the Court might make in the proceeding and have neither appeared nor made legal submissions.[2]
[1]Part III of the Act was repealed as of 1 July 2014 and provisions governing the constitution, functions and powers of Medical Panels now appear in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), pt 6 div 3. References to the Act are to the Act as it was in force at the date of the Opinion.
[2]See R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, 35.
The Panel formed the Opinion on four medical questions that were referred to it in the context of a dispute concerning the plaintiff’s entitlement to workers compensation. I will turn shortly to the function of the Panel and its place in this proceeding.
The plaintiff impugns the Opinion on four grounds:
a) The Panel erred in its construction or application of the definition of “suitable employment” and/or “current work capacity” as those terms are used in the Act;
b) The Panel failed to take into account relevant considerations or took into account irrelevant considerations;
c) The Panel failed to provide adequate reasons for its certificate of opinion in accordance with the Act;
d) The Panel’s finding that the plaintiff had a current work capacity was Wednesdbury unreasonable.
Background
The plaintiff had twice previously lodged compensation claims for work related back injuries in 1998 and 1990. Liability was accepted for both claims. A prolapsed disc at L4/L5 was diagnosed in 1988 and initially the plaintiff was treated conservatively. In late 1990 he underwent a lumbar discectomy at that level. This operation was performed by Mr David Wallace, neurosurgeon. Over time the plaintiff made an uneventful return to the workforce. In 1993 he commenced full time casual (seasonal) employment with Nestle.
In March 2002 the plaintiff again injured his lower back. He returned to work with Nestle in April 2002 working full time on the production line although suffering ongoing lower back symptoms. By March 2003 the symptoms had become increasingly incapacitating. In April 2004 Mr Wallace performed a laminectomy at L4/L5. The plaintiff continued to experience low back and right leg pain. He was treated in 2004 with facet joint injections and radio frequency denervation. He last worked in 2006 for approximately 2 months as a part-time golf clubhouse attendant but resigned after experiencing increasing back pain following some work related heavy lifting. Since that time he has undergone further denervation treatment (2007) and facet joint injections (2008). He has suffered unrelated left and right shoulder pain in more recent times.
On 6 September 1990 the plaintiff lodged a claim for workers compensation, medical and like expenses pursuant to the Act. That claim was successful. By notice dated 31 July 2007 the plaintiff’s entitlement to weekly payments was terminated with effect from 2 November 2007, with the employer’s claims agent alleging the plaintiff was no longer incapacitated for work.
On 2 September 2011 the plaintiff filed a statement of claim in the Magistrates’ Court seeking reinstatement of the weekly payments for incapacity from 2 November 2007 onwards. In its Defence the employer alleged that the plaintiff had a current work capacity or, if the plaintiff did not have such a capacity, that such lack of capacity was unlikely to continue indefinitely.
Pursuant to provisions of the Act to which I will shortly turn, by letter dated 27 September 2012[3] four medical questions were referred to the Medical Panel. These were:
[3]The letter is stamped as received on 10 January 2013.
1) What is the nature of the Plaintiff’s alleged medical condition as referred to in paragraph 4 of the Statement of Claim and, in particular:
a. Lumbo-sacral spine; and
b. Production, recurrence, aggravation, acceleration and/or exacerbation of injury to the L4/L5 disc, including herniation with compression of the L5 nerve root; and
c. Pain, distress and anxiety?
2) What is the level of impairment of the plaintiff assessed in accordance with section 91 of the Accident Compensation Act?
3) Does the Plaintiff have:
a. A “current work capacity” within the meaning of the Accident Compensation Act 1985 (‘the Act’); or
b. No “current work capacity” within the meaning of the Act?
4) If “yes” to part (b) of question 3 hereof, is this likely to continue indefinitely?[4]
[4]Exhibit ‘LAD-2’ to the Affidavit of Lawrence Andrew Dent dated 6 November 2013, ‘Notice Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 dated 9 May 2012’.
The answer to Question 1 above is undisputed. The plaintiff continues to suffer from a persistent lower back injury including L4/5 disc herniation and compression of the L5 nerve root. There is no psychiatric component to the plaintiff’s symptomology. The answer to Question 2 is also undisputed.
This review proceeding concerns the answer to Question 3. The plaintiff’s contention to the Panel and to this Court is that he has no current work capacity and this state of impairment is likely to continue indefinitely. The Panel found that the plaintiff has a current work capacity. It followed from that answer that the Panel did not answer Question 4.
The Medical Panel and its Opinion
The Medical Panel is an expert non-legal tribunal. Its members are medical practitioners. In this case the questions were referred to the Medical Panel by the Magistrates’ Court[5] and the plaintiff was examined by the Panel.[6] The Panel is not bound by the rules of evidence and may inform itself in any manner it sees fit. This includes placing reliance upon its own expertise and examinations.[7] The function of the Panel is to provide its opinion and this opinion provides a conclusive answer to the referred questions.[8] That answer must be adopted and applied for the purposes of determining the question or matter in which the medical question arose and in respect of which the medical question was referred to the Medical Panel.[9]
[5]Accident Compensation Act 1985 (Vic) s 45.
[6]Ibid s 67(2).
[7]Ibid s 65.
[8]Ibid s 68(4).
[9]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64, 75 [37] (‘Wingfoot’).
The third referred question required the Panel to determine whether the plaintiff had a current work capacity. ‘Current work capacity’ is defined in s 5(1) of the Act as:
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
[…]
‘Suitable employment’ is defined as follows:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre-injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market;[10]
[10]Accident Compensation Act 1985 (Vic), s 5(1) (definition of ‘suitable employment’).
Each of the grounds of review concern the issue of current work capacity. The first review ground is essentially that the Panel misconstrued or misapplied the terms ‘current work capacity’ and/or ‘suitable employment’ as they are defined in the Act. The second, third and fourth grounds concern the adequacy of the explanation for the Panel’s finding that the plaintiff did not have a current work capacity, the reasonableness of that finding and the matters it considered in reaching that finding.
For reasons that will become apparent it is convenient to deal initially with the third of the plaintiff’s grounds – namely, that the Panel has failed to provide adequate reasons for the Opinion.
Inadequacy of Reasons
General Principles
There is no free-standing common law obligation to provide reasons for a statutory decision.[11] This is so even where the decision may adversely affect a person’s rights or interests or defeat legitimate expectations.[12]
[11]Wingfoot (2013) 303 ALR 64, 76 [43]; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 (‘Osmond’).
[12]Osmond (1986) 159 CLR 656, 662 (Gibbs CJ).
A duty to provide reasons may be imposed by statute – in this case, by s 68(2) of the Act.[13] Where the duty exists and the statute does not expressly prescribe its content, the standard required of the reasons can only be determined by implication.[14] Two considerations that will be particularly significant to this exercise in statutory construction are the nature of the function performed by the decision-maker and the objective, within the scheme of the relevant statute, which is served by the requirement that the decision-maker give reasons.[15]
[13]Wingfoot (2013) 303 ALR 64, 76 [43].
[14]Ibid 76 [44].
[15]Ibid 77 [46]. Those, at least, were considerations of importance in Wingfoot.
Where there is an obligation to provide reasons of a particular standard a failure to provide reasons that meet that standard is an error of law.[16] The legal consequences of this error, like the existence of the duty and its content, will be determined by the nature of the statutory power and its context; the same may be said of the orders, if any, which will go to remedy such an error.
[16]Ibid 73 [28].
In this case the plaintiff seeks an order in the nature of Certiorari quashing the legal effect of the opinion. Certiorari is only available as a discretionary remedy for non-jurisdictional error of law where that error is apparent on the face of the record.[17] In Victoria, s 10 of the Administrative Law Act 1978 (Vic) provides that a Tribunal’s reasons for its decisions form a part of the record of those decisions. It follows that where a Tribunal is obliged to provide adequate reasons for a decision, the failure to do so will amount to an error of law on the face of the record and an order in the nature of Certiorari will generally be available to quash the continuing legal effect of that decision.[18]
[17]Craig v South Australia (1995) 184 CLR 163.
[18]Ibid. I say ‘generally’ because the availability of an order in the nature of Certiorari to remedy error of law on the face of the record is not entrenched in the Commonwealth Constitution and may be excluded by statute, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580–1 [98]; For examples of this issue in inadequacy of reasons cases, see, Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 (8 April 2014); Drysdale v Workcover (WA) [2014] WASC 270 (29 July 2014).
An order in the nature of Certiorari is also available on a discretionary basis to remedy jurisdictional error. Whether a failure to provide adequate reasons amounts to jurisdictional error is another question of statutory construction.[19] Not all acts done in breach of a condition regulating a statutory power are invalid and of no effect.[20] Instead, it will be necessary to ask whether the purpose of the Act is such that the obligation to provide reasons is a precondition of the valid exercise of the statutory power.[21] The existence of such a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[22]
[19]Wingfoot (2013) 303 ALR 64, 73 [29]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’). See also Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 (8 April 2014) 25 [48].
[20] Project Blue Sky [1998] 194 CLR 355, 388–9 [91].
[21]Ibid 374-5 [41].
[22]Ibid 388–9 [91].
The Standard of Reasons Required of the Medical Panel
At the date of the Medical Panel’s opinion the express obligation to provide reasons was contained in s 68(2) of the Act. The Medical Panel was required to form the opinion within 60 days of the date of reference,[23] and to provide that opinion, together with a written statement of reasons, to the referring body within 7 days of its formation.[24] This obligation applies to a Medical Panel appointed under the Act and does not extend to Medical Panels performing other functions under other instruments.[25]
[23]Or such longer period as agreed: Accident Compensation Act 1985, s 68(1).
[24]Accident Compensation Act 1985, s 68(3).
[25]See, eg, Kowal v O’Day [2014] VSC 347 (5 August 2014) [67].
In Wingfoot, the High Court set out the standard required of a written statement of reasons under this section:
The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law [emphasis added].[26]
[26]Wingfoot (2013) 303 ALR 64, 79 [55].
In explaining the actual path of reasoning by which it forms its opinion, a Medical Panel ‘is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.’[27] This is because in forming an opinion on a medical question referred to it under the Act the function of a Medical Panel is neither arbitral nor adjudicative; although a Medical Panel may choose to place weight on a medical opinion that is provided to it, ultimately its function is ‘to form its own opinion […] by applying its own medical experience and its own medical expertise.’[28] This standard differs markedly from the standard of reasons required of a judge giving reasons for a final judgment of an action in a court.[29]
[27]Ibid 80 [56].
[28]Ibid 77 [47].
[29]Ibid 80 [56]. At [56] the High Court rejected this higher standard according to which ‘it was incumbent on the panel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them’.
This is not to say that an opinion or other material that is at odds with an opinion formed by the Medical Panel will never be relevant to the adequacy of that Panel’s reasons. This is because the ‘nature of the question referred to a Medical Panel, and the way the question was addressed by other medical practitioners supplied to a Medical Panel, might allow an inference to be drawn […] that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons.’[30]
[30]Ibid 80 [57].
Finally, the adequacy of the Medical Panel’s reasons should be considered in light of the ‘beneficial construction’ that this and other courts have traditionally afforded administrative tribunals, whose members are not legally trained.[31] Care should be taken not to scrutinise the reasons overzealously ‘by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’[32] or by focusing on ‘looseness of language [or] unhappy phrasing’.[33]
[31]Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 (2 April 2014) 49 [165] (‘Ryan’).
[32]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2; see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 617 [25]; Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 (2 July 2009) [36]; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 (20 December 2012) 3 [9] (‘Gamble’).
[33]Gamble [2012] VSCA 322 (20 December 2012) 3 [9] and 7 [20].
It will be necessary to say something more about the s 68(2) standard later in these reasons.
The Reasons
I have stated the effect of the Opinion at [10]-[11]. It is necessary to set out a summary of the Reasons. The Panel:
· Described the nature of the referral, the constitution of the Panel, the documents to which the Panel referred and gave a very brief (neutral) history of the plaintiff’s compensation proceedings (Page 3);
· Set out (neutrally) the Plaintiff’s own history of his injuries and current incapacity (Pages 4–7);
· Stated that it had examined the Plaintiff and expressed conclusions on, inter alia, the range of motion of the plaintiff’s lumbar spine,[34] motor power of major muscle groups of the lower limbs,[35] tendon reflexes[36] and gait[37] (Pages 7–8);
[34]‘moderately restricted, particularly in flexion…’
[35]‘normal’.
[36]‘bilaterally brisk and equal and the plantar reflexes were down going.’
[37]‘normal’.
· Noted that it had not been provided with medical imaging studies, but noted that other documents referred to various CT scans, X-Rays and MRIs and extracted some passages from those documents (Page 8);
· Stated that it undertook a psychiatric assessment and set out (neutrally) the history it took from the Plaintiff (Pages 9–11);
· Stated that it undertook a psychiatric examination and described the plaintiff’s psychiatric presentation (Pages 11–12);
· Determined on the basis of this examination and ‘the documentation’ before it that there was no psychiatric aspect to the Plaintiff’s condition (Page 12)
· Stated that it conducted an impairment assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment (2nd Edition) the result of which was ‘a 16% whole person impairment attributable to the claimed lumbo-sacral spine injury, which is permanent’. (Pages 12–13);
· Concluded that on the basis of its collective experience and expertise the nature of the plaintiff’s injury was a persistent lower back injury including L4/5 disc herniation and compression of the nerve root (Pages 13–14);
· Considered ‘the Plaintiff’s history of injury, the progress of symptoms and the functional outcome following multiple laminectomy surgery and the Plaintiff’s symptomatic back symptoms’ as well as ‘the requirements of [his] pre-injury duties as a “Grade A” Inseminator’. The Panel then concluded that the plaintiff would not be capable of returning to his pre-injury employment due to his duties (Page 14);
· Stated that it took into account all aspects of the definition of ‘suitable employment’ and ‘current work capacity’ and ‘no current work capacity’ in the Act including:
i. The nature of the Plaintiff’s back injury in the setting of L4/L5 disc herniation, the effects of the physical condition, the effects of the L4/L5 laminectomy undertaken on two separate occasions; the limitations on prolonged sitting, standing including the effects on his capacity for pre-injury employment and other work.
ii. The Plaintiff is not now suffering from any diagnosable psychiatric condition.
iii. The length of time the Plaintiff has been out of the workforce (since 2006).
iv. The Plaintiff’s age 48.5 years having been born on 4 November 1965;
v. The Plaintiff’s education to year 11, his previous work experiences, certificates obtained in Responsible Serving of Alcohol, Responsible Conduct of Gaming, Diary Technology, Work Place leadership, Handy person Skills Training, Security Guard, Grade “A” Inseminator with multiple transferable skills;
vi. The Plaintiff’s current place of residence in Echuca, and his ability to drive a motorcar and to travel, a forklift licence.
vii. The certificate of capacity provided by his treating General Practitioner, Dr John Young, dated 2 July 2007 in which he certified that the worker “is fit for modified duties”, although the Panel noted that the Plaintiff is now being certified as unfit for all duties.
viii. The 130-week Vocational Assessment undertaken by Wills IM on 6 December 2006, which identified suitable employment options in order of priority, namely:
1. Sales Assistant/Customer Service – sports stores, sport equipment outlets, dairy farm supplied.
2. Sales Representative – Real Estate.
3. Bus Driving – school run AM and PM
4. Storeman/forklift operation.
5. Clerical Assistant.
· Noted (again) the 130 week Vocational Assessment and set out the employment options that that assessment identified as suitable (Page 15);
· Noted ‘the worker’s ongoing symptoms of back pain, the laminectomy surgeries performed on two occasions, multiple RFD treatments undertaken and that the worker has been advised further investigations [sic] with a view to possibly undergoing further shoulder surgery’ (Page 15);
· Considered the plaintiff to have transferable skills sufficient to conclude that there is work for which he is suited (Page 15);
· Considered that the employment activities listed at (viii.) would constitute suitable employment on account of his physical and psychiatric condition (Page 15).
· Concluded that the plaintiff therefore had a current work capacity (Page 15).
Submissions
The plaintiff’s submissions on the Panel’s failure to explain its actual path of reasoning fall into three broad categories. First, it was said that there was no discernable path of reasoning to the conclusion that the plaintiff had a current work capacity. On this point, the plaintiff focussed on the absence of an explanation for the Panel’s finding that there was ‘suitable employment’ within the meaning of the Act. This was because once the Panel had arrived at that finding, the ultimate conclusion that the plaintiff had current work capacity was inevitable.[38]
[38]Given the definition of ‘current work capacity’.
The Defendant submitted the reasons were sufficient to meet the Wingfoot standard and that they contained a discernable path of reasoning to the Panel’s certified Opinion. In particular, it submitted, ‘the Reasons show that the Panel concluded that the plaintiff “does have transferable skills (Reasons, p 15) and that it analysed various criteria for the Wills IM suitable employment options (Reasons, p 15).’[39]
[39]First Defendant’s outline of submissions, dated 3 March 2014, 15.
Second, the plaintiff submitted that there was no discernable path of reasoning to the conclusion that each of the particular employment roles was suitable. This was raised as an issue because the plaintiff has physical limitations that, on their face, are said to preclude his employment in some or all of the specified roles.[40]
[40]For example, the plaintiff’s limited capacity to sit (15-20 mins) was said to be a barrier to his employment as a bus driver.
The Defendant took issue with this submission as a matter of law. It submitted that the Panel was not required to explain how it reached each of these findings because, it said, it had already concluded the issue of ‘suitable employment’ and because the specific employment activities were mere extrapolations from this conclusion. To the extent that the decision of Williams J in Bakar v Gruma Oceania Pty Ltd[41] is authority to the contrary, the Defendant submitted that it was wrongly decided and ought not be followed.
[41][2014] VSC 206 (9 May 2014).
Finally, the plaintiff’s Originating Motion includes the following particulars of inadequacy:
…
b) The [Reasons] do not show any or any proper consideration of the findings and opinion of Mr Wallace, the treating surgeon and give no explanation as to why his view, specifically relied on by the Plaintiff, was discounted.
…
c) The [Reasons] do not provide any explanation for why it did not accept the Plaintiff’s submissions despite noting same.
…
At the hearing of the application, these particulars were pressed only faintly. In written submissions the Defendant characterised the plaintiff’s complaint as essentially that the Panel did not ‘explain why it did not reach an opinion it did not form’. That submission, though pressed generally, applies with particular force to this final category of alleged inadequacy.
Were the Reasons Inadequate?
I will deal quickly with the last category of inadequacy. The asserted failure to explain why the Panel did not accept the views of Mr Wallace, or the plaintiff’s submissions, does not make the Reasons inadequate. These are statements of fact or opinion that the Panel did not form or accept and, as I have observed, s 68(2) does not require a Panel to explain why it does not form or accept a view it does not form or accept. The failure to consider the Wallace opinion, properly or at all, is a question for another ground and in any event is probably not open as a matter of fact on the face of the Reasons. I now turn to the more general issue of whether the Reasons set out the Panel’s actual path of reasoning.
If a Medical Panel expresses itself with equivocal language – for instance by ‘noting’ or ‘having regard to’ or ‘taking into account’ a statement of fact or opinion – and the acceptance of or reliance upon the fact or opinion is an essential step in the path of reasoning towards its ultimate opinion, it must be apparent from the reasons that by that language the Medical Panel intends to convey more than that it has simply considered the evidence. The same observations apply when a Medical Panel sets out a neutral summary of the evidence or submissions that are placed before it.
A reviewing court should be hesitant to conclude that a Medical Panel has (or has not) made particular intermediary findings, or formed intermediary opinions, just because those findings or opinions are consistent with the reasons as they are expressed and because they can be reconciled with the Opinion. If it does so, the court risks attributing a path of reasoning to a Panel that is not the actual path of reasoning adopted by that Panel. In my view, it is also very difficult to infer that a Panel has reasoned in a particular way (where it does not say that it has reasoned in that way) without first assuming that the Panel has reasoned lawfully. That assumption would defeat the purpose of a proceeding under Order 56, which is essentially to inquire into the lawfulness of administrative action.
I take the view that in this case a necessary step in the Panel’s reasoning was to reconcile the plaintiff’s injury, including his limited capacity to sit and stand for extended periods, with the suitability of employment. The plaintiff’s account of the extent of those limitations was set out in the Panel’s neutral summary of his history.[42] Having concluded that the plaintiff did have this limited capacity,[43] it is unclear whether the Panel accepted the plaintiff’s own description of those limits, or formed its own view. Perhaps the Panel took a conservative view of those limitations. That was one way of reconciling the plaintiff’s injury with the realities of employment. If it did so, it was required to say that it did so.
[42]Reasons for the Opinion of the Medical Panel, dated 29 April 2013, 7: ‘[The plaintiff] said that the back pain is aggravated by movements generally as well as prolonged standing (15 minutes), prolonged sitting (15-20 minutes in a comfortable chair), prolonged walking (30-40 minutes) squatting movements and sitting on the toilet straining and relieved by resting on the couch.’
[43]Ibid 15: ‘The Panel noted the worker’s symptoms of back pain, aggravated by prolonged standing and prolonged sitting…’
Another legitimate complaint is that it unclear whether the Panel formed its own view on the existence of suitable employment – for instance by undertaking an independent comparison of the nature of the injury/limitation as it assessed it and the nature of the work activities – or simply relied upon the opinion or findings expressed in the Vocational Assessment, or both. The contents of the Vocational Assessment are, again, noted in the final paragraphs of the Reasons but their significance is unexplained.
It is also unclear what weight, if any, the Panel attributed to the certificate of capacity provided by Dr Young and according to which the plaintiff was deemed ‘fit for modified duties’. The Panel ‘noted’ that he had been so certified and in the same breath ‘noted’ that he was no longer being so certified. Perhaps the Panel placed weight upon the Dr Young certification. I am unable to say. If it did so, it was required to explain that it did so.[44]
[44]It need not explain why it did not form the contrary opinion, if it did not form that opinion. That is a different question, however.
In more detail, I consider the defect in the Reasons to be that I am unable to say, on the balance of probabilities, whether the Panel:
a) considered that the employment activities were not sufficiently related to the plaintiff’s limitations, or sufficiently onerous considering the extent of the plaintiff’s limitations, to cause the plaintiff pain or discomfort; or
b) considered that while the plaintiff would suffer pain or discomfort, the degree of pain or discomfort was not sufficient to prevent him from performing the employment duties; or
c) considered that the degree of pain or discomfort the plaintiff would suffer, though acute, was not a bar to the finding that the employment constituted ‘suitable employment’ within the meaning of the Act; or
d) considered that having found that the plaintiff had transferable skills it was irrelevant that the plaintiff might suffer pain or discomfort undertaking the employment duties; or
e) did not undertake an independent assessment of the employment activities (or the suitability of employment, generally) but instead relied upon the Vocational Assessment which identified those activities to be suitable for the plaintiff; or
f) a combination of the above; or
g) reasoned in some other way.
Each of these, or a combination of these, is a path of reasoning that is available on the face of the Reasons and consistent with the Opinion. Many, perhaps all, of these paths might conceivably give rise to one or more errors of law. If, for example, the Panel had accepted the plaintiff’s description of his own limitations but had reasoned that the employment activities were suitable because they would not cause him pain, the plaintiff would have an at least arguable case that the Opinion was unreasonable in the Wednesbury sense.[45] Alternatively, if the Panel had simply relied upon the Vocational Assessment without independently considering the suitability of the employment duties in light of the plaintiff’s physical limitations, the plaintiff might argue that the Panel had failed to have regard to a relevant consideration such as the ‘nature of the worker’s incapacity…’[46] It is impossible to say whether these claims would succeed or fail because each of these paths of reasoning would themselves contain other intermediate steps that are absent from the Reasons and that ought not be absent if a Court is to determine whether the Opinion is affected by error.
[45]A decision will be unreasonable where it is illogical or irrational in the sense that it involves illogical findings, or inferences of fact unsupported by probative material or logical grounds: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 366 (Hayne, Kiefel and Bell JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 647 [183].
[46]See, Accident Compensation Act 1986, s 5(1) (definition of ‘suitable employment’).
This conclusion is quite aside from the issue of whether a Panel is required to provide an explanation for a finding or opinion that is not strictly necessary for it to make or form, but that it nevertheless proceeds to make or form. As I have said, the Defendant submitted that the Panel was not required to explain how it reached its findings on the specific employment activities because it had already concluded the issue of ‘suitable employment’ and because the specific employment activities were mere extrapolations from, or illustrations of, this conclusion.
This submission appears to be inconsistent with the recent decision in Bakar. In that case, a Medical Panel identified the plaintiff’s limitations (physical and linguistic) before it distinguished between a set of occupations in which, it said, the plaintiff could and could not be engaged. There, as here, the defendant submitted that there was no need for it to go this far or to explain why the plaintiff was able to do the things that, in its estimation, she was able to do.[47] Williams J dismissed the submission:
The Panel did not stop, as counsel for the first defendant submit[ted] it might have done after identifying her limitations. It went on to effectively raise the issue of the differences between the nature of the work it thought she was capable of and what she could not do. Reference to its own experience, knowledge and expertise did not suffice to cure the failure of the reasons to explain its reasoning process in the manner described by the High Court in Wingfoot.[48]
[47]Bakar [2014] VSC 206 (9 May 2014) 11 [35].
[48]Bakar [2014] VSC 206 (9 May 2014) 11 [38].
The defendant took me to what it said was an authority to the contrary, Calleja v Franet Pty Ltd,[49] which was heard and determined by Ashley J (as he then was) almost 15 years before the decision in Wingfoot. Reliance was placed upon the following passage, at [55],
[…] The inhibitions placed upon the plaintiff's work capacity were clearly stated in the panel's reasons. Read sensibly, they left open a pretty extensive area of employability. The panel was not required to go further and define particular jobs that the plaintiff could undertake. It was entitled to be satisfied from the material in its possession, and by implication was satisfied, that work fitting the parameters which it set did exist (whether or not such work was in fact available was - by virtue of the Act - irrelevant). [emphasis as added by the defendant]
[49][2000] VSC 339 (28 August 2000) (‘Calleja’).
I say two things about the significance of that passage. First, I respectfully share Kyrou J’s reservations about the ongoing relevance of pre-Wingfoot decisions of this court to the standard of reasons required by Medical Panels: ‘Wingfoot contains a comprehensive exposition of that standard and care is required in relying on any cases that preceded it.’[50] Second, although inadequate reasons was pleaded and ultimately dismissed as a ground in Calleja, it is clear from Ashley J’s reasons for judgment that the observations at [55] were directed towards the reasonableness of the relevant Panel’s findings[51] and not the adequacy of its reasons for those findings.[52] It is not clear to me that his Honour turned his mind to the issue as the defendant now characterises it, and as I have set it out at [41].
[50]Ryan [2014] VSC 135 (2 April 2014) 53 [179].
[51]Or whether those findings were open on the evidence.
[52]See particularly Calleja [2000] VSC 339 (28 August 2000) 16 [52]-[54]; consider also the terms of [55]: the intermediate findings ‘left open a pretty extensive area of employability’, and ‘[the Panel] was entitled to be satisfied from the material in its possession…’
I also foreshadowed at [41] that in my view my conclusions on the reasons ground do not stand or fall with Bakar. This is for two reasons. First, the defect in the Reasons is that the Panel does not explain how it reached the conclusion that there was ‘suitable employment’ within the meaning of the Act. As I have said, a necessary step in its Reasons was to reconcile the plaintiff’s injury with the requirements of employment. This was necessary whether or not the Panel provided examples of that employment and whether or not those examples drew attention to the issue of the plaintiff’s limited capacity to sit or stand for prolonged periods.
Second, in this case, the Reasons leave open the possibility that the findings on the suitability of one or more of the specific employment activities were steps in the Panel’s actual path of reasoning. Inductive reasoning derives general conclusions from specific observations. It is a process of reasoning upon which the Common Law is based. In my view it is possible (if not probable) that the Panel assessed the individual employment activities to be suitable and proceeded from these specific observations to the more general conclusion that there existed ‘suitable employment’ within the meaning of the Act. The alternative, which was to conclude the issue of suitable employment in the abstract and then proceed from that conclusion to the specific case, strikes me as artificial.[53] Ultimately, the issue is that I cannot say how the Panel reasoned.
[53]Notwithstanding the fact that it might not be unreasonable for a Panel to reason in this way: Calleja [2000] VSC 339 (28 August 2000) 17 [55].
It follows that I am satisfied that the Reasons do not explain the Panel’s actual path of reasoning and that they therefore do not meet the standard required of them by s 68(2).
Consequences of Error
A Medical Panel is a ‘tribunal’ within the meaning of the Administrative Law Act 1978 (Vic) and its opinion on a medical question referred to it is a ‘decision’.[54] It follows that the failure to provide adequate reasons is an error of law on the face of the record, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the Opinion.[55]
[54]Wingfoot (2013) 303 ALR 64, 73 [28]; Masters v McCubbery [1996] 1 VR 635.
[55]Wingfoot (2013) 303 ALR 64, 73 [28].
As I have said, an order in the nature of certiorari is only available to remedy an exercise or purported exercise of power that has an ‘apparent legal effect’ at the date of the order.[56] In Wingfoot, for example, an independent reason for the unavailability of Certiorari was that the relevant opinion had been given on medical questions arising in a statutory compensation application which, by the date of judgment, had been dismissed.[57] This was not a discretionary consideration that militated against the issuing of the writ but a legal bar to its availability.
[56]Ibid 72 [25]; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159.
[57]Independent in the sense that it would have survived a finding of inadequacy.
This case is different. The plaintiff’s claim persists and the continuing legal effect of the decision is that it must be adopted and applied by the Magistrates’ Court when it comes to assess that claim. An order in the nature of Certiorari is, therefore, available to the plaintiff as a remedy.
I do not propose to consider whether the failure to comply with s 68(2) amounts to jurisdictional error.[58] The significance of the distinction between jurisdictional and non-jurisdictional error lies ordinarily in the amenability of the former to relief in the nature of the prerogative writs. The error in this case is already amenable to such relief and it would add nothing, in my view, to determine this further question.
[58]Nor did the High Court consider the issue in Wingfoot. The question has, however, arisen elsewhere: Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112, [57].
It is for a different reason that I have not and will not now consider the remaining grounds of review. In my view, whether the Opinion involves unreasonableness, the misconstruction of the terms ‘suitable employment’ and 'current work capacity’, and/or the failure to consider relevant matters or the consideration of irrelevant matters will depend upon the intermediate findings or conclusions the Panel made or adopted as steps in its path of reasoning toward that Opinion.
In this case, as I have said, it is far from clear what those intermediary findings were or by what process of reasoning they were reached. It follows, in my view, that it would be at odds with the conclusion I have reached on ground (c) to now scrutinise the reasons for an error of this kind. The reasons fail to meet the standard required by s 68(2) of the Act because they are not sufficiently detailed to enable me to determine whether the Opinion was affected by error. A failure to provide reasons that meet that standard frustrates the review process.[59] It is frustrated in this case.
[59]Wingfoot (2013) 303 ALR 64, [54].
Conclusion
Although the prerogative writs are discretionary I have said previously that I agree with the view that the prerogative writs issue ‘almost as of right’.[60] I consider there to be no discretionary considerations that weigh against the making of the orders that the plaintiff seeks and I did not understand the defendant to submit to the contrary. This is not the kind of case in which there is an alternative and preferable appeal process by which the error might be corrected; nor is it the kind of case in which prerogative relief would be futile, wasteful or otherwise undeserved given the identity of the applicant or the conduct of proceedings on his or her behalf.
[60]Agar v McCabe (2014) 67 MVR 81, [94]; Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558, 591.
I propose to order that the continuing legal effect of the Opinion be quashed and that the questions be remitted to the Medical Panel, differently constituted,[61] for determination according to law.
[61]See, on the issue of remitter, Murphy v State of Victoria & Anor [2014] VSCA 238, [106]-[111].
I will hear the parties as to the appropriate form of orders.
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