Fry v Ajinvan Pty Ltd

[2002] HCATrans 530

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M102 of 2001

B e t w e e n -

LAURIE FRY

Applicant

and

AJINVAN PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 9.32 AM

Copyright in the High Court of Australia

MR M. O’LOGHLEN, QC:   If the Court pleases, I appear with my learned friend, MR P.M.E. WISCHUSEN, for the applicant.  (instructed by Slater & Gordon) 

MR R.P. GORTON, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the respondent.  (instructed by Gadens) 

GLEESON CJ:   Yes, Mr O’Loghlen. 

MR O’LOGHLEN:   The sole question for the Court of Appeal was whether the trial judge failed to adopt and apply the opinion of the medical panel contrary to section 68(4) of the Accident Compensation Act 1985. That being the sole question, we submit that this case is a suitable vehicle for a consideration of the effects of section 68(4) of that Act.

GLEESON CJ:   Is the key finding of the trial judge on page 14 of the application book, at line 25? 

MR O’LOGHLEN:   Yes.  The key finding is at the bottom of page 14. 

GLEESON CJ:   So he found that somebody was permanently incapacitated until a certain date. 

MR O’LOGHLEN:   Yes.  He has found that the particular worker was incapacitated as at a date in 1996. 

GLEESON CJ:   There seems a paradox about a finding that somebody is permanently incapacitated until a certain date. 

MR O’LOGHLEN:   Yes, it is curious, when one meets the interface in 1998, that that could be so, but that, we submit, is not the question. The question is whether the County Court failed to adopt and apply the opinion of the medical panel contrary to section 68(4).

GLEESON CJ:   But the opinion of the medical panel was that he was not permanently incapacitated as from 27 May. 

MR O’LOGHLEN:   The opinion of the medical panel was that as at May 1998 the worker was then partially incapacitated and that that incapacity was likely to be permanent. 

GLEESON CJ:   So he was totally and permanently incapacitated until 26 May and partially incapacitated from 27 May. 

MR O’LOGHLEN:   Yes. We submit that it was open to the trial judge to find as he did and that section 68(4) of the Accident Compensation Act did not, as a matter of law, compel the contrary result. 

GLEESON CJ:   Mr O’Loghlen, did you get a message about some decisions of possible relevance? 

MR O’LOGHLEN:   Yes, we did.  We are grateful for those references, your Honour.  We say that the notions that we say are correct are supported, though in that different context, by the considerations which emerge from this Court’s decisions in O’Donel v Commissioner for Road Transport and from the judgment of Justice Deane in Lizzio.  We get support from those decisions at two levels.  The first is that the case of O’Donel concerned different circumstances in two different periods and so is analogous to the circumstances of this case. 

It is true that those judgments are directed to estoppel, but we say that if O’Donel had been decided by reference to a provision equivalent to section 68(4) such that the New South Wales Supreme Court’s judgment was to be adopted and applied and regarded as final and conclusive, the decision would have been the same. We say that in this case, like that case, there is a demarcation between two separate periods, that is, the period beyond 27 May 1998 and, on the other hand, the period before that date, from 1996 to 1998, such that a finding or an opinion of the medical panel concerning one period is not necessarily conclusive of the other period. So we say one can, in the terms of the statute, adopt and apply the medical panel’s opinion in relation to one period while leaving open the other period.

Secondly, at the second level, O’Donel denies – again, in the context of estoppel – that estoppel can be founded upon a logical argument built upon an earlier judgment, or can be founded upon an inference drawn from the earlier judgment, or can be founded upon reasoning from that earlier judgment.  All three judges in O’Donel speak of that, and we say that like reasoning applies to section 68(4) and, if so, the Court of Appeal has fallen into error in that the Court of Appeal has not been content to apply the opinion itself, according to its terms, but has built upon the opinion, has reasoned from it, has extrapolated from it, so as to reach the result that it did reach, and that reasoning can be seen in the application book at pages 39 and 42.

The Court of Appeal also commented upon the finding by the trial judge that there had been little or no change in the condition of the plaintiff over a long period of time.  The actual finding is at page 13 of the application book ‑ the finding of the trial judge, at line 19, where the finding is: 

there has been little or no change in the plaintiff’s long term whole person impairment during that period of more than four years. 

It is not a finding that there had been no change in the degree of incapacity from time to time.  It is simply a finding as to the impairment, which is referred to by the medical panel in its opinion at page 5 of the application book, where it has found: 

there is an AMA –

American Medical Association –

Impairment, Whole Person, of 20% –

which is necessarily a permanent impairment, and that: 

there is a 18% Whole Person impairment for industrial purposes of the lower back and a 10% impairment for industrial purposes with respect to the right leg. 

So although it is a small point, the trial judge has not found that there is no change in the degree of incapacity from time to time.  That is a matter which is referred to by Justice Evatt in O’Donel, and Justice McTiernan also. So we say that the trial judge did adopt and apply the medical panel’s opinion and did so by refusing to find that the worker was totally and permanently incapacitated beyond the date of the medical panel’s opinion in May 1998 and that the trial judge adopted and applied, to use the words of the statute, the medical panel’s opinion by adopting the impairments found by the medical panel to be the case and then by awarding lump sum compensation commensurately with those degrees of impairment. We say that that was the most that the trial judge was obliged to do, having regard to section 68(4) of the Act, the language of which is comparable with the language of estoppel. We say, accordingly, that O’Donel and the dissenting judgment of Justice Deane later in Lizzio are of real relevance. 

GLEESON CJ:   Where is the most convenient place to find the legislative provision about the medical panel’s opinion? 

MR O’LOGHLEN:   The section itself is found conveniently in the judgment of the County Court in the application book at page 7. 

GLEESON CJ:   It refers to “the opinion of a Medical Panel on a medical question”.  Might it be the case that the consequence would depend upon the nature of the question? 

MR O’LOGHLEN:   Yes, your Honour, it would.  The opinion, in our submission, is to be determined by reference both to the medical question asked and the answer given, as a matter of construction of it, such that in this case the medical opinion is given in terms of what is the case in May 1998 and not otherwise. 

GLEESON CJ:   The question might be, in May 1998, does he have a broken arm?  Or, in May 1998, does he have a certain level of vision, but if the question is, in May 1998, is he totally and permanently incapacitated, and the answer to that question is no, then a possible point of view is that the opinion on that question must have a bearing on the question whether he was totally and permanently incapacitated before May 1998. 

MR O’LOGHLEN:   Yes, your Honour, and it is no more, in those circumstances, than a fact to be taken into account by the trial judge in respect of the period before that, from 1996 onwards, in determining what are the applicant’s circumstances. 

GLEESON CJ:   It is really a question of statutory construction, is it not, as to what is involved in “adopting and applying” an opinion on a medical question?

MR O’LOGHLEN:   It is, your Honour, it is a question purely of statutory construction ‑ ‑ ‑

GLEESON CJ:   And that, in turn, would depend upon the nature of the question. 

MR O’LOGHLEN:   Yes, it does.  So the nature of the question is important.  The medical panel, however, nearly always, at least, is asked to opine about the worker’s medical condition at a certain time, because one of the things the medical panel does, according to the statute, is to medically examine the worker at that time and give its opinion as to his condition at that time.  So that almost invariably, not quite invariably, perhaps, the medical panel’s opinion will relate to the time of the examination and the opinion. 

We say that the point is important since section 68(4) has formed part of the Act since 1997, and still does. It governs medical panels’ opinions and, according to the statistics, in the past three years the number of cases referred for medical opinion in Victoria have been, for the year ending 2000, 1,320, for the year ending 2001, 1,648, and for the year ended 30 June 2002, 2,138. So there are many of these cases which are referred to the medical panel for medical opinions, and section 68(4) matters in relation, at least, to many of them. If the Court of Appeal’s decision stands, then one can reason from the medical panel’s opinion, rather than applying

it according to its terms.  I do not know that I can usefully say much more.  If the Court please. 

GLEESON CJ:   Thank you.  Yes, Mr Gorton. 

MR GORTON:   If the Court pleases, the medical panel question in this case accords with the definition of “medical questions”, which specifically permits inquiries as to degree of incapacity and the permanence of incapacity.  The question that was asked raised those matters specifically in accordance with the definition in section 5.  The answer to that question was given in relation to proceedings relating to a claim for compensation relying on section 93B of the Act, which would only have permitted Mr Fry to continue to receive compensation after November 1996 if he was, from that time, totally and permanently incapacitated. 

Totally and permanently incapacitated, in our submission, means a state of incapacity which is permanently total.  If he was not permanently total at the time the court was making a decision as to what his status was through from 1996 until 1998 and thereafter, he had no entitlement to weekly payments over that period of time.  The authorities that the court raised might well have a bearing on the court’s decision to decide whether he had a total incapacity at any time before May 1998, when the question was raised and answered.  While we would submit that if the matter were on appeal, that that could not have been done, that is not the main point. 

The main point is that once he has been found – necessarily found – to be not totally incapacitated in May 1998 and thereafter, it is impossible for a court making a decision after that date to form the conclusion that before May 1998 he was permanently totally incapacitated. 

McHUGH J:   Why do you say that, Mr Gorton? 

MR GORTON:   Because it has to “adopt and apply” the opinion of the medical panel, which was that at May 1998 he was partially incapacitated and not totally incapacitated. 

McHUGH J:   But how is that inconsistent with him being totally incapacitated prior to that date? 

MR GORTON:   It is not inconsistent with him having been totally incapacitated prior to that date, but it is inconsistent with him having been permanently totally incapacitated prior to that date – a total incapacity, if one were to accept that it was open to a judge, and he was not prevented by the medical panel question of finding total incapacity for a period of a year after 1996, or even up to 26 May 1998, the day before the medical panel opinion was applied. 

McHUGH J:   But it does raise the second point that Mr O’Loghlen drew from O’Donel as to whether or not you can reason from the medical opinion in the way that the Court of Appeal did.  Arguably, just as the estoppel did not prevent a finding of fact logically inconsistent with the estoppel, why in this case can you not say the court is bound to apply the medical opinion, but that is all it is bound to do, and you cannot use other evidence, or logical reasoning, in respect of other periods, using the medical opinion as the major premise? 

MR GORTON:   Then you get into the arguments as to whether this is an estoppel and what section 68(4) means about “adopting and applying” the section. But putting those arguments to one side, permanency is, while it has to be evaluated at some stage, a fact. It is not a fact that is an altering fact; it is just that different conclusions about it might be reached from time to time. In 1999, the judge was looking at a question of was there a total and permanent incapacity from 1996 up to now. It would still have to be total and permanent in 1999 for there to be an entitlement to compensation. He has to have reached that conclusion when he makes his decision in 1999 that the incapacity is total and permanent and has been all the way through. Once there is a compulsion on him to find that there is not a total incapacity at some time, that is in May 1998, it is not open for him to conclude that there was a total and permanent incapacity from 1996 until 1998.

McHUGH J:   It comes down to this, does it not, that whether as a matter of construction you can use the medical opinion as a premise for other reasoning or whether or not the statute requires it be given effect according to its terms and for no other reason?  You say you can use it as a premise.

MR GORTON:   Yes, we say that, but we say the other as well.  We say that adopting it and applying it answers the very question in estoppel terms, that there are two components in total and permanent incapacity although it is one concept.  One is totality, one is permanency.

GLEESON CJ:   There is a question of extent and a question of duration.

MR GORTON:   Yes, duration is answered by the medical panel opinion by accepting it and applying it and it being answered in May as it is not total, then it cannot have been permanent before then.  That is a finding of fact that has to be applied by the court.

GLEESON CJ:   When you say it cannot have been permanent, you mean the extent of totality cannot have been permanent?

MR GORTON:   Yes, the totality cannot have been permanent.  It is impossible for it to have been permanent because it was not existing in May 1998 and so that for all periods prior to that, while if you had looked at it prior to that you might have thought it was total and permanent, you are compelled by the medical panel opinion to conclude that it was not permanently total.

GLEESON CJ:   Would the position be any different if there was no medical panel opinion but as an incontrovertible observable fact at the time the decision was being made the incapacity was not total?

MR GORTON:   No, your Honour.  An example might be that the judge had the view that there was not total inability to work in suitable employment but the man had actually returned to suitable employment in May 1998 and continued in that suitable employment.  The judge, having found that he had actually returned to suitable employment, would have to find that there was a partial incapacity and not a total incapacity.

GLEESON CJ:   But he would also have to find, would he, that whatever the extent of the incapacity previously, because it was being looked at with the benefit of hindsight it was known not to have been permanent?

MR GORTON:   Not to have been permanently total, yes.

GLEESON CJ:   Yes.  That extent of incapacity was known not to have been permanent.

MR GORTON:   Yes.

GLEESON CJ:   And that would apply even if there had been no medical panel opinion come into the matter at all.

MR GORTON:   Yes, if that fact had been found.  That fact must be found and applied because of the medical panel opinion that was in fact adopted and applied by his Honour Judge Lewis in the County Court by determining that payments stopped at that date and that there was a partial incapacity and a non‑total incapacity from there on.

McHUGH J:   I know, but it still seems to me to throw up the O’Donel question as to – when O’Donel holds that you cannot reason from an estoppel, the estoppel binds in respect of what it decides and you cannot use it as a premise for any other reasoning and you cannot use other evidence in connection with the estoppel to come to some conclusion.  But the question seems to me is whether or not once they have given an opinion, can it be used as the basis to deny other reasoning from other evidence in the case?  That is what you seem to be doing I think.  You are saying once the panel made this finding that is the end of the matter.

MR GORTON:   That is the end of the matter about permanency and totality because that question is answered is that – is there permanently total incapacity is answered, no, it is partial.  And the question was, was it total or partial, the answer is, it was partial.  That is what the medical panel has found, that is what the court must adopt and apply and it is a question of permanency.  We are not talking about the totality as a fact on an ambulatory basis but the permanency of it. 

I, having heard what your Honours said, do not accept that it is a reasoning process from there on.  It is a fact that answers the question the court has to ask, not by way of reasoning, but it is not a total permanent incapacity, it is a partial permanent incapacity.  Once you say it is not a total permanent incapacity, that means there is no entitlement to payments.  You can put reasoning in to justifying it, but we do not accept the proposition that your Honour put forward and I do not know how I can persuade you that we are right and you are ‑ ‑ ‑

McHUGH J:   You may have persuaded me.

MR GORTON:   Beyond saying that, I cannot advance that sort of proposition any further.  It is a question that deals with the particular application of a particular question and answer to a particular case and if leave to appeal is granted, there probably will not be any overall application that can be made of any learning produced by the Court, so that it is a narrow issue, 93B itself is still in the Act but it only deals now with injuries where there were weekly payments before 1997, so 93B is of diminishing importance, entitlements are under other sections now.  I do not think I can say anything further than that.

GLEESON CJ:   Thank you, Mr Gorton.  Yes, Mr O’Loghlen.

MR O’LOGHLEN:   We do not think there is anything we can usefully add, your Honour.

GLEESON CJ:   Thank you.

We are of the view that this application does not raise an issue suitable for a grant of special leave to appeal and the application is refused with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED