Irwin v Risk Cover
[2007] WASCA 90
•7 MAY 2007
IRWIN -v- RISK COVER [2007] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 90 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:153/2005 | 7 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 7/05/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SUNEE IRWIN RISK COVER |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Mayne Nickless Ltd v Mayne, unreported; FCt SCt of WA; Library No 960736; 19 December 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IRWIN -v- RISK COVER [2007] WASCA 90 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
RISK COVER
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATES COURT
Coram : MS P M HOGAN CM
Citation : IRWIN v ROYAL PERTH HOSPITAL
File No : CM 157 of 2001
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R W Bower
Respondent : Mr G Porter
Solicitors:
Appellant : Karen Wroughton
Respondent : Talbot & Olivier
Case(s) referred to in judgment(s):
Mayne Nickless Ltd v Mayne, unreported; FCt SCt of WA; Library No 960736; 19 December 1996
(Page 3)
1 STEYTLER P: I agree with Wheeler JA.
WHEELER JA:
Background
2 The appellant had been working at Royal Perth Hospital as a nurse. She reported a workplace injury in October 1987, which affected her left arm and caused headaches and breathlessness, and which also, she asserted, caused neck and shoulder pain. In September 1991, she reached the prescribed amount of payments of compensation.
3 She also suffered, over the years, a number of motor vehicle accidents. One in 1978 she reported as having caused head and foot injuries and headaches; one in 1989 occurred when she reversed into a vehicle; and one in 1992 she reported as causing injuries to her neck and/or spine, left shoulder, right knee and right shoulder. A final motor vehicle accident in 1998 caused her to suffer nose and hearing injuries, and aggravation of her neck and back injuries and left arm and hand injuries.
4 In January 2001, the appellant lodged an application in the Conciliation and Review Directorate, claiming "I wished to be compensated full amount until my retired date". That application proceeded on the basis that it was an application for an extension of compensation pursuant to what was then s 84E of the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Act"). The application was heard on 16 July 2001 by Review Officer Boon and dismissed.
5 The appellant had a right of appeal against the review officer's decision where a question of law was involved, pursuant to s 84ZN(2). Pursuant to s 84ZN(3), that appeal had to be commenced within a month unless an extension was granted by the Compensation Magistrates' Court. By a letter within time, the appellant wrote to the director of Conciliation and Review requesting an extension of time to consider an appeal. The director informed the appellant that the hearing of an application for an extension of time would take place on 19 September 2001. On 14 September 2001, by then out of time, the appellant lodged a notice of appeal and shortly thereafter filed an affidavit in support of her application for an extension of time.
(Page 4)
6 The Compensation Magistrate dismissed the application for an extension of time within which to appeal. The appellant has since been granted leave to appeal to this Court in relation to that decision.
The issues before the Magistrate
7 The Magistrate appears to have accepted that because the appellant was unrepresented, and because of the short period of time and lack of prejudice caused to the respondent by that short delay, it would be appropriate to grant the extension, provided she could be satisfied that there was some merit in the appellant's case. The appellant's appeal in this Court is based upon the proposition that the Magistrate erred in failing to find that there was merit in her claim that the review officer had denied her procedural fairness, breached the rules of natural justice and failed to properly carry out her statutory duties. In order to deal with that question, it is necessary to consider the course of proceedings before the review officer.
Proceedings before the review officer
8 The appellant appeared in person before the review officer. It is accepted that English is not her first language, and it is clear from the transcript that the English she speaks is relatively simple and that some of her sentence structures are unusual. However, she does not appear to have had any significant difficulty, so far as one can discern from the transcript, in understanding what was said to her and in responding to it in a way which she considered to be appropriate. Further, she was assisted by two people. There was Mr Emmott, who assisted her throughout, and her former husband, Mr Irwin. Mr Irwin was present for almost all of the proceeding, except for the portion during which the appellant gave evidence. The review officer had asked him to wait outside during that part of the proceeding because it was intended that he also would give evidence, as in due course he did.
9 Very early in the proceeding, the review officer explained a number of things to the parties, and in particular to Ms Irwin. She recorded that she understood that the appellant had been involved in a number of motor vehicle accidents and that she had therefore written to the SGIC and sought and received copies of documents relating to motor vehicle accidents, in case there were some which might be relevant to the appellant's application. She recorded that she had sent to both parties copies of the documents she obtained in that way.
(Page 5)
10 Having recorded those matters, the review officer explained to the appellant what the review officer's function was and invited the appellant to stop the review officer and ask a question if there was anything that she did not understand about what was occurring. She explained to the appellant that it was the appellant's application and that meant that the appellant had the burden of proof and had to satisfy the review officer that it was more probable than not that her work injury had resulted in permanent total incapacity for work.
11 At the hearing before the review officer, it seems relatively clear that the appellant readily accepted that there were no medical reports suggesting that she did have permanent total incapacity for work as a result of her work related injury. Very early in the proceedings, after the review officer had identified that question, the appellant said "I don't have any support from doctors" (green appeal book, page 7). She explained that the doctors had been accusing her of lying. Her evidence, which was summarised by the review officer, was to the effect that doctors had told her she was malingering.
12 She relied on two matters to demonstrate that she did have an incapacity for work, as a result of the work related accident. One was that in Thailand she had a myelogram. It was her view that this demonstrated that she had the work related incapacity. Unfortunately, there is no suggestion that any of the medical reports before the review officer contained any reference to a myelogram of that kind. Further, it was the appellant's evidence that she knew her own body, knew what caused her pain, and that she knew that it was the work injury which had caused the symptoms she suffered. Those symptoms she described as being due to a herniated spine, stenosis, tingling in her left leg, tingling in her left hand and shoulders, and an inability to use her shoulders because they got "frozen". In her reasons, the review officer set out in some detail the contents of a number of significant medical reports. She formed the view, which is not challenged in this appeal, that the consensus of the medical opinion was that the appellant had at work suffered soft tissue injuries, but had complained of a variety of other symptoms which could not, on any objective basis, be related to the effects of the work related incident. In short, there was no evidence of any physical disability stemming from the work related injury. The review officer specifically noted the reports of two medical practitioners who positively stated that in their view the appellant would have had a capacity for work following her work related accident.
(Page 6)
13 It was also the appellant's evidence that she was in pain all the time and that when it was severe she yelled at people (green appeal book, pages 23 - 24). She also said that the injury affected her mentally, but so far as one can tell from reading the transcript, that was in the context of suggesting that it affected her mentally because she was in pain and because people did not believe her. She did not suggest that she had any psychiatric difficulties as a result of the work injury. Mr Irwin during the course of his evidence described the appellant as becoming "paranoid", but again that appears to be in the context of suggesting that she was genuinely in pain, was not believed, was victimised as a result and therefore, not surprisingly, did not trust those she worked with and began to feel that everyone was against her.
14 In the course of her reasons, which were lengthy and detailed, the review officer considered a report which she had before her from Dr De Tissera. The review officer said (blue appeal book, page 37):
"It was clear from the medical reports and in particular from the report of Dr De Tissera who examined her on 9 and 31 August 1995, that Ms Irwin was suffering from an adjustment reaction with paranoid features as a consequence of 'the accident'. As Dr De Tissera refers to two accidents, namely the motor vehicle accident on 7 June 1992 and a work related injury on 1 October 1997 [sic - should be 1987], it was not clear to me whether he was of the view that any condition from which she was suffering related to the work related injury. There is no recent report from a psychiatrist in relation to Ms Irwin's current psychiatric state and I am not satisfied on the balance of probabilities that any psychiatric condition from which she may or may not now be suffering resulted from the 1987 disability."
15 The report of Dr De Tissera is less than two pages long and is structured in the following way. It is addressed to Dwyer Durack Solicitors. It is dated September 1995. It begins by referring to the appellant reporting a "work-related injury on 01.10.87" and describing it. It observes that the appellant had been treated with physiotherapy and hydrotherapy and reportedly labelled a malingerer. The next paragraph notes that the appellant reports a motor vehicle accident in 1992 and suffered headaches and pains in her chest and arms a few days later. She was seen at the time by Dr Kennedy and a chiropractor. The next paragraph commences "Mrs. Irwin now reports restriction in her activities with difficulty in lifting objects …". It refers to complaints about the insurance company following her around and tapping her telephone,
(Page 7)
- bugging her house and humiliating her. It details complaints that nobody believed the appellant and that she had changed solicitors a number of times and seen numerous doctors. It records that she had separated from her husband four years previously (that is, in about 1991) saying that this was due to stress of "the accident". There is a brief reference to her family history and then the opinion is expressed that she was suffering from "an adjustment reaction with paranoid features as a consequence of the accident and the physical and mental distress she has experienced subsequently". It is suggested that her prognosis is guarded and that the psychiatric disability should be taken into account "in the settlement of her claim", which in context appears to relate to the settlement of the claim in relation to the motor vehicle accident.
Issues in the appeal
16 It is submitted on behalf of the appellant that the statutory scheme contemplates that where an injured worker is unrepresented, then the review officer should undertake a quasi inquisitorial process, at least in appropriate circumstances. In the circumstances of this case, where Ms Irwin was not represented and had language difficulties, even though she was assisted by friends, it is suggested that the review officer should have either herself contacted Dr De Tissera, or sought a further report from him, or in some other way attempted to clarify what the review officer saw as a possible ambiguity in his report. Had that been done, it is submitted, it may have emerged that the appellant could have put her case on a basis completely different from that which she ran before the review officer.
17 It is also submitted that the review officer should have referred the psychiatric report to a medical assessment panel, but I did not understand this aspect of the appeal to be pressed. It was appreciated that the difficulty with pressing this aspect of the appeal was that the report of Dr De Tissera was not disputed.
18 The role of the review officer in a case where an applicant is unrepresented was considered by this Court in Mayne Nickless Ltd v Mayne, unreported; FCt SCt of WA; Library No 960736; 19 December 1996. Kennedy J said (at 8):
"The Act lays down in s 84ZA how a review is to take place and the Review Officer's powers are set out in s 84ZB. The rules of evidence are dealt with in s 84ZD. These provisions are not in any way exceptional. Their antecedents are to be found in s 37 (later renumbered s 29) of the Workers' Compensation Act
(Page 8)
- 1912, which was added in 1948, and see also s 656 of the Criminal Code prior to its repeal by the Sentencing Act 1995 and now s 15 of the Sentencing Act. It is to the provisions of the Act that one must go in order to ascertain the powers and duties of the Review Officer. His primary responsibility is 'to act fairly, economically, informally and quickly' in resolving a dispute between the parties and further to 'act according to the substantial merits of the case without regard to technicalities or legal forms or precedent' - see s 84ZA(2) of the Act. It is likely to result in error if the proceedings before the Review Officer are labelled as inquisitorial and then inferences are drawn as to the powers and duties of the Review Officer in consequence of the fact that he is conducting proceedings which are inquisitorial in nature."
19 Owen J said (at 3 - 4 of his Honour's reasons):
"In the particular circumstances of this case, counsel for the respondent submitted that if the review officer had come to the view that there was insufficient medical evidence to establish the matters for which the applicant contended he was under a duty to write off and himself obtain the necessary reports. I do not think that this is the case. There may be instances where a review officer might consider it appropriate to requisition evidence and, subject to considerations of procedural fairness, he could not be criticised for so doing. But that is a long way short of importing a general overriding duty to do so. I think that in the general run of cases the obligation to assemble and present evidence on which the parties wish to rely rests with the parties, whether legally represented or not."
20 The third member of the Court, Pidgeon J, agreed with the proposition that a review officer should ensure that all relevant information is before him or her before making a decision. His Honour considered that it would be "placing it too high" to suggest that the functions of the review officer were inquisitorial. He considered that circumstances could arise where it would be proper for the review officer to ensure that he has all the evidence before him, but did not consider that those circumstances had arisen in the case before his Honour.
21 The observations quoted above, which in my respectful view are clearly correct, establish that proceedings before a review officer are not "inquisitorial", in the sense of conferring on that officer a duty to inquire
(Page 9)
- which is independent of the wishes of the parties. While the review officer has power to obtain information, and may in appropriate cases do so of his or her own motion, there is no general overriding obligation to do so. The clear tenor of the observations quoted above is that the proceedings are adversarial, and it is for the parties to present their cases.
22 As in Mayne Nickless, it is not, in my view, necessary in this case to attempt to set out exhaustively those situations in which it might be appropriate for a review officer of his or her own motion to attempt to obtain information or clarify ambiguity. It is enough to dispose of this appeal, in my view, to note that it was always the appellant's case that she suffered real physical symptoms which, for some inexplicable reason, her doctors did not believe.
23 It may be that, had the appellant been legally represented, those representing her might have sought instructions to present an alternative case of psychiatric disability of some kind, potentially related to her work injury. However, whatever the functions of the review officer, they do not, in my view, extend to suggesting to an applicant that, based on an ambiguous expression in a medical report, upon which the applicant does not seek to rely, the applicant should re-cast her case entirely, and in a way which in effect contradicts the thrust of the case which the applicant seeks to make. In my view, a course of that kind would run the risk of being procedurally unfair to the respondent.
24 Further, while, if a review officer were to act in that way, it might on one view be consistent with the review officer's duty to act "fairly" towards the applicant, it is hardly likely to promote the other statutory objectives of acting economically and quickly, since it would be very likely in such a situation both that an applicant might seek an adjournment in order to gather further evidence to support the case suggested by the review officer, and that the respondent would probably wish for, and would certainly be entitled to, an adjournment in order to gather further evidence of its own.
25 Had there been an ambiguity in a medical report which might have been relevant to the case the appellant sought to make out, in my view it would have been necessary for the review officer to have brought the ambiguity to the appellant's attention, and to have explained the options available to her. In the present case, the report of Dr De Tissera was a matter which the review officer dealt with simply for the sake of completeness. She need not have dealt with it at all, since nothing in the case of either party turned on it.
(Page 10)
26 I would dismiss the appeal.
27 PULLIN JA: I agree with Wheeler JA.
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