Isuzu General Motors Australia Ltd v Jordon
[2000] VSCA 63
•11 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 7133 of 1998
| ISUZU GENERAL MOTORS AUSTRALIA LTD. | |
| and QBE WORKERS COMPENSATION (VIC) LTD. | Appellants |
| v | |
| KENNETH BRUCE JORDON | |
| Respondent |
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JUDGES: | BROOKING, PHILLIPS and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 20 and 21 March 2000 | |
DATE OF JUDGMENT: | 11 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 63 | |
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Accident compensation - Workers compensation – Loss of mental powers involving inability to work – Loss under Table before 1 December 1992 - Application by party for referral of “medical question” to medical panel – Whether “medical question” can relate to injury before 1 December 1992 – Whether question can relate to part only of the worker’s “injury” – Need for relevance of question – Function of Court when party applies for referral – “Impairment” in terms of the Table – Accident Compensation Act 1985 ss.5 (definitions of “injury” and “medical question”), 45, 67, 68, 82, 98, 98A.
Accident compensation - Workers compensation – Evidence – Worker’s claim for compensation under s.98 – Whether medical report obtained during trial admissible – Meaning of statutory prohibition on tender – Accident Compensation Act 1985 ss.98, 104.
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APPEARANCES: | Counsel | Solicitors |
For the Appellants | J. Ruskin, Q.C. | Herbert Geer Rundle |
| For the Respondent | R.P. Gorton, Q.C. I.R. Fehring | Slater and Gordon |
BROOKING, J. A.:
I agree with Phillips, J.A.
PHILLIPS, J.A.
In this proceeding the plaintiff, a panel beater by trade, took a job with Isuzu General Motors Australia Ltd. (“the employer”) in 1988 and he worked there until 14 March 1994 when he was retrenched. In November 1991 there was an incident which occurred while the plaintiff was working at a furnace. Accompanied by a loud noise, a quantity of heated sand was suddenly thrown from the furnace in the plaintiff’s direction. The sand was certainly capable of inflicting burns and fortunately it did not make contact with the plaintiff. The plaintiff thought that there had been an explosion in which he might well have been seriously injured. According to the findings made at trial, this incident triggered a significant psychological reaction and although the plaintiff continued working for the employer until March 1994 the trial judge accepted that he did so largely out of necessity and in the face of deteriorating mental health.
In February 1995, the plaintiff lodged a claim for compensation under ss.98 and 98A of the Accident Compensation Act 1985 (“the Act”), alleging injury in the course of employment. As subsequently pleaded in this proceeding, these were the particulars of injury:
"Throughout the course of the Plaintiff’s employment the general physical and mental stresses and strains together with an incident in or about 1991 when a furnace exploded led to the production, aggravation, acceleration, exacerbation, recurrence and/or deterioration of mental injury, anxiety and depression, post-traumatic stress disorder, total and incurable loss of mental powers involving inability to work, pain and suffering.”
The claim form was, as usual, by no means so specific. The injury was described simply as “psychiatric condition” and the cause, “subjected to explosion” in 1991 while the plaintiff was “operating furnace”. The claim was rejected by the employer’s insurer and, conciliation proving unsuccessful, the plaintiff commenced this proceeding against the employer in the County Court in July 1997. At trial the employer’s insurer was joined as second defendant and on 27 August 1998 the plaintiff recovered judgment for $96,594, this sum being described in the authenticated judgment as “representing 85 per cent total and incurable loss of mental powers involving inability to work”. From that judgment the defendants (as I shall continue to call them) now appeal under s.52(1) of the Act, alleging two errors in the course of the trial: the first in the judge’s refusing (despite the provisions of s.45(1)(b) of the Act) to refer certain questions to a medical panel when requested to do so by the defendants; and the second, in admitting into evidence (despite the provisions of s.104(12) of the Act) a medical report procured by the plaintiff during the currency of the trial.
The 1992 amendments
It is important from the outset to be clear about certain aspects of the plaintiff’s claim in this proceeding which are linked to amendments to the legislation made in 1992. First, in so far as his claim depended upon s.98, the plaintiff was relying upon this item in the Table in that section:
"Total and incurable loss of mental powers involving inability to work”.
This was a copy of an item in the Table of Maims appended to s.11 of the Workers Compensation Act 1958 and it appeared in the Accident Compensation Act from its enactment in 1985 until the item was replaced as from 1 December 1992 (by Act No. 67 of 1992) by an item of no relevance to this proceeding. Thus the plaintiff’s claim was to be justified, if at all, only by the legislation as it stood prior to 1 December 1992.
Two things followed from this. First, as pleaded the plaintiff’s claim appeared to rest, not merely upon the particular incident that occurred in November 1991, but upon strains and stresses which were occurring throughout the employment. It was common ground on this appeal that in so far as the plaintiff was relying upon a continuing deterioration in his mental condition to which employment was a contributing factor, such employment, to be relevant, must have been before 1 December 1992: employment after that date was irrelevant as a contributing factor. Nothing was made of this point on appeal and there is no reference to it in the judgment below, his Honour’s finding on the evidence being expressed simply as follows:-
"The plaintiff is now 59 years of age. On the balance of probabilities I find that his psychological injury, i.e. his loss of mental powers, has resulted in a total inability since March 1994 to resume his pre-accident work including, of course, panel beating work.”
In the circumstances we must proceed, I think, upon the footing that the relevant loss of mental powers involving inability to work was regarded by the judge as stemming from employment before 1 December 1992, not after it.
Secondly, because the plaintiff was relying for his entitlement upon the Act as it stood before 1 December 1992, he could not justify any claim by reference to s.98A of the Act; for that section was introduced with effect only from 1 December 1992 (also by Act No.67 of 1992). Section 98A expressly entitled a worker, who had suffered a loss as mentioned in the Table in s.98, to compensation for pain and suffering in addition to any other compensation under the Act. In his pleading the plaintiff mentioned both s.98 and s.98A, but again it was common ground on this appeal that he had no claim under s.98A. Before 1 December 1992, s.98(5) read thus:-
"Compensation under this section is in respect of permanent impairment and other non-pecuniary loss”.
By judicial decision, “other non-pecuniary loss” included, it seems, pain and suffering: see Haines v. Bendall[1] and Community Services Victoria v. Bradbury[2] in which Brown v. Accident Compensation Commission[3] was approved. In this instance, the judge included consideration of “the plaintiff’s pain and suffering and loss of enjoyment of life” when assessing the amount of compensation payable and presumably such an award must rest on s.98(5), not s.98A. Again no point was made of this below or on the appeal.
[1](1991) 172 C.L.R. 60
[2][1999] V.S.C. 32 (22 February 1999, Ashley, J.)
[3][1992] V.A.C.R. 72-231 (Accident Compensation Tribunal, Judge Gorton)
It is convenient at this point to mention some of the other changes made with effect from 1 December 1992 by Act No.67 of 1992 (“the 1992 amendments”). Entitled the Accident Compensation (WorkCover) Act 1992, that Act made substantial changes to the system as a whole, replacing what was formerly called WorkCare with WorkCover. Thus, the Accident Compensation Commission was abolished and the Victorian WorkCover Authority created; the Accident Compensation Tribunal was abolished and jurisdiction conferred instead upon the County Court and the Magistrates’ Court; the WorkCare Appeals Board, introduced into the legislation by Act No. 64 of 1989, was abolished and the system of “Medical Panels”, also introduced by the 1989 Act, was revamped. Importantly for present purposes, the notion of relevant “injury” was changed. At the same time the definition of “incapacity” was amended.
As for injury, s.82 is the pivotal section entitling a worker to compensation for injury “arising out of or in the course of employment” and immediately after this last expression there was added the further qualification “and if the worker’s employment was a significant contributing factor”: Act No.67 of 1992 s.11(1). Also (by Act No.67 of 1992 s.7) a new s.5(1B) was inserted, specifying matters that had to be taken into account in determining whether a worker’s employment was a “significant contributing factor” and (by Act No.67 of 1992 s.6) the definition of “injury” in s.5 was changed in part. The introductory expression “means any physical or mental injury” was not altered; it remained as it was in 1985, and as it does today (giving rise to what may be called "injury in the primary sense"). What was altered were the ensuing paragraphs (b) and (c), the first dealing with disease and the second with what I shall call, for convenience, an "aggravation injury". Until 1 December 1992, paragraph (c) read thus;
"(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."
From 1 December 1992, the reference was to employment as “a significant contributing factor” - and a like change was made (also by s.6 of Act No.67 of 1992) to paragraph (b) of the definition of “medical question”. Until 1 December 1992, paragraph (b) had commenced:
"(b)a question whether a worker's employment could possibly have been a contributing factor to an injury or alleged injury ... "
From 1 December 1992 this, too, referred to employment as "a significant contributing factor". As will be seen, much of the argument in this proceeding was built upon these additions of the word “significant” as thereafter serving to distinguish injury on or after 1 December 1992 from injury before that date. (Paragraph (b) was further amended by s.3 of Act No.107 of 1997, but not to the prejudice of the foregoing.)
One further point may be mentioned now. In posing the question, before 1 December 1992, whether "a workers' employment" could possibly have been "a contributing factor" to injury, paragraph (b) of the definition of "medical question" was obviously enough directed at least in part to an aggravation injury, if only because paragraph (c) of the definition of "injury" in s.5 used the like language (also until 1 December 1992). It is still, I think, a moot point whether paragraph (b) could have related, before 1 December 1992, to injury in the primary sense before that date. Before 1 December 1992 s.82 made no reference to employment “contributing” to injury and it has been said that the test whether injury "arose out of" employment was a stricter test than whether employment "contributed to" injury: see for example Favelle Mort Ltd. v. Murray[4] at 585 per Barwick, C.J., 594 per Stephen, J. and 598 per Mason, J. (recently discussed by Ashley, J. in the context of s.82 as it was after the 1992 amendments: Popovski v. Ericsson (Australia) Pty. Ltd.[5]) Nevertheless, although the tests be different might not a medical question in terms of paragraph (b), as it stood before 1 December 1992, have assisted, in some circumstances at least, in determining whether there was injury in the primary sense which was compensable under s.82? At least one County Court judge has held[6] that paragraph (ba) (the de facto successor to paragraph (b) before 1 December 1992) applies only to an aggravation injury before 1 December 1992, but I prefer to leave the question open; it was not argued on this appeal and it seems unnecessary to decide it now. For present purposes, it seems enough that paragraph (b), as it stood before 1 December 1992, appears from its language to relate (at all events at least in part) to an aggravation injury occurring before 1 December 1992.
Referral of medical questions under s.45
[4](1976) 133 C.L.R. 580
[5][1998] VSC 61 at paras.[51] ff. An appeal against this decision was recently allowed, but on a different point: see Ericsson (Australia) Pty. Ltd. v.Popovski [2000] VSCA 52.
[6]Singh-Jhikka v. MMI Workers Compensation (Vic) Ltd. (unreported, County Court 9 April 1999, Judge Rendit)
With that said by way of introduction, I turn to the errors ascribed to the judge in the course of the trial of this proceeding, the first of which was his Honour’s refusal to refer certain questions to a medical panel for opinion under s.45 of the Act. What was relevant in this connection was the form of the statute as it stood when this matter was heard and determined in August 1998 and that may be conveniently found, for present purposes, in Reprint No.8 (a reprint as at 1 January 1998). Section 45(1) then read:
"(1)Where the County Court exercises jurisdiction under this Part, the County Court –
(a)may refer a medical question; or
(b)if a party to the proceedings requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions –
to a Medical Panel for an opinion under this Division.”
Despite the use of the mandatory expression “must refer” in paragraph (b), it was common ground before us that the Court to whom a party addresses a request under s.45(1)(b) still has some discretion in the matter. Relying upon the decision of Hedigan, J. in H.I.H. Winterthur Workers’ Compensation (Vic.) Ltd. v. Greeves[7], both sides submitted that when application was made to the court to refer medical questions under s.45, the questions must be referred if the questions are “medical questions” as defined in s.5 of the Act, are relevant to issues which are live in the proceeding before the Court and are not otherwise an abuse of the process. (Since the argument on appeal was heard in this case, an appeal by the plaintiff in Greeves has been heard and determined: the appeal was dismissed.)[8]
[7][1998] VSC 97 (2 October 1998)
[8]Greeves v. H.I.H. Winterthur Workers Compensation (Vic.) Ltd. [2000] VSCA 68 (5 May 2000)
So far as concerns the criteria adopted by Hedigan, J. in Greeves, it is unnecessary, I think, to consider the residual possibility of abuse. Perhaps the possibility is real but it may be left until it arises (if ever it does), for the other criteria are of more immediate interest. I agree with his Honour that a question must be referred to a medical panel under s.45(1)(b) (that is upon application by a party) if it is a “medical question” as defined in s.5 of the Act and if it is relevant to the litigation then before the Court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the Court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the Courts,[9] but nevertheless it is the Court which, in the end, must adopt and apply the opinion in the determination of the litigation before it.
[9]see Hansard, Legislative Assembly, 30 October 1992, vol.409, p.310
This last is the result particularly of s.68(4). While it is s.67 which defines the function of a medical panel as giving its opinion on a medical question properly referred to it, it is s.68 which obliges the medical panel to "form its opinion … within 60[10] days after the reference is made", to "give a certificate as to its opinion", and to give "its opinion in writing" to the referring officer or body "within 7 days after forming its opinion". Section 68(4) reads:-
"(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
By virtue of this provision (which was introduced by s.21(4) of Act No.107 of 1997 with immediate effect) it seems clear beyond argument that the opinion obtained from the medical panel on the question referred to it must now be "adopted and applied" by the Court "for the purposes of determining" the "question or matter" with which it is seized. In those circumstances it follows, I think, that the Court to whom a request is made under s.45(1)(b) must still have a residual power to decline to refer a question if the Court is clearly of opinion that the opinion of a medical panel on that question cannot be of assistance in resolving the issues which are in dispute in the litigation. It is in that sense that relevance must still be a touchstone, despite the mandatory form in which s.45(1) now appears.
[10]amended from 21 days, by Act No.107 of 1997 s.21(3)
In saying that I do not overlook that in s.45(1) the expression "that ... question or those ... questions" is deliberate. After the 1992 amendments (which revamped the system of medical panels) and until 1997 paragraph (b) of s.45(1) read thus:-
“(b)if a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion”.
Apparently this was thought by Parliament to leave the Court with too much choice in the matter, for the paragraph was rewritten by s.21(5) of Act No.107 of 1997, to oblige the Court, upon application by a party to have a medical question or questions referred for opinion to a medical panel, to refer "that … question or those … questions" accordingly. By the same token, it goes without saying that the 1997 amendment was not intended to produce absurdity, and hence the residual touchstone of relevance.
In this instance, the defendants requested the judge to refer a number of questions to a medical panel for opinion. In setting them out so far as relevant to this appeal, I will adhere to their original numbering (to avoid the confusion which the change to lettering, which was made at the trial, could engender in what follows, given that the definition of "medical question" contains now some 13 lettered paragraphs). Subject to that, the questions were these:-
"1.What is the nature of the Plaintiff’s medical condition relevant to the alleged injury?
2.Is such injury permanent?
3.Was the Plaintiff’s employment with Isuzu General Motors Australia Ltd. a contributing factor to the injury?
4.What is the level of impairment, expressed in percentage terms, suffered by the Plaintiff as a result of the injury?”
The judge refused to refer any of these questions to a medical panel, which left the Court, so far as medical evidence went, with only that led by the plaintiff. Hence, no doubt, the dissatisfaction of the defendants with the result, and this appeal.
Question 3
In relation to question 3, the judge delivered a considered ruling on 26 August 1998 (and a copy is in the Appeal Book). It may be observed, first, that question 3 deals with whether the plaintiff’s employment was “a contributing factor” to "the injury" (which is not described with any more particularity). As earlier observed, the expression “a contributing factor” is language that was appropriate enough to "injury" as defined by s.5 of the Act until 1 December 1992, but was probably inappropriate to injury thereafter (when the word "significant" was added in s.5 and s.82). But that suited the plaintiff's claim, which was for injury before 1 December 1992.
It being common ground that in s.45(1) the term "medical question" has the meaning given it by definition in s.5, by the time of the trial the relevant paragraphs of that definition were in this form (again by virtue of Act No.107 of 1997; see s.3):-
"(b)a question whether a worker’s employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury;
(ba)if paragraph (b) does not apply, a question whether a worker’s employment was in fact, or could possibly have been, a contributing factor to an injury or alleged injury, or to a similar injury”.
Given what has already been said, the language of paragraph (b) will be understood as particularly appropriate to the definition of "injury" as it stood on and after 1 December 1992, and the language of paragraph (ba), to the definition of "injury" (and more particularly paragraph (c) of that definition) before that date. (Indeed that the two should so complement each other may have been the very purpose for Parliament's adding paragraph (ba) in 1994; it was added by s.5(3) of Act No.50 of 1994 with effect from 24 June 1994.) Because the plaintiff was claiming for injury before 1 December 1992, paragraph (b) did not apply but surely paragraph (ba) did (at least in respect of the plaintiff's claim for an aggravation injury).
On that footing, paragraph (ba) of the definition of "medical question" would have justified, and required in conjunction with s.45(1)(b), the Court's referring question 3 to a medical panel; for I should have thought that the opinion being sought was not irrelevant to the determination of the issues in the proceeding as a whole. But the judge refused the defendants' application in respect of question 3 in deference to a line of previous County Court decisions to the effect that, notwithstanding that the language of paragraph (ba) appeared particularly apt for injury before 1 December 1992, injury before 1 December 1992 did not give rise to a "medical question" as defined in s.5. Those decisions were Accident Compensation Commission v. Casse[11]; Castillo v. Victorian WorkCover Authority[12] and Gregal v. Transfield Defence Systems Pty. Ltd.[13] and I must say something about each of them.
[11][1994] V.A.C.R. 73-334 (County Court 29 March 1993, Judge Just)
[12]unreported, County Court 24 August 1995, Judge Williams
[13]unreported, County Court 17 July 1998, Judge Strong
In March 1993 in Casse Judge Just accepted that s.45(1) was procedural only, applying whenever the County Court exercised jurisdiction under Part III of the Act, and that in s.45(1) the term “medical question” had the meaning given it by the definition in s.5. But because his Honour was dealing with the Act as it stood after the 1992 amendments he held that in the definition of “medical question” (itself much amended in 1992) a reference to “injury” or to "incapacity" meant injury or incapacity as defined by the Act as it then stood, thereby excluding injury or incapacity occurring before that date. This followed, his Honour said, from the significant changes made by Act No.67 of 1992 to the meanings of both “injury” and “incapacity”, with effect from 1 December 1992. What was injury or incapacity before that date was not necessarily injury or incapacity after that date and the definition of "medical question" in s.5 comprehended only the latter. I simply note that in Casse Judge Just was concerned with paragraphs (ab) and (f) in the definition of "medical question", two paragraphs referring to "incapacity" (and in one case also to "injury") without further elaboration.
A second step was taken in Castillo by Judge Williams (the successful counsel in Casse) in August 1995. His Honour was concerned, I think, with paragraph (b) of the definition of "medical question", which then, as now, referred expressly to employment as "a significant contributing factor" (language appropriate to injury after 1 December 1992, but not before it). That alone would surely have justified his Honour's concluding (as in fact he did) that paragraph (b) did not extend to injury before 1 December 1992. Somewhat surprisingly given the context of injury before 1 December 1992, his Honour was apparently not referred to paragraph (ba) of the definition, the very paragraph which may well have been enacted in 1994 specifically to overcome the limitations perceived after Casse. His Honour expressly reserved his opinion on paragraph (d) of the definition of "medical question" to which, he said, "different considerations" might apply because of its particular wording; but he did not refer at all to paragraph (ba).
Instead, his Honour dwelt upon Casse and purported to apply it, notwithstanding another amendment of significance made by Act No. 50 of 1994 with retrospective effect, in this instance, from 1 December 1992: the amendment of s.67(1). Immediately after amendment s.67(1) read thus:
"(1)The function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment before, on or after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992 referred by Conciliation Officer or the County Court or the Authority or a self-insurer.” [Italics added]
The words I have italicised were those added by Act No.50 of 1994 (quite possibly in response to Casse) in order to empower a medical panel expressly to deal with questions in respect of injuries linked to employment before, on or after 1 December 1992 (that being the commencement date identified by the added words). Judge Williams, however, held that although the amendment to s.67(1) must be taken to have enlarged the function of a medical panel, it did not overcome the difficulty exposed in Casse which lay not in s.67 but in the definition of “medical question”. His Honour said that as, since Casse, "there has been no change to the definition of 'medical question' " (meaning presumably to paragraph (b) thereof), Casse still applied so that injury occurring before 1 December 1992 could not give rise to a “medical question” within the meaning of s.45(1).
Whereas in Castillo paragraph (ba) was not mentioned, in Gregal (in July 1998) it was all-important, and that led to the taking of a third step. In Gregal, Judge Strong regarded himself as bound by the decisions in Casse and Castillo; for he saw the doctrine of stare decisis as wisely promoting uniformity of decision. Relying then upon those earlier decisions, the judge held that injury before 1 December 1992 could not give rise to a "medical question", even under paragraph (ba) of the definition in s.5. His Honour so held notwithstanding that in his view there was a “respectable argument” to the contrary. After noting, too, that in Castillo paragraph (ba) might well have been overlooked, the judge expressed the view that the oversight (if such it was) would not have affected the conclusion in Castillo.
In concluding as he did in Gregal, Judge Strong expressly confined his decision, that paragraph (ba) of the definition of "medical question" did not extend to injury before 1 December 1992, to an aggravation injury (as I am calling it): that is, an injury according to paragraph (c) of the definition of “injury” in s.5. I suppose that in excluding injury in the primary sense from his decision, the judge was attempting to limit the consequences of a strict application of Casse and Castillo by which he regarded himself, rather reluctantly I think, as bound; but what he said obviously gives rise to the possibility that in applying the definition of "medical question" in s.5 there was a distinction to be drawn between an aggravation injury (to which paragraph (ba) did not apply) and injury in the primary sense (to which, I suppose it might). It is not clear to me whether his Honour saw this possible distinction as arising because the 1992 amendments changed the definition of an aggravation injury in s.5, but not that of injury in the primary sense (at all events in s.5) - or why that should make a difference - or whether he had in mind the possibility of applying (or perhaps the difficulty of applying) the words "a contributing factor" to the link between employment and injury in the primary sense before 1 December 1992. But, whatever the basis for the distinction, his Honour appears to have seen it as a means of avoiding the impact of Casse and Castillo on injury in the primary sense, thereby enabling a medical question within paragraph (ba) to be put to a medical panel about such an injury: contrast the conclusion of Judge Rendit in Singh-Jhikka, mentioned below.
That was the situation when the case now under appeal (Jordon v. Isuzu General Motors Aust. Ltd.) fell to be decided in the County Court on 27 August 1998. In refusing the defendants' application under s.45(1) in respect of question 3 the trial judge simply followed what had been said in Gregal about injury before 1 December 1992. Apparently it was urged upon his Honour by counsel for the defendants, in seeking to persuade him to act under s.45(1)(b), that in this instance there was also injury in the primary sense (that is, by virtue of the opening portion of the definition of “injury” in s.5, which was unaffected by the 1992 amendments). Yet, said his Honour, this distinction could not "assist" the defendants (I suppose by saving injury in the primary sense from the consequences of Casse and Castillo) because the plaintiff’s injury was pleaded as injury arising, inter alia, by way of aggravation etc. of previous injury. Of this his Honour said:-
"I must say this pleading comes as something of a surprise having regard to the way in which the case was presented. But it would be altogether impractical, if not impossible, to sever injuries which might fall within paragraph (c) of the definition of injury from those which might not, so as to permit the latter to be referred for opinion to the medical panel.”
Accordingly, his Honour said that he would not attempt “a severance of the kind I have mentioned” and would apply Casse, Castillo and Gregal. On that basis, injury before 1 December 1992 was excluded from the ambit of a "medical question" within s.45(1) and so his Honour refused to refer question 3 to a medical panel.
By way of postscript, I mention again the subsequent case of Singh-Jhikka v. MMI Workers Compensation (Vic) Ltd.[14] in which the earlier decisions were not followed in relation to paragraph (ba). In Singh-Jhikka Judge Rendit was asked to refer to a medical panel certain questions relating to injury before 1 December 1992. Refusing to follow Castillo, Gregal and Jordon in this respect, his Honour held that paragraph (ba) of the definition of “medical question” did authorise a question relating to injury before 1 December 1992; for its words were appropriate only to such an injury. But, apparently applying Casse, he refused to allow a question to be referred under paragraph (c) of the definition, as that paragraph (which speaks in a general way only of "the injury") was based on "injury" as defined after 1 December 1992. Nor, for much the same reason, would he allow a question under paragraph (a) (which speaks of "an injury or alleged injury"), but in relation to paragraph (d), he adopted the view of Mr. Justice Byrne in Austin v. Amcor Pty. Ltd.[15] that there was no such limitation afflicting a "medical question" falling within paragraph (d) of the definition.[16]
[14]unreported, County Court 9 April 1999
[15]unreported, Supreme Court of Victoria 3 April 1998
[16]These conclusions were adopted and applied by Balmford, J. in NZI Workers' Compensation (Vic.) Ltd. v. Unalan [1999] VSC 234 (28 June 1999).
Moreover, when considering the question posed by the defendant in that case under paragraph (ba), Judge Rendit indicated his agreement with what had been said in Jordon about "severance". He said that in this context "injury" was "one and indivisible", so that although paragraph (ba) did extend, in his view, to injury before 1 December 1992, a question could not be asked about an aggravation injury if the plaintiff (as in that case) was claiming also for injury in the primary sense. The premise for this was clearly stated: in the judge's opinion paragraph (ba) related only to an aggravation injury and not at all to injury in the primary sense (the very opposite of the suggestion made in Gregal), and the two aspects of the plaintiff's claim could not be split up for the purpose of a "medical question". Accordingly, notwithstanding his view that paragraph (ba) did extend to injury before 1 December 1992, his Honour refused to refer the question posed under that paragraph to a medical panel.
I must say that all this gives rise to a very tortured result flowing, it is said, from the words used in the definition of “medical question”. The reasoning has led to a very complicated set of distinctions. That cannot be a right result and in large part the reasoning which has led to this point should, I think, now be rejected. With all due respect to those very experienced judges who have contributed thus far, I have reached the conclusion that the course of decision relied upon by the trial judge in this instance was flawed, and at more than one point.
First, I think that the step taken in Casse was error. It is true that the 1992 amendments affected significantly the definitions of "injury", "incapacity" and "medical question", but those amendments did not in my opinion require, or indeed justify, the step taken in Casse. It seems to me that, even before the 1994 amendment to s.67(1), the better view was that, when using the word “injury”, the definition of “medical question” in s.5 was using that word in whatever sense was necessary for the purposes of the litigation in respect of which the medical question was being posed. After all, in a case like the present the plaintiff makes his claim after 1992 for compensation under the Act as it stood until it was changed on 1 December 1992 and he must be relying upon the definition of “injury” as it once was. (In the present case that point is emphasised because the plaintiff is necessarily dependent upon the Table in s.98 as it was before 1 December 1992.) Procedurally, however, the claim for compensation is to be heard and determined in accordance with the Act as it stood after 1992, by which time there was a power in the Court to refer medical questions to a medical panel according to the provisions which were introduced as from 1 December 1992, and it is common ground that the trial judge was in this instance (in August 1998) entitled, and bound upon application by a party, to act in accordance with the provisions of s.45(1) as it stood at the time of the hearing. The power and the duty to refer medical questions to a medical panel for opinion were a power and a duty conferred and created to assist in the resolution of the proceeding built upon the claim and I see no reason, in principle, why the definition of “medical question” should be taken to refer to an injury otherwise than in the meaning relevant to that litigation. In short, I see the word “injury” in the expression "medical question" as having ambulatory operation – that is, as having whatever meaning is appropriate to the invocation of the definition of “medical question”. It follows that injury within the meaning attributed to "injury" by the Act before 1 December 1992 is not to be excluded when the definition of "medical question" falls to be applied, simply because the latter definition was substantially amended with effect from 1 December 1992 at the same time as changes were made to the concept of "injury" (and, as Judge Just pointed out, to the notion of "incapacity" too).
That is not to say that the various paragraphs of the definition of "medical question" may not themselves draw a distinction between injury before and injury on or after 1 December 1992. Thus, as already mentioned, paragraph (b), in mentioning employment as a "significant contributing factor" may be taken to be drawing such a distinction by using words appropriate to the link between employment and, say, an aggravation injury as defined only from and after 1 December 1992 (and injury in the primary sense, if reference be made to s.82(1)). But if that be so, the distinction does not then depend upon the changes made to the definition or concept of injury by the 1992 amendments, as suggested in Casse; it depends upon the very words of the paragraph of the definition of "medical question" which the applicant for referral is seeking to invoke. Had the decision in Castillo been confined to paragraph (b), for instance, it might have been unexceptionable.
But the step taken in Castillo in relation to the amendment to s.67(1) was error, too, in my opinion. Whatever the merits or otherwise of the interpretation placed in Casse upon the definition of "medical question" before the amendment to s.67(1) made by Act No.50 of 1994 (as to which see paragraph [22] above), I think that that amendment was decisive. Given that s.67(1) spells out the function of a medical panel, the words that were deliberately added in 1994 - and with retrospective effect from 1 December 1992 - put beyond argument the conclusion that the definition of "medical question" in s.5 can be read as extending to injury occurring before, on or after 1 December 1992. That is, as I have said already, subject to any context in the definition itself indicating the contrary - and again the examples may be taken of paragraph (b) (indicating injury after 1 December 1992) and paragraph (ba) (injury before 1 December 1992).
That leads me to what I see to be the third error, the step taken in Gregal. Altogether independently of the amended s.67(1), it could not be said after the 1994 amendments that the definition of "medical question" did not operate, at least in part, in relation to injury occurring before 1 December 1992. The new paragraph (ba) was added by Act No.50 of 1994 to make provision like that in paragraph (b) but omitting the word "significant" and it was common ground before us that the new paragraph (ba) could have application only in relation to injury before 1 December 1992 because of its reference to employment as "a contributing factor". To deny, then, that paragraph (ba) had any application to injury before 1 December 1992 (as was held in Gregal) must be to deny it all effect - a point that weighed with Judge Rendit. At one stage in his elaborate argument Mr. Gorton suggested that the inclusion of paragraph (ba) in the 1994 amendments was the reason - and the only reason - for the amendment to s.67(1) to which I have referred; but I reject that argument. The inclusion of paragraph (ba) may have been one reason for the amendment to s.67(1), but the words added to that subsection are such as to indicate that it was not the only reason. Whether or not the added words were intended to deny any general application to the conclusion in Casse, in my opinion that is what they did.
One more general comment should be made about the reference in Gregal to stare decisis. In the light of hindsight it is, I think, surprising that even the addition of the new paragraph (ba) was not seen to demonstrate that the definition of "medical question" could apply, in some circumstances, to injury before 1 December 1992. It may be that in Castillo the new paragraph (ba) was simply overlooked, but when that possibility was drawn to attention in Gregal, the judge none the less applied Casse and Castillo to justify refusing to refer under s.45(1) a "medical question" which was otherwise within paragraph (ba), on the ground that that paragraph did not extend to injury before 1 December 1992. In Singh-Jhikka Judge Rendit refused to agree on this, holding that paragraph (ba) did allow such a question to be referred, if properly framed. With respect I should have thought that conclusion inescapable and in those circumstances a desire in Gregal for uniformity in decision ought not to have dictated otherwise, especially once it was observed that in Castillo the judge had not referred to paragraph (ba) at all.
The foregoing, then, is determinative in this instance; for it is paragraph (ba) of the definition of "medical question" which, as I said in paragraph [19], would justify the reference of question 3 to a medical panel under s.45(1)(b). But Mr. Gorton raised another argument in support of the decision below. Apparently on the assumption that paragraph (ba) related only to an aggravation injury (which was the view of Judge Rendit) counsel submitted that question 3 could not be relevant to the judge's determination of the plaintiff's case in this instance because, although the plaintiff's pleading included reliance upon an aggravation injury, by the time the judge ruled on the application to refer medical questions under s.45(1), the evidence had been heard and there was no sufficient basis for a finding of any but injury in the primary sense. This was disputed by the appellant and I doubt that Mr. Gorton was correct about the evidence. More importantly, perhaps, in his ruling on question 3 the judge declined to refer that question to a medical panel because it related in part to an aggravation injury before 1 December 1992; he said (it will be recalled)[17] that "severance" would not be practicable, if indeed it was possible. Clearly his Honour regarded the allegation of an aggravation injury as still live at that stage, and Mr. Gorton's submission to the contrary should be rejected. (It may indeed be that the respondent was not entitled to put this point on appeal, the respondent not having filed a notice of contention, but I pass that by for the moment.)
[17]see paragraph [25] above
Nor, I should add in view of the opinions expressed to the contrary in the County Court in both this case and in Singh-Jhikka, was it any answer that the question related to an aggravation injury (before 1992) which was part only of the plaintiff's case (which otherwise depended upon injury in the primary sense). It may be that for many purposes "injury" is one and indivisible; see for example Howe v. Simmons Bedding Co. Pty. Ltd.[18]. But the definition of “medical question” cannot be one of those purposes or else it could be denied effect by clever pleading and presentation of the case. What can be asked under s.45(1) are questions of some utility in the determination of the matter before the Court. It cannot be said that a question of the type described in paragraph (ba) of the definition of "medical question" would be of no assistance just because the plaintiff relies not only upon an aggravation injury (to which paragraph (ba) has particular application) but also upon an injury in the primary sense. Indeed, even if it be the case (as the argument tended to assume) that paragraph (ba) can have no application to injury in the primary sense (on which I express no opinion) such injury, even if occurring before 1992, might well be made the subject of a "medical question" falling within some other paragraph of that definition. I see no reason to suppose that such questions may not be referred to a medical panel under s.45(1), provided only that the opinion to be expressed in response may be of some utility to the Court in resolving the litigation between the parties.
[18][1980] V.R. 177
For these reasons I consider that question 3 was amply justified under paragraph (ba) of the definition of "medical question" as it stood by the time of the trial below and that the judge's reason for refusing to refer it to a medical panel under s.45(1)(b) was error. It was not open to refuse to refer the medical question for opinion merely because it asked after injury occurring before 1 December 1992.
Question 1
Having thus determined that there was error in the judge’s refusing to refer question 3 to a medical panel, I turn to the other questions which the defendants sought to have referred. In respect of these, no formal ruling was given; we were referred instead to the transcript of discussion during argument in which, it was said, the reasons given by the judge for refusing to refer these questions was disclosed.
It may be recalled that question 1 was as follows:-
"What is the nature of the Plaintiff’s medical condition relevant to the alleged injury?”
In discussion on 26 August, the judge said this immediately after delivering the formal ruling relating to question 3:
"That is my ruling and moving then to the proposed medical questions formulated by [counsel], in regard to question 1 this question depends on the definition of injury and therefore suffers the same fate as the question which has been the subject of my ruling.”
For the reasons I have given in relation to question 3, it was not fatal to question 1 that the injury, about which it inquired, was injury sustained before 1 December 1992. Question 1 depended upon paragraph (a) of the definition of “medical question”, which read:-
"(a)a question as to the nature of a worker’s medical condition relevant to an injury or alleged injury”
The wording of question 1 follows that of paragraph (a) pretty faithfully and there is nothing in paragraph (a) of the definition which is special to injury before or after 1 December 1992. (In this respect paragraph (a) is nothing like paragraph (b), or for that matter paragraph (ba).) It follows in my opinion that his Honour erred in refusing to refer question 1 to a medical panel for the reason he gave.
In the course of argument before us, Mr. Gorton sought to put an argument that question 1 was, in any event, irrelevant; but, as I have said, no notice of contention was given and, for my own part, I do not think that Mr. Gorton should be allowed to raise now the further argument he wished to put. The question of relevance was one which was particularly dependent upon his Honour’s opinion of the facts and whether the question asked would be of assistance to him in determining the litigation before him. It is a matter which can be considered in due course if (as I will propose) this matter is remitted for further hearing and determination. As at present advised, it seems to me difficult to suggest that a question framed in accordance with paragraph (a) cannot be relevant to the adjudication of the matter, but we have scarcely heard full argument on that.
Question 2
Question 2 was framed quite simply: "Is such injury permanent?” Before us, counsel for the defendants said that he was not persisting in the question as framed; he accepted, at least for the purposes of argument, that there was no error in the judge’s refusing to put that question. Instead, he said that the question should have been framed in terms of “impairment” and, when so framed, should have been put by the judge, it falling then squarely within the concluding portion of paragraph (d) of the definition of “medical question”[19].
[19]set out in paragraph [45] below
For his part, when dealing on 26 August with each of the four questions immediately after giving his formal ruling, the trial judge said of this question: "Question 2 I excluded yesterday”. On the previous day, 25 August 1998, in the course of discussion, this exchange is recorded:-
"HIS HONOUR: Yes. Anyway, question 2 is wrong because it asks ‘Is such injury permanent’, whereas (d) [of the definition of ‘medical question’] says whether or not that impairment is permanent. Is that what you mean? Is such impairment –-
MR BATTEN: It’s loosely drawn, Your Honour, and I had anticipated that it would be amended to read whatever Your Honour were to find in respect of this man’s condition, whether it is an anxiety depressive condition.
HIS HONOUR: It could only ask whether the impairment is permanent because that’s what the question permits and then I’ve got to – the process is this: I’ve got to decide whether that is a relevant issue in this case.”
It was immediately after this that his Honour described an issue as being relevant if it was “a necessary step along the way to deciding the case”, a description with which I would not disagree.
On the face of it, perhaps, it is difficult to conclude that the judge fell into error in refusing to refer question 2 in the terms in which it was cast, if the defendants do not now contend that he ought to have done so. They contend rather that the question ought to have been recast in terms of impairment instead of injury and then, once recast, put to a medical panel - and whether the judge fell into error by not doing so must depend on the judge's function upon the application that was made to him. The plaintiff's response is that the so-called medical question in respect of which application was made to his Honour under s. 45(1)(b) was posed in terms of "injury" and as such it was irrelevant to the issues. No more was needed, it was argued, to justify the judge's decision; there could be no error in refusing to put "that question" (to use the words of the subsection) to a medical panel.
For reasons I have given in Greeves v. HIH Winterthur Workers Compensation (Vic.) Ltd.[20], it seems to me that the plaintiff’s argument is too literal, attaching too much significance to the precise wording of the question as framed by the applicant at the expense of the substance of the application. As I follow s.45(1), where the applicant makes clear to the Court the issue that it seeks to have referred to a medical panel for opinion and that issue is fairly within at least one of the paragraphs in the definition of “medical question” in s.5, then, if relevant, it is that issue – or “that question” to use the language of s.45(1) – which the Court is bound to refer to a medical panel upon application by a party, under s.45(1)(b). It may well be that the wording of the question upon which the medical panel will be required to express its opinion by virtue of s.67 needs attention; but if the Court is alive to the issue to be referred and application is made for such referral and the issue is a “medical question”, then the precise wording of the question posed for the medical panel is as much for the Court as for the applicant. After all, it is the Court which must be concerned to ensure that the opinion which is obtained is of assistance in the determination of the issues in the proceeding: it is for that very reason that the Court is regarded as retaining some control over the precise wording of the question. In my opinion, if the conditions I have described are satisfied the Court is not entitled to refuse altogether to refer to a medical panel under s.45(1) an issue which one of the parties is seeking to have referred, merely because the Court considers the present wording of the question unsatisfactory.
[20][2000] VSCA 68
In this case, the conditions I have mentioned were all satisfied. The Court was alive to the issue which the defendants were seeking to have referred to a medical panel; as his Honour said, what the defendants meant was whether impairment was permanent, not injury. Only that would be relevant and so, if a question was to be referred, it was to be that question, and not a question differently worded. Perhaps the only problem left in this case was whether, having been alerted to the proper intent of the question, the defendants made it sufficiently clear that that was what they were seeking to have referred: for if the applicant does not embrace the proper wording of the question, then of course the Court must be justified in refusing to put the question which ex hypothesi is not properly worded. (While refusing to act under s.45(1)(b), the Court might perhaps choose of its own motion to refer a different question under paragraph (a) of s.45(1), but the exercise of that discretion was not under consideration here.) Perhaps the exchange recorded in the transcript which I have quoted (in paragraph [41]) is not as clear as it might have been, but the judge did not pursue the matter with counsel. In the end, it is of no account in this instance, because in any event I think that this proceeding should be referred back to the County Court for error in relation to the other medical questions posed, and should that prove to be the view of this Court, the application under s.45(1)(b) in relation to question 2 will doubtless be pursued more fully.
Question 4
That leaves only question 4 for consideration. Question 4 was framed in this way:
"What is the level of impairment, expressed in percentage terms, suffered by the plaintiff as a result of the injury?”
The framing of this question draws quite clearly upon paragraph (d) of the definition of “medical question”. By the time of the hearing of this matter below, paragraph (d) of that definition was as follows:-
“(d)A question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with section 91 and a question as to whether or not that impairment is permanent”. [Italics added]
In this I have italicised the qualifying expression which commences “including”; for if that is omitted by the reader, if only to aid in understanding in the first instance, there can be no doubt but that question 4 falls fairly within paragraph (d) of the definition. It should be noted that paragraph (d) of the definition of “medical question” makes no specific reference to “injury” or “incapacity” (the re-definition of which were so important to the reasoning of Judge Just in Casse). What, then, did the judge say in refusing to refer question 4?
On 26 August 1998, and after delivering his formal ruling in relation to question 3 , his Honour said as to question 4:-
“As to question 4 I say it is not relevant to determine the level of impairment expressed in percentage terms for reasons I explained yesterday.”
On 25 August , his Honour drew a distinction between the percentage loss of mental powers and the percentage loss of ability to work. This exchange is recorded in the transcript[21]:-
“HIS HONOUR: The compensation is awarded for the extent of inability to work, not the extent of the loss of mental powers.
MR BATTEN: It is awarded, with respect, Your Honour, to an injury which is defined as a loss of mental powers, a component of that being the worker has an inability to perform some work.
HIS HONOUR: That’s what the compensation is awarded for; the inability to work arising from the loss of mental powers. You can have a 20 per cent loss of mental powers involving a complete inability to work or you can have a 90 per cent loss of mental powers involving a small inability to work. You don’t get the compensation for the loss of mental powers. You get it for the loss of ability to work resulting from the loss of mental powers, as I understand Hawkins’ case.”
This last is a reference to Accident Compensation Commission v. Hawkins[22].
[21]at pp.12-13
[22][1992] 1 V.R. 589
With respect, I think that his Honour erred in refusing to refer question 4 to a medical panel. The relevant item in the Table in s.98 (as it stood until 1 December 1992) was a composite: it referred, it will be recalled, to “loss of mental powers involving inability to work”. Section 98(4) provided that if a worker suffered an injury consisting, either as to the major part or to a lesser but substantial degree, of an injury for which compensation was payable under s.98(1) (and thus by reference to the Table), compensation was to be awarded in such amount as “appears to be just and proportionate to the degree of injury suffered”. What was relevant therefore to compensation in this case was the percentage “loss of mental powers involving inability to work”. As s.98(5) demonstrates, that was the impairment and compensation was payable if the impairment was permanent. Whether the impairment was permanent and what the level of impairment was, expressed in percentage terms, were alike relevant, I should have thought, to a determination of what amount should be paid by way of compensation under s.98(4). It is true, as the judge pointed out, that a low level of loss of mental powers might “involve” a high degree of inability to work; but so be it. The compensation is payable for the degree of loss which, as the statute proclaims, is “loss of mental powers involving inability to work”.
Accordingly, it was not open to the judge to refuse to put question 4 on the ground that it asked after the percentage loss of mental powers, as distinct from the inability to work. The one was not to be separated from the other, though no doubt some explanation of this would be required by the judge when referring the question to the medical panel. After all, doctors are every day assessing ability to work by reference to injury; I see no reason why the same approach could not be taken to “loss of mental powers involving inability to work”.
Again Mr. Gorton sought to put another argument before us, this time that “impairment” in paragraph (d) of the definition of “medical question”[23] was to be understood as impairment according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (2nd edn.), which are mentioned specifically in s.91 and by reference to which that section requires the “degree of impairment” to be assessed. (In Reprint No.7, the reference to these Guides was found in paragraph (d) in the definition of “medical question”, making the argument perhaps even stronger.) But to my mind, the word “impairment” in paragraph (d) of the definition is not to be read by reference to the expression commencing “including”, which is no more than an express inclusion (perhaps indicating some doubt about whether, without words of express inclusion, what follows would be included). The paragraph as first introduced (by Act No. 64 of 1989) contained no such words of "inclusion" and I see no reason why their subsequent addition to paragraph (d) should be seen to change the meaning otherwise. Until repealed by the 1992 amendments, s.98(5) made it plain that the word “impairment” was used to mean a loss within the Table; it was only in the 1992 amendments and thereafter that the word “impairment” becomes linked to the AMA Guides. Without the words commencing “including”, there is no cause, in a case like this, for reading “impairment” in paragraph (d) as something other than the impairment mentioned in the Table and in my opinion that is how the paragraph should be understood. This is consistent, I think, with the views expressed by Byrne, J. in Austin v. Amcor Ltd.[24] and by Ashley, J. in Community Services Victoria v. Bradbury[25]. I would therefore reject Mr. Gorton's submission that paragraph (d) refers only to impairment assessed according to the AMA Guides. (Again, there is a question whether this point could be taken in view of the absence of a notice of contention: but, as I have said, I would reject it anyway.)
Medical report under s.104
[23]set out in paragraph [45]
[24]unreported, Supreme Court of Victoria 3 April 1998
[25][1999] VCS 32 (22 February 1999)
The only other part of this appeal was altogether different, concerning the admission into evidence of a medical report obtained during the course of the trial. During the hearing, the judge pointed out that the medical evidence concerning the plaintiff’s condition was some years old and he inquired after the present position. The plaintiff submitted to further examination and tendered the report obtained, which was dated 25 August 1998. The defendants objected to the tender, relying upon s.104(12). That reads:-
“(12)A party to any proceedings relating to a claim for compensation under section 98 or 98A cannot in evidence submit any medical evidence or tender a medical report or adduce evidence dependent on a medical report unless that evidence is disclosed by a medical report a copy of which has been provided to the other party in accordance with sub-section (1) or (2) or a copy of which has been provided in accordance with sub-section (8).”
Pointing out that a copy of the medical report had not been provided “in accordance with sub-s.(1) or (2)”, the defendants objected that the medical report could not be tendered in the face of sub-s.(12). The objection having been overruled, the defendants now appeal alleging error in that respect.
Section 104 deals generally with claims for compensation under ss.98 and 98A (and it is the former rather than the latter which is presently relevant). The section as it now stands was introduced into the legislation by Act No.50 of 1994 but substantially amended by Act No.7 of 1996 and again by Act No.107 of 1997. The history does not matter: it was common ground that the judge was entitled, and indeed bound, to apply s.104 as it stood at the time of the hearing.
Section 104(1) provides that in addition to requirements under s.103 of the Act, a claim for compensation under s.98 (and I omit reference now to s.98A as irrelevant) –
". . . must be given, served or lodged with a copy of all the medical reports –
(a)which the claimant intends to tender in any proceedings relating to the claim; or
(b)the substance of which the claimant intends to adduce in evidence in support of the entitlement of the claimant to compensation or as evidence of the extent of any relevant loss, impairment, disfigurement or pain and suffering in any proceedings relating to the claim.”
By s.104(2) the Authority, authorised insurer or self-insurer is obliged “within 90 days of receiving the claim”, not only to accept or reject the claim and advise the claimant of that decision, but to give the claimant a copy of all the medical reports which the Authority, authorised insurer or self-insurer “intends to tender in any proceedings relating to the claim” or “the substance of which the Authority, authorised insurer or self-insurer intends to adduce in evidence in any proceedings relating to the claim”.
Both sub-ss.(1) and (2) are thus concerned with the commencement of the dispute, the first dealing with the lodging of the claim and the second with the first response of the Authority, authorised insurer or self-insurer. At each stage, medical reports must be supplied and, as was submitted in argument, this is no doubt for the purpose of ensuring that, when conciliation is attempted, the conciliator has before him all relevant medical evidence. The defendants submitted below, and to us, that s.104(12) was in aid of that position, ensuring that medical evidence could not be used, if obtained after the dates relevant to the operation of sub-ss.(1) and (2). It must be said that if this is the construction to be given to s.104(12) it means that the Court is bound to consider – and to consider only – the plaintiff’s condition as at the date of the claim or, at best, at the date when the claim is rejected. Where there is, as here, usually a waiting time of about two years before the disputed claim comes on for hearing in the County Court, that result might be thought somewhat artificial. But that, said the defendants, was the result of the legislation. To read it otherwise, counsel submitted, would be to allow a plaintiff to commence the dispute with but a suggestion of his condition, lying in wait, as it were, until reaching the door of the Court before producing his real medical evidence. The plaintiff had the answer to this, however, in s.103(5) which appears indirectly to require a claimant, whether the injury has stabilised or not, to commence proceedings before quitting employment.
Notwithstanding the submission to the contrary, I think the judge was right. Section 104(12) does not provide that no medical evidence may be received in evidence after the dates mentioned in sub-ss.(1) and (2); it says only that no medical report may be received in evidence unless a copy has been provided in accordance
with sub-ss.(1) and (2). To my mind, s.104(12) is imposing a penalty for non-compliance with sub-ss.(1) and (2) and, if that be so, compliance must have been possible. Compliance is simply not possible where the medical report does not even exist at the time mentioned in sub-ss.(1) and (2). That was the case here and so, in my view, s.104(12) does not run.
Conclusion
For the reasons I have given I consider that the judge did err in refusing altogether the defendants' application to have medical questions referred to a medical panel under s.45(1)(b), but not in receiving into evidence the most recently obtained doctor's report, of 25 August 1998. By reference to the former I would allow the appeal, set aside the award of compensation made in the County Court and remit the proceeding to that Court for further hearing and determination according to law.
CHERNOV, J. A.:
I agree that, for the reasons given by Phillips, J.A., the appeal should be allowed.
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