Jones v Fish
[2020] VSC 542
•28 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02959
| SABRINA JONES | Plaintiff |
| v | |
| DR DAVID FISH & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2020 |
DATE OF JUDGMENT: | 28 August 2020 |
CASE MAY BE CITED AS: | Jones v Fish & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 542 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Application for certiorari – Application for mandamus – Injury to plaintiff’s cervical spine – Adjustment disorder and Somatic and Symptom Disorder – Medical panel concluded employment not a significant contributing factor to injury – Procedural fairness – Apprehended bias – Failure to properly consider mandatory considerations – Reasons of medical panel not inadequate – Conclusion not expressed ‘out of the blue’ – Decision of medical panel set aside – Accident Compensation Act 1985, s 5(1B) – Workplace Injury Rehabilitation and Compensation Act 2013, ss 272, 274, 302, 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota | Henry Carus and Associates |
| For the Sixth Defendant | Mr M Fleming QC with Ms S Gold | Wisewould Mahony |
| For the First to Fifth Defendants | No appearance | DLA Piper |
HIS HONOUR:
The plaintiff brings this proceeding, by originating motion under Rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015, seeking to set aside the Certificate of Opinion of a Medical Panel issued on 20 June 2019.
The background facts
The plaintiff was born on 8 January 1984. In September 2008, she commenced employment as an accounts manager with the sixth defendant Sensis Pty Ltd (‘Sensis’). Her duties included consulting with clients face to face or by email and telephone, and working for long hours on a computer.
On 20 March 2013, while the plaintiff was working at her desk, she suffered a sharp pain in her left shoulder blade, neck and arm, when she turned and picked up a note pad. In the days that followed, she continued to suffer pain that radiated to her left arm, forearm and hand, with decreasing sensation in the hand and weakness of grip.
In April 2013, the plaintiff’s general practitioner, Dr Udumala referred the plaintiff to a specialist neurologist, Dr Raju Yerra, and arranged for a CT scan and some physiotherapy treatment. The CT scan, of the cervical spine, that was undertaken on 16 April 2013, revealed a broad based posterior disc protrusion at the C 6/7 level reducing the spinal canal, a posterior disc protrusion at the C 4/5 level, and a bulging of the C 5/6 disc. A nerve conduction study undertaken on 20 May 2013 showed electro physical findings consistent with a recent active left C 6 radiculopathy. An MRI of the plaintiff’s cervical spine undertaken on 27 May 2013 showed pathology at the C 6/7 level including a narrowing of the disc space with a mild broad based posterior disc bulge which just contacted the spinal cord.
As a result of her continuing symptoms, Dr Yerra arranged for the plaintiff to have a CT-guided C 7 nerve root sleeve injection on 21 November 2013. Following that procedure, the plaintiff experienced some temporary relief from pain, but subsequently the pain in her neck, left shoulder and left arm returned and it progressively deteriorated.
On 19 April 2013, the plaintiff submitted a WorkCover claim form in respect of the injury to her neck, back and left arm. The claim was accepted, and the plaintiff received compensation by way of weekly payments and payment of medical expenses.
Following her injury, the plaintiff returned to work on light duties, but she reported that she found that she suffered increasing pain as a result. She remained at work until her employment was terminated in May 2014. She has not subsequently worked due to her ongoing symptoms of pain and her medical restrictions.
On 29 May 2015, the plaintiff submitted an Impairment Benefit Claim Form in respect of the injury to her neck, left arm, back and left shoulder. In September 2015, the plaintiff’s Impairment Benefit Claim was accepted. Liability was accepted for the neck (cervical spine) injury, and the plaintiff was paid an Impairment Benefit of $37,783.
By a notice dated 12 August 2016, the employer’s authorised WorkCover agent (Gallagher Bassett) determined that the plaintiff was no longer entitled to weekly payments, effective 22 November 2016, on the grounds that the applicant had been paid weekly benefits for a total of 130 weeks, and that she either had a current work capacity, or alternatively, if she had no current work capacity, it was not likely to continue indefinitely.
In November 2016, the plaintiff commenced proceedings in the Magistrates’ Court at Melbourne challenging the decision to terminate her entitlement to weekly payments. By its amended defence in the proceeding, Sensis, in addition to pleading the reasons it had given for terminating the payments, also pleaded that the plaintiff’s employment was not a ‘significant contributing factor’ to her claimed injury.
On about 15 November 2017, at the request of Sensis, five medical questions were referred to a Medical Panel, pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘WIRC’ Act).
On 22 January 2018, the medical panel (‘the First Panel’) that was appointed to determine those questions, examined the plaintiff. On 13 February 2018, the First Panel published its Certificate of Opinion. By that opinion, it determined (inter alia) that:
(a) The plaintiff was suffering cervical spine dysfunction resulting from a soft tissue and C 6/7 disc prolapse, with referred pain to the left arm but no clinical evidence of radiculopathy, and an adjustment disorder with mixed anxiety and depressed mood of moderate severity.
(b) The plaintiff’s employment with Sensis was a ‘significant contributing factor’ to her cervical spine injury.
(c) The plaintiff had no current work capacity which was likely to continue indefinitely as a result of the injury to her cervical spine and the adjustment disorder with mixed anxiety and depressed mood.
Sensis issued proceedings in the Supreme Court seeking judicial review of the opinion of the First Panel. Ginnane J, who heard the application, determined that the First Panel had committed jurisdictional error by failing to address the mandatory consideration under s 5(1B)(d) of the Accident Compensation Act 1985, in considering the question whether the plaintiff’s employment was a ‘significant contributing factor’ to her cervical spine injury. Accordingly, his Honour granted relief in the nature of certiorari and mandamus setting aside the Certificate of Opinion of the First Panel and remitting the questions to a newly constituted Medical Panel.[1]
[1]Sensis Pty Ltd v Jones [2018] VSC 754.
As the consequence of that decision, on 26 February 2019, the medical questions were referred to a second Medical Panel (‘the Panel’), which comprised the first to fifth defendants, namely, Dr David Fish, Dr Armin Drnda, Associate Professor Sharon Van Doornum, Dr Christine Kotsios and Associate Professor Abdul Khalid. The Panel examined the plaintiff on two dates, 1 May and 20 May 2019.
On 20 June 2019, the Panel published its Certificate of Opinion (‘Opinion’), in which it responded to the five medical questions posed for its consideration as follows:
Question 1. What is the nature of the Plaintiff’s medical condition relevant to the following alleged injuries:
(a) injury to the cervical spine, including:
i. C4/5 and C6/7 posterior disc protrusions;
ii.Left C6 radiculopathy causing pain and sensory loss of the left upper extremity.
(b)secondary psychiatric injury, including anxiety and depression (“the alleged injuries”).
Answer:The Panel is of the opinion that Ms Jones is suffering from:-
(a)A small C4/5 disc protrusion and a moderate C6/7 disc protrusion with electrophysiological evidence of left C6 radicular change but without clinical evidence of radiculopathy.
(b)A Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic and Symptom Disorder with Predominant Pain.
Question 2. Was employment with the defendant a significant contributing factor to the alleged cervical spine injury?
Answer: No.
Question 3. In the period 22 November 2016 to date, did any physical condition of the plaintiffs cervical spine result from or was it materially contributed to by the alleged injuries?
Answer: No.
Question 4. In the period 22 November 2016 to date, did the plaintiff have:
a) a “current work capacity”; or
b) “no current work capacity”?
Answer:a) and b) The Panel is of the opinion that Ms Jones was not and is not now suffering from an injury that would prevent a return to her pre-injury work.
Question 5. If “yes” to Question 4(b):
(a)is the incapacity for work likely to continue indefinitely?
(b)does the plaintiff's incapacity for work result from or is it materially contributed to by the alleged injuries?
Answer: (a) Not applicable.
(b) Not applicable.
Panel’s reasons for opinion
In its reasons for opinion, the Panel set out, in a detailed summary, the information that the plaintiff told it concerning her duties with Sensis, the circumstances in which she suffered the injury, the treatment that she received for the injury, her present symptoms, her past history, and her psychological condition. The Panel’s reasons also set out information that the plaintiff gave it concerning her current living circumstances, daily activities, family and personal history, and current treatment.
The Panel then conducted a physical examination of the plaintiff. It noted its findings as follows:
·She walked with a left sided limp, dragging her left foot.
·She displayed jerking neck movements when range of motion was assessed in the neck.
·She displayed limited left rotation and left lateral flexion due to a pulling sensation over the left side [of] the neck.
·There was tenderness of the spinous processes of the upper to mid-thoracic spine.
·There was no cervical tenderness.
·Neurological examination revealed bilateral wrist drop with weakness of wrist flexion, extension, and finger movements.
·There was no weakness in the forearms or upper arms.
·There was no wasting or fasciculation.
·The Panel considered that the weakness was not due to organic injury.
·Reflexes were normal.
·Hoffman’s sign was negative.
·On sensory testing there was an extended glove loss of light touch and pin prick to the mid upper arm on the left and to the wrist on the right. This was global and not in a radicular distribution.
·Lower extremity examination revealed normal reflexes, no wasting and down going plantars. She displayed weakness of ankle flexion and extension and all toe movements in the left foot. There was no wasting of the lower extremities.
In its report the Panel then set out its impression of the mental state examination of the plaintiff. The Panel referred to a surveillance DVD that was available, noting that it depicted the plaintiff being able to grip a steering wheel and hold a cigarette in her left hand while driving, and carry bags in her right hand. The Panel concluded that those findings were not consistent with the plaintiff’s clinical presentation of significant weakness in both hands.
In forming its diagnosis, the Panel was unable to confirm the presence of any clinical evidence of left C 6 radiculopathy. It noted that the plaintiff complained of widespread pain involving both right and left upper extremities and the left lower extremity, and that there were non-anatomical findings of weakness, sensory change and dysfunction affecting the peripheral right and left upper extremities and left lower extremity. The Panel then noted ‘… these were not clinically consistent with a cervical spine injury.’ The Panel concluded that the plaintiff was suffering from a small C 4/5 disc protrusion and a moderate C 6/7 disc protrusion with electrophysiological evidence of left C 6 radicular change but without clinical evidence of radiculopathy. The Panel also concluded that the plaintiff suffered a moderately severe, chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Somatic Symptom Disorder with Predominant Pain.
The Panel then turned to the question whether the applicant’s employment was a ‘significant contributing factor’ to her injuries. The Panel noted the seven factors that it was required to take into account, in accordance with the definition of that term in s 5(1B) of the Accident Compensation Act. The Panel concluded as follows:
The Panel took into account these factors in Ms Jones and noted in particular the following:-
A.She was employed by the Defendant employer from 2008 until the date of onset of injury in 2013 (a total of 5 years).
B.The nature of the tasks performed were clerical and consultation with clients and a large amount of computer use. The Panel considered that the nature of this work was not of the type that was likely to lead to any aggravation, exacerbation, or deterioration of an underlying cervical disc injury.
C.The particular tasks of employment have been listed above and the Panel concluded that these were not of a nature that would lead to an injury to a cervical disc.
D.Ms Jones disc protrusions are common and would likely have occurred had the employment not taken place.
E. There are no known hereditary risks in Ms Jones.
F.The lifestyle of Ms Jones was active, and she attended a gym on a frequent basis although she had not partaken of this for 3 months leading up to the injury. These activities would be unlikely to aggravate any underlying constitutional condition.
G.Her activities outside the workplace including taking her children to many activities and engagement in dancing. Again these were unlikely to be associated with any increased risk of neck injury.
The Panel concluded on the basis of these considerations that Ms Jones had and has a constitutional condition of the cervical spine with no particular hereditary risks, no particularly [sic] lifestyle contributing factors, but that the duration, nature and particular tasks of her employment would not and did not contribute to the development of an injury and that the injury would probably have developed had the employment not taken place. The Panel accepted that Ms Jones has developed a moderately severe, chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Somatic Symptom Disorder with Predominant Pain as a consequence of her neck condition and persisting pain and limitation, however as Ms Jones’ employment was not a significant contributing factor to her neck condition her employment was not a significant contributing factor to her consequential psychiatric condition.
The Panel therefore concluded that Ms Jones’ employment was not a significant contributing factor to any alleged cervical spine injury or consequential psychiatric condition.
Grounds for review
The amended originating motion contains three grounds of review of the decision of the Panel. Those grounds contain a number of subparagraphs. In submissions filed on behalf of the plaintiff, the grounds have been conveniently reformulated into five grounds, namely:
a.First, the [Panel’s] decision-making was tainted by apprehended bias by reason of the conduct of Dr Fish which vitiates the Panel decision as a whole;
b.Second the conduct of Dr Fish, in failing or refusing to listen to, or excluding, information which the Plaintiff desired to bring to its attention about her work tasks, workstation and mechanism of injury, violated accepted principles of procedural fairness applicable to the [Panel];
c.Third, the [Panel] failed to afford to the Plaintiff procedural fairness, by reason of a matter arising “out of the blue” and failing to provide an opportunity to comment or provide further submissions or evidence;
d.Fourth, the Panel failed to accord natural justice or procedural fairness, or alternatively committed jurisdictional error, by failing or refusing to listen to, or excluding, information which the Plaintiff desired to bring to its attention about her work tasks, workstation and mechanism of injury, relevant to the mandatory considerations it was bound to consider in Section 5(1B), the AC Act (now found in Clause 25, Schedule 1, WIRC Act);
e.Fifth, that the [Panel] failed to provide adequate reasons.
I shall address each of those grounds in the same order.
The plaintiff’s affidavit
In support of ground 1, the plaintiff relies on matters deposed in an affidavit sworn by her in the proceeding on 24 September 2019, in which she described her experience when appearing before the Panel in the following way.
The plaintiff attended before the Panel on two separate occasions. On 1 May 2019, she was examined by the first defendant (Dr Fish), the second defendant (Dr Drnda) and the third defendant (Associate Professor Van Doornum). On the second occasion, on 20 May 2019, she was examined by the fourth defendant (Dr Kotsios) and the fifth defendant (Associate Professor Khalid). The first examination lasted about one hour. At the beginning of the examination, Dr Fish read a statement which generally accorded with the plaintiff’s description of the incident. Dr Fish then asked if that is what happened. The plaintiff answered in the affirmative, and then tried to explain more about what she was doing at the time of the injury, and how Sensis had blamed her chair and changed her workstation desk and chair after the incident. However, Dr Fish interrupted her saying ‘Just answer the question’. In her affidavit, the plaintiff said that due to Dr Fish’s behaviour generally throughout the examination, it was clear to her that he had formed a concluded view early on that her injury was not work related, and she deposed ‘from that time on it did not matter what I said.’
The plaintiff deposed that Dr Fish repeatedly and abruptly interrupted her at various times during the examination when she was attempting to answer questions from other members of the Panel, saying things like ‘You’re walking on a thin line’ or ‘You’re not helping yourself’. During the examination, the plaintiff was shown a surveillance DVD. While she was watching one of the clips, Dr Fish erroneously made a comment that the footage depicted the plaintiff holding a cigarette in her left hand while driving. The plaintiff and Dr Van Doornum both corrected him. However, Dr Fish’s view of what the footage depicted was repeated in the reasons of the Panel.
The plaintiff further deposed that while she was trying to tell the Panel about various changes that Sensis made to the workstation after she was injured, she was abruptly interrupted by Dr Fish. When she was describing how her chair was removed, Dr Fish stood up and yelled at her, saying ‘It’s not a work injury’. He then walked to the exit door, opened it and stood there waiting for the plaintiff to leave. While the plaintiff was trying to explain to Dr Van Doornum and Dr Armin how Sensis had adjusted the height of the desk and computer two weeks after the incident, Dr Fish rolled his eyes, left the room and walked down the corridor. After the plaintiff left the examination room, she walked down the corridor to the exit door in the main reception area. Dr Fish was waiting there. He opened the door. The plaintiff departed, saying something like ‘Goodbye, nice to meet you’. Dr Fish did not respond.
In the present proceeding, the solicitors acting for the first to fifth defendants, comprising the Panel, provided to the Court the usual letter that its clients would not appeal or be represented at the trial of the proceeding, in compliance with the dictum of the High Court in The Queen v The Australian Broadcasting Tribunal & Ors; Ex-parte Hardiman & Ors.[2] The letter further stated:
Despite the allegations made by the plaintiff in her affidavit sworn 24 September 2019, the Convenor of Medical Panels considers that, as a matter of policy, it is inappropriate for members of the panel to give evidence or make direct submissions, as this would be inconsistent with the Hardiman approach.
[2](1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ) (‘Hardiman’).
Ground 1: Apprehended bias — submissions
In support of ground 1, counsel for the plaintiff submitted that the conduct of Dr Fish, as described in the plaintiff’s affidavit, evidenced apparent or apprehended bias on behalf of Dr Fish, and hence the Panel. He submitted that that conduct was such that a fair-minded lay observer might reasonably apprehend that Dr Fish might not have brought an impartial mind to the resolution of the questions that the Panel was required to address.
Counsel submitted that the comment made by Dr Fish — ‘It’s not a work injury’ —was an expression of a concluded view by him. Counsel contended that that comment could not be regarded as an expression by Dr Fish of a provisional view on a medical question, about which he remained open minded and willing to consider the merits of what the plaintiff had to say. Rather, he submitted, in the context in which the comment was made, it constituted prejudgment by Dr Fish of the medical questions that had been referred to the Panel. Counsel relied on a number of matters in relation to that proposition. First, he referred to the manner and terms in which Dr Fish stated ‘It’s not a work injury’. Secondly, counsel referred to the context in which Dr Fish made the remark, and in particular how, during the examination of the plaintiff by the Panel, Dr Fish repeatedly and abruptly interrupted the plaintiff while she was attempting to answer other questions from the Panel. Thirdly, counsel noted that the remark by Dr Fish brought about a premature end to the examination. Fourthly, the remark was made by Dr Fish before he had had the opportunity to confer with the other two members of the Panel who were then present. Nor had he had the opportunity to confer with the two psychiatrists who examined the plaintiff on 20 May. In those circumstances, it was submitted that the firm expression of opinion by Dr Fish, before the Panel had completed its deliberations, constituted prejudgment by him, so as to give rise to a reasonable apprehension of bias on his behalf.
Counsel for the plaintiff further contended that the conduct of Dr Fish which gave rise to a reasonable apprehension of bias on his part, so infected the decision-making process of the Panel such that its decision should be set aside. In support of that proposition, counsel referred (inter alia) to Stollery v Greyhound Racing Control Board,[3] IW v City of Perth,[4] Isbester v Knox City Council[5] and McGovern v Ku-ring-Gai Council.[6]
[3](1972) 128 CLR 509, 516–517, 519 (Barwick CJ).
[4](1997) 191 CLR 1, 50–1 (Gummow J).
[5](2015) 255 CLR 135, 153 (Kiefel, Bell, Keane and Nettle JJ) (‘Isbester’).
[6](2008) 72 NSWLR 504 (‘McGovern’).
In response, senior counsel for the defendant commenced by submitting that I should not accept the evidence contained in the plaintiff’s affidavit. He noted that the plaintiff did not complain about the alleged conduct of Dr Fish before she attended the appointment with the psychiatrists on 20 May 2019, or before she received the Opinion of the Panel. At the mental state examination, the Panel identified the plaintiff as being angry and dissatisfied with the WorkCover process. Further, it was submitted, the plaintiff’s perception of how she was treated by Dr Fish was coloured by the outcome of the Panel process. In those circumstances, counsel submitted that, in the absence of any cogent or independent supporting evidence, I should not conclude that Dr Fish would have acted in the manner described by the plaintiff in her affidavit.
Counsel for the defendant further submitted that, in any event, the statement by Dr Fish, that the plaintiff had not suffered a work related injury, did not constitute prejudgment by him of an issue to be determined by the Panel. Counsel submitted that that expression, by Dr Fish, must be considered in the context of the role of the Panel. He noted that the Panel is not a court of law, and that its processes are relatively informal. Further, he submitted, at the time at which Dr Fish expressed the impugned comment, he was entitled to have then made up his mind about the plaintiff’s injury and the cause of it. Counsel noted that the statement was made towards the end of the examination process, by which time Dr Fish was entitled to hold and express such a view.
In reply, counsel for the plaintiff noted that the defendant had not sought to cross-examine the plaintiff in respect of the content of her affidavit. Thus, it was submitted, the plaintiff’s evidence was unchallenged and not contradicted. It was not inherently unreasonable or improbable. Accordingly, counsel submitted, there was no basis upon which the content of that affidavit might be disregarded.
Counsel for the plaintiff further contended that the comment made by Dr Fish effectively brought the examination of the plaintiff by the Panel, on 1 May 2019, to an end. At that point Dr Fish had not conferred with the other two Panel members who were then in attendance. He expressed the view in unequivocal and emphatic terms.
The plaintiff’s affidavit
In order to determine the first ground, it is necessary first to consider the issue raised by counsel for the defendant concerning the plaintiff’s affidavit.
As I have already mentioned, the solicitors for the first to fifth defendants (the Panel) notified the Court, and the other parties in the proceeding, that, based on the dictum of the High Court in Hardiman, the members of the Panel would refrain from responding to the allegations made by the plaintiff in her affidavit.
The members of the Panel were competent to give evidence in this proceeding, but they could not be compelled to do so.[7] Accordingly, as counsel for the plaintiff accepted, the absence of any affidavit from members of the Panel, filed on behalf of Sensis, could not give rise to a Jones v Dunkel inference.[8] On the other hand, as counsel for the plaintiff has pointed out, counsel for the sixth defendant could have sought leave to cross-examine the plaintiff on her affidavit. Such cross-examination could have been directed to a number of the matters relied on by counsel in his submissions. The plaintiff could have been questioned as to why she did not make any complaint about the conduct of Dr Fish when she attended for a psychiatric examination on 20 May 2019, or before the Panel published its Opinion. Further, the plaintiff could have been cross-examined on the basis that her perspective of what occurred in the examination was coloured by the difficult litigious process in which she had become involved, and the disappointing outcome of it. None of those propositions were put to the plaintiff, and accordingly it is inappropriate to take them into account in considering the submissions made by counsel for the defendant about the acceptability of the matters stated by the plaintiff in her affidavit.
[7]WIRC Act, s 272(1).
[8](1959) 101 CLR 298, 312 (Menzies J), 319-22 (Windeyer J).
The matters alleged by the plaintiff in her affidavit are quite serious. They impute to Dr Fish conduct which was quite unbecoming in the circumstances. Accordingly, it is appropriate to exercise some restraint and caution in considering the content of the affidavit. Nevertheless, the fact remains that the affidavit is uncontradicted and was not challenged in cross-examination. In those circumstances, there is no basis upon which I should not accept the matters deposed to by the plaintiff in her affidavit.[9]
[9]Hardy v Gillette [1976] VR 392, 396–7 (Anderson J); Read v Nerey Nominees Pty Ltd [1979] VR 47, 52 (Marks J); Duffy v Salvation Army (Victoria) Property Trust [2013] VSCA 253, [46] (Hansen and Tate JJA and Beach AJA).
Apparent bias — legal principles
It is well established that medical panels, which are charged with determining key issues that are in dispute in a particular case, are required to comply with the requirements of procedural fairness.[10] A central aspect of the principle of procedural fairness is that the Panel should act in a manner which is without bias, whether actual or apparent.[11] The well-established test for the establishment of apparent bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question which that decision-maker is required to decide.[12] In Ebner v Official Trustee in Bankruptcy,[13] the plurality expressed the test in the following terms:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.[14]
[10]Masters v McCubbery [1996] 1 VR 635, 644–5 (Winneke P); Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 (‘Wingfoot’), 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).
[11]CNY17 v Minister for Immigration & Border Protection [2019] HCA 50, [54] (Nettle and Gordon JJ) (‘CNY’).
[12]Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293–4 (Mason, Murphy, Brennan, Deane and Dawson JJ); Webb & Hay v R (1994) 181 CLR 41, 67–8 (Deane J); Johnson v Johnson (2000) 201 CLR 488, 508–9 [53] (Kirby J); CNY [2019] HCA 50, [56] (Nettle and Gordon JJ).
[13](2000) 205 CLR 337.
[14]Ibid, 344–5 [6]–[7] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted).
The attributes of the notional the ‘fair minded lay observer’ have been considered in a number of cases. They were conveniently summarised by Kirby J in Johnson v Johnson[15] in the following terms:
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[16]
[15](2000) 201 CLR 488.
[16]Ibid, 508–9 [53] (citations omitted). See also British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 305-6 [46] (French CJ).
While the same test applies both to courts and tribunals, nevertheless, in determining whether, in a particular case, a decision of a tribunal or other body has been affected by apparent bias, it is necessary to take into account the nature of the decision-maker, and the legal and factual context in which the decision-maker is required to make the decision in question. In Isbester,[17] Kiefel, Bell, Keane and Nettle JJ stated:
It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.[18]
[17](2015) 255 CLR 135.
[18]Ibid 146 [22] (citations omitted). See also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564–5 [187] (Hayne J); Wingfoot (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); CNY [2019] HCA 50, [58] (Nettle and Gordon JJ).
In the present case, the applicant has submitted that a fair-minded lay observer might reasonably apprehend that Dr Fish did not bring an impartial mind to the resolution of the questions before the Medical Panel, because he had prejudged the issues that were referred to the Panel for its consideration.
The principles, in relation to pre-judgment, have been discussed in a number of authorities. In Minister for Immigration and Multicultural Affairs v Jia Legeng,[19] Gleeson CJ and Gummow J stated the test in the following terms:
… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.[20]
[19](2001) 205 CLR 507.
[20]Ibid 531–2 [71]–[72] (citations omitted). See also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 90–1 (Deane J), 100 (Gaudron and McHugh JJ); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564 [185] (Hayne J); McGovern (2008) 72 NSWLR 504, 508-9 [15]–[18] (Spigelman CJ).
In submissions, senior counsel for the defendant did not take issue with the proposition that when Dr Fish stated ‘It’s not a work injury’, he was then expressing his concluded view. Rather, counsel submitted that at that stage Dr Fish was entitled to have his mind made up on the critical issue as to whether the plaintiff’s employment was a significant contributing factor to her injuries.
In my view, counsel for the defendant was correct to accept that the impugned comment, made by Dr Fish, was the expression by him of his concluded opinion. Making due allowance for an element of overstatement by the plaintiff in her affidavit, nevertheless the view, as described by her, was expressed by Dr Fish in unequivocal and emphatic terms. The conduct of Dr Fish, that preceded that statement, certainly gave rise to the perception, if not the reality, that Dr Fish was not satisfied that the injuries complained of by the plaintiff were related to her employment. Further, and significantly, after making the impugned comment, Dr Fish in effect disengaged from the examination being undertaken by the Panel, opened the door of the room, and waited for the plaintiff to leave. Based on those matters, I am satisfied that the impugned comment made by Dr Fish was the expression by him of a concluded view that he had reached.
The critical question, then, is whether, at the stage at which that view was expressed by Dr Fish, it constituted the impermissible prejudgment by him of the issue that was to be determined by the Panel.
In considering that question, it is important to bear in mind that pursuant to s 302(1) of the WIRC Act, the function of a Medical Panel is ‘to give its opinion’ on any medical question that is referred to it. That is, the statute contemplates that the Panel will act as a whole in developing a joint collaborative opinion.
In the present case, the actual composition of the Panel is relevant. The first defendant, Dr Fish, is described in the Certificate of Opinion as a specialist occupational and environmental physician and a specialist public health physician. The second defendant, Dr Drnda is described as a specialist neurosurgeon, the third defendant, Associate Professor Van Doornum, is described as a specialist rheumatologist, and the fourth and fifth defendants, Dr Kotsios and Associate Professor Khalid, are described as specialist psychiatrists. It is understandable that, in light of the injuries sustained by the plaintiff, and the conditions complained of by her, that the Panel was constituted by that grouping of specialists. The nature of the injuries complained of by the plaintiff were such as to make relevant the respective areas of expertise of each of the five practitioners who were selected to constitute the Panel. Under s 302 of the WIRC Act, it was necessary for those five experts to pool their expertise, in order to form a composite joint opinion as to the five questions that were referred to it.
In that context, it is significant that Dr Fish expressed his concluded view about the plaintiff’s injury, and the cause of it, before he had conferred with the other members of the Panel, and in particular with Dr Drnda and Associate Professor Van Doornum, with whom he had jointly examined the plaintiff on 1 May 2019. While it might have been appropriate for Dr Fish to have formed a firm preliminary view as to the particular issues in question — and, in particular, the issue raised by question 2 — nevertheless the process of collaboration and joint decision-making, contemplated by the WIRC Act, required that he keep an open mind on that issue, until he had had the opportunity to confer and discuss the matters with Dr Drnda and Associate Professor Van Doornum.
In addition, there is force in the submission made on behalf of the plaintiff that the evidence of the two specialist psychiatrists, Dr Kotsios and Associate Professor Khalid, was important, because, in the upshot, they diagnosed the plaintiff to suffer (inter alia) from a somatic and symptom disorder with predominant pain. Their expertise might have been relevant to inform the decision by the Panel, and in particular Dr Fish, Dr Drnda and Associate Professor Van Doornum, as to the nature and extent of the organic injury suffered by the plaintiff, and as to the relationship between that injury and the plaintiff’s employment.
For those reasons, I do not accept the submission advanced on behalf of the defendant that, at the stage at which Dr Fish made the impugned comment, he was entitled to have made up his mind and formed a concluded view as to the questions that the Panel was required to consider, and, in particular, in relation to the critical question (question number 2) whether the plaintiff’s employment with the defendant was a significant contributing factor to the alleged cervical spine injury. The formation and expression by Dr Fish, at that stage, of a concluded view on that issue amounted to impermissible prejudgment by Dr Fish as to a critical question in issue, so as to give rise to a reasonable apprehension by a fair-minded lay observer that Dr Fish might not have brought an impartial mind to the resolution of the questions that had been referred to the Medical Panel for its deliberation.
For those reasons, I am persuaded that the conduct of Dr Fish, in that way, evidenced apparent or apprehended bias on his part. Senior counsel for the defendant correctly accepted that if the plaintiff succeeded in establishing that the decision-making of Dr Fish was affected by apprehended bias, then the Opinion of the whole Panel was liable to be set aside. In my view, that concession was correct. Dr Fish played an important role in the work and deliberations of the Panel. In particular, he chaired the Panel, and it is evident that he played a significant and central role in the examination undertaken by it on 1 May 2019, and in the formulation of the Opinion by the Panel on the questions that had been referred to it.
It follows, accordingly, that the first ground of the application, relied on by the plaintiff, must succeed.
Ground 2 — lack of procedural fairness
The second ground is directed to the conduct of Dr Fish in (it was submitted) failing (or refusing) to listen to, and in excluding, information sought to be provided by the plaintiff about her work tasks, workstation and mechanism of injury. In respect of that ground, counsel for the plaintiff referred, in particular, to the manner in which Dr Fish, on more than one occasion, interrupted the plaintiff when she sought to explain to the Panel the changes that were made to her workstation after she sustained her injury. Counsel for the plaintiff submitted that those matters were relevant to the determination of the questions that were referred to the Panel. Thus, it was submitted, the refusal by Dr Fish to permit the plaintiff to explain, and elaborate on, those matters to the Panel constituted a breach of procedural fairness.
In response, counsel for the defendant submitted that the matters, which the plaintiff sought to explain to the Panel, were not relevant to the questions that had been referred to the Panel for its consideration. Counsel noted that the issue before the Panel was causation of the alleged injury, and not whether the defendant had been negligent. Counsel contended that subsequent alterations to a system of work did not logically inform the issue of the mechanism or causation of the plaintiff’s injuries.
In my view, the matters on which the plaintiff sought to inform the Panel, but was precluded from doing so by Dr Fish, were relevant to the issue that had been referred to it for its consideration, and, in particular, the question of the cause of the injuries to her cervical spine. Evidence as to changes in a workplace, after a worker has been injured, is commonly adduced in common law trials. While that evidence is primarily directed to the issue of negligence, it is not unrelated also to the issue of causation. In particular, changes in work arrangements or in a workplace, made after the occurrence of an injury to a worker, may demonstrate an inadequacy or deficiency in the work arrangements or workplace at the time of the injury, and thus assist in the proof by the injured worker on the issue of causation.
In the present case, it was relevant for the Panel to understand the changes that had taken place in the plaintiff’s work arrangements and in her workstation, as those matters were potentially relevant to the Panel’s consideration of whether the nature of the workstation and work arrangements had played a role in contributing to the injury sustained by the plaintiff. As I shall discuss in considering the next ground, the materials, that were before the Panel, raised a clear issue as to how the particular work undertaken by the plaintiff, and her workplace, could have contributed to the injury to her cervical spine. In that context, it was material, and indeed important, for the plaintiff to be able to explain in some detail to the Panel the nature of her work circumstances, and to be able to compare them with the improvements that were made in that respect after she had suffered her injury.
For those reasons, I am persuaded that, by precluding the plaintiff from explaining those matters to the Panel, Dr Fish infringed the plaintiff’s right to have a fair hearing before the Panel, and thus her right to procedural fairness was breached. For those reasons, I would uphold the second ground relied on by the plaintiff.
Third ground — finding of causation ‘out of the blue’
The third ground, relied on by the plaintiff, is directed to the Panel’s second, third and fourth conclusions in respect of the question whether the plaintiff’s employment was a ‘significant contributing factor’ to her injuries. Namely, its conclusions: that the nature of the tasks performed by the plaintiff were not of a type that was likely to lead to any cervical disc injury; that the particular tasks of her employment were not of a nature that would lead to an injury to a cervical disc; and that disc protrusions are common and it is likely they would have occurred had the employment not taken place.
In support of ground 3, counsel for the plaintiff submitted that the findings so made by the Panel were not agitated by either party. In particular, it was submitted, the submissions made by the defendant to the Panel did not address any of those matters. Rather, the defendant’s submissions were that there was no discernible mechanism of injury to the plaintiff’s cervical spine, and that her radiological findings were consistent with the evolution of degenerative disease with the nature of her duties being unlikely to account for any aggravation of that condition.
In response, counsel for the defendant submitted that the question of the connection between the plaintiff’s workplace, and her injury, was raised in a number of the materials that were before the Panel, including the medical opinions of Dr Malcolm Brown (occupational physician), Dr Michael Bloom (occupational and environmental physician) and Mr Ian Jones (orthopaedic surgeon). It was submitted that the plaintiff had a fair opportunity to put material to the Panel in relation to the connection between the workplace and her injury. Thus, it was submitted, the findings made by the Panel, which are sought to be impugned, were squarely ‘in the ring’ and were not made ‘out of the blue’.
The submissions made by the defendant on this ground are correct. The materials, that were put before the Panel, put squarely in issue the question of any potential cause of the injury to the plaintiff’s cervical spine. The submissions, made by the defendant to the Panel, expressly raised that issue, and referred specifically to the reports of Dr Bloom, Dr Brown and Mr Jones in that respect.
In particular, Dr Bloom noted in his report that the plaintiff had not described any specific incident or traumatic event that had precipitated the onset of her symptoms, and at the time of the onset of her symptoms, the plaintiff was simply at work at her desk undertaking touch-typing when she reached for the note pad with her left hand. Dr Brown concluded that there was no convincing evidence that the plaintiff’s employment had been a materially contributing factor to her medical condition. He said:
There is no clear evidence that employment has caused any injury or medical condition. Ms Jones was merely working in an office when her symptoms occurred. There does not appear to be any feasible mechanism of an injury at work.
Mr Jones similarly stated:
The circumstances of the patient’s reported injury appeared to be exceedingly minor, there being only reference to some slight turning of the patient’s neck to the left side to view her note book. There was no reported lifting or extreme of neck movement involved. It would seem as though the disc prolapse occurred at the time of this incident, although given the circumstances, was likely a spontaneous event.
In those circumstances, it could not be maintained that the Panel expressed its conclusion ‘out of the blue’ when it stated that the nature of the tasks performed were not of a type that were likely to lead to injury, and that her particular tasks were not of a nature which would cause injury to the cervical spine. Equally, it could not be maintained that the plaintiff was caught by surprise by the Panel’s observation that disc protrusions are common and that the injury sustained by the plaintiff would likely have occurred had the employment not taken place. The first aspect of that observation — that disc protrusions are common — is a corollary of the statements made by Dr Bloom, Dr Brown and Mr Jones, and indeed might be regarded as being matters of common knowledge in any event. The critical issue before the Panel was whether the plaintiff’s employment played a causative role in her injuries. Its conclusion, that the plaintiff’s injury would likely have occurred had the employment not taken place, was clearly directed to that issue.
For those reasons, the third ground relied on by the plaintiff should not succeed.
Ground 4 — failing to correctly apply s 5(1B) of the Accident Compensation Act 1985
In support of the fourth ground, counsel for the plaintiff submitted that the Medical Panel failed to accord the plaintiff procedural fairness, or alternatively committed jurisdictional error, by failing to take into account matters which the plaintiff had sought to bring to its attention that were relevant to the mandatory considerations that it was bound to consider under s 5(1B) of the Accident Compensation Act. In particular, counsel submitted that in order to consider those matters, the Panel was required to, but did not, refer to and consider the following three matters:
(a) The occupational health and safety concerns raised by the plaintiff concerning her workstation.
(b) The nature of the work performed by the plaintiff, and in particular the long hours which involved prolonged sitting at a desk that was too low.
(c) The changes which the plaintiff sought to inform the Panel had been made to her workplace, in particular to her seating arrangements and her desk, after her injury.
In response, counsel for the defendant noted that, in its reasons, the Panel specifically addressed each of the seven matters that it was required to consider under s 5(1B) of the Accident Compensation Act. It was submitted that the matters, referred to by counsel for the plaintiff, were not matters which the Panel was bound to take into account in reaching its decision.
An administrative body, including a medical panel, may fall into jurisdictional error if it ignores or fails to take into account a consideration which is relevant to its decision. In Minister for Aboriginal Affairs v Peko-Wallsend Limited,[21] Mason J set out the relevant principles where it is asserted that the decision of an administrative decision-maker has failed to take into account a material consideration.[22] Those principles may be shortly stated as follows. A relevant consideration is one which the decision-maker is ‘bound to take into account in making (the) decision’.[23] If the factor is not expressly specified in the legislation, it must be implied from its subject matter, scope and purpose. A failure to take into account a particular consideration will not necessarily result in the setting aside of the decision; a particular factor might be so insignificant that the failure to take it into account could not have materially affected that decision. In determining whether the administrative decision-maker has failed to take into account a relevant consideration, the Court must bear in mind the limits of the role of the Court in reviewing the decision of the administrative decision-maker. In particular, it is not the function of the Court to substitute its own decision for that of the decision-maker.
[21](1986) 162 CLR 24.
[22]Ibid 39–41.
[23]Ibid 39 (emphasis omitted).
As I have already concluded, Dr Fish, by his conduct, deprived the plaintiff of her right to procedural fairness, by precluding her from describing to the Panel the deficiencies of her workplace and the changes that had been made to it since the occurrence of her injury. Those matters, which the plaintiff sought to convey to the Panel, were relevant for the determination of the central issue of whether the plaintiff’s employment was a significant contributing factor to her cervical spine injury. Sections 5(1B)(b), (c) and (d) of the Accident Compensation Act provide that, in determining whether a worker’s employment was a significant contributing factor to the injury, the decision-making body must take into account (inter alia) the nature of the work performed, the particular tasks of the employment, and the probable development of the injury occurring if the employment had not taken place. The plaintiff’s description of her workplace, and in particular of any deficiencies in it, and of her system of work, were clearly relevant to the Panel’s consideration and evaluation of each of those matters, particularly in light of the views expressed by Dr Bloom, Dr Brown and Mr Jones as to the lack of any apparent mechanism of injury inherent in the plaintiff’s work or her workplace. In the context of those reports, which were before the Panel, and of the issue which the Panel was required to decide, it could not, in my view, be fairly considered that the matters, that the plaintiff sought to describe to the Panel and was precluded from doing so by Dr Fish, were so insignificant that the failure to take them into account could not have materially affected the decision of the Panel.
As the plaintiff was prevented from communicating those matters to the Panel, a fortiori, the Panel could not have taken them into account in reaching its conclusions on the questions that were referred to it. It follows that the fourth ground, relied on by the plaintiff, should also succeed. The failure of the Panel to take into account the relevant matters, which the plaintiff had sought to communicate to it, constituted jurisdictional error by the Panel.
Fifth ground — adequacy of reasons
Under the fifth ground, the plaintiff submitted that the Panel failed to provide adequate reasons for the Opinion formed by it. In particular, it was submitted that the Panel failed to provide adequate reasons for the following conclusions drawn by it:
(a) The work tasks performed by the plaintiff were clerical and involved large amounts of computer use which were not of the type that was likely to lead to any aggravation, exacerbation or deterioration of an underlying cervical disc injury.
(b) That the plaintiff’s disc protrusions are ‘common’.
(c) The plaintiff’s disc protrusions were consistent with a finding that her cervical spine injury was not work-related, and that her employment was not a significant contributing factor to development of those conditions.
(d) The plaintiff’s cervical disc protrusions are common and would likely have occurred had the employment not taken place. In that respect counsel drew attention to the plaintiff’s young age, her lack of previous complaints of any neck pain, the lack of any hereditary risk of cervical disc injury, the lack of any particular lifestyle that might have contributed to her underlying cervical disc condition, and the finding by the Panel that the plaintiff’s activities outside of the workplace were unlikely to be associated with any increased risk of a neck injury.
Counsel for the plaintiff submitted that the Panel’s reasoning in respect of each of those four matters was not disclosed, and was left to speculation. Accordingly, it was submitted that the Panel failed to provide adequate reasons in accordance with s 313(2) of the WIRC Act.
In response, counsel for the defendant submitted that the reasons of the Panel were adequate. Counsel noted that the Panel’s reasons methodically outlined the matters found by the Panel on examination, including the plaintiff’s history, her description of her injury, her current symptoms, her previous activities and past history. The Panel set out, in some detail, its findings on both physical examination and mental state examination of the plaintiff. It summarised the medical tests and investigations (including the radiology) that was available to the Panel, and the content of a surveillance DVD that was viewed by the Panel in the presence of the plaintiff. Counsel submitted that, under the heading ‘Medical Panel’s Analysis and Conclusions’, the Panel set out, in detail and sufficiently, its diagnosis both as to the plaintiff’s physical and psychiatric condition, and stated the reasons why it did not conclude that the plaintiff’s employment was a significant contributing factor to her injury.
Section 313(2) of the WIRC Act requires a Medical Panel, to whom a medical question is referred, to give a certificate of its opinion and a written statement of reasons for that opinion. The principles, relating to the adequacy of such reasons, have been discussed in a number of decisions. They were conveniently set out in the decision of the High Court in Wingfoot[24] and the decisions of the Court of Appeal in Gamble v Emerald Hill Electrical Pty Ltd[25] and Gruma Oceania Pty Ltd v Bakar.[26]
[24](2013) 252 CLR 480.
[25](2012) 38 VR 45 (‘Gamble’).
[26][2014] VSCA 252 (‘Gruma Oceania’).
For the purposes of deciding the issues in dispute in the present case, the relevant principles may be summarised as follows:
(1)While the panel is required to observe the principles of procedural fairness, nevertheless, being a panel comprised of relevant experts, its function is not to decide the questions referred to it by adjudicating between the competing submissions made by the parties and the competing medical opinions placed before it. The function of a medical panel is ‘neither arbitral nor adjudicative’.[27] Rather, its function in each case is to form and give its own opinion on the questions referred to it, applying its own medical experience and expertise.[28]
(2)The written statement of reasons by the panel must be sufficient to explain the actual path of reasoning by which the panel in fact arrived at the opinion that it formed in sufficient detail to enable a Court to discern whether the opinion does or does not involve an error of law.[29]
(3)A medical panel, in explaining its path of reasoning, is not required to explain why it did not reach a particular countervailing opinion, even if that different opinion was contained in a medical report or other material put before the panel.[30]
(4)In determining whether a panel’s written statement of reasons is adequate, the Court should adopt a beneficial construction, taking care not to adopt an approach that is excessively attuned to the perception of error by the panel.[31]
(5)If a statement of reasons by a medical panel is insufficient to explain the path of reasoning of the panel in accordance with the above principles, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari may be made removing the legal effect of that opinion.[32]
[27]Gruma Oceania [2014] VSCA 252, [25] (Neave, Santamaria and Kyrou JJA).
[28]Wingfoot (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); Gruma Oceania [2014] VSCA 252, [25] (Neave, Santamaria and Kyrou JJA).
[29]Wingfoot (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ); Gruma Oceania [2014] VSCA 252, [26] (Neave, Santamaria and Kyrou JJA).
[30]Wingfoot (2013) 252 CLR 480, 502 [56] (French CJ, Crennan, Bell, Gageler and Keane JJ); Gruma Oceania [2014] VSCA 252, [27] (Neave, Santamaria and Kyrou JJA).
[31]Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ); Gamble (2012) 38 VR 45, 48 [9], 51 [20] (Maxwell P and Cavanough AJA); Gruma Oceania [2014] VSCA 252, [29] (Neave, Santamaria and Kyrou JJA).
[32]Wingfoot (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
The starting point, for considering the plaintiff’s submissions in respect of the fifth ground, is that the plaintiff does not take issue with the adequacy of the reasons given by the Panel for the diagnosis formed by it as to the plaintiff’s physical injuries and her psychiatric condition. The Panel noted that notwithstanding the radiological and electrophysiological findings of left C 6 radiculopathy, the Panel on examination was not able to confirm the presence of any clinical evidence of left C 6 radiculopathy. The Panel noted that the plaintiff complained of widespread pain which did not have an anatomical distribution, and it noted that there were non-anatomical findings of weakness, sensory change and dysfunction affecting the peripheral right and left hands and left foot. Thus, the Panel considered that those complaints of pain and injury by the plaintiff were not clinically consistent with a cervical spine injury. In reaching that conclusion, the Panel noted that its observations of the plaintiff, in the surveillance DVD viewed by it, were not consistent with her clinical presentation of significant weakness in the left and right hands.
The reports of the examining psychiatrists, that were placed before the Panel, and the Panel’s own mental state examination, demonstrated that the plaintiff’s psychiatric condition — a moderately severe chronic adjustment disorder with mixed anxiety and depressed mood and a somatic symptom disorder with predominant pain — were secondary to, and a consequence of, her neck injury and the subsequent changes in her life.
It is in that context that the Panel’s reasons, for concluding that the plaintiff’s employment was not a ‘significant contributing factor’ to her injury, must be construed. The particular aspect of the reasons, that are subject to the fifth ground, are those contained in subparagraphs (B), (C) and (D) of its conclusions, namely, that the nature of the tasks performed by the plaintiff were not of a nature that was likely to lead to cervical disc injury, and that disc protrusions of the kind suffered by the plaintiff are common and would probably have occurred if the plaintiff’s employment had not taken place.
The Panel, in its statement of reasons, set out the particular duties undertaken by the plaintiff and the circumstances in which she first complained of pain. In essence, the Panel recorded in its statement of reasons that the plaintiff’s role involved consulting with clients face to face, by email or telephone, and that the plaintiff had spent long hours working on a computer. It then recorded the experience by the plaintiff of the sudden onset of pain over the left posterior shoulder blade, on 20 March 2013, when she turned to the left and then turned back to her computer. The Panel noted the plaintiff’s description of her usual activities before the injury, and that she had not suffered any back pain or injury before that date. The statement by the panel that the nature of the tasks performed by the plaintiff — and as recorded in its reasons — were not of a kind likely to have led to aggravation, exacerbation or deterioration of any underlying cervical disc injury were plainly expressions of opinion by the members of the Panel, based on their clinical experience and expertise. In the context in which that statement occurred in the statement of reasons, it was not necessary for the Panel to elaborate on that observation.
Similarly, the proposition stated by the Panel in its reasons — that the plaintiff’s disc protrusions are common and would likely have occurred had employment not taken place — was plainly an expression by the Panel drawn from its experience and expertise. That is, the Panel expressed the view that, in its experience, the kind of disc protrusions that the plaintiff had been found, on radiological examination, to have, are common and are the kind of injury that may occur without a person engaging in employment tasks that might have precipitated them. It is self-evident, from the Panel’s Opinion, that the Panel considered that that proposition was applicable notwithstanding the relatively young age of the plaintiff, and notwithstanding that she did not have any particular hereditary or lifestyle risks, and that she had not had any previous experience of neck pain or dysfunction.
In that way, the Panel sufficiently disclosed its path of reasons for the conclusion that the plaintiff’s work was not a significant contributing cause of her injuries. For those reasons, I am not persuaded that the statement of reasons by the Panel was inadequate. Accordingly, the plaintiff does not succeed on the fifth ground.
Summary of conclusions
For the foregoing reasons, I have concluded that the plaintiff has established relevant error by the Panel in its decision-making in respect of the first, second and fourth grounds relied on by counsel for the plaintiff in submissions. That is, I have concluded:
(1) The Panel’s decision-making was tainted by apprehended bias which vitiated the decision of the Panel.
(2) The conduct of Dr Fish, in failing or refusing to listen to information which the plaintiff desired to communicate to the Panel about her work tasks, work station and mechanism of injury, was a breach of the principles of procedural fairness.
(3) The Panel failed to address matters that were relevant to its mandatory considerations contained in s 5(1B)(b) of the Accident Compensation Act.
In those circumstances, I shall make the following orders:
(1) The decision of the Panel made 20 June 2019 be set aside.
(2) The questions, that were referred to the Panel, be referred back to the Convenor of Medical Panels for determination by a differently constituted panel.
SCHEDULE OF PARTIES
S ECI 2019 02959
BETWEEN:
| SABRINA JONES | Plaintiff |
| - and - | |
| DR DAVID FISH | First Defendant |
| DR ARMIN DRNDA | Second Defendant |
| ASSOCIATE PROFESSOR SHARON VAN DOORNUM | Third Defendant |
| DR CHRISTINE KOTSIOS | Fourth Defendant |
| ASSOCIATE PROFESSOR ABDUL KHALID | Fifth Defendant |
| SENSIS PTY LTD | Sixth Defendant |
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