NZI Workers' Compensation v Mutlu Unalan
[1999] VSC 234
•28 June 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 4009 of 1999
IN THE MATTER of an appeal under section 109 of the Magistrates Court Act 1989
| NZI WORKERS’ COMPENSATION (VICTORIA) LIMITED | Appellant |
| V | |
| MUTLU UNALAN | Respondent |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 1999 | |
DATE OF JUDGMENT: | 28 June 1999 | |
CASE MAY BE CITED AS: | NZI Workers’ Compensation v Mutlu Unalan | |
MEDIA NEUTRAL CITATION: | [1999] VSC 234 | |
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| WORKERS’ COMPENSATION – Accident Compensation Act 1985 – Appeal from Magistrates’ Court – Pre-1992 injuries – “Medical questions” – Whether the Court is required to adopt the opinion of a medical panel on questions referred to it – Whether the Court is entitled to seek clarification of the opinion of a medical panel – Whether the Court is required to adopt the clarification of the opinion of a medical panel. Accident Compensation Act 1985, Reprint No. 1; ss 5, 98(1) ACC and VWA v Casse (unreported, County Court of Victoria, Judge Just, decided 29 March 1993) |
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr MF Fleming | Purves Clarke Richards |
| For the Respondent | Mr LR Boyes QC with Mr AG Lupton | De Marco & Co |
HER HONOUR:
Introduction
This is an appeal from a final order made on 10 December 1998 in the Magistrates’ Court at Melbourne, whereby the Court ordered on the complaint of the respondent (“Ms Unalan”) that the appellant (“NZI”) pay to her the sum of $7500.00, “representing 10% of the loss and 5% of the Table and [an] allowance for pain and suffering”, as well as costs and reserved costs to be taxed on Scale “D”.
NZI is the authorised insurer of Ms Unalan’s employer. On 17 January 1995 Ms Unalan claimed compensation pursuant to section 98 of the Accident Compensation Act 1985 (“the Act”) in respect of injuries arising out of or in the course of her employment whilst performing duties for the employer at the premises of the employer on 25 May 1987. The claimed injuries were described as:
Injury to the back involving soft tissue muscular and ligamentous structures;
Production, aggravation, acceleration, exacerbation or deterioration of degenerative spinal condition;
Injury to the neck;
Injury to the left leg;
and were claimed to “have resulted in permanent impairment and/or loss of use for industrial purposes and . . . pain and suffering for the plaintiff”.
On 8 February 1999, Master Evans ordered that the questions of law shown by NZI to be raised by the appeal were:
(a)Whether the learned Magistrate erred in law in failing to adopt pursuant to section 45(1)(c) or section 68(4) of the Act the medical panel opinion dated 26 March 1998 that the medical condition relevant to the injury was a temporary aggravation of underlying idiopathic scoliosis.
(b)Whether the learned Magistrate erred in law in failing to adopt pursuant to section 45(1)(c) or section 68(4) of the Act the medical panel opinion dated 26 March 1998 (as explained by the letter of the presiding member of the medical panel dated 8 July 1998) that the loss of use of the Plaintiff’s back and left leg were not work related.
(c)Whether, once the medical panel opinion dated 26 March 1998, was received by the Court, and the Defendant had moved that the opinion (as explained by the letter of the presiding member of the medical panel dated 8 July 1998) be adopted pursuant to section 45(1)(c) or section 68(4) of the Act, the Court was then obliged to so do forthwith, by [dismissing] the Plaintiff’s complaint.
(d)Whether, once the medical panel opinion dated 26 March 1998 was received by the Court, and the Defendant had moved that the opinion be adopted pursuant to section 45(1)(c) or section 68(4) of the Act, the Court was entitled to refuse to immediately so adopt the opinion and, instead, receive further evidence adduced by the Plaintiff as to the Plaintiff’s entitlement pursuant to section 98 of the Act.
(e)Whether the medical panel opinion dated 24 November 1998 when adopted pursuant to section 45(1)(c) or section 68(4) of the Act bound the Court to make an award of compensation pursuant to section 98 of $6,477.90.
(f)Whether the medical panel opinion dated 24 November 1998 when adopted pursuant to section 45(1)(c) or section 68(4) of the Act bound the Court such that it was not permitted to make further award of $1,022.10 purportedly pursuant to section 98(5) of the Act.
(g)Whether the Court was entitled to take into account in determining the Plaintiff’s entitlement under section 98 of the Act the further evidence adduced by the Plaintiff.
Section 67(1B) of the Act now reads:
(1B) This Division as amended by section 21 of the Accident Compensation (Miscellaneous Amendment) Act 1997 applies to and in respect of the opinion of a Medical Panel given on a medical question referred to a Medical Panel on or after the commencement of that section.
As to questions (a), (b), (c) and (d), it is not in issue that, by virtue of that provision, as the questions were referred to the medical panel on 17 December 1997, i.e. before the coming into operation of section 21 of the Accident Compensation (Miscellaneous Amendment) Act 1997 on 23 December 1997, section 68(4) of the Act does not govern the use to be made of the opinion of the medical panel and accordingly the references in the questions to that provision may be ignored.
As to questions (e), (f) and (g), it was common ground that they had been overtaken by the recent decision of Ashley J in Community Services Victoria v Bradbury [1999] VSC 32, delivered on 22 February 1999, after the order made by Master Evans in this proceeding. The effect of that decision was that, assuming that those questions stood alone, the answers to them should be:
(e) Yes, (f) Yes and (g) No.
Counsel for each party indicated that he wished to adopt for present purposes, without taking time to re-argue, the submissions made on behalf of the corresponding party in Bradbury, but that he did not expect this Court to do other than find in accordance with that decision. I shall therefore say no more about those questions.
The evidence before this Court was contained in an affidavit of the solicitor for the appellant and exhibits thereto. That material does not disclose what, if any, reasons were given in the Magistrates’ Court for any of the rulings nor for the final orders.
The facts
The proceeding came on for hearing on 17 December 1997. No evidence was called. The magistrate then seized of the matter (“the first magistrate”) agreed to an application by NZI that certain proposed questions (“the questions”) be referred to a medical panel for opinion pursuant to section 45 of the Act. The questions were:
1.What is the nature of the plaintiff’s medical condition relevant to the injuries alleged in paragraph 3 of the statement of claim?
2.Could the incident on 27 [sic] May 1987 possibly have been a contributing factor to the injuries alleged in paragraph 3 of the statement of claim?
3.What is the extent of the loss of use of the plaintiff’s:
(a)back;
(b)neck;
(c)left leg
(NOT utilising the AMA Guides) resulting from any injury suffered on 27 [sic] May 1987?
On 26 March 1998, a medical panel of two members certified its opinion in the following terms:
1.What is the nature of the plaintiff’s medical condition relevant to the injuries alleged in paragraph 3 of the statement of claim?
It is the opinion of the Panel that the worker suffered a temporary aggravation of underlying idiopathic scoliosis, causing an exacerbation of low back pain.
2.Could the incident on 27 May 1987 possibly have been a contributing factor to the injuries alleged in paragraph 3 of the statement of claim?
In the opinion of the Panel, yes.
3.What is the extent of the loss of use of the plaintiff’s:
(a)back
(b)neck
(c)left leg
In the opinion of the Panel there is a loss of use of the plaintiff’s:
(a)back 10%
(b)neck zero percent
(c)left leg 5%
It will be noted that the setting out of question 3 in the opinion is incomplete, and thus it cannot be assumed that the panel was answering the question as put; that is, as to the extent of the loss of use “resulting from any injury suffered on 27 [sic] May 1987”.
It appeared from the material available at the hearing of this matter that the opinion of the medical panel had been given outside the time provided for by section 68(1) of the Act. However, after the hearing, counsel for NZI, with the consent of counsel for Ms Unalan, produced affidavit evidence that the time had been extended in writing by the first magistrate in the exercise of the power conferred by that provision. The magistrate’s letter, responding to a request from the Convenor of Medical Panels read, so far as relevant:
The statutory time limit for the obtaining of the Medical Panel’s opinion and Certificate is extended for such a period as will enable this to be done.
Accordingly, it is not necessary for me to consider the submissions made as to the time of giving of the opinion, and I do not do so.
A perceived inconsistency between the opinions given in answer to questions 1 and 3 was drawn to the attention of the first magistrate, who raised the matter with the Convenor of Medical Panels. In due course, a response dated 8 July 1998 (“the clarification”) was received from the presiding member of the panel in the following terms:
The Panel has answered the questions on an extremely narrow base, responding specifically to the wording of the questions.
The Panel did not take the liberty of assuming that the extent of loss of use requested in question 3, was work-related. The underlying scoliosis in this lady does represent an impairment, with a consequent loss of use. However, this is not work-related. The same would apply to the industrial loss of use with respect to the left leg.
Following the receipt of the clarification, the matter was relisted before another magistrate (“the second magistrate”). Counsel for the plaintiff tendered one medical report only, while the defendant relied on the opinion of the medical panel, including the clarification. After submissions by counsel, the second magistrate ruled that he should not look at the clarification, and that the questions were invalid. He gave leave to counsel for NZI to reopen his case in order to make a fresh application for a question to be put to a medical panel. This was done and two questions referred (“the second questions”), which read:
What is the level of impairment (NOT utilising the AMA Guides), if any, of the Plaintiff in respect of the:-
a. Back;
b. Neck;c. Left Leg.
If yes to any of the above, whether or not that impairment is permanent in respect of the:-
a. Back;
b. Neck;c. Left Leg.
A second medical panel was convened, differently constituted from the first, which replied on 24 November 1998:
Q1 In the Panel’s opinion the level of impairment (not utilising the AMA Guides) of the Plaintiff in respect of:-
[a] back is 10%
[b] neck is 0%[c] left leg is 5%
In the Panel’s opinion the impairment of the back and left leg is permanent.
On 10 December 1998, the second magistrate gave judgment as set out in paragraph 1 above. It was suggested by Mr Fleming, and seems probable, that the amounts were determined by rendering the percentages given by the two medical panels into sums calculated by reference to the Table to section 98(1) and adding an amount for pain and suffering under section 98(5) as it then stood to bring the total up to $7500. However, nothing turns on that for present purposes.
Legislation
The applicable provisions of the Act at the relevant times read as follows, so far as relevant:
As at the date of the injury
5.(1) In this Act unless inconsistent with the context or subject-matter—
.. .
“injury” means any physical or mental injury and without limiting the generality of the foregoing includes—
(a)industrial deafness;
(b)a disease contracted by a worker in the course of the worker’s employment whether at or away from the place of employment and to which the employment was a contributing factor; and
(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.
.. .
As at the date of the hearing before the Magistrates’ Court
By virtue of section 67(1B), “medical question” must in this case be taken to read “medical question as defined before the commencement of section 21 of the Accident Compensation (Miscellaneous Amendment) Act 1997”
“medical question” means –
(a)a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or
(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or
(ac)a question as to the medical service provided to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service; or
(b)a question whether a worker's employment could possibly have been a significant contributing factor to an injury or alleged injury, or to a similar injury other than a question whether the worker’s employment was in fact such a significant contributing factor; or
(ba)if paragraph (b) does not apply, a question whether a worker's employment could possibly have been a contributing factor to an injury or alleged injury, or to a similar injury other than a question whether the worker’s employment was in fact such a contributing factor; or
(c)a question as to the extent of any physical or mental condition resulting from or materially contributed to by the injury; or
(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 the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Second Edition or a subsequent prescribed edition); or
(e)a question as to the probable duration of any physical or mental condition resulting from or materially contributed to by the injury; or
(f)a question whether a worker's incapacity for work resulted from or was materially contributed to by an injury or alleged injury;
By virtue of section 67(1B), section 45(1) must be read as it stood before the commencement of section 21 of the Accident Compensation (Miscellaneous Amendment) Act 1997
45.(1)Where the County Court [which includes the Magistrates’ Court, see section 43(3)] exercises jurisdiction under this Part—
(a)the Court may refer a medical question to a Medical Panel for an opinion; and
(b)if a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion; and
(c)the opinion of the Panel on that question shall, subject to this section, be adopted by the Court as the answer to that question.
(2)If the County Court refers a medical question to the Panel, the Court must give the Panel, and each party to the proceedings, copies of all documents in the possession of the Court relating to the medical question.
(3)If in the opinion of the County Court—
(a)new information in respect of the medical question has emerged since the Medical Panel gave the opinion; or
(b)there is evidence that that worker’s medical condition has changed since the Medical Panel gave the opinion—
the Court may refer the new medical question to the Medical Panel for the opinion.
67.(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 . . . the County Court . . .
68.(1)A Medical Panel must form its opinion on a medical question referred to it within 21 days after the reference is made or such longer period as is agreed by . . . the County Court . . .
(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion.
(3)Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give . . . the County Court . . . its opinion in writing.
As at the date of the injury
98.(1)In addition to any other compensation payable under this Act, a worker who in the course of the worker’s employment suffers an injury mentioned in the Table to this sub-section is entitled to compensation equal to—
(a)the percentage of $61 750 set out opposite that injury in the Table; or
(b)the assessed percentage of $61 750 within the range set out opposite that injury in the Table—
calculated, subject to sub-section (2), as at the date of the injury.
Submissions
Mr Fleming, for NZI, submitted
first, that the second magistrate was wrong in finding that the questions were invalid (see paragraph 11 above);
second, that even if he was correct in that finding, the second magistrate did not have jurisdiction to nullify the opinion of the medical panel on that ground;
third, that the first magistrate having sought clarification of the opinion of the medical panel, the second magistrate was not entitled to ignore the response;
fourth, that the opinion of the medical panel was conclusive to determine the matter in favour of NZI; and
fifth, that the second magistrate was bound by that opinion and should have ignored the opinion of the second medical panel.
Mr Boyes, for Ms Unalan, submitted
first, that the answer to question 1 contained irrelevant material and was not an answer to a medical question within the meaning of the Act;
second, that in any case that material dealt only with the temporal effects of the injury to the back and not with the other injuries, and thus was an unsatisfactory reply and should not be acceptable to the Court;
third, that the answer to question 2 favoured the respondent and, after receiving that answer, it was then for the court to determine on the balance of probabilities the effects of the injury so far as they related to the claim;
fourth, that the court did not have power to seek clarification of the opinion of the medical panel;
fifth, that the clarification was not consistent and should not be accepted by the Court;
sixth, that referral to medical panels was inappropriate for claims involving injuries prior to 1 December 1992; and
seventh, that an injury arising during the course of employment did not give rise to a “medical question” within the meaning of the Act.
Medical questions
Section 45(1)(c) of the Act, although replaced by section 68(4), still applies to this matter by virtue of section 67(1B), as set out in paragraph 4 above. Section 45(1)(c) requires that the Court adopt the opinion of a medical panel on a medical question which is referred to it, which must be a “medical question” in terms of the definition in section 5. Questions 1 and 2 are drafted precisely within the terms of paragraphs (a) and (ba) respectively of that definition.
Mr Fleming for NZI sought to justify question 3 under paragraph (d) of the definition. In Austin v Amcor Ltd (unreported, decided on 3 April 1998) Byrne J said of the expression “A question as to the level of impairment of a worker” at page 10:
Given the historical meaning of impairment in this area of law, I would construe such a question to involve an assessment of the level of the loss of industrial usefulness of the affected bodily part.
Ashley J in Community Services Victoria v Bradbury [1999] VSC 32 at [43] agreed with that observation in the context of a claim under section 98.
Counsel for Ms Unalan had submitted to the second magistrate that by virtue of the decision of Judge RG Williams in Castillo v Victorian WorkCover Authority (decided on 24 August 1995), the legislation did not permit the referral of a medical question relating to an injury which occurred before 1 December 1992, the commencement date of the Accident Compensation (WorkCover) Act 1992 (Act No. 67 of 1992). It appears from the transcript that, in finding the questions to be invalid, the second magistrate was accepting this submission. Mr Fleming submitted that Castillo was wrongly decided, and should not be adopted by this Court.
In Castillo, Judge Williams said (at 14 ff):
In the case of ACC and VWA v Francoise Marie Casse, a decision of Judge Just delivered 29 March 1993, Judge Just held that by reason of changes made in Act 67 of 1992 to the definitions of “injury” and “incapacity” a case based on an “injury” with consequent “incapacity” under the definitions of those terms as they stood under the Accident Compensation Act as in force prior to Act 67 of 1992, did not raise ”a medical question” as defined by the Act as amended by Act 67 of 1992. In other words “injury” or “incapacity” where they appear in the definition of “medical question” in the amended Act after Act 67 of 1992 means “injury” as defined in that amended Act and “incapacity” as defined in that amended Act. “Injury” as defined in the previous Act and “incapacity” as defined in the previous Act are different concepts. They are different concepts because those terms were amended specifically in the definition sections by Act 67 of 1992. The instant case must deal with injury in its earlier definition, not in its amended definition, yet any medical question referred to the medical panel under s.45 must, by the Act’s provisions, relate to the amended definition of injury. For this reason, s.45 cannot be applied to cases of pre 1 December 1992 injuries.
That was the ruling in Casse.
His Honour then set out an amendment made to section 67 of the Act by Act No 50 of 1994, so that that provision read (with the amendment indicated by underlining):
(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 . . . the County Court . . .
He continued:
What this amendment does, in my view, is to enlarge the function of the medical panel . . . by permitting the medical panel to give its opinion on medical questions in respect of injuries arising before the 1 December 1992 date.
In my view, however, this does not overcome the problem exposed in Casse’s case. There has been no change to the definition of “medical question”. . . . enlarging the function of the medical panel does not overcome the problem that arose in Casse’s case, and which arises in this case, that a pre 1992 injury is not the same a post 1992 injury and the definition of “medical question” relates to injury as defined post 1992, not pre 1992.
His Honour concluded:
I do not want to be taken to be expressing any concluded view on the correctness or otherwise (in cases involving pre 1 December 1992 injuries) of referrals to medical panels of “medical questions” as defined in paragraph (d) of the definition in s.5. Because of the wording of paragraph (d), different considerations are arguably applicable.
Byrne J in Austin v Amcor (paragraph 18 above) indicated at page 9 that he did not find it necessary to express a concluded view about the correctness of Casse and Castillo. However, at page 12 he found that the reasoning in those decisions as to an injury before 1992:
has no application to a question which falls within paragraph (d) of the statutory definition. The essential nature of the task of a medical panel to which such question is referred is not affected by the fact that the cause of the impairment arose before or after the commencement of the 1992 statute.
Castillo was considered by Judge Strong in Gregal v Transfield Defence Systems Pty Ltd (decided on 17 July 1998). His Honour considered that there was “a respectable argument contrary to the conclusion reached by Judge Williams in Castillo”. After consideration, he decided that, in the interest of judicial comity, he should follow that decision, not being persuaded that it was clearly wrong. What he said at page 7 as to the desirability of comity emphasises the importance of decisions of the County Court in matters arising under the Act:
Mr Wischusen asserted, without demur from Ms Malpas, that Casse and Castillo have both been applied frequently in this jurisdiction. This circumstance further underscores the desirability of comity. Although the County Court is an intermediate Court, the reality is that very few decisions in this jurisdiction are taken on appeal. The result is that the decisions of this Court constitute much of the learning in the jurisdiction. Diversity of approach to questions of statutory construction simply proliferates argument and generates uncertainty.
At page 6, His Honour set out the “respectable argument” as follows:
Definitions are to be applied “unless inconsistent with the context or subject matter”: s.5(1). Section 67 makes clear that the function of a medical panel is to give an opinion on any medical question, even one arising out of the employment before 1 December 1992. Paragraph (ba) of the definition of medical question is plainly intended to cover an injury arising prior to 1 December 1992. In this regard, the reference to injury in paragraph (ba) is inconsistent with paragraph (c) of the definition of injury. Paragraph (c) cannot, of course, be rewritten. But it need not be applied at all. When a Judge refers a question to a medical panel, it is the responsibility of the Judge to define and explain any word or phrase in the medical question an understanding of which is essential to enable the medical panel to provide the requisite opinion. There is no reason why a Judge who refers a question framed in accordance with (ba) cannot explain “injury” in accordance with the law as it stood at the relevant time. This does not require any rewriting of the Act. It simply involves giving effect to its manifest purpose. This is so not withstanding the strict approach which ought to be taken to provisions which seek to oust the Court’s jurisdiction.
As to paragraph (ba) of the definition of “medical question” in section 5, it should be made clear that the relevant distinction for present purposes between the definition of “injury” in that section before and after 1 December 1992 is the addition of the word “significant” to paragraph (c) of the definition, so that it has read since that date:
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;
Castillo was recently considered by Judge Rendit in Singh-Jhikka v MMI Workers Compensation (Victoria) Ltd (decided on 9 April 1999) where His Honour was asked to refer to a medical panel certain questions relating to an injury before 1 December 1992. After referring to Judge Strong’s consideration of judicial comity in Gregal, he commented at page 14 that he was confronted by the same problem as confronted Judge Strong. He pointed out that Judge Williams in Castillo did not refer to paragraph (ba), which was in force at the time of Castillo, and would seem clearly to have been inserted in the definition of “medical question” to relate to injuries before 1 December 1992. His Honour referred to the introductory words of section 5(1), and concluded that in an appropriate case, such as one arising under paragraph (ba) of the definition of “medical question”, a question could be referred which related to an injury before 1 December 1992; Castillo was clearly wrong so far as it related to paragraph (ba), and he would allow a question under that paragraph of the definition. However, at page 37 he refused to allow a question sought to be justified under paragraph (c) of the definition, as that paragraph was based on an “injury” as defined after 1 December 1992.
After referring to these authorities, Mr Fleming submitted that the definition of “injury” was not relevant to paragraph (a) of the definition of “medical question” and accordingly a question could be asked under that paragraph in respect of an injury before 1 December 1992. Looking at the wording of paragraph (a), I would have some difficulty in accepting that submission.
Having considered the authorities cited above, I would, with respect, adopt the views of Justice Byrne and Judges Strong and Rendit as to the limitations on the principle laid down by Judge Williams in Castillo. On that basis, I find that question 1, sought to be justified under paragraph (a) of the definition of “medical question”, does not come within that paragraph as relating to injuries before 1 December 1992, but that questions 2 and 3 were properly put under paragraphs (ba) and (d) respectively of that definition.
No issue was raised by the experienced counsel who appeared before me as to whether question 3, by virtue of its including the words “resulting from any injury suffered on 27 May 1987”, was thereby not a “medical question” within the meaning of the statutory definition. I must assume, therefore, that they saw no issue arising out of that mode of expression, despite the terms of paragraph (d) of that definition, being the basis on which it was sought to be justified.
I now turn to consider the effect of my finding as to question 1. As Ormiston JA said in Masters v McCubbery [1996] 1 VR 635 at 652:
It is abundantly clear from sections such as section 45 of the Act that where a court or tribunal is given jurisdiction to consider a claim arising under the Act that court or tribunal has no power to review, on the merits or for any other reason, an opinion formed by a medical panel to which a medical question has been referred.
Callaway JA at pages 656-7 referred to section 60 of the Act, which was abolished by Act No 67 of 1992 and replaced by section 45, and which had empowered the Tribunal not to adopt an opinion of a medical panel in “exceptional circumstances”, an expression widely defined. No such provision now appears in the Act. As Callaway JA pointed out, that does not affect the availability of judicial review in another place. He described the court referring the questions as “debarred from treating an opinion as a nullity itself, unless the opinion misapprehended or did not answer the question that had been referred to the panel”.
On the basis of that authority, Mr Fleming submitted that the second magistrate was not entitled to treat the opinion as a nullity on the ground that the questions were not “medical questions” as defined.
However, that is not a matter with which the Court of Appeal was concerned in Masters v McCubbery. Section 45 requires the court referring a “medical question” to a medical panel to adopt the opinion of the panel on that question as the answer to that question. If what is put to the medical panel is not a “medical question”, the court is not required to adopt the opinion. The statements of Ormiston and Callaway JJA on which Mr Fleming sought to rely on this point are predicated upon the question put to the medical panel being a “medical question” as defined.
I have found that question 1 did not fall within the definition of “medical question”, and accordingly the second magistrate was not required to adopt the opinion of the medical panel in answer to that question. That being so, I find that the second magistrate did not err in law in failing to adopt, pursuant to section 45(1)(c) (section 68(4)) of the Act, the answer to question 1, that is, the medical panel opinion dated 26 March 1998 that the medical condition relevant to the injury was a temporary aggravation of underlying idiopathic scoliosis. The answer to question (a) in the order of Master Evans is accordingly No.
That finding disposes of the first and second submissions of Mr Fleming, set out in paragraph 15 above, and the sixth submission of Mr Boyes, set out in paragraph 16 above, and removes the necessity for me to consider the first and second submissions of Mr Boyes. The remaining submission relating to medical questions is the seventh submission of Mr Boyes, which I did not find to be supported by the authorities on which he relied.
The clarification
Mr Fleming relied on Wilsons & Clyde Coal Co [1929] AC 651 especially at 658, Connor v Cadzow Coal Co [1932] AC 1 and Penrikyber Navigation Colliery v Edwards [1933] AC 28. These three House of Lords decisions arose under a system where the certificate of a referee in respect of a referred medical question was conclusive in proceedings as to the matters stated. In each of those cases, their Lordships specifically approved the practice of contacting the referee to seek clarification of the meaning of a certificate.
As I have found that question 1 was not a medical question in terms of the definition, the problem with the answers to the questions was not the inconsistency between the answers to questions 1 and 3, but the incomplete answer to question 3, to which I have drawn attention in paragraph 8 above. The clarification supplied a complete answer to that question. It is “the opinion of a Medical Panel on a medical question referred to the Medical Panel” which section 68(4) requires the court to adopt, and if the panel in its opinion has not answered the question, the court is entitled to seek an answer. I should make clear that what is said in paragraph 9 above as to the extension of time to obtain the opinion must necessarily, given the incomplete answer, extend to the receipt of the clarification.
Once the clarification was received, supplying the complete answer to question 3, the court was required by section 68(4) to adopt it. The answer to question 2, relating only to a possible contributing factor, cannot be taken to override the answer to question 3. The answer to questions (b), (c) and (d) in the order of Master Evans are accordingly Yes, Yes, No.
For the reasons given, there will be orders that the appeal be allowed, and there be substituted for the orders of the second magistrate orders dismissing the proceedings with costs.
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