Qantas Airways Ltd v Nisselle
[2008] VSC 150
•7 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
COMMON LAW DIVISION
No. 6425 of 2007
| QANTAS AIRWAYS LTD | Plaintiff |
| V | |
| DR. PAUL NISSELLE, DR. SANDRA HACKER, DR. DAVID EATON, DR. NATHAN SERRY, AND LISA LAMPRECHT | Defendants |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2008 | |
DATE OF JUDGMENT: | 7 May 2008 | |
CASE MAY BE CITED AS: | Qantas Airways Ltd v Nisselle & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 150 | |
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ACCIDENT COMPENSATION – opinion of Medical Panel under Part III Division 3 Accident Compensation Act 1985 – claim by employee for compensation for psychiatric injury sustained in course of employment by plaintiff – opinion by Medical Panel that employment by plaintiff a significant contributing factor to her psychiatric injury – major depressive disorder with anxiety and post-traumatic stress features - adequacy of reasons of Medical Panel – specialist tribunal – considerations relevant thereto – psychiatric methodology - prerogative relief sought – Accident Compensation Act 1985 sections 65, 67, 68 and 104B – relief refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with Mr S A Smith | Sparke Helmore |
| For the 1st, 2nd, 3rd and 4th Defendants | Monahan + Rowell | |
| For the 5th Defendant | Mr M O’Loghlen QC with Mr I D McDonald | Workforce Legal |
HIS HONOUR:
This is a proceeding by the plaintiff, Qantas Airways Ltd, seeking prerogative relief from an Opinion of a Medical Panel that an employee’s employment by the plaintiff was a significant contributing factor to the employee’s psychiatric injury. The employee is the fifth defendant, Lisa Lamprecht. She was employed by the plaintiff as a flight attendant between 2002 and 2005. She claimed that as a consequence of that employment she suffered psychiatric injury. A Medical Panel constituted under Part III Division 3 Accident Compensation Act 1985 considered the matter and on
30 March 2007 found that the employee suffered from a treated major depressive disorder with anxiety and post-traumatic stress features and that her employment with the plaintiff was a significant contributing factor to that psychiatric injury and that it materially contributed to her incapacity for work.
The first four defendants did not appear before me and abide the decision of the court. They are medical practitioners. The Medical Panel was convened by the first defendant, Dr Paul Nisselle, and was constituted by the second, third and fourth defendants, respectively Dr Sandra Hacker, psychiatrist, Dr David Eaton, occupational physician and Dr Nathan Serry, psychiatrist.
The Medical Panel was established under Part III (Dispute Resolution) Division 3 (Medical Panels) Accident Compensation Act 1985 (“the Act”). Section 67(1) and (1A) thereof provide:
“(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 a Conciliation Officer or the County Court or the Authority or a self-insurer.
(1A) A Medical Panel must give its opinion on a medical question in accordance with this Division.”
Section 65 relevantly provides the procedures and powers of Panels as follows:
“(1) A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2) The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
(3) Information give to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings-
(a) before the County Court, the Magistrates’ Court or the Tribunal under this Act or the Workers Compensation Act 1985;
(b) for an offence against this Act or the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958;
(c) for an offence against the Crimes Act 1958 which arises in connection with a claim for compensation under this Act.
(4)Any attendance of a worker before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.
(5)A Panel may ask a worker –
(a)to meet with the Panel and answer questions;
(b) to supply copies of all documents in the possession of the worker which relate to the medical question to the Panel;
(c)to submit to a medical examination by the Panel or by a member of the Panel.
(6)If a Panel so requests and the worker consents, a person who is –
(a) a provider of a medical service (within the meaning of paragraph (a) of the definition of “medical service” in section 5(1);
who has examined the worker must –
(c)meet with the Panel and answer questions; and
(d)supply relevant documents to the Panel.
(6A)A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying –
(a)the injury or alleged injury to, or in respect of, which the medical question relates;
(b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
(6B)A person or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel.”
Section 68(4) provides as to the Opinion of the Panel:
“(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive, by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
Part IV of the Act provides for payment of compensation. Section 98(C) provides for compensation for non-economic loss. Section 104B(9) provides:
“(9) The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical question as to –
(a)the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and
(b)whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table to section 98E(1) –
to a Medical Panel for its opinion under section 67.”
The plaintiff is a self-insurer.
On 5 May 2005 the fifth defendant made a claim against the plaintiff for weekly payments and for medical and related expenses arising from psychiatric injury she (the fifth defendant) claimed she suffered as a consequence of her employment by the plaintiff. The history of the employment and the sequaelae claimed appear sufficiently from the Reasons of the Panel set out in paragraph 11 below. By letter dated 17 June 2005 the plaintiff rejected the claim.
On 1 September 2005 the fifth defendant took proceedings against the (present) plaintiff in the Melbourne Magistrates’ Court for weekly payments pursuant to s.93 of the Act and for medical and like expenses pursuant to s.99 thereof. On
22 September 2005 the plaintiff filed a defence, denying that any injury arose in or out of employment with the plaintiff or was materially contributed to by it. On
11 December 2006 the fifth defendant filed in the Magistrates’ Court a Notice of Referral to the Medical Panel pursuant to s.45(1)(b) of the Act. The Notice stated as follows:
“MEDICAL PANEL QUESTIONS
1. What is the nature of the Plaintiff’s medical condition relevant to the injuries (or similar injuries) alleged in the Amended Statement of Claim herein as follows:
(a)adjustment disorder and depression;
(b)chronic depression;
(c)altered mood;
(d)post-traumatic stress disorder.
2. Was the Plaintiff’s employment in fact a significant contributing factor to any, and if so, which of the alleged injuries?
3. What is, or has been, the extent of any incapacity of the worker or (sic) work or suitable employment?
4. Does the workers incapacity for work result from or is it materially contributed to by an injury or alleged injury to which the Plaintiff’s employment is a significant contributing factor?
ISSUES IN DISPUTE BETWEEN THE PARTIES
A. Whether the Plaintiff’s employment with the Defendant was in fact a significant contributing factor to the injury or alleged injury;
B. Whether the Plaintiff’s incapacity for work results from or is materially contributed to by an injury to which the Plaintiff’s employment has been, and is, a significant contributing factor.
C. The nature, extent and duration of any incapacity.”
The Medical Panel, constituted as I have said by the second, third and fourth defendants, respectively Dr Sandra Hacker, psychiatrist, Dr David Eaton, occupational physician and Dr Nathan Serry, psychiatrist provided a Certificate of Opinion dated 30 March 2007. The Certificate in relevant part stated:
“Question 1. What is the nature of the Plaintiff’s medical condition relevant to the injuries alleged in Paragraph 4 of the Amended Statement of Claim herein as follows:
(a)adjustment disorder with anxiety;
(b)chronic depression;
(c)post-traumatic stress disorder?
Answer: In the Panel’s opinion the Plaintiff is suffering from a treated major depressive disorder with anxiety and post-traumatic stress features, relevant to the alleged injuries.
Question 2. Was the Plaintiff’s employment with the Defendant:
(a)in fact;
(b)could possibly have been:
a significant contributing factor to any, and if so, which of the alleged injuries?
Answer: In the Panel’s opinion the Plaintiff’s employment was in fact a significant contributing factor to her treated major depressive disorder with anxiety and post-traumatic stress features.
Question 3. Did the Plaintiff’s incapacity for work, if any, result from or was it materially contributed to by an injury or alleged injury?
Answer: In the Panel’s opinion the Plaintiff’s incapacity for work is materially contributed to by the Plaintiff’s treated major depressive disorder with anxiety and post-traumatic stress features.”
On the same day the Panel published its Reasons for Opinion. The Reasons are set out in paragraph 11 below. The Panel therewith also published a Schedule of Attachments setting out a substantial body of documents including medical reports and witness statements. The witness statements included that of the (present) fifth defendant and those provided to the Panel by the (present) plaintiff. Dr Hacker as Presiding Member stated at the head of the Schedule that “the Panel took this information into consideration in forming this opinion”. The full set of attachments has been filed in this Court and I have read it in whole.
The plaintiff then sought relief in this Court.
By Originating Motion and summons thereon filed in this Court on 29 May 2007 the plaintiff seeks an order in the nature of certiorari quashing the decision of 30 March 2007 of the Panel and an order in the nature of mandamus that the medical questions be referred to a different constituted Panel and heard and determined according to law.
The Motion seeks relief on the following grounds:
“1. The Medical Panel erred in law in failing to give adequate reasons for the making of its finding that the fifth defendant’s employment was in fact a significant contributing factor to her injury, in particular:
(a) The Medical Panel failed to give any reason as to why it preferred the history given by the fifth defendant during its examination of the fifth defendant to those matters submitted on behalf of the plaintiff as being damaging to the credit of the fifth defendant and/or contrary to a finding that the fifth defendant’s employment was in fact a significant contributing factor to her injury.
(b) The Medical Panel failed to give any reason as to how these factors referred to in its Reasons for Opinion caused it to come to the conclusion that the fifth defendant’s employment was in fact a significant contributing factor to her injury.
(c) The medical Panel failed to identify “the nature of the worker’s employment”; and “the stressors which arose in the course of her employment” which caused it to come to the conclusion that the fifth defendant’s employment was in fact a significant contributing factor to her injury.
2. The Medical Panel failed to have regard to relevant material in formulating its opinion namely:
(a)matters pertaining to an incident on 27 July 2002;
(b)matters pertaining to allegations of bullying and harassment made by the fifth defendant;
(c)matters pertaining to the nature of the employment in which the fifth defendant was engaged
as referred to in the plaintiff’s submissions to the Medical Panel.
3. The Medical Panel denied the Plaintiff natural justice or procedural fairness in failing to inform the plaintiff that it regarded the plaintiff as a credible witness, and apparently preferred her history to some or all of the many witnesses whose statements were provided to the Panel, without allowing the plaintiff to have those witnesses attend and be questioned by the Panel and/or respond and make representations on this matter.
4. The Medical Panel failed to provide adequate or proper reasons for the decision.
5. The decision was so unreasonable that no reasonable Medical Panel could have made it.”
The Reasons for Opinion of the Panel were published by it and are as follows:
“REASONS FOR OPINION
1. The referral to the Medical Panel was received on 5 February 2007. The documents considered by the Panel are described in Enclosure A.
2. The worker examined by the Panel Members on the following date:
Member Speciality Examination
Jointly by:
Dr Sandra Hacker Psychiatrist 23 March 2007
Dr David Eaton Occupational Physician 23 March 2007
Dr Nathan Serry Psychiatrist 23 March 2007
3. The Panel formed its opinion by reference to –
(a)the documents and information referred to in Enclosure A; and,
(b) the history provided by the worker and examination findings elicited by the Panel of the above mentioned examination of the worker.
4. The reasons for the Panel’s opinion are as follows:
The panel noted that the Plaintiff had begun employment with Qantas in May 1990 as a switchboard receptionist.
In mid-2002 she obtained a position as a long haul flight attendant with Qantas having completed a five week training course.
She stated that on her return from her first long haul flight from Los Angeles she felt extremely tired. She stated that she became anxious when she was passing through customs realising that she had left a banana in her bag and becoming worried about the quarantine restrictions related to this.
She stated that her bags were found to have traces of heroin, that her bags were searched, she was patted down and was interrogated for some time. She stated that during this time she was terrified that she would be charged , that her career as a flight attendant was over and that she would be jailed.
She stated that at that at the end of the time she was told she was not under suspicion and that she could go home. She stated that she was extremely distressed after this event and was unable to sleep, feeling shocked and overwhelmed.
The Plaintiff stated that following this event she felt that Qantas staff made comments about what had happened to her and she remained frightened about what would happen each time she travelled to the airport to fly.
She stated that she realised that she was extremely sensitive but described that she dreaded going to work and was scared to fly, constantly feeling that she wanted to cry.
The Plaintiff took leave in 2003 and then sought a secondment as a Qantas travel consultant feeling much improved during that time.
She returned to work as a long haul flight attendant in late 2004 feeling quite apprehensive. She experienced anxiety about customs issues and felt lonely and anxious in overseas hotels where she felt very isolated.
She ceased flying due to ongoing stress in February 2005.
The Plaintiff stated that she also had a consultation with a medical practitioner in March 2005 which had an unsatisfactory outcome and which resulted in a complaint to the Medical Practitioners Board which is yet to be heard and that this further distressed her. She stated that she had attended him in order to apply to change from long haul to short haul flying and her application was eventually rejected.
The Plaintiff had been treated with anti-depressant medication since early-2005 and was referred to the psychiatrist she continues to see in April 2005. She has attempted to reduce her medication but has become depressed.
She returned to long haul flying in June 2006 and continues with this work.
The Plaintiff stated that currently she is less depressed than she was although she recognises she remains quite sensitive. She stated that she remained troubled by nightmares about being in jail for drug smuggling. She stated that she has always been a morning person and finds long haul flying difficult because of jetlag symptoms being quite severe. She recognises that when she returns from a flight if she sleeps sufficiently she feels better later. She states that she believes she is gradually improving and that she is much less frightened by her depression and she is able to use a range of strategies to deal with it. She has developed a range of techniques for managing criticism and feels that she is much more able to be assertive. She stated that her sleep has improved although she has begun using alcohol to assist with sleep rather than the hypnotic medication to which she became habituated.
The Plaintiff stated that she has been much assisted by becoming a volunteer at the Women’s Information Referral Exchange in February 2007 and commencing a Diploma of Community Welfare which she is studying part-time.
The Plaintiff states that she is now living with her mother as she feels that she is not yet ready to live alone, in a house she has purchased, following the end of a long term relationship.
The Plaintiff’s early development was characterised by a very difficult relationship with her father who had suffered a severe work injury immediately prior to her birth. She stated that she had always felt unwanted by him and that in her late-adolescence and early-adulthood she developed bulimia and anorexia with amenorrhoea but had no treatment for this and this disorder resolved spontaneously shortly after she began working for Qantas in 1990. She stated that she became quite depressed after her father died from cancer after a very brief illness in 1988 and her eating disorder worsened at that time.
On mental status examination the Plaintiff appeared slim but well nourished, anxious, mildly depressed and insightful.
The Panel concluded that the Plaintiff is suffering from a treated major depressive disorder with anxiety and post-traumatic stress features.
The Panel noted the Defendants submission that the Panel should regard the Plaintiff as “a completely unreliable witness in respect of the nature of her employment, and that her allegations consist of a mixture of outright falsehoods and serious distortions”.
The Panel considered the Defendant’s further submissions in support of his proposition, the Panel’s findings on interview and examination of the worker together with the documents supplied in order to reach its conclusions.
The Panel noted that the Defendant agrees that the initial event occurred as alleged by the Plaintiff.
The Panel considered the extent of the impact of the initial event in sensitising the Plaintiff to ongoing difficulties in her work environment and concluded that the subsequent psychiatric problems which arose were in part related to that event.
The Panel considered the nature of the worker’s employment, her history of the onset of psychiatric symptoms, her past history, her response to treatment and in particular the stressors which arose in the course of her employment and concluded that the Plaintiff’s employment was in fact a significant contributing factor to her treated major depressive disorder with anxiety and post-traumatic stress features.
The Panel also concluded the Plaintiff’s incapacity for work is materially contributed to by the Plaintiff’s treated major depressive disorder with anxiety and post-traumatic stress features.”
Although the Originating Motion sought relief on the ground (Ground 3) that the Panel denied the plaintiff procedural fairness in failing to inform the plaintiff that it regarded the fifth defendant (by a slip, referred to as “the plaintiff” in Ground 3 of the Motion) as a credible witness and did not allow the plaintiff’s witnesses to attend and be questioned by the Panel, sensibly Mr Gorton, who appeared with Mr Smith before me for the plaintiff, did not press that ground. No such obligation arose. Mr Gorton also did not press Ground 5, that no reasonable Panel could have made the decision made. Mr Gorton sensibly focused upon what he submitted was the Panel’s failure to provide adequate or proper reasons.
Mr Gorton submitted essentially as follows.
Mr Gorton submitted that the Panel acted on the basis that the (present) plaintiff agreed “the initial event” occurred as alleged by the fifth defendant. The initial event was not defined but the Panel’s reasons suggest that it involved the Customs interview and consequent extreme distress, inability to sleep, shock and being overwhelmed. The plaintiff disputed that the fifth defendant’s reaction to the Customs interview had any continuing effect on the fifth defendant and asserted that she refused counselling on two occasions, attended her general practitioner two days later and did not mention the Customs interview or her reaction to it when discussing her emotional problems. She did not complain of emotional problems relating to the Customs interview in thirty-five visits to her general practitioners in the next 2 ½ years. The Panel has not given consideration to the fifth defendant’s conduct inconsistent with her complaints. If it has considered that conduct it has given no reasons to explain why it was disregarded. The Panel considered the “nature of the worker’s employment” and the “stressors which arose in the course of her employment” in reaching its conclusion. The Panel has not identified what factors comprise those two considerations. The fifth defendant identified various stressors in the section 65 (6A) Statement and in the plaintiff’s submission. Those stressors were alleged to include stresses of long hours, fatigue and inter personal difficulties with staff members. The plaintiff made submissions to the Panel, supported by statements from seven witnesses said to have stressed the fifth defendant. Each witness disputed her version of events. The plaintiff disputed suggestions by the fifth defendant concerning long hours, lack of sleep, loneliness and jet lag. Details of her duties and rostering were supplied to the Panel in the plaintiff’s submission. The Panel has not identified the work characteristics and stresses it based its opinion on. It has not had regard to the evidence which disputes work stresses affecting the fifth defendant. If it has considered the plaintiff’s submissions it has given no reasons to explain why those submissions and facts were disregarded. Finally, it is not apparent, not can it be inferred, that the Panel has given proper consideration to the plaintiff’s submissions. A statement that the submissions have been considered without any reference to relevant individual parts of the submission, and without any explanation as to why the submissions did not effect the outcome of the Panel deliberations, cannot lead to the conclusion that any or any proper consideration has been undertaken.
As to denial of procedural fairness, Mr Gorton submitted that the Panel must have accepted the evidence given to it by the fifth defendant in preference to the written material supplied by the plaintiff. Mr Gorton submitted that there is no basis for preferring the fifth defendant’s oral presentation of evidence to the plaintiff’s submission, except for perhaps a perceived advantage of face to face meeting with the Panel. The Panel should not decide a contested factual issue depending on credibility without interviewing all relevant witnesses. In this case the only inference is that factual matters have been decided without giving the plaintiff a fair hearing.
As I have said, I have read all the material which the Panel stated in its Schedule of Attachments it had taken into account in forming its Opinion. There was a gulf between what the fifth defendant alleged and what the plaintiff’s witnesses alleged as to numerous incidents, their causes and their sequaelae. The data has helpfully been reduced by the plaintiff’s practitioners to a schedule (placed on the court file) of six areas. The high watermark of difference in my view is the matter in which the fifth defendant asserted that she was humiliated by having to “spend 1 ½ hours on my hands and knees in a rubbish bin looking for a piece of plastic we did not need” (her statement page 11) when in fact the piece of plastic was a passenger’s credit card thrown away by the fifth defendant (statement of Ms K Okely 8 March 2006: page 1; and in a 25 minute search: page 2). Many other differences may fairly be said to be differences of opinion or perception. Mr O’Loghlen, who with Mr McDonald appeared for the fifth defendant, before me relied upon the report of Dr V Botvinik, psychiatrist retained by the plaintiff, of 17 August 2005 that the fifth defendant was “suffering from symptoms of major depression” (page 8) and that the heroin search episode on 27 July 2002 “was the trigger for the current depression” (page 8). He stated that “we are dealing with a combination of pre-existing depression, which has been currently triggered by her employment as a long-haul flight attendant” (page 8). He further stated that the injury sustained from the heroin search episode “significantly contributed to (her) pre-existing condition” (page 9). To that submission, Mr Gorton replied that Dr Botvinik made his diagnosis on the basis of the truthfulness of the history given to him by the fifth defendant (“I do believe that she presented as a decent and honest person and I personally did not have any reason to mistrust this worker” – page 9) and that he did not have the substantial countervailing material as to the fifth defendant’s credibility which the Panel had before it. In the end, having reviewed all the material as to reasons (not as to merit) the bedrock has not shifted: the demonstrated trauma of the 27 July 2002 heroin search incident. And the plaintiff does not dispute that incident. It is stated in graphic detail at pages 2-7 of the fifth defendant’s witness statement. In it she set out how at the conclusion of her first long haul flight with the plaintiff she was isolated and extensively detained by Customs and her belongings searched for heroin and then released with an apology. As to the chronological contention of the plaintiff (that the fifth defendant did not manifest symptoms or complaints early to her general practitioners), the conditions found by the Panel are developmental, not immediate.
This was a highly qualified, specialist Panel. It is well established that the reasons of an expert tribunal with specialist knowledge, as this Panel had, should not be read pedantically: Eclipse Sleep Products Inc v Registrar of Trade Marks [1] at 321-322 per Dixon CJ, Williams and Kitto JJ approving a judgment of Lloyd-Jacob J; Buckley & Anor v Bennell Design and Construction Pty Ltd & Anor[2] at 10-11 per Barwick CJ; Enfield v Development Assessment Commission[3] at [46] per Gleeson CJ, Gummow, Kirby and Hayne JJ; R v Milk Board; ex parte Tomkins[4] at 197 per Lowe J; and Spurling v Development Underwriting (Vic) Pty Ltd[5] at 11 per Stephen J. It is plain that a Panel constituted by two psychiatrists and an occupational physician would have been alert to and attuned to the importance of the history given by the fifth defendant and its accuracy and truthfulness. Further, the Panel had before it a body of material bearing upon that issue. Further, the Panel stated that it had considered that material. Further, the Panel had had the issue of accuracy and truthfulness brought to its attention by the submissions of the (present) plaintiff. Psychiatrists are not amanuenses. Well-qualified psychiatrists are to be taken to be aware of the nature, causality, incidents and pattern of psychiatric injuries including those here found. They bring to bear that body of knowledge in assessing persons. The Panel, expertly constituted as it was, was not required to descend in its Reasons to particularity on matters of credit as a lawyer might.
[1](1957) 99 CLR 300.
[2](1977-1978) 140 CLR 1.
[3](2000) 74 ALJR 490.
[4][1944] VLR 187.
[5][1973] VR 1.
The principles applicable to the provision of reasons by a body such as the Medical Panel are well known and need no rehearsal by me. They are articulated in Kioa & Ors v West & Anor[6] at 584-585 per Mason J. (as he then was) and 612-614 per Brennan J (as he then was); Minister for Immigration v Wu Shan Liang[7] at 272 per Brennan CJ, Toohey McHugh and Gummow JJ; Minister for Immigration v Yusuf[8] at 348 per McHugh, Gummow and Hayne JJ; and Australian Broadcasting Tribunal v Bond & Ors[9] at 341 per Mason CJ. Particularly as to a Medical Panel, in Masters v McCubbery[10] at 650 Winneke P stated:
[6](1985) 159 CLR 550.
[7](1996) 185 CLR 257.
[8](2001) 206 CLR 323.
[9](1990) 170 CLR 321.
[10][1996] 1 VR 635.
“A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions”.
At 653 Ormiston JA spoke of
“sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review”.
Callaway JA at 661 spoke of reasons sufficient
“to show the court and the worker that the question referred to the Panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience”.
A helpful statement of principles is made by Forrest J in Clarke v National Mutual Life Insurance Ltd [11]. The law is also reviewed by Osborn J in Bluescope Steel Ltd v Nisselle & Ors[12] at [70] – [77].
[11][2007] VSC 341 at [43].
[12][2008] VSC 72.
In the present case I consider that a “discernable path of reasoning”[13] and the “route by which it arrived at (its) conclusions”[14] is revealed in the Reasons of the Medical Panel. The Reasons state the data considered by the Panel. They specifically refer to the issue of credibility raised by the plaintiff and its countervailing statements thereto. They note that the plaintiff agrees that the initial event occurred as alleged by the fifth defendant. All this is considered, articulate and rational. The Panel is to be taken to have brought to bear upon those issues and that data its expertise. It has followed a coherent pathway. It was not required to address credit issues in the way a lawyer might. Credit, so critical to a lawyer, is not necessarily critical to an expert tribunal given the proof of the initiating incident and the characteristics of the psychiatric disorders found; still less a determinative consideration. In my view the Reasons satisfy the criteria set out in the authorities cited above, the provisions of the Accident Compensation Act 1985 cited above, and of s.8(4) Administrative Law Act 1978. Accordingly I refuse the relief sought and dismiss the Motion.
[13]Moyston Court Fisheries Ltd v Malios & Ors [2007] VSC 518 at [78] per Forrest J.
[14]Kamener & Ors v Griffin & Ors (2005) 12 V.R. 192 at 201 per Ashley J.
Costs ordinarily follow the event. I shall if necessary hear counsel on that question.
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