Re Croser; Ex parte Rutherford
[2001] WASCA 422
•20 DECEMBER 2001
RE CROSER; EX PARTE RUTHERFORD & ANOR [2001] WASCA 422
| (2001) 25 WAR 170 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 422 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2043/2001 | 9 NOVEMBER 2001 | |
| Coram: | MURRAY J STEYTLER J OLSSON AUJ | 20/12/01 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari made absolute | ||
| A | |||
| PDF Version |
| Parties: | G W RUTHERFORD B D RUTHERFORD |
Catchwords: | Return of order nisi for a writ of certiorari Determination by a Medical Assessment Panel Permanent residual disability Natural justice Adequacy of reasons of Medical Assessment Panel- Whether effective determination of degree of permanent psychiatric disability Positive fixation of a permanent disability required rather than a mere percentage range |
Legislation: | Workers Compensation and Rehabilitation Act 1981, s 93E(3)(a), s 93E(3)(b), s 145A, s 145C, s 145D, s 145E, s 93D |
Case References: | Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Comcare Australia v Lees (1997) 151 ALR 647 Craig v State of South Australia (1995) 184 CLR 163 Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 Dornan v Riordan (1990) 95 ALR 451 Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Fleming v The Queen (1998) 197 CLR 250 Garrett v Nicholson (1999) 21 WAR 226 Kinsella v Seton Catholic College, unreported; CM-112/00 1125; 22 February 2001 Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 Papps v Police (2000) 77 SASR 210 Pettitt v Dunkley [1971] 1 NSWLR 376 QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148 R v Keyte (2000) 78 SASR 68 Re Babban; Ex parte Suleski [2001] WASCA 289 Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111 Re McWilliam & Ors Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996 Re Wong & Ors; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 Repatriation Commission v O'Brien (1985) 155 CLR 422 Bone v Mental Health Tribunal [1985] 3 All ER 330 Innovative Precast Systems v Kulenovic, unreported; CM-156/00 1128; 1 March 2001 Kioa v West (1985) 159 CLR 550 Masters v McCubbery [1996] 1 VR 635 Re Skirving & Ors; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Tambourie Nominees Pty Ltd t/as Shiny Clean v Tamara Blum, unreported; CM-68/01 1183, 22 October 2001 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE CROSER; EX PARTE RUTHERFORD & ANOR [2001] WASCA 422 CORAM : MURRAY J
- STEYTLER J
OLSSON AUJ
EX PARTE
G W RUTHERFORD
B D RUTHERFORD
Applicant
Catchwords:
Return of order nisi for a writ of certiorari - Determination by a Medical Assessment Panel - Permanent residual disability - Natural justice - Adequacy of reasons of Medical Assessment Panel- Whether effective determination of degree of permanent psychiatric disability - Positive fixation of a permanent disability required rather than a mere percentage range
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Legislation:
Workers Compensation and Rehabilitation Act 1981, s 93E(3)(a), s 93E(3)(b), s 145A, s 145C, s 145D, s 145E, s 93D
Result:
Order nisi for certiorari made absolute
Category: A
Representation:
Counsel:
Applicant : Ms K R Wood
Amicus Curiae : Ms J C Pritchard
Solicitors:
Applicant : Phillips Fox
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Comcare Australia v Lees (1997) 151 ALR 647
Craig v State of South Australia (1995) 184 CLR 163
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
Dornan v Riordan (1990) 95 ALR 451
Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Fleming v The Queen (1998) 197 CLR 250
Garrett v Nicholson (1999) 21 WAR 226
Kinsella v Seton Catholic College, unreported; CM-112/00 1125; 22 February 2001
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469
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Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84
Papps v Police (2000) 77 SASR 210
Pettitt v Dunkley [1971] 1 NSWLR 376
QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148
R v Keyte (2000) 78 SASR 68
Re Babban; Ex parte Suleski [2001] WASCA 289
Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111
Re McWilliam & Ors Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Re Wong & Ors; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Repatriation Commission v O'Brien (1985) 155 CLR 422
Case(s) also cited:
Bone v Mental Health Tribunal [1985] 3 All ER 330
Innovative Precast Systems v Kulenovic, unreported; CM-156/00 1128; 1 March 2001
Kioa v West (1985) 159 CLR 550
Masters v McCubbery [1996] 1 VR 635
Re Skirving & Ors; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Tambourie Nominees Pty Ltd t/as Shiny Clean v Tamara Blum, unreported; CM-68/01 1183, 22 October 2001
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1 MURRAY J: In this case I am greatly indebted to Olsson AUJ for the reasons to be given by his Honour to which I have had access. I am able therefore to express my views in shorter form.
2 Ground (a) of the order nisi was that the Medical Assessment Panel "erred in law by failing to give adequate reasons for its determination as required in accordance with the requirements of natural justice and by s 145E(3) of the Act." The ground gives particulars that the conclusions that the worker's disability of the right upper limb was 20 per cent and his psychiatric disability was 15-20 per cent were expressed by the panel "without explaining in its reasons for decision how and why it reached that conclusion, the factual foundation for that conclusion and the reasons for which it rejected evidence to the contrary." It can be seen therefore that the complaint is of an error of law in the omission to give reasons for the decision of the panel in the two respects mentioned. It is not said that the panel committed any jurisdictional error by a failure to give reasons, but that the reasons, it did give purportedly to comply with the statutory obligation were inadequate because of the omissions mentioned.
3 The Workers' Compensation and Rehabilitation Act 1981 (WA) s 145E(3) provides in respect of a panel that:
"The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director, and are to be given to the Director within 7 days after the day on which the determination is made."
- The requirement so to do is for the purpose of s 145E(4) which requires the Director to give the determination and reasons to the conciliation officer, review officer or compensation magistrate who referred the question for determination to the panel and to the worker. Presumably by that means the information is conveyed to the employer, such as the applicant in this case.
4 There is no doubt that the remedy of certiorari may be available in respect of the determinations of a medical assessment panel: Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395, 401 applying Re McWilliam & Ors Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996.
5 Nor is there any doubt that certiorari will lie for error of law on the face of the record. It is convenient to refer to the judgment of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 175-6 as follows:
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- "Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertains an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
- In this case although Ground (a) refers to the requirements of natural justice, it is not in my opinion appropriate or necessary to express it in that way when what is sought to be relied upon is a failure to comply with the statutory obligation imposed by s 145E(3) of the Act. The true nature of the complaint is, it seems to me, that the reasons of the panel given in making its determination formed part of the record of its proceedings and were therefore available to be considered as providing a ground for the issue of certiorari where error of law on the face of the record was established.
6 I adhere to what I said in Juras with the agreement of Franklin and Owen JJ, and in Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111; 11 April 2001, at par [8] that by reason of the statutory obligation to give reasons imposed by s 145E(3), such reasons will form part of the record of the panel in respect of the determination made.
7 I respectfully agree with Olsson AUJ that their adequacy as a matter of law would fall to be determined in the context of a consideration of the nature of the determination made, and that the determination is made by a medical assessment panel comprised of medical practitioners selected
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- under the Act s 145C by reason of their expertise in determining medical questions in relation to the nature of a disability where there is a conflict of medical opinion, the worker and the employer are in dispute, and there is a need to have the dispute resolved: s 145A. By s 145D the panel is to act speedily and informally and it is clearly intended that it should apply its expertise to the consideration of relevant documents and medical opinions and, where necessary, to the examination of the worker by the panel.
8 It cannot be the case that in such circumstances more is required of the panel than the expression of reasons which make clear, in terms which may be understood by a layman, what the extent of the disability is held to be, its nature and how the determination has been reached. If a particular body of medical opinion has been preferred it may be necessary to briefly indicate why that is so. Where the determinative consideration is the examination of the worker, it would ordinarily be necessary to briefly discuss what aspects of that process and the history obtained were relied upon.
9 At the very least, one would expect a sufficient discussion of relevant matters to enable the parties to understand the basis upon which the determination has been made. Viewed in that light, the giving of reasons may be seen to be a task of explanation which need not be onerous and need not be performed in formal language of a kind which may be employed by lawyers. The adequacy of the reasons may be tested by asking whether the party upon whom the determination may have an adverse impact in the context of the statutory scheme, may understand why the determination was not more favourable and so that that party may know that the panel has performed its statutory function.
10 It is not possible to be more precise about what may be required. I respectfully agree with what Olsson AUJ has written on this topic and with the views expressed by Kennedy J in Re Babban; Ex parte Suleski [2001] WASCA 289. It follows that although I agree that these reasons may not be regarded as a model of the manner in which the obligation to give reasons for the determination should be discharged, it cannot be said that they fall relevantly short of the minimum requirement.
11 As that is a minority view there is no need to express a final opinion upon the question whether and in what circumstances the omission of material from reasons given by a panel may be said to constitute jurisdictional error or an error of law on the face of the record. However, as the question was debated before us, I think I ought, at least briefly,
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- express my views. I think, with respect, that a most valuable analysis of what is meant by jurisdictional error in a case of this kind where certiorari is sought in relation to an inferior tribunal is to be found in the judgment of the High Court in Craig at 177-8. I will not set the passage out here. Put broadly, my view is that a medical assessment panel is given jurisdiction to determine a question of a kind which may be, and which is in fact, properly referred to it. The duty to give reasons for the determination is part of the statutory framework by which the jurisdiction is to be exercised. I doubt that to decline to give reasons for a determination, or to give reasons which omit matters necessary to sustain their validity, could support a conclusion that a panel has misunderstood the nature of its jurisdiction, could constitute a denial of jurisdiction, or could amount to disregard of the nature of the jurisdiction. Inadequacy of reasons for a determination will therefore fall to be considered as a ground for the issue of certiorari under the heading of error of law on the face of the record.
12 In that regard it seems to me that it is important, both in considering in what circumstances reasons for decision will be incorporated in the record for the purpose of the consideration of the grant of certiorari and the nature of the error patent on the face of the record which will support the exercise of discretion to grant the remedy, to have regard to the restraint typically exercised by courts considering such prerogative relief. The matter was referred to by the High court in Craig at 180-1 where the conclusion was expressed that:
"… a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature."[181]
13 I do not wish to contribute to the debate about the significance in an appellate context of inadequacy of reasons for decision. Olsson AUJ has referred to a number of decisions from other jurisdictions, some of which contain obiter dicta supporting the view that it is only where reasons are inadequate to the point that they fail to properly disclose the reasoning processes of the court or tribunal and thus render nugatory a right of
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- appeal that the inadequacy will of itself constitute an error of law requiring an appellate court to set aside the decision and make such remedial consequential orders as appear to be appropriate. On the other hand, there are decisions, particularly of the Full Court of the Federal Court, to which Olsson AUJ has referred, to the effect that in a case where there is a statutory obligation to give reasons, a substantial failure to do so will of itself constitute an error of law requiring the intervention of an appellate court.
14 For myself, I am not persuaded that the debate is not merely about the nature or extent of the inadequacy which will be held on appeal to vitiate the decision of the court below. Certainly there are decisions of this Court that, if on a fair reading of reasons given, having regard to the nature of the tribunal and the nature of the question for its determination, they are seen to be so inadequate as to fail to expose the essential reasoning process and therefore to deprive the litigant of the capacity to know what was the basis for the decision, effectively rendering nugatory the right of appeal, the appeal court will hold that to constitute appellable error: Garrett v Nicholson (1999) 21 WAR 226 per Owen J at par [73] - par [74] and QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148 per Murray J at par [112] - par [113].
15 But the question for present purposes is whether the omission of relevant material from the reasons for decision of an inferior court or tribunal will constitute an error of law on the face of the record sufficient to lead to the quashing of the decision by the grant of prerogative relief in the form of a writ of certiorari. As Olsson AUJ has observed, in Ex parte Rusich I sought to reserve that question for decision on another occasion and indeed that case does not seem to me to be authority for the proposition that inadequacy of reasons without more will constitute an error of law on the face of the record.
16 The point has arisen before. In Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 the question arose in relation to an application for certiorari in respect of a decision of the Tribunal, which was obliged to give reasons for its decision (when requested to do so) by the Racing Penalties (Appeals) Act 1990 (WA) s 21. In that case it was ultimately unnecessary to determine when, if ever, inadequacy of reasons caused by omission of relevant material could be said to constitute an error on the face of the record because it was held that the Tribunal's reasons sufficiently explained the basis of its reasoning. In concurring in that view, I stated my concerns about the question under consideration at 547-9.
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17 The point may be shortly stated. Putting to one side the fact that the nature of reasons where they form part of the record may reveal jurisdictional error in some way (which is not this case, in my opinion) the question is whether it may be said that the reasons for decision, where they are part of the record, disclose error on their face when they omit reference to some material consideration. I am inclined to think not and to think further that to approach the reasons with that degree of strictness is consistent with the fact that Australian courts, from the High Court down, resist any tendency to treat the return of an order nisi for certiorari as if it was an appeal grounded on errors of law.
18 But in my opinion, this case does not provide the occasion to authoritatively determine the question and I would decline to do so. With respect for the contrary view expressed by Steytler J and Olsson AUJ, I am of the opinion that, if it is open to ground an application for certiorari upon the proposition contained in ground (a) in this case, the ground has not been made out.
19 The grounds of the order nisi do not in fact complain about the determination that the worker suffers a permanent residual disability of the right shoulder pursuant to Sch 2, Item 13 of the Act "of the order of 20% loss of effective use of the right upper limb". The complaint about that determination is concerned with the adequacy of the reasons for reaching it, but in any event I respectfully consider that the view expressed by Olsson AUJ that this is a determination of a specific 20 per cent loss of use is correct.
20 As to the determination by the panel of psychiatric disability pursuant to Sch 2, Item 8 of the Act, again I find myself in respectful agreement with the views expressed by Olsson AUJ. The determination was expressed in terms of a "permanent psychiatric disability pursuant to item 8 of schedule 2 of the order of 15-20%."
21 As Olsson AUJ has explained, in this case a review officer had referred to the panel the question of the nature or extent of such a disability and the question whether it was permanent or temporary, pursuant to s 84ZH(1)(a) and s 84ZH(1)(b). By s 84ZH(2) it is made clear that the power to refer such a question to a medical assessment panel applies to the questions of the degree of disability of a faculty of the body referred to in Sch 2, including "the degree of disability assessed in accordance with s 93D(2)." Schedule 2 provides a table of compensation payable. It sets out the nature of particular injuries and the ratio which the sum payable bears to the prescribed amount. Item 8 provides that for a
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- "permanent and incurable loss of mental capacity resulting in total inability to work" 100 per cent of the prescribed amount is payable. When the table is read with s 25 of the Act, it becomes clear that a loss of mental capacity which although permanent is not complete, is to be expressed as a percentage of the degree of diminution of mental capacity found by the panel.
22 Again as Olsson AUJ has made clear, the determination required in this case related to the provisions of the Act which govern the capacity of a court to award damages at common law. Their operation depends upon an assessment of the degree of disability. The relevant provision as to the assessment of the degree of disability is s 93D(2). It provides, by s 93D(2)(a)(ii), that in a case such as this where Sch 2 applies, in circumstances where two or more items of the Schedule apply to the disability the degree of disability is to be assessed as "the sum of the percentages of the prescribed amount provided for by those items, as read with Section 25". Section 93D(4) provides guidance as to how the calculation is to be made.
23 In this case one would start with the determination of a 20 per cent loss of the efficient use of the arm above the elbow pursuant to Item 13 of Sch 2. The calculation to be made would translate that into a percentage degree of disability of 18 per cent. To that would be added either 15 per cent or 20 per cent in relation to the psychiatric disability, which translates directly into a degree of disability of those percentages. Because the final degree of disability is the sum of the percentages, it would amount to 33-38 per cent. In either case the degree of disability would be not less than 30 per cent and that would enable damages to be awarded at common law without election by the worker to retain the right to seek damages, by virtue of the Act s 93E(3)(a).
24 Therefore for my part, while I would agree with Olsson AUJ that the failure to express the determination as a particular percentage would constitute a jurisdictional error which might be held to vitiate this portion of the determination on that ground alone, I would not be prepared to hold that on that ground, a writ of certiorari should issue to quash this aspect of the determination. I would take that view on discretionary grounds that the determination might be treated as being one fixing the psychiatric disability at 15 per cent without effectively altering the legal position of the applicant or the worker from the situation which would apply if the top of the range of percentages was taken to be the determination.
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25 I agree however with Olsson AUJ that there is a further difficulty with respect to this purported determination which is fatal and constitutes an error of law on the face of the record. It arises out of the qualification contained in the reasons of the panel that:
"In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covers the present and the foreseeable future (a period of 2-5 years from now). In the future various factors could change the psychiatric disability in either direction."
26 That qualification makes it perfectly apparent that the psychiatric disability has not been assessed within the framework imposed by Item 8 of Sch 2. It would seem that the panel considered that it had not been established that there was any "permanent and incurable loss of mental capacity" and it is not clear what the determination of the panel might have been (and why it would have made it) if it appreciated that it was being asked for a determination of an indefinite or enduring kind, rather than temporary incapacity, resulting in total inability to work. As to the nature of the determination required I would only note that Item 8 of Sch 2 refers to "permanent and incurable" loss of mental capacity. The judgment about that must clearly be made as at the time when the matter is before the panel. It must then appear that the mental incapacity to work will extend indefinitely into the future and is incapable of being cured if the matter is to be dealt within the framework of Sch 2.
27 The valid portions of the determination of the Panel, as I would think them to be, seem to me to be clearly severable from the determination with respect to the psychiatric disability. In my opinion the Court should therefore quash by the issue of certiorari only that part of the determination which concerns the worker's psychiatric disability: Ansett Australia Ltd v Medical Assessment Panel at 401-2.
28 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision of Olsson AUJ. I agree with them and with his Honour's conclusions. I have nothing to add.
29 OLSSON AUJ: This is the return of an order nisi for a writ of certiorari against the respondents, who constituted a Medical Assessment Panel ("MAP" pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 ("the Act").
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30 The applicants, as the employers of an injured worker (Stafford), seek an order quashing a determination by the MAP pursuant to s 145A of the Act, dated 11 May 2001, that such worker suffers permanent residual disability
(1) of the right shoulder pursuant to item 13 of Sch 2 of the order of 20 per cent loss of effective use of the right upper limb;
(2) of the back pursuant to item 36A of Sch 2 of nil; and
(3) due to a psychiatric disability and pursuant to item 8 of Sch 2 of the order of 15-20 per cent.
31 Their application is based on three grounds.
32 First, it is said that, contrary to the principles of natural justice and the requirements of s 145E(3) of the Act, the MAP failed to give adequate reasons for its determination, in that, as to (1) and (3) above, it did not explain how and why it reached the relevant conclusion, the factual foundation for it and the reasons why it rejected evidence to the contrary.
33 Second, it was averred that the MAP erred in law by assessing permanent psychiatric disability pursuant to item 8 of Sch 2 "in the order of 15-20%" when the medical evidence presented to it did not support such an assessment and it was incumbent on the MAP to make a specific determination, rather than a percentage range.
34 Finally, it was complained that the MAP did not act in accordance with the rules of natural justice in that it failed to disclose to the applicants the existence and content of the report of Dr Ding dated 10 December 1999, so that the applicants could have an opportunity of responding to it. It was also said that the MAP left it unclear whether it had the benefit of Dr Ding's report for the purpose of making its determination and, if it did, how (if at all) that report affected their decision.
35 I first turn to the background facts giving rise to the proceedings. These appear to be non-contentious, at least as to the broad narrative history.
36 The worker, Stafford, is a man now aged upwards of 41 years. He is said to be a person of limited education who had been employed as a heavy vehicle driver for many years. He commenced employment with
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- the applicants in July 1998, operating a general haulage road train on the Perth/Karratha route.
37 On 6 December 1998 he was loading 44-gallon drums on the tray of a 40-foot trailer. He had completed one stack and was actually standing on a drum. He slipped on some oil spillage and fell down between some drums. It seems that his right arm struck the edge of a drum as he fell, causing an abduction and rotational injury. This incapacitated him for work.
38 Conservative treatment failed to relieve subsequent symptoms of pain and restriction of movement of his arm. An MRI scan in January 1999 indicated a need for surgical treatment and suggested that some pre-existing degenerative change had been aggravated.
39 An orthopaedic surgeon performed a right shoulder arthroscopy on 11 March 1999. This revealed the presence of what was described as "a significant labral tear extending from just below the biceps attachment to the anterior inferior corner. The labarum was raggedly torn and was in fact prolapsing into the joint." Remedial surgery was carried out and the surgeon anticipated a good long term result, consequent upon an appropriate physical therapy programme.
40 Immediately after this surgery Stafford appeared to make reasonably good progress. He was considered fit for light duties by June 1999, but it was noted that his employer had no suitable light duties to offer him.
41 The medical reports indicated that Stafford had returned to driving duties on a trial basis by early September 1999, but he still reported discomfort in his shoulder. In mid-November he complained of episodes of sharp pain, followed by swelling around the right shoulder joint. When examined by an orthopaedic and rehabilitation specialist at that time an opinion was expressed that his condition was not stable, and that, although he was able to drive trucks, he had been incapacitated for his pre-injury work, because he could not cope with tasks such as loading or unloading, or tying down loads with a tarpaulin and rope.
42 Stafford was reviewed by a consultant orthopaedic surgeon in December 1999 and complained of significant disabling pain in his right shoulder, with limitation of function in his right shoulder joint. The consultant felt that the symptomatology was relatively exaggerated. At about that time his treating surgeon considered that there was a degree of residual instability in the shoulder.
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43 The worker did not improve and further arthroscopy was conducted on 9 March 2000. A lesion was shaved and a shoulder stabilisation procedure carried out.
44 Meanwhile, in mid-December 1999, a consultant psychiatrist, Dr Les Ding, examined Stafford. He was of the opinion that "the intensity of [the] psychological reactions are not sufficiently severe to warrant a psychiatric diagnosis of adjustment disorder". However, he did note significant distress on the part of Stafford and observed that he appeared to have a great deal of difficulty coping with the uncertainty of his situation "and helplessness".
45 On 8 March 2000 Stafford was reviewed by another consultant psychiatrist. That consultant was firmly of the opinion that, at that point, Stafford had developed an Adjustment Disorder, with depressive and anxiety symptoms. The consultant felt that the worker's symptoms had definitely intensified over the preceding three months, given that he had reported significant psychological distress when seen by Dr Ding. Anti-depressant medication was prescribed.
46 It only remains to recite that, although the further shoulder surgery was considered to have improved the stability of Stafford's shoulder, the preponderance of reported medical opinion was to the effect that he remained unfit for his former work (although he could perform actual driving duties) and would need training for some alternative occupation.
47 However, by November 2000, it was reported that his psychiatric condition had deteriorated. Dr Proud, a consultant psychiatrist, considered that he was then suffering major depression, with associated alcohol abuse. In the following February another psychiatrist also reported major depression - a condition which was significant and required further treatment.
48 As against that history, on 22 February 2001, a consultant orthopaedic surgeon reported to SGIO Insurance that, in his opinion:
• Stafford's condition had stabilised;
• He suffers no disability in the function of his right shoulder, regardless of his symptomatology; and that
• "there is no doubt that Mr Stafford would be able to return to his pre-accident duties as a truck driver on a full time basis".
49 I have dwelt on that background in some detail because it provides an important backdrop against which the issues arising in these proceedings fall to be considered.
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50 On 7 December 1999, a Form 22 Referral of Question of Degree of Disability was filed on behalf of Stafford with the Conciliation and Review Directorate. This alleged a relevant level of disability of not less than 16 per cent. On 20 December the employers filed a Form 23 disputing that assertion and requesting referral of the issue to the Directorate.
51 The worker also filed a Form 25 Election to Retain Right to Seek Damages, in which he claimed a degree of disability of not less than 16 per cent. That election has not yet been registered by the Director of Conciliation and Review, because a determination has not been made by the Review Officer that Stafford's degree of disability is not less than 16 per cent. It is, however, to be noted that, if it is eventually determined that Stafford's disability is not less than 30 per cent, he is not, in any event, required to make an election in order to seek common law damages (see s 93E(3)(a) and (b) of the Act).
52 The above Form 22 Referral came before a review officer on 8 February 2001 and a dispute arose concerning a request on behalf of the employers to have access to Dr Ding's report. The worker claimed privilege in respect of it. After considering the report, the review officer upheld the claim to privilege.
53 On 14 March 2001 the review officer, inter alia, ordered that "the relevant level of disability for the physical and psychiatric injuries be referred to a medical assessment panel".
54 It is not presently in dispute that, in conducting its assessment, the MAP had before it all relevant medical reports, including that of Dr Ding. The solicitors for the applicants were not aware of that fact and, on 11 May 2001, wrote to the Panel requesting it to exercise its power to require production of the Ding report.
55 On 11 May 2001 the MAP issued its formal determination in writing. The substance of that determination was expressed as follows -
"The Medical Assessment Panel constituted pursuant to section 145C of the Workers' Compensation and Rehabilitation Act 1981 ('the Act') to determine the question referred to it, concluded its determination on the day of 2001.
The determination took place at Joondalup and the worker was in attendance, did have questions put to him and was submitted to a medical examination by the Medical Assessment Panel.
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- QUESTION FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL
The Medical Assessment Panel determines as follows:
What is the relevant level as to the degree of disability of this worker in accordance with section 93D of the Worker's Compensation & Rehabilitation Act 1981 ('the Act'). In particular what is the permanent percentage disability assessment in relation to the worker's right shoulder pursuant to Item 13 of Schedule 2, his back pursuant to item 36A of Schedule 2 and psychiatric disability pursuant to item 8 of Schedule 2 or Chapter 14 of the AMA Guide.
Answer
QUESTION FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL
We are of the opinion that the worker suffers permanent residual disability:
(a) of the right shoulder pursuant to item 13 of schedule 2 of the order of 20% loss of effective use of the right upper limb
(b) permanent residual disability of the back pursuant to item 36A of schedule 2 of nil
(c) permanent psychiatric disability pursuant to item 8 of schedule 2 of the order of 15-20%.
The reasons for the determination are as follows:
Residual disability in the right shoulder is based on the presence of ongoing tendonitis involving the infra supraspinatous, supraspinatous and biceps tendons as demonstrated by restricted active motion of the right shoulder, painful arc and flexion.
There is evidence of residual arthropathy of the acromio clavicular joint. There are no residual complaints of spinal pain in the cervical, thoracic or lumbar spine.
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The Psychiatric Determination is based on a Major Depressive Disorder with strong reactive component stemming from the physical problems and the associated consequences on work, social, personal and family levels. In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covers the present and the foreseeable future (a period of 2-5 years from now). In the future various factors could change the psychiatric disability in either direction.
The Chairman received a facsimile submission from Phillips Fox Lawyers which more correctly should have been submitted through the Director of the Conciliation and Review Directorate. The content of this submission was not disclosed to the other members of the panel nor did it play any part in the deliberations. The issue canvassed in the facsimile from Phillips Fox had in fact been addressed by the pre-reading material made available to the panel. The submission was therefore not relevant.
Yours sincerely
JOHN CROSER
CHAIRMAN
JC:HH
11 May 2001"
56 It is that determination which the present proceedings seek to impugn.
57 On the hearing of this matter there was no appearance on behalf of either Stafford or the MAP. Ms Pritchard, counsel for the Attorney-General, who was present in relation to another matter, volunteered to appear as amicus curiae. The Full Court accepted her offer with alacrity, as well as her suggestion that she subsequently forward detailed and considered written submissions. The Court should, I consider, formally express its gratitude for her considerable assistance in this matter.
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58 As Ms Pritchard pointed out in her written submissions, it is initially necessary to direct attention to the question as to whether certiorari lies in a matter such as that now before the Court.
59 There can be no question that such a remedy is available if a tribunal falls into jurisdictional error, if it makes an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, in some situations, to make an erroneous finding or reach a mistaken conclusion (Craig v State of South Australia (1995) 184 CLR 163 at 179). This is because the tribunal's exercise, or purported exercise, of power may thereby be affected in a manner which produces the result that it exceeds its authority or powers.
60 Such a remedy extends to determinations of a medical assessment panel constituted under the Act. (Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 at 401, referring to Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996.)
61 There does not appear to be a definitive decision of this Court as to whether the provision of inadequate reasons by a MAP constitutes a failure to comply with the provisions of s 145E of the Act which can found prerogative relief.
62 It is certainly clear that, if a failure to give adequate reasons gives rise to an inference that a tribunal has failed to exercise its powers according to law, then an appellate court will be justified in interfering (Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446). In the last mentioned case, Brennan J expressed the view that the failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administration decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. He was there, of course, adverting to a statutory appellate process, rather than a prerogative remedy.
63 In the later case of Dornan v Riordan (1990) 95 ALR 451 ("Dornan"), in proceedings for judicial review, the Full Court of the Federal Court held that a substantial failure to state reasons for a decision, in a situation in which a statement of reasons is a requirement of the exercise, under a statute, of a decision-making power, constitutes an error of law which can found an order of the nature of certiorari. That decision has been confirmed by later decisions of the Full Court of the Federal Court in cases such as Muralidharan v Minister for Immigration and
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- Ethnic Affairs (1996) 136 ALR 84, notwithstanding criticisms of the reasoning later expressed by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647 at 656 - 659. The issue was expressly left open by the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 479, although Dornan seems to have been accepted as good law by Kirby J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at 1126.
64 As I read the reasons for judgment in Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111, Ipp and Miller JJ were prepared to accept the reasoning in Dornan v Riordan (supra), whilst Murray J preferred to leave for another day the question of whether the asserted inadequacy of reasons might itself constitute an error of law on the face of the record such as would ground prerogative relief of the return of certiorari.
65 The last mentioned issue had, earlier, been adverted to in Re Wong & Ors; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998. The Full Court, on the facts, had found it unnecessary to resolve it.
66 The essential requirement for the giving of adequate reasons is that they disclose the reasoning processes of the relevant tribunal. This, in turn, should enable the parties and, for that matter, any court of review to determine whether there has been a reviewable error.
67 Although there has, over time, been some judicial difference of opinion on the point, there is now firm authority for the proposition that the failure of a judicial officer to give adequate reasons for decision will normally constitute an error of law. (Pettitt v Dunkley [1971] 1 NSWLR 376, Fleming v The Queen (1998) 197 CLR 250 at 260 [22], Papps v Police (2000) 77 SASR 210). The rationale of that conclusion is that, when inadequate reasons are given, the function which the law calls upon the judicial officer to exercise has not properly been fulfilled. (See also the discussion of the relevant authorities by Doyle CJ in R v Keyte (2000) 78 SASR 68 at 77- 79).
68 In my opinion the same reasoning is no less apposite to a situation in which a tribunal such as the MAP is bound by statute, in arriving at its determination, to publish reasons for making it. An identical rationale is plainly applicable. It is such a rationale which properly founds the line of reasoning evidenced by the decision in Dornan.
69 The first point made by Ms Wood, for the applicants, as to the merits of these proceedings, was that the form of the determination made by the
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MAP was, on the face of it, so inadequate that it did not constitute a proper discharge of its statutory and common law duty.
70 She took, as her commencement point, what fell from Kennedy J in Re Babban; Ex parte Suleski [2001] WASCA 289. There are, I think, two excerpts from those reasons which are important for present purposes. In par 12 he said -
"The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error: see Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 47, Ansett Transport Industries (Operations) Pty Ltd v Wrath (1983) 48 ALR 500 at 507, Telescourt v Commonwealth (1991) 29 FCR 227."
71 Later, in par 14, he made the points –
"It is important that the applicant should be able to understand, from the reasons for decision, why he has had his claim dismissed. He should be told in clear and unambiguous language why he has lost. What is required, at the least, in the Panel's reasons is that they give the medical reasons in sufficient detail to show that the questions referred to it have been properly considered according to law, and that the answers furnished are founded upon an appropriate application of the members' medical knowledge and experience – cf Masters v McCubbery [1996] 1 VR 635, per Callaway JA at 661."
- (These dicta are, with respect, entirely in accord with the authorities to which I have above referred.)
72 I would merely wish to add to what fell from Kennedy J that it needs to be borne in mind that Medical Assessment Panels are constituted of medical practitioners who have a large number of cases coming before them. It is not to be expected that they will produce the closely reasoned decision of a lawyer. What is required is the writing of a determination which, on a fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to satisfy the above dicta.
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73 What will suffice will, no doubt, vary from case to case, dependent on the nature of the areas of contention to be addressed. Some situations will permit of a fairly brief statement of reasons. Others may require a somewhat more detailed analysis of the medical evidence, the findings on examination and other aspects as, for example, adverted to in Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111 at [39].
74 In the instant case the MAP had before it a plethora of medical reports extending back over a lengthy period of time. These expressed widely varying assessments of disability, due to both physical and psychiatric factors. Some of them were in considerable conflict and impossible to reconcile with one another. At the end of the day it was necessary for the MAP to make an independent assessment, based on its own examination of Stafford, with what assistance could be derived from the many medical reports.
75 What the determination ultimately conveyed was this:
• The MAP had before it a quantity of "pre-reading material". [We know this to have been the many medical reports now before the Court, including that of Dr Ding.]
• Stafford attended before the MAP, was questioned by the members of it and then subjected to a medical examination by the Panel.
• The MAP [correctly] assessed that its task was to focus on the permanent percentage disability assessment in relation to Stafford's right shoulder pursuant to Item 13 of Sch 2, his back pursuant to Item 36A of Sch 2 and psychiatric disability pursuant to Item 8 of Sch 2 or Ch 14 of the AMA Guide.
• The MAP was of opinion that there was a right shoulder Item 13 permanent residual disability "of the order of 20 per cent loss of effective use of the right upper limb" arising from the physical conditions detailed in the determination. [The description of those conditions can be read as inferring that their existence has been accepted as a result of the medical examination by the Panel, albeit against the background of the relevant medical reports. However, the MAP does not expressly say so.]
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- • The Panel was further of the opinion that Stafford had a permanent psychiatric disability pursuant to Item 8 'of the order of 15-20%', based on a Major Depressive Disorder, with strong reactive component stemming from the physical problems and the associated consequences on work, social, personal and family levels. [Presumably this, also, is the independent assessment of the MAP. It is expressed using language which has not simply been culled from the medical reports.]
76 What is odd about the reasons for determination, as to the permanent psychiatric disability, is that the MAP goes on to say –
"In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covers the present and the foreseeable future (a period of 2-5 years from now). In the future various factors could change the psychiatric disability in either direction."
77 On the face of it, that comment is very difficult to reconcile with the notion of the assessment of a permanent psychiatric disability. I will shortly return to that aspect.
78 Be that as it may, the initial question must be asked as to whether the determination, so analysed, can reasonably be said to meet the criteria expressed in Rusich and Babban.
79 I am bound to confess that, in considering this matter, my mind has vacillated over time. On any view the determination is very sparse in its expression and leaves a good deal to be desired. At best it is a question of what can reasonably be inferred from its content, to supplement what is not expressly said. It is small wonder that the applicants express difficulty in understanding the route by which the assessments have been arrived at.
80 A criticism which can fairly be levelled at the determination is that it does not indicate what view the MAP took of the conflicting medical reports and why it was, in light of the diversity of opinions expressed, it arrived at the conclusions to which it came.
81 Whilst it is important that panels such as this be not saddled with what, in practical terms, are unrealistic and unduly burdensome obligations, nevertheless, there comes a point at which it can properly be
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- said that what has been written falls short of meeting the minimum requirement.
82 I have concluded that, in form, the determination of the MAP does not meet the minimum requirement in the present case. At the end of the day the MAP had to make its own independent assessment (Rusich, par [30]). As to the psychiatric component, one member of the MAP was a specialist psychiatrist. However, there is simply no explanation of how and why the MAP arrived at its conclusions, against the background of the conflicting medical reports.
83 At the end of the day, it is impossible to see how the parties could discern, with any real degree of confidence, on what basis the assessments made were arrived at. That being so, the MAP has not discharged its obligations, as spelt out in Re Babban and Re Wong.
84 I would therefore uphold the assertion that the MAP erred in law in failing to give adequate reasons for the assessments which it made.
85 In so concluding, I do not imply that the MAP was bound to explain, in analytical detail, why it rejected or accepted the content of each of the various medical reports before it. That would place what would be an unacceptable and unreasonable burden on it. On the other hand, it is important that, in at least a general way, it indicates its independent assessments in light of the various medical reports and the reasons why it has arrived at them.
86 The applicants further advanced criticisms of the form in which the empirical assessments were expressed. It was submitted that the duty of the MAP was to arrive at determinations of any relevant permanent residual disabilities as specific percentage figures and that it failed to do so.
87 In my opinion there can be no doubt that the Act did call upon the MAP to arrive at specific percentage figures in each instance. Section 25 and the Second Schedule plainly envisages this and Pt IV of that statute would become unworkable if it were not done.
88 I consider that this requirement was met by a determination expressed as being "of the order of 20 per cent less of the effective use of the right upper limb". Whilst the phrase "of the order" might well have been omitted, it is clear that the MAP in fact made a determination of a specific 20 per cent loss.
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89 The situation is somewhat different in relation to what was said to be Stafford's permanent psychiatric disability. To say that a disability is "of the order of 15-20 per cent" is not an effective determination for the purposes of the Act, because it does not potentially permit the making of any proper "Table" calculation under Item 8. The task of the MAP has not fully been discharged in this case, because it has failed to arrive at a specific percentage determination, rather than a mere percentage range.
90 If this was the only aspect of the last mentioned determination to be considered in the instant case and had the MAP given adequate reasons for its assessment, it may, nevertheless, have been inappropriate for this Court to intervene by way of prerogative relief.
91 Having regard to the operation of s 93D(2)(a)(ii) of the Act, if one accepts 15 per cent psychiatric disability (being the bottom of the range) and a 20 per cent right upper limb loss, the appropriate calculation of total disability would be as follows:
[15/100 x 100] = [20/100 x 90] = 15 + 18 = 33%
- Stafford would, on any view, be entitled, in such a situation, to pursue a claim for damages by virtue of s 93E of the Act.
92 But another, related, problem arises for consideration. Due regard must be had to the impact of the comment by the MAP that the psychiatric assessment "covers the present and foreseeable future (a period of 2-5 years for now). In the future various factors could change the psychiatric disability in either direction".
93 It was the responsibility of the MAP to arrive at a positive fixation of any permanent psychiatric disability which, in their opinion, existed. If the Panel was not satisfied that the material before it established the existence of a permanent psychiatric disability at the time of examination, it should have said so. Its qualified determination indicates to me that it was not so satisfied (cfJuras (supra) per Murray J at 13). Indeed, what was said is, in reality, a contradiction in terms.
94 As Packington CM pointed out in his reasons in Kinsella v Seton Catholic College, unreported; CM-112/00 1125; 22 February 2001, neither the words "permanent" or "permanently" are defined in the Act. However, all of the dictionary definitions of those words convey the notion of that which is continuing indefinitely (i.e. for the foreseeable future), or enduring, as opposed to temporary. In terms, the assessment of the MAP simply does not meet that description. To say that the
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- assessment covers a period of 2-5 years and that this disability could change in either direction is to indicate that the determination is not one in relation to a permanent disability.
95 It follows that the MAP fell into error, on the face of the record, in that it did not, in any event, make a determination of Stafford's permanent psychiatric disability according to law.
96 I would make the order nisi for certiorari absolute as to the whole determination of the MAP and order that it be quashed. The matter should be returned to the MAP to be further dealt with by it according to law.
97 For the sake of completeness I should record that a final complaint proffered by the applicants was that the MAP failed to disclose to them that it had received and considered Dr Ding's report and permit them to have access to its content.
98 In the event, Ms Wood did not seriously press this issue when it was pointed out to her that a major thrust of the applicants' earlier complaints had been that the report in question should have been before the MAP and that the solicitors for the applicants had actually written to the Panel urging it to procure and study that very report. (A copy of Dr Ding's report was supplied to the solicitors for the applicants subsequent to the MAP determination).
99 The letter written to the MAP did not suggest that, if the report was presented by the Panel, the appellants desired access to it and an opportunity of responding in some fashion.
100 The appellants cannot now logically complain when the MAP has done no more than accede to its request.
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