Toyota Motor Corporation Ltd v Kotzman
[2010] VSC 71
•10 March 2010 (Ex tempore). Revised reasons published 12 March 2010.
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
IN THE JUDICIAL REVIEW AND APPEALS LIST
No. 8609 of 2009
| TOYOTA MOTOR CORPORATION LTD CAMBRIDGE INTEGRATED SERVICES (VIC) LTD | Plaintiffs |
| v | |
| DR DAVID KOTZMAN STEVEN LEITZ STANLEY O’LOUGHLIN JAMES CARSON YVONNE GREENBERG DRAGAN TALEVSKI | Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant Fourthnamed Defendant Fifthnamed Defendant Sixthnamed Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9-10 March 2010 | |
DATE OF JUDGMENT: | 10 March 2010 (Ex tempore). Revised reasons published 12 March 2010. | |
CASE MAY BE CITED AS: | Toyota Motor Corporation Ltd & Anor v Kotzman & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 71 | |
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ACCIDENT COMPENSATION – Medical panel – Panel forms opinion that there is no “suitable employment” for the injured worker – Employer seeks certiorari to quash panel’s opinion – Whether panel failed to take into account particular vocational assessment – Whether panel’s reasons inadequate – No such errors – Application for certiorari dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton | Thomson Playford Cuttlers |
| For the Sixth Defendant | Mr R C Forsyth | Patrick Robinson & Co |
HIS HONOUR:
This is an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 for an order in the nature of certiorari to quash an opinion of a Medical Panel under the Accident Compensation Act 1985.
The issues before me have really come down to two: first, whether the Panel had regard to all that it was required to have regard to in relation to the question of whether the injured worker was capable of “suitable employment” within the meaning of that expression as defined in s 3 of the Accident Compensation Act; and, second, whether the Panel sufficiently explained its reasons for concluding that the worker was not capable of suitable employment.
Although Mr Gorton has very carefully and persistently and skilfully advanced submissions criticising the reasons of the Panel I am not persuaded that the Panel failed to take into account any relevant considerations (in the sense of mandatory considerations[1]) or that its reasons were inadequate.
[1]See Moyston Court Fisheries Ltd v Malios [2007] VSC 518 (J Forrest J) at [42]-[55]; Milwain v Sim [2009] VSC 75 (Kyrou J).
I assume in favour of the employer, without deciding, that each of the “considerations” listed at paragraph [47] of the judgment of J Forrest J in Moyston Court Fisheries Ltd v Malios[2] - one of which comprises all the material and documents provided to the Panel by the referring body or person - is a mandatory consideration for every medical panel, as his Honour held.
[2][2007] VSC 518.
Essentially, the employer’s case is to the effect that the Panel omitted to consider one of the documents provided to the Panel by the referring body, namely the “employment capacity analysis” report and attached DVD produced by an organisation called “healthe.work” dated 18 November 2008, or alternatively failed to explain adequately in its reasons why it was not persuaded by the report of healthe.work.
However, at the beginning of its reasons[3] the Panel said:
“The documents considered by the Panel are described in enclosure A.”
The report of healthe.work and the associated DVD are indeed listed in Enclosure A to the Panel’s report.
[3]CB 44.
At the foot of the list of documents and materials the Presiding Member of the Panel certified as follows[4]:
“I refer to the Medical Panel convened in this matter of which I am a member and acknowledge receipt of the medical and other material listed in this schedule and confirm that the Panel took this information into consideration in forming the opinion.”
[4]CB 52.
In addition, in the course of its reasons, the Panel said[5]:
“The Panel noted the vocational assessments supplied with the referral which contained suggested job options for the worker.”
[5]CB 50.
So, in one way or another, the Panel has asserted three times that it considered all of the vocational assessments that were supplied.
Further, the Panel gave sufficient indication in its reasons that it had indeed considered the issues thrown up by the various vocational assessments. Relevantly, the Panel said this[6]:
“The Panel concluded that the nature of the worker’s physical condition is such that he is not capable of performing his pre-injury duties as a press operator which involved prolonged standing and carrying heavy dies.
Taking into account all aspects of the definition of ‘suitable employment’ in the Accident Compensation Act 1985 and in particular his age of 59 years (which would restrict his potential employment options), the nature and extent of his physical conditions, his limited skills and work experience, working for the one employer in Australia for 17 years, and notwithstanding his education in Macedonia, his reasonable English language skills and his place of residence in suburban Melbourne, the Panel considered that there is no work for which the worker is currently suited and which he could perform on a consistent basis.
The Panel noted the vocational assessments supplied with the referral which contained suggested job options for the worker. Based on its analysis of the criteria for suitable employment set out in the previous paragraph, the Panel concluded that the job options of administrative officer, accounting clerk, production clerk, production supervisor, quality control officer, hospitality manager and customer services assistant, do not constitute suitable employment for the worker.
The Panel noted the defendant’s submission, wherein it is stated that ‘notwithstanding the plaintiff’s injuries (actual or alleged), medical and vocational opinion in conjunction with the other matters referable to suitable employment (such as the plaintiff’s education, skills and work experiences, are supportive of the plaintiff having a current work capacity’. The Panel disagrees with this conclusion for the reasons set out above.
The Panel therefore concluded that the worker has no current work capacity and that this incapacity is still materially contributed to by the alleged right elbow and left knee injuries.”
[6]At CB 49-50.
I am satisfied that the Panel’s assertion that it considered the vocational assessments (including that of healthe.work) should be accepted.[7]
[7]For a similar conclusion based on similar considerations, see Davidson v Fish [2008] VSC 32 (Pagone J) at [13].
Hence Toyota needed to persuade me that the report by healthe.work was such that something more was required to be said by the Panel than what it did say in order fairly to deal with Toyota’s case and to explain why Toyota’s case was not accepted.
I have read the healthe.work report carefully and I have read it in the context of the other vocational assessments that were tendered to the Panel.[8] I simply cannot accept that it added anything of significance to one of the prior vocational assessment reports that was tendered on behalf of Toyota, namely that of the IWCC organisation, which (as was common ground) the Panel did take into account. The healthe.work report examined 5 occupations, of which only 2, namely weighbridge operator and guardhouse attendant, were additional to those canvassed by IWCC. Neither of those two, in my opinion, was substantially different in kind from the numerous other occupations that had been considered in depth in the IWCC report (and that were later considered again in the detailed report obtained by the worker, namely the Evidex report). Further, I note that, in relation to the guardhouse attendant occupation, healthe.work managed to mis-state the relevant requirements for that position, presumably by reason of a clerical or a typing error.
[8] One of the reports obtained by Toyota itself was a report by Inergise Australia Pty Ltd dated 14 May 2004 in which, as part of the conclusion, the following was said:
I acknowledge that, apparently, the principal of healthe.work went out and examined the 5 suggested positions on site. However, to my mind, that does not add anything of sufficient significance to render the omission of the Panel expressly to analyse the healthe.work report a matter warranting the description of error of law or failure to provide adequate reasons. The Panel did not refer to any of the vocational assessments by name, except in the list in Appendix A where it referred expressly to all of them. Nor did the employer’s written submissions to the Panel, which were prepared by its solicitors, distinguish between the vocational assessments in any respect.
I have had regard to all of the cases that have been cited to me in relation to the obligation to give reasons in medical panel matters,[9] and I have taken those cases into account in forming my view that in this case the reasons are not inadequate. I note that this is an expert panel, not a tribunal constituted by legally qualified members, and that it is not required to provide reasons to the same level of comprehensiveness or to the same level of analysis as a court or a tribunal constituted by legally qualified members might be required to do.
[9]The most recent of the cases cited was Western Health v Gallichio [2009] VSC 134.
It is at the end of the day a matter of impression whether the reasons are sufficient or not and I am not persuaded that these reasons are insufficient.
For those reasons the proceeding will be dismissed.
[After discussion as to costs].
The plaintiffs must pay the sixth defendant’s (Mr Talevski’s) costs.
“Mr Talevski expressed an interest in returning to work at Toyota in work as outlined above, i.e. a less physical, more office-based role. Despite his motivation to do so, it is unlikely that he would be able to do this work on a full-time basis, as his ability to work on computers is limited due to his pain levels”: CB 203.
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