Van Dongen v Masters Dairy
[2001] WASCA 1
•19 JANUARY 2001
VAN DONGEN -v- MASTERS DAIRY [2001] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 1 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:161/1999 | 12 JULY 2000 | |
| Coram: | KENNEDY ACJ WALLWORK J ANDERSON J | 19/01/01 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | MARTIN VAN DONGEN MASTERS DAIRY |
Catchwords: | Workers' compensation Requirement by employer for worker to submit to medical examination Request by worker to have notes taken of interview Whether worker refused to submit to examination or in any way obstructed it without reasonable excuse Whether condition of taking notes reasonable |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 s 65 |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hall v Avon Area Health Authority [1980] 1 WLR 481; [1980] 1 All ER 516 Morgan v William Dixon Limited [1912] AC 74 Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552 Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bednarczyk v Natcorp Investments Ltd, unreported; FCt SCt of WA; Library No 970363; 23 July 1997 Black v City of South Melbourne [1963] VR 34 Brambles Manford v Fuller, unreported; Compensation Magistrate's Court; CM-2/98; 25 May 1998 Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1 Grigoletto v Myer Properties WA Ltd, unreported; FCt SCt of WA; Library No 8271; 9 May 1990 Hood v Royal Perth Hospital, unreported; FCt SCt of WA; Library No 970658; 5 December 1997 Hope v Bathurst City Council (1980) 144 CLR 1 Major Holdings Pty Ltd v Automotive Holdings Group Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 990010; 22 January 1999 Marford Nominees Pty Ltd v State Planning Commission, unreported; FCt SCt of WA; Library No 960047; 1 February 1996 Quinlivan v Portland Harbour Trust [1963] VR 25 Thomas and Smith Cleaning Services v Radic, unreported; FCt SCt of WA; Library No 950591; 19 October 1995 Wasylkewycz v Fremantle Hospital, unreported; Compensation Magistrate's Court; No CM-95/96; 28 February 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : VAN DONGEN -v- MASTERS DAIRY [2001] WASCA 1 CORAM : KENNEDY ACJ
- WALLWORK J
ANDERSON J
- Appellant
AND
MASTERS DAIRY
Respondent
Catchwords:
Workers' compensation - Requirement by employer for worker to submit to medical examination - Request by worker to have notes taken of interview - Whether worker refused to submit to examination or in any way obstructed it without reasonable excuse - Whether condition of taking notes reasonable
Legislation:
Workers' Compensation and Rehabilitation Act 1981 s 65
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Appellant : Mr M E Herron
Respondent : Mr P E Jarman & Ms E C McLennan
Solicitors:
Appellant : Gibson & Gibson
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Hall v Avon Area Health Authority [1980] 1 WLR 481; [1980] 1 All ER 516
Morgan v William Dixon Limited [1912] AC 74
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552
Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459
Case(s) also cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bednarczyk v Natcorp Investments Ltd, unreported; FCt SCt of WA; Library No 970363; 23 July 1997
Black v City of South Melbourne [1963] VR 34
Brambles Manford v Fuller, unreported; Compensation Magistrate's Court; CM-2/98; 25 May 1998
Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1
Grigoletto v Myer Properties WA Ltd, unreported; FCt SCt of WA; Library No 8271; 9 May 1990
Hood v Royal Perth Hospital, unreported; FCt SCt of WA; Library No 970658; 5 December 1997
Hope v Bathurst City Council (1980) 144 CLR 1
(Page 3)
Major Holdings Pty Ltd v Automotive Holdings Group Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 990010; 22 January 1999
Marford Nominees Pty Ltd v State Planning Commission, unreported; FCt SCt of WA; Library No 960047; 1 February 1996
Quinlivan v Portland Harbour Trust [1963] VR 25
Thomas and Smith Cleaning Services v Radic, unreported; FCt SCt of WA; Library No 950591; 19 October 1995
Wasylkewycz v Fremantle Hospital, unreported; Compensation Magistrate's Court; No CM-95/96; 28 February 1997
(Page 4)
1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Wallwork J, with which I am generally in agreement.
2 An appeal only lies to this Court from a decision of a Compensation Magistrate "on a question of law": Workers' Compensation and Rehabilitation Act 1981, s 84ZW. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 355 - 356, Mason CJ discussed the distinction between an error of fact and an error of law. His Honour said:
"The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council (1980) 144 CLR 1, at 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at 481, 483.
But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth (1987) 163 CLR 54, at 77, per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (1966) 116 CLR 644 at 654:
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning,
(Page 5)
- there is no place for judicial review because no error of law has taken place."
3 At 356 - 357, Mason CJ went on to observe that the approach taken in some English authorities that findings and inferences are reviewable for error of law on the ground that they could not reasonably be made out on the evidence, or reasonably be drawn from the primary facts, had not so far been accepted by the High Court.
4 In Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459, at 492, Callinan J observed that:
"There has been controversy in Australia since the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as to the meaning of 'error of law' when there is a question whether an appropriate factual substratum exists or not to support an ultimate legal conclusion."
- His Honour referred by way of example to M Aronson & B Dyer, Judicial Review of Administrative Action, (1966) at 273-289.
5 This problem is not unique to Australia. In H W R Wade and C F Forsyth, Administrative Law, 7th edn (1994) at 948, the learned authors wrote:
"The truth is, however, that there can hardly be a subject on which the courts act with such total lack of consistency as the difference between fact and law. The House of Lords has indeed laid down the rule explained in the following paragraphs, but it is commonplace to find courts proceeding in complete disregard of it. It may be that judges instinctively agree with an American comment:
'No two terms of legal science have rendered better service than "law" and "fact" …. They are the creations of centuries. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy.' [Leon Green, Judge and Jury, 270].
The House of Lords' attempts at definition have had, as will be seen, only partial success."
- Nevertheless, the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond stands as stating the authoritative test of a question of law.
(Page 6)
6 This appeal concerns the application of s 64(1) of the Workers' Compensation and Rehabilitation Act, which provides as follows:
"Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceedings under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."
7 Section 65, which relevantly uses the same language as s 64, but which is concerned with the situation where the worker has been receiving weekly payments of compensation, was considered by this Court in Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552. At 560 - 561, Malcolm CJ, with whose reasons Pidgeon J agreed, said:
"Where a person agrees to submit to a medical examination subject to a reasonable condition that cannot constitute a refusal. If a person agrees to submit to an examination subject to an unreasonable condition that may constitute a refusal. Whether or not the condition is reasonable is a question of fact. In my opinion, the real question raised by this appeal is whether in all the circumstances it was reasonable for the appellant to impose the condition which she did. The question of a reasonable excuse under s 65 only arises in the event that there is a refusal to submit to the examination or an obstruction of it."
- This decision, it should be noted, was delivered at a time when an appeal lay as of right from the Workers' Compensation Board to this Court without any restriction to a question of law only.
8 Section 64 of the Workers' Compensation and Rehabilitation Act is, for the present purposes, in the same terms as cl 4 of the First Schedule to the Workmen's Compensation Act 1906 (Imp), which was considered by the House of Lords in Morgan v William Dixon Limited [1912] AC 74. It was held in that case that whether a request by the worker for the presence of his medical attendant was, under the circumstances, reasonable was a question of fact to be determined by the arbitrator under the Act. In the present case, it appears to me that the critical issue is
(Page 7)
- whether the Review Officer asked himself the right question, which does raise a question of law.
9 The background to this matter is set out in the reasons for judgment of Wallwork J, and it is unnecessary for me to repeat the full details.
10 In relation to the first examination, the findings of the Review Officer were as follows:
"On 5 November 1997, after Mr Van Dongen completed the computerised questionnaire, Mr Groenewold indicated to Dr Mustac [the psychiatrist to whom he had been referred] that he intended to take notes of the interview. When Dr Mustac advised Mr Groenewold and Mr Van Dongen that notes could not be taken, Mr Groenewold stated he would need to seek advice. At that point Dr Mustac had said, "Go and seek legal advice", and had made it quite clear that the interview was over.
Mr Groenewold attempted to compromise but still wished to take notes. He believed he was there to support Mr Van Dongen and to take notes of the interview. Mr Groenewold attempted to conciliate by suggesting that the needs of both parties could be met by him sitting out of the way, but Dr Mustac had said that he would find this too distracting. Prior to the examination being terminated Mr Van Dongen had indicated that he would take the notes himself.
Mr Groenewold had said that he was going to get advice but had attempted to compromise the situation but, in any event, still wished to take notes."
- The computerised questionnaire, it should be noted, consisted of between 100 and 150 questions, which were answered by the appellant in Dr Mustac's rooms before he was interviewed by Dr Mustac. This clearly formed part of the examination.
11 The Review Officer, on the basis of his initial findings, made the following further findings -
"(1) That the applicant presented for the medical examination with the intention of co-operating, but also with an intention of having notes taken.
(Page 8)
- (2) That Mr Van Dongen's intention to take notes was based on advice from Mr Tim Houweling who, at that time it is reasonable to find, was a law student."
- The Review Officer concluded that the condition imposed by the appellant, upon which he would undergo the balance of the examination, was unreasonable. On a consideration, it would seem, of Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, he approached the issue of the reasonableness of the condition imposed by the appellant by balancing the need for notes to be taken by the worker against the concerns of Dr Mustac. He continued:
"It is the case that the worker had a belief that notes of the interview had to be taken. However, it is also the case that he was unable to say what the basis for that belief was other than that he had been told by Tim Houweling that this should be done. I do not think this is a satisfactory basis for a finding that the condition was reasonable. It is, I think, in the circumstances of this matter, an unreasonable condition to apply when submitting to a medical examination arranged under the provisions of s 64 of the Act.
I accept that a psychiatric examination is somewhat different from other medical examinations, but it is nevertheless, a medical examination for the purposes of s 64.
The likelihood of the taking of written notes being distracting to Dr Mustac was confirmed in his evidence, as was his view that there is a risk of inaccurate notes being taken by a worker or his friend.
I note that Ryan seems to be authority for the attendance at a medical examination of a close friend or family member being accepted as reasonable unless occasioned by other factors such as inconvenience, delay or expense."
He concluded:
"If the ordinary common sense meaning of the word [reasonable] is adopted, I think the correct conclusion is that Mr Van Dongen's condition, imposed at the first medical examination that notes had to be taken, when balanced against Dr Mustac's concerns was unreasonable and I so find.
(Page 9)
- Having found that the condition imposed by the applicant was unreasonable, it follows that he has therefore refused to submit himself to the medical examination or has obstructed it. I think that there has been a refusal to submit in these circumstances, but most certainly an obstruction of that examination, and I so find."
12 He then went on to consider whether the appellant had a reasonable excuse. As to this, he said:
"Notwithstanding a finding that the worker has obstructed the examination it is necessary that I consider whether the worker had a reasonable excuse. This is, I think, required by the wording of s 64. The question then arises - if the worker's condition is found to be unreasonable does it follow that the obstruction of the examination was without reasonable excuse? I accept this is the case and find the 'excuse' that the worker required the taking of notes, to be unreasonable on the same basis as I found the condition unreasonable.
I am therefore satisfied that the obstructing of the examination was without reasonable excuse."
13 A conciliation conference was subsequently held, as a consequence of which the appellant agreed to present himself for further examination by Dr Mustac, and the respondent's insurer agreed to pay for the video recording of the second appointment "as it would seem that Dr Mustac does not have any difficulty with such".
14 The appellant and Mr Groenewold again attended Dr Mustac's rooms and again the appellant completed a questionnaire. It was then discovered that no video camera was available for recording the examination.
15 The Review Officer, in considering the second examination, expressed the view that the examination was not one which had been required by the employer. It had, in fact, been arranged by a conciliation officer. It followed from this that the appellant had not been required by the employer in terms of s 64 to submit himself for examination by a medical practitioner. The Review Officer then went on, however, in case he might have been in error with respect to the first point, to consider whether the appellant's condition of being permitted to take notes was reasonable. He said:
(Page 10)
- "In relation to the taking of notes, I make two findings. The first is that Mr Van Dongen did not attend this appointment with the intention of taking notes. I also find that mention of the taking of notes, other than Dr Mustac's comments was not raised prior to discussion about the availability of the video recorder. I make this second finding on the basis that it is not logical that the discussions would eventuate in any other order, because the worker attended on the understanding that the examination would be video recorded.
I find that the parties attended expecting the medical examination to be videotaped. I further find that Dr Mustac clearly did not know or recall that an arrangement had been made to use a videotape. I also find that [the insurer] did not have an obligation to arrange or ensure that video equipment was available on 11 February 1998. It seems that after the appointment was made there was simply no further consideration given to whether or not the video equipment would be available on that particular day."
16 The findings of the Review Officer with respect to the second examination were:
"It is clear that Mr Van Dongen agreed to submit to the medical examination on condition that it be videotaped.
When that was not available I do not think the employer can rely on subsequent events to allege a refusal to submit or obstruction of the medical examination.
I think it is open to conclude on the facts that the condition Mr Van Dongen imposed in those circumstances was reasonable, it having been agreed to by the employer. It may have been quite different if that agreement was not present. It is, however, not necessary to consider that. Nor is it necessary to consider whether his conduct amounted to a refusal or obstruction in relation to the second appointment because the condition was reasonable.
I therefore state that had this been the only appointment on which findings were required, I would order that the worker be permitted to continue to prosecute his application subject to his attendance on Dr Mustac for a further appointment."
(Page 11)
17 There has been no appeal by the respondent from the Review Officer's findings regarding the second examination. The appellant, however, appealed to the Compensation Magistrate's Court (Mr P G Cockram SM) against the Review Officer's decision on nine grounds. Except in relation to the ground that the Review Officer erred in law in finding that there was an obstruction of the medical examination for the purposes of s 64, without reasonable excuse, the learned Magistrate dismissed the appeal. He held that the Review Officer had fallen into error on this ground by reason of his concluding that, if the worker's condition for undergoing the examination were found to be unreasonable, it followed inevitably that the obstruction of the examination was without reasonable excuse. The matter was therefore remitted to the Review Officer for further consideration on this point. It was determined that the review should proceed on the basis that the appellant could adduce any further evidence which was thought to be necessary on the issue to be decided. Evidence was then taken from Mr Houweling and from the appellant. The question before the Review Officer, having regard to the learned Magistrate's decision, was limited to whether the appellant had a reasonable excuse for refusing to submit himself to an examination, or for obstructing the balance of an examination on 5 November 1997.
18 Having heard the additional evidence, on the basis of the decision in Prescott v Bulldog Tools Limited, although acknowledging that it was not entirely on the point, the Review Officer concluded that "it is not unreasonable, in determining whether the worker had a reasonable excuse, to balance the worker's reasons why he required notes to be taken against Dr Mustac's reasons why they should not be taken". He went on to hold that it was clear that, simply because a worker acts on reasonably founded legal advice, it does not follow that this provides the worker with a reasonable excuse. He summarised the question before him as being "whether Mr Van Dongen's requirement that notes be taken during the examination, notwithstanding this was based in his view, on sound advice, was reasonable given Dr Mustac's concerns about the notes being taken".
He continued:
"To assist in determining this question, I considered hypothetically the situation where a worker, having received the advice in the same circumstances as Mr Van Dongen, is told in advance that the taking of notes would not be permitted and then does not attend the medical examination. My view is that the outcome in these circumstances or where a worker actually
(Page 12)
- attends should be no different. This is not a case where a worker receives advice, for example, that he had an entitlement to notes and that if this is denied he need not attend.
Mr Van Dongen's understanding is that there was a requirement that notes be taken. Once Mr Van Dongen had been provided with the reasons by Dr Mustac why he had concerns about notes being taken, the need to balance what is reasonable given the belief of the worker and the reasons why Dr Mustac did not want notes to be taken becomes important.
The applicant has submitted I should adopt and apply the ordinary common sense meaning of 'reasonable'. It is also submitted by the applicant that I should ask what a reasonable man would have done. I accept that the case law encourages this kind of approach, but this matter requires a further inquiry. It is, I think, necessary to ask where the balance of reasonableness lies between Mr Van Dongen's requirement for notes to be taken and Dr Mustac's concerns. As I have extracted from Prescott's case, I am permitted to examine the weight of the reasonableness of the applicant's request against the weight of the reasonableness of the medical practitioner's objections.
It is my view that the weight of reasonableness is in this particular case lies with the medical practitioner.
It may be inferred that a reasonable man would not have maintained the requirement for notes in these circumstances. To put it another way, I think it was unreasonable for Mr Van Dongen to refuse to submit or obstruct the examination by maintaining notes had to be taken and I find that once made aware of Dr Mustac's objections the worker did not have a reasonable excuse for doing so. It was open to Mr Van Dongen to reconsider or modify his demands to enable the medical examination to proceed. It is not too remote to consider that some notes could have been taken by Mr Van Dongen at the conclusion of the examination had it proceeded.
I am satisfied that the taking of notes during an examination, even by a third party, is capable of impeding the examination and could delay it to the point where the required information might not be obtained by the medical practitioner.
(Page 13)
- Having determined that the worker's refusal to submit to the examination or obstruction of it was not occasioned by reasonable cause, I therefore order that the application be and is hereby dismissed."
19 A further appeal was then brought by the appellant to the Compensation Magistrate's Court (Mr S A Heath SM). Except in relation to the ground that the Review Officer erred in finding that in order to determine whether the appellant had a reasonable excuse for his failure to submit to a medical examination, it was necessary to balance, or to weigh, the appellant's reasons as to why he required notes to be taken, against Dr Mustac's reasons as to why notes should not have been taken, the grounds of appeal raised only issues of fact. It would appear from the learned Magistrate's reasons, however, that the appellant's submissions were limited to maintaining that the Review Officer had fallen into error in failing to apply the test as to whether the appellant did what a reasonable man might have been expected to do in the circumstances, and instead the Review Officer has balanced the appellant's reasons against Dr Mustac's reasons.
20 The learned Magistrate said:
"Weighing up the requirements of a medical practitioner who wishes to perform an examination and the requirements of the worker who is to undergo the examination would certainly appear to be more appropriate to determining the reasonableness of the worker's conditions and inappropriate to determining whether there was a reasonable excuse. However, if one reads the Review Officer's decision in its entirety it is clear that he has noted the comments of the learned Compensation Magistrate in the earlier appeal and has not again applied the same test.
What the Review Officer has done is examine the reasonableness of the appellant's insistence upon notes being taken in the light of what he was told by Dr Mustac. It is in this context that the Review Officer has distinguished between a worker who has been told he has an entitlement to notes and one who merely receives advice that he should take notes. The Review Officer took the view that a worker with a reasonably held view that he was entitled to take notes would be acting reasonably in refusing to proceed if notes could not be taken. Where however he had only been advised that he should take
(Page 14)
- notes that had to be weighed against what he was told by the medical practitioner to determine whether it was reasonable for him to insist upon the notes being taken. The Review Officer states at p 11:
'Once Mr Van Dongen had been provided with the reasons by Dr Mustac why he had concerns about notes being taken, the need to balance what is reasonable given the belief of the worker and the reasons why Dr Mustac did not want notes to be taken becomes important.'
Although it is perhaps unfortunate teminology for the Review Officer to refer to 'the weight of reasonableness' being with the medical practitioner the Review Officer clearly sets out his reasoning in page 12:
'It may be inferred that a reasonable man would not have maintained the requirement for notes in these circumstances. To put it another way, I think it was unreasonable for Mr Van Dongen to refuse to submit or obstruct the examination by maintaining notes had to be taken and I find that once made aware of Dr Mustac's objections the worker did not have a reasonable excuse for doing so. It was open to Mr Van Dongen to reconsider or modify his demands to enable the medical examination to proceed. It is not too remote to consider that some notes could have been taken by Mr Van Dongen at the conclusion of the examination had it proceeded.' "
"Accordingly although the Review Officer may not have expressed his reasons as clearly as he might I do not believe that the appellant has demonstrated an error of law in the application of an incorrect test. The Review Officer accepted the appellant had a reasonably held belief that it was desirable to take notes. The question was whether his insistence upon the taking of notes was reasonable. The Review Officer in taking into account all the circumstances of the particular case held that it was unreasonable once he had been provided with Dr Mustac's reasoning for notes not to be taken."
22 With respect to the learned Magistrate, in my view, the Review Officer did apply a balancing test. This appears to me to emerge clearly
(Page 15)
- from the Review Officer's reasons, and, in particular, having regard to his reliance upon the decision of Webster J in Prescott v Bulldog Tools Ltd. The facts in Prescott's case were, however, quite different from the facts in the present case. The worker in that case had brought an action against his employer, claiming damages for noise induced industrial deafness attributable to the negligence of the employer. The employer had already arranged four examinations, which the worker had attended, and wished to have the worker examined a fifth time. He objected to undergoing a fifth examination on the ground that it was unreasonable for the employer to want to have him examined for a fifth time, and that it was reasonable for him to refuse to undergo the tests because they caused discomfort, giddiness and nausea, were frightening, involved a radiation hazard to the brain and to eyes, which should be avoided if possible, and that another of the tests involved a danger that the ear membrane could be punctured, which could result in damage to the ear by infection. At 875, Webster J said:
"In my view, in cases involving similar considerations the court should examine objectively the weight of the reasonableness of the defendant's request as seen by the defendant and the weight of the reasonableness of the plaintiff's objection as seen by him, and balance the one against the other in order to ensure a just determination of the cause in the way most just to the parties, taking into account their reasonable requirements and objections at the time of the exercise of the discretion."
24 In the circumstances, in my opinion, the wrong question was being asked by the Review Officer, and, in each case, the appeal to the Compensation Magistrate should have been allowed. The question to be answered is whether the request for note taking made by the appellant was reasonable. It is not a matter of whether a reasonable man would have
(Page 16)
- made such a request, but whether it was reasonable for the appellant himself to impose a condition of note-taking, having regard to any characteristics which might distinguish him from other people, for example, his short term memory.
25 It is noted that there are a number of references in the reasons to the demand for note taking involving the prolonging of the examination. Those comments do not appear to be supported by the evidence. There was no requirement that Dr Mustac should change his normal method of conducting his examination. Naturally, the reasons for Dr Mustac's refusing to permit note taking and his terminating the examination will require consideration in determining whether a condition imposed by the appellant was reasonable. That requires a quite different approach from that adopted by the Review Officer.
26 In the circumstances, in my opinion, the wrong question was being asked by the Review Officer and, in each case, the appeal to the Compensation Magistrate should have been allowed. Unfortunately, the matter having proceeded as it has, I consider that it will be necessary to remit the matter to another Review Officer for rehearing.
27 WALLWORK J: The appellant (worker) appeals against two decisions which were made in the Compensation Magistrate's Court at Perth. The first decision was made on 11 December 1998. The second decision was made on 7 September 1999. Both decisions were made after appeals had been heard from decisions of a Review Officer who had conducted reviews on 19 May 1998 and 19 January 1999 respectively. The January 1999 review had been continued on 24 February 1999.
28 The relevant dispute between the appellant and the employer had arisen from the employer's request that the appellant be examined by a consultant psychiatrist, Dr Mustac, in connection with the appellant's claim for workers' compensation for a disability which had been described as chronic fatigue.
29 An appointment with Dr Mustac had been arranged for 5 November 1997. Due to difficulties arising from that appointment and after a conciliation conference on 5 February 1998, a further appointment had been arranged. At the conciliation conference, what was described as an "interim agreement" had been reached which was said to have been "an agreement that is without prejudice to either party's position as that relates to the future conduct of this application." It had been agreed that the insurer would pay for the second medical examination to be video recorded and that following that appointment, a further conciliation
(Page 17)
- conference would be held for the purpose of seeing if the matter could then be finally resolved.
30 It was after the second medical appointment that the first review took place. That review was concerned with the conduct of the appellant on the occasion of both of the proposed medical examinations, being on 5 November 1997 and 11 February 1998 respectively.
31 At the review Dr Mustac said in evidence that a person who had attended with the appellant at the time of the first examination, a Mr Groenewold, had asked if he could take notes during the examination. Dr Mustac told the Review Officer that he had rules, and one of those was that no notes might be taken. He did not think that a private medical examination should be open to public review. However, he said that he did, if requested, allow the examination to be recorded electronically, whether by video or tape-recorder. One of his objections to the taking of notes was that there could be a variance between what was said and what was taken down by a note taker. Further, he said that note-taking was a distraction.
32 Dr Mustac said that he recalled Mr Groenewold offering to sit out of his view whilst he was taking the notes, but Dr Mustac said he had refused that arrangement because he believed it would be too distracting. He said he had explained to the appellant and Mr Groenewold that they needed to cooperate, but he would not allow notes to be taken.
33 It was conceded for the respondent that the appellant had filled out a computerised questionnaire comprising 100 to 150 questions on each occasion he had attended at Dr Mustac's rooms.
34 Dr Mustac said that on the second occasion, when the appellant had attended at his rooms on 11 February 1998, again with Mr Groenewold, Dr Mustac had advised the appellant and Mr Groenewold that the video was not available. He had offered to allow a recording of the examination by the use of his dictation recorder. However, the appellant had said that the recorder would only record his answers and not the questions. The appellant had requested that note taking be allowed.
35 Dr Mustac said that there had been a great deal of annoyance on his part because the same issue was being raised as on the previous occasion. He had thought that that problem had been overcome. He had advised Mr Van Dongen and Mr Groenewold that there was no point in them remaining because he would not change his mind. Dr Mustac said that he
(Page 18)
- thought it was impracticable for his questions to be recorded on the recorder, because the dictaphone only recorded from close quarters.
36 The Review Officer said:
"It is clear from the evidence of Dr Mustac that he did not know of the arrangement for the second examination to be recorded, or that the worker's consent to attend was based on an understanding that video recording equipment would be available. It was also apparent that on both occasions a decision not to continue the examination was made by Dr Mustac."
37 It can be seen from those remarks that some responsibility for the events at the second appointment lay on persons other than the appellant.
38 Mr Groenewold gave evidence to the Review Officer that the appellant had had no reluctance about attending the doctor's rooms and that he had completed the computer questionnaires. Mr Groenewold said that at the first appointment, when it had become clear that he wished to take notes, Dr Mustac had told him that it would not be permitted. Mr Groenewold had indicated that he thought he should seek further advice. At that point Dr Mustac had told him that he could go and seek the legal advice. However Dr Mustac had made it quite clear that the interview was over.
39 Mr Groenewold said that at the second appointment when he had made enquiries about the video camera, Dr Mustac had confirmed that it was not working properly and could not be used. He said that when he had insisted that notes be taken, Dr Mustac had said "No".
40 The Review Officer found that it was common ground that Dr Mustac had indicated that there was no point in the appellant and Mr Groenewold remaining at the rooms and that Dr Mustac had indicated a great deal of annoyance on his part.
41 The appellant gave evidence that he had received advice from a Mr Houweling prior to the first interview. He had thought at that time that Mr Houweling was a law student. Mr Houweling had advised him that notes should be taken. He said that there was a definite understanding by him that a record of interview was required.
42 The Review Officer said that the appellant "had an unshakeable belief that notes had to be taken but that he had been unable to say why;
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- only that Mr Houweling had said to take notes." The appellant had told the Review Officer that it was to keep a record.
43 Section 64 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") provides that if a worker:
"… without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation and to take or prosecute any proceeding under this Act shall be suspended until such examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."
44 It can be seen from s 64 that the question relevant to this appeal is whether a worker without reasonable excuse refuses to submit himself to the examination by the medical practitioner, or in any way obstructs it.
45 There was no issue taken by the respondent before the Review Officer as to whether the appellant was entitled to have someone accompany him during the medical examinations. The Review Officer said:
"The issue to be decided is whether it is reasonable as a general principle for that person to take a record of the examination either in written form or electronically."
46 The Review Officer found that when Dr Mustac had advised Mr Groenewold and the appellant on the first occasion, that notes could not be taken, Mr Groenewold had stated that he would need to seek advice. At that point Dr Mustac had said "Go and seek legal advice". Dr Mustac had made it quite clear that the interview was over. Mr Groenewold had then attempted to compromise, but had still wished to take notes.
47 The Review Officer found that prior to the examination being terminated, Mr Van Dongen had indicated that he would take the notes himself. The Review Officer found that on the balance of probabilities the appellant's intention to take notes had been based on advice from Mr Houweling, who at that time, it was reasonable to find, was a law student.
48 Having discussed some of the facts, the Review Officer said:
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- "The next question to be decided is whether the worker imposed a reasonable condition upon which he would undergo the balance of the examination, that is subject to the taking of written notes. Firstly, I think the only reasonable inference from the evidence is that Mr Van Dongen did refuse to submit to the balance of the examination subject to a condition. Whether that condition was reasonable in the circumstances then falls to be determined."
49 The Review Officer concluded that the condition imposed by the appellant to continue the examination before Dr Mustac was unreasonable. He said it was not necessary in his opinion, to decide whether the advice received by the appellant from Mr Houweling was in the nature of legal advice or simply advice generally. He found that the appellant had attended the examination understanding that he was required to obtain a record of the examination. He said that he did not think that the circumstances of the case allowed a finding that a condition that notes be taken by a worker or his friend was a reasonable condition. He said that Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552 was authority for the proposition that the reasonableness of such a condition was a question of fact.
50 The Review Officer said:
"I think that to assess the reasonableness of the condition imposed by Mr Van Dongen, it is a reasonable approach to balance the need for notes to be taken by the worker against the concerns of Dr Mustac."
51 The Review Officer found that the appellant had a belief that notes of the interview had to be taken. The appellant was unable to say what the basis for that belief was other than that he had been told by Mr Houweling that this should be done. The Review Officer said he did not think that that was a satisfactory basis for a finding that the condition was reasonable; that it was in the circumstances of the matter an unreasonable condition to apply when submitting to a medical examination which had been arranged under the provisions of s 64 of the Act. He said that the likelihood of the taking of written notes being distracting to Dr Mustac was confirmed in his evidence, as was his view that there was a risk of inaccurate notes being taken by a worker or his friend.
52 The Review Officer said that he thought the correct conclusion was that the appellant's condition that notes had to be taken which had been
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- imposed at the first medical examination, when balanced against Dr Mustac's concerns, was unreasonable, "and I so find".
53 The Review Officer went on to say:
"Having found that the condition imposed by the applicant was unreasonable it follows that he has therefore refused to submit himself to the medical examination or has obstructed it. I think there has been a refusal to submit in these circumstances but most certainly an obstruction of that examination and I so find."
54 The Review Officer found that the "excuse" that the worker required the taking of notes was unreasonable, on the same basis that he had found the condition unreasonable. He was therefore satisfied that the obstructing of the examination was without reasonable excuse. He also found that the appellant had not within one month of being required to attend the examination, submitted himself for further examination. He therefore made an order that the application for compensation be dismissed.
55 When that decision went on appeal before the learned Compensation Magistrate's Court in December 1998, the learned Magistrate referred to some of the evidence in the transcript, part of which was a question to the appellant:
"So you made it clear that you didn't want the examination to proceed unless you got your notes?"
56 The answer to that was: "No, I wanted the examination to proceed but I wanted there to be a record of it."
57 The Compensation Magistrate quoted the appellant's evidence before the Review Officer in answer to a question whether Mr Houweling had suggested that notes should be taken. The appellant had said:
"'In all these types of situations', he said, 'Notes should be taken at every occasion' … He said 'Notes should be taken, records kept of everything."
58 The appellant had said that because he knew that Mr Houweling had studied law, he understood that to be legal advice; that he should keep a record of everything. The appellant gave a further explanation of what Mr Houweling had said, being:
(Page 22)
- "… he didn't just say, issue the blanket instruction that notes should be taken, but he said that a careful record should be kept of all that was said. Afterwards, he said, you may have to come back to it again. He said there may be possibly wrong recollections. He said it is imperative, he said, that notes be taken and records be kept. He said that is one of the first rules of any sort of problem, that notes be kept. So, yes, I wasn't in a position to dispute that."
59 When the appellant was asked a further question about whether he had been told he was legally entitled to have notes taken during a medical examination he replied:
"He didn't tell me I was legally entitled. He said to me that I should take them or that someone else should take them, but they should be taken."
60 He was further pressed on this question and he said:
"Basically it was his advice and straight away it made sense to me that a record should be kept … Well, then there could not be any dispute afterwards. We knew what had happened. It is always there. Just his whole idea that it is always good in any such situation that notes and records be kept just made sense to me."
61 Further on in the evidence the appellant had said:
"It was just that he said it should happen so, yes if you are my legal adviser and you say to me something like this should happen, I would say 'Well thank you. I'll take that on board'."
62 When he was asked: "You simply thought 'I've got to take notes because my legal adviser asked me to?'" the appellant answered: "Basically, yes. That was the reason why you know, otherwise - yes that makes sense."
63 The learned Magistrate said that given the above evidence it was open to the Review Officer to find that the appellant wanted notes taken simply because he had been told to do so.
64 In my view and with respect, that is not a wholly adequate summary of the appellant's evidence as set out above.
(Page 23)
65 The learned Magistrate found that although the Review Officer had correctly stated that having found the appellant had "obstructed the examination" he was then required to consider the question of reasonable excuse, the Review Officer appeared to equated that enquiry with the question of whether the condition was reasonable. His Worship found that if that was the case, then the Review Officer had misdirected himself. The learned Magistrate decided that the matter should be remitted to the Review Officer for further consideration in accord with his reasons. That was the first decision appealed from.
66 The second review commenced on 19 January 1999. It was then determined that the matter should proceed to review on the basis that the appellant could bring any further evidence thought to be necessary on the issue to be decided. The review proceeded on 24 February 1999 with evidence being taken from Mr Houweling and the appellant.
67 The Review Officer said in his reasons for decision that Mr Houweling's evidence had been that he had been aware of the appellant's distress after obtaining a copy of a statement he had given to an insurance assessor and his frustration that the questions he had been asked by the assessor were not contained in the statement. He had advised the appellant that notes should be kept because of the appellant's short-term memory problems and generally for evidentiary purposes. Mr Houweling had contacted Mr Groenewold who was a person who was experienced in taking notes and had asked him to take notes at the examination by Dr Mustac.
68 The Review Officer said that prior to commencing his law studies, Mr Houweling had worked as a police officer in the Albany area. He had also acted as an agent for the worker at conciliation conferences. The Review Officer said that s 64 of the Act clearly provides that the onus is upon the worker to establish the reasonableness of any excuse. He said it was quite evident that the appellant had attended the medical examination with a clear understanding that notes should be taken. It was accepted that that was the advice which had been given to him by Mr Houweling, a person whom he trusted. He also found that the appellant had believed that this advice was soundly based because of Mr Houweling's previous experience in the police force and the fact that he was studying law. The Review Officer said that the appellant had attended with an intention of obtaining notes of the examination based on an understanding that the advice to do so was sound. There was however, no evidence that he had been told that he had an entitlement to notes of the examination or that he was entitled to take notes at the examination.
(Page 24)
69 The Review Officer said that it seemed that the appellant had also construed the notification that he was attending for a medico-legal examination as a further indication that a record had to be kept. He said that the appellant's understanding had been that there was a requirement that notes be taken. He said:
"It is, I think, necessary to ask where the balance of reasonableness lies between Mr Van Dongen's requirement for notes to be taken and Dr Mustac's concerns. As I have extracted from Prescott's case, I am permitted to examine the weight of the reasonableness of the applicant's request against the weight of the reasonableness of the medical practitioner's objections. It is my view that the weight of reasonableness in this particular case lies with the medical practitioner. It may be inferred that a reasonable man would not have maintained the requirement for notes in these circumstances. To put it another way, I think it was unreasonable for Mr Van Dongen to refuse to submit or obstruct the examination by maintaining notes had to be taken and I find that once made aware of Dr Mustac's objections the worker did not have a reasonable excuse for doing so. It was open to Mr Van Dongen to reconsider or modify his demands to enable the medical examination to proceed."
70 The Review Officer was satisfied that the taking of notes during an examination, even by a third party, was capable of impeding the examination and could delay it to the point where the required information might not be obtained by the medical practitioner. He then determined that the appellant's refusal to submit to the examination or obstruction of it was not occasioned by reasonable cause.
71 The matter went on appeal to a Workers Compensation Magistrate who delivered his reasons on 7 September 1999. The learned Magistrate found that he did not believe that the appellant had demonstrated an error of law in the application of an incorrect test. He said the Review Officer had accepted the appellant had a reasonably held belief that it was desirable to take notes. The question was whether his insistence upon the taking of notes was reasonable. His Worship said that the Review Officer in taking into account all the circumstances of the particular case had held that it was unreasonable once the appellant had been provided with Dr Mustac's reasons for notes not to be taken. He found that the appellant had failed to demonstrate any error in which a question of law was involved and that the appeal should be dismissed.
(Page 25)
72 In Ryan v Regent Enterprises Pty Ltd (supra) at 560, Malcolm CJ said:
"Where a person agrees to submit to a medical examination subject to a reasonable condition, that cannot constitute a refusal. If a person agrees to submit to an examination subject to an unreasonable condition that may constitute a refusal. Whether or not the condition is reasonable is a question of fact."
73 The Chief Justice went on to say:
"In my opinion the real question raised by this appeal is whether in all the circumstances it was reasonable for the appellant to impose the condition which she did."
74 The Chief Justice made the point that the question of a reasonable excuse under s 65 only arises in the event that there is a refusal to submit to the examination or an obstruction of it.
75 It is a question of law in this case whether or not the Review Officers and the learned Magistrates approached the matter in the correct manner.
76 At 563 in Ryan, Malcolm CJ quoted from the words of Stephenson LJ in Hall v Avon Area Health Authority [1980] 1 WLR 481; [1980] 1 All ER 516. Stephenson LJ said:
"What I have said about this condition is not intended to deprive the plaintiff of the help and comfort of any third party's presence at any medical examination by any doctor on behalf of any defendant. If, for example, the particular plaintiff were in a nervous state or confused by a serious head injury, or if the defendant's nominated doctor had a reputation for a fierce examining manner, or if the plaintiff asked for her nominated doctor to be present, it might be reasonable for her solicitors to insist for her, on such a condition…."
77 At 564 in Ryan, Malcolm CJ said:
"In my opinion the question remains in each case whether the condition was reasonable in all the circumstances".
78 At 564 - 565 Malcolm CJ said:
"Whether her apprehension was well founded or not, she was nervous or apprehensive about a further examination … and
(Page 26)
- needed reassurance. In my opinion, it is, in general, reasonable for such a person required to submit to a medical examination by a doctor chosen by a third party, to request that she be accompanied by a doctor of his or her choice, or perhaps a lay person, such as a close friend or a member of her family if he or she so chooses. A person who agrees to submit to a medical examination subject to such a condition cannot be said to have refused to submit to the examination or to have obstructed it. There may be reasons, such as reasons of inconvenience, delay, expense or otherwise, which would make such a condition unreasonable in any particular case."
79 Malcolm CJ continued:
"At all material times the applicant was prepared to submit herself to the required examination, subject to a condition she had been professionally advised she was entitled to impose."
80 His Honour after examining the facts of the matter and then said:
"In my opinion the Board was in error in judging the reasonableness of the applicant's conduct by reference to the conduct of her solicitors. "
81 In this case, the first Review Officer stated that Dr Mustac had given evidence that he had rules and one of those was that no notes may be taken. Dr Mustac did not think that a private medical examination should be open public scrutiny. The doctor stated that one of his objections to the taking of notes is that there can be a variance between what is said and what is taken down. He also said that note-taking was a distraction.
82 Dr Mustac recalled Mr Groenewold offering to sit out of his view when taking notes. Dr Mustac had said that he would not allow that because he believed it would be too distracting. He did not dispute that he had decided that the examination should not proceed. Dr Mustac had explained to the appellant and Mr Groenewold that they needed to cooperate but that he would not allow notes to be taken. He confirmed that the appellant had filled out the computerised questionnaire comprising 100 to 150 questions on each occasion he had attended.
83 At the time of the second meeting Dr Mustac recalled advising the appellant and Mr Groenewold that the video was not available. He had offered to allow a recording of the examination by the use of his dictation recorder, which would only record the appellant's answers. He had
(Page 27)
- advised the appellant and Mr Groenewold that there was no point in them remaining because he would not change his mind.
84 The Review Officer found:
"It is clear from the evidence of Dr Mustac that he did not know of the arrangement for the second examination to be recorded or that the worker's consent to attend was based on an understanding that video recording equipment would be available. It was also apparent that on both occasions a decision not to continue the examination was made by Dr Mustac."
85 The Review Officer found that the appellant did not attend the second appointment with Dr Mustac with the intention of taking notes. Further, that "the parties" had attended on that occasion expecting the medical examination to be video taped; that Dr Mustac clearly did not know or recall that an arrangement had been made to use a video tape. He found that it seemed that after the appointment had been made there "was simply no further consideration given to whether or not the video equipment would be available on that particular day".
86 The Review Officer said:
"The evidence of Mr Groenewold is that Dr Mustac was quite rude, but made it clear that the examination was terminated. I do not think it is necessary to deal with the events that occurred once Mr Van Dongen had been advised that the video recorder could not be used."
87 As stated above, in Ryan, Malcolm CJ said at 565:
"A person who agrees to submit to a medical examination subject to such a condition [the presence of a doctor or close friend] cannot be said to have refused to submit to the examination or to have obstructed it."
88 In my view in this case there was not adequate consideration given by the Review Officer or the learned Magistrates to the questions arising from the failure of the arrangements for the video examination at the second appointment and Dr Mustac's attitude at the examinations. Such questions were central to the question of whether the appellant had refused to submit himself to the medical examination without reasonable excuse.
(Page 28)
89 The consequences to a worker arising from a failure to comply with s 64 of the Act are grave. The full circumstances surrounding any alleged refusal to submit to an examination must be examined in detail in accord with the reasons for judgment in Ryan. The fact that the appellant was not legally represented and the circumstances arising from the arrangement for the video-recording were relevant matters to be considered.
90 In my view there was an error in law in the way in which the appellant's alleged refusal to undergo the examination was approached. I would allow the appeal and remit the matter to another Review Officer for rehearing.
91 ANDERSON J: I have had the advantage of reading the reasons for judgment of Wallwork J and agree with those reasons, and with the order he proposes. There is nothing I wish to add.
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