Ventrice v Riva Plaster Pty Ltd
[2008] VSC 415
•14 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6370 of 2008
| MICHAEL VENTRICE | Plaintiff |
| v | |
| RIVA PLASTER PTY LTD AND ORS | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2008 | |
DATE OF JUDGMENT: | 14 October 2008 | |
CASE MAY BE CITED AS: | Ventrice v Riva Plaster Pty Ltd and Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 415 | |
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ADMINISTRATIVE LAW – Review of medical panel – Error of law – Statutory scheme – Adequacy of reasons.
ACCIDENT COMPENSATION – Review of medical panel – Definition of “injury” – Significant contributing factor – Accident Compensation Act 1985 ss 5(1), 5(1B), 45 and 134AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T.V. Hurley | Nowicki Carbone |
| For the First and Second Defendants | Mr J.L. Parrish SC with Mr M. Fleming | Herbert Geer |
| For the Third to Sixth Defendants | Mr P. Rowell | Monahan & Rowell |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
The reasons of the medical panel................................................................................................... 5
The relevant principles..................................................................................................................... 7
Ground 1: failing to properly consider the definition of “injury”........................................... 8
Ground 2: failure to take account of matters referred to in s 5(1B) of the Act..................... 10
Ground 3: were the reasons inadequate?.................................................................................... 13
The modified Ground 5: Was the answer to question 3(a) wrong?....................................... 19
Other matters.................................................................................................................................... 20
Conclusion......................................................................................................................................... 20
HIS HONOUR:
Introduction
Mr Michal Ventrice, the plaintiff, was born on 6 October 1944 and is now 64 years of age. Between 24 November 1996 and 2 February 2005 he was employed as a labourer and plasterer by Riva Plaster Pty Ltd, the first defendant. Mr Ventrice first worked as a labourer and plasterer in 1969 and worked in these capacities until he was retrenched by the first defendant on 2 February 2005. On 20 April 2006 he commenced a proceeding in the County Court seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding for damages for injuries arising out of or in the course of or due to the nature of his employment with the first defendant after 20 October 1999. Paragraphs 5 and 6 of the plaintiff’s proposed statement of claim provide:[1]
[1]Omitting “injuries that are not pressed”: see the affidavit of Dean Churilov sworn 27 May 2008 on behalf of the plaintiff herein
“5.Over the course of his employment, and in particular in or about November 2001, the plaintiff sustained an injury to his lower back with referred symptoms to the right leg, injury to the right shoulder and arm … .
6.By reason of his employment the plaintiff was injured and has suffered loss and damage.
Particulars of Injuries
(a)Injury to the lower back, with referred symptoms to the right leg;
(b)injury to the right shoulder and arm;
…“
In the course of the County Court proceeding seeking leave to commence a proceeding for damages, the plaintiff sought the referral of certain medical questions to a medical panel pursuant to s 45(1)(b) of the Act.[2] On 13 February 2008 a judge of the County Court ordered that three medical questions be referred to a medical panel.
[2]See the affidavit of Dean Churilov sworn 27 May 2008 herein and the extended operation of s 45(1) of the Act given by s 45(1A) in respect of applications for leave under s 134AB(16)(b)
A medical panel comprising the third to fifth defendants was convened to answer the referred medical questions. On 4 April 2008, the Medical Panel answered the referred medical questions as follows:
“Question 1. What is the nature of the plaintiff’s medical condition relevant to the back injury (“the injury”) alleged in paragraph 6 of the statement of claim (and excluding any mental or behavioural disturbance)?
Answer 1:In the Panel’s opinion, the plaintiff is not suffering from any medical condition, relevant to the alleged injuries.
Question 2.Was the worker’s employment after 20 October 1999 a significant contributing factor to the injury (including any aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease)?
Answer 2:No.
Question 3.(a) Does the plaintiff have a current work capacity?
(b)If no, does the incapacity result from or was it materially contributed to by the injury?
(c)If no, is the incapacity likely to be permanent?
(d)If yes, is the plaintiff suited for any and what suitable employment, specifying any further or additional employment the plaintiff is capable of undertaking upon any and what rehabilitation?
Answer 3: (a) The Panel is of opinion that the Plaintiff does not have a
present inability to return to work in his pre‑injury
employment arising from an injury.
(b)Not applicable.
(c)Not applicable.
(d)Not applicable.”
In this proceeding the plaintiff seeks an order in the nature of certiorari to quash the decision of the Medical Panel and an order that the questions be referred back to the Convenor of Medical Panels (the sixth defendant) for determination by a differently constituted panel. In his written submissions, the plaintiff relied upon five grounds:
(a)First, the Medical Panel was said to have erred in law in reaching its opinion in answer to question 1 by failing to consider that an injury as defined in s 5 of the Act includes the aggravation, acceleration, exacerbation or deterioration of any pre‑existing condition and that in so erring it erred in failing to consider whether the plaintiff suffered after 20 October 1999 from any aggravation, acceleration, exacerbation or deterioration of a constitutional degenerative condition of his spine.
(b)Secondly, it was said that the Medical Panel erred in law in reaching its opinion in answer to question 2 because it failed to take into account matters required to be taken into account in determining this question by s 5(1B) of the Act.
(c)Thirdly, the Medical Panel’s reasons were said to be inadequate.
(d)Fourthly, it was contended that no reasonable medical panel properly instructed as to the meaning of “injury” in s 5 and/or “significant contributing factor” in s 5(1B) of the Act could have given the Medical Panel’s answers to questions 1 and 2.
(e)Fifthly, it was contended that the answer to question 3(a) is so unreasonable that no reasonable medical panel could have come to such an opinion.
During the course of the hearing, the plaintiff abandoned Ground 4[3] and substantially modified the way Ground 5 was put, contending that the answer to question 3(a) was simply wrong, being against all of the medical evidence submitted to the Panel.[4] The third to sixth defendants[5] appeared by their solicitor, who advised the Court that they took a Hardiman approach[6] and would abide the orders of the Court. For the reasons given below, none of the plaintiff’s grounds are made out and the proceeding will be dismissed.
[3]T17.21 – 19.6 and T22.23 – 22.30
[4]A possible reason for this change of position may have been the submissions of the first and second defendants that “it has been authoritatively stated by the High Court in Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59 at paragraphs [73] – [74] and [142] – [146], that Wednesbury unreasonableness is only available as a ground in respect of discretionary findings or determinations, not (as here) factual conclusions or fact-finding processes”. As to the correctness of this statement in the absolute terms in which it was cast, see Director of Animal & Plant Quarantine v Australian Pork Limited (2005) 146 FCR 368 at paragraphs [64] – [65] and Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at paragraph [562]. But cf Carcione Nominees Pty Ltd v Planning Commission (WA) (2005) 140 LGERA 429 at 449. However, as this issue was not argued, I need say no more about it. In any event, counsel for the plaintiff conceded (correctly) that a finding by the Panel that post 20 October 1999 work did not aggravate the plaintiff’s constitutional degenerative condition, was open (T12.23).
[5]In fact the sixth defendant is the same person as the fourth defendant, he being sued in two capacities – one as a member of the Medical Panel and the other as the Convenor of Medical Panels
[6]A reference to the decision of R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13. Whilst it may not be entirely apposite for the sixth defendant, in his capacity as the Convenor of Medical Panels, to “take a Hardiman approach” because in that capacity he is not the relevant tribunal, nothing turns on this point in this case – the sixth defendant having agreed to abide the order of the Court in any event.
The reasons of the medical panel
Before dealing with the plaintiff’s five grounds it is necessary to give a description of the Medical Panel’s reasons. The reasons are a little over four pages in length together with a two page schedule headed “Enclosure A”. Enclosure A lists some 52 documents together with three DVDs of approximately two hours and 55 minutes duration. The reasons disclose that the plaintiff was examined jointly by the Panel on 3 March 2008 and that the Panel formed its opinion by reference to:
(a)the documents and information referred to in Enclosure A; and
(b)the history provided by the plaintiff and the examination findings elicited by the Panel at the examination on 3 March.
On pages 1 to 3 of the reasons there is a relatively detailed history of the plaintiff set out. In this history the Panel records that it “accepts that the [plaintiff’s] pre‑injury employment was physically heavy and demanding in nature”. In the history the Panel records:
“He [the plaintiff] said he was retrenched from his employment on 2.2.2005. The worker told the Panel that he would have continued working if he had not been retrenched, but did not think that he would have been able to continue for more than a couple of months, due to his back and right shoulder complaints.“
As to attempts to work after 2 February 2005 the Panel records:
“He said that in November 2005 and early 2006, he undertook some plastering work, but he said that this was only on a trial basis and he was only able to work for a couple of days. He said he attempted working on several other occasions, but said that ‘every time I tried, my symptoms were increasing’. He was unable to recall the last time he worked.”
The findings on physical examination by the Panel were recorded as follows:
“On physical examination, the Panel noted that the worker walked with a limp when asked to demonstrate his gait, however the limp was not evident on his way to the examination room. He was able to stand on his heels and toes. Tenderness to palpation was noted over the sacrum and the right clavicle, but there was no tenderness over the right acromio‑clavicular joint. Range of motion of the cervical spine was mildly reduced on rotation and lateral flexion on formal examination, but a greater range of rotation was observed when the worker was distracted. There was no wasting of the right shoulder girdle and gleno‑humeral movements of the right shoulder were normal. Range of motion of the lumbar spine was moderately restricted in all directions, particularly on right rotation. Examination of the right leg revealed a reluctance to bend the right knee with reported pain, however on sitting, there was a reluctance to straighten the right knee. Examination of the hips was normal. Examination of the knee revealed global tenderness, but no effusion. Neurological examination of both the upper and lower limbs revealed normal reflexes, some collapsing weakness on the assessment of power in the upper limbs and non‑dermatomal sensory changes in the whole of the right arm, the right side of the chest and the right leg, with no clinical evidence of radiculopathy. There was no significant thigh muscle wasting.”
The two hours and 55 minutes of surveillance DVDs referred to in Enclosure A were dealt with by the Panel as follows:
“The Panel viewed the surveillance DVDs in the presence of the worker and noted that on 22.8.2006, 23.8.2006 and 25.8.2006, the worker was able to undertake heavy physical work. He was observed flexing his back to 90° whilst dressing in his work clothes, removing a cement mixer from the back of his tray truck by rolling it down ramps and lifting a steel beam, both with the assistance of a work colleague, climbing onto the back of the truck and jumping off one of the ramps. A more recent surveillance DVD dated 16.6.2007, showed the worker walking and standing for a prolonged period (in excess of 40 minutes). The Panel concluded that the actions depicted were inconsistent with his presentation on examination. The worker told the Panel that he had tried working on a few occasions, but was unable to work for more than a couple of days at a time.”
The Panel then provided its conclusions as follows:
“The Panel concluded that the worker is suffering from widespread but mild, constitutional degenerative disc disease of the whole spine, with referred symptoms to the right leg and to the right shoulder girdle and arm.
Although the worker complains of persisting right shoulder symptoms, the Panel concluded that the worker is not suffering from any intrinsic medical condition of the right shoulder.
Based on the worker’s history of the onset of symptoms in the back, the limited treatment he received, particularly whilst still at work, his ability to continue working in his normal duties until he was retrenched, and the level of apparently unrestricted heavy physical activity demonstrated in the video surveillance conducted on 22.8.2006, 23.8.2006 and 25.8.2006, the Panel concluded that on balance, the nature of the worker’s constitutional degenerative condition of the whole spine has not been affected by his employment after 20.10.1999 in any way.
The Panel therefore concluded that the worker does not have a present inability to return to work in his pre‑injury employment arising from an injury.”
The relevant principles
The relevant principles in applications of this kind have been stated and summarised on a number of occasions.[7] Whilst they have been restated recently,[8] it is convenient to set them out here:
[7]See in particular the judgment of Forrest J in Dixon v Hacker [2007] VSC 342 at paragraphs [40] – [44]. See also Davidson v Fish [2008] VSC 32; Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36; Bluescope v Nisselle & Ors [2008] VSC 72; and Robert Bosch (Australia) Pty Ltd v Barton [2008] VSC 227. See further Portland Properties Pty Ltd v MMBW (1971) 38 LGRA 6 at 18 and Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at paragraph [9]
[8]Treacy v Newlands and ors [2008] VSC 394.
(a) First, it is not enough for a plaintiff to show that the medical panel’s reasons for its decision are so expressed as to suggest the possibility that the panel proceeded upon a wrong view of the law. The Court is not entitled to interfere with the decision unless it is satisfied that there was in fact a vitiating error of law.
(b) Secondly, a medical panel’s reasons should enable a Court and the parties to understand that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on the appropriate application of the panel members’ medical knowledge and expertise.
(c) Thirdly, the medical panel is an expert tribunal, whose members are chosen for their experience and its findings need to be viewed in that light.
(d) Fourthly, a medical panel’s reasons are those of a tribunal, not that of a judicial body, and must be viewed from that perspective.
(e) Fifthly, the reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.
(f) Sixthly, the reasons of a medical panel are meant to inform, and over-zealous judicial review is to be eschewed.
(g) Seventhly, the reasons of the medical panel do not need to advert in detail to those matters it has taken into account.
(h) Eighthly, the reasons should give sufficient explanation so as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.
(i) Ninthly, although the medical panel’s task is to determine questions of a medical nature, it does not follow that it cannot, or should not, provide the reasons for its determination. Even the most simple of medical questions determined by the panel will nonetheless be based on a process of reasoning and hence enable it to provide reasons.[9] As was said by Callaway JA in Masters v McCubbery:[10]
“There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons. For example one doctor could sensibly ask another the ‘reasons’ for his or her diagnosis of a patient’s illness.”
[9]See Masters v McCubbery [1996] 1 VR 635 at 661 per Callaway JA
[10]Ibid
Ground 1: failing to properly consider the definition of “injury”
The plaintiff contends that the Medical Panel erred by not addressing the term “injury” as it appears in the Act. In essence the complaint is that the Medical Panel failed to have regard to the fact that “injury” is defined to include “a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease”.[11]
[11]Whilst the definition of “injury” was amended from 3 December 2003, the particular part of the definition upon which the plaintiff relies appears in both versions of the definition and the deletion of the words “where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration” on 3 December 2003 does not alter the substance of the plaintiff’s argument.
There is no question that the Panel in answering the medical questions referred to it had to consider whether the plaintiff suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury to his back or spine arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999. The short answer to the plaintiff’s ground 1 is that it is not enough for the plaintiff to show that the Medical Panel’s reasons for its decision are so expressed as to only show the possibility that the Panel failed to consider the question of recurrence, aggravation, acceleration, exacerbation or deterioration. This Court is not entitled to interfere with the Panel’s decision unless it is satisfied that the Panel in fact failed to consider the recurrence, aggravation, acceleration, exacerbation or deterioration issue. The Panel is an expert tribunal, whose members are chosen for their experience. In concluding that the nature of the plaintiff’s constitutional degenerative condition had not been affected by his employment after 20 October 1999 “in any way”[12] the Panel must be taken to have considered and dealt with the issue of any recurrence, aggravation, acceleration, exacerbation or deterioration caused by post 20 October 1999 work. That the Panel would have had such matters at the forefront of their mind is likely because the very terms of question 2 required them to consider “any aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease”.
[12]See p 4 of the panel’s reasons.
Counsel for the plaintiff submitted that the Medical Panel’s opinion that “the plaintiff is not suffering from any medical condition relevant to the alleged injuries” could not be correct “as a matter of plain English”. I disagree. Counsel’s submission fails to take account of the fact that the reasons are those of a tribunal and not a judicial body and fails to take account of the requirement to read the reasons in context. Properly understood, the Medical Panel’s conclusion that “the plaintiff is not suffering from any medical condition relevant to the alleged injuries” is no more than a statement that the degenerative condition from which the plaintiff suffers was not caused by post 20 October 1999 work; nor was the plaintiff suffering from a work related injury which was a recurrence, aggravation, acceleration, exacerbation or deterioration of that degenerative condition. It follows that ground 1 is not made out.
There is a further reason for thinking that the Panel was aware of the definition of “injury” in the Act. In question 3(a), the Panel was asked whether the plaintiff had a “current work capacity”. Current work capacity is defined in s 5(1) of the Act as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”.
The Panel’s answer to question 3(a) contained the words “present inability”, “in his pre-injury employment” and “arising from an injury” – all of which appear in the definition of “current work capacity” in s 5(1) of the Act. Clearly, the Panel, in answering question 3(a), was aware of the definition of “current work capacity”. In those circumstances, it seems very unlikely that the Panel would not be aware of the definition of “injury” in the same Act – and more particularly in the same sub-section of the same Act.[13]
[13]I say nothing about the unlikelihood of the Convenor of Medical Panels (a position which he holds pursuant to s 63(3) of the Act), who was a member of the Panel, being unaware of such a basic matter. See also T37.25 – 37.29.
Ground 2: failure to take account of matters referred to in s 5(1B) of the Act
The plaintiff submits, correctly, that question 2 required the Medical Panel to consider whether the plaintiff’s employment after 20 October 1999 was a “significant contributing factor” to the injury. Further, the question asked as to the injury is in terms that included “any aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease”. The omission of the word “recurrence” in question 2 is of no great moment as nowhere in the material is it suggested that the plaintiff’s injury is a recurrence of some earlier injury. At best for the plaintiff the material discloses the potential existence of an aggravation, acceleration, exacerbation or deterioration of his degenerative condition.
Section 5(1B) of the Act provides:
“(1B) In determining for the purposes of this Act whether a worker's employment was a significant contributing factor to an injury—
(a) the duration of the worker's current employment; and
(b) the nature of the work performed; and
(c) the particular tasks of the employment; and
(d) the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and
(f) the life-style of the worker; and
(g) the activities of the worker outside the workplace—
must be taken into account.”
The plaintiff’s argument is that s 5(1B)(a) to (g) lists seven matters that “must be taken into account”.[14] The word “must” is in this context used in an imperative sense.[15] The plaintiff accepts that paragraphs (a) to (c) “appear to have been considered by the Medical Panel in general terms”.[16] However, it is said that paragraphs 5(1B)(d) to (g) were not considered by the Medical Panel.[17] I do not accept this submission. Having considered the matters referred to in ss 5(1B)(a) to (c), there is no reason to conclude that the Panel omitted to look at the matters in s 5(1B)(d) to (g). Further, in concluding that the nature of the plaintiff’s constitutional degenerative condition had not been affected by his employment after 20 October 1999 “in any way”[18] the Panel must be taken to have considered and dealt with paragraph 5(1B)(d) which is, as submitted by the plaintiff, “of critical importance”.[19] It is clear from the Panel’s reasons that, having found that the plaintiff did not sustain any injury caused by post 20 October 1999 work, there was no “development” to consider on the basis “that employment had not taken place”. The heart of the Panel’s decision is that post 20 October 1999 work did not aggravate, accelerate, exacerbate or cause a deterioration of the plaintiff’s constitutional degenerative condition. It follows that the issue of whether employment had not taken place was irrelevant to any development of the plaintiff’s condition.
[14]Paragraph 5.3 of the plaintiff’s submissions dated 11 September 2008.
[15]Paragraph 5.4 of the plaintiff’s submissions dated 11 September 2008.
[16]Paragraph 5.5. of the plaintiff’s submissions dated 11 September 2008.
[17]Paragraph 5.6 of the plaintiff’s submissions dated 11 September 2008.
[18]See p 4 of the Panel’s reasons.
[19]Paragraph 5.7 of the plaintiff’s submissions dated 11 September 2008.
The plaintiff has not established that there was in fact a vitiating error of law in relation to s 5(1B) of the Act. The mere fact that the Panel has not set out the terms of s 5(1B) and made express reference to each of the seven matters referred to therein does not entitle this Court to conclude that one or some of those matters were not properly considered by the Panel. As was said by Pagone J in Davidson v Fish:[20]
“The reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all the facts, issues and submissions to be dealt with specifically and expressly.”
[20][2008] VSC 32 at [12]
In the present case the plaintiff concedes that paragraphs (a) to (c) of s 5(1B) appear to have been dealt with. For the reasons given above, I have little doubt that paragraph (d) of s 5(1B) has also been dealt with. Similarly, to the extent that matters in paragraphs (e) to (g) were relevant in this case (and it must be said that not all seven matters will be relevant in all cases) there is no basis for concluding that the Panel disregarded them or failed to give them appropriate weight. Indeed, counsel for the plaintiff correctly conceded that paragraphs (e) to (g) of the definition of “significant contributing factor” were of no great relevance in this case and that any failure to take them into account by the Panel would not be such as to entitle his client to relief.[21],[22] It follows that Ground 2 is not made out.[23]
[21]See T14.28 – T15.13
[22]See generally Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 per Ashley J (as his Honour then was) at paragraph [81] (whilst this decision was overturned in Ericsson Pty Ltd v Popovski (2000) 1 VR 260, the reasoning in paragraph [81] of Ashley J’s judgment was not impeached)
[23]Whilst I would not rest my decision on this basis, it must also be said again that the fact that the Medical Panel’s opinion discloses that it must have been aware of the definition of “current work capacity” tells against any lack of awareness of the definition of “significant contributing factor”
Ground 3: were the reasons inadequate?
The plaintiff’s complaints concerning the adequacy of the Panel’s reasons may be summarised as follows:
(a) “The Medical Panel failed to reveal that it was aware of, or as to how the Medical Panel applied, paragraph (c) of the definition of ‘injury’ in the … Act and the factors to be considered in s 5(1B) of the … Act when considering whether the plaintiff’s employment was a ‘significant contributing factor’ to the back injury alleged in paragraph 6 of the proposed statement of claim”.
(b) “The Medical Panel failed to give reasons which explained its conclusion that the plaintiff had a constitutional spinal condition with no recurrence, aggravation, acceleration, exacerbation or deterioration in the plaintiff’s spinal condition, referable to the demanding work from 20 October 1999 until 2 February 2005, and as to how such work was not a ‘significant contributing factor’ to the plaintiff’s spinal condition”.
(c) Alternatively, “The Medical Panel failed in its reasons to state what it found in response to the requirements in s 5(1B)(d) of the … Act as to the probable development of the injury occurring if the plaintiff’s employment had not taken place”.
(d) “Insofar as the Medical Panel found the plaintiff did not have a present inability to return to work in his pre-injury employment arising from the plaintiff’s spinal condition, the Medical Panel failed to outline why it departed from the material as to the current work capacity of the plaintiff submitted by both the plaintiff (Professor Myers, Mr Miller, and Dr Sutcliffe) and the [first and second] defendants (Mr Schultz, Mr Marshall [and] Dr Stevenson)”.[24]
(e) The Medical Panel should have made express reference to the definitions of “injury”, “disease” and “significant contributing factor” in its reasons so as to show that it has acted correctly within the statutory framework within which it was required to operate.[25]
[24]See paragraph 6.5 of the plaintiff’s submissions dated 11 September 2008
[25]T9.4 – 11.2
I have already referred to the statement by Pagone J in Davidson v Fish that “[t]he reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all facts, issues and submissions to be dealt with specifically and expressly”.[26] The plaintiff’s complaint that the Panel failed to reveal that it was aware of, or as to how it applied paragraph (c) of the definition of “injury” in the Act involves a departure from the principles set out in paragraph 12 above. Specifically, it involves a departure from the principles referred to in sub-paragraphs (d) to (g). In this case, the form of the questions referred to the Medical Panel directed its attention to the issue of aggravation, acceleration, exacerbation or deterioration.[27] Further, it is difficult to accept that an expert tribunal performing the very function it was set up to perform would not have been acutely aware that, in performing its task, it was required to consider the issue of aggravation, acceleration, exacerbation or deterioration. The issue was so plain as not to require specific reference. In any event, the Panel made specific reference to the issue when it concluded that the plaintiff’s constitutional degenerative condition had “not been affected by his employment after 20.10.1999 in any way”.[28] The use of the words “in any way” is a clear reference to the aggravation, acceleration, exacerbation or deterioration issue. Further, I have already dealt with the reason why the Panel did not need to say anything about the question of “recurrence”. Nowhere in the material is there any suggestion of a relevant “recurrence”.
[26]See paragraph [20] above
[27]See question 2
[28]See the last two lines of p.4 of the Panel’s reasons
As to the plaintiff’s complaint that the reasons do not reveal how the Panel applied paragraph (c) of the definition of “injury”, all that needs be said is that the reasons show that the definition was applied in the way one would expect it to be applied in circumstances where a conclusion has been reached that there was no aggravation, acceleration, exacerbation or deterioration caused by work. No further explanation was or is necessary. The reasoning is clear, it is set out in the first paragraph of p.4 of the reasons and then, more specifically, in the first six lines of the last paragraph on p.4 with reference back to the history already recorded. Specifically, the Panel provides four reasons why it concludes that employment after 20 October 1999 was not a cause of any injury (be it as a cause or by way of aggravation, acceleration, exacerbation or deterioration). These are:
(a) the plaintiff’s history as set out in the reasons;
(b) the limited treatment the plaintiff received, particularly whilst still at work;
(c) the plaintiff’s ability to continue working in his normal duties until he was retrenched; and
(d) the level of apparently unrestricted heavy physical activity demonstrated in the surveillance video conducted in August 2006.
Similarly, there is no basis for the complaint concerning the s 5(1B) factors. Without repeating what I have said with respect to Ground 2 above, again, the Panel’s reasoning is clear. The Panel rejected the proposition that the plaintiff’s constitutional degenerative condition had been affected by his employment in any way. I have referred to the reasons given by the Panel for this conclusion when dealing with the paragraph (c) of the definition of “injury” point. This case and the context in which the Panel came to give its opinion did not require the Panel to specifically set out s 5(1B) of the Act and to give a line by line analysis of how it applied.
It follows that the first of the plaintiff’s four complaints concerning reasons is not made out. For the same reasons, the plaintiff’s second and third complaints[29] cannot be upheld. The Panel was entitled to say that, because of the history (which it had set out), the limited treatment, the ability to work until he was retrenched and what had been disclosed on surveillance DVDs, which told against the proposition that work had any adverse effect on the plaintiff’s degenerative condition, the plaintiff’s degenerative condition had not been affected by the plaintiff’s employment after 20 October 1999 in any way.
[29]Set out in sub-paragraphs (b) and (c) of paragraph [22] above
Whilst the Panel used the words “on balance” in expressing its conclusion, it is clear that what the Panel was balancing were the four matters referred to in paragraph 24 above against the plaintiff’s actual statements (set out in the history part of the reasons) which could have led to another conclusion. Again, there was no need for the Panel to descend into further detail by a more express contrasting of the alternative possibilities. Any criticism of the Panel for failing to descend into such detail would be engaging in over-zealous judicial review which is, of course, to be eschewed.
I turn now to the fourth complaint made in respect of the Panel’s reasons.[30] In the originating motion, complaint was made that the reasons were inadequate because they did not disclose a path of reasoning whereby the Panel rejected the opinions of Professor Myers, Mr Miller, Dr Sutcliffe and Dr Lewi.[31] In the plaintiff’s written submissions, the complaint is made in respect of Professor Myers, Mr Miller, Dr Sutcliffe, Mr Schultz, Mr Marshall and Dr Stevenson. The complaint is not a good one:
[30]Paragraph 22(d) above
[31]Paragraph 7 of the originating motion
(a) First, as Forrest J said in Clarke v National Mutual Life,[32] “More often than not the reasons provided by a medical panel will be sufficient to imply that contrary opinions to that reached by the panel have been considered and rejected. There is no necessity for a medical panel to deal with each of the medical opinions provided, nor with a particular theme that might underlie some of the medical opinions in the usual case”.[33]
(b) Secondly, on the important question of whether the plaintiff had suffered any work-related injury[34], this was not a case where the medical evidence was all one way and contrary to the opinion of the Panel. The medical evidence that the plaintiff would have had the Panel deal with expressly was divided on the ultimate issue. The Panel examined the plaintiff for itself, they watched the surveillance material with the plaintiff, they considered the history and formed a view for themselves which they expressed with reasons that enable the parties and this Court to understand that the matter was properly considered according to law, and the Panel’s opinion founded on an appropriate application of the Panel members’ medical knowledge and expertise. It would not have assisted in the circumstances of this case to then conduct a detailed analysis as to why particular opinions expressed earlier in time might or might not have been accepted. Further, it is to be remembered that, whilst some of the medical practitioners referred to by the plaintiff saw some of the surveillance material, none of them saw all of it[35] – whereas the Panel saw all of it in the presence of the plaintiff where he had the opportunity to respond.
(c) Thirdly, on the more limited basis upon which the complaint was ultimately made (in the plaintiff’s written submissions dated 11 September 2008 and at the hearing), the plaintiff’s argument depends upon an interpretation of the words “an injury” at the end of the Panel’s answer to question 3(a) and at the conclusion of the reasons, which interpretation I do not accept. If the Panel, when it referred to “an injury” in these two places, meant any injury, then the plaintiff’s argument would have merit. However, it is clear from the context of the documents that the Panel was referring to an injury which had a relevant connection with employment after 20 October 1999 when it used the expression “an injury” in its answer to question 3(a) and at the conclusion of its reasons. Further, if by “an injury” in its answer to question 3(a) the Panel had meant “any injury” (which would include the plaintiff’s constitutional degenerative condition), then the Panel would simply have answered question 3(a) “yes”.
[32][2007] VSC 341 at paragraph [59]
[33]See also the observations of Kaye J in Amendola v Coles Supermarkets Australia Pty Ltd & Ors [2008] VSC 36 and Osborn J in Bluescope Steel Limited v Nisselle [2008] VSC 72 at paragraph [83]
[34]This is the basis upon which complaint was made in paragraph 7 of the originating motion. That is, that the reasons did not “disclose the route or path of reasoning whereby the Medical Panel rejected the opinions of … [four doctors] and found instead that employment of the plaintiff played no part by way of aggravation, acceleration or exacerbation of [the plaintiff’s pre-existing degenerative back condition]”.
[35]It is clear that Professor Myers saw the first DVD (30 November 2005), but did not see the critical August 2006 DVD. Similarly, it is clear that Dr Sutcliffe only saw the November/December 2005 DVD
I turn now to consider the plaintiff’s complaint about the failure to set out the various statutory definitions.[36] A similar argument was put to Forrest J in Dixon v Hacker.[37] In that case, the issue was whether the Panel in that case (“the Hacker Panel”) had, in breach of s 28LJ of the Wrongs Act, had regard to a psychiatric injury arising as a consequence of, or secondary to, a physical injury. The Hacker Panel did not state in its reasons that it did not have regard to a secondary psychiatric impairment, nor did it make any explicit reference to s 28LJ, a section which had to be complied with in that case. Forrest J rejected the plaintiff’s submission in that case that the reasons were thereby inadequate. His Honour held that there was sufficient in the Hacker Panel’s reasons for it to have conveyed to him and to the parties that it had applied the correct test. Similarly, there is sufficient in the present Panel’s reasons to convey that it applied the correct provisions of the Act, including the specific definitions contained within s 5. I take into account the fact that the members of the Panel were experienced medical practitioners who were familiar with the relevant provisions of the Act[38] who were expressing their views in non-legal language but with a clear awareness of the relevant definitions contained in s 5 of the Act. To borrow from the words of Forrest J,[39] “I reject the plaintiff’s argument that there is sufficient inadequacy in the reasons if the Panel fails to refer to a particular statutory provision or fails to state in terms that it has complied with the provisions of the Act. To do so would convert its function to that of a quasi judicial body which it is not”.
[36]See paragraph 22(e) above
[37][2007[ VSC 342
[38]T37.25 – 37.29
[39]Supra at paragraph [55]
Whilst no doubt the Panel could have said more in explanation of its ultimate conclusion, the same can be said in almost every case involving an expert tribunal. The question is whether the reasons are inadequate, remembering that they are the reasons of a tribunal (not that of a judicial body) and that they are meant to inform and over-zealous judicial review is to be eschewed. Bearing those matters in mind, it follows from what I have said above that the reasons are adequate because they enable the Court and the parties to understand that the questions have been properly considered according to law, and the opinion furnished is founded on an appropriate application of the Panel members’ medical knowledge and expertise. Further, the reasons disclose the path of reasoning that led to the ultimate conclusion that post 20 October 1999 work had neither caused any injury nor aggravated, accelerated, exacerbated or brought about the deterioration of any injury or disease. It follows that Ground 3 is not made out.
As will be seen from the above, it was, strictly speaking, not necessary for the Panel to answer questions 2 and 3 once it had formed the view that post 20 October 1999 work had not caused any injury within the meaning of s 5(1) of the Act (including giving full operation to paragraph (c) of the definition of “injury” and the definition of “disease” contained therein). It not being necessary to answer these subsequent questions, it follows that any deficiency in the reasons in respect of questions 2 and 3 cannot have any operative effect.[40] Nevertheless, for the reasons I have given above, the reasons actually given in respect of the Panel’s answers to questions 2 and 3 were not inadequate.
The modified Ground 5: Was the answer to question 3(a) wrong?
[40]See T16.13 – 17.21
The plaintiff contends that the answer given to question 3(a) by the Panel was wrong because all of the medical evidence was to the effect that the plaintiff does have a present inability to return to work as a labourer and plasterer. Accepting for present purposes that that is the state of the evidence, the short answer to the plaintiff’s point is that it relies on a wrong view of the meaning of the Panel’s answer to question 3(a). As I have said above, the Panel’s answer to question 3(a) is not that the plaintiff does not have a present inability to return to work arising from his constitutional degenerative condition, but rather that he does not have a present inability to return to work as a result of any work-related spinal injury. Even if I was wrong on this point, the Panel’s answer to question 3(a) is irrelevant once it concluded in its answer to question 1 that the plaintiff had not suffered a relevant work-related injury. For these reasons, the modified Ground 5 is not made out.
Other matters
During the course of argument, the plaintiff’s counsel also made complaint about the Panel’s use of the term “pre-injury duties”.[41] Specific complaint was made about the use of the word “pre-injury”. It was submitted that this showed that the Panel erred “by seeing this as an incident injury rather than as a process injury” and “that it [the Panel] took the fact that the [plaintiff] left employment in February 2005 as being, as it were, a[42] date of injury rather than as an injury that occurred over time”. The use of the word “pre-injury” is curious in the context of a conclusion that post 20 October 1999 work did not have any operative effect on the plaintiff’s constitutional degenerative condition. However, nothing turns on the Panel’s use of this term. Part of the material in Enclosure A was an affidavit sworn by the plaintiff on 20 April 2006 and a second affidavit sworn on 4 October 2007. The plaintiff himself, in his affidavits, referred to his “pre-injury capacity”.[43] It seems likely that the Panel merely adopted a description that the plaintiff was himself happy to use. There is nothing in the complaint that the use of the term “pre-injury duties” suggests a specific incident, rather than a process injury.[44] In any event, any error of fact that this might involve cannot be the subject of judicial review.[45]
[41]T5.22 – 5.28
[42]Whilst the transcript records that counsel for the plaintiff said “a”, it may be that he said “the”. In any event, I have considered his argument by reference to both “a” and “the”.
[43]See for example paragraph 9 of the plaintiff’s second affidavit
[44]However, even if there was something in this complaint, it is worthy of noting that the plaintiff’s solicitors pleaded in paragraph (b) of the particulars of loss of earnings and loss of earning capacity under paragraph 6 of the plaintiff’s proposed statement of claim “During the period immediately preceding the incident …”.
[45]See generally Transport Accident Commission v O’Reilly [1999] 2 VR 436 at paragraph [58] and Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at paragraph [34]
Conclusion
For the reasons given above, the proceeding will be dismissed. I will hear the parties on the question of costs.
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