Victorian WorkCover Authority v Elsdon
[2013] VSCA 235
•6 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2012 0164 | |
| VICTORIAN WORKCOVER AUTHORITY | Appellant |
| v | |
| STEVEN ELSDON | First Respondent |
| and | |
| ASSOCIATE PROFESSOR PETER GIBBONS | Second Respondent |
| and | |
| DR ROY KARNA | Third Respondent |
| and | |
| DR JOHN CRONIN | Fourth Respondent |
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| JUDGES | MAXWELL P, BONGIORNO JA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 August 2013 |
| DATE OF JUDGMENT | 6 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 235 |
| JUDGMENT APPEALED FROM | Elsdon v Victorian WorkCover Authority [2012] VSC 347 (Macaulay J) |
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ACCIDENT COMPENSATION — Workplace accident — Impairment — Assessment — Medical Panel — American Medical Association Guides — Interpretation — Multilevel fractures of transverse process — Whether constituted ‘multilevel spine segment structural compromise’ — Whether Panel decision vitiated by jurisdictional error — Whether expert evidence admissible on question of construction of Guides — Appeal dismissed — Transport Accident Commission v Serwylo [2010] VSC 421 applied — Accident Compensation Act 1985 (Vic) s 91(1) — American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed).
EVIDENCE — Expert evidence — Interpretation — Impairment assessment — American Medical Association Guides — Categories of spinal impairment — Whether technical terms — Whether used with specialised meaning — Whether expert medical evidence admissible to assist in construction of terms — Evidence Act 2008 (Vic) ss 55(1), 76(1), 79.
WORDS AND PHRASES — ‘As with fractures’, ‘fractures’.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M F Fleming SC with Mr C P Young | Hall & Wilcox Lawyers |
| For the First Respondent | Dr I R Freckelton SC with Mr N R Dubrow | Slater & Gordon |
| For the Second, Third and Fourth Respondents | Mr A S Pillay | Moray & Agnew |
MAXWELL P:
Assessments of permanent impairment under the Accident Compensation Act 1985 (Vic) (the ‘Act’) must be made in accordance with the AMA Guides to the Evaluation of Permanent Impairment (the ‘Guides’). The question of the proper construction of the Guides is a question of law.
The present appeal raises the — apparently novel — question whether expert medical evidence is admissible to aid in the construction of technical words or phrases appearing in the Guides. For reasons which follow, I consider that such evidence is admissible, and should have been received by the trial judge in the present case. The appeal should be allowed and the matter remitted for re-hearing and the taking of the necessary evidence.
The decision of the Panel
Mr Elsdon was injured in June 2008, in the course of his employment. He sustained a superior end plate fracture of L2 and a right transverse fracture of L1. As a result of these fractures at multiple levels, he suffers from ongoing pain across his lower back, and his back movements are restricted. Mr Elsdon was referred to a medical panel (the ‘Panel’) in June 2011, for an assessment of his degree of permanent impairment.
The Panel’s opinion was that Mr Elsdon had a 5% whole person impairment resulting from the lower back injury. The relevant part of the Panel’s reasons was as follows:
On physical examination the Panel noted a normal gait and the worker could heel and toe weight bear and undertake a partial squat without difficulty. He stood with a normal lumbar lordosis but the Panel noted a mild convex left thoracolumbar scoliosis. Tenderness was elicited on palpation of the thoracic and lumbar spine centrally and over the right lumbar paravertebral musculature. Lumbar spine mobility was restricted by complaint of pain. Neurological assessment demonstrated brisk but symmetrical lower extremity reflexes. There was no clinical evidence of myotomal weakness or unilateral wasting of thigh or calf on formal measurement. Assessment of sensation demonstrated a non-anatomic global diminution of sensation to pinprick over the entirety of the right lower extremity. There was no objective clinical evidence of lumbar spine radiculopathy.
The Panel reviewed all relevant diagnostic imaging and reports. CT scans of the lumbar spine dated 10 June 2008 were reported as showing a fracture line extending through the anterior aspect of the superior end plate of L2 without significant displacement. An undisplaced fracture of the right L1 transverse process was also noted. There was no definite vertebral canal compromise seen on CT. X-rays of the lumbosacral spine dated 25 July 2009 demonstrated anterior wedging of the L2 vertebral body consistent with the worker’s history of injury. The Panel measured 10% loss of vertebral body height anteriorly. CT scans of the lumbosacral spine dated 25 August 2009 confirmed the previously noted healed compression fracture of L2 with slight disc space narrowing at L1-2. There was also a mild right predominant non-neurocompressive disc bulge at L4-5. The Panel were unable to identify any fracture line at the right transverse process of L1 and considered that the fracture was undisplaced and has healed.
The Panel considered that no additional medical imaging or other investigations were necessary for it to assess the worker’s current condition and impairment with respect to the accepted physical injury.
The Panel concluded that the worker is suffering from residual dysfunction of the lumbosacral spine following a compression fracture of L2 (with a 10% loss of anterior vertebral body height) and an undisplaced fracture of the right transverse process of L1 without clinical evidence of radiculopathy, relevant to the accepted lower back injury.
The Panel considers the worker’s medical condition has stabilised.
…
The Panel carried out the assessment of the accepted lower back injury in accordance with the Specific Procedures and Directions in section 3.3f on page 101 of the Guides.
The Panel assessed the worker’s back in accordance with Table 70 of Chapter Three and concluded that there are clinical signs of lumbar spine injury with evidence of L2 vertebral body compression fracture with 10% loss of anterior vertebral body height at without [sic] clinical evidence of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the lumbosacral spine is DRE Category II (structural inclusions) pursuant to Table 72 of Chapter Three, resulting in a whole person impairment of 5%. The degree of impairment is permanent.[1]
As the impairment attributable to the lower back could be assessed in accordance with the Diagnosis-related Estimates (DRE) Model, the use of the Range of Motion Model is not appropriate.
Assessing impairments in accordance with the Diagnosis-related Estimates Model[2]
[1]Emphasis added.
[2]Paragraphs 5-10 are based on the judge’s reasons: Elsdon v Victorian WorkCover Authority [2012] VSC 347, [11]–[18] (‘Reasons’).
The reference in the Panel’s reasons to ‘the appropriate impairment category [being] DRE Category II’ is a reference to the spinal impairment categories in the Guides, which range from Category I to Category VIII. (As explained below, ‘DRE’ stands for ‘diagnosis-related estimate’.) The Guides require the physician to start with Table 70 as a guide toward the appropriate category for the spine impairment. Table 70 lists, in one column, short descriptions of the ‘Patient’s Condition’ and, in adjacent columns, the applicable category level for that condition. In a number of cases there is a range of category levels assigned to the particular condition.
Relevant to Mr Elsdon, Table 70 lists the following conditions and associated categories:
Patient’s Condition
Category
Posterior element fracture, healed, stable, no dislocation or radiculopathy
II
Transverse or spinus process fracture with dislocation of fragment, healed, stable
II
Vertebral body fracture without loss of motion segment integrity or radiculopathy
II, III, IV
Vertebral body fracture with loss of motion segment integrity or radiculopathy
III, IV and V
More detailed explanations of those impairment conditions, relevant to the lumbosacral spine, are set out in section 3.3(g) of the Guides. It is necessary to refer to those more detailed descriptions to locate the particular patient in the correct impairment category.
In that section of the Guides, spinal impairment categories are described by means of a diagnosis-related estimate (DRE) category level, and a short descriptive label. For example, for the lumbosacral spine, the first category is DRE Category I, labelled ‘Complaints or Symptoms’. The second is DRE Category II, labelled ‘Minor Impairment’. The categories ascend in severity of condition and attract increasing measures of whole person impairment, ranging from nil percent for DRE Category I (Complaints and Symptoms) to 75 percent for DRE Category VIII (Paraplegia, Total Loss of Lumbosacral Spinal Cord Function).
Each category has three parts. The first, titled ‘Description and Verification’, contains a brief description of the medical indicia of the impairment to qualify for inclusion in that category. The second part, ‘Structural Inclusions’, describes conditions which, if suffered by the patient, automatically qualify the patient for inclusion in the category so that the examining physician need not determine if other criteria contained in the ‘Description and Verification’ part are present. If a patient demonstrates the Structural Inclusions of two categories, the physician should place the patient in the category with the higher impairment percentage.
The trial judge set out in his reasons the relevant parts of two impairment categories. The first was the category in which the Panel assessed Mr Elsdon to fall (Category II). The second was the category to which Mr Elsdon says he properly belongs (Category IV). On the facts of this case, it is the ‘Structural Inclusions’ in each category which fall for particular scrutiny. These are the categories in question:
DRE Lumbosacral Category II: Minor Impairment
Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of range of motion …, or nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity.
…
Structural Inclusions: (1) Less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis); the fracture is healed, and there is no loss of motion segment integrity.
A spinous or transverse process fracture with displacement without a vertebral body fracture is a Category II impairment because it does not disrupt the spinal canal.
Impairment: 5% whole-person impairment.
…
DRE Lumbosacral Category IV: Loss of Motion Segment Integrity
Description and Verification: The patient has loss of motion segment integrity (differentiator 5, Table 71 p. 109). Loss of motion segment or structural integrity is defined as at least 5 mm of translation of one vertebra on another, or angular motion at the involved motion segment that is 11° more than that at an adjacent motion segment (Figs. 62 and 63, p. 98). Loss of structural integrity at the lumbosacral joint is defined as at least 15° more angular motion than at the L 4 and L 5 motion segment.
A documented history of muscle guarding and pain is present. Neurologic abnormalities need not be present. If they are present, the examiner should consider using Category V.
Structural Inclusions: (1) Greater than 50% compression of one vertebral body without residual neurologic compromise; (2) multilevel spine segment structural compromise, as with fractures or dislocations,[3] without residual neurologic motor compromise.
Impairment: 20% whole-person impairment.
[3]Emphasis added.
As the trial judge noted, the Panel’s final conclusion made no mention of Mr Elsdon’s undisplaced transverse process fracture at L1. (As his Honour said, such a fracture by itself would not have qualified as a structural inclusion within Category II.) The contention for Mr Elsdon, which his Honour upheld, was that the Panel had erred by failing to consider the significance of there being two fractures of adjacent bodies and, hence, the possible application of the second Structural Inclusion under Category IV, that is, ‘multilevel spine segment structural compromise, as with fractures’.
The proper construction of the latter phrase was the subject of decision by Kaye J in Transport Accident Commission v Serwylo.[4] As will appear, there was debate on the present appeal as to the scope of his Honour’s decision in that case. The submission for Mr Elsdon was that the present case was governed by the decision in Serwylo, and that the trial judge had correctly so found. It is therefore necessary, first, to identify exactly what it was that Serwylo decided. (What follows is drawn from the helpful summary of that decision by the trial judge in the present case.[5])
[4][2010] VSC 421 (‘Serwylo’).
[5]Reasons, [24]–[40].
What did Serwylo decide?
Ms Serwylo sustained fractures of the superior end plate of three lumbar vertebrae, at levels L2, L3 and L4, the most serious of which was a 10% compression fracture at L3 (the other two at lower percentages). A member of the Victorian Civil and Administrative Tribunal (VCAT), after hearing opposing evidence from three orthopaedic surgeons, determined that Ms Serwylo’s lumbosacral impairment fell within DRE Category IV. Kaye J upheld that determination, and the Court of Appeal refused leave to appeal.
All three orthopaedic surgeons had agreed that Ms Serwylo’s condition did not fit within the criteria under ‘Description and Verification’ for Category IV. That is, there was no basis to conclude that she had ‘loss of motion segment or structural integrity’. But two doctors considered that she qualified for Category IV under ‘Structural Inclusion (2)’ because she had multilevel fractures of the vertebrae, and because multilevel fractures imply a greater level of force — and thus a greater level of damage — than a single level fracture. Category II was not appropriate, it was said, because the pertinent structural inclusion within that category focused only upon a single vertebral fracture.
The opposing medical view was that the particular fractures of the superior end plates, albeit at three levels, were minor and involved no structural compromise to the spine. Structural compromise to the spine, it was said, required something which disrupts, or had real capacity to disrupt, the spinal canal, or the ability of the spine to provide postural support. Because no such disruption was evident, the view was that there was in fact no spine segment structural compromise. On that view, Ms Serwylo’s condition did not attract Structural Inclusion (2) of Category IV.
The appellant in that case, the Transport Accident Commission, submitted to Kaye J that in Structural Inclusion (2) of Category IV the words ‘as with’, appearing in the phrase ‘as with fractures’, were intended only to illustrate an association, conjunction or combination. They did not operate to deem that two or more fractures of the lumbosacral spine, however minor, constituted ‘multilevel spine segment structural compromise’. It was multilevel spine segment structural compromise which was the controlling condition to engage the structural inclusion. The phrase ‘as with fractures’ was merely an example of circumstances in which such a compromise of the spinal structure might be found to have occurred.
Against this, it was put on behalf of Ms Serwylo that the phrase ‘as with fractures’ in Structural Inclusion (2) meant that injuries, consisting of fractures in more than one lumbar vertebra, by definition constituted multilevel spine segment structural compromise, thereby bringing the condition within Category IV.
Those being the arguments, Kaye J identified the issue in Serwylo in this way:
The issue which I need to determine on this appeal is quite narrow. In essence, it turns on the meaning of the phrase ‘as with fractures’ in Structural Inclusion (2) of Category IV. The critical question is whether (as contended by the respondent) that phrase denotes instances of conditions which are cases of multilevel spine segment structural compromise, or whether (as contended by the appellant) it denotes instances of conditions which might constitute multilevel spine segment structural compromise.[6]
[6]Serwylo [2010] VSC 421, [26] (emphasis in original).
His Honour referred to the relevant principles governing the construction of the Guides, adopting what had been said by Kyrou J in H J Heinz Company Australia Ltd v Kotzman,[7] and emphasised that the construction of the Guides was a question of law. His Honour acknowledged that the task for him was that of construing the Guides, and therefore a question of law. He regarded the competing medical views as largely mirroring the legal debate concerning the proper construction of Structural Inclusion (2).
[7][2009] VSC 311, [24]-[28].
The conclusion which Kaye J ultimately reached was that, on the proper construction of Structural Inclusion (2), fractures or dislocations at multilevels of the lumbar spine are per se instances of multilevel spine segment structural compromise for the purposes of Category IV.[8]
[8]Serwylo [2010] VSC 421, [37].
As the judge at first instance noted, Kaye J rested his conclusion on three considerations. First, ‘as a matter of plain English’, the phrase ‘as with’ was more appropriately understood to denote instances which do — and not just which might — constitute instances of multilevel spine segment structural compromise. Had the authors of the Guides intended to identify only possible instances of such compromise, they could have used the phrase ‘as might occur with fractures’. It was significant that they had not done so.
Secondly, the construction of Structural Inclusion (2) put forward by the TAC was not likely to be correct because, on that wording, the Guides would be telling medical practitioners something they already knew, that is, that fractures or dislocations might constitute multilevel spine segment structural compromise. It was therefore more likely that the phrase ‘as with fractures’ was intended to specify, for the users of the Guides, a condition which did, as distinct from might, constitute multilevel spine segment structural compromise.
Thirdly, because the phrase ‘multilevel spine segment structural compromise’ at least arguably lacked a degree of precision, it was understandable that the authors of the Guides would see fit to include in Structural Inclusion (2) specific examples of conditions which did — as distinct from might — constitute such a structural compromise.
Kaye J said he was fortified in his conclusion by ‘the evident scheme’ of the structural inclusions in Categories II, III and IV. He noted the ascending gradation of conditions specified that were necessary to qualify for each, more serious category. His Honour noted that it was the element of fractures or dislocations at more than one level that differentiated Structural Inclusion (2) of Category IV from the corresponding structural inclusions in Categories II and III, which were explicitly concerned only with fractures at one level. That gradation, in his Honour’s view, supported his construction of Structural Inclusion (2) of Category IV as meaning ‘that fractures or dislocations of more than one spinal segment are, by their nature, instances of multilevel spine segment structural compromise’.[9]
[9]Ibid [34].
The Court of Appeal (Ashley and Harper JJA, and Ross AJA) refused leave to appeal from Kaye J’s decision, stating:
We consider that the judge’s full and careful reasons — the decisive aspects of which, counsel for the applicant accepted, were valid points to weigh in determination of the competing constructions — express and explain the preferable construction of that part of Chapter 3 of the AMA Guides which was in issue.[10]
[10]Transport Accident Commission v Serwylo [2011] VSCA 305, [3] (citations omitted).
As well as upholding the trial judge’s principal conclusion on construction, the Court of Appeal similarly found subsidiary support for the ultimate result in the medical evidence:
We further consider that the medical opinions, in which we include the viva voce evidence given by Messrs Doig, Moran and Shannon, supported a conclusion, even assuming the applicant’s construction argument to be correct, that the respondent suffered multilevel spine segment structural compromise — a concept unattended, in the language of Category IV of DRE Lumbosacral Spine Impairment, by characterisations ‘significant’ or ‘very significant’.[11]
[11]Ibid [4].
Why the decision in Serwylo does not govern the present case
The Victorian WorkCover Authority (the ‘Authority’) contended before the trial judge that, having regard to expert medical evidence which it sought to rely on, the proper construction of the word ‘fractures’ in the sub-section ‘Structural Inclusions’ for DRE Category IV excluded a fracture of the transverse process. The expert evidence on which the Authority sought to rely was from Mr Peter Wilde, orthopaedic surgeon. According to Mr Wilde, a fracture of the transverse process could never result in spine segment structural compromise, either in isolation or in combination with a vertebral fracture at the same or a different level. That being so, the Authority submitted, the word ‘fracture’ within the relevant phrase must be construed as excluding fractures of the transverse process.
In rejecting that submission, the trial judge made the following observations about Kaye J’s decision:
It is important to bear in mind that his Honour’s conclusion was reached in the face of an argument, that:
·not just any fractures, however minor, denoted ‘multilevel spine segment structural compromise’, and
·in particular, because fractures of the superior end plate were minor and did not have the capacity to disrupt the spinal canal or to affect the spine’s ability to provide postural support, they did not fall for inclusion within Category IV.
So, the conclusion that fractures at more than one level, by definition, satisfy the criteria of Structural Inclusion (2), was a conclusion that was reached regardless of the actual severity of the fracture, or its capacity to disrupt the spinal canal or otherwise compromise the structural integrity of the spine. And it was reached for the three reasons his Honour explained.
It is true that his Honour gained some comfort for his conclusion from the evidence which tended to support the proposition that multilevel fractures, per se, involved some degree of compromise of the spine. But he was careful to explain that the conclusion on construction, which ultimately was determinative, was reached independently, saying, ‘...the [medical] evidence to which I have referred is, at least, consistent with the conclusion [on construction] which I have otherwise reached’ (underlining added).[12]
[12]Reasons, [41]–[43] (citations omitted, emphasis added).
With great respect, I do not consider that this passage accurately identifies the scope — and limits — of Kaye J’s conclusion. Crucially, it had not been argued before Kaye J that —
fractures of the superior end plate were minor and did not have the capacity to disrupt the spinal canal or to affect the spine’s ability to provide postural support.
Rather, as Kaye J’s reasons make clear, the argument advanced by the TAC — which his Honour rejected — was that Category IV could not apply because the particular fractures sustained by Ms Serwylo ‘were minor, and, as such, did not constitute spine segment structural compromise’. That was the view of Mr Shannon, orthopaedic surgeon, as recorded in the reasons.[13]
[13]Serwylo [2010] VSC 421, [15].
Moreover, Kaye J defined ‘the issue’ in the case by reference to the competing views of the orthopaedic surgeons as to whether Ms Serwylo’s impairment did, or did not, qualify for inclusion in Category IV. As his Honour said, the surgeons differed —
… on whether the injury sustained by Ms Serwylo, and her consequent impairment, could be properly characterised as ‘multilevel spine segment structural compromise’ for the purposes of Category IV. In short, Mr Doig and Mr Moran each considered that three level compression fractures of the lumbar vertebrae constitute multilevel spine segment structural compromise of the lumbosacral spine. On the other hand, Mr Shannon was of the view that, in order that there be structural compromise of the lumbosacral spine associated with multilevel fractures, there would need to be particularly significant compression fractures, or, alternatively, fractures which involve the posterior elements of the spine.[14]
[14]Ibid [11].
Against that background, I turn to examine the terms in which the trial judge expressed his conclusion that the present case was governed by the decision in Serwylo. His Honour said:
Because of the arguments put forward by the TAC in Serwylo, and the construction finding which was the principal reason for rejecting those arguments (both at first instance, and on appeal), I do not believe it remains open to argue that ‘as with fractures’ in Category IV excludes particular types of (minor) fractures which have no capacity, in fact, to compromise the spinal structure. That, essentially, was the same argument put, and rejected, in Serwylo.
True, the Serwylo case did not have the same focus, in particular, on a fracture of the transverse process. But, nevertheless, it concerned an argument put in relation to a species of fracture that was minor and had no capacity to disrupt the spinal canal, or compromise structural support. In this case the VWA wishes to rely upon the same characterisation of a (healed, undisplaced) transverse process fracture, allegedly known both to the authors of the Guides and those for whom it was written, as the foundation for a construction argument that would reach a result that is inconsistent with the legal construction already decided in Victoria.
The contention that there is a difference between the issue of construction decided in Serwylo, and the issue of construction to be determined in this case, relies upon a difference that is illusory. And, I would not adopt the VWA’s suggestion that, should I come to that conclusion, I decline to follow that authority.
In my view the VWA’s construction argument is foreclosed by the Serwylo decision. As I have shown, that decision was reached, on its primary foundation, independently of any medical evidence, and regardless of whether the particular condition was actually capable (or known to be capable) of compromising the spinal structure. It follows that the medical evidence each side seeks to adduce in this case is irrelevant and, therefore, inadmissible. I refuse the proposed tender of the (partly redacted) reports of Mr Wilde and Mr Brownbill.[15]
[15]Reasons, [40]-[53] (emphasis added).
As previously pointed out, Serwylo did not concern ‘an argument put in relation to a species of fracture that was minor and had no capacity to … compromise structural support’. On the contrary, the issue to be decided in that case concerned — and was confined to — a category of lumbar fractures, being vertebral fractures, which could (when present at more than one vertebral level) constitute ‘multilevel spine segment structural compromise’. It was common ground amongst the medical witnesses in that case that multilevel vertebral fractures might, or might not, constitute such compromise. Whether they did or not would vary from case to case.
As appears from the earlier analysis of Kaye J’s decision, that was the issue which his Honour had to decide, namely, whether the phrase ‘as with fractures’ merely identified the possibility that such fractures might constitute such compromise or — as his Honour ultimately held — was intended to denote a circumstance which would be deemed to constitute such compromise. If it were the former, Ms Serwylo would fail because her particular vertebral fractures did not constitute structural compromise; if the latter, she would succeed notwithstanding that circumstance.
There was no consideration in Serwylo of a class of fractures which — though present at more than one level — could never constitute such structural compromise. As I have said, the case for the TAC was that Ms Serwylo’s particular fractures did not constitute structural compromise and hence could not attract Category IV. His Honour decided that the impact of the particular fractures was irrelevant. Since fractures of that kind — vertebral fractures — could, when present at more than one level, constitute structural compromise, every instance of such multilevel fractures should be deemed to constitute such compromise, irrespective of the facts of the particular case.
In the present case, by contrast, the Court is not concerned with vertebral fractures — which may constitute structural compromise — but with fractures of the transverse process which — so the Authority’s expert will say — can never constitute such compromise. Accordingly, there is no room for the Serwylo debate to take place in relation to this category of fractures. That is, there is no choice of constructions, as to whether ‘as with fractures’ means that such fractures do, or might, constitute structural compromise. As I have said, on the evidence which the Authority seeks to lead, they never can. The possibility simply does not arise.
Axiomatically, questions of construction are not determined in the abstract. A court determines the question of construction raised by, and for the purposes of resolving, the particular dispute litigated by the parties. As has been seen, Kaye J was called on to construe the relevant phrase in order to decide whether Category IV was, or was not, applicable to the fractures sustained by Ms Serwylo. He was not called on to decide the present question, which concerned a different category of fracture. In relation to this category, the medical evidence — if admitted — will be to a quite different effect.
As noted earlier, Kaye J’s view was that there was no need to tell medical practitioners that multilevel vertebral fractures might constitute structural compromise, because they would already know that. Had his Honour been required to address the present question, he might well have concluded that (on the expert evidence which the Authority seeks to lead) it would be wrong for the Guides to suggest to medical practitioners that fractures of the transverse process might constitute a structural compromise — because they never could.
The phrase in question is ‘multilevel spine segment structural compromise, as with fractures or dislocations … ‘. It seems plain enough that the phrase ‘as with fractures or dislocations’ was intended to denote instances of the phenomenon just described, that is, structural compromise. Indeed, Serwylo so decided. Put another way, the clinicians who drafted this part of the Guides can be taken to have had in mind only those categories of fracture or dislocation which had the capacity to produce/constitute structural compromise.
Senior counsel for Mr Elsdon conceded that this was so. He further conceded that, if there were a category of fractures which — though present at different levels — could never constitute structural compromise, it would be ‘perverse’ to attribute to the authors of the Guides an intention to include that category within the scope of the ‘Structural Inclusions’ under Category IV. Those concessions were properly made, in my view.
For these reasons, in my view, the decision in Serwylo does not apply to the present case, less still govern the outcome. That being so, the question to be determined is whether fractures of the transverse process are outside the scope of Category IV, by reason that such fractures could never (though present on more than one level) constitute or produce structural compromise. That raises the issue of whether the expert evidence is admissible in aid of the proper construction of the relevant phrase.
Admissibility of expert evidence
In my opinion, the expert evidence is admissible, on ordinary principles. First, the phrase ‘multilevel spine segment structural compromise, as with fractures or dislocations’ must be construed as a whole and in its context. Secondly, it is plain enough — from the words used, and from the context — that this is technical, medical language, intended to be understood and applied by medical practitioners in accordance with its technical meaning. Moreover, the Act itself recognises the need for specialist expertise in the interpretation and application of the Guides. As senior counsel for the Authority pointed out, s 91(1) of the Act provides that an impairment assessment is to be undertaken in accordance with the Guides and by a medical practitioner who has successfully completed a training course prescribed by the Minister for the use of the Guides.[16]
[16]Accident Compensation Act 1985 (Vic) s 91(1)(b).
It is well-established that, where a technical word or phrase is used, expert evidence is admissible to assist the Court to construe the instrument in which the word or phrase appears.[17] The basis of admissibility in a case such as the present is helpfully enunciated in the following passage from the judgment of the Full Federal Court in Woodward v Repatriation Commission, in relation to a Statement of Principle (‘SoP’) written by medical specialists:
It seems to us that this is the nub of the problem of how the relevant words in the SoP are to be interpreted. The SoP has been developed by an expert medical panel. It needs to be interpreted against that background. This is particularly so when (as here) the SoP adopts a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialists. That is what this SoP does in its express reference to DSM-IV and ICD-9-CM code. To interpret the SoP as if it were a conveyancing document is to misunderstand the task. What is necessary is to understand what it was intended to convey by those charged with the responsibility for its production. Where it appears that the language has been used with a specialised meaning in a particular area of speciality then the words are to be understood with that meaning. Of course, the distinction between an ordinary and specialised meaning may be a matter of degree: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. But in determining whether there is any specialised meaning and what that meaning is the AAT may refer to authoritative medical texts: see McMullen v Commissioner for Superannuation (1985) 3 AAR 358 at 376-378. It may also receive expert evidence: see Pearce & Geddes, Statutory Interpretation in Australia (5th ed), pp 99-101 and see General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 at 54-55. For example, medical evidence as to the meaning of a statutory instrument was received in Comcare v Watson (1997) 73 FCR 273..[18]
[17]See D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011) 131 [4.17].
[18]131 FCR 473, 493–4 [113] (emphasis added).
As the Authority submitted, consideration of the medical understanding of words and concepts employed in the Guides is more likely than not to lead to the interpretation of the Guides which the authors of the Guides had in mind.[19] In the present case, for the reasons given, the evidence which the Authority proposes to lead is admissible to enable the question of construction to be resolved. Mr Elsdon will, of course, be able to lead expert evidence of his own on the point.
BONGIORNO JA
[19]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 401-2.
DIXON AJA:
This appeal from a Judge of the Trial Division concerns the application of the AMA Guides by a Medical Panel constituted pursuant to the Accident Compensation Act 1985 (Vic). The facts of the case, the determination of the Medical Panel and other relevant matters are fully set out in the judgment of Maxwell P.
There are two points raised in this appeal.
(a)Was the expert evidence of Wilde and Brownbill properly admissible?
(b)Was Mr Elsdon’s healed, undisplaced fracture of the right transverse process a ‘fracture’ within the meaning of that term in DSE Lumbrosacral Category IV of the Guides?
If it favours the respondent, the first ground resolves the appeal.
The primary judge found that the respondent suffered two fractures to his lumbosacral spine: an undisplaced fracture to the right transverse process of L1; and a fracture to the superior end plate of L2. The appellant contended below that the respondent’s injuries were correctly assessed by the Medical Panel as falling within DRE Lumbosacral Category II because the fracture to the transverse process was not a ‘fracture’ within the meaning of that term in DRE Lumbosacral Category IV. In support of this contention, the appellant sought to rely on two
redacted medical reports of Mr Peter Wilde, ostensibly evidence about the medical meaning of the term ‘fracture’, but directed to the author’s opinion about the existence of structural compromise. There is, we observe, no suggestion by the author that the word ‘fractures’ has a technical or specialised meaning. The evidence was ruled to be irrelevant.
The primary judge found jurisdictional error in the Category II assessment because the panel failed to take into account relevant material, namely the separate fractures at two levels of the lumbosacral spine. Alternatively, it failed to apply the applicable law which says that multilevel fractures, per se, constitute ‘multilevel spine segment structural compromise’ regardless of the capacity of each fracture to disrupt the spinal canal or affect the spine’s ability to provide postural support. The primary judge remitted the medical questions to a medical panel.
The legal principles governing the construction of the Guides were not in dispute before us. It is convenient to refer to Kyrou J’s helpful summary of those principles in H J Heinz Company Australia Ltd v Kotzman.[20]
[20][2009] VSC 311.
The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic — or a lawyer’s precise — interpretation. It is of paramount importance to be faithful to the Guides’ plain words. The Guides should not be interpreted as if it was a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.
If there is any inconsistency between the AC Act and the Guides, the AC Act will prevail. If there is any inconsistency between the text in the Guides and
an example which seeks to illustrate what is said in the text, the text will prevail.[21]
[21]Ibid [24]-[28] (citations omitted).
At trial, the respondent opposed the admissibility of the Wilde evidence but submitted that if that evidence was to be admitted, he wished to rely on a medical report of Mr David Brownbill, dated 9 March 2012. The primary judge conditionally admitted the evidence of Wilde and Brownbill, subject to ruling on the objection when delivering his judgment. His Honour ruled that evidence was irrelevant because the question in issue was foreclosed by Transport Accident Commission v Serwylo.[22]
[22][2010] VSC 421.
The primary judge concluded that it no longer remained open to argue that the phrase ‘as with fractures’ in Category IV did not include particular types of (minor) fractures which have no actual capacity to compromise the spinal structure. The appellant was advancing, below, the same argument put, and rejected, in Serwylo. In substance, the same argument was put to us, but the appellant contended that Serwylo was distinguishable, or wrongly decided.
The issue before the court in Serwylo was whether the categorisation of the level of impairment sustained by the plaintiff as a result of her lower back injuries was Category II or Category IV. Categorisation was the subject of competing expert opinions, the difference in opinion being about whether the injury sustained by Serwylo, and her consequent impairment, could be properly characterised as ‘multilevel spine segment structural compromise’ for the purposes of Category IV.
Serwylo sustained compression fractures to the end plates of three lumbar vertebrae, at levels L2, L3 and L4. Two orthopaedic surgeons, called by Serwylo, considered that Category II did not apply to Serwylo’s injury, because the first element of ‘Structural Inclusions’ in that category is confined to the compression of one vertebral body, which was not that case. In their opinions, Category IV was appropriate because Serwylo had fractures at three vertebral levels. For each of those surgeons the multilevel fractures were sufficiently serious to justify inclusion in Category IV, because such fractures involve greater deforming forces, or a significant degree of impact, exerted on the spine than would occur with a fracture involving a single vertebra. The other surgeon, called by the insurer, disagreed. In his opinion, Serwylo did not qualify for inclusion in Category IV, because the fractures to the superior end plates of the L 3, L 4 and L 5 vertebrae were minor, and, as such, did not constitute spine segment structural compromise. His opinion was that structural compromise to the spine required something which disrupts, or had real capacity to disrupt, the spinal canal, or the ability of the spine to provide postural support. Because no such disruption was evident, there was no spine segment structural compromise.
The respondent suffered different fractures to those suffered by Serwylo. We note that the evidence of Wilde, if admitted, would be to the same effect as the opinion of the insurer’s expert in Serwylo, although in respect of the different fractures suffered by the respondent.
The primary judge explained the ratio of Serwylo in the context of the arguments put to the court. The insurer contended that the words ‘as with’, appearing in the phrase ‘as with fractures’, were intended only to illustrate an association, conjunction or combination. They did not operate to deem that two or more fractures of the lumbosacral spine, however minor, constituted ‘multilevel spine segment structural compromise’. It was multilevel spine segment structural compromise which was the controlling condition to engage the structural inclusion. The phrase ‘as with fractures’ was merely an example of circumstances in which such a compromise of the spinal structure might be found to have occurred. Serwylo contended that the phrase ‘as with fractures’ in Structural Inclusion (2) meant that injuries, consisting of fractures in more than one lumbar vertebra, by definition, constituted multilevel spine segment structural compromise, thereby bringing the condition within Category IV.
Kaye J identified the issue for his decision as follows.
The issue which I need to determine on this appeal is quite narrow. In essence, it turns on the meaning of the phrase ‘as with fractures’ in Structural Inclusion (2) of Category IV. The critical question is whether (as contended by the respondent) that phrase denotes instances of conditions which are cases of multilevel spine segment structural compromise, or whether (as contended by the appellant) it denotes instances of conditions which might constitute multilevel spine segment structural compromise.[23]
[23]Ibid [26].
The identified issue was a question of law, Kaye J observing that the competing medical views largely mirrored the legal debate concerning the proper construction of Structural Inclusion (2). His Honour construed the description of Structural Inclusion (2) as follows —
(1)the reference to ‘fractures …’ is a reference to fractures of a spinal segment;
(2)the phrase ‘as with’ denotes instances that do, not might, constitute instances of multilevel spine segment structural compromise.
Accordingly, on the proper construction of Structural Inclusion (2), fractures or dislocations at multilevels of the lumbar spine are, per se, instances of multilevel spine segment structural compromise for the purposes of that structural inclusion.[24]
[24]Ibid [37].
The present injury consisted of a fracture to a spinal segment at two levels. It is unnecessary to decide the point on this appeal, but we suggest the first of those propositions is correctly expressed. What must be fractured is any part of a vertebra, or spine segment. The appellant contended that the reference to ‘fractures’ was not limited to fracture of a spine segment, counsel giving an example that a fractured femur might result in multilevel spine segment structural compromise. Assuming that consequence arose, and it was no more than a hypothetical posed by counsel in oral submissions, we would not be inclined to accept that wide reading of the reference to ‘fractures’ to be reasonably open having regard to the content of the DRE Lumbosacral Category and the Guides as a whole.
The appellant further contended that Mr Wilde’s evidence would be that, in his opinion, the section of a vertebra described as the transverse process is not part of a spine segment because it does not form part of the spinal canal ring. Yet, plainly it is, and would be understood by medical practitioners to be, part of a vertebra or spine segment per se. Depending, as it does, on the untested Wilde opinion, the primary judge made no finding that could support the submission and the respondent would, if Mr Wilde gave evidence, dispute his opinion. This submission cannot assist the appellant on ground 1.
It is convenient to refer to the primary judge’s summary of Kaye J’s three reasons for his second construction proposition.
The first was that the language ‘as with’ was, as a matter of plain English, more appropriately understood to denote instances which do — and not just which might — constitute instances of multilevel spine segment structural compromise.
Secondly, the construction of Structural Inclusion (2) put forward by the TAC was not likely to be correct because medical practitioners, to whom the Guides were directed, would well understand that fractures or dislocations might constitute multilevel spine segment structural compromise. Therefore, there being no reason to tell medical practitioners something they already knew, it was more likely that the phrase ‘as with fractures’ was intended to specify, for the users of the Guides, a condition which did, as distinct from might, constitute multilevel spine segment structural compromise.
Thirdly, because the phrase ‘multilevel spine segment structural compromise’, at least arguably, lacks a degree of precision, it was understandable that the authors of the Guides would see fit to include in Structural Inclusion (2) specific examples of conditions which do — and not just might — constitute such a structural compromise.
His Honour was fortified in his conclusion by observing the differences in the structural inclusions in Categories II, III and IV, noting the ascending gradation of conditions specified that were necessary to qualify for each, more serious category. His Honour noted that it was the element of fractures or dislocations at more than one level that differentiated Structural Inclusion (2) of Category IV from the corresponding structural inclusions in Categories II and III, which were explicitly only concerned with fractures at one level.
That observation, his Honour believed, supported his construction of Structural Inclusion (2) of Category IV ‘that fractures or dislocations of more than one spinal segment are, by their nature, instances of multilevel spine segment structural compromise’.[25]
[25]Ibid [36]–[40].
Serwylo established that, as a matter of law, the proper construction of the phrase, ‘as with fractures’ in the description of Structural Inclusion (2) is that it defines injuries consisting of fractures in more than one lumbar vertebrae to constitute multilevel spine segment structural compromise. Leave to appeal was refused by this court.[26] Ashley JA, delivering the judgment of the court, observed:
We consider that the judge’s full and careful reasons — the decisive aspects of which, counsel for the applicant accepted, were valid points to weigh in determination of the competing constructions — express and explain the preferable construction of that part of Chapter 3 of the AMA Guides which was in issue… We further consider that the medical opinions, in which we include the viva voce evidence given by Messrs Doig, Moran and Shannon, supported a conclusion, even assuming the applicant’s construction argument to be correct, that the respondent suffered multilevel spine segment structural compromise — a concept unattended, in the language of Category IV of DRE Lumbosacral Spine Impairment, by the characterisations ‘significant’ or ‘very significant’.
[26]Transport Accident Commission v Serwylo [2011] VSCA 305, [3] (Ashley and Harper JJA, and Ross AJA).
Two observations may be made. First, it is implicit in these remarks that the ‘construction argument’ is a question of law, independent of medical evidence that supported, or denied, a diagnosis of multilevel spine segment structural compromise. Second, it is significant that the description of ‘fractures and dislocations’ provided by the authors of the Guides is unattended, as it might have been, by any qualifying characterisations.
The primary judge correctly approached the construction question as a question of law and, after a careful analysis that was not subject to criticism before us, agreed with the Serwylo construction of Structural Inclusion (2). The primary judge, accordingly, refused to admit Wilde’s expert opinion because it was irrelevant.
The appellant submitted that Serwylo was distinguishable, alternatively that it was wrongly decided. On the first contention, the applicant submitted that Serwylo has no application, as the meaning of ‘fractures’ was not at issue in that case. The case is not authority for the proposition that transverse process fractures are ‘fractures’ for the purpose of Structural Inclusion (2) of DRE Lumbosacral Category IV. All of the fractures in issue in Serwylo were fractures of a type capable of resulting in structural compromise. There was no discussion in that case of what was denoted by the term ‘spine segment’.
On the second contention, the appellant submits that before the primary judge the meaning of fractures was in issue and the term bears a technical or specialist meaning. To the extent that Serwylo determined otherwise it is wrongly decided.
We are not persuaded that the appellant’s first contention is correct. Properly understood, the appellant’s submission proposes that the concept of ‘compromise’ qualifies the nature of the fracture, as appears from the appellant’s contention that Serwylo holds that multiple fractures that are capable of resulting in spine segment structural compromise fall within DRE Lumbosacral Category IV and what need not be shown is that the fractures actually resulted in structural compromise. Thus, a minor healed fracture is not a fracture caught by the phrase ‘as with fractures’ if, in conjunction with at least one fracture at another level, it is incapable of producing spine segment structural compromise. As we have explained that is not the ratio of Serwylo.
Although the fractures in Serwylo were of a different type to those suffered by the respondent, the common feature, from the insurer’s perspective, was that in each case there was no structural compromise. The meaning of ‘fractures’, simpliciter, was not put in issue in Serwylo and we do not see that it is truly in issue before us. The submission slides from an unqualified reference to fractures, the fact of fracture, to the consequence of fracture, the fact of compromise. The nature of the fractures is not a relevant consideration in the construction of structural inclusion (2), because the plain words of the description do not admit that the concept of fractures is qualified or modified. This proposition was put to, and rightly rejected by, both Kaye J and the primary judge.[27] Neither judge reasoned from the characterisation of the severity of the fracture (a question of fact), correctly addressing the proper construction of the language used (a question of law). That language disclosed that the authors of the Guides chose to direct medical practitioners using the Guides that by their nature, multiple fractures, including minor healed fractures, are instances of multilevel spine segment structural compromise. No new submission was put to us that the relevant reasoning, set out above, was erroneous.
[27][2012] VSC 347, [41].
The appellant’s second reason for the construction it contends for, is to avoid the possibility of an absurd result that was plainly not intended by the drafters of the Guides. Such an absurd consequence, it contended, may eventuate where the fracture at one level is a minor healed fracture of a part of a vertebrae that cannot result in spine segment structural compromise.
Although the appellant contended that the Serwylo construction was capable of producing absurd results, that contention was founded in the Wilde evidence. We did not find the respondent’s qualified concession in argument to be of any assistance because the respondent contests the Wilde evidence and there has been neither cross-examination nor findings in respect of it. We are not persuaded absurd results will follow, either necessarily or at all. We see no error in the reasoning of Kaye J about the words chosen and the words not chosen and we think it undesirable that certainty of application of structural inclusion (2) of DRE Lumbosacral Category IV be compromised. Put another way, the submission unreasonably strains the language that describes structural inclusion (2). It is tantamount to reading in an additional word or words, as adjectival qualifications of the noun in the phrase ‘as with fractures’ to avoid the ‘absurd result’. That contention was rightly rejected by this court in Serwylo when leave to appeal was sought.
Being of the view that the prospect of absurd results is hypothetical, we are not attracted to this point. Although we bear in mind that the Guides have the force of law and are a legislative document, but are not to be interpreted as a statute, we observe that the principle of statutory interpretation that permits departure from the literal meaning by adding or implying words to avoid an unintended result, or any analogous principle applicable in the case of an instrument such as the Guides, was not addressed in argument before us.
As this court recently observed in DPP v Leys & Leys:[28]
The common law has long sought to avoid interpreting legislation in a manner that leads to a result that is manifestly absurd, unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. In certain circumstances, departure from the literal meaning is justified and ‘the court is entitled to attribute to the provision the meaning which it was obviously intended to have’… That a court may sometimes be justified in abandoning the literal meaning and adding or implying words to avoid an unintended result can no longer be doubted. [Citations omitted]
[28][2012] VSCA 304, [48]-[49].
The court in Leys & Leys approved the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones[29] concerning the three conditions that must be satisfied before a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said:
First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts. [Citations omitted]
[29](1980) AC 74.
The court concluded that the question — whether a construction should be adopted that departs from the literal meaning of the words used in a statutory provision to give effect to the purposes of the provision — is to be answered by reference to the three conditions set out by Lord Diplock, together with the additional requirement that the modified construction is reasonably open. That is to say, it must be possible to ‘read in’ or imply the additional words into the relevant statutory provision without giving to the provision an unnatural, incongruous or unreasonable construction and the provision as modified must produce a construction that is in conformity with the statutory scheme.[30]
[30]Ibid [109]. See also Dale v The Queen [2011] VSCA 324.
Although the notion of an absurd result flowing from the interpretation preferred by the primary judge was hypothetically explored in argument, the considerations identified in Leys & Leys were not addressed. We would not be disposed to read any words that introduce qualifying restrictions into the definition for the purpose of avoiding what the appellant contends may lead to an absurd result. We see no error in the reasoning of Kaye J, in terms approved by this court when leave to appeal was refused, about the words chosen and the words not chosen by the drafters of the Guides.
The appellant submitted that if Serwylo holds that ‘fractures’ has a meaning that is wider than its medical meaning it is wrongly decided. The appellant’s written case asserts that the medical meaning (whatever it might be) of ‘fractures’ in structural inclusion (2) excluded transverse process fractures. The appellant submitted that what was relevant was not the lexical meaning but the ostensive meaning of fractures. We understood the appellant to be contending that its ostensive meaning, if that be different, was the meaning the term bears in the phrase ‘multilevel spine segment structural compromise, as with fractures or dislocations, without residual neurologic motor compromise’. That submission returns to the notion that ‘fractures’, in the phrase ‘as with fractures’, is impliedly qualified by the preceding phrase, particularly the notion of compromise. That is to say it is manifestly demonstrative that the medical meaning of ‘fractures’ appears from its juxtaposition with multilevel spine segment structural compromise.
That submission faces several difficulties, the first of which is that the appellant did not identify the evidence of an accepted specialist medical meaning of ‘fractures’. It is clear that, in the Guides, the phrase ‘as with fractures or dislocations’ uses ‘fractures’ and ‘dislocations’ as nouns, that are, notably, unqualified by any adjective. The Macquarie Dictionary definition (of nouns) is:
fracture n. 1. the breaking of a bone, cartilage, etc., or the resulting condition … 2. the characteristic manner of breaking. 3. the characteristic appearance of a broken surface, as of a mineral. 4. the act of breaking. 5. the state of being broken. 6. a break, breach, or split.
As we understand the appellant’s contentions, it is entirely in that sense that the word ‘fractures’ is to be understood.
It is plain that Kaye J, the Court of Appeal when refusing leave, and the primary judge all understood the word ‘fractures’ in its ordinary, lexical, defined meaning, but there is nothing said in Serwylo that is affected if ‘fractures’ has a meaning that is other than its ordinary meaning.
Further, as we understood it, the appellant’s contention — that ‘fractures’ in structural inclusion (2) excluded transverse process fractures — developed from the notion that healed, undisplaced, transverse process fractures could not compromise multilevel spine segment structures. There is no aspect of this contention that requires, or even suggests, that ‘fractures’ is used in a technical or specialised sense that is different from its plain meaning.
To suggest that the word has an ostensive meaning, identified in the relation of ‘fracture’ to ‘compromise’, is inconsistent with the ordinary usage of the interposing words ‘as with’. Second, the contention for a technical meaning is, in substance no different from reading in an adjectival qualification of the noun ‘fractures’. Third, the same argument was run, and lost, in Serwylo, both before Kaye J and on an application for leave to appeal.
Section 76(1) of the Evidence Act provides that ‘[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed’. There is an exception to the exclusionary rule, known as the opinion rule and stated by s 79(1) of the Act. In Dasreef Pty Ltd v Hawchar,[31] the plurality stated:
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered ‘to prove the existence of a fact’. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between ‘opinion’ and ‘fact’ or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of ‘fact’. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’[Evidence Act, s 55(1)]. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.[32]
[31](2011) 243 CLR 588.
[32]Ibid 602 [31].
The critical question for the appellant was how does the evidence of Wilde, if it were accepted, rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The first step is to indentify the fact in issue that the appellant asserts the opinion proves or assists in proving. The second step for the appellant is to identify how the evidence of Wilde rationally affects the probability the term ‘fractures’ is used in a technical context, and in ascertaining its technical meaning.
As we understood the appellant’s contention that the evidence of Wilde was relevant, the first fact in issue was whether ‘fractures’, as the term is used in structural inclusion (2) of DRE Lumbosacral Category IV of the Guides, is used in a technical context. The second fact in issue was the technical meaning of the term ‘fractures.’
The appellant contended and it may be accepted that the Guides were written by medical practitioners, for use by medical practitioners, for the purpose of making a medical assessment,[33] subject to s 91 of the Accident Compensation Act, which contemplates that the Guides will be used for the purpose of making a medical assessment by medical practitioners who have completed an approved training course.[34]
[33]Lake v Transport Accident Commission [1998] 1 VR 616, 621; Transport Accident Commission v Elworthy [2007] VSC 48, [21].
[34]See s 91(1)(b) and Gillat v Transport Accident Commission [2003] VSC 15.
The appellant directed our attention to observations of the Full Federal Court in Woodward v Repatriation Commission[35] in relation to a Statement of Principle (SoP) written by medical specialists —
The SoP has been developed by an expert medical panel. It needs to be interpreted against that background. This is particularly so when (as here) the SoP adopts a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialists. That is what this SoP does in its express reference to DSM-IV and ICD-9-CM code. To interpret the SoP as if it were a conveyancing document is to misunderstand the task. What is necessary is to understand what it was intended to convey by those charged with the responsibility for its production. Where it appears that the language has been used with a specialised meaning in a particular area of speciality then the words are to be understood with that meaning. Of course, the distinction between an ordinary and specialised meaning may be a matter of degree: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. But in determining whether there is any specialised meaning and what that meaning is the AAT may refer to authoritative medical texts: see McMullen v Commissioner for Superannuation (1985) 3 AAR 358 at 376-378. It may also receive expert evidence: see Pearce & Geddes, Statutory Interpretation in Australia (5th ed), pp 99-101 and see General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 at 54-55. For example, medical evidence as to the meaning of a statutory instrument was received in Comcare v Watson (1997) 73 FCR 273.
We pause to observe that the language used in both Woodward and Agfa-Gevaert Ltd of itself bespoke use of a medical definition with a specialised meaning in a particular area of speciality. The same cannot be said of the phrase ‘as with fractures’. However, subject to the primary consideration that the inquiry is relevant, we would accept that a court may receive expert evidence in determining whether there is any specialised meaning of words or phrases and, if so, what that meaning is.
[35](2003) 131 FCR 473, 493–4 [113] (Black CJ, Weinberg and Selway JJ).
For the reasons we have given, there was no issue of fact arising in the construction of structural inclusion (2) of DRE Lumbosacral Category IV of the Guides. The issue of construction before the primary judge was a question of law that did not raise any issue of a medical definition of ‘fractures’ with a specialised meaning. The primary judge was right to perceive the proposed medical evidence as doing no more than following the legal debate. The evidence was irrelevant and was rightly excluded.
For these reasons, ground 1 fails.
As the appellant’s contentions that ground 2 be answered in its favour turn on Wilde’s evidence, the appellant correctly conceded that if it failed on ground 1, it would be unnecessary to consider ground 2.
We would dismiss the appeal.
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