Administrative law - Prerogative writs - Writ of certiorari - Determination of degree of disability of worker in relation to action for damages - Workers' Compensation and Rehabilitation Act (1981) - Dispute referred to Medical Assessment Panel - Jurisdictional error - Where no prescribed method of assessing degree of disability applicable - Consideration of distinction between directory and mandatory requirements - Turns on own facts

Workers' Compensation and Rehabilitation Act (1981) (WA), s 33, s 34, s 35, s 36, s 37, s 38, s 93D(2), (5), (6), (8), (11), s 93A, s 93E

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Archer v Howell (No 2) (1992) 10 WAR 33

Attorney General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955

B v B [1961] 2 All ER 396

Butler v Attorney General (Vic) [1961] HCA 32; (1961) 106 CLR 268

Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214

Della Franca v WA Teachers Financial Society Limited, unreported; FCt SCt of WA; Library No 7454; 23 December 1998

F v F [1970] 1 All ER 200

Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655

Harvey v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASC 299

Hatton v Beaumont (1978) 20 ALR 314

Howard v Boddington [1877] 2 PD 203

Montreal Street Railway Co v Normandin [1917] AC 170

P v P [1971] 1 All ER 616

Public Service Board (NSW) v Osmond (1986) 159 CLR 656

R v Minister for Fisheries; Ex parte National Australia Bank [1991] Tas R 70

R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170

R v Urbanowski [1976] 1 WLR 455

Re Anastas; Ex parte Welsby [2001] WASC 178

Re Smith; Ex parte Rundle (1991) 5 WAR 295

Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81

1 STEYTLER J: This is the return of an order nisi calling upon a Medical Panel constituted pursuant to s 93D(11) of the Workers' Compensation and Rehabilitation Act (1981) ("the Act") to show cause why a writ of certiorari should not be issued against it quashing a determination made by it on 7 November 2000.

2 The applicant suffers from lung cancer, pleural disease and asbestosis. He believes that this was caused by his exposure to asbestos while employed as a truck driver in the 1950's by a company known as Manford Property Services Pty Ltd ("Manford Property"). He wants to sue Manford Property for damages. However, by s 93E(3) of the Act, he can only be awarded damages at common law if certain conditions are met. One of these (being the only relevant one for present purposes) is that he has a "significant disability". He will, by virtue of s 93E(4), have a significant disability if the degree of disability suffered by him is agreed or determined to be not less than 16 per cent and the agreement or determination is recorded in accordance with the Workers' Compensation and Rehabilitation Regulations (1982) ("the Regulations").

3 The applicant contends that his afflictions are such that his degree of disability is not less than 16 per cent. However Manford Property disputes this. In those circumstances the applicant was entitled, by s 93D(5) and (6) of the Act, if he could obtain a doctor's opinion indicating that his degree of disability was not less than 16 per cent, to refer the question as to his degree of disability to the Director of Conciliation and Review ("the Director") appointed in accordance with Div 1A, Pt V of the Act. He did obtain such an opinion. He consulted Dr A W Musk, a physician who has expertise in the field of respiratory medicine. Dr Musk provided him with a report, dated 24 February 2000, in which he concluded that the applicant's degree of disability was about 20 per cent. The applicant delivered the report to the Director.

4 The Director, once he had received Dr Musk's report, notified Manford Property of its contents. However it continued to insist that the applicant's degree of disability was less than 16 per cent. A "dispute" consequently arose for the purposes of s 93D(8) of the Act. It was not resolved by agreement. Because the dispute related to a disability mentioned in s 33, s 34 or s 35 of the Act (being one caused by, inter alia, lung cancer and asbestosis), the dispute was required, by s 93D(11), to be referred to a medical panel for determination as described in s 36 of the Act. That section provides for references to a medical panel comprising two or three physicians nominated from amongst those who specialise in diseases of the chest or in occupational diseases, one of whom must specialise in diseases of the chest.

5 Sections 37 and 38 of the Act provide for various procedural matters. Section 37 gives to any medical practitioner who has examined or treated the worker on his own behalf or who has examined him on behalf of the employer the right to attend and make oral submissions to the medical panel. Importantly, for present purposes, s 38(1), (2) and (4) of the Act provide as follows:

"38. Questions for determination by a medical panel

(1) On a reference under section 36, the medical panel, following such examination and tests as it may require, having given the opportunity for oral submissions to be made, and having considered such oral submissions as have been made pursuant to section 37, and perused such certificates of other medical practitioners as either party may in person or by his solicitor or agent tender to that medical panel, shall thereupon consider and determine the following questions -

(a) is, or was, the worker suffering from pneumoconiosis, mesothelioma or lung cancer?

(b) if so, is, or was, the worker thereby disabled from earning full wages?

(c) to what extent if any does, or did -

(i) pneumoconiosis;

(ii) mesothelioma;

(iii) lung cancer,

cause impairment of his ability to undertake physical effort?

(d) what other, if any, disease or physical condition is, or was, contributing to the worker's disablement or death and to what extent?

(e) is, or was, the worker fit for work? If so, at what level - light, moderate, or heavy?

(2) The determination of the medical panel shall, as far as is practicable in each case, be in the form and contain answers to the questions prescribed.

(4) The determination of the medical panel or a majority of its members is final and conclusive and binding on the worker, on his employer, and on any tribunal in which such determination is relevant."

6 However s 93D(11) of the Act provides not only that a dispute relating to a disability mentioned in s 33, s 34 or s 35 thereof is to be referred to a medical panel as described in s 36, but also that the Act is to apply to the reference "as if it were a reference under section 36 except that the only question to be considered and determined on the reference is the question that was referred".

7 The question referred to the Medical Panel by the Director in this case, and therefore the only question to be considered and determined by it (by virtue of s 93D(11)), was expressed as follows:

"What is the degree of this worker's disability as assessed in accordance with section 93D(2) of the ... Act?"

"93D. ...

(2) For the purposes of section 93E, the degree of disability of the worker is to be assessed -

(a) so far as Schedule 2 provides for such a disability, as a percentage equal to -

(i) if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or

(ii) if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;

(b) to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

(c) to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.

... "

8 It was common cause that par (a) of that section did not apply because Sch 2 does not provide for a disability of the kind suffered by the applicant.

9 The expression "AMA Guides" in par (b) is, by s 93A of the Act, defined to mean "the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations". At the material time reg 3 of the Regulations (being the regulations referred to in the Act) prescribed, for the purposes of the definition in s 93A of the Act, the first edition of that Guide. I shall refer to this as "the 1994 Guide", the first edition having been published in that year.

10 The only part of the 1994 Guide which touches upon an assessment of the degree of permanent impairment under s 36 of the Act is ch 5 thereof. However that chapter gives no guidance at all as to how the degree of permanent impairment is to be assessed. All it does is summarise relevant aspects of the operation of the Act. It reads as follows:

"The assessment of respiratory diseases of pneumoconiosis, mesothelioma and lung cancer are [sic] the subject of specific provisions under the Workers' Compensation and Rehabilitation Act and have a maximum percentage disability under the Act of 100%. The Act requires that claims relating to those specific diseases should be referred to a Medical Panel (Section 36) to determine:

(a) is the worker suffering from pneumoconiosis, mesothelioma or lung cancer?

(b) if so, is he thereby disabled from earning full wages?

(c) to what extent if any does -

(i) pneumoconiosis;

(ii) mesothelioma;

(iii) lung cancer,

cause impairment of his ability to undertake physical effort?

(d) what other, if any disease or physical condition is contributing to his disablement and to what extent?

(e) is the worker fit for work? If so, at what level - light, moderate, or heavy?

The determination of the Medical Panel is final and binding.

Questions as to whether there is a causal link between the employment and the disease is [sic] decided, in default of agreement between the worker and the insurer by the dispute resolution processes provided for under the Act. These processes cater for circumstances where, for example, there have been changes in employer and/or insurer and questions arise as to when it was contracted and hence the respective employer's/insurer's liabilities."

11 It consequently seems that par (b), too, is inapplicable.

12 That being so, one is obliged by par (c) to turn to the Regulations. However they, too, provided no guidance. There was, at the material time, nothing in them which said how the degree of disability should be assessed in a case such as the present, although the omission has since been remedied by way of amendment.

13 The Medical Panel was consequently left in the position in which it could not do what s 93D required it to do, namely assess the applicant's degree of disability in accordance with one or other of the only three methods prescribed by the legislature. Undeterred by this (perhaps because it did not know what else to do) the Panel, on 7 November 2000, answered the question posed to it by saying that the applicant's degree of disability, as assessed in accordance with s 93D(2) of the Act, was 10 per cent.

14 That, of course, could not be right. If none of the methods of assessing the degree of disability prescribed by s 93D(2) was applicable then the determination of 10 per cent could not have been assessed in accordance with that section. That being so, it seems to me, the Medical Panel necessarily acted in excess of the jurisdiction given it by the Act.

15 Counsel for Manford Property (who was given leave to appear on the return of the order nisi) made a valiant attempt to persuade us that, the requirements of s 93D(2) being "directory" only, a failure to comply with them would not result in invalidity. However I am not persuaded that this contention has substance.

16 The distinction between directory and mandatory requirements (described as "elusive" in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24) has, more recently at least, been criticised. Thus, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ (at 390, par 93) said, of the distinction, and of the division of directory acts into those which have substantially complied with a statutory command and those which have not, that:

"They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales ... [citations omitted]. In determining the question of purpose, regard must be had to 'the language of the

relevant provision and the scope and object of the whole statute (Tasker v Fullwood [1978] 1 NSWLR 20 at 24)'."

17 It seems to me, when regard is had to the scheme of Pt IV of the Act, and to the provisions of s 93D in particular, that the legislature intended to spell out just how the degree of disability of a worker is to be assessed for the purposes of s 93E, and that it intended that the use of any other method of assessment should result in an invalid determination. That, in my opinion, is hardly surprising when regard is had for the importance of a determination in this respect. I have already said that the consequence of a determination that the degree of disability is less than 16 per cent (and such a determination is, by virtue of s 38(4) of the Act, "final and conclusive and binding") is that the worker is precluded from recovering common law damages from his or her employer. Moreover, because the composition of medical panels will vary from time to time, those panels being drawn from a number of qualified practitioners, there could, in the absence of a prescribed method or methods of assessment, be no real consistency of decision making.

18 I am consequently satisfied that there was a jurisdictional error. There being no dispute that certiorari lies in such a case as this (see Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996; Re Gillett; Ex parte Rusich [2001] WASCA 111), it follows that the order nisi should be made absolute and that the determination of the Medical Panel should be quashed. Because the legislative omission to which I have referred has since been remedied, a fresh determination can now be made in accordance with the requirements of the Act.

19 The conclusion at which I have arrived makes it unnecessary for me to consider the applicant's alternative claim for relief in the form of a declaration that the Medical Panel was required to, but did not, provide reasons for its decision.

20 WHEELER J: I have had the benefit of reading the reasons to be published by Steytler J. I agree with those reasons and have nothing further to add.

21 BURCHETT AUJ: I have read in draft the reasons for judgment of Steytler J. I agree with them and the orders he proposes.