BUNNINGS GROUP LIMITED v Peter Howard HICKS & Ors

Supreme Court of NSW|2008-08-05|Before: Simpson J, Dr J

Background 20 Because of the relatively informal manner in which proceedings are conducted in the Commission, the following outline is derived from a number of sources, some of it indirect, such as histories taken and recorded by various medical practitioners. 21 Mr Hicks was born in 1953. After leaving school he had a variety of forms of employment. In 1985 following a 1983 injury while working in the mining industry, he underwent spinal fusion at L5/S1 level. The surgery was performed by Dr John Bentivoglio. Although the surgery was judged to have been successful, Mr Hicks does not appear to have returned to work until about 1990. The materials available do not disclose why that was so. Thereafter he worked in several jobs in earthmoving, truck driving, and cleaning. From 2000 to 2003 he operated his own cleaning business. During this time he worked as a cleaning contractor for Bunnings. At this time he worked seven days each week. In August 2003 he took up employment with Bunnings as a casual employee, and in November of that year the employment became full-time. Until October 2004, there does not appear to have been any suggestion that he was unable, for any reason, to discharge his duties. (In a statement filed in the Commission (which was unchallenged), he expressly asserted to the contrary.) 22 On 10 October 2004 a wheeled step ladder upon which Mr Hicks was working malfunctioned, and he fell, holding a heavy box, and twisted his body. His right leg took the weight of the fall. He suffered injury both to his back and his knee in the fall. He made a claim for payment of workers compensation under s 33 (weekly payments) of the WC Act. He was certified unfit for work for some time and then fit to return to work part-time, on "suitable duties". For some months he worked part-time. 23 Until at least January 2007 Mr Hicks provided regular WorkCover medical certificates certifying his unfitness for work. It appears (although it is not entirely clear on the evidence) that Bunnings, through its insurer, did not (and does not) dispute his entitlement to weekly payments, and continued to make those payments. That is, no issue has been taken as to his incapacity, or reduced capacity, to perform his pre-injury employment tasks. 24 On 2 March 2006, Mr Hicks made a claim for compensation for permanent impairment under s 66 of the WC Act. (He also made a claim under s 67 of the WC Act for compensation for pain and suffering resulting from permanent impairment, but that is not presently relevant.) The s 66 claim related both to Mr Hicks' right knee injury and to the injury to his back. It was rejected by Bunnings' insurer. Mr Hicks lodged an Application to Resolve a Dispute, identifying as the matter for reference to the Commission "lump sum compensation where liability in dispute" (under s 288 of the WIM Act). He identified as the matters for referral for medical assessment by an AMS "lump sum compensation where degree of permanent impairment in dispute" and "threshold for work injury damages where the degree of Whole Person Impairment in dispute". This Application was accompanied by a considerable body of documentation, including medical reports, the WorkCover medical certificates, and his own statement (to which reference has already been made). It also included two reports by Professor Y A E Ghabrial, an orthopaedic and spinal surgeon, both dated 4 October 2006. Mr Hicks had been referred to Professor Ghabrial in April 2006. Professor Ghabrial stated his belief that Mr Hicks had, in the October fall, sustained an injury to the L4/5 disc anulus, and was not fit for activities involving heavy lifting, excessive bending, excessive twisting and sitting or standing for lengthy periods. He assessed the Whole Person Impairment as 13%, coming within DRE Category III. He assessed one tenth of that impairment as attributable to the "previous problem" (ie the 1983 injury), and, therefore the impairment attributable to the 2004 injury as 12%. He assessed the Whole Person Impairment due to the right knee injury at 3%. 25 Also included in the documentation provided by Mr Hicks were two reports of Dr Trevor Best, also an orthopaedic surgeon, both dated 19 January 2006. Dr Best wrote: "He has continuing and permanent impairment of function of his back and both legs due to disc injury at the L4/5 and L5/S1 levels. The continuing back impairment is related to the work injury of 10 October 2004 and I suggest then that his work for Bunnings has been a substantial contributing factor to his present continuing back impairment." 26 Dr Best assessed the Whole Person Impairment due to the back disability at 12%, which he discounted by one tenth by reason of the pre-existing back condition; after rounding, therefore, he considered the Whole Person Impairment due to the October 2004 incident as 11%. He assessed the Whole Person Impairment due to the right knee injury at 4%. 27 Mr Hicks' statement outlined his 1983 injury, the 1985 surgery, and the subsequent effects of that injury on him. He said: "24. In approximately 1983 I sustained a lower back injury whilst working in the mining industry. I made a workers compensation claim … and received a lump sum payment in settlement of the claim … As a result of the surgery, my back pain improved considerably but not completely. I continued to have mild low back pain , but the bilateral leg pain resolved completely. After recovering from the surgery I have not experienced any back pain which has inhibited my ability to work to my full capacity in different employment positions until the accident on 10 October 2004. I have never occasioned any other injury, either work related or otherwise." (italics added) 28 Bunnings filed a Reply to the Application which was also accompanied by a bundle of supporting material, including medical reports, among which was a report of Dr Bentivoglio dated 16 March 2005. Dr Bentivoglio recorded the 1985 surgery, which, he said, yielded "an excellent result". He noted that Mr Hicks returned to full work activities, and continued doing these "without any disability". Dr Bentivoglio also noted radiological evidence of disc damage at L4/5 level and also at L3/4 level. He noted that the 1985 L5/S1 spinal fusion was "solid and stable". 29 Bunnings also provided a report of Dr Robert Kuru, another spinal and orthopaedic surgeon, dated 2 March 2005. Dr Kuru's opinion was that Mr Hicks had an exacerbation of pain from degenerative spondylosis, and that it was possible that the symptoms were the result of "adjacent segment degenerative disease sub-consequent to his previous fusion". Of all the medical specialists who provided opinions, Dr Kuru was the only one who alluded to the possibility of such a phenomenon. He did not explain the phenomenon, nor the aetiology that he hypothesized. 30 The medical evidence provided by Bunnings included several reports of Dr Raymond Wallace, an orthopaedic surgeon, a WorkCover and Motor Accidents Authority trained assessor of permanent impairment. In his first report, dated 15 December 2004, Dr Wallace recorded, erroneously, Mr Hicks' previous injury (giving rise to the 1985 surgery) as having been to the L4/5 lumbar disc. (In fact, as the operating surgeon recorded, it was at L5/S1 level.) In a later report (31 August 2006) Dr Wallace observed evidence of disc degeneration and (correctly) a previous laminectomy at L5/S1. Dr Wallace therefore expressed the view that: "Mr Hicks has suffered a minor musculo ligamentous strain at his lumbar spine and exacerbation of pre-existing lumbar spinal condition … He has a long history of problems at his lumbar spine dating back to 1982 when he sustained an injury whilst working in the mines. … His work accident of October 2004 represents a temporary aggravation of his pre-existing lumbar spinal condition. … The exacerbation of his pre-existing lumbar spinal condition as a result of his work injury in October 2004 and (sic) will settle over a period of two months after this injury. Any ongoing lumbar spinal disability would then be due to his pre-existing lumbar spinal condition." 31 In subsequent reports, Dr Wallace adhered to and reiterated this view. In a report dated 31 August 2006, he found that Mr Hicks was unfit to return existing condition. 32 In the formal part of its Reply, Bunnings expressed an objection: " … to the WPI assessment of Professor Ghabrial dated 4 October 2006, which is included in the application, being included in the documents to be referred to the AMS."

but did not further elucidate that objection, and, so far as I can see, no further reference was made to it. 33 Bunnings certified that the dispute was limited to the matters identified in Mr Hicks' application. That is, in short, the assessment of permanent impairment. 34 A teleconference was held with the assistance of an Arbitrator, with the objective of resolving the claim, but failed to achieve resolution. The parties agreed that the claim for permanent impairment should be remitted to the Registrar for appointment of an AMS. A delegate of the Registrar issued a certificate to that effect. The parties agreed that the questions for determination by the AMS were: "1. whether the back injury was an aggravation of pre-existing condition, and, 2. if so, whether [Mr Hicks] has fully recovered." 35 A delegate of the Registrar duly referred the claim to Dr Tony Blue, an AMS. The referral nominated as the matters for assessment: · "The degree of permanent impairment of [Mr Hicks] as a result of an injury (s 319(c)) · whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)) · whether impairment is permanent (s 319(f)) · whether the degree of permanent impairment of [Mr Hicks] is fully ascertainable (s 319(g))." 36 On 23 July 2007 Dr Blue examined Mr Hicks. He was provided with all of the material submitted by Mr Hicks in his Application, and by Bunnings in its Reply. 37 The issue committed to Dr Blue for assessment was confined to the question whether, by the time of the assessment, Mr Hicks continued to suffer any effects of the October 2004 injury, or whether such (undisputed) symptoms as he did suffer at that time were attributable, not to the 2004 injury, but to the earlier injury to his spine and the 1985 surgery. In saying this, I mean to make clear that, so far as the evidence discloses, it was common ground that Mr Hicks did suffer a disability in his back, such as to render him unfit for work, (or to limit his capacity for work - the evidence in this respect is a little unclear) and to amount to a degree of permanent impairment within the meaning of s 66 of the WC Act. Obviously, the issue committed to Dr Blue with respect to the spine fell logically into two components: the degree (if any) of permanent impairment suffered by Mr Hicks; and the degree (if any) to which that permanent impairment was attributable to the 1983 injury, and the degree (if any) to which it was attributable to the 2004 injury. Dr Blue issued a MAC on 3 August 2007. He certified the Whole Person Impairment, attributable to the knee injury, at 4%. That matter is no longer in issue, and the knee injury can be put to one side. In the MAC, Dr Blue, inter alia, wrote: " … I do believe that he does suffer from a 20% Whole Person Impairment with regard to his lumbar spine problems …"

That clearly answered the first question. 38 However, that finding came within a passage in which Dr Blue also wrote: "I would believe that the twisting injury to his lumbar region occurring in the incident of October 10, 2004 merely produced temporary aggravation to his long term pre-existing lumbar disability relating to the spinal fusion and laminectomy of 1985 …"

and, following the passage earlier extracted, : " …but the entirety of this [20% whole person impairment] relates to original injury of 1984 or thereabouts resulting in the surgery carried out by Dr John Benoviglio [sic] in 1985 or thereabouts by way of L5/S1 spinal fusion and laminectomy as outlined in his report of March 16, 2005."

That is, Dr Blue found that Mr Hicks did suffer a 20% Whole Person Impairment by reason of his spinal condition, but he attributed that entirely to the 1983 injury and subsequent surgery. (The assessment of 20% Whole Person Impairment placed Mr Hicks in DRE Lumbar Category IV). 39 In accordance with the requirements of s 325(2)(c) of the WIM Act, Dr Blue set out his reasons for the assessment. He reviewed various of the medical reports that had been provided to him. He certified that the impairment is permanent. Pursuant to s 323 of the WIM Act, and under the heading 'DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY", Dr Blue wrote: "Totality of his on going back problem." 40 He described Mr Hicks as "not the most accurate of historians"; he referred specifically to an assertion he said was made by Mr Hicks to Dr Blue during the examination, that, prior to October 2004, his back had been "completely normal". Dr Blue considered this to be untrue, having regard to the earlier surgery. He appears to have taken an unfavourable view of Mr Hicks' credibility; he does not appear to have had regard to the possibility that what Mr Hicks was intending to convey was that, until October 2004, his back had not (at least since he resumed work in about 1990) interfered with his capacity to work. 41 The following passage is illustrative of Dr Blue's view of Mr Hicks credibility; he wrote: "He … continues to inform that his back was completely normal prior to the [October 2004 incident] however this was obviously not true and eventually he did confirm that in 1985 he had undergone a spinal fusion for a work related back injury complicated by right leg pain …" 42 In one interesting passage, Dr Blue wrote: "He also did confirm that there was compensation settlement regarding the injury [this was a reference to the 1982 injury] and on this basis alone I would have to believe that his claim that his back was perfect prior to the incident of October 10, 2004 is in fact not true."

The consequence of Dr Blue's conclusion was that Mr Hicks' claim for compensation under s 66 of the WC Act was rejected. By literal application of s 323(1), the whole of the 20% impairment was deducted, leaving a nil assessment of Whole Person Impairment attributable to the October 2004 accident. 43 Pursuant to s 327(4) Mr Hicks appealed by filing the required Application. It will be remembered that that subsection also provides that an appeal is not to proceed unless the Registrar is satisfied that "on the face of the application and any submissions made to the Registrar", at least one of the grounds for appeal specified in subs (3) has been made out. In the application Mr Hicks specified two of the subs (3) grounds on which he relied. These were the grounds provided for by ss 327(3)(c) and (d): that is, that the assessment was made on the basis of incorrect criteria, and that the MAC contained a demonstrable error. Detailed submissions were attached to Mr Hicks' application. Bunnings filed a Notice of Opposition to the appeal, which was also accompanied by detailed submissions. 44 The solicitor who prepared and signed the submission for Mr Hicks made it clear that the appeal was directed, not to Dr Blue's assessment of 20% Whole Person Impairment, but solely to the assessment of the deduction to be made by reason of the proportion of the impairment that was attributable to the pre-existing condition. 45 The solicitor drew attention to the fact that Mr Hicks' earlier surgery had been to the L5/S1 disc, whereas Mr Hicks' present symptoms emanate from L3/L4 and L4/L5 disc levels. He/she expressly suggested that Dr Blue failed to appreciate that important circumstance. He/she also noted the evidence of the absence of pain symptoms during the period of Mr Hicks' employment with Bunnings, and the observations of Dr Bentivoglio, which are extracted above. 46 Bunnings' submission argued that Dr Blue was entitled, on the evidence before him, to reach the view he did, and that the appeal should not be permitted to proceed. It drew attention to what Dr Blue regarded as an apparent inconsistency in the history Mr Hicks gave concerning the condition of his back prior to October 2004, and the previous injury and surgery, and that, it seems, gave rise to Dr Blue's adverse assessment of Mr Hicks' credibility. 47 In accordance with s 327(4) Mr Hicks' application was made to the Registrar, and referred to a delegate. 48 On 16 October 2007, the delegate decided that the ground of appeal specified in s 327(3)(d) ("demonstrable error contained in the MAC") had been made out, and referred the appeal to an Appeal Panel made up of an Arbitrator and two AMS's. He made no reference to the ground, also raised in the application under s 327(3)(c), that the assessment was made on incorrect criteria. The delegate gave no reasons for his findings. Although he identified the "demonstrable error" as the making of a 100% deduction pursuant to s 323, he did not state where the error in making that deduction lay. The relevant passage in the delegate's decision is: "I accept [Mr Hicks'] submission that the AMS erred in making the 100% deduction pursuant to section 323 of [the WIM] Act . On the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) has been made out on this basis." 49 The appeal proceeded before an Appeal Panel. The parties agreed that the appeal should be heard by the Appeal Panel without an assessment hearing. Both made written submissions and the Appeal Panel conducted its review on the documentary material before it. On 20 February 2008 the Appeal Panel decided that the MAC issued by Dr Blue should be revoked, and a new MAC issued. That MAC also certified that Mr Hicks suffered 20% Whole Person Impairment, from which should be deducted 10% (under s 323(2) of the WIM Act) "for pre-existing injury, condition or abnormality". The Appeal Panel accordingly deducted 2% from the 20% assessment of Whole Person Impairment, leaving an assessed Whole Person Impairment of 18%. It also gave reasons for its decision. It analysed the medical reports and radiological evidence. The Appeal Panel referred to the various reports that had been before Dr Blue (and to some material not mentioned by Dr Blue) and weighed the competing assessments against one another. It gave considerable weight to Dr Bentivoglio's assessment of Mr Hicks' response to the 1985 surgery, and concluded: " … it would be inappropriate to attribute the entirety of [Mr Hicks'] current disability so far as the lumbar spine is concerned to the [1983 injury]. Whilst recognising that there were continuing complaints of pain arising from the earlier incident it was not such as inhibited or prohibited [Mr Hicks] from returning to full time work." 50 The Appeal Panel expressly stated that a deduction of 10% (involving s 323(2) of the WIM Act) would not be "at odds with the totality of the evidence available". 51 The Appeal Panel placed some weight on what it perceived as a discrepancy between the history taken by Dr Wallace and recounted in his report of 15 December 2004, and the account of the surgery given by Dr Bentivoglio. It appears that the discrepancy to which the Appeal Panel referred is that already noted, that is, Dr Wallace's error concerning the spinal vertebra upon which Dr Bentivoglio operated. 52 Two decisions give rise to the present summons. The first is the decision of the delegate of the Registrar, under s 327(4), to permit the appeal to proceed, on his being satisfied that demonstrable error had been made out. The second is the decision of the Appeal Panel to revoke the MAC issued by Dr Blue and to issue a fresh MAC. 53 Each decision, it is contended in the summons, involved error on the face of the record and jurisdictional error. Declarations to that effect, and consequential orders, are sought.

Grounds 54 The grounds (said to be of appeal) are specified as: "1. The second defendant [the Registrar, through her delegate] erred in law and in the exercise of her jurisdiction in finding that grounds of appeal existed pursuant to s 327(3) and in particular s 327(3)(d) of the [ WIM Act ].

The [Registrar] erred in law in finding that the [AMS] erred when he made a 100% deduction pursuant to s 323 of the [ WIM Act ].

The [Registrar] erred in law and in the exercise of her jurisdiction in that she did not provide proper or adequate reasons for her decision to refer the matter to a Medical Appeal Panel.

The [Registrar] failed to convey to the [AMS] the two additional questions particularised in the Certificate of Determination-Consent Orders issued by Arbitrator R O'Moore on 11 May 2007 and failed to rectify the situation upon being requested to do [so] by the plaintiff's solicitor in correspondence dated 6 July 2007. [This was not pursued.]

The [Appeal Panel] erred in law and in the exercise of their jurisdiction in failing to exercise its statutory power in accordance with law.

The [Appeal Panel] failed to conduct their functions properly in that they did not conduct a review of the original medical assessment.

The [Appeal Panel] erred in law and in the exercise of their jurisdiction in making a 10% deduction on the basis of s 323(2) when they had an abundance of medical and other evidence before them of a previous fusion to [Mr Hicks'] back.

The [Appeal Panel] erred in law in failing to apply or apply properly the Guides to the Evaluation of Permanent Impairment.

The [Appeal Panel] erred in law and in the exercise of their jurisdiction in failing to give proper or adequate reasons."

The first decision: the delegate's decision to permit the appeal to proceed 55 The test posed for the delegate was that stated by s 327(4): was a ground of appeal made out? A literal reading of subs (4) suggests that, in determining whether that test had been met, the delegate was entitled to have regard only to the application (that is the application made under that subsection) and the submissions made by the parties. Those submissions were, in each case, concise but comprehensive. However, it appears to be common ground that the delegate was also entitled to have regard to the material that was before Dr Blue. Both parties referred in their submissions to the Registrar to the primary material that was before Dr Blue. No ground "of appeal" asserted that the delegate had taken into account irrelevant or extraneous material, or material to which he was not entitled to have regard, and no argument was directed to any such proposition. 56 Precisely what task the legislature has committed to the Registrar (or her delegate) has been the subject of a number of decided cases. To date, these are all decisions made in the context of a former version of s 327(4), which was in the following terms: "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists ." (italics added) 57 With effect from 1 November 2006 the subsection was amended so that it currently reads: "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar , at least one of the grounds for appeal specified in subsection (3) has been made out ." (italics added) (The italics signify the alterations made by the amendment.) 58 In the context of the original formulation of the subsection, it has been held that the role of the Registrar is that of a "gatekeeper", the criterion for the appeal proceeding past the gatekeeper being the opinion of the Registrar that one of the grounds of appeal existed: Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74]-[76]; Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [20]: In my opinion, the change of terminology has not altered the role of the Registrar as gatekeeper; it has varied or altered the test that she must apply in determining whether the gates are to be opened, and the appeal permitted to proceed. 59 Various formulations of what was encompassed in the requirement that the appeal was not to proceed unless it appeared to the Registrar that a ground of appeal existed have emerged from the authorities: · the ground "exists as an arguable proposition": Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [34], per Hoeben J (relying upon Zuanic v Gypro-tech (Australia) Pty Ltd (In Liq) [2006] NSWSC 739 at [30]), Pitsonis at [49]; · the ground is, on its face, "valid and apparently credible": Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8] per Handley JA; · a ground exists where it is one "made in circumstances where there is a sufficiently realistic prospect of [its] being made out", and "has enough substance to warrant the appeal proceeding": Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission NSW [2007] NSWCA 149 at [76] per Campbell JA; · a ground exists where it is one that "cannot be dismissed as patently untenable or colourable": Vegan (Court of Appeal), [133], per Basten JA; Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at 42 ("SRA").

60 In Riverina Wines, Campbell JA analysed the differences between the approaches taken in Vegan by Basten JA and Handley JA, and, while preferring the formulation expressed in positive terms (as proposed by Handley JA) to that expressed in negative terms (as proposed by Basten JA), nevertheless thought that both were correct (as did McColl JA, the third member of the bench in Vegan) insofar as both required the Registrar to form an opinion that is something less than that the ground is actually made out (at [76]). 61 However, much of that is of historic interest only, given the amendment to the section. In SRA, which was decided after the amendment, but in relation to a case governed by the original legislation, Giles JA stated that the meaning of "exists" is "less than" the meaning of "made out" (at [3] and [7]). Basten JA, at [42], repeated the view he had stated in Vegan, that what the Registrar is required to do is satisfy herself that the ground involved: " … cannot be dismissed as patently untenable or colourable."

but did not comment on the effect of the amendments to the subsection. 62 Less controversially, in Riverina Wines, Campbell JA pointed out that the phrase in the original subsection "appears to the Registrar" merely required the opinion of the Registrar that the ground "existed", as distinct from requiring the objective existence of that ground. 63 Although it can be seen that no settled position was ever reached in relation to what was required by the unamended subsection, what now arises for determination is what is required by the subsection in its amended form. 64 The principal issue that arises concerns the construction of the phrase "one of the grounds of appeal .. has been made out" as distinct from "exists". 65 I was provided with a copy of the Second Reading Speech introducing the amendment (NSW Legislative Assembly Hansard, 29 November 2005) but this casts no light upon the purpose of the alteration to the subsection. It contains not the slightest indication of the reasons or circumstances that led the Parliament to make the amendment, or the perceived mischief it was intended to cure. 66 Examination of the before and after versions of subs (4) suggest to me, fairly emphatically, that the intention of the legislature in enacting the amendment was to put in the way of a would-be appellant a hurdle higher than that which had previously existed - or, to adopt and continue the analogy constructed by Wood CJ at CL in Vegan, to make the gates to the Appeal Panel more difficult to open. 67 No longer is the Registrar or her delegate required only to "form an opinion" (see Riverina Wines) about the existence of a ground for appeal; he/she is to "be satisfied" (in my opinion, a more stringent test); no longer is he/she to address the question whether the ground of appeal "exists"; the question to be addressed is whether the ground of appeal "has been made out" (also, on the express authority of SRA, a more stringent test). As Giles JA pointed out in SRA, the new test is more demanding than the old. And, it would seem, at least if a literal interpretation is given to the words introduced by the amendment, he/she is to reach that satisfaction by having regard only to "the face of the application and any submissions made to the Registrar". That, it would seem (curiously), would preclude the Registrar or her delegate having regard to the primary document, the MAC itself, or the material that was before the MAS, other, perhaps, than to the extent to which it is incorporated in the submissions made to the Registrar. As I have noted above, no submissions were directed to any proposition that, by reason of the additional words interpolated by the amendment, the delegate was not entitled to have regard to that material - material which was the subject of express reference by both parties. 68 The question remains as to the extent to which it is necessary for a would-be appellant to satisfy the Registrar if an appeal is to be permitted to proceed. It may be that the key to this is to be found, not in the use of the words "exists" and "made out", but in the use of the word "demonstrable" as distinct from "demonstrated". 69 As Mason P pointed out in Pitsonis, in a related but slightly different context, "demonstrable" means "capable of being demonstrated" - that is, capable of being demonstrated to the tribunal charged with the determination of the appeal. That tribunal is the Appeal Panel. It is not the Registrar or her delegate. "Demonstrable" does not mean "has been demonstrated". It is true that "demonstrable" is, in common parlance, frequently used to mean, or as interchangeable with, "demonstrated". But an Act of Parliament is not common parlance, and the legislature (and its parliamentary drafting teams) are taken to be familiar with the niceties and nuances of language. Recognition of the proper meaning of "demonstrable" would yield an interpretation of subs (4) that would retain the role of the Registrar as "gatekeeper", and preserve the role of the Appeal Panel as the tribunal to which determination of the appeal is, by that section, committed. 70 S 327(4) cannot be construed in isolation from the other provisions which make up Part 7 of the WIM Act. Important, for present purposes, are the terms of s 328: by that section an appeal against a medical assessment is to be heard, not by the Registrar, but by an Appeal Panel constituted in accordance with subs (1). 71 It is not, even in the post-amendment regime, the role of the Registrar (or her delegate) to decide an appeal. That task remains firmly in the hands of the Appeal Panel. I recognise that some uncertainty or ambiguity exists, particularly in the light of the remarks of Giles JA in SRA, concerning the meaning of the words "made out" - I must accept that they demand more than the mere existence of an arguable ground of appeal. But, giving full weight to the opening sentence of s 328(1), and to s 328(2), they cannot be taken to require final determination of the ground of the appeal by the Registrar or her delegate. 72 It may seem attractive, from a superficial reading of the plain words of the amended subs (4), to conclude that the Parliament did indeed intend the Registrar to have the power finally to determine, and the role of finally determining, the fate of a ground of appeal. But there are other circumstances pointing to the contrary of that proposition. The appeal is from an expert tribunal - the AMS - that is, a person with specialised medical training and expertise. The Registrar is not required to, and ordinarily would have, no such expertise. While a Registrar is required to have legal training, his/her delegates are not. 73 This was considered worthy of comment in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [47] and [59]. It would be strange, although not impossible, if the determination of error by an AMS were left to a person without either legal or medical qualifications. And this was one circumstance that, in Riverina Wines, moved Campbell JA to take the view he did (set out above) about what was the role of the Registrar or her delegate ([80], [82]). And when Campbell JA made these observations, the legislation had already been amended, although not in such a way as to apply to the determination of that case. Campbell JA was well aware that what he there said could equally apply to the subsection as amended. And, because the amendment predated the judgment in Riverina Wines, it cannot be thought that the amendment was provoked or instigated by those observations - or, indeed, the circumstances that appertained in Riverina Wines. 74 In relation to the ground of appeal specified in s 327(3)(d), by reason of the use of the word "demonstrable" as distinct from "demonstrated", it is possible to conclude that what subs (4) requires is that the Registrar be satisfied that the would-be appellant has made out a case that error (the error identified) was capable of being demonstrated to the Appeal Panel. 75 But that construction will be effective only if it can apply equally to the other grounds specified in s 327(4). Can the same formulation work in relation to the other grounds? I think it can. 76 The Registrar may be satisfied that an applicant has made out a case (to be determined by the Appeal Panel) that the original assessment was made on the basis of incorrect criteria: and equally with respect to the other grounds for which the subsection provides.

The grounds of the present application 77 I turn now to consider the "grounds" specified in support of the summons. It is convenient to deal first with the "ground of appeal" numbered 3, by which Bunnings contends that the delegate erred in law in failing to give "proper or adequate" reasons for the decision to permit the appeal to proceed. 78 Under the pre-amendment version of subs (4), it was established that neither the Registrar nor her delegate was obliged to give reasons for a decision to permit an appeal to proceed: Riverina Wines, per Hodgson JA at [5], per Campbell JA at [112], [114]. (Hodgson JA did reserve the question of whether the same would apply to a decision not to permit an appeal to proceed, this having the effect of finally determining rights. Since, here, the complaint is that the delegate did permit the appeal to proceed, it is unnecessary to spend any time on that caveat.) 79 Bunnings now submits that the amendments to subs (4) have changed that position, and that a Registrar or her delegate is obliged to give reasons. The following submission was made: "29. It is also submitted that now that the Registrar has to be satisfied that such an error has in fact been 'made out', as opposed to being satisfied merely that an error 'appears to exist' requires the Registrar to provide reasons as to why he is so satisfied. In this case he has not done so." 80 The submission requires examination of the content of the amendment. Before that, however, I note that the test has (no doubt inadvertently) been misstated in the submission. The test was never whether the Registrar was satisfied that an error "appears to exist": what an applicant for an appeal had to do was make it appear to the Registrar (or delegate) that at least one of the specified grounds for appeal in fact existed - that is, that the ground for appeal was reasonably arguable (to paraphrase and encapsulate the extracts I have set out above): Riverina Wines at [73]. 81 There is no obvious reason why a test requiring satisfaction that a ground has been made out, as distinct from one requiring the formation of an opinion that the ground exists, requires reasons in circumstances where it is established that the alternative test did not. 82 The circumstances that led Campbell JA, in Riverina Wines, to the view that it was, under the original legislation, unnecessary for the Registrar to give reasons were: · in reaching an opinion that a ground for appeal exists, the Registrar (or her delegate) is not making a decision of a judicial character; (as mentioned above, it might be otherwise if the decision is to refuse to allow the appeal to proceed); · in reaching the necessary opinion and in deciding to allow an appeal to proceed, the Registrar (or her delegate) is not finally deciding any legal rights or duties, beyond that the applicant was entitled to a "reassessment" by the Appeal Panel; · there is no provision for any appeal from decisions under s 327(4). 83 A close reading of the judgment of Campbell JA suggests that the second and third of these are part of the reasoning process towards the first, which is the substantive reason for concluding that the giving of reasons is not required of the Registrar or delegate. 84 How does this reasoning apply to the amendments to subs (4)? The answer is, in precisely the same way. 85 It remains the case that no provision is made for any appeal from a s 327(4) decision. If I am correct in my view that the change of wording from "exists" to "has been made out", while making the test for a would-be appellant more stringent, nonetheless does not extinguish the role of the Appeal Panel, and that requiring that "demonstrable error" (as distinct from "demonstrated error") be made out also indicates an intention of maintaining the role of the Appeal Panel in deciding an appeal, it continues to be the case that the Registrar (or her delegate) does not (at least in permitting an appeal to proceed) finally determine rights. It may then safely be concluded that, even after the amendment, a Registrar (or her delegate), in permitting an appeal to proceed, is not making a decision of a judicial character, and, for the reasons given in Riverina Wines, is not obliged to give reasons. There is nothing in the subsection, or in the second reading speech, that would suggest that the legislature intended to create an obligation to give reasons where no such obligation had previously existed. I therefore reject this complaint. There is no error of law in the delegate having failed to give reasons for his decision. 86 I now turn to the substantive complaint concerning the decision of the delegate. I extract further from the written submissions provided on behalf of Bunnings: "23. [Bunnings] contends that this [the deduction of the entire Whole Person Impairment assessment pursuant to s 323 of the WIM Act ] is not a demonstrable error. It is submitted that an AMS is at liberty to balance all the medical evidence, together with his own clinical findings and history, and come to his own conclusion. 24. The AMS properly took into account the fact that [Mr Hicks] had undergone a spinal fusion in 1985; that he had been off work for three years prior to undergoing the surgery and for five years after the surgery. He also took into account radiological investigations that had confirmed the previous surgical treatment and which in his view did not show any new pathology. He also took into account the fact that not only was [Mr Hicks] not an accurate historian, but that he had not initially told the AMS the truth about his previous back problems … 25. There was therefore no demonstrable error. The deduction of 100% was properly and adequately explained and justified by the AMS in [the MAC]. It would only be a demonstrable error if such an error was readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment. On the basis of the referral it was open to the AMS to make the kind of assessment which he did: Merza …" 87 Given the absence of reasons, it is only necessary to determine whether it was open to the delegate to reach a satisfaction that he did. That may involve a certain amount of speculation. 88 I have set out above some salient aspects of the evidentiary material. Significant amongst it is this. There is the error in Dr Wallace's first report concerning the identification of the vertebra upon which the 1985 surgery was performed. That error was not replicated in Dr Wallace's later report (although it was not explicitly corrected), and was not expressly adopted in the MAC. It was, however, potentially quite misleading, and of some significance. More important, in my view, is the approach taken by Dr Blue in his assessment of Mr Hicks. He characterised Mr Hicks' description of the condition of his back prior to October 2004 as "completely normal" and as "perfect" and contrasted this with the evidence of the 1985 surgery and the very long time Mr Hicks had been off work following that surgery. In doing that, he made no reference to Mr Hicks' statement, in which he acknowledged some mild low back pain prior to 2004, but described it as not disabling and not resulting in any time off work. Dr Blue made no mention of Dr Bentivoglio's assessment of Mr Hicks. He made a reference to Mr Hicks' previous compensation claim in terms that suggested that that information was not volunteered by Mr Hicks - perhaps overlooking that Mr Hicks had also mentioned that in his statement. 89 He made no reference to Mr Hicks' work history since 1990, particularly the time spent at Bunnings, during which there was (on the evidence) no symptomatology, or at least no symptomatology sufficient to interfere with Mr Hicks' work capacity or performance. 90 Finally, he gave what the delegate may well have regarded as excessive weight to the compensation settlement - it will be recalled that he said that: " … on this basis alone I would have to believe that his claim that his back was perfect prior to the incident of October 10, 2004 is in fact not true." (italics added) 91 I am quite satisfied that it was open to the delegate, on this material, to be satisfied that demonstrable error - that is, error capable of being demonstrated to the Appeal Panel - had been made out. The error may be identified as failure to take relevant evidence, or relevant considerations, into account. On it may be that the delegate took the view that, on the whole of the evidence before him, the conclusion of the delegate was demonstrably wrong in the sense that it was not reasonably open to him. In this respect, the evidence concerning Mr Hicks' pre-injury work performance was very strong. 92 Indeed, on one reading of his decision, the delegate approached the issue on the basis that he was the final arbiter of whether the ground advanced had been made out - he expressly accepted that the AMS had erred in making the 100% deduction. That is, the delegate went further than it was necessary for him to do. A finding that the AMS had erred necessarily encompasses the lesser finding that the evidence was capable of establishing to the Appeal Panel that the AMS had erred. 93 I reject the challenge to the delegate's decision. It was entirely open to him to find that demonstrable error had been made out. No error at all has been shown.

The second decision: the decision of the Appeal Panel 94 The written submissions advanced on behalf of Bunnings on this leg of the claim largely reprised the earlier submissions, that is, that Dr Blue's assessment was open to him and ought not have been the subject of interference by the Appeal Panel. 95 Bunnings argued, further:

· it was not difficult or costly to determine the extent of Mr Hicks' pre-existing disability; and · that: "39. In any event, the very fact that [Mr Hicks] had had previous surgical arthrodesis would place him into DRE Lumbar Category IV of the Guides and therefore attribute at least a 20% Whole Person Impairment." 96 In support of the first, a submission was advanced that can only be called circular. It was: "37. In this case, it was not difficult or costly to determine the extent of the pre-existing disability, because the AMS came to the conclusion, on the medical evidence before him, that all of the current impairment was due to [Mr Hicks'] pre-existing disability." 97 That is a classic instance of "begging the question", as that expression is properly used. The Appeal Panel had to review the decision of Dr Blue; it could not conclude that it was not difficult or costly to make that determination because he had undertaken that exercise, in circumstances which, by the time the matter came before the Appeal Panel, had been indicative of "demonstrable error". 98 The Appeal Panel did not explain its conclusion that it would be "difficult or costly" to determine the extent, if any, of pre 2004 impairment. But it is not difficult to understand that such an exercise could involve lengthy and time-consuming medical and physical examination, in circumstances where radiological evidence may (and probably) would not have been available, in the face of uncontested (and incontestable) evidence of unimpeachable work performance. 99 I see no reason to doubt the correctness of the approach taken in this respect by the Appeal Panel. I reject this challenge to the decision. 100 The second submission, in paragraph 39, and extracted above (concerning the effect of previous surgery on the assessment of Whole Person Impairment) involves a misreading of the Guides. It was repeated in oral submissions. It was urged upon me that the very fact of the previous surgery would place Mr Hicks into DRE Lumbar Category IV. This is not what the Guides state. The assessment of Whole Person Impairment contained in that part of the Guides I have extracted above depends upon "complete or near complete loss of motion of a motion segment", which may be due to one of the circumstances there outlined - developmental fusion, successful attempt at surgical arthrodesis or unsuccessful attempt at surgical arthrodesis. It does not, as was submitted, define previous surgery as automatically (and without symptomatology) resulting in 20% Whole Person Impairment. That assessment focuses upon symptomatology. 101 The grounds of appeal also challenge the adequacy of the Appeal Panel's reasons. (It was common ground that the Appeal Panel is obliged to give reasons (Vegan, at [26]-[31], [114]-[116])). 102 However, no separate argument was directed to the asserted inadequacy of the reasons given. On my reading of the reasons, they fully fulfil the requirements, and explain adequately what led the Appeal Panel to its final decision. 103 Nor was any additional argument addressed to the ground specified as number 8, an asserted failure to apply, or apply properly, AMA5. Accordingly, this ground is also rejected. 104 There is no reason to think that the Appeal Panel was in any way in error, jurisdictional or otherwise, in its approach to its task. I reject this ground of the application. 105 The summons is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : BUNNINGS GROUP LIMITED v Peter Howard HICKS & Ors [2008] NSWSC 874

Campbelltown City Council v Vegan [2004] NSWSC 1129 Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 CASES CITED : Zuanic v Gypro-tech (Australia) Pty Ltd (In Liq) [2006] NSWSC 739 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 Siddik v WorkCover Authority of NSW [2008] NSWCA 116

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