Craigie v Faircloth & Reynolds Pty Ltd and Ors

The Plaintiff and the First Defendant Consent to the Grant of Relief

1. The Response of the First Defendant to the Amended Summons, filed on 16 July 2021, denied that the Plaintiff was entitled to relief.
2. The written submissions for the Plaintiff dated 29 July 2021 were served on the legal representatives for the First Defendant. Thereafter, the First Defendant determined not to resist the Plaintiff's claim for relief.
3. In accordance with Rule 36.1A Uniform Civil Procedure Rules 2005 ("UCPR"), Consent Orders were executed by the legal representatives for the Plaintiff and the First Defendant in which those parties consented to the Court making the following orders: 1. the decision of the Second Defendant dated 19 March 2021 is quashed; 2. the Certificate of Determination dated 23 April 2021 is set aside; 3. the Plaintiff's Application to Appeal against a decision of an Approved Medical Specialist dated 18 December 2020 is remitted to the Third Defendant for referral to a differently constituted Medical Appeal Panel for determination according to law; 4. the First Defendant is to pay the Plaintiff's costs of the proceedings on an ordinary basis as agreed or assessed.
4. A short explanation for the agreement and consent of the parties was contained in Annexure A to the Consent Orders under the heading "Parties' Consent Statement" which said: "1 Among other grounds of judicial review, the plaintiff contends that the second defendant's 19 March 2021 decision was tainted by error as the second defendant failed to give adequate reasons in relation to its conclusion that the plaintiff had a pre-existing condition at the "relevant date", as that term is used in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1415: amended summons dated 1 July 2021, ground 1(b) (part). 2 That there is some requirement to provide reasons is well established in case law: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, 377 [26], 377 [33], 396 [117]. 3 For example, Harrison AsJ said in Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127 that "the standard required of a written statement of reasons is that they reveal the actual path of reasoning by which the decision maker arrived at its opinion" (at [103]). 4 The first defendant concedes that the second defendant's reasons failed to meet this standard in relation to the conclusion as to the plaintiff's pre-existing condition: in particular, the second defendant's reasons do not adequately identify the 'relevant date'. As a consequence, the first defendant admits that the second defendant fell into jurisdictional error, thus justifying the quashing of the second defendant's decision and, generally, the orders to which the parties have consented."

Procedure under Rule 36.1A UCPR

1. Rule 36.1A UCPR provides as follows: "36.1A Consent orders (1) The court may, if satisfied that all relevant parties have been notified, give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them. (2) Unless the court, for special reasons, otherwise orders, the court must refuse to give judgment, or order that judgment be entered, in terms that restrict, or purport to restrict, any disclosure of the terms of the judgment or order. (3) Subrule (2) does not limit the effect of any agreement between the parties that contains provisions that restrict the parties, or purport to restrict the parties, from disclosing the terms of the agreement or of the judgment or order."
2. It will be observed that Rule 36.1A UCPR says nothing concerning the obligation of the Court to give reasons for determination of civil proceedings.
3. On its face, Rule 36.1A applies to all types of civil proceedings, including proceedings in the Administrative List of the Common Law Division in which relief pursuant to s.69 Supreme Court Act 1970 is sought arising from decisions under the WIM Act.
4. The relief being sought by the Plaintiff in the present proceedings is a claim for relief in the form of certiorari and mandamus under s.69 Supreme Court Act 1970. A claim for certiorari has been described as a discretionary remedy: Meagher v Stephenson (1993) 30 NSWLR 736 at 738; White v District Court of NSW (1998) 45 NSWLR 313 at 322-323. Courts usually have a discretion to refuse certiorari and mandamus even though grounds have been established for that relief: Aronson, Groves and Weeks, "Judicial Review of Administrative Action and Government Liability", 6th edn, 2017, paragraph [17.50]-[17.70].
5. In Lancaster v Foxtel Management Pty Limited [2021] NSWSC 745 ("Lancaster"), a claim for judicial review concerning the WIM Act, Adamson J noted at [4] that the defendant accepted that the decision of the Medical Appeal Panel ought be set aside on a particular basis. Her Honour stated at [6]: "Because of the concession made by the employer that ground 2 has been made out, it is only necessary that I address that ground, to satisfy myself that the concession has been properly made and that the proposed orders agreed by the parties ought be made."
6. It does not appear from her Honour's judgment that the parties in Lancaster had utilised the procedure in Rule 36.1A UCPR to identify the consent of the parties to the proposed outcome.
7. However, I agree entirely with the approach adopted by her Honour in proceedings where there was a claim for relief by way of judicial review under s.69 Supreme Court Act 1970. Even if the parties agree that a proper basis existed for the grant of relief sought, it is appropriate that the Court make its own determination as to whether the concession was correct and that the proposed orders should be made.
8. Further, given that the relief sought includes an order that the matter be remitted for further determination, the reasons of the Court will serve the purpose of explaining succinctly the Court's decision to assist the parties and the new decision maker.

The Conceded Ground for Judicial Review

1. The Amended Summons identified seven grounds of appeal. Given the common position of the parties, I agree with the approach adopted by Adamson J in Lancaster that it is only necessary for the Court to consider the ground where the concession has been made by the First Defendant.
2. For that purpose, I set out Ground 1(b), which states: "1. The second defendant erred in failing to properly or adequately engage with the plaintiff's articulated arguments in his written submissions and in failing to provide proper and adequate reasons when rejecting the following submissions and thereby denied him procedural fairness and natural justice: 1. … 2. The failure by the Medical Appeal Panel to apply the principles in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 146 in the context of the plaintiff's claim that he suffered an injury to his cervical spine deemed to have occurred on 9 September 2014 primarily due to the nature of his work with the second defendant from 8 October 2007 to 8 July 2015 causing such 'disease' injury."
3. Against that background, I will note certain features of the proceedings before turning to the conceded error.

Factual Background

1. The Plaintiff, who was born in 1959, commenced employment with the First Defendant in 2007. He was employed as a factory worker in an air conditioning factory operated by the First Defendant at Coffs Harbour. His employment involved the manufacture of air conditioning ducts and joining them together, including welding and other work carried out in confined spaces. The work included lifting objects weighing 30 kilograms or more.
2. The Plaintiff stated that he had a slow onset of neck pain and stiffness over a couple of years leading up to September 2014. He sought medical assistance and investigation of his condition was undertaken with associated treatment.
3. In September 2014, the Plaintiff made a claim for worker's compensation in relation to the neck injury with the deemed date of injury being 9 September 2014.
4. The Plaintiff's claim proceeded through various stages, giving rise to a medical dispute for the purpose of s.319 WIM Act concerning the quantum of the Plaintiff's whole person impairment ("WPI") arising from his neck injury. That dispute concerned "the degree of permanent impairment [of the Plaintiff] as a result of an injury" (s.319(c) WIM Act) and "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) WIM Act).
5. Pursuant to s.321 WIM Act, the medical dispute was referred by the Registrar of the PIC to an Approved Medical Specialist, Dr Murray Hyde Page, orthopaedic surgeon. On 10 December 2020, a Medical Assessment Certificate issued under s.325 WIM Act, which indicated a total %WPI at 14%. The Approved Medical Specialist concluded that the Plaintiff "has a pre-existing longstanding cervical spondylitis, that was evident on his initial MRI scan in September 2014" and that he "also gave a history of having had neck pain in the past". The Approved Medical Specialist concluded that the Plaintiff "has one fifth level of WPI due to this pre-existent symptomatic condition", so as to reduce 17% WPI to 14% WPI (after some rounding up).
6. On 14 December 2020, the Plaintiff's solicitors filed an appeal against the medical assessment under s.327 WIM Act, which led, in due course, to the issuing of a decision of the Medical Appeal Panel dated 19 March 2021 which is challenged in the present proceedings. The Medical Appeal Panel confirmed the Medical Assessment Certificate under s.328(5) WIM Act.
7. As a result of the decision of the Medical Appeal Panel, the Division Head of the Workers Compensation Division of the PIC issued a Certificate of Determination on 23 April 2021, stating that the First Defendant should pay the Plaintiff, as lump sum compensation under s.66 Workers Compensation Act 1987, a sum of $20,350.00 in respect of 14% permanent impairment resulting from injury deemed to have happened on 9 September 2014.
8. On 16 June 2021, the Plaintiff commenced the present proceedings in this Court, with the current claim for relief being that contained in the Amended Summons filed on 1 July 2021.

Claim of Error in this Case

1. The Medical Appeal Panel has an implied statutory obligation to give reasons for its conclusions and such reasons must "fulfil a minimum legal standard": Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [122]; Lancaster at [20]. The statement of reasons must explain the actual path of reasoning adopted in sufficient detail to enable a court to see whether the decision does or does not involve any error of law: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55].
2. One of the grounds relied upon by the Plaintiff, on the appeal to the Medical Appeal Panel, was that there had been demonstrable error, or that the Approved Medical Specialist had applied incorrect criteria in his assessment, by applying a deduction for a pre-existing condition to the cervical spine where there was no evidence of any such pre-existing condition prior to the commencement of the Plaintiff's employment with the First Defendant in 2007. This was said to be contrary to the principles in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 146 ("Cullen").
3. In the decision of 19 March 2021, the Medical Appeal Panel said at [29]-[35]: "29. To begin with, we accept the principles set out in Cullen to which the appellant refers. 30. Having said that, the terms of s323(1) provide that: "In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury…or that is due to any pre-existing condition or abnormality." 31. In other words, it is the proportion of the impairment due to any pre-existing condition that must be considered by an MA, not simply the nature, extent of and onset of symptoms. 32. Irrespective of whether the appellant 'had no significant neck trouble in the past' an MA must look at the contribution to the impairment resulting from any pre-existing condition. 33. We do not accept that the MA 'treated the date of injury like a frank injury.' He specifically said that: 'These symptoms have come on over a period of years…and is [sic] more a result of the nature of his work. During this time, his pre-existent condition has therefore had a significant influence on the onset of the present chronic neck and right upper limb symptoms…' 34. In our view it is clear that the MA was fully aware of the nature of the claim. His task was to assess impairment resulting from the accepted 'disease' injury arising out of his employment. 35. The MA diagnosed severe degenerative disc disease of the cervical spine which was pre-existing and evident on the initial MRI scan in September 2014."
4. The Medical Appeal Panel concluded at [41]-[42]: "41. In summary, the appellant needs to demonstrate that the MA made a demonstrable error within the meaning of s327. 42. In our view, he was entitled to make a one-fifth deduction which was consistent with the totality of the evidence, and we cannot see that he has erred."
5. Mr Hickey, counsel for the Plaintiff, submitted that the Medical Appeal Panel had missed a critical aspect of the Plaintiff's argument, namely that, as Cullen requires, before the Approved Medical Specialist could proceed to assess the extent of any deduction for a pre-existing condition, it was necessary to determine that such condition relevantly pre-existed at the commencement of the Plaintiff's employment in 2007. It was submitted that neither the Approved Medical Specialist nor the Medical Appeal Panel made any such critical finding and thus had committed the same type of error as found in Cullen.
6. Counsel for the Plaintiff submitted that the Medical Appeal Panel had erred at law, and committed jurisdictional error, in rejecting the Plaintiff's submissions, by failing to properly engage with the Plaintiff's argument, and by failing to provide proper and adequate reasons when adopting and confirming the erroneous reasons of the Approved Medical Specialist.
7. It will be apparent from the "Parties' Consent Statement" set out earlier (at [9]) that the First Defendant agrees that there was a failure on the part of the Medical Appeal Panel to apply the principles in Cullen.
8. In Cullen, Beech-Jones J (as his Honour then was) said (at [46]) that to establish a pre-existing condition for the purpose of s.323(1) WIM Act, there must, at a "relevant date", be an actual condition, although it may be asymptomatic. His Honour observed in Cullen (at [56]) that the Medical Appeal Panel had not identified "any point in time much less prior to his employment commencing when Mr Cullen may have first developed osteoarthritis albeit asymptomatic".
9. Beech-Jones J identified the error in Cullen at [57]: "… the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a 'constitutional pathology' then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time)."
10. Having considered the matters raised in support of the claim for relief, I am satisfied that the First Defendant's concession was properly made. There has been a failure on the part of the Second Defendant to adequately identify the "relevant date" in its reasons concerning s.323 WIM Act, so that the actual path of reasoning is not demonstrated, with a consequence that a finding ought be made that the Second Defendant fell into error. I would characterise the error as being an error of law on the face of the record rather than jurisdictional error, although nothing turns on this distinction in the present case.
11. In these circumstances, I am satisfied that the orders contained in the "Consent Orders and Judgment" filed in accordance with Rule 36.1A UCPR should be made.

Orders

1. I make the following orders: 1. The decision of the Second Defendant dated 19 March 2021 is quashed. 2. The Certificate of Determination dated 23 April 2021 is set aside. 3. The Plaintiff's application to appeal against the decision of an Approved Medical Specialist dated 18 December 2020 is remitted to the Third Defendant for referral to a differently constituted Medical Appeal Panel for determination according to law. 4. The First Defendant is to pay the Plaintiff's costs of the proceedings on an ordinary basis as agreed or assessed.

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. Decision last updated: 24 September 2021