Consideration
35For a time I was attracted very much to the view that the medical panel had failed to address the argument so carefully put to them by Mr Horan in his written submissions. It seems to me that, in accordance with the decision of the Full Federal Court in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, that a failure to give serious consideration to a submission seriously addressed to it on appeal would constitute jurisdictional error in the Craig v South Australia sense either because it was a failure to take into account a relevant consideration as that expression is properly understood according to the well-known judgment of Mason J (as the Chief Justice then was) in Minister For Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 to 41 or because a failure to address the submission would be a failure to discharge its implied common law obligation to give reasons; see Dennis Willcox and Wingfoot.
36The basis of that attraction was the puzzlement expressed by the panel at paragraph 17 about what the applicant's submissions meant. Had they considered them carefully from paragraph 2 of Mr Horan's submissions, and from the report of Dr Champion there referred to, it would have been very clear that the reference to "altered trajectory" was picked up by Mr Horan from Dr Champion's report at pages 8 and 9 and, in proper context, what was meant by that expression would also have been clear. It seems to me it is a reference to the altered progression of the disease and its symptoms following work-related aggravation. I think I would have been entitled to infer that, in accordance with Dennis Willcox, notwithstanding paragraph 9 of their reasons, that the members of the panel had failed to seriously consider the main thrust of Mr El Masri's argument.
37However, I have been persuaded by the argument of Ms Allars of Senior Counsel, who appears for Woolworths, that the following sentence of paragraph 17, that is, the second sentence, adequately demonstrates that the appeal panel in substance addressed the very point that, at its highest, might have arisen out of Mr El Masri's reliance upon the expression "altered trajectory" from Dr Champion's report. That is to say, that the appeal panel considered whether the evidence justified a conclusion that the work aggravation "accelerated the progression of the pathology comprising the disease". As I have said, at best, from the plaintiff's point of view, or at its highest, that is what Dr Champion might have been taken to have meant and, arguably if that were so, then a more favourable apportionment was called for, or perhaps the difficulty in making the apportionment in those circumstances would have engaged the statutory assumption.
38I am not satisfied, for the reasons I have just given, that the appeal panel made that error.
39I might also say that, as I remarked in discussion with Mr Horan, it is a bit hard to read Dr Champion's opinion in any event as saying any more than that there was a significant symptomatic aggravation of the disease. His emphasis on altered trajectory seems to me to be that the symptoms were much worse than they might have been at that time and had proved much more resistant to appropriate treatment. That seems to me to really amount to a symptomatic aggravation of the disease rather than an acceleration of the underlying disease process, and had I been of the view that the medical panel failed to address the substantial argument, I would have been of the view that the error was not material, in the sense discussed by Mason J, because Dr Champion was saying no more than Dr Anderson had said, and the medical panel concluded, that is that the work-related aggravation was symptomatic only.
40Turning to Mr Horan's second point, I am not satisfied that by seeking to decide the question posed for apportionment purposes by s 323(2), the panel misdirected itself by including the words "on clinical grounds" in its formulation of the relevant question.
41It seems to me, as I have probably laboured too much in these reasons, that the whole purpose of these provisions is to place the determination of these important medical questions in the hands of medical experts. As I have said, s 322 requires the assessment of impairments to be determined in accordance with the guidelines. In this context, I would understand the phrase "in accordance with" to mean in conformity with and not otherwise.
42As I have said, those guidelines themselves are formulated in consultation with the peak bodies concerned with the qualification of medical specialists in this country and substantially involve an adaptation of AMA 5, an authoritative medical publication by doctors for doctors.
43The whole intention of the provisions is that medical questions will be decided by medical practitioners, having regard, or by reference, to the requirements of medical science as expressed in the guidelines. It seems to me that if one relies upon the judgment of an expert, one is relying upon that expert to exercise his or her expertise, or branch of "specialised knowledge" as it is put in a different context in s 79 Evidence Act 1995 (NSW); which I hasten to add does not apply to proceedings in the Commission.
44The question of apportionment is to be decided, therefore, by reference to the degree of impairment due to the pre-existing condition and the s 323(2) question, appearing as it does in Pt 7 of Ch 7 of the 1998 Act is to be answered as a question of medical fact. No doubt questions of law as to the meaning of "due to", and other considerations, might be wrapped up in it, but essentially the decision is to be made by medical practitioners and, in my judgment, it is no error for those medical practitioners to decide the question on clinical grounds.
45What is meant by the panel in using the expression "clinical grounds" is made clear by the succeeding passage in the decision, by the reference to what is shown on radiological investigations of the plaintiff's spine, what is known of the nature of the disease, including the consideration accepted by all the doctors, I interpolate, that at the time the first symptoms were experienced at work, the disease would already have been in existence, and the absence of any radiological or other objective evidence showing that, as a result of trauma at work, the underlying pathology had progressed further than it otherwise would have by its expected natural development. In my judgment, there is no error in this.
46I accept that the appeal panel was required to draw upon its expertise as medical practitioners and to exercise its clinical judgment in making their decision, and so much of what is said at [47] of Wingfoot is apposite to the functions of the appeal panel; as is the dictum of Studdert J in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 at [62] - [65].
47I turn then to the third ground which is the reasons ground. Part of that argument relates to the asserted failure of the panel to give proper consideration to the substantial argument of Mr Horan. For the reasons I have already given, that argument must be rejected.
48The second aspect relates to paragraph 19 of the reasons, which is in the following terms:
In the panel's view, given what is revealed by the radiology, and the worker's description of symptoms, the determination of the extent to which the pre-existing disease contributed to the appellant's impairment is not difficult. It is a matter easily determined by clinical judgment.
49As I understand the argument advanced by Mr Horan, the expression "easily determined by clinical judgment" is opaque and implies a more or less arbitrary approach to the question. With respect, I am unable to accept this submission.
50As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the panel at paragraph 18 which I will not further set out.
51Accordingly, I am of the view that the panel discharged its legal obligation in regard to the provisions of reasons.
52So far as the fourth ground is concerned, about whether the panel considered the matter for itself, I am of the view that they clearly did. Certainly they agreed with the conclusion of Dr Anderson. Being an appeal, they necessarily had to consider to his reasons and decide whether they agreed, or not. But it is clear that in expressing their agreement with his conclusions, the Medical Appeal Panel was expressing a view that its members had arrived at independently by a consideration of all the material that had been before Dr Anderson, his reasons and the written submissions provided by the parties. I am not persuaded that there is any error by way of anything in the nature of a constructive denial of jurisdiction.
53For these reasons, my orders are:
(1)The proceedings are dismissed;
(2)The plaintiff is to pay the first defendant's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.