First Plaintiff v First Defendant

2 On 23 February 2010 a medical panel constituted under Division 3, Part III of the Accident Compensation Act 1985 (Vic) ("the Act") assessed Colllard's level of impairment as a result of those injuries in connection with his claim for lump sum compensation under the Act. The second plaintiff, Worksafe Victoria ("Worksafe"), is the Authority liable to make any payments of compensation under the Act on behalf of Clarchet. In this proceeding Clarchet and Worksafe seek judicial review of the panel's opinion assessing that impairment.

3 The first to fourth defendants are the various medical practitioners who constituted the panel. In accordance with The Queen v The Australian Broadcasting Tribunal & Ors[2] the first to fourth defendants notified the Court, through their solicitors, that they would not appear or be represented at the trial of the proceeding but would submit to such orders as the Court might make.

4 For reasons given below, the opinion of the medical panel should be quashed.

5 As a result of his fall at work on 27 June 2000 Collard lodged a claim for weekly payments of compensation under the Act. In connection with that claim[3], on 18 November 2005 a medical panel constituted under Division 3 Part III of the Act was required to express an opinion as to whether Collard's employment was a significant contributing factor to an alleged injury to his neck.

6 The panel answered the question (" 2005 panel determination") in the following terms:

...the Plaintiff's employment was in fact a significant contributing factor to a soft tissue injury to the neck, which has resolved, but employment was not in fact a significant contributing factor to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of an disc degenerative condition of the cervical spine

7 In its reasons for opinion[4] it expressed the view that Collard had neck dysfunction following cervical fusion for a disc degenerative condition of the cervical spine, but that the condition was not relevant to any alleged injury suffered in the fall. Nevertheless it considered Collard probably suffered "a soft tissue injury to the neck..., which resolved, and there was no effect on the underlying disc degenerative condition of the cervical spine".

8 On 2 April 2006 Collard lodged a claim in respect of the June 2000 work injuries for lump sum compensation pursuant to ss 98C and 98E of the Act. In connection with that claim Collard and Worksafe followed the procedure prescribed in s 104B of the Act resulting in a further referral of medical questions to a differently constituted medical panel for its opinion under s 67 of the Act. That referral was made on 11 December 2009.[5]

9 Significantly, Collard accepted Worksafe's decisions as to liability for injury but only disputed its assessment of his level of impairment consequent upon the accepted injuries.[6] Inherent in his acceptance of Worksafe's decision as to liability was Collard's acceptance that, as regards his cervical spine, his injury was:

... soft tissue injury to the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine.

10 Other injuries were accepted concerning Collard's lower back, bowel and a left inguinal hernia.

11 This second panel was required to assess the level of impairment consequent upon the accepted injuries. By its opinion certified on 23 February 2010[7] the panel assessed Collard as having a 17% whole person impairment resulting from the alleged injuries.

12 In so finding the panel explained, in its Reasons for Opinion[8], as follows:

The Panel also concluded that the worker is suffering from residual dysfunction and aggravation of degenerative disc disease of the neck, treated surgically, with surgical scarring and no clinical signs of radiculopathy, relevant to the accepted injury described in the referral as "soft tissue injury of the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine".[9]

...

The Panel noted that the Notice was issued subsequent to the Certificate of Opinion of a previous differently constituted Medical Panel dated 18 November 2005 in which it concluded that "... the worker also has a neck dysfunction following cervical fusion for disc degenerative condition of the cervical spine, but the Panel considers this condition is not relevant to any alleged injury. Based on the history of the incident at work and the history of the onset of neck symptoms the Panel considers the worker probably suffered a soft tissue injury to the neck on 4th July 2000, which resolved and there was no effect on the underlying disc degenerative condition of the cervical spine".

The Panel has proceeded to assess the worker on the basis that the current referral states that the accepted injuries to be assessed by the Panel are "impairment of the back (lower), soft tissue injury to the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine, impairment of the function of the bowel resulting from prescribed medication and left inguinal hernia with residual scarring" with the designated injury date being 4 July 2000.

The Panel assessed the worker's neck in accordance with Table 70 of Chapter Three and concluded that there are clinical signs of cervical spine injury, but without clinical evidence of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category II pursuant to Table 73 of Chapter Three, resulting in a whole person impairment of 5%. The degree of impairment is permanent.[10]

13 After assessing the impairment for the other accepted injuries the panel assessed a combined whole person impairment at the level of 17% already mentioned.

14 The plaintiffs complain that the medical panel took into account, and assessed impairment for, residual dysfunction and aggravation of disc disease of the neck and cervical spine injury, and in so doing fell into jurisdictional error.

15 In substance the alleged grounds of jurisdictional error are:

• taking into account considerations it was bound in law to ignore;
• misunderstanding the jurisdiction it was required to exercise by asking itself the wrong question;
• failing to answer the referred question;
• failing to take into account considerations it was bound to have regard to.

16 The plaintiffs also allege the panel committed an error of law on the face of the record by providing inadequate reasons for its opinion in that those reasons were inadequate to show how the panel arrived at its decision.

17 Finally they also allege that the panel failed to have regard to evidence of a pre-existing lumbar injury sustained in a road accident on 24 February 1997. The plaintiffs say that in assessing the impairment for the accepted injuries in 2010 the medical panel should have excluded impairment for the 1997 injury either because that is what s 91(7) of the Act requires, or because that is what the AMA Guide directs must occur.[11]

18 Should I be of the view the panel has erred in any of these ways the plaintiffs seek the quashing of the decision and an order that the medical questions be remitted to a differently constituted panel to be reconsidered in accordance with law.

19 The essential issues for determination are therefore:

(1) Did the panel take into account, and assess impairment for, a neck injury other than the accepted neck injury, and thereby commit jurisdictional error;

(2) Did the panel fail to provide adequate reasons for its decision in respect of assessing impairment for the accepted neck injury, and thereby commit error on the face of the record;

(d) Did the panel fail to take into account the evidence of pre-existing lumbar injury and impairment which it was bound to have regard to when assessing impairment in relation to the lower back injury, and thereby commit jurisdictional error?

20 The test for jurisdictional error was authoritatively stated in Minister for Immigration & Cultural Affairs v Yusuf[12] in the following terms:

It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it".

"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[13]

21 In Australian Broadcasting Tribunal v Bond[14] Mason CJ said:

A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[15]

22 The starting point of any analysis of what constitutes a relevant matter for the purpose of an administrative decision maker is the terms of the statute.[16] It follows that it is necessary to pay careful attention to the statutory task set out for the medical panel in this particular circumstance. The following provisions are relevant:

• The function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment referred to it:[17]
• Once given, a medical panel's opinion provides a final and conclusive answer to the referred question.[18]
• A medical panel is a non-legal, but expert panel whose members consist of medical practitioners.[19]
• A worker may be required to submit to examination by the panel.[20]
• Medical questions may be referred to a panel for opinion by various bodies including a conciliation officer[21], a Magistrates' Court or a County Court[22] or (as here) Worksafe or a self-insurer.[23]
• A worker who suffers injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with s 91, entitled to compensation for non-economic loss.[24]
• Whenever such an assessment of the impairment is in dispute, the assessment is to be referred to a medical panel for determination.[25]
• Section 91 of the Act provides detailed guidance in respect of the assessment of the degree of impairment including that such assessment shall be made in accordance with the AMA Guides.[26]
• For the purpose of s 98C (ie lump sum compensation) impairments from unrelated injuries or causes are to be disregarded in making an assessment.[27]

23 More particularly relevant to the circumstances of this case are the provisions of s 104B of the Act. It is that section which prescribes the steps to be taken in relation to a claim for compensation under s 98C. Relevantly -

• Within 120 days of receiving a claim by the worker the Authority must accept or reject liability for each injury included in the claim, obtain an assessment as to the degree of permanent impairment resulting from injuries in respect of which liability is accepted, calculate any entitlement to compensation under s 98C or 98E and then advise the worker of its decisions and calculations in respect of each of those matters.[28]
• Within 60 days of being so advised the worker must advise the Authority whether he or she accepts or disputes the decisions as to liability in respect of each of the injuries claimed.[29]
• Likewise, within 60 days of being so advised the worker must notify the Authority whether he or she accepts or disputes the determinations of impairment and total loss or the calculation of compensation.[30]
• Within 14 days of being advised by the worker of any dispute as to determination of impairment or total loss in respect of the injury or injuries claimed, the Authority must refer to a medical panel medical questions as to the degree of impairment assessed in accordance with s 91 resulting from the injury or injuries claimed for which liability is accepted or established.[31]
• No appeal lies to any court or tribunal from a determination or opinion of the medical panel as to the degree of permanent impairment of a worker resulting from an injury.[32]

24 In accordance with those procedures, Collard initially made a claim[33] for injuries described as follows:

• Impairment of the back
• Impairment of the neck
• Hernia
• Impairment of the function of the bladder
• Impairment of the function of the bowel.

25 In response, Cambridge (claims agent for Worksafe) accepted liability for the following injuries:[34]

• Impairment of the back (lower).
• Soft tissue injury to the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine.
• Impairment of the function of the bowel resulting from prescribed medication.
• Left inguinal hernia with residual scarring.

26 In the same response Worksafe notified Collard that it had determined a combined whole person physical impairment of 11% for all of the accepted injuries. It also notified its assessment of the calculation of impairment benefit in the sum of $12,360.

27 Collard responded[35] to Worksafe's determination by accepting the liability determination - ie liability for the injuries as described by Worksafe - but disputing the physical assessment and the calculation of entitlement. It seems highly probable that Worksafe's acceptance of liability for the neck injuries as formulated was in consequence of the 2005 panel determination and its understanding that such determination was final and conclusive.

28 It was as a result of those events, and in accordance with s 104B(9) of the Act, that Worksafe (by its agent) referred medical questions to the panel.[36] The medical questions so referred were:

(i) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?

(ii) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in s 98E(1)?

1"> 29 The accepted injuries to be assessed by the medical panel were set out in the referral in precisely the same terms as the injuries formulated by Cambridge on behalf of the plaintiffs and, specifically, in relation to the neck injury: "soft tissue injury to the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine".

30 In addition to receiving various medical reports the medical panel also examined Collard. In its reasons for opinion it sets out what the worker told the panel about the circumstances of his injury, the history of his symptoms and treatment and his then present position. The panel also physically examined Collard.

31 It was on the basis of the review of the medical reports and its own examination that the panel drew its conclusions, including the conclusions set out above in these reasons.[37]

32 The essential complaint on behalf of the plaintiffs is that, the panel has, in substance, taken into account an irrelevant injury when assessing Collard's level of impairment pursuant to its jurisdiction to answer medical questions referred to it. Put succinctly, whereas the panel was to assess a level of impairment consequent upon

(a) soft tissue injury to the neck now resolved with no effect on the underlying disc degenerative condition of the cervical spine,

(b) residual dysfunction and aggravation of degenerative disc disease of the neck and/or clinical signs of cervical spine injury, but without clinical evidence of radiculopathy.

33 At the heart of this controversy is the definition of the accepted injury.

34 On the plaintiffs' case the very definition of the accepted neck injury precludes any finding of there being any current level of impairment resulting from it. That is either because it embodies the 2005 panel determination which is final and conclusive and must be adopted and applied under s 68(4); or because that is what the parties determined to be the injury for which liability was accepted for the purposes of defining the panel's task under s 104B(9); or both.

35 On the plaintiffs' characterisation of that injury, it was of historical interest only to the panel because it is first, a soft tissue injury, secondly a soft tissue injury which has resolved; and thirdly a soft tissue injury with no effect on the disc.

36 Given that description of the injury, argue the plaintiffs, if Collard is now suffering from dysfunction and aggravation of the degenerative disc disease of the neck or any clinical signs of cervical spine injury then any such medical condition is the product of a different injury or origin than the accepted injury. The two cannot be reconciled or understood compatibly with each other.

37 If that is so, the plaintiffs say, notwithstanding that the medical panel continued to insist that it was only assessing impairment for the accepted neck injury it must have in fact been taking into account a non-accepted (and therefore irrelevant) injury or condition when assessing the level of impairment pursuant to its statutory reference.

38 The plaintiffs contend that the panel exceeded its jurisdiction because, in effect, it determined impairment on the premise that the plaintiffs were liable for an injury which was not only not an accepted injury, but also one in respect of which liability was implicitly excluded by the terms of the accepted injury.

39 Collard has a number of responses to this argument. They are:

(a) Impairment from injury is different in concept from the injury itself and it is critical to keep that distinction in mind;

(b) An injury also includes the sequelae of the injury;[38]

(c) Collard had an accepted soft tissue injury to the neck which was not rejected, but accepted, and the panel was obliged to assess impairment for that injury;

(d) The medical panel, in assessing that impairment, must reflect the impairment at the time of the assessment and is not bound to regard an earlier state of affairs (eg in 2005) as being conclusive;

(e) There was evidence of significant neck pain and symptoms after the 18 November 2005 medical panel determination consistent with the medical panel's own investigation of Mr Collard's symptoms[39];

(f) In assessing the impairment for residual dysfunction and aggravation of degeneration of the disc the medical panel was assessing the impairment for the sequelae of the accepted soft tissue neck injury;

(g) There was ambiguity in the definition of the soft tissue neck injury[40] and the better construction is to read the words "now resolved" as simply meaning "presently resolved" or in a quiescent state, so as not to preclude the possibility of further recurrence or aggravation of symptoms for which impairment might subsequently be assessed, and by adopting that view the medical panel was acting entirely within jurisdiction; and

(i) Having regard to the statutory definition of "injury",[41] all that the 2005 panel was seeking to do, and all that the parties in 2009 were seeking to do, was to cast the injury as a direct, primary (or "frank") injury and not as a recurrence, aggravation etc of a pre-existing injury: so that there is no necessary inference that such primary injury could not later be responsible for some fresh aggravation (which is what the 2010 panel considered had occurred here).

40 In my view the plaintiffs' arguments are to be preferred.

41 The plaintiffs' formulation of Collard's accepted neck injury embodied the 2005 medical panel's decision. That soft tissue injury was considered by the panel in 2005 as to have then been resolved. I do not consider it sensible to construe the use of the same expression five years later in 2010 as being intended to have some impermanent or temporary meaning. Rather, the natural and ordinary construction of the defined injury, accepted by both parties, meant that the plaintiffs accepted liability for a neck injury which had three important limiting characteristics:

(b) It had resolved in the sense that it had cleared up and was no longer productive of any adverse physical effects.

(c) It had had no effect on underlying disc degenerative condition of the cervical spine.

42 Having those characteristics it could not be responsible for impairment arising from any current bony or spinal condition.

43 Endeavouring to now characterise dysfunction and aggravation of degenerative disc disease as the sequelae of an injury which had no effect on the underlying disc degenerative condition is like saying that a tree that had died is now yielding fruit. The constraints imposed by the parties' agreed definition of the injury preclude any synthesis of the injuries for which the panel was obliged to assess impairment, and the injuries for which the panel in fact assessed impairment.

44 I do not consider one can isolate the panels' finding in the fourth paragraph of its reasons, extracted above,[42] from its conclusions about the workers' neck injury in the first of those paragraphs, as faintly suggested by Collard in argument. Thus, it cannot be accepted that, in its final analysis, the panel was only assessing an impairment from the soft tissue injury divorced from any aggravation of disc degenerative disease.

45 Nor do I consider that one can ignore the expression "with no effect on the underlying disc degenerative condition" as really being a description of impairment rather than a description of injury, as Collard invited me to do. That is an element of the description of the injury for which the parties agreed the plaintiffs were liable, and they are stuck with it. The panel did not explicitly disregard that element as qualifying the scope of the injury - indeed, it indicated to the contrary - even though, in effect, that is what it did.

46 Collard argues, however, that the panel could not have assessed impairment for "aggravation of the degenerative disc disease of the neck, treated surgically" for, if it had done so, it could not have assessed such a minor (5%) degree of impairment. It must only have assessed impairment for a soft tissue injury. But, even if that is so, and I am not convinced that it is, the answer to this point is to recall that the description of injury had two important limitations, not just one: ie "now resolved" and "with no effect..." etc. The combination of both, in my view, did not leave open the assessment of impairment for such a neck injury as was made by the panel.

47 I do not consider that there was any real ambiguity in the definition of the injury.

48 Further, whilst I accept that impairment must reflect impairment at the time of assessment, to say so does not enable one to ignore the character of the injury which the parties have assigned to it, namely, that it was only of limited duration and by 2010 (if not by 2005) had ceased to have any meaningful existence. Given that the injury was so defined as to have only existed in a period of time in the past, it is no affront to the principle that the medical panel must assess impairment at the time it is dealing with the matter to say that it should not attribute impairment from any currently observed neck dysfunction to a neck injury which had previously resolved.

49 The problem here, if there is one, lies in Collard's acceptance of the plaintiffs' formulation of his injury. If it was his intention to seek lump sum compensation for impairment resulting from a soft tissue injury to the neck aggravating a disc degenerative condition, then it could not have been wise to have accepted a definition of the injury for which the plaintiffs were liable which, by its terms, stipulated that the injury had resolved and had no causal impact on underlying disc degenerative disease.

50 The panel's error could be characterised in a number of ways, each amounting to a jurisdictional error. In my view:

(a) it took into account irrelevant material by relying upon evidence of Collard's present cervical spine dysfunction and aggravation of degenerative disc condition - such material could not have been relevant to the accepted neck injury as defined;

(b) in doing so, it also failed to observe the statutory limitation imposed by s 91(7) of the Act; and

(c) it failed to answer the referred question, which defined its statutory jurisdiction, by answering a different question, namely, the level of impairment resulting from both accepted injuries and non-accepted injuries.

51 I am content to base my decision on the formulation of the accepted injury by the parties in 2009, and not, as contended by the plaintiffs in the alternative, on any supposed operation of s 68(4) in connection with the 2005 panel opinion, and what the 2010 panel may have been bound to "adopt and apply" as a result.

52 Finally, I consider that the jurisdictional error I have upheld is material in the sense that, but for the error, the decision on whole person impairment might have been different.

Failure to have regard to pre-existing lumbar impairment

53 The plaintiffs say that the medical panel has simply overlooked a report of Judith McKenzie dated 19 February 1992 regarding pre-existing impairment to the lumbar spine resulting from a road traffic accident on 24 February 1987.

54 They say that, in accordance with s 91(7) of the Act or the AMA Guides' direction to apportion unrelated injuries[43], the medical panel was obliged to deduct impairment consequent upon the 1987 injury from any impairment resulting from the employment injury of 2000 which is in question. Because it failed to do so, the plaintiffs contend that the panel failed to take into account a consideration it was bound to have regard to and so committed jurisdictional error.

55 It is true that there is no mention in the Reasons for Opinion of Ms McKenzie's report or any explicit reference to a deduction for impairment for the 1997 road accident injury.

56 The plaintiffs say this is not a case where failure to make specific reference to past injury is readily explicable having regard to other findings, nor is it a case where one can imply that contrary opinions to that reached by the panel have been considered and rejected.

57 Collard answers this argument in a number of ways.

58 First, by his written submissions, he points out that the McKenzie opinion of 1992 proceeded under the second edition of the AMA Guides whereas the current medical panel was required to assess impairment in accordance with the fourth edition of the Guides. He therefore argues there is no correlation between the two in accordance with which the panel was required, by s 91, to assess the worker's impairment. This argument was not advanced further in oral submissions.

59 In oral submissions he argued that the 2005 panel decision identified the lower back injury arising from employment as "surgically treated intervertebral disc derangement", and that the 2010 panel only assessed that injury. Thus there was nothing to deduct.

60 It was noted that amongst the reports Worksafe remitted to the panel upon the reference was Mr Shannon's assessment of 10% impairment for the lower back injury, which the panel accepted and adopted, and that Worksafe made no submissions to the effect that such assessment should be reduced for any pre-existing lumbar injury.

61 Collard argued that the medical panel is not only an expert panel of medical practitioners, but is also expert in the use of the AMA Guides. The court should be slow to interfere with its application of those guides. In conjunction with this point, it was pointed out that in its reasons the panel referred explicitly on two occasions to the fact that it had taken account of all of the documents referred to it (which of course included Ms McKenzie's report). I accept that I should not readily doubt that statement.[44]

62 Although I have not carefully considered the first of his arguments on this topic, I otherwise generally accept the other arguments put forward for Collard. In the result I am not persuaded that the panel committed any error of the kind contended by the plaintiffs on this issue.

63 I am not persuaded that there has been a 'substantial failure' by the medical panel to furnish adequate reasons in the sense described in Masters v McCubbery[45] and as recently clarified in Sherlock v Lloyd.[46] Whilst not abandoning this argument, the plaintiffs conceded that it was not their strongest point.

64 The panel's reasons do seem to demonstrate, on their face, an illogicality in that, on the one hand, they state that the panel has proceeded to assess the worker on the basis that the accepted injury regarding the neck was as formulated by the parties but, on the other, they reveal that the panel proceeded to assess the worker's neck on a different basis. But I have concluded that its reasoning discloses that the panel did not observe the constraints imposed upon it by the scope of the referred accepted-injury.

65 Using the language employed in Sherlock,[47] it is not the failure to give reasons that warrants any inference that the panel has failed in some respect to exercise its powers according to law: in my view, that inference emerges from the very reasons the panel has given.

66 Alternatively, if there is any inadequacy in reasons it is so closely related to the ground of jurisdictional error which I have upheld that it adds nothing to the overall analysis of error.

67 For these reasons I reject this discrete ground of review.

68 For the foregoing reasons I conclude that the opinion of the medical panel certified on 23 February 2010 ought to be quashed.

69 Although some doubt has been expressed about the appropriateness of a direction that a matter be referred to a differently constituted panel,[48] there is a long history of that practice being adopted in cases where it is thought not to be desirable for the same panel to determine the same matter on the remitter.[49] I am not presently persuaded that it is inappropriate to make such a direction in principal, and in the particular circumstances of this case I think it is desirable that I do so. I will order that the medical questions be remitted to a differently constituted medical panel to be reconsidered according to law.

[1] In some documents the incident is said to have occurred on 4 July 2000 rather than 27 June. The parties are in agreement that either date is a reference to the same incident and the same set of injuries.

[2] [1980] HCA 13; (1980) 144 CLR 13.

[3] The precise nature of the connection was not apparent on the materials but the parties were in agreement it was most likely in connection with a proceeding that concerned the termination of weekly payments of compensation to Collard.

[9] Exhibit JAM 6, page 4 of 7 (underlining added).

[10] Exhibit JAM 6, page 5 of 7 (underlining added).

[11] Section 91 of the Act requires the panel to apply the applicable AMA Guides.

[13] Minister for Immigration & Cultural Affairs v Yusuf [2002] 206 CLR 323, 351 (McHugh, Gummow and Hayne JJ) (citations omitted).

[14] [1990] HCA 33; (1990) 170 CLR 321.

[15] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353.

[16] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, [39]-[41]; Moyston Court Fisheries Ltd v Malios & Ors [2007] VSC 518, [43]-[47].

[17] A "medical question" is a question of the kind enumerated in s 5(1) of the Act although such a question may, as in the case of s 104B(9), be more specifically identified s 67(1).

[18] Section 68(4).

[19] Section 63(2).

[20] Section 67(2).

[21] Section 56(6).

[22] Section 45.

[23] Section 104B(9).

[24] Section 98C.

[25] Section 104B(9).

[26] Section 91(1).

[27] Section 91(c).

[28] Section 104B(2).

[29] Section 104B(6).

[30] Section 104B(6B).

[31] Section 104B(9).

[32] Section 104B(12).

[37] Above [11], [12] and [13].

[38] Western Health v Gallichio [2009] VSC 134, [13].

[39] Dr Ellims' report 6 September 2006, Exhibit JAM 7.

[40] Compare Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, [52].

[41] Section 5(1) of the Act.

[43] American Medical Association, Guides to the Evaluation of Permanent Impairment, 4th ed: chapt 2 p10; chapt 3 p101, and Glossary "apportionment".

[44] Compare Davidson v Fish [2008] VSC 32, [13]

[45] [1995] VICSC 209; [1996] 1 VR 635.

[46] [2010] VSCA 122

[47] [2010] VSCA 122, [69] - [72].

[48] On the basis that s63(4) reposes the power to determine the composition of the panel on the convenor, not the court.

[49] Eg Body Corporate Strata Plan (No. 4166) & ors v Stirling Properties Ltd [1984] VicRp 73; [1984] VR 903, 912; Clarke v National Mutual Life Insurance Ltd [2007] VSC 341, [70]; Tracey v Newlands & ors [2008] VSC 395, [30] - [31]; and Bregu v Brydon & ors [2010] VSC 417, [30].