Gillat v Transport Accident Commission [2003] VSC 15

2. On 31 August 1998 the Appellant was injured in the course of a single vehicle transport accident in which he was thrown from his motorcycle and landed on the road. On 18 July 2002 the Respondent Commission made a determination under s.46A(1) of the Transport Accident Act 1986 that the Appellant's degree of whole person impairment (WPI) was 45%. From that determination the Appellant appealed to the Victorian Civil and Administrative Tribunal and on 15 August 2002 the Tribunal set aside the Commission's determination and substituted therefor a determination under s.46A(1) of the Transport Accident Act 1986 that the Appellant's degree of impairment was 46%. The WPI determination of 46% included a determination of impairment of 5% for emotional and behavioural impairment pursuant to Chapter 4.3 of the Guides to the Evaluation of Permanent Impairment (4th Edition) ("the Guides") and a determination of 0% for digestive system disorder pursuant to Chapter 10.2 of the Guides.

5. This is an appeal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 from the Tribunal's determination. Leave to appeal was granted by the Master on 8 October 2002 and the questions of law to be determined on appeal are formulated in the Master's order as follows:

(a) Having regard to the whole of the evidence could a reasonable Tribunal find that the Appellant had suffered a whole person impairment of 5 per cent for emotional and behavioural impairment pursuant to Chapter 4.3 of the Guides to the Evaluation of Permanent Impairment (4th Edition) ( "the Guides").

(b) Was the Tribunal wrong in law in finding that in accordance with section 46A(2)(b) of the Transport Accident Act 1986 a degree of impairment under Chapter 4.3 of the Guides can be made on the assessment by a medical practitioner who has not successfully completed the training course under Chapter 4 of the Guides?

(c) Does the "training courses" referred to in section 46A(2)(b) of the Transport Accident Act 1986 mean a training course on the Chapter of the Guides under which a medical practitioner assesses an impairment?

(d) Did the Tribunal misdirect itself by finding that pursuant to section 46A(2)(b) of the Transport Accident Act 1986 in order to provide an impairment assessment it is only necessary for a medical practitioner to have successfully completed a training course in the application of the Guides or methods except the particular Chapter under which the assessment was made?

(e) Is the introduction to Chapter 10 of the Guides the criteria for determining what impairment, if any, exists under Chapter 10?

(f) Did the Tribunal misdirect itself in requiring the impairment under Chapter 10.2 of the Guides to be "evidenced by clinically established or objectively determined deviations from normal in the transport and assimilation of ingested food, the metabolism of nutrition, or the excretion waste products"?

14. As will become apparent, a number of the questions raise issues which are common to other questions. I propose nevertheless to deal with each question in the order stated.

(a) Having regard to the whole of the evidence could a reasonable Tribunal find that the Appellant had suffered a whole person impairment of 5 per cent for emotional and behavioural impairment pursuant to Chapter 4.3 of the Guides to the Evaluation of Permanent Impairment (4th Edition) ("the Guides")?

18. Section 46A(1) of the Act requires the Commission to determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit. Section 46A(2) provides that:

"(2) In this Part, a reference to the determination of a degree of impairment is a reference to a determination by the Commission -

(a) made in accordance with -

(i) the A.M.A. Guides; or

(ii) methods prescribed for the purposes of this section -

and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and

(b) if the Minister has approved a training course in the application of those Guides or methods, made after an assessment by a medical practitioner who has successfully completed such a training course." (Emphasis added.)

27. The evidence before the Tribunal included a number of reports of Mr David Brownbill, a neurosurgeon, in which Mr Brownbill at first expressed the opinion that the degree of impairment was nil but later concluded that it was 10%, and reports of Dr David Freilich, a neurologist, who at first also considered that the degree of impairment was nil but who also later concluded that it was 10%. There were in addition reports and oral evidence of Dr Strauss, a consultant psychiatrist, who at first considered that the degree of impairment was in the range of 5% to 10% but later concluded that it was only 5%.

30. For the reasons given by the Tribunal at paragraphs 38 to 43 of its reasons for decision, the Tribunal accepted the opinion of Dr Strauss in preference to the opinions of Mr Brownbill and Dr Frielich and, based upon the evidence of Dr Strauss, the Tribunal concluded that the degree of impairment was only 5%.

33. The Appellant says that it was not permissible under s.46A to adopt Dr Strauss' assessment in preference to the assessments of the other two specialists and that to do so was an error of law which necessarily vitiates the Tribunal's determination of the Appellant's degree of impairment. The Appellant's argument is that the effect of s.46A(2) is that the Tribunal may only make its determination by adopting an assessment prepared by a practitioner who has successfully completed such if any training course as has been approved in relation to the relevant part of the Guides and that, whereas Mr Brownbill and Dr Frielich had completed the training course approved by the Minister in relation to Chapter 4 of the Guides, Dr Strauss had not.

36. The issues to which the Appellant's argument gives rise appear to me to be as follows:

* first, what is the course that a practitioner must have completed before he or she may be regarded as having successfully completed "a course approved by the Minister in relation to the application of the Guides" within the meaning of sub-s.46A(2);

* secondly, was Dr Strauss a practitioner who had successfully completed that course;

* thirdly, if Dr Strauss was not a practitioner who had successfully completed that course, was the Tribunal allowed to pay any regard to Dr Strauss' opinion or did it have to be excluded from consideration; and

* fourthly, if Dr Strauss had not completed the course, but the Tribunal was allowed to pay regard to his opinion, was there sufficient in his opinion and otherwise to justify a determination of only 5%.

(i) Course approved by the Minister in relation to the Guides

44. In approaching the first issue, it is necessary to understand that the Guides are divided into chapters, each of which relates to a different part of the body and bodily systems, and that the Minister has approved a training course in respect of the application of the Guides which comprises a core module and a number of electives relating to different chapters of the Guides.

47. On the evidence before the Tribunal, both Mr Brownbill and Dr Freilich had successfully completed the core module and the elective approved by the Minister under s.46A(2) of the Act in relation to the application of Chapter 4 of the Guides, but while Dr Strauss had completed the core module he had not completed the elective relating to the application of Chapter 4.

50. The Tribunal concluded that it was enough to satisfy the requirements of the section that Dr Strauss had successfully completed the core module and an elective in the application of an earlier edition of the Guides.

53. The Appellant contends (and the Respondent agrees) that a practitioner is not to be regarded as having successfully completed the training course approved in relation to the application of the Guides unless the practitioner has completed not only the core module but also the elective relevant to the chapter of the Guides with which the determination is concerned.

56. In my opinion the Appellant and the Respondent are correct. The construction for which they contend accords with the golden rule of statutory construction[1] - in that it gives to the words of the section their ordinary and natural meaning in the context in which they appear - and, as a matter of purposive construction[2], the capricious and irrational consequences which would flow from the meaning adopted by the Tribunal suggest that it should be rejected.

59. Read in context, the purpose of the section appears to be that the Commission should not make a determination without the benefit of an assessment prepared by a practitioner who has successfully completed such course as has been approved by the Minister in relation to the application of the Guides. Given that the Guides are comprised of discrete chapters which deal with different parts of the body and bodily systems, and that the assessment of impairment of one system may well entail aspects of medicine different to those involved with another, the implication is that a practitioner should not be regarded as having successfully completed a course relating to the application of the Guides unless the practitioner has completed such if any elective as has been approved in relation to the chapter of the Guides the subject of consideration.

62. If the requirement that the practitioner have completed a course relating to the Guides be read as a requirement that he or she have completed the relevant elective as well as the core module, the requirement is likely to produce an assessment from a practitioner with special knowledge in the relevant area. If, on the other hand, the requirement be read as referring to the completion only of the core module or perhaps the core module and an elective not pertinent to assessment of the impairment the subject of determination, there is no guarantee or even likelihood of special knowledge in the relevant area. To take but one example, if the Tribunal's construction of the section were correct, the requirements of the section could be met in the case of a determination of impairment the result of brain injury by an assessment of an orthopaedic surgeon who had completed the core module and perhaps also the orthopaedic module but who professed no specialty or particular knowledge in the field of neurology.

65. Reference to the extrinsic materials in accordance with s.35(a) of the Interpretation of Legislation Act 1984 provides further support for the meaning contended for by the Appellant and Respondent. In the second reading speech relating to the inclusion in the Accident Compensation Act 1985 of what may be regarded as the precursor to s.46A, the Minister said:

"Application of the guides or other methods of impairment assessment requires a practitioner to have high levels of knowledge and skills. This bill introduces a requirement that an impairment assessment required to be made in accordance with the guides or prescribed methods will be recognised only if the practitioner making the assessment has successfully completed a training course in the application of the guides or methods where such a course has been approved by the minister."[3]

70. The second issue can be dealt with more briefly. It is plain from the material which was before the Tribunal that Dr Strauss had not completed the elective relating to Chapter 4 of the Guides. It follows on my analysis that Dr Strauss cannot be regarded as a practitioner who had successfully completed the course approved by the Minister within the meaning of s.46A.

(iii) Was it permissible to consider the opinion of Dr Strauss

74. That leaves the third issue of whether it was open to the Tribunal to have regard to Dr Stauss' opinion even though Dr Strauss was not to be regarded as a practitioner who had completed a course approved by the Minister in relation to the application of the Guides.

77. The Appellant contends that it was not open to do so because, according to the Appellant, the only function of the Commission or Tribunal under the section is to adopt the assessment of a medical practitioner who has successfully completed a course approved by the Minister (or, where different assessments are arrived at by more than one such practitioners, to choose between those assessments). According to the Appellant it is not open to the Commission or the Tribunal on appeal to make a determination that the degree of impairment is less than that assessed by any of the practitioners who have successfully completed such a course and undertaken an assessment of the degree of impairment.

80. I do not accept the Appellant's contentions. The section does not say in terms that the Commission must adopt an assessment prepared by a practitioner who has successfully completed the course. It says that the determination is to be made by the Commission after completion of an assessment by a medical practitioner who has successfully completed the course. In the context in which the section appears, that falls considerably short of a requirement that the Commission make the determination in accordance with the assessment.

83. I accept that in some other contexts it may be implied that, because one thing is required to be done after another, the thing which is to be done after the other shall accord with the other. But in the present context it presents as unlikely that the imposition of a new and significant requirement, to make all determinations only in accordance with assessments, would be left to an implication of that kind. If the intention had been to require the Commission to make each determination by adopting the assessment or one of the assessments prepared by practitioners for the purposes of the determination, the section is likely to have provided just that.

86. A further reason to think that the section was not intended to have the effect contended for by the Appellant is that, if the effect of the section were to require the Commission to make each determination accord with the assessment of the practitioner, a claimant would have little if any effective right of review of a determination made in accordance with an assessment shown later to be flawed. On review by the Tribunal, the Tribunal would be bound to make a determination the same as the Commission in accordance with the assessment and while application to the Court might produce some sort of relief in a case of bad faith or manifest incompetence[4], it would not do so where the error in the assessment was something less than that. It is improbable that s.46A(2) was intended to have that effect.

89. Doubtless, the requirement that the Commission not make a determination until after an assessment has been prepared by a qualified practitioner was to ensure that the Commission take the assessment into account in making its determination. Doubtless too, in many cases a determination made by the Commission and any determination made by the Tribunal on appeal should be the same as the assessment prepared by the practitioner. Indeed it may be that in the majority of cases there is nothing before the Commission or the Tribunal to warrant a departure from the practitioner's assessment. But logic and common sense dictate there will be cases where, despite the assessment of a qualified practitioner, other material before the Commission or the Tribunal may warrant a departure from the assessment. That being so, it is hard to suppose a statutory intention that the Commission or Tribunal should not be free to adopt the appropriate course.

92. Read naturally and in an ordinary common sense fashion, the word after as opposed to some such expression as the same as or according to, appears to require that the Commission or Tribunal not make a determination until after they have had the benefit of an assessment prepared by a qualified practitioner, and thus taken it into account, and yet at the same time to allow that the Commission or Tribunal are to make their own determination, rather than being compelled to adopt the assessment of any one else.

95. In my opinion, that is the effect of the section. It imposes upon the Commission and thus upon the Tribunal on appeal an obligation to make their own determination of the degree of impairment in accordance with the Guides[5]. It provides, however, in express terms, that the Commission is not to make its determination until after an assessment has been prepared by a practitioner who has successfully completed the course approved by the Minister and it requires, implicitly, that the Commission and hence the Tribunal pay proper regard to the assessment.

(iv) What weight was to be given to Dr Strauss' opinion

99. It remains to determine whether there was sufficient in the assessment of Dr Strauss and otherwise to warrant departure from the assessments of Mr Brownbill and Dr Frielich.

102. The interpretation of the Guides is a question law[6] but the determination of the level of impairment is a question of fact[7]. Therefore it is impossible to define comprehensively the sort of material that may warrant the Commission making a determination that departs from an assessment. I think it clear enough, however, that it may include facts not considered or not considered adequately by the practitioner who prepared the assessment, or concessions made by the practitioner when and if tested on the assessment, or other expert opinion, even of a practitioner who has not completed a course approved by the Minister.

105. For example, if a practitioner who has successfully completed the course approved by the Minister assesses the degree of impairment of a claimant at 20% but the Commission or the Tribunal on appeal has before it the opinion of a practitioner who has not completed the course but who is nevertheless an expert in the relevant field of medicine, and the latter opinion establishes with relative certainty that the assessment of the first practitioner is excessive, the Commission and the Tribunal on appeal may well be justified in reaching a determination which more closely accords with the opinion of the second expert than with the assessment of the practitioner who prepares the assessment.

108. In such cases, the function of the Commission and hence of the Tribunal is not a great deal different to the function of the Court when choosing between expert opinions on a question to be decided[8]. The Court may choose one or other of the opinions which is before it or, in an appropriate case, it may on the basis of appropriate evidence come to a conclusion which is different to each of the expert opinions which is before it. It all depends on the totality of the evidence in the given case. Contrary, however, to one of the submissions advanced on behalf of the Appellant, that does not mean that the Court or the Commission or the Tribunal arrogates to itself the role of the expert. It means simply that the Court or the Commission or the Tribunal, as the tribunal of fact, acts on the basis of all of the evidence before it rather than accepting as necessarily accurate the opinion of one or other expert.

111. In this case the Tribunal had before it two assessments prepared by practitioners who had completed the appropriate course and also the opinions of Dr Strauss. In the way in which I have construed the section, the Tribunal was thus bound to consider each of the assessments of Mr Brownbill and Dr Frielich, but was not necessarily bound to adopt either of them. It was entitled to have regard to the opinion of Dr Strauss and if there were sufficient reason there or otherwise to doubt the opinions expressed in the assessments of Mr Brownbill and Dr Frielich and to produce a determination which more closely accorded with Dr Strauss' opinion, I consider that the Tribunal was entitled to do so. Such a determination would not constitute an error of law unless in reaching the determination the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations or if for some other reason the determination was so unreasonable as to be beyond the range of determinations that might possibly be made by a reasonable Tribunal properly informed[9].

114. The Tribunal gave detailed reasons for preferring the assessment of Dr Strauss to the assessments of Mr Brownbill and Mr Frielich[10] and, as far as I can see, the only error in them is the conclusion that Dr Strauss had completed a course within the meaning of the s.46A(2). There is nothing to suggest that the Tribunal took into account any other irrelevant consideration or failed to notice some relevant consideration or otherwise acted unreasonably.

117. Nevertheless, as the Appellant contends, the Tribunal's error as to the meaning of s.46A will be enough to vitiate the Tribunal's decision if it is plain or at least reasonably possible that the error resulted in the Tribunal giving greater weight to the opinion of Dr Strauss than otherwise it would have done and thereby reached a decision different to that which otherwise it would have reached.

120. I doubt that the error made by the Tribunal led it to give greater weight to Dr Strauss' opinion than would otherwise have been the case. So far as appears in the analysis set out in the Tribunal's reasons for decision, the Tribunal's preference for the opinion of Dr Strauss over that of the other two experts was grounded principally upon uncertainties about the cause for change over time in the opinions of the other two experts and the concessions of the other two experts that the sort of impairment that was in issue was better determined by a psychiatrist, such as Dr Strauss, than by a neurosurgeon or neurologist. But I do not think that I can exclude as other than a reasonable possibility the chance that the Tribunal may have been led by its error to give greater weight to Dr Strauss' opinion. This is not a case in which the Tribunal's analysis can be divided up into parts. All of it is interconnected and directed ultimately to the conclusion that the opinion of Dr Strauss is to be preferred to that of the other experts. It would be unrealistic and therefore I think impermissible to assume that the analysis would necessarily have come to the same conclusion if Dr Strauss' status had been properly understood. Certainly, it would not be illogical to accord some greater weight to an assessment prepared by a practitioner that had completed the course than to the opinion of one who had not.

123. In the result I think that I must accept the Appellant's contention that the Tribunal made an error of law, which vitiates the Tribunal's decision, insofar as it deals with Chapter 4.2. The assumption that Dr Strauss had successfully completed a course approved in relation to the application of the Guides meant that the Tribunal took into account an irrelevant consideration[11] and thus committed an error of law[12], and it is an error of law that has been distinctly raised by the Appellant on this appeal[13].

126. The Appellant further contends that quite apart from the error made as to whether Dr Strauss had completed a course within the meaning of s.46A(2), the Tribunal erred in assessing impairment at a level of less than 10%when it had been conceded by counsel for the Commission that there was no dispute that it was 10%. I do not think that is correct.

129. Examination of the transcript does show that it was conceded by counsel on behalf of the Commission that Mr Brownbill had been correct in assessing the level of impairment at 10%. But that was relatively early in the hearing. As the case proceeded, questions began to be raised as to whether that was an accurate assessment given that Dr Strauss had expressed an opinion that the level of impairment was only 5%, and ultimately counsel for the Appellant cross examined Dr Strauss in an endeavour to obtain from him a concession that 10% may be accurate. By that stage, if not before, it appears to have been accepted that the matter was in issue. Thus in the Respondent's final written submissions to the Tribunal it was submitted that the Tribunal should find that the level was only 5%.

132. After those submissions had been filed with the Tribunal, further written submissions were filed on behalf of the Appellant in order to deal with the issues which it was perceived had been raised for the first time by the Commission's submissions. There was nothing in those further submissions of the Appellant to suggest that the Appellant was in any way surprised or embarrassed by the Commission's contention in favour of a level of impairment of only 5% and nothing to suggest that it was impermissible for the Commission to resile from its earlier concession.

135. In all the circumstances of the way in which the matter was conducted I do not consider that there was any lack of procedural fairness in the manner in which the point was decided[14].

(b) Was the Tribunal wrong in law in finding that in accordance with section 46A(2)(b) of the Transport Accident Act 1986 a degree of impairment under Chapter 4.3 of the Guides can be made on the assessment by a medical practitioner who has not successfully completed the course under Chapter 4 of the Guides

139. For the reasons already given in answer to question (a), I consider that the Tribunal can make a determination under s.46A by reference to an assessment prepared by a practitioner who has not completed the course approved by the Minister, provided the Commission has before it an assessment prepared by a practitioner who has successfully completed the course and provided that there is sufficient reason to prefer the assessment of the practitioner who has not completed the course to the assessment of the practitioner that has. It goes without saying that in determining whether there is sufficient reason to prefer the latter assessment, the Commission will need to pay close attention to the degree of expertise of the practitioner whose opinion is to be preferred, among other considerations.

(c) Does the training course referred to in section 46A(2)(b) of the Transport Accident Act 1986 mean a training course on the Chapter of the Guides under which a medical practitioner assesses an impairment?

143. For the reasons given in answer to question (a), I consider that given the present structure of the course approved by the Minister for the purposes of s.46A - which is to say a core module and elective modules for various chapters of the Guides - a practitioner is not to be taken to have successfully completed the course unless the practitioner has successfully completed the core module and the elective module referable to the chapter of the Guides the subject of the determination.

(d) Did the Tribunal misdirect itself by finding that pursuant to section 46A(2)(b) of the Transport Accident Act 1986 in order to provide an impairment assessment it is only necessary for a medical practitioner to have successfully completed a training course in the application of the Guides or methods except the particular Chapter under which the assessment was made?

147. I take question (d) as in effect a repetition of question (c). For the reasons already given I consider that the Tribunal did err in its construction of the section.

(e) Is the introduction to Chapter 10 of the Guides the criteria for determining what impairment, if any, exists under Chapter 10?

151. The introduction to chapter 10 of the Guides provides, inter alia, that:

"The purpose of the chapter is to provide criteria for evaluating permanent impairments of the digestive system. The digestive system includes the alimentary canal, liver, biliary tract, and pancreas. The oral cavity and pharynx are considered in the Guides chapter on the ear, nose, throat, and related structures. The impairments are expressed as estimates of the extent to which they hamper and individual's activities of daily living. The permanent impairments are evidenced by clinically established or objectively determined deviations from normal in the transport and assimilation of ingested food, the metabolism of nutrition, or the excretion of waste products."

155. Under Heading 10.2 in Chapter 10 at page 236, the Guides further provide in relation to impairment of the oesophagus:

"Symptoms and signs of impairment include dysphagia, pyrosis or `heartburn', retrosternal pain, regurgitation, bleeding, and weight loss."

159. The Appellant was assessed by Mr Afif Hadj, a general surgeon, as having a level of impairment under Heading 10.2 of 5%. In addition to Mr Hadj's assessment the Tribunal had before it observations and opinions of Dr Moffit, the Appellant's general practitioner, a report of Mr Read, a consultant surgeon, and a report of Professor Dudley, Director of Gastroenterology at the Alfred Hospital.

162. On the basis of all that material, the Tribunal concluded that it was not satisfied that the Appellant had an impairment under Table 2. In its reasons at paragraphs 131 and 132, the Tribunal said:

"131. I am not satisfied that the applicant has an impairment under Table 2. In the first place, the evidence does not establish that the applicant has symptoms and signs of impairment of the upper digestive tract. Mr Hadj's rating under the table was based on a history of indigestion since the accident, regurgitation and heartburn. Following his second examination on 4 March 2002, he stated that the applicant "continued to have indigestion and heartburn". The applicant, in his written statement, said he had regular heartburn but made no mention of indigestion or regurgitation. Further, my attention was not drawn to any entries in Dr Moffitt's clinical notes recording such symptoms and Dr Moffitt made no mention of such symptoms in his reports of his viva voce evidence. My own examination of his notes failed to disclose reference to such symptoms although it was at times difficult to decipher Dr Moffitt's handwriting. Professor Dudley obtained a history that there were no upper gastrointestinal symptoms although I do not place much weight on such history given he was not available for cross-examination. 132. Further, I did not find Mr Hadj's evidence of impairment of the upper digestive tract to be convincing given that there were no objective procedures undertaken to establish the condition said to give rise to the impairment. In particular, I am not satisfied that the impairment was evidenced by clinically established or objectively determined deviation from normal in the transport and assimilation of ingested food, the metabolism of nutrition or the excretion of waste products" as required by the Guides. Finally, I accept Mr Myers' submission as to the lack of evidence as to the extent to which the impairment tampered (sic) the applicant's activities of daily living. Accordingly, no allowance is made under Table 2." (Emphasis added.)

166. The words which I have emphasised appear in the introduction to Chapter 10 of the Guides. The effect of question (e) is thus whether the Tribunal was correct in the view (expressed in the words which I have emphasised) that, by the inclusion of those words in the introduction to Chapter 10, the Guides require that impairment be evidenced by clinically established or objectively determined deviation from normal in the transport and assimilation of ingested food, etc.

169. In my opinion the Tribunal was correct in reaching that conclusion. Chapters 1 and 2 of the Guides make plain that the raison d'etre of the Guides is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non medical information to justify the estimate of impairment. Thus for example in chapter 2 of the Guides it is said:

"The major objective of the Guides is to define the assessment and reporting of medical impairments so that physicians can collect, describe, and analyze information about impairments in accordance with a single set of standards..." "...Analysis of the records and reports in question will disclose the disparities, which should be in matters of fact rather than opinion..." "Compare this approach with some impairment evaluations wherein physicians examine and report on patients without a standard protocol. In such instances, it is impossible to compare reports, because there is no assurance that the physicians have examined the same body parts or systems in the same way..." "When physicians follow the Guides to measure and report their impairment estimates, the persons who receive the evaluations may be held accountable for assessing the results in accordance with the Guides recommendations..." "In general, the physician should estimate the extent of the patient's primary impairment or impairing condition, that is, the condition that seems to be of most concern to the patient. The estimate should be based on current findings and evidence. It may be necessary to refer to the criteria and estimates ......If in spite of an observation or test result the medical evidence appears not to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly,..." "A clear, accurate, and complete report is essential to support a rating of permanent impairment. The following kinds of information are expected." "Medical Evaluation

2. It also includes results of the most recent clinical evaluation, including any of the following:

179. When one comes then to Chapter 10 of the Guides and sees the reference in the introduction to impairments evidenced by clinically established or objectively determined deviations from normal, I think there is little doubt that one should read the chapter as concerned only with impairments which are so evidenced or determined.

(f) Did the Tribunal misdirect itself in requiring the impairment under Chapter 10.2 of the Guides to be "evidenced by clinically established or objectively determined deviations from normal in the transport and assimilation of ingested food, the metabolism of nutrition, or the excretion waste products"?

183. For the reasons given in answer to question (e) I consider that the Tribunal did not misdirect itself in taking as one reason not to accept Mr Hadj's assessment, the fact that the Tribunal was not satisfied that the symptoms reported to Mr Hadj and on the basis of which he expressed his opinion were not clinically established or objectively determined.

187. My conclusion that the Tribunal erred in its interpretation of s.46A, and thus that it may have given greater weight to the opinion of Dr Strauss than would otherwise have been the case, means that the Tribunal took into account an irrelevant consideration and thereby committed an error of law which vitiates the decision. That necessitates that the decision, insofar as it relates to the assessment of the Appellant's impairment pursuant to Chapter 4, Heading 4.3, be set aside and that the matter be remitted to the Tribunal for further consideration of that issue in accordance with these reasons for judgment. Otherwise, I consider that the appeal fails.

190. I shall hear counsel on the form of orders to be made.

[1] Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 at 371; Pearce & Geddes, Statutory Construction 5 Ed at [2.4]

[2] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) CLR 297 at 321; Pearce & Geddes, at [2.30]

[3] In the second reading speech relating to the introduction of the same words into the Transport Accident Act it was said by the Minister that the approach was consistent with that to be adopted by the Victorian WorkCover Authority as a consequence of the amendments to the Accident Compensation Act

[4] cf. Karenlee Nominees v Gollin & Co [1983] VicRp 61; [1983] VR 657 at 668 - 670; rev'd on other issues : [1983] HCA 38; (1983) 153 CLR 455

[5] cf. Transport Accident Commission (Vic) v Bausch [1998] VR 249 at 263; Transport Accident Commission v Dello Russo [2000] VSC 275 [13] and [14]

[6] Barnett v Transport Accident Commission [1999] VSC 484; (1999) 15 VAR 414 at 424; State Trustees v Transport Accident Commission [2000] VSC 494

[7] State Trustees v Transport Accident Commission, ibid at [7]

[8] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645; Brewarrana Pty Ltd v Commissioner of Highways (No.2) (1976) 6 SASR 541 at 544-5

[9] cf. Newnham v Victoria Police Force ( 1997) 12 VAR 387 at 395

[10] see paragraphs 38 to 43 of the Reasons for Decision

[11] cf Rocklea Spinning Mills v Consolidated Trading Corp [1995] 2 VR 181 at 184

[12] Newnham v Victoria Police, supra

[13] Victorian WorkCover Authority v C E Heath Underwriting & Insurance (Aust)Pty Ltd (1994) 7 VAR 1 at 7 - 8, per Brooking J in dissent

[14] cf. Rumpf v Mornington SC [2000] VSC 311; (2000) 2 VR 69 at 92 -94