Greeves v HIH Winterthur Workers' Compensation

Court of Appeal (Vic)|2000-05-05|Before: PHILLIPS, BATT and BUCHANAN, JJ.A.

Accident compensation - Workers compensation -Worker's claim for compensation for incapacity after incident at home - Whether incapacity contributed to by earlier injury at work - Application by insurer to refer "medical question" to medical panel - Magistrate's refusal because proposed question "irrelevant" - Magistrate's determination of issue for himself - Whether refusal constitutes error - Accident Compensation Act 1985 ss.5 (definition of "medical question"), 45, 67, 68, 82, 93.

According to the magistrate's findings, the appellant (whom I shall continue to call the plaintiff, to avoid confusion) was born in 1951. He was employed by Deakin University at its Warrnambool campus as a technical officer from about 1991. On 10 June 1996 he sustained an injury to his back at work whilst lifting a loaded trailer up to the towbar on the back of a work vehicle ("the work accident"). The plaintiff was off work for about a fortnight after this and then returned to work on light duties and restricted hours. In July 1996 the plaintiff duly lodged a claim for compensation. Liability under the Act was accepted and weekly payments of compensation were made by the employer's insurer (now the respondent to this appeal).

On 6 March 1997, whilst the plaintiff was putting on trousers at home, he felt a severe "extra" pain in the back "as if he had been hit with an axe" ("the home accident"). Again, there was some time off work and in May 1997 the plaintiff lodged a second claim for compensation - according to the magistrate, at the insistence of his employer. In that claim form (which was dated 23 May 1997) the injury/condition was given as "prolapse disc" and "spinal stenosis", both affecting "lower back". As to what happened to cause the injury/condition, this was said to be "re lapse [sic] of previously reported injury". No date was given. The rejection of this claim by the employer's insurer precipitated the litigation.

As already mentioned, the plaintiff did not return to normal duties after the original two weeks off following the work accident. According to the magistrate, the nature of the plaintiff's job permitted him to modify the type of work he did, as a result of which he continued to work five days a week, apparently avoiding back stress. During the nine months between the two accidents, the plaintiff had increasing difficulty and pain in the back. After the home accident he was off work for a week, then went back to his job with increasing difficulty, pain and incapacity until he finally gave up work in July 1997.

As the magistrate observed, the employer's insurer appears to have treated the home accident as a separate and distinct incident from the work accident in which the plaintiff suffered injury to his back, and not simply as a manifestation of that injury. Hence, no doubt, the rejection of the plaintiff's second claim for compensation and this litigation. As will be seen, the insurer's view of the separate nature of the home accident was supported by the opinion of the surgeon to whom the insurer had referred the plaintiff, Mr. Guest.

When the plaintiff commenced this proceeding in the Magistrates' Court, he referred in his pleading only to the injury to the lower back which he suffered in June 1996. In paragraph 5 he described the injury as having occurred in the course of employment and he particularised it thus: "low back injury, L5-S1 disc prolapse, lumbar spine injury, referred left and right leg pain and numbness, reactive depression, anxiety". (There was no reference in the pleading to the home accident or to the disc prolapse at the L4-5 level which was discovered upon examination after the home accident.) The pleading proceeded to describe the first claim for compensation and the making of weekly payments and then the second claim for compensation and its rejection. In paragraph 10, the pleading asserted that "since on or about 10 June 1996 the plaintiff has been incapacitated for work", an incapacity attributed to "his injuries" (meaning the injuries earlier particularised), and the plaintiff claimed weekly payments of compensation under s.93 of the Act.

In argument our attention was drawn by counsel for the insurer to the defence by which everything was put in issue, even that the injury on 10 June 1996 was work related; but Mr. Guest had himself opined in his report that that injury was work-related and so by the time the trial commenced it was not in issue that on 10 June 1996 the plaintiff had sustained a compensable injury. Nor was it in issue, I suppose, that the home accident, if considered in isolation and independently of the previous work accident, was altogether unrelated to employment and was therefore non-compensable, on its own; no doubt that was why the pleading made no reference to it. What was in issue at the trial was whether the incapacity following upon the home accident in May 1997 was incapacity resulting from or materially contributed to by the injury suffered in the work accident on 10 June 1996.

On this issue the medical evidence was conflicting. Mr. Guest, whose report of 21 July 1997 went into evidence by consent, did not attend before the magistrate; apparently he was unavailable. In his report, however, he expressed the opinion, after the home accident, that the plaintiff's incapacity was no longer work-related. He said that while employment had been "a significant contributing factor to the onset of the plaintiff's sciatic pain" following the incident at work on 10 June 1996, there was "evidence of congenital spinal stenosis" which he considered was "the underlying cause of his continuing symptoms"; that the home accident should be considered a new incident and that, although the plaintiff "still has a moderate incapacity", he did not consider "that the work related injury is now contributing to this", it being linked instead to the spinal canal stenosis. It was this report from Mr. Guest that was the source of the conflict at trial.

For his part, the plaintiff called evidence from three doctors whose reports were tendered and each of whom gave evidence orally. In chief, Dr. Gault, the plaintiff's general practitioner, confirmed his opinion that the incident of March 1997 was an exacerbation of the original injury in 1996. In cross-examination he conceded that the CT scan following the work accident showed only an L5/S1 disc prolapse and that the L4/5 disc prolapse evident on the MRI scan after the home accident was not necessarily related to the earlier injury. He could not say with certainty that the second episode had exacerbated the L5/S1 prolapse or that the earlier prolapse to that disc made the subsequent prolapse at L4/5 more likely. To a question from the Bench he said that the first incident could have rendered the L4/5 disc more vulnerable to injury.

Mr. Maling, a general surgeon, said that the fact that there was no disc prolapse at L4/5 on the CT scan following the June 1996 incident did not mean that there was no disc disruption at that level: it was probable that both L4/5 and L5/S1 were injured at that time, which was consistent with a minor event such as putting on trousers subsequently resulting in prolapse. In cross-examination, Mr. Maling confirmed his view that the first incident resulted in internal disruption of L4/5 which did not show up on a CT scan and he disagreed with Mr. Guest's view that the plaintiff's problems were due to congenital spinal stenosis.

Mr. Schofield, too, disagreed with Mr. Guest's view on this. An orthopaedic surgeon, he confirmed orally his view that the second episode was an exacerbation of the injury which occurred in the first incident and that the respondent had not recovered from that first injury. That was because there were no symptoms before the first injury, and a continuance of symptoms between the two injuries. In cross-examination, he acknowledged that there was no evidence of prolapse at L4/5 after the first accident, but he thought that the second accident at least aggravated the prior prolapse at L5/S1.

In the light of these conflicting views, which by the time of the hearing would have been apparent from the contents of the written reports of the four doctors, it is not surprising that the insurer applied to the magistrate to have a medical question referred under s.45(1) to a medical panel for opinion. After adaptation for the Magistrates' Court in accordance with the directive in s.43(3), s.45(1) reads thus:-

"(1) Where the [Magistrates'] Court exercises jurisdiction under this Part, the [Magistrates'] Court - (a) may refer a medical question; or (b) if a party to the proceedings [sic] requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions - to a Medical Panel for an opinion under this Division."

Section 67 provides that it is the function of a medical panel to give its opinion on a medical question which is referred to it and, by virtue of s.68(4), the opinion "is to be adopted and applied by" the court, by which it "must be accepted as final and conclusive". The term "medical question" is defined in s.5 of the Act and more will be said of that in due course; but if a "medical question" as defined is referred to a medical panel, the foregoing is sufficient to indicate that in effect that referral removes from the court the power to express its own opinion on that question. That that was so led to the insurer's complaint on its appeal to the Trial Division, which was that, in view of the mandatory terms of s.45(1)(b), the magistrate wrongly refused the application to refer a medical question to a medical panel, proceeding instead, in defiance of the scheme of the Act, to determine the question for himself.

It is necessary, then, to describe more fully the course followed in the Magistrates' Court. The proceeding was tried over a number of days, in Warrnambool and in Melbourne. According to the affidavit filed for the plaintiff in answer on the appeal to the Trial Division, the matter was first mentioned to the magistrate on 11 February 1998 in Warrnambool when counsel for the insurer submitted that the court was bound to refer a medical question to a medical panel for opinion under s.45 (1)(b) of the Act. Clearly based upon paragraph (b) of the definition of "medical question" in s.5 of the Act (of which it was almost a copy), the medical question was then framed thus:-

"whether the worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury."

After hearing argument, the magistrate did not make the reference to a medical panel, saying (according to the affidavit filed in support of the insurer's appeal) that he would defer a decision until after hearing evidence - or (according to the affidavit in answer) that the medical question then proposed was irrelevant. The magistrate then took evidence from the plaintiff and his doctors on 12 and 13 February in Warrnambool and on 19 March in Melbourne.

On 13 February before adjourning to Melbourne, the magistrate invited insurer's counsel to renew his application to have a medical question referred under s.45(1), suggesting (according to the affidavit in answer) that the parties "ought give consideration to well structured questions about the original damage to the L4-5 disc" (that being the prolapse discovered only after the home accident).

On 19 March in Melbourne, after announcing that Mr. Guest was unavailable to give evidence and putting his report in evidence by consent, insurer's counsel renewed his submission that the court refer a medical question to a medical panel under s.45(1), arguing that the court should not itself make findings about the issue to be referred. By this time the question had been reframed on behalf of the insurer to read:-

"whether the worker's employment was a significant contributing factor to the injury for which he claimed compensation by way of claim form dated 23rd May 1997."

Again according to the affidavit in answer, in the course of the submissions that were made on 19 March -

"His Worship indicated that if he was entitled to find as a question of fact that Mr. Guest's opinion was wrong then there was no question or issue to be referred to a panel. He also said `if I find the worker was incapacitated from March, 1997 because of the June, 1996 injury then there is no question to go to the panel'."

At the conclusion of submissions, the magistrate said that he wanted to think about the arguments, intimating that if he did decide to refer a medical question under s.45(1) he was not yet satisfied that the question presently proposed was the most appropriate one. To my mind this comment was very significant.

The proceeding was adjourned to 30 March. On that day the magistrate was told again that Mr. Guest could not attend, the insurer formally closed its case and his Worship announced that he would refuse the application to have a medical question referred under s.45. He rejected, he said, the opinion of Mr. Guest and disregarded it. He considered that the plaintiff had discharged the onus of establishing that his current incapacity resulted from an injury to which his employment was a significant contributing factor and that accordingly he was entitled to compensation. His Worship then made the award of compensation earlier mentioned. No more detailed reasons were given at the time, but they were promised.

When reasons in writing were later delivered, they dealt almost entirely with the insurer's application to have a medical question referred to a medical panel. In justification of his decision to refuse to refer a medical question under s.45(1) the magistrate said this (and I correct three obvious slips in typing):-

"Throughout the presentation of the plaintiff's case these two propositions of Mr. Guest, namely that a congenital spinal stenosis was the underlying cause of the plaintiff's continuing symptoms and that the incident at home on 16 March, 1997 would need to be considered a new incident, were put vigorously to each medical practitioner called on behalf of the plaintiff. Each of these witnesses, Dr. Gault, Mr. Maling and Mr. Schofield each vigorously denied the propositions and positively averred that as the plaintiff had never had any previous back trouble canal stenosis had nothing to do with his condition and that his present condition was a result of the incident at work which had occurred on 10 June, 1996 when the plaintiff was lifting a trailer up to a tow bar. I rejected the twin propositions contained in Mr. Guest's report. I did so because of his apparent wilful and persistent refusal to come to Court to justify himself, because of the plaintiff's evidence which I have accepted, because of the weight of the medical evidence given by the practitioners called on behalf of the plaintiff and because they do not accord with common experience and common sense. In rejection of Mr. Guest's propositions, in the light of the thrust of the totality of all of the acceptable medical evidence, in the acceptance of the plaintiff's own evidence of continuing pain and disability from the first incident without resolution and in the defendant's acceptance of liability for the first incident, the proposed medical question must be irrelevant and I so found. This irrelevant question was not, then, referred to the Medical Panels."

The magistrate's reference to Mr. Guest's "wilful and persistent refusal to come to Court" could not be explained to the judge and, as his Honour found, was better disregarded; for in the end it does not matter. As for the rest, the insurer contended that these reasons demonstrated error because the magistrate could be seen to have improperly decided for himself the very issue to be referred to the medical panel under s.45(1), ruling that the medical question was irrelevant only after deciding it and in the light of that decision. The judge accepted this submission and so allowed the appeal. The plaintiff now submits that his Honour thereby fell into error and that the magistrate acted properly.

As presented to us, the argument for the plaintiff turned on the precise form in which the applicant had framed the medical question for referral. No doubt at least in part this was because of the terms of s.45(1)(b) which appear to oblige the court, upon application by a party to have a medical question referred to a medical panel, to refer "that question". This was the product of a deliberate amendment effected by Act No.107 of 1997. Until then paragraph (b) had been in this form since 1992:-

"(b) if a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion;"

The change in 1997 from an obligation to refer "a medical question" to an obligation to refer "that question" is marked and cannot be ignored. (I simply note in passing that in the magistrate's written reasons, s.45(1) is found set out only in its earlier form, apparently because his attention had not been drawn to the 1997 amendment.) None the less, and despite the change in the language of paragraph (b), it was common ground before us (if not before the judge) that the court still had some say in the framing of the question, a view apparently shared by the magistrate from the comments he made during argument and in the reasons he later gave in which he referred in some detail to comments on s.45(1) (in its previous form) in Green v. VWA (unreported, County Court 5 February 1995, Judge Williams), in Metcalf v. FAI Workers Compensation (Vic.) Ltd (unreported, County Court 2 June 1997, Judge Strong) and in Austin v. Amcor Ltd. (unreported, Supreme Court 3 April 1999, Byrne, J.).

Below, the judge held that, although mandatory in form since 1992 and

even more tightly cast since 1997, s.45(1) must leave the court with some control over the referral; for obviously it would be absurd for the section to be construed as requiring the court to refer a question which was altogether irrelevant to the determination of the issues before it. The power to refer which is conferred on the court by paragraph (a) and the obligation which is apparently cast upon the court by paragraph (b) are alike to be exercised for the purpose for which they exist, which is the determination of the proceeding of which the court is seised, and none other. That consideration alone would require that the court not refer a question the answer to which could not assist it in resolving the issues before it and on that the parties were not in dispute. The plaintiff submits (as he did before the magistrate and before the judge) that, as framed, the so-called medical question always was irrelevant in the sense that the answer - whatever it was - could not have assisted the magistrate in the determination of the issues before him, and on that account the magistrate had acted properly in declining to refer the question to a medical panel. On the other hand if, as the insurer contended, the question was relevant and the magistrate ruled otherwise only because he had first improperly decided the issue for himself (which the plaintiff denied), that would plainly have been contrary to the mandatory terms of s.45(1).

In a carefully constructed argument, Mr. O'Loghlen took us through the provisions of the Act, emphasising the difference between ss.82 and 93, the first referring to injury in which employment was a "significant contributing factor" and the second to incapacity for work which "results from, or is materially contributed to by," work-related injury. The first, he submitted, was the subject of the medical question raised here, which was apparent from its wording; and if that was so, the question was surely irrelevant, for it was not in dispute that the injury occurring on 10 June 1996 was suffered by the plaintiff in the course of employment. No question under s.82 remained to be answered in respect of that injury. As for the second incident, it was equally clear, he submitted, that, if considered on its own, that did not give rise in itself to work-related injury; what occurred happened at home and, even if it involved an aggravation of pre-existing injury, employment played no part in that aggravation as such. Therefore in relation to both accidents there was no medical question under s.82 remaining for decision. The outstanding issue, said Mr. O'Loghlen, was one of incapacity, under s.93: was the plaintiff's incapacity after the home accident incapacity which resulted from or was materially contributed to by the work-related injury of 10 June 1996? The pleading was a claim for compensation on the basis that it was; the opinion of Mr. Guest, relied upon by the insurer, was to the contrary. What was clear, the argument ran, was that the question framed by the insurer for referral to a medical panel did not relate to incapacity but related instead to injury (an altogether different concept) and while framed in respect of injury the question had to be irrelevant. Nor was that the question decided by the magistrate on 30 March; he had decided a question of incapacity - a different question and the question for determination, but not the question raised by the insurer for referral to a medical panel under s.45(1)(b).

In answer, Mr. Tracey referred us to the second claim form, to which the revised question specifically refers: for that claim form makes mention of a relapse of the previously notified injury. It refers, too, to a prolapse, which could be taken on the second occasion to refer to the disc involved at the L4/5 level, being the prolapse which was discovered only after the home accident. On one view of the facts, Mr. Tracey submitted, employment was a cause of the first prolapse, the first prolapse was a cause of the second and the second prolapse a cause of the plaintiff's current incapacity. That analysis being open, there was no problem with the revised medical question as framed by the insurer; for it sought to establish the causal link between employment at one end of the chain and the plaintiff's current condition at the other - or, what was much the same thing in all the circumstances, the prolapse that occurred in May 1997. The revised question should be understood as asking about the injury in May 1997 (and the incapacity which followed), even though that injury was not per se compensable. Mr. Tracey submitted that the medical panel, once given the relevant medical reports, would see the division of opinion between the doctors: Mr. Guest on the one hand opining that the prolapse in May 1997 had nothing to do with the earlier injury and the other doctors opining, to a greater or lesser extent, that it did. Inevitably, he submitted, a medical panel when confronted with the revised question would be led to consider the real issue which was the extent to which, if any, present incapacity was due to the work-related injury suffered in June 1996.

In reply, Mr. O'Loghlen submitted that on the appeal to the Trial Division the only question was whether it was open to the magistrate to act as he did: was it open to the magistrate to refuse to refer the question in respect of which application was made under s.45(1)(b)? On that, he said, there could be no doubt: on any view the medical question was badly framed and the magistrate was not bound to refer "that question" to a medical panel because, however it was answered, it could not provide any assistance. There was no question under s.82 which remained for decision: there was an issue under s.93 but the medical question framed by the insurer did not raise that issue. Counsel emphasised that the wording of the revised question derived obviously from the wording of paragraph (b) of the definition in s.5 of "medical question" (relating to "injury" and employment as a "significant contributing factor"), whereas the main issue in the proceeding was reflected in paragraph (f) of that definition (speaking of "incapacity for work" which might result from, or be "materially contributed to by", injury or alleged injury). Although therefore the medical question might have been reframed in order to raise the outstanding issue (as the judge himself pointed out), that was not done and without that reframing there was no error in the magistrate's refusing to refer the question which was proposed. The magistrate must have accepted (the argument went) the plaintiff's submission, that the medical question which the insurer was seeking to have referred was, quite simply, irrelevant.

In my view neither side is wholly right. The plaintiff's submissions, which depend upon a close analysis of the very wording of the question as framed by the insurer, would probably lead to an applicant's making a succession of applications on reworded questions, each being rejected in turn until one was deemed satisfactory; while the insurer's submissions, which put less store upon the precise wording of the question, depend upon the medical panel's arriving for itself at a proper understanding of the main issue, a step which arguably extends the medical question which is being referred. Neither approach is altogether satisfactory. What emerges from the course of proceedings in the Magistrates' Court, and also from the later written reasons for decision, is that on the insurer's application to have a medical question referred to a medical panel the magistrate understood very well the real issue arising in the proceeding before him. His Worship saw the division of opinion between the doctors about whether the plaintiff's present incapacity was the result of the work-related injury in June 1996, and he appreciated too that it was that issue which the insurer was seeking to have referred to a medical panel under s.45(1), albeit by means of a question for the panel's opinion. In my opinion, that is the very step which s.45(1) allows, and indeed requires of the court when a party makes application: the reference of a question to a panel of doctors for the purpose of transferring from the court to the doctors the resolution of a medical matter. Sections 67 and 68 of the Act, especially s.68(4), seem to me to confirm that construction of s.45.

Perhaps in this instance the question as framed on behalf of the insurer did tend to conceal the relevant issue rather than reveal it, speaking as it did of injury and the contribution made by employment instead of incapacity and the contribution made by injury (although, as Mr. Tracey said, with all the medical reports referred to the medical panel the doctors might well have seen the issue, as did the magistrate). What the magistrate did, however, was inappropriate; for, having seen the issue, he proceeded to decide it: he chose for himself between the doctors and then held that the question sought to be referred was irrelevant. To my mind, to do that was contrary to the obligation cast upon the court by s.45(1)(b). The question, in the sense of the issue, was not irrelevant; it was the wording of it for referral that needed attention - which was the very comment made by the magistrate himself on 19 March, to which I have already drawn attention (in paragraph [16]). In my opinion what the magistrate should have done, once having seen the issue and appreciating that that was the subject of the insurer's application for referral, was to embark with the parties upon improving the wording of the precise question on which the medical panel would be required to express its opinion.

It may be taken that in wording a question for referral under s.45(1) the parties will not always - and perhaps will not usually - word the question in a manner satisfactory to the tribunal having the responsibility of determining the issues. The question as framed by one party or the other may be too broad or too narrow in the particular circumstances: it may be unhappily expressed, as here, in terms of injury instead of incapacity. But if the issue is properly identified to the court so that the court itself is alive to the issue to be referred (albeit through the medium of a medical question) and if application for such referral is made to the court under .45(1)(b), then I think the court is bound, if the issue is fairly within one

or other of the paragraphs of the definition of "medical question" in s.5, to refer that issue - or to use the language of s,45(1) "that question" - to a medical panel. It may well be that the wording of the question upon which the medical panel will be required to express its opinion by virtue of s.67 needs attention, if the opinion is to be secured which the court would wish to have, but it would be unjustifiably literal to say that the court's obligation to refer "that question" is in respect only of the question as worded by or on behalf of the applicant. And that is consistent with the approach taken by the parties here: that despite the mandatory terms of s.45(1)(b) the question as framed by the applicant did not have to be referred to a medical panel if the question as so framed was irrelevant to the determination of the issues between the parties, the court retaining some residual power to "refine" the question, in order to adapt it to suit better the issues which fell for determination by the court.

If the obligation of the court is as I have described, then there was error here. The magistrate fully apprehended the issue between the parties and that the insurer would have that issue decided by a medical panel, if only it could persuade the magistrate to make the reference under s.45(1)(b). Yet, as I read his reasons for decision, the magistrate refused to act under that provision not because of the perceived deficiencies in the wording of the revised question or because, for the reasons advanced by the plaintiff, he saw the question (in the sense of the issue) as altogether irrelevant; he refused to refer it because, having decided the main issue for himself, there was then no utility in referring the question to a panel for opinion. To that extent I accept the insurer's submission. That is not to say that the magistrate ought to have referred to the panel the revised question without alteration. The judge was of opinion that the medical panel must have considered the real issue between the parties even if called upon to express its opinion on the question as worded by the applicant insurer, but I wonder about that. Perhaps it would have been so, perhaps not.[1] The better course would have been to re-word the question to make plainer to the medical panel just what was being asked, but the magistrate was not entitled, I think, to refuse to act at all under s.45(1)(b).

During argument I was attracted for a time by Mr. O'Loghlen's submission that whatever power the court might have to refine, re-fashion or re-word a question in order to ensure that the opinion obtained from a medical panel was relevant to the issues for determination in the proceeding, there was, at least on the face of it, no power in the court under s.45(1)(b) to change the question into something that it was not. That was not to say that the court if so minded, might not refer a different question to a medical panel under paragraph (a) of s.45(1); but that would be the court acting of its own motion and in the exercise of a discretion conferred upon it by paragraph (a). That was not the course under consideration here, where the debate was whether there was error under s.45(1)(b) when the magistrate refused to refer a medical question upon application by a party to the proceeding. The submission for the plaintiff was that the insurer was seeking to have referred a "medical question" according to paragraph (b) of the definition of that expression in s.5, and such a question was irrelevant: what the plaintiff should have been seeking to have referred was a "medical question" according to paragraph (f) of the statutory definition, but that was not the application. The Magistrates' Court could not be said to be in error, it was submitted, by refusing to refer the question which was posed by the insurer: there could be no obligation on the Magistrates' Court to change a "medical question" according to paragraph (b) into a "medical question" according to paragraph (f), for the two were wholly different .

On reflection, however, it seemed to me that this argument was too literal, attaching too much significance to the formal differences between one paragraph and another in the definition of "medical question" in s.5. Perhaps the contrast between a question framed by reference to paragraph (b) and a question framed by reference to paragraph (f) is marked; but some of the paragraphs overlap: a case can be imagined where the question is first articulated under one paragraph only to end up (whether after argument or further consideration) being framed by reference to another. Moreover, of the 13 paragraphs now making up the definition of "medical question" nine commence with the phrase "question as to", which is surely more indicative than definitive. It would be unwise, I think, to lay down too inflexible a rule about passing from one paragraph of the definition to another; it may sometimes only be matter of degree or emphasis. In each case what should be determinative, I think, is the extent to which the issue which the applicant is seeking to have referred to a medical panel for opinion is made sufficiently clear, first, in the application itself to the court so that the court is made alive to that issue, and then in the wording of the question on which the medical panel is specifically to express its opinion. Of course the issue must itself fall within the definition of "medical question" in s.5 and that issue must be relevant in the sense that an opinion on it will be of assistance in the proceeding before the court - or the application under s.45(1)(b) can properly be refused. But if those conditions are fulfilled (as plainly was so in this instance) it is that issue or "that question" (to use the language of s.45) which the court is obliged to refer and all that remains is for the court to settle upon wording which will make the reference sufficiently clear to the panel to lead it to express its opinion in a useful manner.

For these reasons, I think that the magistrate did act in error and (subject to formal correction of the order made on 2 October 1998) I would dismiss the appeal. I agree with the judge that the error was such as to justify quashing the decision of the Magistrates' Court awarding compensation and remitting the matter for further hearing and determination according to law. However, as Mr. Justice Batt observed in the course of argument, it was not in those terms that the formal order dismissing the appeal was pronounced and then authenticated (although it does appear from the transcript we have that the judge pronounced the final order in terms sought by the parties in the light of his reasons for judgment). In my opinion we should take the opportunity afforded by this appeal of correcting the formal order, but subject to that I would dismiss the appeal.

In the course of discussion with counsel over possible orders, a question arose whether, if the appeal was to be dismissed so that the matter would remain to be remitted, it should still be remitted to the Magistrates' Court at Warrnambool as the parties agreed in October 1998, perhaps upon the premise that the magistrate who heard and determined the proceeding on 30 March 1998 was shortly to return to Warrnambool. A good deal more time has now elapsed and I think that it would be unrealistic to expect the magistrate to pick up the threads of this case and proceed as if it were part-heard before him. A final determination was made by him in March 1998 and, if the appeal is now to be otherwise dismissed (subject to the correction I have mentioned), the proceeding would be better remitted to the Magistrates' Court to be heard and determined afresh. Whether by another magistrate or not can be left to the Magistrates' Court itself to decide in conjunction with the parties.

Counsel very properly drew our attention to the provisions of s.43(4) of the Act, prohibiting the Magistrates' Court from making an order for payment of weekly compensation for more than 104 weeks. That two-year period will expire in October next, we were told, which is reason enough for expedition now; but that can find sufficient expression in a recommendation from us to the Magistrates' Court that the hearing be expedited in order that that court not lose jurisdiction before the matter can be finalised. We were told that, were that to happen, an application would probably be made for case transfer to the County Court.

I agree that, subject to formal correction of the order below, this appeal should be dismissed, substantially for the reasons given by Phillips, J.A. It is important, I think, that the word "requests" in s.45(1)(b) be read liberally as referring to the request which the party is really or in substance, as opposed to form, making.

In my opinion, subject to correcting the formal order in the manner identified by Phillips, J.A., the appeal should be dismissed for the reasons stated by Phillips, J.A.

[1] See and compare on the jurisdiction of a medical panel to express its opinion: Walker v. Cadzow Coal Co. Ltd. [1925] S.C. 395 (Court of Session), Murray v. Austral Stevedoring & Lighterage Co. Ltd. (1934) 51 W.N. (N.S.W.) 43 (Full Court), Mann v. Darlington Forge Ltd. (1946) 175 L.T. 42 (Court of Appeal), Williams v. Tredegar Iron & Steel Co. Ltd. [1948] 1 All E.R. 236; (1948) 41 B.W.C.C. 10 (Court of Appeal) and Commonwealth v. Mifsud [1965] HCA 56; (1965) 114 C.L.R. 505.

At a glance

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Judgment (50 paragraphs)

Parties