Isuzu General Motors Australia Ltd & Anor v Jordon [2000] VSCA 63

159. In the course of argument before us, Mr. Gorton sought to put an argument that question 1 was, in any event, irrelevant; but, as I have said, no notice of contention was given and, for my own part, I do not think that Mr. Gorton should be allowed to raise now the further argument he wished to put. The question of relevance was one which was particularly dependent upon his Honour's opinion of the facts and whether the question asked would be of assistance to him in determining the litigation before him. It is a matter which can be considered in due course if (as I will propose) this matter is remitted for further hearing and determination. As at present advised, it seems to me difficult to suggest that a question framed in accordance with paragraph (a) cannot be relevant to the adjudication of the matter, but we have scarcely heard full argument on that.

163. Question 2 was framed quite simply: "Is such injury permanent?" Before us, counsel for the defendants said that he was not persisting in the question as framed; he accepted, at least for the purposes of argument, that there was no error in the judge's refusing to put that question. Instead, he said that the question should have been framed in terms of "impairment" and, when so framed, should have been put by the judge, it falling then squarely within the concluding portion of paragraph (d) of the definition of "medical question"[19].

166. For his part, when dealing on 26 August with each of the four questions immediately after giving his formal ruling, the trial judge said of this question: "Question 2 I excluded yesterday". On the previous day, 25 August 1998, in the course of discussion, this exchange is recorded:-

"HIS HONOUR: Yes. Anyway, question 2 is wrong because it asks `Is such injury permanent', whereas (d) [of the definition of `medical question'] says whether or not that impairment is permanent. Is that what you mean? Is such impairment -- MR BATTEN: It's loosely drawn, Your Honour, and I had anticipated that it would be amended to read whatever Your Honour were to find in respect of this man's condition, whether it is an anxiety depressive condition. HIS HONOUR: It could only ask whether the impairment is permanent because that's what the question permits and then I've got to - the process is this: I've got to decide whether that is a relevant issue in this case."

It was immediately after this that his Honour described an issue as being relevant if it was "a necessary step along the way to deciding the case", a description with which I would not disagree.

171. On the face of it, perhaps, it is difficult to conclude that the judge fell into error in refusing to refer question 2 in the terms in which it was cast, if the defendants do not now contend that he ought to have done so. They contend rather that the question ought to have been recast in terms of impairment instead of injury and then, once recast, put to a medical panel - and whether the judge fell into error by not doing so must depend on the judge's function upon the application that was made to him. The plaintiff's response is that the so-called medical question in respect of which application was made to his Honour under s. 45(1)(b) was posed in terms of "injury" and as such it was irrelevant to the issues. No more was needed, it was argued, to justify the judge's decision; there could be no error in refusing to put "that question" (to use the words of the subsection) to a medical panel.

174. For reasons I have given in Greeves v. HIH Winterthur Workers Compensation (Vic.) Ltd.[20], it seems to me that the plaintiff's argument is too literal, attaching too much significance to the precise wording of the question as framed by the applicant at the expense of the substance of the application. As I follow s.45(1), where the applicant makes clear to the Court the issue that it seeks to have referred to a medical panel for opinion and that issue is fairly within at least one of the paragraphs in the definition of "medical question" in s.5, then, if relevant, it is that issue - or "that question" to use the language of s.45(1) - which the Court is bound to refer to a medical panel upon application by a party, under s.45(1)(b). 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; but if the Court is alive to the issue to be referred and application is made for such referral and the issue is a "medical question", then the precise wording of the question posed for the medical panel is as much for the Court as for the applicant. After all, it is the Court which must be concerned to ensure that the opinion which is obtained is of assistance in the determination of the issues in the proceeding: it is for that very reason that the Court is regarded as retaining some control over the precise wording of the question. In my opinion, if the conditions I have described are satisfied the Court is not entitled to refuse altogether to refer to a medical panel under s.45(1) an issue which one of the parties is seeking to have referred, merely because the Court considers the present wording of the question unsatisfactory.

177. In this case, the conditions I have mentioned were all satisfied. The Court was alive to the issue which the defendants were seeking to have referred to a medical panel; as his Honour said, what the defendants meant was whether impairment was permanent, not injury. Only that would be relevant and so, if a question was to be referred, it was to be that question, and not a question differently worded. Perhaps the only problem left in this case was whether, having been alerted to the proper intent of the question, the defendants made it sufficiently clear that that was what they were seeking to have referred: for if the applicant does not embrace the proper wording of the question, then of course the Court must be justified in refusing to put the question which ex hypothesi is not properly worded. (While refusing to act under s.45(1)(b), the Court might perhaps choose of its own motion to refer a different question under paragraph (a) of s.45(1), but the exercise of that discretion was not under consideration here.) Perhaps the exchange recorded in the transcript which I have quoted (in paragraph [41]) is not as clear as it might have been, but the judge did not pursue the matter with counsel. In the end, it is of no account in this instance, because in any event I think that this proceeding should be referred back to the County Court for error in relation to the other medical questions posed, and should that prove to be the view of this Court, the application under s.45(1)(b) in relation to question 2 will doubtless be pursued more fully.

181. That leaves only question 4 for consideration. Question 4 was framed in this way:

"What is the level of impairment, expressed in percentage terms, suffered by the plaintiff as a result of the injury?"

The framing of this question draws quite clearly upon paragraph (d) of the definition of "medical question". By the time of the hearing of this matter below, paragraph (d) of that definition was as follows:-

"(d) A question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with section 91 and a question as to whether or not that impairment is permanent". [Italics added]

In this I have italicised the qualifying expression which commences "including"; for if that is omitted by the reader, if only to aid in understanding in the first instance, there can be no doubt but that question 4 falls fairly within paragraph (d) of the definition. It should be noted that paragraph (d) of the definition of "medical question" makes no specific reference to "injury" or "incapacity" (the re-definition of which were so important to the reasoning of Judge Just in Casse). What, then, did the judge say in refusing to refer question 4?

188. On 26 August 1998, and after delivering his formal ruling in relation to question 3 , his Honour said as to question 4:-

"As to question 4 I say it is not relevant to determine the level of impairment expressed in percentage terms for reasons I explained yesterday."

On 25 August , his Honour drew a distinction between the percentage loss of mental powers and the percentage loss of ability to work. This exchange is recorded in the transcript[21]:-

"HIS HONOUR: The compensation is awarded for the extent of inability to work, not the extent of the loss of mental powers. MR BATTEN: It is awarded, with respect, Your Honour, to an injury which is defined as a loss of mental powers, a component of that being the worker has an inability to perform some work. HIS HONOUR: That's what the compensation is awarded for; the inability to work arising from the loss of mental powers. You can have a 20 per cent loss of mental powers involving a complete inability to work or you can have a 90 per cent loss of mental powers involving a small inability to work. You don't get the compensation for the loss of mental powers. You get it for the loss of ability to work resulting from the loss of mental powers, as I understand Hawkins' case."

This last is a reference to Accident Compensation Commission v. Hawkins[22].

195. With respect, I think that his Honour erred in refusing to refer question 4 to a medical panel. The relevant item in the Table in s.98 (as it stood until 1 December 1992) was a composite: it referred, it will be recalled, to "loss of mental powers involving inability to work". Section 98(4) provided that if a worker suffered an injury consisting, either as to the major part or to a lesser but substantial degree, of an injury for which compensation was payable under s.98(1) (and thus by reference to the Table), compensation was to be awarded in such amount as "appears to be just and proportionate to the degree of injury suffered". What was relevant therefore to compensation in this case was the percentage "loss of mental powers involving inability to work". As s.98(5) demonstrates, that was the impairment and compensation was payable if the impairment was permanent. Whether the impairment was permanent and what the level of impairment was, expressed in percentage terms, were alike relevant, I should have thought, to a determination of what amount should be paid by way of compensation under s.98(4). It is true, as the judge pointed out, that a low level of loss of mental powers might "involve" a high degree of inability to work; but so be it. The compensation is payable for the degree of loss which, as the statute proclaims, is "loss of mental powers involving inability to work".

198. Accordingly, it was not open to the judge to refuse to put question 4 on the ground that it asked after the percentage loss of mental powers, as distinct from the inability to work. The one was not to be separated from the other, though no doubt some explanation of this would be required by the judge when referring the question to the medical panel. After all, doctors are every day assessing ability to work by reference to injury; I see no reason why the same approach could not be taken to "loss of mental powers involving inability to work".

201. Again Mr. Gorton sought to put another argument before us, this time that "impairment" in paragraph (d) of the definition of "medical question"[23] was to be understood as impairment according to the American Medical Association's Guides to the Evaluation of Permanent Impairment (2nd edn.), which are mentioned specifically in s.91 and by reference to which that section requires the "degree of impairment" to be assessed. (In Reprint No.7, the reference to these Guides was found in paragraph (d) in the definition of "medical question", making the argument perhaps even stronger.) But to my mind, the word "impairment" in paragraph (d) of the definition is not to be read by reference to the expression commencing "including", which is no more than an express inclusion (perhaps indicating some doubt about whether, without words of express inclusion, what follows would be included). The paragraph as first introduced (by Act No. 64 of 1989) contained no such words of "inclusion" and I see no reason why their subsequent addition to paragraph (d) should be seen to change the meaning otherwise. Until repealed by the 1992 amendments, s.98(5) made it plain that the word "impairment" was used to mean a loss within the Table; it was only in the 1992 amendments and thereafter that the word "impairment" becomes linked to the AMA Guides. Without the words commencing "including", there is no cause, in a case like this, for reading "impairment" in paragraph (d) as something other than the impairment mentioned in the Table and in my opinion that is how the paragraph should be understood. This is consistent, I think, with the views expressed by Byrne, J. in Austin v. Amcor Ltd.[24] and by Ashley, J. in Community Services Victoria v. Bradbury[25]. I would therefore reject Mr. Gorton's submission that paragraph (d) refers only to impairment assessed according to the AMA Guides. (Again, there is a question whether this point could be taken in view of the absence of a notice of contention: but, as I have said, I would reject it anyway.)

205. The only other part of this appeal was altogether different, concerning the admission into evidence of a medical report obtained during the course of the trial. During the hearing, the judge pointed out that the medical evidence concerning the plaintiff's condition was some years old and he inquired after the present position. The plaintiff submitted to further examination and tendered the report obtained, which was dated 25 August 1998. The defendants objected to the tender, relying upon s.104(12). That reads:-

"(12) A party to any proceedings relating to a claim for compensation under section 98 or 98A cannot in evidence submit any medical evidence or tender a medical report or adduce evidence dependent on a medical report unless that evidence is disclosed by a medical report a copy of which has been provided to the other party in accordance with sub-section (1) or (2) or a copy of which has been provided in accordance with sub-section (8)."

Pointing out that a copy of the medical report had not been provided "in accordance with sub-s.(1) or (2)", the defendants objected that the medical report could not be tendered in the face of sub-s.(12). The objection having been overruled, the defendants now appeal alleging error in that respect.

210. Section 104 deals generally with claims for compensation under ss.98 and 98A (and it is the former rather than the latter which is presently relevant). The section as it now stands was introduced into the legislation by Act No.50 of 1994 but substantially amended by Act No.7 of 1996 and again by Act No.107 of 1997. The history does not matter: it was common ground that the judge was entitled, and indeed bound, to apply s.104 as it stood at the time of the hearing.

213. Section 104(1) provides that in addition to requirements under s.103 of the Act, a claim for compensation under s.98 (and I omit reference now to s.98A as irrelevant) -

". . . must be given, served or lodged with a copy of all the medical reports -

(a) which the claimant intends to tender in any proceedings relating to the claim; or

(b) the substance of which the claimant intends to adduce in evidence in support of the entitlement of the claimant to compensation or as evidence of the extent of any relevant loss, impairment, disfigurement or pain and suffering in any proceedings relating to the claim."

By s.104(2) the Authority, authorised insurer or self-insurer is obliged "within 90 days of receiving the claim", not only to accept or reject the claim and advise the claimant of that decision, but to give the claimant a copy of all the medical reports which the Authority, authorised insurer or self-insurer "intends to tender in any proceedings relating to the claim" or "the substance of which the Authority, authorised insurer or self-insurer intends to adduce in evidence in any proceedings relating to the claim".

220. Both sub-ss.(1) and (2) are thus concerned with the commencement of the dispute, the first dealing with the lodging of the claim and the second with the first response of the Authority, authorised insurer or self-insurer. At each stage, medical reports must be supplied and, as was submitted in argument, this is no doubt for the purpose of ensuring that, when conciliation is attempted, the conciliator has before him all relevant medical evidence. The defendants submitted below, and to us, that s.104(12) was in aid of that position, ensuring that medical evidence could not be used, if obtained after the dates relevant to the operation of sub-ss.(1) and (2). It must be said that if this is the construction to be given to s.104(12) it means that the Court is bound to consider - and to consider only - the plaintiff's condition as at the date of the claim or, at best, at the date when the claim is rejected. Where there is, as here, usually a waiting time of about two years before the disputed claim comes on for hearing in the County Court, that result might be thought somewhat artificial. But that, said the defendants, was the result of the legislation. To read it otherwise, counsel submitted, would be to allow a plaintiff to commence the dispute with but a suggestion of his condition, lying in wait, as it were, until reaching the door of the Court before producing his real medical evidence. The plaintiff had the answer to this, however, in s.103(5) which appears indirectly to require a claimant, whether the injury has stabilised or not, to commence proceedings before quitting employment.

223. Notwithstanding the submission to the contrary, I think the judge was right. Section 104(12) does not provide that no medical evidence may be received in evidence after the dates mentioned in sub-ss.(1) and (2); it says only that no medical report may be received in evidence unless a copy has been provided in accordance

with sub-ss.(1) and (2). To my mind, s.104(12) is imposing a penalty for non-compliance with sub-ss.(1) and (2) and, if that be so, compliance must have been possible. Compliance is simply not possible where the medical report does not even exist at the time mentioned in sub-ss.(1) and (2). That was the case here and so, in my view, s.104(12) does not run.

228. For the reasons I have given I consider that the judge did err in refusing altogether the defendants' application to have medical questions referred to a medical panel under s.45(1)(b), but not in receiving into evidence the most recently obtained doctor's report, of 25 August 1998. By reference to the former I would allow the appeal, set aside the award of compensation made in the County Court and remit the proceeding to that Court for further hearing and determination according to law.

234. I agree that, for the reasons given by Phillips, J.A., the appeal should be allowed.

[1] [1991] HCA 15; (1991) 172 C.L.R. 60

[2] [1999] V.S.C. 32 (22 February 1999, Ashley, J.)

[3] [1992] V.A.C.R. 72-231 (Accident Compensation Tribunal, Judge Gorton)

[4] [1976] HCA 13; (1976) 133 C.L.R. 580

[5] [1998] VSC 61 at paras.[51] ff. An appeal against this decision was recently allowed, but on a different point: see Ericsson (Australia) Pty. Ltd. v. Popovski [2000] VSCA 52.

[6] Singh-Jhikka v. MMI Workers Compensation (Vic) Ltd. (unreported, County Court 9 April 1999, Judge Rendit)

[7] [1998] VSC 97 (2 October 1998)

[8] Greeves v. H.I.H. Winterthur Workers Compensation (Vic.) Ltd. [2000] VSCA 68 (5 May 2000)

[9] see Hansard, Legislative Assembly, 30 October 1992, vol.409, p.310

[10] amended from 21 days, by Act No.107 of 1997 s.21(3)

[11] [1994] V.A.C.R. 73-334 (County Court 29 March 1993, Judge Just)

[12] unreported, County Court 24 August 1995, Judge Williams

[13] unreported, County Court 17 July 1998, Judge Strong

[14] unreported, County Court 9 April 1999

[15] unreported, Supreme Court of Victoria 3 April 1998

[16] These conclusions were adopted and applied by Balmford, J. in NZI Workers' Compensation (Vic.) Ltd. v. Unalan [1999] VSC 234 (28 June 1999).

[18] [1980] VicRp 22; [1980] V.R. 177

[20] [2000] VSCA 68

[22] [1992] VicRp 39; [1992] 1 V.R. 589

[24] unreported, Supreme Court of Victoria 3 April 1998

[25] [1999] VCS 32 (22 February 1999)