Kamener v Grifiin [2004] VSC 235

8. The plaintiffs relied upon the affidavit of Tony Forgione, a partner of the firm Messrs Abbott, Stillman & Wilson, their solicitors, sworn on 7 October 2003 in support of their application.

11. The Medical Panel adduced no evidence. Counsel appeared on its behalf only to assist the Court in relation to its procedures and otherwise stated that the Medical Panel would abide by the Court's decision. The fifth defendant ("the worker") swore an affidavit on 7 November 2003 in opposition to the application, parts of which were struck out as inadmissible hearsay.

15. The history of the relationship between the parties was set out in the affidavit material and was not contentious.

18. The worker was employed as a dishwasher by the first and second plaintiffs ("the employers") at their restaurant for a period of some seven weeks from late May 1999 to 15 July 1999. He claimed that his neck, back and right upper limb were injured in the course of his employment.

22. By a writ issued on 21 March 2002 the worker commenced a proceeding in the County Court of Victoria against the employers and the third plaintiff ("the VWA"). He claimed weekly payments of compensation and other relief under the Accident Compensation Act 1985 ("the Act") in relation to his alleged injuries.

26. On 10 February 2003, at the commencement of the hearing of the County Court proceeding, the worker applied to his Honour Judge Coish under s 45(1)(b) of the Act for an order referring medical questions to a medical panel for opinion. The application was opposed.

29. On 13 February 2003, after the worker had been examined and cross-examined during the hearing of the application, his Honour ruled that he would refer certain medical questions to a medical panel as requested. The medical questions are set out below at [12] in the context of the answers given by the Medical Panel. His Honour was of the view that there was "material which if accepted would entitle the [worker] to compensation under the Act" and that there was a conflict of medical opinion. He concluded, having considered a number of relevant authorities, that it would not be appropriate for him to delay the referral, despite any overlap between the medical questions and the issue as to whether the worker had sustained injury arising out of or in the course of his employment.

32. In accordance with s 65(6A) of the Act the Medical Panel was provided with documents which included the statement of claim and defence, the parties' court books, medical reports relating to the worker, a video-tape of his workplace and transcript of the hearing of the application in relation to the referral of the medical questions.

The Agreed Statement Facts and Facts or Questions in Dispute

36. An Agreed Statement Facts and Facts or Questions in Dispute in the following terms was also provided to the Panel:

"It is agreed: 1. The Plaintiff worker was employed from late May or early June 1999 as a dishwasher/kitchenhand at the Blue Ribbon Café, Glenferrie Road, Hawthorn until about the 15th day of July 1999, a total of about 8 to 10 weeks. 2. The Plaintiff worker made a claim for compensation dated the 17th day of July 2001 claiming injury to his right shoulder and lumbar spine as a result of lifting heavy trays of dishes repeatedly and as a result was incapacitated for work (sic). 3. The Defendant employer disputes the claim and denies the Plaintiff worker suffered any injury in the course of or arising out of employment with the Blue Ribbon Cafe, or that there was any consequential incapacity for work as a result of the claimed injures (sic). Issues and facts in dispute: A. The Defendant denies that the Plaintiff suffered any injury in the course of or arising out of or due to the nature of the stated employment. B. The Defendant contends that the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation were false. C. The Defendant contends that if the worker suffered any injury, particularly to his right shoulder and back (including the low back), such injuries were suffered prior to employment with the said Blue Ribbon Café and in particular as a result of a motor vehicle accident on the 25th day of April 1998, and subsequent to his employment when he fell at his home residence on about 19th April 2001. Further, such alternative histories are consistent with histories provided by the Plaintiff to treating and/or examining medical practitioners relevant to other claims. D. The Plaintiff denies he suffered any relevant injury, particularly to his right shoulder and low back, before or after the relevant employment with the Blue Ribbon Café notwithstanding the recorded medical histories and which (sic) the Plaintiff contends are inaccurate. The Plaintiff contends that the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation are truthful."

40. I note, only for completeness, that the transcript of the hearing before Judge Coish and other materials before the Court would suggest that the employers' business was carried on under the name "Blue Rhythm Café" rather then "Blue Ribbon Café".

The Medical Panel's answers to the medical questions

44. The Panel gave a Certificate of Opinion dated 18 August 2003 recording its opinions in relation to the medical questions. The Certificate answered the medical questions by stating:

"Question 1: What is the nature of the worker's medical condition relevant to the injuries, as alleged in paragraph 7 of the Statement of Claim? Answer: The Panel is of the opinion that the worker is suffering from residual right shoulder symptoms due to an aggravation of degenerative changes in the right acromio-clavicular joint and mild Adjustment Disorder with features of irritability, agitation and depressed mood, relevant to the right shoulder injury.

There is now no medical condition of the cervical or lumbar spine, relevant to any alleged injury."

Question 2: Was the Plaintiff's employment with the first and second Defendants a significant contributing factor to any, and if so which, injuries alleged in the Statement of Claim?

Answer: The Panel is of the opinion that the Plaintiff's employment with the [employers] was in fact a `significant contributing factor' to an injury of the right shoulder, a resolved musculo-ligamentous injury to the lumbar spine and the development of a psychiatric condition, but employment could not possibly have been and was not in fact a significant contributing factor to any alleged injury to the cervical spine, nor any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the lumbo-sacral spine or cervical spine in any way.

Question 3: (a) Does the Plaintiff have a current work capacity?

(b) If yes to part (a) hereof, what employment would constitute similar employment?

(c) If no to part (a) hereof, is the absence of a current work capacity likely to continue indefinitely?

Answer: (a) Yes. (b) In the Panel's opinion employment which avoids repetitive movements of the right shoulder, raising the right arm above shoulder height and lifting in excess of 5 kilograms would constitute suitable employment. (c) Not applicable. Question 4: Does the Plaintiff's incapacity, if any, result from or is (sic) materially contributed to by the injuries alleged in the Statement of Claim? Answer: The Panel is of the opinion that the Plaintiff's incapacity for his pre-injury duties is still materially contributed to by the alleged right shoulder injury."

56. On 9 September 2003 the Medical Panel gave written Reasons for Opinion dated 18 August 2003 ("the Reasons") at the request of the employers and the VWA. The Medical Panel stated that it had formed its opinions by reference to the documents and information referred to in "Enclosure A", a document attached to the Reasons. It also relied upon the history provided by the worker and the examinations carried out by the Medical Panel members. The Reasons continued:

"The reasons for the Panel's opinion are as follows: The Panel noted that the worker was employed as a dishwasher/ kitchen hand at a café starting in May 1999. He said that he worked long shifts and needed to carry heavy trays of dishes into a very confined space at the back of the café. He said he started to notice some soreness in his back three to four weeks later and subsequently developed a `clicking' in his right shoulder and pain in the right forearm. The pain intensified over the next few weeks, he informed his employer and despite the persistent pain continued working. He eventually consulted his local doctor and was given a short time off work. He stated that he was then dismissed as his employer felt there were `too many issues' and he has not worked since. The worker stated that he was previously involved in a motor bike accident in 1998 in which he had sustained a left knee injury and a fractured sternum and needed an arthroscopy in March 1999. He denied any previous injury to his back or shoulders."

60. The Reasons continued by relating the worker's account of the radiological investigations and treatments of his right shoulder before he ceased treatment for financial reasons. They recorded his description of his experience of pain and other symptoms in relation to his neck, fingers of his right hand, his back, his right leg and thighs. They described what was noted on examination by the members of the Medical Panel and recorded its opinions about the radiological materials.

"The Panel, with the worker viewed a video taken of the work area of the café. The worker stated that it must have been taken after hours as there were few people working and that it appeared that the lay out of the area had been changed since he had left. He claimed that when he was working there the area was always very congested and certainly not as depicted in the video. In the Panel's opinion the worker is suffering from mild residual right shoulder symptoms due to aggravation of degenerative changes in the right acromio-clavicular joint. The panel also concluded that there is no medical condition of the neck and the abnormalities noted on the radiology in the lumbo-sacral spine are not relevant to any alleged injury. The Panel conducted a psychiatric examination and concluded that the worker is also suffering from a mild Adjustment Disorder with features of irritability, agitation and depressed mood which has arisen secondary to the pain and physical limitations resultant from his physical condition. The Panel considers the nature of the worker's duties probably caused a musculo/ligamentous injury of the right shoulder, which is now resolved and aggravated the degenerative changes of the right acromio-clavicular joint. The panel also considers the nature of the worker's duties probably resulted in a musculo-ligamentous injury to the lumbar spine, which has now resolved. The Panel therefore concluded that the worker's employment with the defendants was in fact a significant contributing factor to an injury to the right shoulder, a musculo-ligamentous injury to the lumbar spine which has now resolved, and to the development of a psychiatric condition, but employment could not possibly have been and was not in fact a significant contributing factor to any alleged injury to the cervical spine, nor to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the lumbo-sacral spine or cervical spine in any way. The Panel considered the worker is not capable of performing his pre-injury duties due to the nature of the right shoulder condition and this incapacity is materially contributed to by the alleged right shoulder injury."

67. The Reasons made no mention of material in which the worker had given histories of injury to his right shoulder being variously attributable to his employment, the motor vehicle accident and to the subsequent fall. The Reasons did not refer to the issue as to the effects of either the accident or the fall, nor did they address the issue of the worker's credibility in the context in which the materials revealed that the employers had consistently denied any workplace injury.

71. The employers and VWA sought relief upon the grounds that the opinions as certified were ultra vires for the reasons set out in paragraphs 9 to 11 of the amended originating motion:

"9. By reason of its reliance upon statements made by the worker to a member or members of the Medical Panel in an interview or examination conducted by him or them, ... , the Medical Panel failed to accord procedural fairness to the employers and VWA by giving those parties a fair opportunity to be heard by the Medical Panel in response to those statements.

10. Further by relying upon statements made by the worker to a member or members of the Medical Panel in an interview or examination conducted by him or them, but apparently:

(a) having no regard to the oral evidence given by the worker in the proceeding and recorded in the transcript of evidence;

(b) having no regard to the histories provided by the worker to medical practitioners and the diagnoses of the worker's injuries made by medical practitioners and contained in the material referred to the Panel;

the Medical Panel erred in law by failing to have regard to matters to which it was bound to have regard in the formation of its opinions.

11. Alternatively, the Medical Panel erred in law by failing to provide adequate or proper reasons for its opinions."

The rules of natural justice applied to the Medical Panel

81. It was common ground that the Medical Panel was required to observe the rules of natural justice: see Masters and McCubbery[1]; Weerappah v Nisselle[2].

84. Similarly, there was no dispute that the relevant principles had been stated by Mason J, as he then was, in Kioa v West[3] at 584:

"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter and the rules under which the decision maker is acting ...".

89. The powers and procedures of medical panels are set out in s 65 of the Act which included the following provisions at all relevant times:

"65. Procedures and powers (1) A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit. (2) The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows. (3) Information given to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings- (a) before the County Court, the Magistrates' Court or the Tribunal under this Act or the Workers Compensation Act 195 8; (b) for an offence against this Act or the Accident Compensation (WorkCover I nsurance) Act 1993 or the Workers Compensation Act 195 8; (c) for an offence against the Crimes Act 1958 which arises in connection with a claim for compensation under this Act. ´(d) [repealed] (4) Any attendance of a worker before a Medical Pane l must be in private, unless the Medical Panel considers that it is necessary for another perso n to be present. (5) A Panel may ask a worke r- (a) to meet with the Panel and answer questions; (b) to supply copies of all documents in the possession of the worker which relate to the medical question to the Panel; (c) to submit to a medical examination by the Panel or by a member of the Panel. (6) If a Panel so requests and the worker consents, a person who is- (a) a provider of a medical service (within the meaning of paragraph (a) of the definition of "medical service" in section 5(1)); (b) [repealed] who has examined the worker must- (c) meet with the Panel and answer questions; and (d) supply relevant documents to the Panel. (6A) A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying- (a) the injury or alleged injury to, or in respect of, which the medical question relates; (b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute. (6B) A perso n or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that pers on or body to the Medical Panel. (7) The Convenor may give directions as to the arrangement of the business of the Panels. (8) The Minister may for the purposes of- (a) ensuring procedural fairness in the procedures of the Medical Panels; and (b) facilitating the proper administration of the Medical Panels- issue guidelines as to the procedures of Medical Panels. (8A) The Minister must consult with the Attorney-General before issuing any guidelines under this section. (9) The Convenor may give directions as to the procedures of the Panels but may not give directions inconsistent with any guidelines issued by the Minister. (10) The Convenor of the Medical Panel s and a member of a Medical Panel has in the performance of his or her duties as the Convenor of the Medical Panel s or as a member of a Medical Panel the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. "

The alleged failure to hear the employers and the VWA

94. The employers and the VWA first alleged that the rules of natural justice required that they should have been given an opportunity to be heard by the Medical Panel in relation to the worker's statements to its members and more generally in relation to the issues in dispute between the parties.

97. Senior counsel for the employers and the VWA referred to the analysis of the content of a medical panel's obligation to accord procedural fairness by Smith J in Weerappah v Nisselle[4]. The unrepresented plaintiff in Weerappah v Nisselle had alleged that the material provided to a medical panel by a conciliation officer, without reference to him, was inadequate or prejudicial and that the panel should have obtained evidence from him in relation to the material it took into account. Smith J noted that panels were given broad powers to conduct in effect an inquisitorial proceeding[5] and later said at [41] :

"Having an obligation to accord natural justice means that the body in question must consider what its obligations are in the circumstances of a particular case and it carries the responsibility to accord natural justice to the litigants. That can be a significant burden where parties are not represented. Counsel for the defendants, in referring to [Kioa v West], conceded that there could be situations where the relevant tribunal was obliged to give an opportunity to the relevant parties to be heard about a critical issue - for example, where the worker provided the Panel with new material and, thus, in fairness to the insurer, it was necessary to contact the insurer to give it an opportunity to respond."

101. The decision of Vincent J (as his Honour then was) in Calleja v Franet Pty Ltd[6] was also relied upon by the employers and the VWA. In that case a question never in issue before it assumed the character of a relevant factor to a medical panel. The worker had been given no opportunity to address the matter. Vincent J held that, in the particular circumstances of the case, procedural fairness required that she should have been informed about the basis of its preliminary view on the matter and allowed the opportunity to present relevant material.[7]

104. Senior counsel for the worker submitted that the facts in Weerappah v Nisselle and Calleja v Franet Pty Ltd should be distinguished as quite different from those before the Court. He argued that, in this case, there had been no failure to accord a proper hearing to the employers and the VWA because the subject matter of each of the worker's statements to the Medical Panel had previously been raised by him in the course of his examination before Judge Coish. The medical questions had only subsequently been referred to the Medical Panel with materials that included the transcript of that examination. On the basis of his assurance that it was so, the employers and the VWA conceded that each such matter had been raised.

107. Senior counsel for the worker contended that, in the statutory context, the Medical Panel's action in obtaining a history from the worker conformed to the procedure that a reasonable and fair repository of power would adopt. It was not conduct properly to be regarded as undermining public confidence in the administrative process. He argued that, in all the circumstances, the employers and the VWA had been given an opportunity to be heard. He said that the Reasons referred to the material upon which the Medical Panel's opinion had been formed and stated that it had referred to the materials in Enclosure A, as well as to the history provided by the worker and its findings on examination.

110. Senior counsel for the employers and the VWA conceded that it might be the case that, even in most instances of disputed issues before panels, conflicting assertions would not oblige a panel to provide an oral hearing. However, he argued that, in the highly unusual circumstances of this dispute, his clients had been denied a minimally fair hearing by the Medical Panel's failure to hear them as to "the critical causation question" in relation to which there was a direct conflict between the respective accounts of the parties. He submitted that the Medical Panel had ample power to seek a response from the employers and the VWA and to give them a hearing in relation to the creditworthiness of the worker and as to the issue of causation generally.

113. Senior counsel for the worker relied upon the provisions of the Act setting out the procedures and powers of medical panels in support of his proposition that legislation contemplated that a response to the worker's statements to Medical Panel members might not be sought. He pointed out that s 65 and s 67 of the Act established a procedure that required the worker to submit to medical examination, noting the possible penalty of suspension of rights to compensation under s 67(4) for unreasonable refusal to comply with a request made under s 65(5) or for hindering examination. S65(4) nevertheless preserved the confidentiality of the doctor patient relationship by providing that attendance must be in private, unless the Medical Panel considered it necessary for another person to be present. He argued that it was apparent that the worker's attendance was intended only for the use of the Medical Panel because others, such as employers, insurers and even workers' legal representatives, were excluded from attendance unless required.

116. Senior counsel for the employers and the VWA responded that the rules of procedural fairness continued to apply, referring to what was said by Callaway JA in Masters v Mc Cubbery about the effect of the Act:

"In the present case ... s 65(6) does not exclude the rule against acquiring information in the absence of a party without giving that party the opportunity to comment on it."[8]

120. He also called in aid the views expressed by Smith J in Weerappah v Nisselle that in a situation in which the panel's task goes beyond decisions based upon medical expertise:

"... it must be particularly alert to the issue of natural justice. In particular the Panel needs to consider whether the parties need to be invited to make oral or written submissions and whether it needs to organise an informal hearing involving the Panel members and the parties."[9]

124. The employers and the VWA further argued that the Medical Panel had denied them natural justice by failing to hear them in relation to the listed disputed questions of fact provided to it under s 65(6A) of the Act. This failure, they asserted, resulted in the Medical Panel reaching its decision having taken into account facts which had not been properly established or having failed to take account of facts relevant to its determinations which might have been so elicited.

128. I am not persuaded that the Medical Panel denied the employers and the VWA procedural fairness by failing to seek a response to statements made by the worker during examination or, more generally, in relation to the issues in dispute including the worker's credibility.

131. The Act provided for the examination of the worker in private by the Medical Panel, with the possibility of relevant statements being made during such examination. It also provided for materials which, in this case, included the transcript of the hearing before the County Court to be forwarded to the Medical Panel. The matters raised by the worker had been the subject of that examination and the employers and the VWA had had the opportunity to put their position under cross-examination or by means of the materials provided to the Panel. Further, in this case, the Medical Panel stated that it had taken into account those materials in reaching its decisions.

134. The authorities referred to turned upon their own facts. In all the circumstances and in the context of the statutory framework, I am not persuaded that the Medical Panel failed to accord natural justice to the employers and the VWA.

The Panel's alleged failure to take all relevant matters into account

138. Senior counsel for the employers and the VWA went on to argue that the Court should conclude from the Panel's opinions and the Reasons that it had failed to address the issues raised by them as to any causal connection between the worker's physical condition and his previous motorcycle accident and subsequent fall. It had also neglected to deal with the matters of his psychological condition and his pre-employment state of mental health.

141. Senior counsel for the employers and the VWA argued that the Medical Panel had not had regard to materials containing histories provided by the worker to medical practitioners and diagnoses relating to alleged effects upon his right shoulder and back of incidents which occurred outside his employment. The failure was said to have been demonstrated by the silence of the Medical Panel as to the questions in issue between the parties including the creditworthiness of the worker, about which, it was said, it should have made a finding.

144. Senior counsel for the worker responded that it was not part of the Medical Panel's function to determine the issue of the worker's credibility or to make findings as to any injury suffered by the worker in the previous motor accident or as a result of the subsequent fall. It was not required to do any more than answer the questions put to it.

147. The employers and the VWA replied that such a contention was wrong. The duty to make the determinations required by the medical questions involved the making of findings underpinning the conclusions: the "sub-determinations" referred to by Winneke P in Masters v McCubbery[10].

150. Senior counsel for the worker argued that the Medical Panel had indicated that it had taken into account the relevant materials supplied to it. He submitted that neither its statement of its opinions nor the Reasons established that it had failed to do so. The failure of the Reasons to refer to a relevant consideration would not establish that it had been overlooked. The inference should not be drawn unless the Reasons suggested some error due to the matter not having been considered, or unless they indicated, by comparison with what could have been said, that the matter had not been considered. He submitted that the Medical Panel's determination was perfectly consistent with it having taken into consideration these and other relevant matters. The Reasons made it clear that it had not accepted the worker outright and had rejected the notion that there was any continuing problem with his lumbar spine or cervical spine due to his employment. Senior counsel referred to the Medical Panel's conclusion that employment had contributed to the aggravation of pre-existing degenerative change to the shoulder which, he submitted, did not rule out either the effects of the previous or subsequent traumas. He said that its findings only partially favoured the worker, were open on the evidence and were not outrageous.

153. Senior counsel for each party took the Court to extracts from the medical reports and other materials which the Medical Panel had said it had taken into account. Each argued that his client's case was supported by the materials to which reference was made, although senior counsel for the worker raised the issue of the extent of the record for the purposes of the application for judicial review.

157. The Medical Panel was asked to determine mixed questions of law and fact which bind the Court and effectively dispose of issues raised by the worker.[11] The materials supplied were provided to assist the Medical Panel in its task by informing it of the background circumstances.[12] Further, natural justice would be denied to a worker if a medical panel "took into account facts which had not properly been established or failed to take into account facts relevant to the medical questions".[13]

160. Nevertheless, I am not satisfied that the Medical Panel failed to do what it said in the Reasons it had done in this case, namely, have had regard to the materials in Enclosure A. I have been given no persuasive reason to doubt the veracity of the Medical Panel's statements to that effect.

163. The medical reports extracted for the purposes of the application for judicial review record the worker complaining about pain in the right shoulder at the time of his employment, and subsequently, before the fall on 19 April 2001. There are also recorded histories of his right shoulder having been injured as a result of his motorcycle accident. For example, Mr Brendan Dooley, an orthopaedic surgeon, reported to the insurer's solicitors on 12 September 2002 his view that responsibility for the right shoulder injury of June 1999 rested with the employers and that "[t]he possibilities [were] that the conditions from which he suffer[ed] were contributed to by the worker's employment, i.e. causing bursitis in his right shoulder and a soft tissue injury to his lumbo-sacral spine... ." However, Mr Dooley had noted that he was "dependent mostly upon his statements for assessment, i.e. complaints of pain ... ." Mr Dooley had also recorded the history of the motor cycle accident, although there did not appear to be any reference to the 2001 fall in his report.

166. As far as the worker's mental state is concerned, there are references to it in the reports relating to the periods before and after the employment. For instance, Dr Cindy Wong, his treating general practitioner, reported on 18 March 2000 that it had been recommended that he undergo neuropsychological assessment and take part in a pain management program in about November 1999, after his employment at the café in the middle of the same year. On 1 December 2000 the worker reported anxiety and depression to Mr Russell Miller, an orthopaedic surgeon who examined him for the Transport Accident Commission. Mr Miller recorded a history including schizophrenia. The clinical psychologist, Ms Margaret Allen, reported to the Transport Accident Commission on or about 7 June 2001 that the worker's motor accident injuries caused him to experience the stress and depression about which he was complaining. Dr Stephen Stern, a psychiatrist who reported to the solicitors for the employers and the VWA on 1 July 2002, however, expressed the view that his employment was a significant contributing factor to his recurrent depression.

169. The Medical Panel was required to answer the questions put to it. It was necessary for it to have made the necessary "sub-determinations" described by Winneke P in Masters v McCubbery. However in my view, neither the statement of its opinions nor the Reasons persuade me to infer that the Medical Panel had failed to take into account the effects of the previous accident or the subsequent fall, the effects of any pre-existing mental state or the question raised by the materials as to the worker's credibility. Its conclusions are logically consistent with such matters having been taken into account, although not expressly adverted to.

173. The employers and the VWA also argued that the Medical Panel had made an error of law, apparent on the face of the record, by its failure to provide adequate reasons addressing the issues of the worker's credibility, his previous accident and subsequent fall and prior mental health.

176. In Masters v McCubbery[14] the Court of Appeal held that a Medical Panel was obliged to provide reasons for its conclusions. Application had been made under s 8 Administrative Law Act 1978 to a medical panel seeking reasons for its answers to medical questions. S 8 (4) provides that a tribunal may be ordered by the Supreme Court to give reasons for its decision, if none are provided or if "the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law."

179. Winneke P said of the obligation to provide reasons under the Administrative Law Act 1978 at 650:

"A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions. This, after all, is the limit of the obligation imposed by the [Administrative Law Act 1978 ] upon any 'tribunal' which is required to accord natural justice in arriving at its 'decision': see s 8(4) of the [Administrative Law Act 1978]."

183. Ormiston JA expanded upon the nature of the necessary reasons when he said at 653:

"It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review."

187. Callaway JA described the kind of reasons required under s 8 at 661:

"In the present context, they are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members' medical knowledge and experience. There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons. For example one doctor could sensibly ask another the `reasons' for his or her diagnosis of a patient's illness."

191. Senior counsel for the worker sought to persuade the Court of the adequacy of the Reasons. He accurately summarised the situation by stating that the parties differed only as to how far the Medical Panel should have gone in giving reasons for its opinions and that the worker maintained that it had satisfied its obligations.

194. The employers and the VWA relied upon the absence from the Reasons of express reference to their case as described in the document setting out the issues in dispute. They referred in particular to what they said must have been the acceptance of the worker's denial that he had sustained a previous injury to his back or shoulders.

197. The worker however relied upon the Medical Panel's broad statement in paragraph 3 of the Reasons that :

(a) the documents and information referred to in Enclosure A; and

(b) the history provided by the worker and the examination findings elicited by the Panel at the above mentioned examinations of the worker."

Conclusion

204. Despite the force of the worker's arguments in support of the sufficiency of the Reasons, I am persuaded that they are inadequate in this case. I have reached this decision bearing in mind what was said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[15] about the proper role of a reviewing court:

"When the Full Court referred to `beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is C_ollector of Customs v Pozzolanic_ (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be `concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker ... . The Court continued ...: `the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ... ."[16]

208. I have also taken into account the cautions from senior counsel for the worker against following authorities relating to judicial reasoning and adopting an overly legalistic and narrow approach to the analysis of the adequacy of the Reasons.

211. The Medical Panel has stated that it took into account the materials in Enclosure A which included the challenges to the credibility of the worker's account of injury being attributable to his employment and I have found that its answers to the medical questions and the Reasons are not inconsistent with it having done so. Further the Medical Panel was not asked any direct medical questions about the effects of either the previous accident or the subsequent fall or the worker's previous state of mental health. Nevertheless, the Reasons do not explain the extent to which the Medical Panel accepted the worker's assertions and the various histories given by him or relied upon other material of a more objective character in reaching its conclusions about the effects of the nature of his duties.

214. In my opinion, given the clear dispute as to the accuracy of the histories given by the worker, the issues raised about any effects of the previous and subsequent incidents and the challenges to the worker's credibility, it was incumbent upon the Medical Panel to describe in more detail how it reached its conclusions. It was not enough for it to have made a general reference to relevant materials. It needed to provide "sufficient detail" to fulfil the obligation described by Callaway JA in Masters v Mc Cubbery[17], "to show the court and the worker that the question referred to the panel ha[d] been properly considered according to law and that the opinion furnished [was] founded on an appropriate application of the members' medical knowledge and experience." In all the circumstances, I do not consider that the Reasons enabled the employers and the VWA to see whether relevant or irrelevant considerations had or had not, respectively, been properly taken into account and so determine whether any error of law had been made.

217. Accordingly, it has breached its obligations under s 8 of the Administrative Law Act 1978 . As the record includes the Reasons by virtue of s 10, the inadequacy of the Reasons constitutes an error of law apparent on the face of the record.

221. The employers and the VWA argue that the inadequacy of the Reasons was so fundamental as to require the Medical Panel's opinion to be quashed. They did not seek further reasons under s 8(4) of the Administrative Law Act 1978.

224. In Body Corporate Strata Plan No. 4166 & Ors v Stirling Properties Ltd (No. 2)[18] Ormiston J considered whether an order by way of mandamus compelling the delivery of reasons would be more appropriate than the setting aside of the determination where a tribunal had erred in relation to the provision of reasons and its failure could be remedied. His Honour said:

"In the case of total absence of reasons, the object of such provisions is better served by compelling the delivery of reasons rather than by outright quashing of the decision: but cf. De Smith, Judicial Review of Administrative Action, 4th Ed, p. 151 and Clarke v Wellington Rent Appeal Board [1975] 2 NZLR 24 at p.27. However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more likely that the tribunal overlooked the issue altogether."

228. Senior counsel for the worker submitted that the employers and the VWA had chosen not to seek alternative relief under s 8(4) of the Administrative Law Act 1978. Their application for the quashing of the determination should be refused in the exercise of the Court's discretion because they failed to pursue the "simple and effective relief" of such an order. He referred to the decision of Smith J in Ian Roberts Pyle v Paul Nisselle & Ors[19] and his Honour's reference to the disruption which would be avoided by an order for the provision of further reasons.

231. In Ian Roberts Pyle v Paul Nisselle & Ors, Smith J held that the contravention of the requirements of s 8 by the provision of inadequate reasons amounted to an error of law on the face of the record by reason of the provisions of s 10 of the Administrative Law Act 1978 which made the reasons part of the record.[20] His Honour also held that an alternative analysis was that the provision of inadequate reasons constituted a denial of natural justice.[21]

234. In Pyle, Smith J referred to the obvious practical advantages of savings in time, cost and labour by referring the matter back to the same medical panel. In that case, however, the panel had not included a specialist physician or a cardiovascular specialist when there was a conflict between experts subscribing to different views as to whether a sudden increase in blood pressure could lead to the creation of a thrombosis. His Honour concluded that referring the matter to a new panel would give the first respondent an opportunity to consider whether the specialist chosen came from the most relevant disciplines and whether some other discipline or disciplines might be mentioned.

237. There was no objection to the appropriateness of the members of the Medical Panel in this case. Further, in my view, this situation is not one of which it could be said, in the words of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties (No. 2)[22], that "it is more than likely that the tribunal overlooked the issue altogether".

240. In the circumstances, I am persuaded that the Medical Panel's opinion should be quashed and the medical questions remitted to it. I will so order.

[1] [1996] 1 VR 636 at 642 per Winneke P

[2] [1999] VSC 249 at [18] per Smith J

[3] [1985] HCA 81; (1985) 159 CLR 550 at 585

[4] [1999] VSC 249

[6] [1999] VSC 202

[8] [1996] VicRp 46; [1996] 1 VR 627 at 654

[9] [1999] VSC 249 at [52]

[10] [1995] VICSC 209; [1996] 1 VR 635 at 643

[11] Masters v Mc Cubbery [1995] VICSC 209; [1996] 1 VR 635 at 642 per Winneke P

[12] Catholic Church Insurances v Magistrates' Court and Gizzi [2000] VSC 31 at [54] per Eames J

[14] [1996] 1 VR 636

[15] [1996] HCA 6; (1996) 185 CLR 259

[16] [1996] HCA 6; (1996) 185 CLR 259 at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ

[17] [1996] 1 VR 636 at 661

[18] [1984] VicRp 73; [1984] VR 903

[19] [2000] VSC 398

[21] ibid [34]. cf _Public Service Board of New South Wales v Osmon_d (1986) 159 CLR 656; Aronson and Dyer, Judicial Review of Administrative Action (Second Ed) 2000 at 450-2

[22] [1984] VicRp 73; [1984] VR 903