Millane v Millane Pty Ltd [2003] VSC 72

Accident Compensation Act 1985

Administrative Law Act 1978

Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Del Borgo v Nisselle [2002] VSC 368

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

The Queen v The Australian Broadcasting Tribunal & Ors Ex Parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13

Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120

2. On 24 September 2002 Master Wheeler, on the application of the applicant, ordered pursuant to section 3 of the Administrative Law Act 1978 ("the ALA") that the applicant had shown grounds for review of a decision made by the second respondent ("the Panel") on 9 August 2002. That section provides that any person affected by a decision of a tribunal may apply to this Court for an order calling on the tribunal, and also any party interested in maintaining the decision, to show cause why the decision should not be reviewed. The Master made no such order. However, the matter proceeded on the basis that such an order had been made, and all parties must be taken to have assumed that such an order was implicit in the order of the Master. It is not in issue that the Panel is a "tribunal" in terms of the definition in section 2 of the ALA or that the decision sought to be reviewed is a "decision" in terms of that section.

5. The Panel, by its solicitors, notified the Court that it did not intend to be represented at the trial or to appear, but, in accordance with the comments of the High Court in the case of The Queen v The Australian Broadcasting Tribunal & Ors Ex Parte Hardiman & Ors [1] would submit to whatever orders the Court might make.

8. After claiming compensation under section 98C of the Accident Compensation Act 1985 ("the Act"), the applicant was examined by Dr Epstein as an independent examiner under sub-sections 104B(4) and (5) of the Act. In his report of 9 May 2002 Dr Epstein assessed her as suffering from a 20% permanent psychiatric impairment. On that basis the insurer advised the applicant that her entitlement to compensation was nil, pursuant to section 98C of the Act. She disputed this assessment and the two medical questions were referred to the Panel pursuant to section 104B(9). Dr Epstein's report and a number of other medical reports were before the Panel.

11. The decision sought to be reviewed is constituted by a Certificate of Opinion dated 9 August 2002 where the Panel answered the two medical questions in the manner shown:

Question: What is the worker's degree of permanent impairment resulting from the accepted injury/s as assessed in accordance with section 91 [of the Act]:

Answer: The Panel is of the opinion that the worker has a psychiatric impairment of 20% resulting from the psychiatric injury that is accepted to have occurred on 12 February 1999 when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent within the meaning of the Act.

Question: Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the table in Section 98E(1) [of the Act]. If yes, which injury has resulted in a total loss and which item applies? What is the level of whole person impairment for each accepted injury?

The answer to the second question is consequential upon the answer to the first question, was not the subject of submissions, and need not be further considered.

21. The Panel gave reasons for its decision on the same date, and by virtue of section 10 of the ALA, those reasons form part of the decision under review. They read, omitting formal parts:

The Panel accepted that the worker sustained a psychiatric condition during the course of her employment as a courier driver, with an injury date of 12 February 1999.

The worker had a previous episode of major psychiatric illness while employed by Telstra. She ceased working at Telstra and made a partial recovery but became increasingly unwell while working as a sub-contractor courier prior to commencing work as a driver employed by her own company.

The worker told the Panel that while she was employed by her own company operating a courier van, she began to experience severe anxiety in relation to delays in payment for work. She said that initially she had noticed that she was becoming very suspicious and then suffered a period of severe mental illness, which she was unable to recall in any detail and which lasted some months.

The worker stated that she had three further episodes of deterioration in her functioning while attempts at rehabilitation were occurring. She had little recollection of the details of the events of her apparently psychotic episodes but said she became racy with diminished sleep, became fixated on problems and felt that people on television were aware of her.

The worker stated that she had been treated with major tranquillisers and mood stabilisers and ongoing psychiatric management since March 1999 and that these treatments had assisted her considerably. She stated that she continued to take psychotropic medication and attend her psychiatrist.

On psychiatric examination the worker demonstrated flight of ideas, knights-move thinking and paranoid ideation and was anxious and irritable.

The Panel concluded that the worker is suffering from a schizo-affective disorder relevant in part to the psychiatric injury with an accepted injury date of 12 February 1999.

The Panel conducted an impairment assessment in accordance with . . . section 91(6) of [the Act].

In the Panel's opinion the degree of psychiatric impairment is 50%. Of this impairment the Panel concluded that there is a 20% psychiatric impairment that arises directly from the psychiatric injury that is accepted to have occurred on 12 February 1999. The Panel also concluded that the degree of psychiatric impairment is permanent with the meaning of the Act.

33. Thus the existence of an injury in terms of paragraph (c) of the definition in section 5 of the Act is accepted, the relationship of the injury with the applicant's employment as required by section 82(1) is accepted, and the permanence of her impairment as a result of the injury, as required by section 98C(1), is accepted. What is in effect in issue is the assessment of the degree of that impairment. By virtue of section 98C(3)(a), the effect of the assessment at 20% is that the amount of the applicant's non-economic loss is zero and accordingly she has no entitlement to compensation under section 98C of the Act.

36. The relevant provisions of the Act are sections 5, 82, 91 and 98C which read as follows, so far as relevant:

(1) In this Act, unless inconsistent with the context or subject-matter-

"injury" means any physical or mental injury and without limiting the generality of the foregoing includes-

(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;

(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.

(1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment-

(i) the AMA Guides [as varied by section 91(6)]

(7) For the purposes of section 98C-

(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment.

(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.

(3) The amount of the non-economic loss in respect of permanent psychiatric impairment is to be calculated as at the date of the relevant injury as follows-

(a) if the worker's degree of impairment is less than 30 per cent-the amount of the non-economic loss is zero;

(9) Where compensation has been paid under this section for an impairment resulting from an injury or under section 98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or section 98 or 98A.

Sections 82 to 104B are all in Part 4. Section 104B establishes a procedure for dealing with claims for compensation under section 98C.

63. The Master found that the applicant had shown three grounds for review of the decision, namely:

(a) the Tribunal misconstrued sections 91 and 98C of [the Act] as requiring it to reduce its assessment of the impairment at 50% by reason of its apparent conclusion that 30% of the impairment was not directly caused by the accepted injury, to 20%. As it concluded that work had made a substantial contribution to the accepted injury, it should have assessed the impairment that resulted at 50% without reduction of the assessment by reason of an apparent conclusion that 30% of the impairment was not directly caused by the accepted injury.

(b) the Tribunal misconstrued sections 91 and 98C of [the Act] as requiring the Tribunal to assess only impairment caused "directly" by the accepted injury, rather than impairment caused both directly and indirectly by the accepted injury.

(c) the Tribunal failed to provide adequate or sufficient reasons for its decisions.

No request was made under section 5 of the ALA for the amendment of the grounds or the allowance of additional grounds.

Ground (a)

69. Section 98C(1) of the Act gives an entitlement to compensation "in respect of an injury resulting in permanent impairment as assessed in accordance with section 91". The compensation is in respect of the injury resulting in permanent impairment as assessed. That is, it is the assessment of the results of the injury in terms of the degree of impairment which determines the rate of compensation.

72. In this case there is evidence from the report of Doctor Chan, her treating general practitioner at the time, that the applicant had had a breakdown and developed a psychiatric illness in 1996 when she was working with Telstra, and that since then she had been seeing a psychiatrist and had been on medication. However, the "injury", in respect of which the claim was made which led to this proceeding, occurred in 1999, when the applicant was employed by her own company as a courier driver. Thus what is to be assessed on that claim is the results of that injury. There is some suggestion in histories given by the applicant, as recorded in the medical reports, that compensation was paid to her in respect of the 1996 episode. However, the position is not clear, and the Panel made no finding on that point. There is no material from which I could conclude that that episode was at the time found to be compensable. In any case, as the applicant was at the time employed by a Commonwealth instrumentality, any entitlement to compensation would have arisen under the Commonwealth Employees Rehabilitation and Compensation Act 1988 and not under the Act, and therefore section 98C(9) has no relevance to this matter.

75. The assessment is to be "in accordance with section 91" and section 91(7)(c) requires that "impairments from unrelated injuries or causes are to be disregarded in making an assessment". The question is, "unrelated to what?" It would appear to me that that provision is concerned with injuries or causes which are unrelated to the injury the results of which are being assessed; that is, the injury in respect of which the claim was made. The logic of that provision is thus that compensation, in respect of a particular claim under section 98C, is, by virtue of section 91(7)(c), to be paid only in respect of the results of the employment out of or in the course of which the injury sought to be compensated arose and which was a significant contributing factor to that injury, in terms of section 82(1). In particular, I can see no other meaning to be given to the expression "impairments from unrelated causes". The cause of an impairment must be related to that impairment. The expression cannot be intended to mean "causes of an impairment which are unrelated to that impairment". Nor can it be intended to mean "causes of an impairment of the worker which are unrelated to the worker". The applicant's previous history of psychiatric illness was related to the applicant and related to her psychiatric condition, but was not related to the injury of 12 February 1999. Thus, in making the assessment of the results of the 1999 injury in terms of the degree of the applicant's impairment, any impairment resulting from that previous history is to be disregarded.

78. The only authority on section 91(7) to which I was referred was the decision of Osborn J in Del Borgo v Nisselle [2]. Mr Bingham submitted that that case was on all fours with the present matter. However, in Del Borgo the worker had been employed by the same employer at all relevant times, and the claim was a claim for industrial deafness, which has its own special characteristics. On both of those grounds, I find that decision not to be applicable to the matter before me.

81. Mr Bingham referred to the judgments of Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [3] and of the full High Court in Calman v Commissioner of Police [4]. However, both of those passages relate to the ascertainment of partial or total incapacity rather than to the assessment of the degree of impairment; and in neither case was the Court concerned with any provision corresponding to section 91(7)(c) of the Act.

84. Accordingly, I find that it was open to the Panel, on the material before it, and applying the relevant statutory provisions, to find, as it did, that the applicant's degree of psychiatric impairment was 50%, but that only 20% of that impairment resulted from the injury of 12 February 1999 in respect of which the claim was made. Ground (a) accordingly fails.

88. There is no indication in the reasons that by the use of the word "directly" the Panel intended to draw a distinction between direct and indirect results of the injury. My own impression is that that word was employed to emphasise the contrast drawn between the percentage of the applicant's impairment which the Panel found to be the result of the injury and the balance of her impairment, which it found not to be the result of the injury. This is a case for the application of the principle enunciated by the Full Court of the Federal Court in Collector of Customs v Pozzolanic [5] and approved by Brennan, Toohey, McHugh and Gummow JJ in the following terms in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [6] :

It was said [in Pozzolanic] 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.

95. The nature of the reasons which a medical panel under the Act should provide for its decisions was considered by the Court of Appeal in Masters v McCubbery [7] where Winneke P said [8] :

. . . medical panels . . . are not obliged to overwhelm themselves with the provision of elaborate reasons. . . . they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the Court to see that they have addressed their mind to relevant matters and have not acted unreasonably.

Callaway JA referred to "the kind of reasons that section 8 [of the ALA] requires" in the following terms [9] :

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.

101. I am satisfied that the reasons given by the panel satisfy these tests. Ground (c) accordingly fails. The Master's implied order will be discharged. Counsel may wish to make submissions as to costs.

[1] [1980] HCA 13; (1980) 144 CLR 13 at 35

[2] [2002] VSC 368

[3] [1938] HCA 70; (1938) 61 CLR 120 at 129-130

[4] [1999] HCA 60; (1999) 167 ALR 91 at 101

[5] (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ

[6] [1996] HCA 6; (1996) 185 CLR 259 at 272

[7] [1995] VICSC 209; [1996] 1 VR 635