Plaintiff v Defendants

Supreme Court of Victoria|2007-07-06|Before: WILLIAMS, J

ADMINISTRATIVE LAW - ACCIDENT COMPENSATION - Questions referred to Medical Panel under s 45 Accident Compensation Act 1985 - Judicial review - Application for relief in nature of certiorari - Misstatement by Medical Panel of history provided by worker - Whether irrelevant considerations taken into account - Whether failure to take relevant considerations into account - Adequacy of reasons

2 Mr Tralongo also seeks orders for a determination of the medical questions by a differently constituted panel.

3 The medical questions relate to injury to Mr Tralongo's back, left lower extremity and left hip, stress, anxiety and depression and pain and suffering ("the injury") which he alleges he suffered in February 1996 whilst he was employed by the fifth defendant ("Schiavello").

4 Notwithstanding the statement of grounds in the amended originating motion by which the application is brought, counsel for Mr Tralongo now presses challenges to the medical panel's decision only on the grounds that it:

(a) failed to take into account relevant considerations;

(b) took into account irrelevant considerations; and

5 Mr Tralongo relies in support of his application upon his own affidavit sworn on 1 December 2005, and those of his solicitor, Mr Sammy Bektas, sworn, respectively, on 30 November 2005 and 1 December 2005.

6 There is no material filed by or on behalf of the medical panel. Its solicitor informed the Court that it would not appear at the hearing of the application and would submit to any order of the Court, adopting the course approved by the High Court in The Queen v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors[2].

7 Schiavello and its authorised insurer, the sixth defendant, ("CGU") were jointly represented by counsel. They did not file any material in response to the application. Counsel for Schiavello and CGU submitted that Mr Tralongo's affidavit could be received as evidence of what occurred before the medical panel, in the absence of any other record of its processes.

8 Accordingly, it is common ground that the Court should accept the uncontradicted evidence of Mr Tralongo as to what he told the medical panel when examined by its members.

9 Mr Tralongo argues that the errors by the medical panel lie in its misstatement, in the medical panel's reasons, of the history he gave it as to his alleged fall on stairs at his workplace in February 1996, his noticing of pain and its aggravation. The medical panel's reasons record Mr Tralongo providing an account of events which he denies he gave.

10 To the extent that the medical panel had regard to something he did not say, Mr Tralongo argues that it had regard to an irrelevant consideration. In so far as it failed to take into account what he did say, he contends that the medical panel failed to take account of a relevant consideration.

11 Mr Tralongo further submits that the medical panel erred by failing to give adequate reasons for its decision. He contends that it failed to explain how it dealt with the history it recorded, in the context of the material with which it had been provided. He argues that the medical panel also failed to deal with his alternative contention that the injury arose from the nature of his employment.

12 There is agreement about certain background facts which form the context in which the questions were referred to the medical panel.[3] That context is relevant to the issue as to the significance of the misstatement of Mr Tralongo's evidence.

13 Mr Tralongo is now 47 years old, having been born on 31 October 1959. Schiavello conducted a business of manufacturing office furniture. It employed Mr Tralongo as a forklift driver and process worker, on a casual basis, between early January and 13 March of 1995, and, full-time, from March 1995 to late December 1996 when his employment was terminated.

14 On 8 March 2000, over three years after leaving his Schiavello job, Mr Tralongo underwent an operation on his left hip. A cyst in the roof of the acetabulum was curetted and packed with bone from osteophytes removed from his left hip in that operation.

Mr Tralongo's 27 June 2002 compensation claim

15 On 27 June 2002, over two years after the March 2000 operation, Mr Tralongo claimed weekly payments and medical and like expenses and benefits under the Act. He claimed to have suffered injury, in the course of his employment by Schiavello, to his left hip, back and left lower extremity, as well as stress, anxiety and depression.

16 In his WorkCover claim form, Mr Tralongo stated that just before the injury he had been "walking on stairs from manager's office". In response to the question: "What happened unexpectedly?" he wrote: "slipped on steel stairs". In response to the question : "How exactly were you injured?" he wrote: "fell on stairs & nature of employment in particular duties jumping in and out of forklift and heavy lifting". He stated that he noticed the injury immediately and that he had ceased work because of the injury on 20 December 1996.

17 Mr Tralongo's claim was accompanied by a WorkCover Capacity Certificate dated 26 June 2002 from Dr Glassenbury from the Gladstone Park Medical Clinic. The certificate described Mr Tralongo's "injury/disease" as follows: "Fell down set of stairs in 1996 injuring (L) Hip". The diagnosis recorded was that of "Severe left Hip joint osteoarthritis". Dr Glassenbury certified that Mr Tralongo was unfit for any work duties from 26 June to 16 July 2002.

18 CGU rejected Mr Tralongo's compensation claim. It provided him with a statement of its reasons in the form of an attachment to a letter dated 27 November 2002 ("CGU's reasons"). CGU's reasons included the following :

Your employment was not a significant contributing factor to the claimed injury.
Your claimed injury did not arise out of or in the course of employment.
Your claimed injury was caused by a stress of a type which does not create an entitlement to compensation under the Accident Compensation Act 1985.
Your claimed injury has not resulted in or materially contributed to an incapacity for work.

19 CGU's reasons referred to an investigation of Mr Tralongo's claim which involved statements from Schiavello. Schiavello was reported to have asserted that it had no knowledge of the alleged injuries resulting from a fall down a set of metal stairs, because Mr Tralongo had not completed an "Injury Report" form.

20 CGU's reasons recorded that Mr Tralongo had been examined by two doctors, Dr Nitan Dharwadkar, a psychiatrist, and Mr Peter Battlay, a surgeon. Dr Dharwadkar concluded that he did not suffer from a psychiatric disorder. Dr Battlay had examined Mr Tralongo and had reported on 26 November 2002 that :

Mr Tralongo has developed disabling left hip pain, but having abandoned his employment in 1996, the hip was not investigated until two years later, and his operation took place four years later. I do not think that the described fall caused his osteoarthritis. The general nature of his duties would not have contributed to the development of the problem.

Employment was not a significant contributing factor.

21 CGU's reasons went on to record that it written to Dr Glassenbury, Mr Tralongo's treating practitioner, on 18 November 2002 seeking a medical report, but that it had not received any response.

22 After a conciliation conference on 5 August 2003 had failed to resolve the matter, Mr Tralongo filed a writ in the County Court on 2 March 2003, seeking compensation under the Act.

23 The statement of claim alleges that Mr Tralongo suffered an injury under s 5(1) of the Accident Compensation Act 1985, providing particulars of the injury in these terms:

- Pain, stiffness, numbness, suffering and discomfort.

24 The statement of claim attributes the injury to Mr Tralongo's employment "as a result of a specific incident including (sic) on or about February 1996 when Mr Tralongo fell on stairs located within the employer's premises". Alternatively, it claims that Mr Tralongo sustained the injury by way of gradual process as a result of the nature of his employment, within the meaning of s 82 of the Act " which included but was not limited to jumping in and out of a forklift and heavy lifting duties."

25 By their defence, dated 23 June 2004, Schiavello and CGU deny that Mr Tralango is entitled to compensation and refuse to admit the allegations of injury.

26 On 12 May 2005, on the defendants' application, a judge in the County Court referred the medical questions, which were couched in terms of the questions set out in the definition of "medical question" in s 5(1) of the Act, to the medical panel.

27 In late September 2005, Mr Tralongo attended medical appointments with the first, second and third defendants, on one occasion, and with the fourth defendant, on another.

28 The medical panel's Certificate Of Opinion stated its answers to the medical questions as follows:

Question 1. What is the nature of Mr Tralongo's medical condition relevant to the alleged injuries as pleaded in paragraph 6 of Mr Tralongo's Statement of Claim? (hereinafter referred to as the 'the said injuries').

Answer: In the Panel's opinion Mr Tralongo is suffering from constitutional osteoarthritis of the left hip and constitutional multi level lumbar disc degeneration, but these conditions are not relevant to the said injuries.

The Panel is also of the opinion that there is no intrinsic medical condition of the left lower extremity and no psychiatric condition relevant to the alleged stress, anxiety and depression injuries.

Question 2. Was Mr Tralongo's employment in fact a significant contributing factor to the alleged:

(c) injury being stress, anxiety and/or depression?

as a result of any, and if so, which, of the said injuries having regard to the definition of 'current work capacity' in Section 5 of the Accident Compensation Act?

(b) If 'yes' to (a)(i), is Mr Tralongo likely to continue indefinitely to have no current work capacity as a result of any, and if so which, of the said injuries having regard to the definition of 'no current work capacity' in Section 5 of the said Act?

29 Copies of the medical panel's reasons were provided to the parties' solicitors under cover of a letter dated 24 October 2005. The medical panel's reasons indicate that the medical panel arrived at its conclusions as to the answers to the medical questions having taken into account:

(a) the history given by Mr Tralongo to the members of the medical panel;

(b) the materials listed in a schedule marked "Enclosure A" to the medical panel's reasons; and

30 It is convenient at this point to refer to some of the materials in Enclosure A to which the medical panel stated it had had regard in reaching its decision.

31 Enclosure A referred to, amongst other things, the CGU reasons. The CGU reasons included the report that Schiavello knew nothing of the alleged injuries in the absence of an Injury Report from Mr Tralongo.

32 Significantly, Enclosure A also listed documents relating to Mr Tralongo's treatment by Dr Glassenbury and other general practitioners at the Gladstone Park medical Centre, as well as by the orthopaedic surgeon, Mr Hayden Morris. It listed reports from Dr Dharwadkar and another psychiatrist, Dr Dush Shan, Mr Battlay and other surgeons, Mr Ian Jones and Mr Hugh Hadley. Each of the medical practitioners reported a history taken from Mr Tralongo.

33 The material from the general practitioner's practice which was referred to in the Enclosure A list is extensive. I will only refer to parts of it.

34 It appears that, on 25 March 1996, Dr Owen Lu from the medical centre attended on Mr Tralongo and made the following note : "Fell onto R Neck 4/7 ago". More practice notes dated 1 December 1997 record left hip pain coming on suddenly at home and "Only mild LBP in past".

35 On 30 April 1998, Mr Morris, the treating orthopaedic surgeon, reports to Dr Sewell of the practice that Mr Tralongo had presented that day "having developed hip pain somewhere in 1997".

36 Dr Gerard Powell, an orthopaedic surgeon, records Mr Tralongo's "post traumatic arthritis in his left hip following a fall at work in 1996" in a letter to Dr Glassenbury dated 28 August 2003.

37 Dr Dharwadkar, examined Mr Tralongo at CGU's request on 25 November 2002. He records a history of a fall in the voice of Mr Tralongo:

In February 1996 - I feel (sic) down stairs - a steel staircase - walking down from the Manager's office. I hurt myself on the left hand side of the body. I didn't think nothing of it and kept working and kept jumping on the left hand side. ...

38 Mr Battlay's report to CGU, dated 27 November 2002, states the history taken from Mr Tralongo relevantly as follows:

He says that he fell at work in February 1996. He was coming down a set of stairs from the manager's office. He estimates that there were about ten to twelve steps there. He somehow tripped and fell down landing on his left side. He did not hit his head and was not unconscious. His injury he says was to his left hip. ...

39 Mr Battlay had taken an employment history relating to Mr Tralongo's work for Schiavello as a forklift driver who would have to get off the forklift frequently and sometimes climb on trucks or loads.

40 Mr Battlay concluded that he did not think that "the described fall" caused Mr Tralongo's osteoarthritis. Nor did he think that the general nature of his duties would have contributed to the development of the problem. He stated the opinion that employment was not a significant contributing factor to Mr Tralongo's left hip osteoarthritis.

41 Mr Battlay subsequently reported to the defendants' solicitors again on 1 September 2004, referring to the treating doctor's clinical notes. He referred to the description in those notes of Mr Tralongo's pain "coming on suddenly at home on 1/12/1997". He confirmed the history given to him of a work related traumatic injury of February 1996 which seemed to conflict with the history provided to the treating doctor.

42 Mr Battlay was of the opinion that the cyst excised in March 2002 was "an expression of the degenerative process rather than traumatic injury". He concluded that, although the fall may have occurred, "it sounds quite clearly as though the patent in his own mind did not associate the onset of his symptoms with that fall."

43 Mr Battlay expressed the view that, if the symptoms had come on spontaneously, they were unlikely to have been caused by the work-related fall.

44 Mr Tralongo also saw Mr Ian Jones, an orthopaedic surgeon. In a report dated 9 July 2004, Mr Jones described the history given by Mr Tralongo under the examination undertaken at the request of the defendants' solicitors on the previous day:

The patient stated that in February 1996 whilst in the employ of [Schiavello] he was walking down a long staircase from the manager's office at work when he slipped on a step falling backwards and slightly towards his left side. He stated that he was able to get himself up and "didn't think much about it". He resumed his normal job as a forklift driver.

45 Mr Jones concluded that Mr Tralongo suffered from severe osteoarthritis in the left hip and some reported mild degenerative disease affecting the L4/5 level of the lumbar spine. He stated the view that, although Mr Tralongo may have suffered the described fall in the February 1996, he did not believe that the fall was the cause of either his back or left hip condition. Nor did he believe that Mr Tralongo's employment with Schiavello continued to be a factor in either his back or left hip complaint.

46 Mr Jones was, subsequently, sent copies of Mr Tralongo's treating general practitioner's clinical notes, made at the time of a review on 1 December 1997. They recorded a history of pain coming on suddenly at home.

47 In a letter, dated 27 August 2004, Mr Jones reported to CGU's solicitors his opinion that, at most, Mr Tralongo had suffered a transient aggravation to either his back or hip as a result of the reported fall. He took into account that Mr Tralongo had returned to his normal job and had not sought treatment. He sated the opinion that he did not believe that Mr Tralongo's work had "generally been a factor in his condition".

48 The psychiatrist, Dr Dush Shan, reported to the defendants' solicitors by a letter dated 20 July 2004. The letter states that in 1996, Mr Tralongo fell down a flight of stairs from the manager's office. And that he believed that the fall occurred sometime in February.

49 Dr Shan recorded a subsequent history of sick leave taken because of "tiredness".

50 Mr Hugh Hadley, an orthopaedic surgeon, reported to Mr Tralongo's solicitors on 18 October 2004. He had been provided with copies of the reports of Mr Jones and Dr Shan. He recorded Mr Tralongo's account to him as follows:

He states that when he was at work for Schiavello in February 1996 he was walking down steel steps from the manager's office and when he was about half way down, his feet slipped forward, resulting in him falling onto the left side of his body. He states that he stayed on the steps, felt shocked and felt slight pain in the left side of his pelvis and in his left buttock.

51 Mr Hadley concluded that, "[a]s a result of falling on steel steps when he was at work for Schiavello in February 1996", Mr Tralongo had suffered a "left hip injury with aggravation to early osteoarthritis of his left hip with causing or aggravating cyst formation in his left acetabulum".

52 Enclosure A also referred to submissions to the medical panel from the defendants in the County Court as to disputed facts under s 65(6A) of the Act.

53 The defendants' submissions record a warning given to Mr Tralongo in relation to alleged poor performance and attitude. They state that he ceased work in December 1996, without having given notice of the alleged injury. The submissions also assert that Schiavello maintained that it had had no knowledge of Mr Tralongo having sustained any injuries before receiving the 27 June 2002 claim form. The submissions refer to the alleged lack of contemporaneous complaint of injury by Mr Tralongo to his treating medical practitioner.

54 The defendants' submissions continue as follows:

It is submitted that the plaintiff's allegations of sustaining an injury to his left hip and back in the course of his employment with the employer is not supported by the contemporaneous material.

55 The medical panel was also supplied with an affidavit of Mr Tralongo's cousin, Mr Victor Tralongo, sworn on 6 April 2005. He was employed by Schiavello between 1984 and 2001. He deposed to having heard of the fall from "approximately 2 or 3 employees" who had witnessed it, although he had not seen it occur.

The misstatements in the medical panel's reasons

56 It was in the context of the material listed in Enclosure A which the medical panel said it had taken into account that it misstated the history given to it by Mr Tralongo.

57 Mr Tralongo's affidavit sets out, in italics, those passages of the medical panel's reasons which contain the misstatements, as well as his version of what actually occurred when he was examined by members of the medical panel:

Mr Tralongo told the Panel that he commenced employment as a forklift driver in 1995. He said that his work involved the operation of forklifts and frequent alighting from the forklift to label containers.

Mr Tralongo told the Panel that in about February 1996 he stumbled as he was walking down a set of stairs at work.

[I told the panel that I slipped and fell at a point about half way down a set of stairs leading down from the manager's office to the factory floor. I told the panel that I landed on the stairs, taking the fall on the left side of my body. Dr Malios did the bulk of the questioning of me during my first examination. The word 'stumbled' was never used or stated by me at any point during that examination. Dr Malios used the word 'stumbled' but I did not agree to that description.]

He told the Panel that he did not fall to the ground and was 'stunned', and experienced some discomfort following the stumble but did not seek any medical treatment.

[I told the panel that I fell on the stairs, but did not tumble down the rest of the flight of stairs to the factory floor. I stayed on the steps as I felt shocked and pain especially on the left side of my hip and in my left buttock.]

There was no history of any specific onset of pain in either his back or left hip region.

[I explained to the panel that I felt immediate pain to especially my left hip and left buttock.]

He said he was able to continue his normal duties as forklift driver.

[I told the panel that after my fall my symptoms in the left hip and buttock or back was slight but became aggravated by my work duties, especially walking about and jumping on and off the forklift.]

Mr Tralongo told the Panel that during 1996 he had periods off work due to the fact that he was not "feeling well" and experienced an onset of "tiredness" in his legs.

[I told the panel that this sensation, along with the left hip and back pain I had gradually got worse as time went by and that this wasn't a problem before the fall.]

Mr Tralongo told the Panel that during 1997 he did not return to any employment duties. He said that in December 1997 he attended his general practitioner with a complaint of back and left hip pain. He said that these symptoms had commenced gradually and he thought were associated with the symptoms he had experienced while working in 1996.

[I said to the panel that my symptoms started after my fall on the steps and slowly got worse with my walking and jumping on and off the forklift at work in particular. I explained that my left hip and back pain as it slowly worsened led me to see a chiropractor during 1997 which helped. I was not asked any further details about my chiropractic treatment. I explained that I saw my general practitioner in late 1997 after my back and hip pain increased again.]

58 The medical panel noted its review of medical imaging, including x-rays of Mr Tralongo's left hip, lumbosacral spine and pelvis at various dates between 3 December 1997 and 24 September 2004. It concluded that the investigations of the left hip demonstrated the presence of progressive osteoarthritis with pre-operative films showing acetabular cysts and an os acetabulum, not evident on those taken after the operation on 8 March 2000. The x-rays demonstrated the progression of the hip osteoarthritis to the panel. Multilevel lumbar degeneration was shown by the investigations of that area, without any evidence of significant neurological compromise.

59 The medical panel's reasons then stated its conclusions as follows:

The Panel concluded that [Mr Tralongo] is suffering from constitutional osteoarthritis of the left hip, but that this condition is not relevant to any alleged injury of the left hip.

The Panel concluded that [Mr Tralongo] is also suffering from constitutional multi level lumbar disc degeneration, also not relevant to any alleged injuries to the back.

The Panel concluded that there is no intrinsic medical condition of the left lower extremity....

Based on the history and progress of the symptoms together with the Panel's findings on examination, the Panel concluded that [Mr Tralongo's] employment was not in fact and could not possibly have been, a significant contributing factor to an injury to the left hip or back or to any aggravation, deterioration, exacerbation or acceleration of any underlying degenerative disease of the left hip or back.

60 Counsel for Mr Tralongo submits that the medical panel fell into jurisdictional error by ignoring the relevant consideration of Mr Tralongo's account of a fall in February 1996 and his reports of jumping on and off the forklift and heavy lifting. It also erred in the same way by relying upon the irrelevant material, being the misstatement of his account of the fall to it.[4]

61 Counsel submits that the medical panel's decision was materially affected as a result. He argues that the material indicates that the medical panel misrecorded a critical aspect of the history provided to it. Its decision is invalidated.

62 Counsel for Mr Tralongo contends that the medical panel breached its obligations under s 8 of the Administrative Law Act 1978. He also submits that the medical panel's reasons were inadequate, as they failed to explain why the medical panel had concluded that Mr Tralongo's employment was not, and could not possibly have been, a significant contributing factor in relation to his injury.[5] He maintains that the reasons do not explain the extent to which the medical panel accepted Mr Tralongo's assertions and the various histories he gave.

63 Counsel for Schiavello and CGU argues that Mr Tralongo has done no more than quibble with the language in the medical panel's reasons. He submits that the words "fall" and "stumble" clearly describe the same event. Any discrepancy between the record and Mr Tralongo's account is excusable as the type of imprecision or sloppiness of expression protected by the principle in Collector of Customs v Pozzolanic Enterprises Pty Ltd.[6]

64 In any event, counsel argues, any discrepancy between the accounts is too insignificant a basis for the inference of jurisdictional error because the medical panel has taken account of the various reports and opinions of the practitioners who recorded histories of a fall and heavy lifting. Counsel for the defendants maintains that the medical panel did no more than agree with the conclusions reached by those doctors and contends that there is no ground for thinking that, even if it had accepted that events occurred as described by Mr Tralongo, it would have given different answers.

65 He also argues that an error in the fact finding process will usually not amount to an error of law, because it will normally be an error within the jurisdiction of a tribunal. He submits that there is no authority of which the defendants are aware in support of the proposition that the incorrect recording of evidence amounts to a jurisdictional error, if there is evidence supporting the impugned finding.

66 Counsel further submits that there is no indication in the reasons that the medical panel had particular regard to the incorrect aspect of the record. He goes on to contend that it must be shown that what was taken into account must be an improper consideration which the medical panel was bound to ignore.

67 As far as the adequacy of the medical panel's reasons is concerned, counsel for the defendants cites the principles stated in Masters v McCubbery.[7] He submits that the medical panel's reasons were sufficient to enable the Court and the parties to see how its conclusions were reached,[8] being a succinct statement of its reasoning process[9] and providing "sufficient detail ... to show that the question referred to the panel ha[d] been properly considered according to law and that the opinion [wa]s founded on an appropriate application of the members' medical knowledge and experience".[10]

68 Counsel argues that the Court has applied the less demanding standard required for the reasons of a tribunal, as opposed to a court,[11] in other reviews of medical panel decisions.[12] It should treat the reasons in the same way.

69 Counsel for the defendants further reminds the Court that the inadequacy of reasons will not always amount to an error of law vitiating the subject decision. The tribunal must also be shown to have failed to exercise its powers in accordance with law.[13]

70 In this case, counsel for the defendants submits, the medical panel's reasons make it clear that it has found a constitutional arthritis of the hip, unaffected by anything which happened at work, which might have caused some temporary discomfort to Mr Tralongo.

71 Counsel for Mr Tralongo replies that the difference between the history recorded by the medical panel and what Mr Tralongo says is the actual history he provided, is real and significant. He further contends that the medical panel may well have thought it significant, in terms of Mr Tralongo's reliability, that he gave the medical panel a different history from those he had given to others.

72 I note first that I am not persuaded that there is no significant difference between the wording of the recorded history and the words used in Mr Tralongo's account in the history he gave. In my opinion, there is a clear difference in meaning between the words "stumble", which may or may not result in a fall, on the one hand, and "fall", on the other.

73 In my view, the medical panel's reasons indicate that it considered the history given by Mr Tralongo to be a relevant consideration in relation to its decision : it states that it formed its opinion with reference to, amongst other things, the history given by Mr Tralongo.

74 The materials before the medical panel, to which I have referred, indicate that there were significant issues between the parties as to whether or not the fall occurred and when Mr Tralongo became conscious of pain or sought treatment for his injury.

75 By forming its view, having had regard to a history which was not given, the medical panel has, in my opinion, ignored the relevant consideration of the account of events actually given by Mr Tralongo when he had been provided with the opportunity to tell his story. I consider that it was bound to take that history into account in reaching its decision. The medical panel has also relied upon irrelevant material, being the contents of a history which he did not provide. In my view, it was bound to ignore that material. The medical panel has, in each case, fallen into jurisdictional error.[14]

76 In my view, this situation is different from that in which a tribunal has merely failed to take into account evidence, which does not amount to a relevant consideration to which it is bound to have regard; see: Li Shi Ping v Milgea.[15] I note, further, that, in WAFP v Minister for Multicultural Affairs,[16] the Full Court of the Federal Court held that a tribunal's failure to refer to particular evidence amounted both to an error of law and to a jurisdictional error, because it constituted a failure to have regard to relevant material in the circumstances.

77 I am not persuaded by the argument to the effect that the medical panel's failure to have regard to Mr Tralongo's version of events can be disregarded as insignificant, because the medical panel has reached the same conclusion as that reached by medical practitioners who refer to Mr Tralongo having given similar histories to that which he actually gave to the medical panel.

78 The medical panel's decision is vitiated by its jurisdictional error and should be quashed.

79 Although it is not strictly necessary to decide whether the medical panel also erred in law by failing to give adequate reasons in compliance with s 8 of the Administrative Law Act 1976, I note my view that they were inadequate in the circumstances.

80 The medical panel was obliged to "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".[17]

81 Ashley J stated in Kammner v Griffin[18] that :

the reasons required of a panel in a particular case will be shaped by the particular issues in dispute and by the material of which the panel is seised. It is thus necessary, on an application for review, to carefully consider the context in which the opinion was reached and the reasons were given.

82 The medical panel's reasons were given in a context in which Mr Tralongo had repeatedly given a history of a fall at work in or about February 1996. However, not all the doctors reached the same conclusion as to the cause of his hip problem. Mr Battlay and Mr Jones concluded that his left hip osteoarthritis was unrelated to his employment. Mr Hadley, on the other hand, would appear to have attributed it to the alleged fall at work. In that context, it might be thought that the medical panel could have attached some significance to the fact that, when given the opportunity to describe the circumstances in which he sustained the injury, Mr Tralongo gave a history which did not involve a fall at work. The medical panel's reasons do not indicate how it treated the fact that he gave it an inconsistent history. They are inadequate in that regard.

83 The alternative claim that he had sustained the injury by reason of the jumping and heavy lifting was not expressly adverted to in the medical panel's reasons. However, the medical panel's reasons do refer to the nature of Mr Tralongo's duties as a forklift driver. Its conclusions indicate that it has given consideration to the effect of the nature of his work. On balance, I consider that they adequately deal with the alternative claim.

84 I will order that the medical panel's decision be quashed. In my view, the medical questions should, in the circumstances, be addressed by a differently constituted panel.

[1] See: Master v McCubbery (1996] 1 VR 635 at 659 per Callaway JA. Callaway JA held that it does not strain ordinary language to say that, in giving such an opinion, a medical panel decides a medical question.

[3] Agreed facts can be identified from statements of agreed facts provided to the medical panel.

[4] Citing: Minister for Immigration and Multicultural Affairs v Yusuf (2002) 206 CLR 323 at 351 per McHugh Gummow and Hayne JJ.:

[5] Citing Kammener v Griffin [2004] VSC 235.

[6] (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. See: minister for Immigration and Ethnic

Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[8][1995] VICSC 209; [1996] 1 VR 635 at 650 per Winneke P.

[9] [1995] VICSC 209; [1996] 1 VR 635 at 651 per Winneke P.

[10] [1995] VICSC 209; [1996] 1 VR 635 at 661 per Callaway JA.

[11] See: Hunter v TAC [2005] VSCA 1.

[12] Citing Brambles Industries Ltd v Nisselle [2005] VSC 82 and Calleja v Franet Pty Ltd & Ors [1999] VSC 202..

[13] Citing Repatriation Commissioner v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 445-6 per Brennan J.

[14] Craig v South Australia [1995] HCA 58; (1994-5) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[16] [2003] FACR 319 at [21] per Lee, Carr and Tamberlin JJ..

[17] Master v McCubbery [1995] VICSC 209; [1996] 1 VR 635 at 650 per Winneke P.

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

Compensation Act 1985

Administrative Law Act 1976

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (6)