Plaintiff v Defendants

Supreme Court of Victoria|2008-03-18|Before: OSBORN J

ADMINISTRATIVE LAW - Accident compensation Aggravation of injury - Dermatitis - Panel opinion as to current capacity to work - Relief sought in the nature of certiorari - Panel's conclusion open on evidence - No want of procedural fairness - No failure to have regard to relevant considerations - Reasons disclose a discernible path of reasoning - Reasons sufficient - Accident Compensation Act 1985, ss.5, 65 and 67 - Administrative Law Act 1978, ss.8 and .

1 The plaintiff ("employer") seeks an order in the nature of certiorari quashing the decision of a Medical Panel convened by the first defendant pursuant to the provisions of the Accident Compensation Act 1985 ("the Act") to determine medical questions concerning the fifth defendant ("the worker").[1]

2 The worker is a 65 year old male who was employed by the employer between 1986 and 2004 as a metal machinist. It is common ground that in that occupation he was exposed to contact with a coolant with the capacity to damage his skin.

3 The employer is a self-insurer pursuant to the provisions of the Act.

4 On or about 23 February 2001, while still employed by the employer, the worker lodged a claim under the Act for medical and like expenses in respect of occupational dermatitis. The employer accepted liability for that claim in May 2001.

5 Steps were taken to reduce the exposure of the worker's skin to further damage in his employment. In particular, he utilised gloves and forearm protectors.

6 In January 2004, however, he took a redundancy package.

7 In April 2005 (after the expiration of a period calculated in accordance with s.96 of the Act) the worker lodged a claim for compensation on the basis that he was unable to work as a result of occupational dermatitis and associated anxiety and depression which had developed over the last six to seven years of his employment.

8 The employer denied liability and the matter came before the Magistrates' Court at Melbourne. On 8 March 2006 Magistrate Wright referred a series of medical questions to the Medical Panel, pursuant to s.45(1)(b) of the Act.

(1) What is the nature of the worker's medical condition(s) relevant to the claimed injuries of occupational dermatitis and depression?

(2) Was the [worker's] employment with the [employer] -

a significant contributing factor to the production, aggravation, acceleration, exacerbation or deterioration of the [worker's] claimed injuries of industrial dermatitis and depression or similar injuries?

(4) If the [worker] has a current work capacity, what employment would or would not constitute suitable employment within the meaning of the Act?

(5) If the worker has no current work capacity, is that situation likely to continue indefinitely?

9 Section 65(6A) of the Act requires the submission of a document to the Medical Panel specifying:

(a) the injury to which the medical question relates; and

(b) the facts or questions of fact relevant to the medical question which the person referring a medical question is satisfied have been agreed and those facts or questions are in dispute.

As a machinist, his duties involved machining various parts for gear boxes and other similar metal parts. His work involved him coming into contact with a coolant manufactured by Castrol named "Superedge 7".
Over the years of his employment the skin on his hands and forearms came into contact with Superedge 7 from time to time. In the late 1990s the [worker] noticed that the skin on his hands and forearms was becoming like tissue paper and was very susceptible to minor trauma. His skin bled and bruised easily. (My emphasis)
On or about the 23rd February 2001 the [worker] made a claim for compensation for medical and like expenses in relation to his skin condition and this claim was accepted by the defendant and his medical expenses have been paid.
On or about the 10th October 2001 the [worker] made a claim for compensation pursuant to s.98C of the Accident Compensation Act for permanent disability involving disfigurement and scarring of his hands and forearms. This claim was accepted. He was assessed by Dr D Nurse, independent medical examiner, as having a 12% whole person permanent impairment, and received $14,420 by way of compensation pursuant to s.98C in about May of 2002.
Apart from one month towards the end of his employment, when the [worker] was placed on light duties performing office work, he has performed his normal work despite being certified for modified duties continuously since 2001.

The [worker] worked with continuing difficulty with the skin on his hands and forearms peeling, splitting, bleeding and bruising, and because of these difficulties he ultimately opted to accept a redundancy package which was offered to him on or about the 23rd January 2004. At the time the [worker] was still performing his normal duties, albeit with the difficulties of his skin breaking down as described above. ...

The [worker] has no current work capacity because he is unable to return to his previous type of employment due to his medical condition, and the requirement to constantly use his hands and arms for the purposes of machining various parts and components and will necessarily be exposed to oils, solvents, coolants, etc. from time to time. He contends that he has no capacity for suitable employment within the definition of the Act, having regard to his age, education, previous work experience (machining tools for 30 years or more), place of residence and medical condition.

12 In turn the employer made submissions to the Panel to the following effect.

The issue for determination by the Medical Panel is whether the [worker] has a "current work capacity" or alternatively "no current work capacity" within the meaning of those terms as defined in section 5 of the Accident Compensation Act.
In both instances an essential aspect of the definition is "a present inability arising from an injury such that the worker is not able to return to his pre-injury employment".
In the present case the worker is not so disabled, but in fact did return to his pre-injury employment (with the provision of appropriate protective equipment), and continued in such employment from 2001 until being made redundant on 23 January 2004.
At that time the worker had the option to continue in his previous employment, under the auspices of "Silcar", the company which took over the defendant's Maintenance Service Shop operations, as did the other employees of the defendant who were made redundant at that time (see Statement of Ian Bright, 29 August 2005, p.1). He has not sought alternate employment since that time (report of Dr Stapleton dated 19 January 2006).
The [worker's] ability to engage in such employment is also demonstrated by the opinion of every medical expert qualified to comment upon his fitness for employment - including Dr Castle (report of 3 May 2004, p.6, and workcover certificates provided from 2001 to the present); Dr Stapleton (report of 4 March 2002, p.3); Dr Lowther (report dated 10 February 2006 and undated report); Dr Brenan (report of 13 December 2005, p.3); and Dr Nixon (report of 2 March 2006, p.3).
The [worker's] current unemployment does not arise from an inability to work due to injury, but from the plaintiff's voluntary decision not to seek continuing employment at the time of redundancy, and failure to seek employment thereafter.

13 On 27 July 2006 the Medical Panel answered questions (1), (2), (3), (5) and (6) as follows:

Question 1 What is the nature of the [worker's] medical condition(s) relevant to the claimed injuries of occupational dermatitis and depression?

Answer: The Panel is of the opinion that the [worker] is suffering from aggravation of dermatitis, relevant to the claimed occupational dermatitis injury and from an Adjustment Disorder with Depressed Mood, relevant to the claimed depression injury.

Question 2 Was the [worker's] employment with the [employer] -

a significant contributing factor to the production, aggravation, acceleration, exacerbation or deterioration of the [worker's] claimed injuries of industrial dermatitis and depression?

Answer: The Panel is of the opinion that the [worker's] employment with the [employer] was in fact a significant contributing factor to an aggravation of dermatitis and to the development of an Adjustment Disorder with Depressed Mood.

Question 5 Since 23 January 2004 (when the [worker] took redundancy) has the [worker] been capable of carrying out the duties that he was carrying out with the [employer] prior to that date?

Question 6 If the [worker] has no current work capacity is that situation likely to continue indefinitely?

14 It further issued a three page statement of reasons for opinion. It is those reasons which form the foundation of the employer's attack upon the Panel's answers.

15 The Panel was an expert tribunal constituted separately by a psychiatrist and two occupational physicians. Its reasons state that it formed its opinion by reference to:

(a) the documents and information supplied to it; and

(b) the history provided by the worker and the examination findings elicited by the Panel and examination of the worker on 11 July 2006.

16 The Panel's reasons set out the worker's employment history. They describe the exposure of his skin to coolant and machine oils when working for the employer. They further detail the history of development of dermatitis as follows:

The plaintiff said that he developed problems with the skin of his forearms and the back of his hands from 1999 onwards. He noted that the skin was becoming fragile, thin and would bleed easily. There was occasional bruising and flaking of the skin. He did not recall the skin becoming red or itchy at any time. The plaintiff said that he was seen by a company doctor and referred to an occupational physician and later an occupational dermatologist . He said that he was advised that the cutting oil had led to skin damage and that he should use a barrier cream and other mechanical means to prevent skin contact with the cutting oil.

The plaintiff said that he continued in this occupation until January 2004 but suffered increasing skin friability, bruising and flaking. He ceased work in January 2004 when redundancies were offered. (My emphasis)

The plaintiff produced examples of gloves and forearms protectors which he used throughout the later period of employment and photographs of his arms taken whilst he was employed. The plaintiff said that he continues to use this protective equipment when working on car engines or performing any work with chemicals in the garden. He stated that his skin condition had not improved since he ceased work. (My emphasis)

The plaintiff said that he now suffers easy bruising and friability of the skin over the forearms and dorsum of the hands. He is on no treatment for his skin condition and stated that he had never used topical corticosteroid creams or taken oral corticosteroid. (My emphasis)

17 The reasons also record that on examination of the worker the Panel noted extensive thinning and defatting of the skin of the forearms and dorsum of the hands. Small ecchymosis were present (discharges of blood into the subcutaneous tissues discolouring the skin) and there were multiple depigmented scars over the forearms and dorsum of the hands with a few scars on the neck and face.

18 The Panel noted the material safety data sheets provided in the supporting documentation[2] and the reports of the occupational dermatologist in the supplied documents. The Panel concluded that the worker was suffering from an aggravation of dermatitis relevant to the claimed occupational dermatitis injury.

19 The Panel also concluded the worker was suffering from an adjustment disorder with distressed mood relevant to the claimed depression injury. It did not consider his psychiatric condition affected his capacity for work.

20 Returning to the question of the worker's dermatitis the Panel concluded:

The Panel accepted the history of exposure to "Superedge 7" cutting oil and based on the findings on examination concluded that the plaintiff's employment with the defendant was in fact a significant contributing factor to an aggravation of dermatitis and to the development of an Adjustment Disorder with Depressed Mood.

The Panel also concluded that the plaintiff is incapable of carrying out the duties of his pre-injury employment with the defendant on the basis of his dermatitis and he has been incapable of carrying out his pre-23 January 2004 employment since that date.

The Panel took into account all aspects of the definition of "suitable employment" contained in the Act. The Panel noted the plaintiff's age, prior employment, education and work history. The Panel further noted that he was resident in the Mornington Peninsula and that no vocational assessment or occupational rehabilitation program had been provided. The Panel concluded that there is no work for which the plaintiff is currently suited and that he could perform on a consistent basis. He therefore has no current work capacity.

The Panel further concluded that it is unlikely that there will be a significant improvement in the plaintiff's condition and that he is likely to continue indefinitely to have no current work capacity.

21 The affidavit of a solicitor retained for the worker sworn 19 October 2006 establishes that the documents supplied to the Medical Panel were amended and amplified as a result of requests made on behalf of the employer.

22 The employer's present complaints traverse the Panel's response to this information by way of three complaints. First, it is said that the Panel denied the employer procedural fairness. Secondly, it is said that the Panel failed to have regard to relevant information before it. Thirdly, it is said that the Panel has not given adequate reasons for its decision.

23 Before turning to these questions it is desirable to say something with respect to the nature of the remedy sought by the employer, the relevant statutory scheme and the underlying tenor of the employer's complaints.

24 In Craig v South Australia[3] the High Court stated:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.[4]

25 A medical panel is a body susceptible to the grant of relief in the nature of certiorari.[5]

26 Certiorari may lie, inter alia, against a body such as a medical panel for a want of procedural fairness, a failure to have regard to relevant circumstances (as here alleged) or in respect of a decision not open to an administrative tribunal. It does not however lie with respect to a decision on the grounds that it was against the weight of the evidence. As the High Court emphasized in Craig's case, it is not an appellate procedure.

27 In Azzopardi v Tasman UEB Industries Ltd[6] Kirby P expressed the distinction between an error of law and error of fact as follows:

The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence.

28 In Craig's case the High Court further held that statements of reasons were not to be regarded as part of the record at common law and commented at p.181:

More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law.

29 In Victoria the common law is modified by the provisions of the Administrative Law Act 1978 (the "ALA"). Section 8 entitles a person affected by a decision made by a tribunal to request that tribunal to furnish a statement of its reasons for the decision. Section 8(4) requires a statement "adequate to enable a court to see whether the decision does or does not involve any error of law".

30 Section 10 provides that any statement of reasons made by a tribunal shall be taken to form part of the decision and accordingly to be incorporated in the record. If reasons are not adequate to enable a court to see whether the decision does or does not involve any error of law then pursuant to s.8(4) the court may order the tribunal to furnish within a specified time, a further statement of its reasons and if the order is not complied with the court in addition to or in lieu of any order to enforce compliance by the tribunal, "may make any such order as might have been made if error of law had appeared on the face of the record".

31 When a worker makes a claim for compensation pursuant to s.82(1) of the Act and that claim is denied and conciliation under Division 2 of Part III of the Act fails, the worker is entitled to bring proceedings in the Magistrates' Court. In turn, ss.43(3) and 45(1)(b) oblige the Court to refer a medical question to a medical panel for an opinion when requested by a party to do so.[7]

32 "Medical question" is defined by s.5 of the Act and includes:

A question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment.

33 The questions that may be referred to the Panel involve matters of both fact and law.[8]

34 The Panel's opinion is to be distinguished from its reasons.[9]

35 In Masters v McCubbery[10] the Court of Appeal held that a medical panel is subject to the obligation to provide reasons pursuant to s.8 of the ALA. This conclusion flowed from the fact that medical panels constitute a tribunal as defined by the ALA in that they are required to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

36 In considering the role of medical panels Winneke P highlighted the powers which they enjoy

To enable the medical panels to carry out their statutory functions, the Act equips them with a range of powers: s65. As I have pointed out, the panel can call upon the worker to attend for examination and investigation; it can call upon him to answer questions and supply documents (s65(5)); although the worker's attendance before the panel is required to be "in private" the panel can, if it so desires, permit another person to be present; it has an entitlement (with the worker's consent) to summon "medical service providers" to answer questions and provide relevant documents. Although the Act contemplates that the panel is to act "informally" it is entitled to inform itself on any matter in any manner it thinks fit. Notwithstanding that the Act invests the panel with these powers in terms which are permissive and not compulsive, s67(4) provides that, if a worker unreasonably refuses to comply with the panel's requirements, then his right to compensation will cease until the worker complies.

In my view it can be seen that the legislature did intend to create the medical panels as an alternative method of dispute resolution to the court. ...

This regime of dispute resolution was undoubtedly intended by the legislature to cut the costs of the compensation system by providing non adversarial means, where possible, of settling disputes. It is an obvious incident of that intention that the medical panels have the power to make conclusive decisions affecting the rights of the parties, in those cases where the court has referred questions to them.

Notwithstanding, it is my view that such is the nature of the powers conferred on the medical panels that it would be expected that in exercising such powers they would be under a duty to act with fairness.

Was It Open to the Panel to Conclude As It Did?

37 Although the terms of the originating motion do not challenge the Panel's decision on the basis that it was not open to conclude as it did, this proposition reflects the employer's underlying position with respect to the question of capacity to work. Further, the grounds of the motion were at times pursued in terms which directly reflect this premise. Thus, it was submitted that the Panel must have failed to have regard to relevant matters because "the opinion and reasons of the Panel are not logically consistent with all relevant matters having been taken into account".

38 It is, therefore, convenient at the outset to address the fundamental question of whether the Panel's conclusions may be regarded as open to it having regard to the material before the Court.

39 The Panel reached four critical conclusions of fact:

(2) That condition became "aggravated" over time, which I take to mean increased in the severity of its consequences.

(3) The worker was not fit for his pre-redundancy duties at the time he took redundancy.[11]

(4) The worker did not have the capacity to work in the relevant sense at the date he was examined.

40 It was not in issue that the worker had contracted occupational dermatitis during his employment with the employer. His initial claim for that condition was accepted and thereafter he was certified by Dr Castle, occupational physician, as fit to work "subject to the restriction that he must wear impermeable fingertip to elbow skin protection when working with coolant".

41 It was open to the Panel to conclude that the worker's skin condition became aggravated over time.

The medical reports generally describe the worker's skin as fragile and susceptible to continuing trauma, reflecting the agreed facts referred to above.
There is reference to the fragility of the skin in the reports of Dr Nixon, the occupational dermatologist.[12] She ultimately says:[13]

Mr Jones has an underlying susceptibility to develop thin, fragile skin, which forms scars in response to minimal trauma. When he was working this resulted in frequent cuts which caused scarring.[14]

Dr Stapleton, plastic surgeon, refers to the skin as "very fragile".[15]
Dr Castle, occupational physician, refers to the skin as "very fragile and having "extreme fragility".[16]
Dr Nixon had expressed the initial opinion in 2001 that it would be preferable that he be given other duties but this did not occur.
The worker had aged since first diagnosed and was by 2006 a 63 year old man.
There is reference in the medical reports to the probability of deterioration of the worker's skin[17] and the fact of deterioration.[18] Dr Nixon expressly found in 2006 that his condition was "more marked" than when she had previously seen him.
The worker himself described a progressive deterioration in his skin condition.

• A number of the medical reports including that of a psychiatrist describe the worker as an honest man.

The Panel were able to examine the state of the worker's skin for themselves and compare direct observations of the worker's skin with the description of his condition over time in the medical reports.

42 It was also in my view open to the Panel to conclude the worker was not fit to work as a machinist at the time of his redundancy:

This question fell to be decided in the context of the process of "aggravation" and deterioration referred to above.
The certificates applicable to the worker immediately prior to his redundancy had their genesis in earlier examinations and opinions of Doctors Nixon and Castle.
During the last month prior to redundancy the worker was on light duties doing office work.
The worker's evidence was that he suffered material difficulties in the period leading up to his redundancy.
The medical reports describe very fragile skin highly susceptible to minor trauma in this period.

43 There are differences of medical opinion in the reports provided to the Panel concerning the employability of the worker since redundancy. I accept that on one view the weight of the evidence favoured the employer but this question ultimately fell to be assessed by the Panel in the light of the evidence as a whole.

Dr Nixon initially said it would be preferable if he were placed on other duties.[19] She ultimately[20] says:[21]

When Mr Jones stopped working he was classified as performing modified duties, and working with protection of his forearms from trauma. I believe he is capable of performing these duties with the continued protection of his forearms.

I would agree that he does have some permanent impairment, in the order of 10%, which relates to both the unsightly appearance of his skin with scarring, and his susceptibility to easily tear his skin resulting in cuts and potentially causing infections.

Dr Brennan, a dermatologist,[22] disputes the link between the worker's skin condition and his occupation but says:[23]

The skin changes present on examination of Mr Jones are irreversible and the only restriction of his employment would be that any minor or even trivial trauma will cause bruising and breakdown in his skin, otherwise he would be able to carry out his normal duties with the appropriate protective equipment.

In his report of 18 July 2005 Dr Castle, the occupational physician stated:
1. Richard Jones' current capacity for pre-injury duties/any suitable duties/the duties in any job offer, with reference to any work restrictions?

These are the same as I have put on my certificate. Restrictions are that he must wear impermeable fingertip to elbow skin protection when working with coolant. He needs to protect his arms from minor trauma. Apart from that, he is fit for any duties which are suitable. He is not fit for his pre-injury duties. He needs to avoid exposure to coolants generally, and Super Edge 7 in particular.

Whether Richard Jones is currently able to work and if so what sort of work is suitable?

He is currently able to work, provided there is no exposure to coolant. However, as he has spent all of his working life as a Metal Machinist, and he is not suitable to return to these duties, it is unlikely he will be able to find work in other areas. (My emphasis)

44 The question on which the employer joined issue before the Panel was the question of current capacity to work.

45 The Act defines "no current work capacity" in relation to a worker as meaning a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.

46 It further defines "suitable employment" as meaning employment in work for which the worker is currently suited (whether or not that work is available) having regard to the following -

(a) the nature of the worker's incapacity and pre-injury employment;

(b) the worker's age, education, skills and work experience;

(d) the details given in medical information including the medical certificates supplied by the worker;

(f) if any occupational rehabilitation services are being provided to or for the worker.

47 It is apparent the Panel had regard to the elements of these definitions. In addition to considering the degree of the worker's disability it was plainly open to the Panel to have regard to the worker's age, history of employment, place of residence and lack of training in reaching the conclusion that it did.

48 It was open to the Panel to conclude as it did concerning the worker's current work capacity. Whether it should have done so was a matter of fact and was a question for it. In particular the weight to bring to difference pieces of evidence was a matter for it.

49 The employer complains that it was denied procedural fairness because the worker without notice to the employer produced to the Medical Panel examples of gloves and forearm protection provided by the employer to the worker and still utilised by him. Further, it is alleged the worker made statements about such protection.

50 On the face of it, the production of the protective devices was in part directly responsive to the employer's own submission that the worker had returned to his pre-injury employment and continued in such employment from 2001 until January 2004 with the benefit of the protection devices.

51 Further, it is not apparent from the Panel's reasons that beyond producing the examples of protection devices referred to, the worker in fact made any statement as the originating motion alleges in respect of:

(ii) the use and effectiveness of the upper limb protection in preventing the cause, aggravation, acceleration, exacerbation or recurrence of any medical condition suffered by the fifth defendant;

(iii) the use and effectiveness of the upper limb protection by the fifth defendant to undertake suitable employment and/or the fifth defendant's capacity with the provision of any other upper limb protection which might establish that the fifth defendant was able to return to his pre-injury employment or able to return to work in any suitable employment whether:

(a) employed by the plaintiff in work of a kind provided to the fifth defendant immediately before he ceased to be an employee of the plaintiff; or

(b) any suitable employment with an employer other than the plaintiff.

52 There is no proper basis from which to infer the worker did other than is recorded in the Panel's reasons:

The [worker] produced examples of gloves and forearms protectors which he used throughout the later period of employment and photographs of his arms taken whilst he was employed. The [worker] said that he continues to use this protective equipment when working on car engines or performing any work with chemicals in the garden. He stated that his skin condition had not improved since he ceased work.

53 I am at a loss to see how this conduct denied the defendant procedural fairness. It seems to me that the ordinary notion of a medical examination extends to examination of appliances routinely used by a patient in order to address a disability. Thus, it would not be beyond the bounds of a medical examination for a person suffering from injury to the eyes to produce spectacles utilised in respect of the injury, or for an amputee to produce a prosthesis.

54 This is not to say that if an employer had no notice the worker did utilise such devices a question of procedural fairness might not arise. But this is not that case. In the present case the worker simply produced protective devices supplied to him by the employer and to which the employer had itself referred in its submission to the Panel. The continuing use of such devices was an integral part of the worker's medical history especially his continued use of them when he needed to protect his arms during domestic activities. The state in which his skin was presented for examination had arisen despite the use of these devices.

55 The devices were not new facts. They were not new material in the sense referred to by Smith J in Jean Weerappah v Paul Nisselle & Ors:[24]

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 the above case, 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.

56 On a hearing raising questions of natural justice evidence additional to the record may be adduced.[25] There is no evidence that the gloves and forearms protectors produced were anything other than some of those provided by the employer to the worker as he said.

57 It therefore seems to me the first complaint must fail.

(a) There is no evidence of statements of the sort complained of in the originating motion.

(b) The mere production of the devices was a legitimate part of a medical examination.

(c) There is no basis for concluding that the production of the devices prejudiced the employer in any way or raised facts which are contradicted by other evidence.

58 Procedural fairness is not to be understood as requiring the giving of ritual notices but as requiring substantive fairness in the context of the procedure prescribed by the legislator.[26]

59 The second ground of the originating motion was originally expressed as a sub-ground of procedural fairness but as counsel for the employer confirmed, it is intended to stand alone. That ground is that the Panel erred in law by:

(b) failing to take into account relevant considerations in regard to matters to which the Medical Panel is bound to have regard in the formation of its opinion namely:

(i) that the fifth defendant immediately prior to ceasing work with the plaintiff the fifth defendant [sic] was capable of undertaking suitable duties with the use of upper limb protection of kind [sic] provided to the fifth defendant by the plaintiff; or

(ii) the specialist medical and other evidence provided to the Medical Panel establish that the fifth defendant had a capacity to undertake suitable duties provided by the plaintiff to the fifth defendant with the use of upper limb protection.

60 A failure to take into account relevant considerations may give rise to an error of law either because a panel misconceives in principle what is relevant (see e.g. the debate in Mountain Pine Furniture Pty Ltd v Taylor[27]) or fails as a matter of fact to address a matter which is relevant.

61 It may be seen that both the matters raised by the employer above, therefore involve conclusions of fact and for the reasons I have already set out it was open to the Panel to reject them and reach contrary conclusions. It is not for this court to form a view of the weight of the evidence bearing upon them.

62 Further, there is no evidence that the Panel failed to take the evidence concerning these matters into account. It expressly records that it had regard to the documents referred to in enclosure A to the reasons. This material includes the defendant's submissions which express as contentions both the matters referred to. It also contains medical reports recording the relevant work history and the medical opinions relating to the worker's capacity upon which the employer relies.

63 It is plain from its reasons that the Panel was aware that prior to taking redundancy, the worker did work with gloves and forearm protection. The Panel also specifically stated that it noted the worker's "work history" in reaching its conclusions.

64 It is also plain from its reasons the Panel had regard to the opinion of Dr Nixon, the occupational dermatologist. It is this opinion which was central to the employer's case on the facts.

65 It cannot be inferred from the Panel's reasons that it failed to have regard either to the suitability of the duties previously offered to the worker during the course of his employment, or the medical evidence which was before it.

66 So far as it is submitted the opinion and reasons of the Panel are not logically consistent with all relevant matters having been taken into account, I do not accept this is so, when for the reasons I have given, it is clear on the material before the Panel, that it was open to it to reach the conclusion it did. Whether it was correct to do so is not for me to decide.

67 Failure to elaborate particular matters which the employer contends support the contrary view to that taken by the Panel does not itself demonstrate error.[28] The reasonable inference may be that the Panel adverted to these matters but preferred other evidence.

68 The proper test to be applied has been formulated in appeals on questions of law from Magistrates' Courts and is that stated by Sholl J in Yendall v Smith Mitchell & Co Ltd[29]; adopted by Adam J in McConkey v McConkey[30]. The test was restated by Sholl J in Harrison v Mansfield[31] after referring back to Yendall v Smith Mitchell & Co Ltd:

The true principle ... must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.[32]

69 In the present case the Panel's reasons do advert to the worker's work history and as I have said neither that history nor the medical reports necessarily compel the conclusion for which the employer contends.

70 The third ground of challenge to the Panel's decision is the alleged failure to provide sufficient, adequate and proper reasons. As I have said, s.8(4) of the ALA contemplates that such reasons must be adequate to enable a court to see whether the decision does or does not involve an error of law.

71 The nature of the reasons required was addressed by the Court in Masters v McCubbery.[33] Winneke P stated at 650-651:

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 (ALA) upon any "tribunal" which is required to accord natural justice in arriving at its "decision": see s 8(4) of the ALA. ...

If I am correct in coming to the view which I have that medical panels are required to accord natural justice, they are not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out 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: ... (My emphasis)

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.

73 Callaway JA dealt with "the kind of reasons that s.8 requires" as follows:

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.

74 The extent of reasons required in a particular case will necessarily vary with the questions in issue. As Ashley J stated in Kamener v Griffin:[34]

... 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.

75 It must be recognised, however, that the reasons cannot be expected to be the equivalent of judicial reasons. In Clarke v National Mutual Life Insurance Ltd[35] Forrest J extracted a series of principles from the authorities bearing on the proper approach to reading such reasons, including the following:

The Panel is an expert tribunal, whose members are chosen for their experience and their findings need to be viewed in that light (cf a non-expert tribunal).
- The reasons provided are those of a Tribunal not that of a judicial body and must be viewed from that perspective.
- The reasons of the Panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.
- The reasons of an administrative decision maker such as the Panel are meant to inform and an over zealous judicial review is to be eschewed. The reasons should not be over analysed.

• Judicial review should not be used to conduct a merits review.

The reasons of the Panel do not need to advert in detail to those matters it has taken into account.[36]

76 The most significant of these principles for present purposes is that emphasised by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[37] that the reasons of an administrative decision maker are not to be scrutinised in a manner which is over zealous seeking to discern inadequacy.

77 Nevertheless, it is implicit in the above formulations from McCubbery of the relevant requirements, that the Panel's reasons must disclose what Ashley J has called the route that led to its answer[38] and Forrest J has described as a discernible path of reasoning.[39]

78 In the present case I take that reasoning as disclosed to be that:

(a) having regard to the history of exposure to Superedge 7 cutting oil and the plaintiff's problems with the skin of his forearms and back of his hands since 1999;

(b) including increasing skin friability, breaking and flaking during the last period of his employment when he utilised gloves and forearm protection; and

(d) having regard to the relevant medical reports including particularly that of the occupational dermatologist (Dr Nixon); and

(e) the material safety data sheets demonstrating the occupational health risk occasioned by the coolant used by the worker; and

(f) following its examination of the damage to the worker's skin;

(g) that the worker's employment with the employer was a significant contributing factor to an aggravation of dermatitis;

(h) that the worker is incapable of carrying out his pre-injury employment or his pre-23 January 2004 employment because of his dermatitis;

(i) the worker has no current work capacity having regard to his age, prior employment, education, work history, place of residence and lack of vocational assessment or occupational rehabilitation; and

(j) the worker has no work to which he is currently suited and that he could perform on a consistent basis.[40]

79 In my view the reasons read as the reasons of a medical panel do provide a succinct statement of why the Panel came to the conclusions which it did, sufficient to enable the parties and the Court to see that the Panel addressed their minds to relevant matters and have not acted unreasonably.

80 In my view it is not open in the present case to regard the Panel's reasons as failing the tests stated in McCubbery if it is accepted for the reasons I have set out above:

(a) that its reasons do disclose a discernable path of reasoning;

(b) that its conclusions were reasonably open to it; and

81 I accept that there is a class of cases where it will be necessary for a medical panel to explain why it did not accept medical opinion contrary to that which it has itself formed as to a medical matter.[41]

(a) the Panel's conclusions could not be regarded as reasonably open to it without identifying a rational basis for rejecting such opinion; or

(b) where such opinion is prima facie determinative then in the absence of explanation it will be open to conclude it was not taken into account.

83 I respectfully agree with the observations of Kaye J in Amendola v Coles Supermarkets Australia Pty Ltd & Ors:[42]

There can, however, be no inflexible rule whether a Panel needs, in its reasons, to advert expressly to a contrary opinion stated in a report put before it. The question whether a Medical Panel is required to respond specifically to a contrary opinion contained in a medical report must depend on the particular circumstances of the case. More often than not, the Panel's reasons for rejecting a contrary opinion may be inferred from the reasoning contained in the Panel's decision.

84 The present case is one which falls within that broad class of cases where the reasons for rejecting relevant inconsistent opinions may be inferred from the Panel's own reasoning.

85 This is not a case of a "new" diagnosis like Moyston Court Fisheries Ltd v Malios & Ors[43], or of some other conclusion which was not responsive to the relevant considerations before the Panel. It was one where the point in issue was the current degree of incapacity resulting from an underlying condition about which there was a substantial body of medical agreement. The Panel's reasons responded to the matrix of evidence before it and the conclusions it reached were reasonably open to it for the reasons it stated.

86 The employer makes the following criticism of the reasons:

2.5 There is nothing in the reasons to ascertain whether it was correct or not whether the plaintiff was capable of undertaking suitable duties with the use of upper limb protection of the kind provided to him by the defendant either at the date of redundancy on 23 January 2004 or at the date of the Opinion

2.6 The Certificates of Capacity provided by the treating general practitioner Dr Castle, referred to as item 13 in the Schedule of Attachments, certify the plaintiff as on the date that he took redundancy and thereafter as being fit to perform his normal duties with those restrictions. The Panel has not taken into account these key facts.

2.7 Further, the Panel particularly failed to take into account the medical opinions of the plaintiff's treating doctors: Dr Castle and Dr Nixon, who certified the plaintiff to be fit to carry out his normal duties with the use of protective equipment. There is no explanation or analysis of why the plaintiff could not perform these duties as at the date of the Opinion of the Panel nor is there reference to these medical opinions and the certificates contained in Submission 5 of the defendant's Submissions to the Panel.

2.8 Further, there is nothing in the reasons to indicate whether the statement of Ian Bright, Work Group leader of the defendant, was taken into account; nor the plaintiff's response to this Statement (see item 35 of the Schedule of Attachments as to the statement of Ian Bright).

87 I have already set out the medical opinions as to the worker's capacity for suitable employment, including that of Dr Castle (upon whom the employer places particular weight as the medical practitioner who certified the worker fit for modified duties) that the worker is not suitable to return to work as a machinist and is unlikely to find work in other areas.

88 I do not accept that the medical reports have the effect of expressing or requiring the uniform opinion for which the employer contends. Conversely, in my view they establish a clear context in which the Panel's findings were open for the reasons I have already explained.

89 It seems to me that the Panel was entitled to accept the worker's stated history that he continued his employment until January 2004 "but suffered increasing skin friability, bruising and flaking".

90 It was further entitled to accept his evidence that he now suffers easy bruising and friability of the skin over the forearms and dorsum of the hands. It was entitled to include his condition would not improve.

91 It was further entitled to form its own view of the state of the worker's skin on examination.

92 The above evidence fell to be understood in the context of the prior history of opinion upon which the employer places such weight and the possibility of continuing employment utilising forms of skin protection. The prior medical opinion was not in fact as definitively probative of the employer's case as it submits. It included the observations of Dr Nixon in 2006 that the skin changes she observed were more marked than previously (she having seen the worker in 2001) and the report of Dr Castle to which I have referred above as to the worker's lack of capacity for suitable employment.

93 The medical opinion evidence as a whole did not in my view justify the conclusion that the worker's skin was in the same condition when examined by the Panel as it had been throughout his employment on modified duties with the employer. Nor did it compel a conclusion that the worker had the capacity for suitable work.

94 Ultimately, the evidence logically permitted the conclusions stated by the Panel to be formed by way of independent opinion. Whether such conclusions should be reached was a matter of fact for the Panel. The matters stated form logical reasons for the answers given to the questions asked of the Panel. In my view such reasons are not defective in law. The employer's true complaint is that it disagrees with the conclusions reached and does so on the basis of its view as to the weight of the evidence.

95 It follows that the originating motion should be dismissed.

[1] Both the first defendant and the Panel members, being the second, third and fourth defendants, have indicated they will abide by the decision of the Court and take no active part in the proceeding.

"Prolonged repeated contact may dry and defat the skin, possibly leading to irritation and dermatitis."

[4] Ibid at 175-6 and see Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 463 [254] (Hayne J).

[5] See Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 (Callaway JA, 655).

[6] (1985) 4 NSWLR 139, 151; also see Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199 (Young CJ & McGarvie J).

[9] Lianos v Inner and Eastern Healthcare Network [2001] VSCA 53; (2001) 3 VR 136.

At a glance

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Judgment (223 paragraphs)

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Legislation Cited (2)

Cases Cited (6)