Plaintiff v Defendants

2 By a notice dated 4 August 2011, the plaintiff's entitlement to weekly payments and medical and like expenses under the Act was terminated with effect from 4 September 2011. In purporting to terminate the plaintiff's entitlements, the fifth defendant's claims agent asserted that:**

(a) the plaintiff's incapacity for work was not materially contributed to by an injury arising out of or in the course of his employment;

(b) the plaintiff's incapacity for work was not materially contributed to by an injury which entitled him to compensation;

(c) the medical and like expenses the plaintiff was claiming were not reasonable and/or necessary; and

(d) the medical and like services the plaintiff was claiming were not for an injury which entitled him to compensation under the Act.

3 By a further notice dated 4 August 2011, a request made on behalf of the plaintiff for payment for a right total right hip replacement was not approved. In this second notice, the fifth defendant's claims agent asserted that:

(a) the plaintiff's injury or illness was no longer considered to be work-related; and

(b) the total right hip replacement was not a reasonable medical and like expense "according to s 99 of the Act".

**4 Pursuant to s 55 of the Act, the plaintiff referred the decisions set out in the two notices dated 4 August 2011 for conciliation by a conciliation officer. On 11 October 2011, four medical questions were referred by the conciliation officer pursuant to s 56(6) of the Act to a medical panel for its opinion under s 67 of the Act.

5 A medical panel comprising the second, third and fourth defendants was convened by the Convenor of Medical Panels,[1] the first defendant, pursuant to Division 3 of Part III of the Act to give the panel's opinion in connexion with the four referred medical questions.[2] In December 2011, the panel gave a certificate of opinion dated 7 December 2011 recording its opinions in respect of the referred medical questions as follows:**

Q1. What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

The Panel is of the opinion that the worker previously suffered temporary right hip symptomatic exacerbation in the presence of underlying (non-employment related) symptomatic osteoarthritis of the right hip in the presence of a CAM lesion and femoroacetabular impingement but this temporary exacerbation has resolved and the Panel is of the opinion that the worker is not now suffering from any medical condition of the right hip relevant to the claimed injury.

Q2. What is the extent to which any medical condition resulted from or was materially contributed to by the injury?

The Panel is of the opinion that the worker's current medical condition of the right hip does not result from and is not materially contributed to by the claimed injury.

Q3. Does the worker's incapacity for work result from, or is it materially contributed to by, the (claimed) injury?

In the Panel's opinion any claimed incapacity for work does not result from or is it (sic) materially contributed to by the (claimed) injury.

Q4. Do you consider the medical services or proposed medical services namely, right hip replacement surgery, appropriate and adequate for the worker's injury and/or condition? Specify service and frequency if necessary.

Not Applicable.

**6 At the same time as it provided its answers to the medical questions, the medical panel provided reasons for its opinion.

7 In this proceeding, the plaintiff seeks an order quashing the decision of the medical panel and an order remitting the referred medical questions to a differently constituted medical panel. The plaintiff contends that the medical panel fell into jurisdictional error by failing to take into account considerations it was bound in law to consider when determining its opinion. Further, complaint is made in respect of the medical panel's reasons.[3]

8 Only the plaintiff and the fifth defendant took an active part in this proceeding. At trial, the fifth defendant opposed the granting of the orders sought by the plaintiff. While the first to fourth defendants appeared at trial to assist the Court, the first to fourth defendants, being content to abide the Court's decision save as to costs, ultimately took a Hardiman approach to the proceeding.[4]**

9 The medical panel commenced its reasons with a recitation of the issues as follows:

The Panel noted from the Referral that it is agreed that the worker sustained a condition affecting his right hip which the Workcover Agent accepted liability for as an aggravation to an underlying condition affecting the right hip. The Panel further noted that it is agreed that the worker is not fit to perform his pre-injury duties. The Panel also noted from the Referral material that the issues in dispute and reason for referral relate to the Workcover Agent's determination to reject funding for the right total hip replacement surgery and terminate entitlement to weekly payments and medical and like expenses by way of two separate notices both dated 4 August 2011.

10 The panel then went on to record the plaintiff's history. The history recorded includes:

The worker told the Panel that he was employed as a leading hand/storeperson for a major caravan manufacturer. He told the Panel that his work required a lot of heavy lifting and manoeuvring of materials to fit out caravans. He described having to physically move caravan walls which required him to lift, with a colleague, in addition to climbing ladders and using a forklift. He said he was unable to recall exact dates but said he noticed the onset of a "pulling feeling" in his right groin in mid 2009 which he said came on for no apparent reason and without history any of [sic] workplace incident or injury. He said he continued working and gradually, over time, he noticed increasing discomfort in his right groin which he said was intermittent initially but over time became more persistent. He said that he sought medical attention when the pain had progressed to a level where it was constant and increasingly severe.

...

The worker told the Panel that he has, more recently and a few months ago, noticed the gradual onset of pain in his left groin/hip which he said feels exactly the same as the onset of original symptoms in his right hip. The Panel noted that the onset of similar symptoms in his left hip has occurred spontaneously without history or injury or trauma and at a time when the worker is no longer working.

...

11 The panel's reasons then record that the panel conducted a physical examination. The findings of this physical examination are recorded. Then follows the panel's description of the diagnostic imaging and reports that were available to the panel. Following the description of the diagnostic imaging, the relevant part of the panel's reasons so far as this proceeding is concerned were set out as follows:

The Panel concluded that the worker is suffering from symptomatic osteoarthritis of the right hip in the presence of a CAM lesion and femoroacetabular impingement.

The Panel noted that the worker has diagnostic imaging evidence of bilateral CAM lesions which the Panel considers would have predisposed the worker to femoroacetabular impingement and early degenerative change. The Panel further noted that there was no specific history of focal injury to the worker's right hip while working with the onset of right hip symptoms arising gradually, without incident, and progressively worsening over time. The Panel similarly noted evidence of a CAM lesion involving the left hip and the onset of similar left hip symptoms without history of injury and while the worker is no longer working.

The Panel considered however that the presence of the underlying right hip disorder was associated with symptomatic exacerbation in relation to work activities but this would have been activity related symptomatic exacerbation only and which, in the Panel's opinion, did not affect the progression of the underlying right hip condition in any way. The Panel further considered that any symptomatic exacerbation was temporary and would have resolved on cessation of the work activities.

The Panel therefore concluded that the worker suffered temporary right hip symptomatic exacerbation in the presence of underlying (non-employment related) symptomatic osteoarthritis of the right hip in the presence of a CAM lesion and femoroacetabular impingement but this temporary exacerbation has resolved and any symptoms currently experienced are attributable to the worker's underlying condition which is of constitutional origin and nature.

The Panel therefore also concluded that the worker's current medical condition of the right hip and any current incapacity for work does not result from and is not materially contributed to by the claimed injury.

**12 The plaintiff's principal complaint relates to the statements in the panel's reasons that the plaintiff's right groin symptoms "came on for no apparent reason and without history of any workplace incident or injury" and "that there was no specific history of focal injury to the worker's right hip while working with the onset of right hip symptoms arising gradually, without incident". In making these statements, the plaintiff contends the panel failed to take into account relevant considerations which it was bound to take into account - namely, information given to the panel by the plaintiff during the course of the panel's examination of the plaintiff.

13 In an affidavit sworn 10 February 2012, the plaintiff describes his examination by the panel and the history given by him as follows:**

1. I saw three doctors from the Medical Panel at the same time on 21 October 2011. They asked me about my work and the injury to my hip.
2. I told them that I worked for Windsor Caravans as a storeman. My job required me to do lots of heavy work, including heaving lifting and awkward maneuvering of heavy caravan components.
3. I have read the Medical Panel Opinion and Reasons for Opinion dated 7 December 2011. The Reasons state that the history I gave to the Medical Panel in relation to my injury as "He said he was unable to recall exact dates but said he noticed the onset of a "pulling feeling" in his right groin in mid 2009 which he said come on for no apparent reasons and without history of any workplace incident or injury". I did not give this history, in respect of my injury, to any of the doctors who formed the Medical Panel.
4. I told the doctors who formed the Medical Panel that I felt pain in my groin area on a specific day in November of 2009, I had trouble remembering the exact date but I told them that the pain came on whilst I was trying to lift and move a heavy caravan component. I explained that I saw my doctor and it was initially thought that I had a hernia or strain, but was later found to be a problem with my hip.
5. The Reasons for Opinion provided by the Medical Panel do not accurately record the history of my injury or the information that I provided to the doctors from the Medical Panel on 21 October 2011.

14 In an affidavit sworn by the plaintiff's wife, Maria Barnett, Mrs Barnett provides support for the plaintiff's description of what happened when the plaintiff attended the medical panel. Mrs Barnett deposes:

During the interview, Carlton [the plaintiff] was asked how his injury had happened. He told them that it happened moving walls into the bay. The panel also asked him if there was a day in particular that he felt pain and he said that there was, and that he'd reported it to the OH&S guy. I don't remember the words that were used, but I remember the conversation.[5]

**15 Senior Counsel for the fifth defendant cross-examined the plaintiff. The plaintiff was a quietly spoken witness who impressed me as doing his best to answer the questions asked of him in cross-examination. That said, it was an uneven contest between an intelligent and articulate cross-examiner and a witness who failed to complete year 10. However, notwithstanding the skill of the cross-examiner, the plaintiff maintained the version given by him in his affidavit. While the fifth defendant also sought to cross-examine Mrs Barnett, this was not pursued as Mrs Barnett was admitted to hospital on the eve of the trial.[6]

16 At trial, the fifth defendant contested the plaintiff's evidence concerning the history the plaintiff claimed to have given to the medical panel. If one did not have experience to the contrary (about which I will say more below), one might have thought that such a matter might be resolved by the production of a tape or video recording of the examination. However, as is notorious in cases of this kind, that was not to be: no tape or video recording was made of the plaintiff's examination - notwithstanding the potential for the absence of such a tape to be productive of, and conducive to, disputes of the present kind.

17 Apart from the plaintiff and his wife, no other witness deposed to the events that occurred before the medical panel. The second, third and fourth defendants declined to give evidence. In doing so, they relied upon s 48(2) of the Act. Section 48(2) provides:**

A member of a Medical Panel is competent to give evidence as to the matters in a certificate or report given by the Medical Panel of which he or she was a member, but the member may not be compelled to give any such evidence.

**18 In order to meet the plaintiff's case, the fifth defendant sought to tender the second, third and fourth defendants' notes of their examination of the plaintiff. The notes are typical doctors' notes. They contain individual words and phrases with arrows, dashes and various abbreviations. They are not particularly easy to interpret.

Pain first noticed in June/July 2009

(NIGGLING PAIN - gradual onset)

Pulling sensation in R groin → moving caravan walls off pallet (into storage area 80/week) - ignored his advice

As time went by the pain gradually increased

...

Reported injury - NO SPECIFIC INJURY

...

? September 09 (R) hip inj inj but DOI given as 16/11/09.

...

1st noticed (R) groin "pull" July 2009 lifting pre-fab. caravan walls off pallet ie lift/twist - grady ↑ pain (R) groin & more persistent.

Supervisory work - f. lift drive + hands on work Noticed problems [with] forwards bend, up/down ladders. No specific injury/incident. ...

Right groin mid 09 - pulling feeling

Moving caravan walls. from pallet.

ignored it initially.

in time more constant + more full

Agg by bending fwds. climbing ladders.

No specific incident - gen getting worse

...

22 While the parties made full submissions at trial as to the admissibility of these notes, each side was content for me to rule on admissibility questions in the course of delivering reasons for judgment in respect of the whole proceeding. Both sides conducted their cases on the basis that the notes might or might not get into evidence.

**23 The fifth defendant relies upon the second, third and fourth defendants' notes for a hearsay representation alleged to be made by those defendants in their respective notes that the plaintiff told the medical panel that his injury was of gradual onset, and that there was no specific injury or incident. The question of what, if any, representation is made by each member of the medical panel in each member's notes may be debated at length. For example, the notes of the third defendant contain statements that might be thought to be inconsistent on this issue (in one place, there is a note that the date of injury or incident was given as 16 November 2009; and in another place, there is a notation "no specific injury/incident"). That said, I turn to the admissibility issue.

24 The fifth defendant sought to tender the second, third and fourth defendants' notes pursuant to s 63 of the Evidence Act 2008.[7] In order to rely on this section, the fifth defendant must show that the second, third and fourth defendants are "not available to give evidence about an asserted fact" within the meaning of s 63(1).

25 Clause 4 of Part 2 of the Dictionary[8] relevantly provides:**

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if -

...

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

**26 There was correspondence between the solicitors for the fifth defendant and the solicitors for the first to fourth defendants concerning whether or not the members of the medical panel would be prepared "voluntarily to give evidence" at trial.[9] Ultimately, the solicitors for the first to fourth defendants advised that "in reliance on s 48(2),[10] Di Genova's case[11] and s 65(10)",[12] the second, third and fourth defendants declined to give evidence voluntarily.

27 The same letter from the solicitors for the first to fourth defendants went on to deal with the question of subpoenas in the following terms:**

In the event that subpoenas are issued seeking to compel the medical panel members to give evidence, we have instructions to accept service on behalf of the medical panel members.

We further advise that should subpoenas be served, then application will be made to set aside the subpoenas at the hearing, based upon s 48(2), Di Genova's case and s 65(10).

**28 No doubt in reliance upon this letter, the fifth defendant chose not to subpoena or attempt to subpoena the second, third and fourth defendants.

29 If the second, third and fourth defendants were not compellable to give any relevant evidence in this proceeding, then it might be that, in reliance upon such cases as DPP v Nicholls,[13] they were not available to give evidence about an asserted fact within the meaning of s 63(1) of the Evidence Act - "all reasonable steps" having been taken to secure attendance or compel the giving by them of relevant evidence. However, s 48(2) only makes members of a medical panel not compellable for the giving of evidence "as to matters in a certificate or report given by the Medical Panel of which he or she was a member". Notwithstanding the existence of s 65(10) of the Act,[14] it may be that on a proper construction of the relevant provisions of the Act, a medical panel member could be asked questions of a general kind which might have the capacity to throw light on relevant issues, without infringing s 48(2) of the Act. For example, in this case, it might have been possible to ask general questions (unrelated to the specific medical panel examination) about the way in which notes are taken as a matter of practice. In any event, I am not satisfied in the circumstances of this case that there were not a number of relevant questions that could have been asked of the second, third and fourth defendants in cross-examination by the plaintiff.

30 It follows that in failing to subpoena the second, third and fourth defendants, I am not persuaded that the fifth defendant has taken "all reasonable steps" to secure the attendance of the second, third and fourth defendants, nor that it has taken all reasonable steps to compel the giving of evidence by them in this proceeding. The position would be different, if the fifth defendant had subpoenaed the second, third and fourth defendants and then the second, third and fourth defendants had applied successfully to set aside those subpoenas. That said, I should note for the sake of completeness that the opportunity to adjourn the proceeding to subpoena the second, third and fourth defendants was offered to the fifth defendant and declined by it.[15]

31 It may be that the fifth defendant chose not to subpoena the second, third and fourth defendants, in order to save time and expense. However, such an approach placed the fifth defendant in the unusual position of attempting to show that there was no evidence that the second, third and fourth defendants could give, and therefore that those witnesses were relevantly not available within the meaning of the Evidence Act. Ordinarily, one might have expected the fifth defendant to be putting arguments as to why it was able to call the witnesses it wished to call (in this case the second, third and fourth defendants) to give some evidence (not caught by s 48(2) of the Act) that might answer the plaintiff's evidence as to what occurred during the course of the medical panel's examination of the plaintiff.

32 In any event, and for the reasons given above, I am not satisfied that the second, third and fourth defendants were not available to give evidence about an asserted fact within the meaning of s 63(1) of the Evidence Act. It follows that the tender of the second, third and fourth defendants' notes must be rejected.**

Plaintiff's history to the medical panel: findings

**33 The plaintiff impressed me as a straightforward, honest witness, who was doing his best to give accurate and truthful answers to the questions asked of him in cross-examination. I accept that the plaintiff honestly believes that he gave, and that he did give, the history I have already described to the medical panel. Further, the plaintiff is supported in his version by an affidavit of his wife who also attended the examination before the medical panel. In the circumstances it is not necessary for me to go to medical histories that were before the medical panel that are also supportive of the plaintiff's evidence[16] or the equally supportive Hazard/Incident report[17] in which the hazard/incident is recorded as having occurred on 16 November 2009.

34 Further, and in any event, if I am wrong about the admissibility issue, and the second, third and fourth defendants' notes are properly admissible in this proceeding, then having seen the plaintiff, and for the reasons I have already given, I would still accept his evidence and the evidence of his wife as to the history they say was given to the medical panel.

35 Ordinarily one might well accept the correctness of a contemporaneous note made by an independent person, in preference to the recollection of an interested party recorded some weeks or months later. One might be even more inclined to accept the contemporaneous notes if made independently by more than one person. However, in this case the notes are capable of a number of interpretations: they do not amount to clear statements of what the plaintiff was heard to say during the medical panel's examination. Further, without evidence to explain the various notes and notations of the second, third and fourth defendants, those notes (while having the capacity to tend against acceptance of the plaintiff's case) are too vague to cause me to disbelieve the plaintiff and his wife. Additionally, I have already highlighted what appears to be a discrepancy in the third defendant's notes on this issue. When one considers all of the evidence on the question of what history was given to the medical panel (including the notes that were sought to be tendered[18]) one is left comfortably satisfied that the history given by the plaintiff was as described in his affidavit.[19]

36 It seems to me that much of the second, third and fourth defendants' notes can be explained by reference to the complexity of the history in this case. A number of possibilities exist. For example, one or some of the medical practitioners may have misunderstood the plaintiff's history, or confused his history as to the development of left-sided symptoms with right-sided symptoms (it being uncontroversial that the left-sided symptoms developed without specific incident or injury, whereas the right appear, on much of the material,[20] to have come on following a specific incident or work on a particular day).**

37 As was said by Kyrou J in Ripper v Kotzman:[21]

A medical panel is amenable to judicial review. Its opinion can be quashed if it makes a jurisdictional error. It commits jurisdictional error if, in making its decision, it ignores a matter it is bound to take into account and that matter materially affects its decision.[22]

38 In Mikhman v Royal Victorian Aero Club & Ors,[23] Kaye J had to consider a claim by a plaintiff that a medical panel had failed to record (and therefore to take into account) the history given to it by the plaintiff. In discussing this issue, his Honour said:

Obviously, it is relevant, and necessary, for a medical panel to take into account a history related to it by a claimant. Equally, a panel is not entitled to take into account, as part of the "history", matters which were not related to it by a claimant. However, that does not mean that every fact, stated by a claimant to the panel, and recorded by the panel in its reasons, must be relevant. Nor does it mean that each time a panel, in its reasons, misstates part of the history communicated to it by a claimant, the panel must, thereby, have committed jurisdictional error. In order to constitute relevant error, there must, first, be a material discrepancy between the facts recorded by the panel on the one hand, and the facts stated to the panel by the claimant. Secondly, the particular discrepancy in the facts, so recorded by the panel as the history taken by it from the claimant, must, at the least, have played a role in the decision by the panel of the degree of impairment of the claimant.[24]

**39 In the present case, the medical panel failed to take into account the plaintiff's history that his right-sided pain came on during a day in November of 2009 (or on a specific day, the date of which the plaintiff was unable to recall) while he was performing heavy lifting. So much may be observed from the panel's recitation of the plaintiff's history where the panel records that the plaintiff said he was "unable to recall exact dates but said he noticed the onset of a 'pulling feeling' in his right groin in mid 2009 which he said came on for no apparent reason and without [any history] of workplace incident or injury".

40 The question in the present case is whether the discrepancy between the history recorded by the panel and the history actually given by the plaintiff to the panel is material.[25] If the panel had said nothing further about the matter, one might have had doubts about the issue of materiality. However, the panel returned to this aspect of the plaintiff's history in the short reasons the panel gave for concluding that the plaintiff's right hip, and any current incapacity for work, did not result from, and was not materially contributed to by, the plaintiff's claimed injury. An integral part of the panel's reasons for arriving at this conclusion was (to use the words of the panel):**

[T]here was no specific history of focal injury to the worker's right hip while working with the onset of right hip symptoms arising gradually without incident, and progressively worsening over time.

**41 The wrong history recorded by the panel more than played a role in the panel's decision: it was material to the ultimate conclusion of the panel. It follows that the plaintiff has established that the panel fell into jurisdictional error in failing to take into account a matter (the plaintiff's history of specific injury on a particular day while performing heavy work for his employer) which it was bound to consider when determining its opinion.

42 For these reasons the decision of the medical panel must be quashed.**

**43 Having regard to the conclusions I have reached in relation to the plaintiff's complaint about jurisdictional error, it is not necessary for me to deal with the plaintiff's other complaint in this proceeding concerning an alleged inadequacy in the panel's reasons. However, for completeness I should deal with one further aspect of this proceeding.

44 A considerable amount of time and effort was expended by the parties in attempting to resolve a dispute as to what was or was not said by the plaintiff to the medical panel at the time of the medical panel's examination of the plaintiff. It is, to say the least, unfortunate that almost 37 years after a board of inquiry recommended that interviews between police and suspects be tape recorded so as to obviate the need to have endless disputes in court about what was actually said,[26] we are still having such disputes - albeit in a different field.

45 Medical panels and their opinions pervade in large numbers of cases brought under, or in accordance with, the provisions of both the Accident Compensation Act 1985 and the Wrongs Act 1958. Often in these cases, the decision of the relevant medical panel will finally determine rights. Further, the decisions of medical panels are required to be adopted and applied, and accepted as final and conclusive, by courts.[27] In a steady number of these cases, there is a complaint made by the person examined that the medical panel has failed to take into account the relevant history given to it. In these circumstances, it is almost beyond belief that medical panel examinations are not recorded in such a way as to eliminate the potential for disputation over what was actually said or not said during the course of an examination. The routine failure to record these examinations is wasteful so far as the parties' resources are concerned and so far as the scarce resources of this Court are concerned. Much of the time and expense involved with the conduct of the present proceeding would have been eliminated if the examination of the plaintiff by the medical panel had been recorded.[28] And as I have said, this case is not unique in that regard.**

**46 The certificate of opinion of the medical board constituted by the second, third and fourth defendants and dated 7 December 2011 will be quashed.

47 The plaintiff submits that the medical questions should be referred back to the Convenor of Medical Panels for referral for determination by a differently constituted panel. After making some submissions on this issue, the fifth defendant's position was ultimately that if it was proposed to quash the certificate of opinion, then the fifth defendant did not want to be heard against remittal to a newly constituted panel.

48 In my opinion, the matters in dispute between the parties should be resolved by a differently constituted medical panel. As was said by Davies and Foster JJ in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal & Anor:[29]**

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the re-hearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated.[30]

(1) The certificate of opinion of the medical panel constituted by the second, third and fourth defendants and dated 7 December 2011 be quashed.

(2) The medical questions be referred back to the Convenor of Medical Panels for referral for determination by a differently constituted medical panel.

50 I will hear the parties on any question of costs.

[1] Appointed pursuant to s 63(3) of the Act.

[2] While the amended originating motion describes the first defendant as a member of the medical panel that was convened, the medical panel's opinion and reasons show otherwise.

[3] A complaint that the medical panel fell into jurisdictional error by taking into account considerations it was bound in law to disregard when determining its opinion was abandoned prior to trial.

[4] R v The Australian Broadcasting Tribunal & ors; Ex parte Hardiman & ors [1980] HCA 13; (1980) 144 CLR 13.

[5] Paragraph 6 of the affidavit of Maria Barnett sworn 30 July 2013.

[6] No application was made by the fifth defendant for an adjournment to enable cross-examination of Mrs Barnett to take place later.

[7] Notice as required by s 67 of the Evidence Act 2008 previously having been given.

[8] Which forms part of the Evidence Act 2008, see s 3.

[9] See the letter from the solicitors for the fifth defendant to the solicitors for the first to fourth defendants dated 12 July 2013.

[11] Di Genova v Lefkovits [2004] VSC 491, wherein Kaye J said (at [32]-[34]) (emphasis in original):

**... [T]he critical words in s 48(2) are contained in the phrase "as to matters" in a certificate or report. The reasons of the Medical Panel may be a separate document to the certificate. However, the reasons are the basis of the conclusions stated in the certificate. Evidence concerning the reasons is evidence concerning the basis of the conclusions stated in the certificate. It follows that evidence concerning the reasons is evidence as to matters in the certificate.

If the submission on behalf of the fourth and fifth defendants were accepted, a member of a medical panel would be competent and compellable to give evidence relating to the history taken by him from the worker, and relating to the examination by him of the worker. However, he would be competent, but not compellable, to give evidence as to the conclusion formed by the member of the panel which is recorded in the certificate. There is no logical reason why Parliament would have intended s 48(2) to operate in such an incongruous manner.**

The evident purpose of s 48(2) is to protect members of medical panels from the inconvenience of being compelled to give evidence concerning the matters in respect of which their opinion was sought by a court. The medical panel performs an important role in the legislative scheme; its opinion, as recorded in its certificate, constitutes a binding finding of fact (or of mixed fact and law) in the litigation to which it pertains. The obvious purpose of s 48(2) was to ensure that panel members undertake their role without the prospect of thereby rendering themselves liable to be compelled to give evidence concerning the matters which were the subject of their opinion. That purpose would not be served by leaving members of the panel compellable to give evidence as to matters such as the history taken from a worker, and the panel member's examination of the worker.

[12] Section 65(10) of the Act provides:

The Convenor of the Medical Panels and a member of a Medical Panel has in the performance of his or her duties as the Convenor of the Medical Panels or as a member of a Medical Panel the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.

[13] (2010) 204 A Crim R 306.

[14] A section relied upon (together with the decision in Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 74 ALJR 698, 700 [13] (Gaudron J) by the solicitors for the first to fourth defendants in their correspondence - but which matters were not argued orally or in writing by the fifth defendant.

[16] See, for example, the history on p 3 of the report of Mr Russell Miller dated 25 August 2011 and p 1 of the report of Dr Joe Slesenger dated 22 August 2011.

[17] Exhibit JT1 to the affidavit of John Typaldos sworn 30 July 2013.

[18] If I am wrong on the admissibility issue.

[20] Although not all of the material: see the Workcover claim form dated 10 February 2000.

[21] [2008] VSC 448.

[23] [2012] VSC 42.

[26] Report of the Board of Inquiry into Allegations against Members of the Victoria Police Force (delivered October 1976, but published by the Government Printer in 1978), pp 78 and 93.

[27] See s 68(4) of the Act.

[28] As to the possibility of a relevant guideline being issued, or direction being given as to the recording of medical panel examinations, see ss 65(8) and 65(9) of the Accident Compensation Act 1985. See further, ss 28LZ(3) and 28LZ(4) of the Wrongs Act 1958.

[29] (1990) 26 FCR 39.