Plaintiff v Defendants

1 Roland Devaney worked as a commis chef (junior chef) for Crown Melbourne Ltd ('Crown') at the Crown Casino in Melbourne for a little over 20 years, before ending his employment in February 2017. On 3 October 2017 he commenced a proceeding in the Magistrates' Court at Melbourne against Crown pursuant to the Workplace Injury and Rehabilitation Act 2013 (Vic) ('WIRC Act') claiming weekly compensation and reasonable medical expenses by reason of injuries suffered as a result of his employment.

2 On 12 March 2019, the Magistrates' Court referred certain medical questions to a Medical Panel ('the Panel') for its Opinion, pursuant to s 274 of the WIRC Act. The Panel provided its answers to those questions, and its reasons for those answers, in its Certificate of Opinion and Reasons for Opinion dated 26 August 2019.

3 The referral to the Panel listed twelve physical injuries, and a consequent psychological injury, all claimed to be related to the physically stressful work which Mr Devaney had performed at the Crown Casino. Those thirteen injuries were set out in the Panel's answers to Question 1.[1] Of those injuries, only the injuries to Mr Devaney's neck, shoulders, and hips are the subject of this proceeding.

4 In this proceeding, Mr Devaney seeks orders that the Panel's decision in relation to those particular injuries be quashed, that Crown be prohibited from giving effect to them and that the medical questions in respect of those injuries be referred to a differently constituted Medical Panel for re-determination.

5 Relevant to this proceeding, the Questions referred to the Panel and the Panel's answers, were as follows.

Question 1. What is the nature of the Plaintiff's medical condition relevant to the alleged injuries ... namely, the development of and/or the recurrence, aggravation, acceleration, exacerbation or deterioration of [the alleged injuries]?

Answer: In the Panel's opinion Mr Devaney's injuries were [omitting those not relevant to this proceeding]:

Constitutional cervical spondylosis;

Mild rotator cuff tendinitis in the left shoulder;

Mild rotator cuff tendinitis in the right shoulder;

Constitutional femoroacetabular impingement in the left and right hips;

Question 2. Was the Plaintiff's employment in fact or could it possibly have been a significant contributing factor to be any, and if so, which of the alleged injuries?

Answer: The Panel is of the opinion that Mr Devaney's employment could possibly have been and was in fact a significant contributing factor to the following alleged injuries [omitting those not relevant to this proceeding]:

the neck including cervical spondylosis;

mild left shoulder rotator cuff lesion with impingement and supraspinatus tendinitis;

severe right shoulder rotator cuff lesion with tendinitis and impingement;

bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis;

Question 3. Whether the Plaintiff's employment is still a significant contributing factor to the alleged injuries and if so, which of the alleged injuries?

Answer: The Panel is of the opinion that Mr Devaney's employment is no longer a significant contributing factor to any of the alleged injuries.

Question 4. Does the Plaintiff's incapacity for work result from, or is it materially contributed to by its findings on clinical observation in relation to the alleged injuries?

Answer: The Panel is of the opinion that any claimed incapacity for work does not result from and is not materially contributed to by any of the alleged injuries.

6 It can be seen that whilst the Panel found that there were identifiable medical conditions relevant to each of the injuries to Mr Devaney's neck, shoulders and hips, and that his employment with Crown was a significant contributing factor to those injuries, it nonetheless concluded that Mr Devaney's employment was no longer a significant contributing factor to those injuries. It also found that any claimed incapacity for work was not the result of those injuries.

7 By his originating motion, and his written submissions, Mr Devaney relies upon four grounds upon which the review should be allowed. In respect of each of the four claimed injuries identified above in answer to Question 2, he alleges, in substance, that the Panel made these errors:

(a) the Panel made findings of fact which were not open on the evidence (or there was no evidence by which the findings could be made);

(b) the Panel made irrational or illogical findings of fact;

(c) the Panel failed to treat certain conditions as constituting 'injury' within the meaning of the WIRC Act; and

(d) the Panel failed to give an adequate statement of reasons.

8 Although there is commonality in the arguments addressed to each condition, it remains necessary to approach each of the injuries separately. Before doing so, I will first outline some general facts about the Panel and the way it went about its task, and I will set out some relevant statutory and common law principles.

9 In light of the broad range of injuries and medical conditions on which the Panel's opinion was sought, the Panel convened comprised of the following medical specialities: a specialist general practitioner, a rheumatologist, an orthopaedic surgeon, an oral and maxillofacial surgeon (as a Consultant) and two psychiatrists. A schedule of attachments dated 8 March 2019 listed the 225 documents that were supplied to the Panel. In addition to court documents, claim forms and the like, the documents included a substantial body of medical opinions and radiological investigation reports submitted by both parties to the proceeding. The Panel stated that it formed its opinion having regard to the documents with which it was supplied, a history as provided to them by Mr Devaney, their own examinations of Mr Devaney and the guidance of the Consultant.

10 Mr Devaney was examined on three separate occasions: once, jointly, by the general practitioner, rheumatologist and orthopaedic surgeon; once by the Consultant facial surgeon; and once by the two psychiatrists.

11 Over the course of its 39 page opinion, the Panel traversed the following matters:

(a) a history of each of Mr Devaney's 10 claims for compensation, the decisions made in respect of each of them, a summary of each of the medical opinions Crown had relied upon for those decisions, and a summary of each of the medical opinions upon which Mr Devaney relied to dispute those decisions;

(b) a history provided to the Panel by Mr Devaney about his pre-injury employment, the development of symptoms and the treatment for each of his medical conditions, the employment incidents that precipitated or contributed to his symptoms, the symptoms he reported in respect of each of his medical conditions at the time of the examinations, his reported limitations and functional capacity, the treatment he was receiving at the time of the examinations, his medical history other than the claimed employment injuries, and his psychiatric history;

(c) the Panel's examination findings and clinical observations both generally and specifically concerning each of the claimed physical injuries, as well as his mental state examination;

(d) a summary of the relevant medical tests and examinations (that is, medical imaging and reports) of the affected body parts as contained in the material supplied;

(e) the Panel's analysis and conclusions in respect of each of the claimed medical conditions, comprising: a diagnosis for each physical condition as well as a psychiatric diagnosis, an analysis of whether Mr Devaney's employment had been a significant contributing factor to each of the claimed injuries, and a conclusion as to his current incapacity for work and the relationship of his employment to that incapacity;

(f) the Panel's response to various contrary medical opinions as to the contribution of Mr Devaney's employment to his incapacity for work by reference to specific injuries, and generally; and

(g) the Panel's acknowledgment of having considered the submissions made on behalf of both Mr Devaney and Crown.

12 It is important to note that no criticism is made of the Panel's method, the scope of the relevant evidence it considered or its own findings on examination of Mr Devaney. As will be seen, Mr Devaney's essential challenge is to the Panel's reasoning from its findings of facts to its opinion in respect of the contribution that his employment made to his present claimed incapacity, and to the existence of facts to support that reasoning.

13 Because Mr Devaney's employment with Crown commenced in 1996 and concluded in 2017, it straddled the periods when his entitlement to compensation was governed by two different Acts of Parliament - the Accident Compensation Act 1985 (Vic) ('AC Act') and the WIRC Act. Statements made by the Court of Appeal in Maimonis v Bourke ('Maimonis'),[2] which concerned a worker whose employment also straddled the two periods, are equally applicable to this case as they were to that case:

1. To the extent that any injury suffered by [the worker] arose out of, or in the course of, or due to the nature of, employment solely before 1 July 2014, his entitlement to compensation is governed by s 82 of the AC Act, which relevantly provides:

(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

...

(2C) There is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury -

...

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

23 The word 'injury' is defined in s 5(1) of the AC Act to mean:

Injury means any physical or mental injury and, without limiting the generality of that definition, includes -

...

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

1. In relation to the expression 'significant contributing factor', contained in s 82(2C), s 5(1B) of the AC Act provides:

In determining for the purposes of this Act whether a worker's employment was a significant contributing factor to an injury -

(a) the duration of the worker's current employment; and

(b) the nature of the work performed; and

(c) the particular tasks of the employment; and

(d) the probable development of the injury occurring if that employment had not taken place; and

(e) the existence of any hereditary risks; and

(f) the life-style of the worker; and

(g) the activities of the worker outside the workplace -

must be taken into account.

1. To the extent that any injury suffered by [the worker] arose out of, or in the course of, or due to the nature of, employment on or after 1 July 2014, or by 'way of gradual process over a period beginning before, and continuing on or after 1 July 2014' (but not arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014), his entitlement to compensation is governed by the provisions of the WIRC Act.
2. That said, for present purposes, there are no material differences between the statutory regimes: s 39(1) of the WIRC Act is relevantly identical to s 82(1) of the AC Act; s 40(3)(c) of the WIRC Act is relevantly identical to s 82(2C)(c) of the AC Act; and the definitions of 'injury' and 'significant contributing factor' in the WIRC Act are relevantly identical to those in the AC Act.

14 Any evaluation of alleged jurisdictional error must commence with an understanding of the statutory task assigned to the relevant decision-maker, and of the lawful parameters for its decision-making.

15 Relevantly, the task of a medical panel of the kind to which the questions in this case were referred is governed by Division 3 of Part 6 of the WIRC Act. In summary, the panel's function is to give its opinion on the medical questions referred to it.[3] A medical question includes, questions as to the nature of a medical condition relevant to an injury, any incapacity of a worker for work and a worker's current work capacity, and the extent to which a worker's incapacity resulted from or was materially contributed to by an injury.[4] A panel is to act informally, is not bound by the rules of evidence and is able to inform itself in any manner it thinks fit.[5] It must be supplied with a specification of the injuries and relevant facts, and with the documents that relate to the questions asked.[6] It may medically examine the worker and ask him or her questions,[7] and it can ask for further information.[8] It must give its opinion within 60 days of the referral, by providing a written certificate of opinion and reasons for that opinion.[9] Its opinions are final and conclusive, and bind both the court and the parties.[10]

16 In Maimonis the Court of Appeal summarised important legal principles concerning the function of a medical panel and the correct approach in considering a challenge to its opinion on judicial review:[11]

(1) The function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise. It is not its role to make up its mind by reference to competing contentions or competing medical opinions, but to form its own opinion.[12]

(2) It is not enough for a party challenging a medical panel's opinion to show that the panel's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. A court is not entitled to interfere with a medical panel's decisions unless it is satisfied that there was in fact a vitiating error of law.[13]

(3) A medical panel is an expert tribunal and not a judicial body. Its findings need to be viewed in that light. A medical panel's reasons are meant to inform. Overzealous judicial review is to be eschewed.[14]

(4) A medical panel's statement of reasons must explain the actual path of reasoning by which it arrived at the opinion it in fact formed on the medical questions referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. A medical panel is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[15]

17 As in this case, the nature of the injury in Maimonis which was the subject of the Panel's opinion was the extended meaning of injury as contained in paragraph (c) of the definition in s 5(1) of the AC Act and s 3 of the WIRC Act, namely a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. The Court of Appeal referred to the -

... legal conception that the extended definition of 'injury' can be satisfied by the onset or progression of symptoms, in the absence of any deleterious effect having been caused upon an underlying condition.[16]

18 It is generally accepted that it is an error of law, of the kind that would amount to jurisdictional error, to make a finding of fact where there is no probative evidence to support that finding. Likewise, an inference of fact will be reviewable on the ground that it is not reasonably open on the facts. Being not reasonably open, and there being no evidence to support a finding, amount to the same thing.[17] Further, the question whether there was no evidence to support a factual finding is a question of law, not a question of fact.[18]

19 The 'no evidence' ground may only succeed if there is no evidentiary basis at all; it will fail if there is even the slightest evidence to support it.[19] There is no error in law in simply making a wrong finding of fact.[20] Furthermore, where a tribunal is authorised to act upon its own expertise, as is the case of a medical panel convened under the AC Act or WIRC Act, it has been acknowledged that it may be more difficult to show that the finding was not open to it.[21]

20 In this case, it is also contended, as a discrete ground of review, that the Panel's decisions in respect of each of the injuries were illogical and irrational and not based on findings of fact supported by logical grounds.

21 Mr Devaney sought to invoke a ground of irrationality or illogicality said to be supported by the High Court's decisions in Minister for Immigration and Multicultural Affairs v SGLB ('SGLB')[22] and Minister for Immigration and Citizenship v SZMDS ('SZMDS').[23] He sought to impugn the medical panel's findings expressed in answer to medical questions 3 and 4 on the basis that those determinations were 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds' (applying the language employed by Gummow and Hayne JJ in SGLB at [38]).

22 As observed by Crennan and Bell JJ in SZMDS[24] the so-called irrational ground is related or allied to other grounds commonly relied upon for judicial review, including that there was no probative evidence to support a finding of fact.

23 The extent to which the principles applied in those cases - cases which concerned findings as to jurisdictional facts - are also applicable to findings by all administrative tribunals and bodies, and to non-jurisdictional facts, remains unclear.[25] Certainly that appears to be the situation with respect to challenging factual findings of a medical panel on the ground of illogicality and irrationality.[26]

24 Nevertheless, it appears most prudent to adopt the same approach taken by Kyrou J (as he then was) as the judge at first instance in Ryan v The Grange at Wodonga Pty Ltd),[27] approved on appeal.[28] That is to say, first I will assume in Mr Devaney's favour that illogicality and irrationality in fact finding may constitute a separate ground of administrative review. Secondly, I will assume the formulation of a test of illogicality and irrationality that combines both senses in which it was used in SZMDS, as those senses were explained in Rees v County Court ('Rees'),[29] Barro Group Pty Ltd v Brimbank City Council ('Barro'),[30] and Ryan (CA),[31] namely, both a focus on the reasoning itself as well as the decision actually reached.

25 Thus, adopting and adapting Kyrou J's test:[32] in order for Mr Devaney to succeed on the irrationality ground, he must satisfy me that no rational or logical decision-maker could have concluded, as the Medical Panel did, that his employment is no longer a significant contributing factor to any of the alleged injuries, and that any claimed incapacity for work does not result from and is not materially contributed to by any of the alleged injuries. He will be able to do so if he can demonstrate that the Panel's conclusions were based on reasoning that was not open to it or that the evidence before the Panel mandated different conclusions.

26 The High Court has authoritatively determined the standard of reasons required to be provided by a Medical Panel pursuant to s 68 of the AC Ac_t_ (and, necessarily, s 313(2) of the WIRC Act). In Wingfoot Australia Partners Pty Ltd v Kocak[33] ('Wingfoot'), the High Court stated:[34]

The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

27 Importantly, in the circumstances of the present case, the High Court continued:[35]

A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

28 In applying the standard of reasons required by Wingfoot, the Court of Appeal observed in Karabinis v Bendrups,[36] that whilst it may have been 'preferable' for a Medical Panel to have further explained the basis for its conclusions, such further explanation was not be necessary for the purpose of complying with its obligation to provide adequate reasons.

29 Recalling the principles summarised by the Court of Appeal in Maimonis,[37] a Medical Panel is an expert tribunal and not a judicial body, and its findings need to be viewed in that light. Its statement of reasons is meant to inform, and should be read fairly, as a whole and in context; overzealous judicial review is to be eschewed.[38]

30 I accept Crown's submission that issues of causation and ongoing contribution between alleged injuries and employment are evaluative factual questions on which medical opinions could reasonably differ. As such, the reasons behind the formation of an opinion on such a question may not be capable of extensive articulation.[39] These observations do not undermine the authoritative statement of principle in Wingfoot, but they draw attention to the particular context in which that principle is to be applied when assessing a medical panel's reasons for its opinion.

31 Finally, it goes without saying that when engaging in judicial review of the Panel's opinion it is not the Court's task to review the merits of that opinion. There are many statements of this principle, but it is sufficient for these purposes to set out what Gummow and Keifel JJ said in SZMDS at [19]:

It is in this setting that the statement of general principle by Brennan J in Attorney-General (NSW) v Quin (31) is to be understood. His Honour said:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

32 In answer to question 1 the Panel stated that Mr Devaney had suffered a medical condition relevant to his alleged injury to the neck, namely 'constitutional cervical spondylosis'. The Panel's opinion was that Mr Devaney's employment could possibly have been, and was in fact, a significant contributing factor to his claimed neck injury (question 2). But it was further of the opinion that Mr Devaney's employment was no longer a significant contributing factor to his neck injury (question 3) and that any claimed incapacity for work did not result from, nor was materially contributed to by, that injury (question 4).

33 The Panel commenced by noting the type of physical activity which Mr Devaney undertook whilst a commis chef for Crown. It noted, according to the history Mr Devaney provided, that his day to day tasks included pushing, pulling, lifting (including reaching above shoulder height), bending and squatting, on a repetitive basis. Items he manoeuvred included heavy trolleys, heavy bags of produce, heavy cooking pots and trays of food.

34 Relevant to his neck injury, the Panel took notice of a number of specific incidents Mr Devaney reported. The first was an incident on 17 October 2005 involving Mr Devaney lifting a 60 kilogram pot of soup with a co-worker who became distracted, leaving Mr Devaney holding its full weight. He said he experienced pain in his neck, shoulder blades and upper back. Mr Devaney told the Panel that ever since that incident in 2005 he experienced fluctuating and intermittent discomfort in his neck and upper back. Next was an incident on 21 September 2009 when he slipped on some grease and landed on his buttocks experiencing pain in his neck and lower back. On 1 July 2016 he was lifting and moving a 15 kilogram pot of soup repetitively when he developed discomfort in his neck radiating into his left shoulder and down his left upper limb to the hand. Finally, on 11 August 2016, again lifting a big pot of soup repetitively, he developed pain in his neck, lower back and upper limbs.

35 Mr Devaney reported to the Panel, at the time of his examination, that he had constant pain at the back of his neck which radiated down between his shoulder blades. Because of his neck, shoulder and upper limb symptoms, Mr Devaney reported that he had difficulty lifting more than 3 kilograms, pushing and pulling, lifting his arms above his shoulder height, and with various personal care and household activities.

36 The Panel referred to its own medical examination of Mr Devaney, relative to his neck. It detected a full range of active movement in all planes in respect of his cervical spine with no tenderness. Neurological findings in the upper and lower extremities were all normal. Medical imaging viewed by the Panel revealed, according to an MRI of the cervical spine dated 6 July 2016, mild multi-level degenerative changes affecting the discs and facet joints without neural compromise. A CT scan of the cervical spine on 25 August 2016 also demonstrated mild multi-level degenerative changes including osteophytes and facet joint arthropathy without neural compromise. Other than viewing those images for itself, the Panel also summarised the findings in other medical imaging reports relating to the cervical spine dating from March 2006 through to September 2016.

37 Against the background, the Panel stated its physical diagnosis in respect of Mr Devaney's neck in these terms:

The Panel noted that Mr Devaney developed pain in his neck in the lifting incident on 17 October 2005. The Panel also noted that Mr Devaney subsequently underwent numerous imaging investigations of his cervical spine which revealed mild degenerative changes. The Panel further noted Mr Devaney has been experiencing fluctuating and intermittent symptoms related to his cervical spine ever since. The Panel noted that his symptoms were further exacerbated by the incidents on 21 September 2009, 1 July 2016 and 11 August 2016. The Panel concluded that Mr Devaney suffered exacerbations of pre-existing, asymptomatic cervical spondylosis.

Notwithstanding of (sic) the current symptoms described by Mr Devaney which relate to his cervical spine, the Panel referred to its own examination of him which did not reveal any current clinical evidence of ongoing cervical condition or injury. The Panel considered that exacerbations of cervical spondylosis experienced by Mr Devaney were minor, transient and quickly resolved without affecting the progress of the underlying condition. The Panel is of the opinion that Mr Devaney recovered from the exacerbations of cervical spondylosis and his current neck related symptoms are attributable solely to his underlying constitutional cervical spondylosis.

The Panel concluded that Mr Devaney is currently suffering from constitutional cervical spondylosis.

38 As to whether Mr Devaney's employment had been, and was presently, a significant contributing factor to his neck injury, the Panel said this:

The Panel noted that Mr Devaney exacerbated his previously asymptomatic cervical spondylosis in the incident on 17 October 2005. The Panel further noted that he suffered further exacerbations in the Incident on 21 September 2009, 1 July 2016 and 11 August 2016, while at work.

The Panel therefore concluded that Mr Devaney's employment could possibly have been and was a significant contributing factor to the alleged neck including cervical spondylosis injury.

As the Panel is of the opinion that Mr Devaney recovered from the exacerbations of cervical spondylosis and that his current neck related symptoms attributable solely to his underlying constitutional cervical spondylosis, the Panel concluded that Mr Devaney's employment is no longer a significant contributing factor to the alleged neck including cervical spondylosis injury.

39 Finally, the Panel listed a number of opinions, with which it had been provided, of medical examiners whose views differed to its own with respect to Mr Devaney's neck condition and its relationship to his employment. The Panel observed that whilst it reached the same conclusion as those medical examiners regarding the initial relationship between Mr Devaney's employment and his medical condition in relation to his neck, and regarding his present capacity for his pre-injury duties, it was of the opinion that his neck condition was no longer related to his employment for the reasons it had already stated.

40 Mr Devaney submitted that the Panel's conclusion that his present cervical spine pain symptoms and incapacity for employment was solely attributable to his underlying cervical spondylosis -

(a) was an opinion it reached without any evidence;

(b) was irrational, illogical and not based on findings or inferences of fact supported by logical grounds;

(c) failed to treat the rendering symptomatic of pre-existing, asymptomatic cervical spondylosis (ie exacerbation) as constituting an injury; and/or

(d) was not explained by any actual path of reasoning.

41 Mr Devaney developed his argument by pointing out that the Panel noted the history he gave, namely that until the 2005 incident he had not had any cervical spine symptoms but since that incident he had experienced 'fluctuating and intermittent' neck pain persisting to this day. Mr Devaney also highlighted that the Panel had noted that his symptoms were exacerbated by the further incidents on 21 September 2009, 1 July 2016 and 11 August 2016 and that it concluded that he had suffered 'exacerbation of pre-existing asymptomatic cervical spondylosis'.

42 Pausing there, it is notable that the Panel describes Mr Devaney's injury as an 'exacerbation' of a pre-existing asymptomatic condition. That description of his injury is given in the context of the Panel having been asked, in question 1, about the nature of Mr Devaney's various medical conditions relevant to his alleged injuries by reference to the extended meaning of injury preceding the list of injuries which they were to consider.[40] That is, the Panel explicitly selected the term 'exacerbation' as denoting the particular form of injury to the neck which they diagnosed Mr Devaney as having sustained.

43 Notwithstanding the current symptoms as described by Mr Devaney to the Panel, the Panel's opinion was that he had recovered from those exacerbations, and that his current neck symptoms were 'attributable solely to his underlying constitutional cervical spondylosis'. In forming that opinion, the Panel drew upon two pieces of evidence it had found in the body of medical material before it and from the results of its own medical examination of Mr Devaney. The first piece of evidence was that there was no current clinical evidence of any ongoing cervical condition or injury. This was explicitly acknowledged to be in the face of Mr Devaney having described his current symptoms. The second piece of evidence, accepted by the Panel, was that the previous exacerbations of cervical spondylosis (2005, 2009 and 2016) were 'minor, transient and quickly resolved without affecting the progress of his underlying condition'.[41]

44 Mr Devaney's criticism that the Panel's opinion lacked discernible reasoning involved several assumptions that are, in my view, mistaken. First, he assumes that the Panel was of the view that the constitutional cervical spondylosis was 'progressing'.[42] Secondly, he takes the Panel as having been informed that the pain symptoms in his neck which emerged in 2005 were 'constant' thereafter through to the time of his examination.[43] Thirdly, he assumes that the Panel's conclusion that his experience of neck pain since ceasing employment was attributable solely to constitutional cervical spondylosis, rather than employment, was based entirely on an unstated proposition that his constitutional condition of mild cervical spondylosis, without symptoms, progressed and became symptomatic 'of its own motion' coincidentally with the 2005 incident.[44]

45 In oral argument, Mr Devaney accepted that the Panel did not actually state that the cervical spondylosis was 'progressing', yet he infers that was the Panel's opinion because of its statement that the exacerbation of the cervical spondylosis occurred without 'affecting the progress of the underlying condition'.

46 I do not think it is correct to read into that statement the further propositions that the constitutional cervical condition was progressing and that Mr Devaney's symptoms, both in 2005 and thereafter, were the product of that progression. What the Panel said, in my view, was that the exacerbation of the underlying condition occurred without affecting (or altering) the progress of the condition. In other words, even accepting the condition to be naturally progressive, apart from the work incidents having exacerbated the condition so that it became transiently symptomatic, those exacerbations had no worsening effect on the progress of the underlying spondylosis itself. So, the only 'injury' was the pain symptom associated with the exacerbation rather than any additional progression of the spondylosis itself.

47 In making that distinction, the Panel appeared to have been cognisant of the legal conception of the extended definition of 'injury' referred to by the Court of Appeal in Maimonis, extracted above at [17]. I would add that the Panel had available to it the medical imaging reports relating to Mr Devaney's neck from 2006 onwards, and had itself reviewed an MRI and a CT scan of his neck, both taken in 2016. The Panel plainly had an evidentiary basis upon which to reach the opinions it formed on that issue.

48 The claim that the Panel accepted that Mr Devaney's neck pain had been 'constant' since 2005 is simply a misreading of the Panel's opinion. Mr Devaney told the Panel about having experienced neck pain as a result of the 2005 incident and that 'ever since that time' he had experienced 'fluctuating and intermittent discomfort in his neck'.[45] When asked about his present symptoms at the time of the examination in 2019, Mr Devaney told the Panel that he then had 'constant pain at the back of his neck'.[46] It is incorrect to construe those two statements as if Mr Devaney had told the Panel he had suffered constant neck pain ever since 2005 - to the contrary, he had told them it had only been fluctuating and intermittent.

49 Lastly, it is also wrong to attribute to the Panel an 'unstated' proposition that the non-symptomatic cervical spondylosis had become symptomatic 'of its own motion' in 2005, coincidentally with the 2005 incident, entirely attributable to the 'progress' of the underlying condition. This is clearly not what the Panel actually said, nor is it fairly attributable to it as some unstated proposition. I have already addressed above Mr Devaney's incorrect assumption about the Panel's reference to the progress of the underlying condition. The Panel accepted that the 2005 incident, and the later incidents, caused Mr Devaney's constitutional cervical spondylosis to become symptomatic (exacerbated) on a transient basis. For that reason, it accepted that Mr Devaney's employment was a significant contributing factor to those exacerbations which it clearly understood to constitute injuries in themselves.

50 In summary, it appears to me that Mr Devaney's argument that the Panel's decision was illogical or irrational, or not open to it on the evidence, proceeded from a misapprehension of what the Panel actually found and determined.

• It did not find that Mr Devaney's neck pain was constant and present from 2005 onwards until he ceased work, and beyond.
• It did not find that his non-symptomatic condition became symptomatic only because of the progression of his underlying spondylosis in 2005.
• It did not ignore the fact that the rendering symptomatic of a non-symptomatic condition can, of itself, amount to an injury.

51 If one were to make each of these errors of comprehension about the Panel's reasons, it may well appear, in the absence of any explanation for such a finding, that there is some lack of logic in finding that a non-symptomatic condition became painful at the time of a work incident, remained constantly painful thereafter and had never changed, yet is now solely the product of the underlying condition and bears no relationship to the work incident. But that is not what the Panel found.

52 The Panel found instead that Mr Devaney suffered a temporary exacerbation of his constitutional, non-symptomatic cervical spondylosis in 2005. That exacerbation manifested itself in pain. Similar exacerbations occurred when other incidents happened in 2009 and 2016. These exacerbations, each manifesting in pain, did not produce constant ongoing symptoms of pain or work incapacity - rather, the symptoms were fluctuating and intermittent. On that basis, the Panel reasoned that the exacerbations were minor, transient and quickly resolved such that Mr Devaney actually recovered from them after they occurred. It found that the exacerbations did not have any deleterious effect on the progress of the spondylosis itself. Yet, it correctly concluded that each of these exacerbations constituted an injury and it found that Mr Devaney's employment was a significant contributing factor to their occurrence.

53 Nonetheless, Mr Devaney's underlying cervical spondylosis, being constitutional, had not gone away and remained capable of producing symptoms of pain even after the effects of workplace exacerbations had resolved. In those circumstances, the Panel concluded that the symptoms of pain he suffered at the time of its examination of him were solely attributable to that underlying condition.

54 There is nothing illogical or irrational about this reasoning. There was evidence upon which the Panel could have reached each of the findings that lead to its ultimate opinion: that is, Mr Devaney's own history; the medical investigation reports dating back to 2006 which the Panel reviewed; the Panel's own medical examination of him; and other medical opinions which it received and took into account, some of which were consistent with its own opinion.[47]

55 I reject any argument that the evidence mandated a conclusion that Mr Devaney's employment remained a significant contributing factor to his cervical spine condition at the time of the Panel's examination of him, or that his then incapacity for work was the result of, or was materially contributed by his neck condition.

56 On the basis of this analysis I will briefly summarise my conclusions on each of the grounds of review advanced in respect of the Panel's opinion concerning Mr Devaney's cervical spine condition.

57 I find there was evidence to support the opinions expressed regarding Mr Devaney's cervical spine condition.

58 The Panel's conclusions regarding Mr Devaney's cervical spine condition were based upon reasoning that was open to it on the evidence before it, and no different conclusions were mandated.

59 The Panel did not fail to understand that an exacerbation of a non-symptomatic pre-existing medical condition such that it became painful (and thus symptomatic) was itself an injury.

60 The Panel's reasons for its opinion regarding Mr Devaney's cervical spine condition adequately informs the reader of those reasons, and discloses an actual path of reasoning sufficient to enable the court to see whether the opinion involves an error of law. Upon its reasoning, no error of law is disclosed.

61 For those reasons, I reject Mr Devaney's contention that the Panel's opinion with respect to his cervical spine condition should be quashed.

62 In answer to question 1, the Panel stated that Mr Devaney had suffered a medical condition relevant to the alleged injuries to his left and right shoulders, namely a mild rotator cuff tendonitis in each shoulder. The Panel's opinion was that Mr Devaney's employment could possibly have been, and was in fact, a significant contributing factor to alleged mild left shoulder rotator cuff lesion with impingement and supraspinatus tendonitis, and alleged severe right shoulder cuff lesion with tendonitis and impingement (question 2). But, it was further of the opinion that Mr Devaney's employment was no longer a significant contributing factor to either of those injuries (question 3) and that any claimed incapacity for work did not result from, nor was materially contributed to by, those injuries (question 4).

63 As will be apparent from the Panel's observations pertaining to Mr Devaney's neck injuries,[48] the history given by Mr Devaney of his work activities and work incidents in respect of those injuries were also relevant to his claimed shoulder injuries. Specific to his shoulders, Mr Devaney also told the Panel that he had constant pain in his pectoral areas bilaterally, no pain over the shoulders or the arms but a restriction in shoulder movement bilaterally. Mr Devaney also told the Panel he was unable to lie on either side due to shoulder pain.

64 Upon examination, the Panel found Mr Devaney to be tender over the scapular muscles but without tenderness around the shoulders and over the acromioclavicular joints. It found a mild reduction in the active range of movement bilaterally. It found rotator cuff power was preserved but testing of the supraspinatus power produced a complaint of pain. It noted the report of an ultrasound investigation of both shoulders taken on 27 September 2016 which revealed mild to moderate chronic tendinosis present in the supraspinatus bilaterally with moderate overlying bursitis.

65 Relevant to an observation made by the Panel when diagnosing Mr Devaney's shoulder condition (see below [66]), the Panel noted that Mr Devaney had developed diabetes in 2015.

66 Against that background, the Panel stated its physical diagnosis in respect of Mr Devaney's left and right shoulders in these terms:

The Panel noted that Mr Devaney experienced discomfort in his shoulder blades following the incident on 17 October 2005. The Panel further noted that Mr Devaney had further symptoms related to his left shoulder blade following a lifting incident in April 2009 . The Panel is of the opinion that Mr Devaney suffered soft tissue injuries to the scapular muscles on each occasion but did not suffer any condition or injury of either shoulder.

The Panel further noted that Mr Devaney developed discomfort in his neck which radiated into his left shoulder and down his left upper limb following the incident on 1 July 2016. The Panel is of the opinion that Mr Devaney's symptoms on that occasion represented referred pain from his neck condition and did not relate to any intrinsic shoulder condition or injury.

The Panel noted that Mr Devaney underwent ultrasound examination of both shoulders on 27 September 2016 which revealed imaging findings consistent with chronic tendinosis of the supraspinatus and bursitis. The Panel considered that such imaging findings are common in individuals of Mr Devaney's age, and even more so in diabetics.

The Panel noted the history obtained from Mr Devaney of pain in pectoral areas bilaterally but not in the shoulders themselves or in the upper arms which the Panel considered was not typical of intrinsic shoulder conditions. The Panel however noted its own examination of Mr Devaney which revealed mild reduction in the active range of movement in both shoulders, discomfort on supraspinatus testing and no evidence of impingement.

The Panel concluded that Mr Devaney is suffering from mild rotator cuff tendinitis in the left and right shoulders.

67 As to whether Mr Devaney's employment had been, and was presently, a significant contributing factor to his shoulder injuries, the Panel said:

The Panel formed an opinion that Mr Devaney suffered soft tissue injuries to the scapular muscles following work related incidents on 17 October 2005 and April 2009 but did not suffer any intrinsic condition or injury of either shoulder.

The Panel considered the nature of Mr Devaney's pre-injury duties which included heavy lifting and lifting arms above the shoulder height. The Panel is of the opinion that such duties affected Mr Devaney's mild constitutional rotator cuff tendinitis in his left and right shoulders leading to temporary exacerbation.

The Panel concluded that Mr Devaney's employment could possibly have been and was a significant contributing factor to the alleged mild left shoulder rotator cuff lesion with impingement and supraspinatus tendinitis injury and the alleged severe right shoulder rotator cuff lesion with tendinitis and impingement injuries .

The Panel however noted that Mr Devaney ceased employment in 2017 but his symptoms persisted. The Panel is of the opinion that unrelated factors such as Mr Devaney's age, diabetes and underlying degenerative changes in the shoulders were the primary factors responsible for his ongoing symptoms in the absence of exacerbating employment duties. The Panel is of the opinion that Mr Devaney's exacerbation of his mild constitutional rotator cuff tendinitis in both shoulders has resolved since he ceased employment and his current bilateral shoulder condition is related to degenerative changes alone.

The Panel further concluded that Mr Devaney's employment is no longer a significant contributing factor to the alleged mild left shoulder rotator cuff lesion with impingement and supraspinatus tendinitis injury and the alleged severe right shoulder rotator cuff lesion with tendinitis and impingement injuries.

68 As it did in relation to the neck injuries, the Panel listed a number of opinions of medical examiners whose views differed to its own with respect to Mr Devaney's shoulder condition and its relationship to his employment. Again, it observed that it had reached the same conclusion as those medical examiners regarding the initial relationship between Mr Devaney's employment and the medical condition of his shoulders, and regarding his present capacity for his pre-injury duties, but that it was of the opinion that his shoulder condition was no longer related to his employment for the reasons it had stated.

69 Mr Devaney's argument commenced with the observation that the Panel accepted that his workplace incidents in 2005 and 2009, and his employment activities of heavy lifting and lifting his arms above shoulder height, were productive of injury - at first, soft tissue injury to the scapular muscles and, later, an exacerbation of mild rotator cuff tendonitis. But Mr Devaney took issue with the Panel's conclusion that the mild rotator cuff tendonitis was, necessarily, a constitutional condition which was only exacerbated by his work activities, rather than a condition that was initiated or caused by his work activities. If it was the latter, he argued, then his ongoing symptoms and current work capacity should have been attributed to his employment.

70 Mr Devaney argued that the Panel has not explained how it arrived at a conclusion that the mild rotator cuff tendonitis pre-existed the workplace injuries; in other words, why it thought it was a constitutional condition. Further, he argued that because the Panel did not explain how it arrived at that choice - that is, a choice that it was a constitutional condition rather than a work-caused condition - it is not possible to discern whether the Panel's opinion was rationally reasoned or simply an impermissible leap of logic.

71 From these arguments Mr Devaney argues, variously, that the Panel's conclusion was made without evidence, or is lacking in logic, or has not been explained by any actual path of reasoning sufficient to enable the Court to discern whether an error of law has been made.

72 In addressing these arguments several findings of the Panel should be highlighted. The Panel found that:

(a) the injuries suffered in 2005 and 2009 after specific work incidents, involved soft tissue injuries to the scapular muscles without any damage to the intrinsic condition of either shoulder;

(b) medical imaging taken in 2016, was consistent with a chronic tendinosis in the supraspinatus, and bursitis, leading to a diagnosis of mild rotator cuff tendonitis in both shoulders;

(c) those image findings in Mr Devaney's shoulders were common in individuals of his age, and even more so in diabetics (as he was);

(d) inferentially, the nature of Mr Devaney's work activities were such that they could (and in the Panel's opinion, did) exacerbate any pre-existing rotator cuff tendonitis; and

(e) once Mr Devaney ceased his employment, and thus ceased performing the kind of activities which had previously produced symptoms in his shoulders, his symptoms nevertheless persisted.

73 In my opinion, it is a significant stretch to say that this Panel had no evidence upon which it could rationally or logically infer that Mr Devaney's diagnosis of rotator cuff tendonitis was constitutional, as opposed to having been caused (in the sense of initiated) by his work activities while employed at Crown. I say so for these reasons.

74 First, the Panel is a panel of expert medical practitioners whose expertise includes the diagnosis of this kind of condition. The Panel is not only entitled, but required, to apply its own medical expertise and experience to reach its own opinion, rather than to adjudicate on competing medical contentions.

75 Secondly, it is to be recalled that to succeed on this argument, I must be satisfied that there was not 'even the slightest evidence to support' the Panel's opinion that Mr Devaney's condition was constitutional.

76 Thirdly, with those principles in mind, I consider that the following matters constitute evidence capable of supporting the Panel's opinion:

(a) Medical imaging in 2016 revealed the mild rotator cuff tendonitis to be of a chronic nature.

(b) It was a condition common among persons of Mr Devaney's age (that is, regardless of work activity).

(c) It was even more common among diabetics such as himself.

(d) It was a condition of a degenerative nature (given the Panel's reference to 'underlying degenerative changes').

(e) There was a body of medical reports going back to 2006 available to the Panel, as well as Mr Devaney's own history, from which it could form a view about the behaviour and progress of the shoulder condition over time.

(f) Finally, at least one orthopaedic surgeon, Mr Ian Jones, had formed the same opinion in a written report dated 13 July 2017 (at page 14),[49] saying:

Clinically this patient suffers from a mild degree of rotator cuff degenerative disease in association with subacromial bursitis.

...

I do not believe that this patient's left or right shoulder complaints are the result of his employment with Crown ... Heavy lifting incidents could certainly exacerbate shoulder pain symptoms, but I do not believe they have been the cause of his shoulder complaints.

...

I believe the effects of any exacerbation caused to this man's shoulders during the course of his work have resolved.

77 Given that this material was before the Panel, the conclusion that Mr Devaney's rotator cuff tendonitis was constitutional was open to the Panel. The evidence did not compel the conclusion that the condition was first initiated by his work at Crown. What Mr Devaney puts as an impermissible leap of logic was, instead, the Panel's permissible choice, based upon its own expertise and experience, between two possible diagnoses. The choice it made was adverse to Mr Devaney but it made that choice possessed of evidence that could support that view.

78 I agree with Crown's submission that, in substance, Mr Devaney's contention amounts to an attempt to have the Court review the merits of the Panel's opinion regarding Mr Devaney's injuries to his shoulders.

79 On the basis of this analysis, I will briefly summarise my conclusions on each of the grounds of review advanced in respect of the Panel's opinion concerning Mr Devaney's cervical spine condition.

80 I find there was evidence to support the opinions expressed by the Panel regarding Mr Devaney's left and right shoulder condition.

81 The Panel's conclusions regarding Mr Devaney's left and right shoulder condition were based upon reasoning that was open to it on the evidence before it, and no different conclusions were mandated.

82 The Panel's reasons for its opinion regarding Mr Devaney's left and right shoulder condition adequately informs the reader of those reasons, and discloses an actual path of reasoning sufficient to enable the court to see whether the opinion involves an error of law. Upon its reasoning, no error of law is disclosed.

83 For those reasons, I reject Mr Devaney's contention that the Panel's opinion with respect to his left and right shoulder condition should be quashed.

84 In answer to question 1, the Panel stated that Mr Devaney had suffered a medical condition relevant to his alleged injury to his hips, namely 'constitutional femoroacetabular impingement in the left and right hips'. The Panel's opinion was that Mr Devaney's employment could possibly have been, and was in fact, a significant contributing factor to his alleged injury of bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis (question 2). But the Panel was further of the opinion that Mr Devaney's employment was no longer a significant contributing factor to his alleged hip injuries (question 3) and that any claimed incapacity for work did not result from, nor was materially contributed to by, those injuries (question 4).

85 The Panel took a history from Mr Devaney with respect to his bilateral hip conditions. The first incident of hip pain that Mr Devaney referred to occurred on 27 July 2014. Yet, the Panel had observed in the referral material an ultrasound examination of his left hip on 1 February 2014 about which Mr Devaney had no recollection, nor did he have any recollection of any symptoms relating to his left hip at that time.

86 As for the incident on 27 July 2014, Mr Devaney reported he had squatted to lift a tray of rice and that when he stood up he experienced pain in both groins. He attended his general practitioner and obtained imaging investigations which revealed abnormalities in both hips including labral tears and cam lesions. An orthopaedic surgeon operated on both hips: his left hip in or about 9 April 2015 and his right hip on or about 30 November 2015. The surgeon's reports described the nature of the surgery, which was arthroscopic in each case and included the repair of labral tears on both sides. The Panel noted that Mr Devaney's further treatment included cortisone injections into the left hip and left trochanteric bursa. Evidently, none of the treatments made any difference to his bilateral hip symptoms.

87 At his examination before the Panel, Mr Devaney reported discomfort in his groins and over the lateral aspect of both hips, and that both hips clicked when walking down a slope. He also reported that due to his bilateral hip problems (and another problem associated with his heel which is not the subject of this proceeding) he experienced difficulty standing for more than 45 minutes, walking for more than 20 minutes, sitting in low chairs (due to his hip symptoms only), running, squatting, some personal care and household activities, and driving for more than 15 minutes.

88 In terms of its own examination findings and clinical observations, the Panel reported that Mr Devaney was diffusely tender over the trochanteric and gluteal areas bilaterally, but that there was full range of active movement and no evidence of any irritability.

89 The Panel also noted a number of medical imaging reports. They included an ultrasound of the left hip on 1 February 2014, an x-ray of the right hip dated 8 August 2014, an ultrasound of the right hip dated 9 September 2014, an MRI of the right knee and hip dated 10 October 2014, an MRI and CT of the left hip dated 2 December 2014, and an ultrasound of the left groin and both hips dated 10 July 2017.

90 Against this background, the Panel stated its physical diagnosis in respect of Mr Devaney's bilateral hip conditions as follows:

The Panel noted that Mr Devaney underwent ultrasound examination of his left hip on 1 February 2014 which demonstrated features consistent with trochanteric bursitis. The Panel further noted that Mr Devaney developed bilateral groin pain following the squatting incident on 27 July 2014. The Panel noted that Mr Devaney underwent imaging investigations which revealed labral tears and cam lesions in both hips. The Panel further noted that Mr Devaney underwent surgical procedures on each hip and had cortisone injection into his left hip and left trochanteric bursa.

The Panel is of the opinion that Mr Devaney sustained labral tears in the setting of pre-existing congenital femoroacetabular impingement in his left and right hips. The labral tears were repaired surgically.

The Panel referred to its own examination of Mr Devaney which revealed normal range of movement in both hips without any irritability. The Panel concluded that labral repairs have been successful. The Panel further noted that its own examination of Mr Devaney revealed diffuse tenderness over the trochanteric and gluteal areas bilaterally, which in the Panel's opinion is inconsistent with trochanteric bursitis as in the Panel's experience trochanteric bursitis produces a very localised tenderness over the greater trochanter. The Panel is of the opinion that Mr Devaney has now recovered from any hip injury sustained in incident on 27 July 2014 and any current residual symptoms related to his hips and groins relate to constitutional femoroacetabular impingement.

The Panel concluded that Mr Devaney is suffering from constitutional femoroacetabular impingement in the left and right hips.

91 As to whether Mr Devaney's employment had been, and was presently, a significant contributing factor to his bilateral hip conditions, the Panel said this:

The Panel is of the opinion that Mr Devaney sustained labral tears in the setting of congenital femoroacetabular impingement in the squatting incident on 27 July 2014.

The Panel concluded that Mr Devaney's employment could possibly have been and was a significant contributing factor to the alleged bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis injury.

The Panel further noted that the tears were repaired surgically with a good result as evidenced by the Panel's own examination. The Panel is of the opinion that Mr Devaney's ongoing symptoms related to his hips arise from constitutional femoroacetabular impingement. While the Panel considered that Mr Devaney's constitutional hip condition may have been temporarily affected by his employment duties which included squatting, the Panel noted that he ceased employment in February 2017 and therefore any ongoing exacerbation of his underlying degenerative condition had ceased.

The Panel further concluded that Mr Devaney's employment is no longer a significant contributing factor to the alleged bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis injury.

92 Once again, the Panel listed a number of opinions with which it had been provided of medical examiners whose views differed to its own with respect to Mr Devaney's hip condition and its relationship to his employment. The Panel observed that whilst it reached the same conclusion as those medical examiners regarding the initial relationship between Mr Devaney's employment and his medical condition in relation to his hips, and regarding his present capacity for his pre-injury duties, it was of the opinion that his hip condition was no longer related to his employment for the reasons it had already stated.

93 Before addressing the arguments, it is useful to give a brief explanation about the anatomy of the hip. As explained in the evidence, and accepted in submissions, the hip is made up of a ball and socket joint. The ball is the head of the femur. The socket is called the acetabular or acetabulum. Thus, the femoroacetabular joint is where those bones intersect. On the surface of the acetabular is a cartilage called the labrum.

94 A cam-type femoral head deformity is one whereby the head of the femur, rather than being a round ball, is misshapen and resembles an engine cam (that is, more blockish). The deformity develops during early childhood and is properly characterised as constitutional or congenital. The deformity of itself need not produce any symptoms or problems and may remain silent during a person's life. On the other hand, it could become symptomatic without any trauma, or because of trauma.

95 Another feature of this deformity may be the growth of bony spurs on either the edges of the acetabular or on the femoral necks. Impingement (or catching) of the joint may be a characteristic of this deformity. Such impingement may also cause the labrum to tear.

96 Leaving that explanation, the submissions made in the proceeding disclosed a potential for ambiguity or misunderstanding in the use of the word 'impingement'. Used in one sense, it may simply be part of the description of the congenital cam-type deformity itself, whether or not the deformity is symptomatic. In another sense, the impingement may be regarded as something separate from the deformity; something which results from the deformity and produces damage to the surface of the acetabular or labrum and produces pain. In large part (although not entirely), Mr Devaney's criticisms of the Panel's opinion and reasons proceed from the assumption that impingement is not part of the congenital deformity but is something separate which occurs in the context of the deformity and produces damage and pain.

97 Both parties referred to the medical opinions of two orthopaedic surgeons that were within the materials provided to the Panel, namely one of Mr Richard Pease (report dated 29 January 2015) and another of Mr Ian Jones (report dated 3 July 2017). Mr Pease explained the hip condition as follows:[50]

You are largely correct in stating that the cam-type of femoral head impingement is due to an abnormality of the hip formation during childhood years.

...

One type of this problem is due to the fact that the femoral head develops in the shape of a cam rather than a round sphere. A cam lesion is so-called because it is shaped like an engine cam.

There is another type of this syndrome which is called the pincer. This is due to extra bone growing out from the acetabulum.

Either problem can be silent during the whole of the person's life, never giving rise to any symptoms.

However, if the underlying abnormality is injured it may give rise to pain and associated problems. Alternatively, in some patients the symptoms arise without there being any traumatic event.

98 Mr Pease's description lends support for the view that 'impingement' is (or at least can be) a description of the congenital deformity itself.

99 Mr Jones expressed these views of Mr Devaney's bilateral hip conditions (pages 15 and 16 of his report):[51]

The patient has x-ray evidence of pre-existing apparently asymptomatic bony spurs on both femoral necks which would predispose him to develop femoroacetabular impingement, particularly with recurrent activities of squatting.

Intensive x-ray investigation of this patient has revealed the presence of bony spurs involving the neck of his femur on both left and right sides. This constitutional pathology appears to have caused the condition of femoroacetabular impingement, although the patient has not (sic) previous symptoms of left or right hip complaint up until approximately August of 2015.

...

The nature of this patient's employment with Crown is not likely to have caused this man's left or right hip condition, but the repeated squatting associated with his work as a chef had the capacity to impinge on the acetabular margin of both hip joints and traumatised the labrum and damaged the joint surface.

100 It appears from that passage that Mr Jones used the term 'impingement' to refer to an anatomical or pathological phenomena that was the aggravation of the congenital deformity resulting in damage to the labrum and joint surface.

101 Be that as it may, the Panel appeared to use the term as part of its description of the pre-existing congenital condition. For example, in the second paragraph of its diagnosis (referred to above at [90]) the Panel expressed the opinion that Mr Devaney had sustained 'labral tears in the setting of pre-existing congenital femoroacetabular impingement'. It referred again to 'constitutional femoroacetabular impingement' as the explanation for his current residual symptoms. It used the same terminology repeatedly in its opinion as to the relationship between his employment and his bilateral hip conditions (as set out above at [91]).

102 In view of the different senses in which impingement may be understood, Mr Devaney argued that either the impingement was always present but the hip only became painful after the 27 July 2014 event; or, alternatively, an impingement only occurred because of that event and was productive of his pain. His main point was that the Panel did not deal with the (asserted) fact that there were no symptoms before the 2014 event and his condition only became symptomatic as a result of it. Mr Devaney criticised the Panel's reasoning as defying common sense because of the unexplained coincidence between the first occurrence of Mr Devaney's symptoms in association with the 27 July 2014 event: that is, the absence of any explanation from the Panel as to how his hip only became painful with that event and why he has continued to experience the same pain after the event if the pain is not related to it.

(a) there was no evidence before the Panel that the condition of femoroacetabular impingement on Mr Devaney's hips (ie the impingement of the cam deformity of the head of the femur on the acetabulum) was constitutional or, if there was, that such impingement was symptomatic prior to the 2014 squatting incident: so it was not open to the Panel to make or use such findings;

(b) the Panel did not, in its reasons, show its actual path of reasoning in reaching these conclusions; and

(c) the conclusions and opinions referred to were irrational, illogical and not based on findings or inferences of fact supported by logical ground.

104 In my view, this argument involves some dubious propositions. The first dubious proposition is that there was no evidence of any symptoms before 27 July 2014. As I have stated, the Panel pointedly referred to the fact that Mr Devaney had undergone an ultrasound examination of his left hip six months before the incident on 1 February 2014. In my opinion, a fair inference can be drawn from that fact alone, that Mr Devaney underwent that examination due to having experienced symptoms in his left hip.

105 In support of that inference, the ultrasound report of 1 February 2014[52] records that the clinical notes accompanying the ultrasound referral stated, '? Bursitis', implying that the reason for seeking an ultrasound was the possible presence of an inflammatory condition in the hip. Further, in the medical report of Dr Thomas Kossman (orthopaedic surgeon) of 18 December 2017 - being one of the reports to which the Panel referred as containing some contrary views to its own in relation to the hip condition - the doctor (who had interviewed and examined Mr Devaney) referred to the ultrasound of Mr Devaney's left hip on 1 February 2014 as having been preceded by Mr Devaney having 'suffered from pain in his left hip'.[53]

106 The second dubious proposition is, as I have indicated, that 'impingement' is necessarily indicative of the onset of symptoms. It may not always be used in that way, and it is not the way in which the Panel appeared to have used it.

107 From my reading of them, the Panel's reasons involved the following steps:

(a) Mr Devaney had an underlying condition of congenital femoroacetabular impingement before any workplace aggravation occurred;

(b) in February 2014 he had an ultrasound of his left hip which demonstrated features consistent with trochanteric bursitis (implying some existing inflammatory pathology and, inferentially, some existing symptoms of pain);

(c) the 27 July 2014 squatting incident caused tears in the labrum of each hip in the setting of the congenital femoroacetabular impingement (whether or not each hip had already been symptomatic to that point);

(d) the labral tears and associated trochanteric bursitis amounted to a temporary injury which caused pain but was subsequently repaired so that the injury was no longer responsible for symptoms;

(e) the repair of the tears that had caused the symptoms in 2014 was confirmed by the Panel's own physical examination of Mr Devaney in 2019, which revealed a normal range of movement without any irritability or tenderness of the kind that would typically indicate trochanteric bursitis; and

(f) with the cessation of the squatting movements that had previously exacerbated the congenital hip condition, any ongoing symptoms or limitations of movement were best explained as the effects of his underlying degenerative congenital condition.

108 The Panel's reasoning involves it making a judgment that the underlying condition could be (and is) now producing symptoms independently of the effects of his previous workplace aggravations. It also involves a judgment that the workplace aggravations of his hip condition did not instigate the painful condition of his hip that he is now experiencing. In the Panel's judgment the exacerbations to his hip pathology caused by the work activities were only temporary, have now been repaired and are no longer responsible for, or causative of, the symptoms he experiences today.

109 In my opinion, there is nothing illogical or irrational about this reasoning. It emerges from, and is based upon, evidence that was before the Panel. The real issue, in my view, is whether the Panel's reasons are adequate in the sense that they enable the Court to see whether the opinion does or does not involve an error of law. Does its reasoning obscure whether or not it may have involved an error of law?

110 Relevantly, the opinion may have involved an error of law if the Panel had failed to take into account the fact that Mr Devaney had continued to experience symptoms of pain from the time of the 27 July 2014 squatting event, and (arguably) thereby had failed to take a relevant consideration into account. Or the opinion would arguably have involved an error of law if the Panel had failed to understand and apply the correct concept of injury such that where a pre-existing non-symptomatic condition is made painful by a work-related event or activity, and remains painful because of that event or activity, it is an injury to which employment has made a significant contribution.

111 But the Panel's reasons disclose that it did take into account the fact that Mr Devaney's symptoms continued after the 2014 squatting event. I refer to the fact that it recorded that none of Mr Devaney's treatments after his 2014 squatting incident made any difference to his bilateral hip symptoms. Secondly, its reasons show that it did understand and apply the concept that an exacerbation of an underlying condition may amount to injury. I refer to the fact that the Panel explained that, in its opinion, the injury Mr Devaney sustained in July 2014 (which the Panel concluded had been successfully repaired) and other effects from his employment duties including squatting, were only responsible for temporary symptoms rather than 'ongoing exacerbation of his underlying degenerative condition'. Here, it is noted, the Panel explicitly used the language of the extended definition of injury.

112 From this I am satisfied that the Panel has provided legally adequate reasons in the sense I have described. Mr Devaney may criticise the Panel's opinion as 'defying common sense', but to invite the Court to substitute its own version of common sense for that of the expert Panel members is clearly to invite the Court to undertake a review of the merits of the Panel's opinion which, of course, would stray beyond the Court's task.

113 On the basis of this analysis, I will briefly summarise my conclusions on each of the grounds of review advanced in respect of the Panel's opinion concerning Mr Devaney's bilateral hip condition.

114 I find there was evidence to support the opinions expressed regarding Mr Devaney's bilateral hip condition.

115 The Panel's conclusions regarding Mr Devaney's bilateral hip condition were based upon reasoning that was open to it on the evidence before it, and no different conclusions were mandated.

116 The Panel did not fail to understand that an exacerbation of a non-symptomatic pre-existing medical condition such that it became painful (and thus symptomatic) was itself an injury.

117 The Panel's reasons for its opinion regarding Mr Devaney's bilateral hip condition adequately informs the reader of those reasons, and discloses an actual path of reasoning sufficient to enable the court to see whether the opinion involves an error of law. Upon its reasoning, no error of law is disclosed.

118 For those reasons, I reject Mr Devaney's contention that the Panel's opinion with respect to his bilateral hip condition should be quashed.

119 It follows that I am not persuaded that the Panel committed any jurisdictional error in forming its opinions in answer to the questions referred to it in respect of any of the medical conditions the subject of this proceeding, or in the reasons it expressed for those opinions. The proceeding must be dismissed.

[1] 'Certificate of Opinion' dated 26 August 2019, page 1. The 13 injuries were: the neck including cervical spondylosis; the back; mild left shoulder rotator cuff lesion with impingement and supraspinatus tendonitis; severe right shoulder rotator cuff lesion with tendonitis and impingement; bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis; chronic plantar fasciitis of the left foot; chronic plantar fasciitis of the right foot; depression and anxiety secondary to the above physical injuries; temporomandibular disorder; hernias; left foot including left great toe; right foot including right great toe; and wrists, forearms, elbows and hands.

[2] Maimonis v Bourke [2019] VSCA 302 ('Maimonis').

[3] Workplace Injury and Rehabilitation Act 2013 (Vic) s 302 ('WIRC Act').

[4] Ibid s 3 (definition of 'medical question').

[11] Maimonis (n 2) [51] (footnotes and citations in the original).

[12] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47] ('Wingfoot'); Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281, [59]; Reasons [47].

[13] Body Corporate Strata Plan No 4166 v Stirling Properties Ltd [No 2] [1984] VicRp 73; [1984] VR 903, 913; Dixon v Hacker [2007] VSC 342, [41]-[42]; Ventrice v Riva Plaster Pty Ltd [2008] VSC 415, [12]; Reasons [47].

[14] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2; Dixon v Hacker [2007] VSC 342, [44]; Reasons [47].

[15] Wingfoot (n 12), 501-2 [55]-[56].

[17] Australian Broadcasting Commission v Bond [1990] HCA 33; (1990) 170 CLR 321, 359-360 (Mason CJ) ('ABC v Bond'); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418 [90] ('Kostas').

[19] SZMKV v Minister for Immigration and Citizenship [2010] FCA 56; (2010) 118 ALD 232 at 243 [37] (Kenny J) ('SZMKV').

[21] S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).

[22] Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 (Gummow and Hayne JJ at 998 [37]‑[38]).

[23] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(Gummow and Kiefel JJ 625 [40], and Crennan and Bell JJ 648-50 [132]-[135]).

[25] Rees v County Court [2011] VSC 67, [19] (Cavanough J) ('Rees'); Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154, [108] (Emerton J) ('Barro').

[26] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [97] - [99] ('Ryan (CA)'); and Chang v Neill [2019] VSCA 151 [147]).

[27] Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 (Kyrou J) ('Ryan, (1st instance)').

[29] Rees (n 25), [22] (Cavanough J).

[30] Barro (n 25), [108] (Emerton J).

[31] Ryan (1st instance) (n 27), [98] (Kyrou J).

[32] Extracted in Ryan (CA) (n 26), [97].

[33] Wingfoot (n 12) [2013] HCA 43; (2013) 252 CLR 480.

[36] [2018] VSCA 124, [39].

[37] See above [16].

[38] Recently restated by the Court of Appeal in Maimonis (n 2) [51]. See also, Dundar v Bas [2019] VSCA 316 [48] and [51].

[39] Woolworths Ltd v Warfe [2013] VSCA 22 [130]-[131]; Dias v Oakleigh Centre Industries [2016] VSC 115 [29].

[40] See question 1 extracted at [5] above, and the extended definition of injury in the WIRC Act extracted in paragraph [13] above.

[41] See passage extracted at [37]above.

[42] 'Plaintiff's Submissions' filed 19 March 2020, [9].

[45] Certificate of Opinion (n 1), 14 and 29.

[47] 'First Defendant's Outline of Submissions' filed 28 April 2020, see the reports listed at paragraph [31].

[49] 'Court Book' in Devaney v Crown Melbourne Ltd & Ors, S ECI 2019 04865, 934 ('Court Book').