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[2022] VSC 719
General information, not legal advice.
Supreme Court of Victoria
2022-11-24
WALKER JA
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial review - Medical panel - Panel's reasons referred to new medical evidence - Applicant not provided with new evidence nor opportunity to make submissions on it - Whether breach of procedural fairness - Whether material 'truly new' - New evidence not available to parties - Error established - Whether error material - Error could have made difference - Whether reasonable apprehension of bias - Doctor said to applicant 'don't hate' employer - Comment capable of various interpretations - Apprehended bias not made out - Panel's opinion quashed - Matter remitted to differently constituted panel.
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; Jones v Fish [2020] VSC 542 applied. Wurth Australia Pty Ltd v Gallichio [2010] VSC 630, discussed. Kirkpatrick v Commonwealth [1985] FCA 440; (1985) 9 FCR 36; Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351; De Tarle v Comcare [2022] FCA 175, distinguished.
1 The plaintiff, Mr Noureddine, worked for the seventh defendant, Visy Board Pty Ltd ('Visy') from 1998 to March 2020. In February 2015 he suffered a stroke while entering his car at the Visy car park. He has since experienced various medical impairments attributed to the stroke, including persisting receptive and expressive dysphasia, cognitive dysfunction and an adjustment disorder with mixed anxiety and depressed mood. In June 2018 Mr Noureddine made a claim for worker's compensation in relation to the stroke. He alleged that his work was a significant contributing cause of the stroke, based in substance on work-related stress. His claim was initially rejected, and he commenced a proceeding in the Magistrates' Court disputing that rejection. A medical panel (the 'first panel') gave an opinion in 2019 that his employment was a 'significant contributing factor' to the stroke injury. The claim was then accepted.
2 In May 2020 Mr Noureddine made an application for common law damages under s 328(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') based on the stroke and its sequalae. In that proceeding a judge of the County Court referred to a medical panel (the 'panel') a series of questions relating to Mr Noureddine's medical conditions. One of the questions was whether Mr Noureddine's employment with Visy was 'a significant contributing factor to the alleged stroke injury'. The panel concluded that the answer to that question was 'no'.
3 The panel accepted that Mr Noureddine was likely stressed by his workplace difficulties. It also had before it reports from various practitioners that addressed the question whether Mr Noureddine's work-related stress could have been a contributing factor to the stroke. It noted the conclusion of the first panel. It then said this:
[N]ew published evidence in 2020 has more thoroughly examined the hypothesis of work-related stroke and summarised that evidence to date is inconclusive.
Based on this information, the Panel considered that it was probable that the stroke would have occurred, irrespective of whether his employment had taken place and that the onset of the stroke was not affected by his employment in any way.
4 The 'new published evidence' was not provided to Mr Noureddine prior to the panel's decision. Nor has it been provided to Mr Noureddine since the panel's decision, and it is not before this Court in this application for judicial review. Mr Noureddine's counsel informed the Court that he had not sought to obtain a copy of the 'new published evidence' from the panel.
5 In the course of the panel's examination, Mr Noureddine was asked about his relationship with Visy. He told the panel that he had a good relationship with his employer. Notes by one panel member recorded 'Boss - "loved him", got on well with Pratts, "would do anything for them"'. The reference to the Pratts reflects the fact that Visy is controlled by the Pratt family. At the end of the examination another member of the panel, Dr Habersberger, said to Mr Noureddine 'Don't hate the Pratts'.
6 Mr Noureddine now seeks judicial review of the panel's decision on three grounds:
(a) the panel failed to accord Mr Noureddine procedural fairness by relying on the 'new published evidence in 2020' without having provided that material to Mr Noureddine and inviting him to comment or provide further submissions or material;
(b) the panel failed to accord Mr Noureddine procedural fairness by departing from the assumption and/or accepted position between the parties that stress can be a recognised risk factor for stroke injury without first giving notice to him and inviting further submissions or materials on that issue; and
(c) Dr Habersberger's remark 'Don't hate the Pratts' gave rise to an apprehension of bias in favour of Visy.
7 At the hearing of this matter counsel for Mr Noureddine said that the first two grounds set out above are, in substance, part of a single ground. I shall refer these as 'ground 1', and I shall refer to the apprehension of bias ground as 'ground 2'.
8 In my opinion ground 1 is made out. It is thus not strictly necessary for me to consider ground 2, but I note for completeness that I do not consider that ground to be made out.
9 It is necessary to set out in some greater detail the factual circumstances giving rise to Mr Noureddine's claim.
10 As already noted, Mr Noureddine commenced working for Visy in 1998. In 2005 he was appointed as operations manager of Visy's site at Coolaroo, and in November 2011 he was appointed as the operations manager of Visy's Dandenong site. He reported that he started experiencing stress in his workplace from around 2011. In November 2014 Mr Noureddine became operations manager of both the Coolaroo and the Dandenong sites.
11 Mr Noureddine's pre-injury employment involved managing about 300 employees, attending daily meetings, overseeing customer deliveries, and maintaining the client relationship between Visy and a large customer. Mr Noureddine told the Panel that he was working 75-80 hours per week and that there was considerable pressure from his employer in relation to his performance.
12 On 2 February 2015 he fractured the 5th metatarsal in his left foot in an accident at work. He attended hospital where he was fitted with a cast, and returned to work the same day. On 5 February, when entering his car at the Visy carpark, he suffered a stroke. Mr Noureddine told that Panel for about a week, including prior to and following the incident on 5 February 2015, he had been experiencing frequent headaches and that he felt that he 'couldn't work properly' as a result.
13 On 17 February 2015 Mr Noureddine made a claim in relation to the injury to his ankle. The claim was accepted.
14 Mr Noureddine made a claim in relation to the stroke injury in 2018. That claim was initially rejected on the basis that the stroke did not arise out of or in the course of his employment. However, following the decision of the first panel on 23 December 2019 the claim was accepted and Mr Noureddine received compensation payments under the WIRC Act.
15 The first panel was comprised of a cardiologist, a neurologist and an occupational and environmental physician. The first panel considered Mr Noureddine's work history and his risk factors for the development of a stroke and his description of his symptoms following the stroke. It noted that, 'apart from a remote history of smoking for a period of less than four years, and mildly elevated LDL-cholesterol in 2003', Mr Noureddine had 'no risk factors for a stroke'. It considered that the elevated LDL-cholesterol was 'counterbalanced by satisfactory levels of HDL-cholesterol' and had not persisted over the 12 years after 2003.
16 In relation to the connection between stress and stroke, the panel said as follows:
[S]ustained high stress levels, particularly when coupled with long hours of work, are documented to be associated with physiological effects, including elevated heart rate, high blood pressure and hypercoagubility, and the Panel considered that in the absence of other significant risk factors, the nature of [Mr Noureddine's] employment duties, particularly during the period between November 2014 and February 2015 would have placed a significant role in the development of his left middle cerebral artery stroke.
17 The first panel concluded that Mr Noureddine suffered from a mild cognitive dysfunction of psychosomatic origin, following his stroke. It also concluded that his employment with Visy, particularly during the three months preceding the stroke, 'was a significant contributing factor' to his stroke injury. It also concluded that his current medical condition was not materially contributed to by his left foot injury.
18 The material before the panel relevantly included the first panel's decision and the following medical reports:[1]
(a) a report by Professor Davis in 2019;
(b) two reports by Dr Faragher in 2018;
(c) a report by Dr Hammond in 2020;
(d) a report by Dr Seneviratne in 2020; and
(e) a report by Mr Jackson in 2020.
19 Relevant extracts from those reports are as follows:
3. In your opinion, what has caused the worker's injury or medical condition?
The worker's injury or medical condition is left middle cerebral artery stroke sustained on 5 February 2015.
The [injury] occurred in the setting of working 7 days a week, 10 to 14 hours a day, supervising 300 employees and in the midst of re-negotiating a major contract.
Two days prior he sustained a fractured left 5th metatarsal as a workplace injury when stepping off a conveyor.
He had also been experiencing frequent, if not daily, headaches which he recalls as he was uncharacteristically taking frequent paracetamol.
The cause of the stroke would be determined by reviewing the appropriate stroke workup eg:
ECG
Holter monitor
Cardiac echo (Transthoracic, Transoesophageal)
Blood tests including hypercoagulability screen if indicated
Imaging of carotid arteries
Apart from a holter monitor result (W16) (26/3/15), this information has not been supplied.
Given the worker ended up on aspirin and has not had carotid endarterectomy, it is possible all investigations were negative and the stroke was deemed 'idiopathic'. However, I do not have the information to definitely reach that conclusion.
...
It could be argued that the circumstances that led up to the stroke injury that is, the foot fracture 2 days prior, extreme busyness in the setting of frequent headaches (?migraines), all made some contribution to the development of the stroke.
Possible aetiologies for the stroke would include:
DVT related to the left foot fracture and cast with paradoxical embolism (need trans oesophageal echo result).
The body's response to injury (left 5th metatarsal fracture) (general inflammatory state), may have led to a hypercoagulable state and then the stroke.
3. Idiopathic.
(b) Dr Faragher's further report, dated 26 October 2018:
In regards to Question 3, reviewing the notes from Monash Medical Centre, the letter of 13 February, 2015 discusses the arterial brain supply that is, the cavernous portions of the internal carotid arteries.
It does not specifically discuss the carotid arteries in the neck. I do not see a result of a CTA for example, of the neck or a carotid ultrasound.
These results would be helpful in thinking about the aetiology.
The Monash Neurology letters imply that this result was normal.
Another issue is the stroke could have been due to is [sic] paradoxical emolus, which may only be revealed on transoesophageal echo.
(c) Professor Davis' report, dated 19 June 2019:
He cased smoking likely in 2011 and there were really no evident risk factors for the ischaemic stroke. There was no previous history of hypertension, hypercholesterolaemia, diabetes or atrial fibrillation.
Stress and depression are both recognised as being risk factors for stroke and there seem to be good documentation of quite substantial stress in his occupation as indicated in your covering letter. Stress and depression are risk factors but cannot be attributed as the direct cause of the stroke but would increase statistically the likelihood of stroke so they cannot be discounted.
The other issue is the fractured metatarsal which occurred only three days before the stroke. I have read the report of the neurologist Dr Mark Faragher. I cannot see a direct relationship between the fracture and the ischaemic stroke. It is of course possible that the patient had a deep-vein thrombosis and paradoxical embolism through the patent foramen ovale to the left middle cerebral territory. This has just not been proven but potentially was a mechanism for the stroke. There is reference on the echocardiogram report to a small patent foramen ovale but no reference to deep-vein thrombosis. It is conceivable that there was a mechanistic link but impossible to prove. I find it very surprising that he returned to work immediately after this fracture with his leg in a plaster. Dr Faragher also points out that he may have had a somewhat hypercoagulaable state as a result of the fracture, another possible link.
To summarise, there are three possible factors in terms of the stroke risk that may have been impacted by his work. I have addressed the issue of stress above, a recognised risk factor. It is possible that the fractured metatarsal rendered him somewhat hyperfoagulable and it is even possible that he sustained a paradoxical embolism through the PFO from an unrecognised DVT. These are really quite theoretical considerations and at the end of the day all one can say is that a specific cause for this brain embolus has not been identified. I would consider that he was at somewhat increased risk because of the stress at work and potentially from the fracture but one cannot regard this as a direct causal relationship.
To summarise, one cannot say that [it] is more likely than not that his work was the cause of the stroke but I have pointed out that he was at somewhat increased risk because of these factors. A contributory relationship is certainly plausible.
(d) Dr Hammond's report, dated 21 July 2020:
1. Please summarise the enclosed clinical records, in particular please identify and comment on any risk factors for stroke.
Refer above.
Specific 'risk factors' for stroke in Mr Noureddine's case include:
Adverse family history (father - diabetes, mother - elevated scrum cholesterol).
Elevated low density lipoprotein (LDL) cholesterol (LDL cholesterol 2.5 mmol/L, higher than ideal).
Previous smoking (varied reports concerning duration, prescription of nicotine replacement therapy in 2011).
Previous ingestion of anabolic steroids.
Ingestion of 'gym powder' of unknown composition (?anabolic steroids).
Previous palpitations (?paroxysmal atrial fibrillation, undiagnosed).
Stress and depression (as reported by Professor Davis).
(Comment - as alluded to by Professor Davis, there have been reported correlations between the occurrence of stress and depression, and the occurrence of stroke.
Guiraud V. et. Al. (stroke, 2010 November; 41(10): 2669-77) reviewed 26 studies, which focused mainly on acute alcohol abuse and clinical infection. They reported that other potential triggers for ischaemic stroke had been far less investigated. They did report an association between psychological distress and ischaemic stroke, but pointed out that studies were frequently of poor design, patients were rarely blinded to such objectives and interviewers rarely blinded to patients' status. They concluded that more research was needed on factors (that might trigger stroke) including acute stress.
In a long term follow up study, conducted in Goeteborg, Sweden, a cohort of 7457 men were followed prospectively, commencing in 1970. Harmsen P et al (Stroke 2006 July; 37(7); 1663-7) reported that, amongst other factors, stress was associated with an increased risk of stroke over a period of 21 years, although the correlation coefficients were relatively low, with wide standard deviations.
In addition, close examination of the publication reveals that large numbers of data points were absent, casting doubt as to the validity of the conclusions of the study.
Notwithstanding the association of 'stress' over time, as reported, there is little or no published evidence to relate an acute or particular episode of stress, to the acute occurrence of a stroke. Macko RF et al (Stroke, 1996 Nov; 27 (11): 1999-2004) conducted a Case Control Study, reach the conclusion that 'the results of this study argue against a role for recent psychological stress as a precipitant for cerebral infarction'.
...
4. What was the cause of the worker's apparent stroke on 5 February 2015
Mr Noureddine can be described as having suffered from a cryptogenic stroke (of unknown origin), which account for some 25% of all strokes. (Hart RG et al Lancet Neurol, 2014 April; 13 (4): 429-38).
Given his presentation, I believe that it is most likely that he suffered from an embolic stroke.
The symptoms described in the period prior to the stroke (headache, visual disturbance, minor incoordination) are not compatible with cerebral ischaemia involving the left cerebral hemisphere, on an anatomical basis. As suggested by Dr Faragher, I believe that these symptoms most likely represented a migrainous episode. As such, I believe that the Medical Panel has placed inappropriate reliance on the symptoms, which occurred prior to the stroke.
I am in agreement with the opinion of Professor Davis, that the stroke was most likely thromboembolic in origin. Mr Noureddine can then be described as suffering from an embolic stroke of unknown source (ESUS). Such strokes (SUS) account for some 17% of strokes overall.
I believe that the most likely cause of the stroke occurring was that of a thromboembolic episode, with a clot (embolus) moving from either a cardiac source (left atrial appendage) or from an underlying area of atherosclerosis, involving the aortic arch or proximal common carotid artery. If the stroke originated from the left atrial appendage, it is conceivable that Mr Noureddine suffered from an asymptomatic episode of an atrial arrhythmia, noting his past history of investigation for palpitations.
5. Do you believe the alleged work related stress was a significant contributing factor to the worker's stroke injury?
I agree with the conclusion of Professor Davis, that although Mr Noureddine may have experienced stress and/or other psychological issues in relation to his work, and although such factors may statistically have increased his likelihood of stroke, it is not possible to relate the occurrence of the stroke with any certainty, to the stress that Mr Noureddine reportedly experienced in the workplace.
...
14. Please make any other comment you feel might be indicated
Mr Noureddine is best regarded as having suffered from an embolic stroke of unknown source. As noted by Professor Davis, Mr Noureddine can be regarded as being at an increased risk of stroke, because of reported stress at work. I am in agreement with the opinion as stated by Professor Davis that 'it is not possible to state that it is more likely than not, that (Mr Noureddine's) work was the (immediate) cause of his stroke'.
(e) Dr Seneviratne's report, dated 9 October 2020:
- Please summarise the enclosed medical records in particular, please identify and comment on any risk factors for stroke.
In my opinion, the risk factors for the worker's stroke would be identified as 1. Brief history of smoking in the past. From the records it is not clear when he exactly ceased smoking but it appears that he had ceased smoking at least 5 years or more prior to the onset of the stroke and he has smoked only for 3 to 5 years. There are no other identifiable risk factors for stroke such as hypertension, hyperlipidaemia, or family history of vascular events. He does not drink alcohol. The extreme amount of stress at work that the worker experienced leading up to the stroke could also be regarded as a possible risk factor for his stroke.
...
What was the cause of the worker's apparent stroke on 5th February 2015?
In my opinion, it is not clear as to the exact aetiology or the cause for the worker's apparent stroke on 5th February 2015. This appears to be a embolic stroke and the origin of the blood clot is not clear.
Do you believe the alleged work related stress was a significant contributing factor to the worker's stroke injury?
Apart from having smoked for a brief period of time in the past, the worker does not have other risk factors for stroke. From the information that I have, it appears that the worker was quite fit and healthy prior to the stroke. Increased stress can certainly be a risk factor for strokes, and it appears that the worker was extremely stressed with his work leading up to the stroke that occurred on the 5th February 2015. However, from the information that is available to me, I cannot state with certainty that the alleged work related stress was a significant contributing factor to the worker's stroke injury.
Do you believe the worker's stroke injury was significantly contributed to by his left foot injury suffered on the 2nd February 2015?
In my opinion, there is no sufficient evidence to state that the worker's stroke injury was significantly contributed to by his left foot injury suffered on the 2nd February 2019.
...
Do you believe the worker's employment remains a materially contributing factor to his current condition?
As state previously and [as] has also been commented on by Professor Davis and Dr Hammond, the worker's employment could be regarded as a risk factor/contributing factor that led to his stroke. I cannot definitely state that the worker's employment was a significant contributing factor to his stroke.
19. Do you believe the worker's employment is a material contributing factor to his current condition?
I am of the opinion that Mr Noureddine's employment is a material contributing factor to his current condition.
20. What do you believe is the significance of the worker's prior psychological issues before the 2015 stroke?
It is noted that Mr Noureddine was under considerable stress in the workplace prior to his stroke. It is certainly known in the report and the scientific literature that higher levels of stress can lead to cerebrovascular accidents (such as a stroke). Therefore, I am of the opinion that there is a high likelihood that his prior psychological issues related to the workplace in the months prior to his stroke are of major significance. It is noted that in late 2014, he had to not only manage his own plans, but also manage the Coolaroo plant, basically doubling his work role without what appeared to be any additional support. He reports that he was under significant stress due to having to manage both plants, as well as the significant travel every day. I am of the opinion that the psychological issues from the year 2000 in relation to insomnia are not relevant, as this was due to shift work.
The parties' joint statement and submissions to the panel
20 The parties provided a joint statement to the panel that briefly summarised the circumstances of Mr Noureddine's employment and the injuries he had suffered. The joint statement identified the issues in dispute as being:
14. The nature of the Plaintiff's medical condition, if any, of the:
(a) left foot including fracture of the 5th metatarsal;
(b) stroke, with residual cognitive dysfunction;
(c) psychological / psychiatric injuries including anxiety, stress, depression and cognitive dysfunction of a psychosomatic origin.
- Whether the Plaintiff's employment with the Defendant was a significant contributing factor to the alleged stroke injury.
- Whether the Plaintiff's alleged stroke injury result from, or was materially contributed to by, the Plaintiff's left foot injury.
- Whether any medical conditions assessed by the Medical Panel result from or are materially contributed to by any injury sustained by the Plaintiff in the course of his employment with the Defendant.
- Whether any medical conditions assessed by the Medical Panel are 'permanent'.
21 The second issue there identified - whether Mr Noureddine's employment significantly contributed to his stroke injury - was the key question for present purposes.
22 Each party also provided submissions to the panel.
23 Mr Noureddine submitted that both the injury to his foot (which had occurred in the course of his employment) and his stressful work environment were significant contributing factors to his stroke injury. In relation to the latter, Mr Noureddine's submissions pointed to his affidavit evidence concerning a stressful and hostile work environment in the months prior to the occurrence of his stroke. This included a high staff turnover at the Dandenong worksite, union and WorkSafe officials regularly attending, Mr Noureddine receiving death threats and being assaulted, his assumption of more responsibility as operations manager of two worksites following a restructure, and the risk of losing Visy's biggest client. He deposed to his significant increased workload, long hours, and being extremely fatigued and stressed with regular headaches. The submissions then drew attention to the passage from the first panel quoted above. He also submitted that there was no evidence that his stroke injury 'would probably have occurred if his employment had not taken place.' He submitted that the medical reports relied upon by Visy in that regard were speculative. He also submitted that there can be more than one significant contributing factor in relation to an injury, and that employment may be such a factor even if other factors are more significant.
24 In contrast, Visy submitted that the pathophysiological mechanism of causation/contribution for Mr Noureddine's stroke was 'far from being settled'. It submitted that the fact that Mr Noureddine was relying on both the foot injury and workplace stress 'highlight[ed] the inherent insufficiency of evidence for either mechanism'. Visy submitted that there was insufficient evidence for the panel to be satisfied that Mr Noureddine's employment was a significant contributing factor to his stroke. It noted the first panel's finding on this issue, but observed that the decision of the first panel was not binding on the panel. Visy submitted that cardiovascular incidents are common in the community generally and that Mr Noureddine had several indicia for risk. It submitted that a number of independent medical experts had not been able to identify the pathological origin of Mr Noureddine's stroke. In those circumstances, it submitted, it was open to the panel to find it probable that Mr Noureddine would have suffered a stroke even if his employment had not taken place.
25 Of particular relevance for present purposes were the submissions Visy made in relation to the connection between a stressful work environment and Mr Noureddine's stroke. It submitted as follows:
(a) Dr Faragher, a neurologist, was unable to reach a conclusion as to the cause of Mr Noureddine's stroke.
(b) Professor Davis, a clinical neurologist, noted that Mr Noureddine's history of stress and depression were statistical risk factors amongst others present at the time, but concluded that these could not be attributed as the direct cause of the stroke.
(c) Dr Seneviratne, a neurologist, was unable to provide an opinion as to the exact cause of the stroke.
(d) Dr Hammond, an associate professor of medicine, identified seven potential risk factors that were or may have been influential in Mr Noureddine's case, but concluded that the stroke was of unknown origin. He examined the state of the medical evidence for the hypothesis that stress was causally implicated, cited a meta-analysis from 2010 to the effect that studies that reported an association were 'frequently of poor design', and noted that notwithstanding the association of stress over time, there was 'little or no published evidence to relate an acute or particular episode of stress to the acute occurrence of a stroke'. He also referred to a study from 1996 that concluded that 'the results of this study argue against a role for recent physiological stress as a precipitant' for stroke.
26 Visy thus submitted to the panel that the consensus of opinion was that Mr Noureddine's employment was unlikely to have been a contributing factor to his stroke.
27 The panel concluded that Mr Noureddine's employment was not a significant contributing factor to his stroke injury. The relevant passages of its reasons are as follows:
The Panel noted that the issues in dispute relate to the nature of Mr Noureddine's medical condition, if any, whether Mr Noureddine's employment with the Defendant was a significant contributing factor to the alleged stroke injury, whether Mr Noureddine's alleged stroke injury result from, or was materially contributed to by, Mr Noureddine's left foot injury, whether any medical conditions of Mr Noureddine result from or are materially contributed to by any injury sustained by Mr Noureddine in the course of his employment with the Defendant, and whether any medical conditions are 'permanent'.
...
The Panel noted from the referral material, Mr Noureddine's history of having had no specific risk factors for stroke, including being a non-smoker since 2011, being of the relatively young age of 49 years, having engaged in regular exercise, not drinking alcohol, having had no history of hypertension, hyperlipidaemia, diabetes, arrhythmia, arterial disease or coagulation disorder, and having had no significant relevant family history, although his deceased father had suffered from diabetes and his mother was receiving treatment for hyperlipidaemia.
28 The panel then set out the history it took from Mr Noureddine, including his psychiatric history, and his current physical and psychiatric symptoms. It summarised its physical examination and noted that it had received no medical imaging. It then made the following comments in relation to the first panel:
The Panel noted the Certificate of Opinion and Reasons for Opinion of a differently-constituted Medical Panel ('the first previous Panel') dated 23 December 2019, wherein it concluded that Mr Noureddine was suffering from 'a mild cognitive dysfunction of psychosomatic origin following a left middle cerebral artery stroke' and that his employment with the Defendant was a significant contributing factor to the alleged stroke injury.
The Panel understands that a Medical Panel gives its Opinion upon the questions that are referred to it. In accordance with the Court of Appeal decision of McVey v Smith [2014], while a Medical Panel must have regard to an earlier Medical Panel opinion, it is not bound to apply any of its conclusions, and when forming its opinion, it does so relying on its own medical expertise and experience after consideration of the material provided with the referral and its own examination findings.
29 The panel then summarised the various medical reports provided to it, several of which have been set out in the excerpts above. Under the heading 'Significant Contributing Factor', the panel then said this:
The Panel further considered that Mr Noureddine was likely stressed by the workplace difficulties he described from approximately 2011 onwards, until the time of the stroke in February 2015, with anxiety described by Mr Noureddine, though he did not describe these symptoms as reaching the severity to reflect him having developed a psychiatric condition (apart from the relatively brief period in 2012), and further, there was nothing in the provided contemporaneous documentation from his general practitioner, who he was regularly attending for prescriptions for sleeping medication, to suggest that he had a psychiatric illness from late 2012 until the time of the stroke in early 2015. The Panel also noted that the psychologist who saw Mr Noureddine immediately after his stroke made no mention of work-related psychiatric symptoms prior to the stroke. The Panel therefore concluded that while Mr Noureddine was under some pressure in his workplace, that he did not have a psychiatric condition prior to the stroke in February 2015 (apart from the likely adjustment disorder with mixed anxiety and depressed mood during part of 2012, which resolved that same year).
The Panel took account of the duration of Mr Noureddine's employment, the nature of the work performed, and the particular tasks of employment, as detailed above, noting that notwithstanding the demands of his employment, there was no indication that he had a psychiatric illness from late 2012 until the time of the stroke in early 2015. The Panel also considered the probable development of the stroke injury occurring if that employment had not taken place, the existence of any hereditary risks, the lifestyle of Mr Noureddine and his activities outside the workplace. The Panel noted that although his work duties were at times stressful and emotionally demanding, he was coping with these demands ... at the time of the incident, and he had not suffered from any psychiatric condition from late 2012.
The Panel noted the known risk factors for stroke, which include gender, age, hypertension, smoking, elevated cholesterol, diabetes, atrial fibrillation and chronic kidney disease. The Panel noted that he was not suffering from any cardiovascular risk factors at the time of the incident, including abnormal lipid profiles. The Panel noted that psychological stress is not a recognised independent risk factor.
The Panel specifically noted the statement of the previous Panel that 'sustained high stress levels, particularly when coupled with long hours of work, are documented to be associated with physiological effects, including elevated heart rate, high blood pressure and hypercoaguability' and their conclusion that, 'in the absence of other significant risk factors, the nature of the Plaintiff's employment duties, particularly during the period between November 2014 and February 2015 would have played a significant role in the development of his left middle cerebral artery stroke.' The Panel noted that on admission to hospital there was no evidence of any such perturbation of vital signs or biochemistry.
The Panel also noted that new published evidence in 2020 has more thoroughly examined the hypothesis of work-related stroke and summarised that evidence to date is inconclusive.
Based on this information, the Panel considered that it was probable that the stroke would have occurred, irrespective of whether his employment had taken place and that the onset of the stroke was not affected by his employment in any way. The Panel therefore concluded that, notwithstanding the Opinion of the previous Medical Panel, that Mr Noureddine's employment with the Defendant was not a significant contributing factor to the alleged stroke injury.[2]
30 Ground 1 is that the panel denied Mr Noureddine procedural fairness when it relied upon 'new published evidence in 2020' (hereafter the 'new evidence'), without first giving Mr Noureddine an opportunity to make submissions on that evidence, or to provide a further expert report in relation to it. There was no dispute between the parties that the panel was required to observe the rules of procedural fairness; nor was there any real dispute about the relevant principles. The only dispute was whether the panel had observed the requirement of procedural fairness in the present case.
31 Mr Noureddine submitted that the new evidence was something not previously considered or opined upon by the parties or their experts and that it had been a matter of significance to the panel's conclusion. He submitted that, although Dr Hammond had identified some older studies that cast doubt on whether recent or acute stress was a risk factor for stroke, he had nonetheless accepted that stress was a risk factor applicable in Mr Noureddine's case. He also submitted that there was no real dispute between Dr Hammond and Professor Davis in relation to the role of stress - after referring to the older studies, Dr Hammond went on to indicate that he was in agreement with Professor Davis. This was thus not a case where it might have been expected that Mr Noureddine would have filed further evidence from Professor Davis in response to Dr Hammond's report.
32 Mr Noureddine submitted that, although the panel is entitled to undertake research of medical literature in order to form its opinion, that does not excuse it from its obligation to ensure that the parties are informed of and given a reasonable opportunity to be heard on the matters in issue. He submitted that, had he been told of the new evidence, he could have:
(a) advanced submissions as to whether that new evidence ought not be accepted by the panel; or
(b) provided the new evidence to Professor Davis for further comment,
33 In contrast, Visy submitted that a medical panel is entitled to conduct its own research in relation to the issues raised in a matter referred to it and that to do so will not necessarily constitute a denial of procedural fairness. It relied on various authorities concerning the circumstances in which a medical panel might breach procedural fairness by failing to draw to the attention of the parties research it had undertaken.[5] These are discussed in greater detail below.
34 Visy submitted that, in the present case, the substance of the new evidence was 'within the parameters of the medical debate known to both parties'. It submitted that the inconclusive nature of the evidence concerning the relationship between work stress and stroke had been explored by Dr Hammond in detail. It further submitted that the panel's statement that the new evidence was to the effect that the evidence on work-related stress was 'inconclusive' was consistent with the opinions of other specialists. That is, other specialists referred to work-related stress as a 'possible' risk, or noted the theoretical nature of the hypothesis that there was a causal connection between work stress and stroke, and were unable to positively opine that there was such a connection in Mr Noureddine's case. Visy submitted that Mr Noureddine had ample opportunity to address the issue of whether his work-related stress was a significant contributing factor to his stroke, and that the new evidence did not raise anything truly new that he had not had a fair opportunity to address.
35 Visy also submitted that Mr Noureddine bore the onus of proving that any breach of procedural fairness was material. It submitted that, even if there was a breach (which it did not accept), Mr Noureddine had not discharged that onus in circumstances where he had not put the new evidence before the Court.
36 The rules of procedural fairness require that a party is given a reasonable opportunity to be heard. However, the precise content of the obligation to accord natural justice will vary from case to case. This was explained by Mason J in Kioa v West as follows:
[T]he expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ...
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?[6]
37 In the context of a medical panel that obligation was explained by Kyrou J in Vegco Pty Ltd v Gibbons, as follows:
A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel's own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[7]
38 However, it was not in dispute between the parties that a medical panel is permitted to undertake its own research and have recourse to materials that were not provided by the parties; and that a failure to draw that material to the attention of the parties, and give them an opportunity to make submissions about it or put on further material, will not necessarily constitute a breach of procedural fairness.[8]
39 In Wurth Macaulay J accepted that 'a panel may, in certain circumstances, fail to accord natural justice by having regard to new evidence or information, not seen previously by the parties, if it fails to permit the parties a reasonable opportunity to address such new evidence or information'.[9] However, in that case he held that the circumstances were such that a medical panel's failure to draw to the parties' attention five sources of information referred to in its reasons did not breach that panel's duty of procedural fairness.[10] In that case the plaintiff's expert, Professor Eisen, had provided a further report, after the medical panel's opinion had been provided, where he stated his difficulty in accepting the conclusion of the medical panel.
The debate was well identified in the medical reports supplied to the panel. The panel addressed the ingredients of that debate and did not stray into some different debate. It considered carefully the arguments raised by Professor Eisen, those arguments no doubt informed by his own research, and came to a different view aided by its own research and reasoning process.
The panel is an expert panel. It is expected to apply its collective clinical experience and to undertake appropriate research of medical literature in order to form its opinion. That is what experts do. If it engages in wider research than did some of the experts called by a particular party, a judgment is to be made as to whether such research raises truly new matter, such that it would render it unfair to the parties not to have a chance to address it, or whether the research is merely more extensive but was otherwise available to the parties.
I am not persuaded that the so called unreferenced material relied upon a panel was 'new' in the sense I have described. I am fortified in this conclusion by the absence of any apparent complaint or surprise expressed by Professor Eisen in his subsequent report.
But it is also apparent from a careful analysis of what was in issue, what had been addressed by the competing experts prior to the panel's opinion, the nature of the 'unreferenced' information to which the panel refers, and the use which the panel makes of that information in the context of those issues, that recourse to that research was simply the proper exercise of the panel's own expertise in the process of forming an opinion about a debated matter which Wurth had been accorded a reasonable opportunity to address.[11]
Visy relied in particular on the emphasised paragraph above; it contended that the research in this case was 'merely more extensive than' the research revealed in Dr Hammond's report.
41 Visy also relied on several other cases concerning tribunals that had conducted their own research or referred to materials not provided by or to the parties.[12] I note that these cases concerned the Administrative Appeals Tribunal ('AAT'), rather than an expert medical panel. However, I accept that they may nonetheless shed some light on the question of when it will be permissible for a decision-maker to undertake its own research without reverting to the parties for a response.
42 In McMullen the AAT had to determine whether the appellant had a 'mental condition' within the meaning of s 184(5)(d)(ii) of the Superannuation Act 1976 (Cth). The Tribunal informed itself by reference to medical texts that were not provided to the appellant for comment, and which were not put to the doctor who gave evidence. The Full Federal Court held, in a succinct passage, that the Tribunal had not failed to accord procedural fairness to the appellant.[13]
43 In Kirkpatrick the AAT had to determine whether the appellant's psychiatric condition - compensation neurosis - arose out of his employment. The AAT informed itself about the meaning of the expression 'compensation neurosis' by quoting from a medical dictionary. It then observed that the condition was 'regarded with some suspicion'.[14] The Full Federal Court observed that the appellant was unable to point to any way in which the AAT had utilised the quoted passage to reach a conclusion adverse to the appellant. The Court said as follows:
In any case, it is not to be doubted that the Tribunal was entitled to consult a standard medical dictionary in order better to understand medical evidence in which technical words were employed by the witnesses. That the evidence, when so understood, may have led it to regard the condition alleged by the applicant as in itself provocative of some suspicion cannot, in circumstances such as the present, make any difference. For it was perfectly clear, from the searching consideration devoted to the applicant's complaints in the medical reports, that the case had indeed been so regarded by both the psychiatrists. It could not have been otherwise. The passage in the reasons of the Tribunal does not suggest a new point discovered in the dictionary which the applicant had not been given a fair opportunity to meet.[15]
44 The Court then referred to McMullen, and concluded as follows:
In the particular circumstances of the present case there is no substance in the complaint that the rules of natural justice forbad the Tribunal to make use of the medical dictionary. As in McMullen's case, it was used for a limited and appropriate purpose. Also, its use did not disadvantage the applicant. It is unnecessary, for the purposes of this case, to explore the outer limits of the extent to which it would be proper for the Tribunal to avail itself of such material. On any view of those limits, this case is well within them.[16]
45 In Winch the AAT had to determine whether the applicant's medical condition was 'war-caused' within s 9 of the Veterans' Entitlement Act 1986 (Cth). Evidence was given by Dr Hammond and Dr Rosenbaum. The Tribunal indicated that it accepted Dr Hammond's evidence and added that his evidence accorded with descriptions given by certain authoritative medical texts to which the AAT referred. The applicant contended that he had been denied procedural fairness, because the texts had not been raised or drawn to his attention at the hearing, or put to Dr Rosenbaum. Merkel J rejected that contention. His Honour explained his decision as follows:
The matters relied upon in the texts were not new points which had not been raised at the hearing. The points were dealt with at the hearing by Dr Hammond and were also put to Dr Rosenbaum.
The AAT is fully entitled to consult medical texts in order to better understand and explain medical evidence. However, if medical texts were relied upon to raise a new point which the applicant had not been given a fair opportunity to meet at the hearing, then a different situation might arise. As was pointed out by Burchett J in Colpitts (at 572), if information is relied upon by a Tribunal in relation to one of the decisive issues in the matter and no opportunity has been afforded to the applicant to deal with that material, then there may well be a case of denial of procedural fairness.
In the present case, the applicant was given ample opportunity to deal with the substance of the matters referred to in the texts which were in issue, and able to be dealt with by the parties, at the hearing.[17]
46 Merkel J's decision was upheld on appeal. The Full Federal Court noted that 'the AAT used the medical texts to assist it in understanding the technical evidence that it had heard', and that the issue 'was a fundamental point of disagreement between the medical experts who gave evidence before the AAT'.[18] Ultimately, no denial of procedural fairness was found in circumstances where the issue was clearly raised in the proceeding and the appellant was not denied the opportunity to deal with it: '[t]he AAT has no obligation to run the case of any party before it.'[19]
47 In De Tarle the AAT had to determine whether Mr De Tarle's employment had contributed to his psychiatric condition to a significant degree, for the purposes of an application for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The AAT had observed that the opinions of Dr McClure, who gave evidence in support of the applicant's claim, 'appear[ed] to have been influenced by ... an unsound process of reasoning', namely the fallacy of concluding that one event followed by a second necessarily demonstrates a causal relationship between the events (the 'post hoc logical fallacy'). It referred, in a footnote, to the American Medical Association Guides to the Evaluation of Disease and Injury Causation ('AMA Guides'). The applicant complained of a breach of procedural fairness. He submitted that the AMA Guides had not been referred to in the hearing, but had 'nonetheless been treated as learned authority on medical causation' and relied upon by the AAT to reject 'the most important evidence in the case'. The applicant further submitted that he had been deprived of an opportunity to submit that the doctor had not made the post hoc logical fallacy. He submitted that this resulted in 'practical injustice' because the chronology of the applicant's psychiatric state, and the causes of it, was the only significant factual issue in the case. In contrast, the respondent submitted that a tribunal does not necessarily deny procedural fairness by consulting medical texts in order to better understand and explain medical evidence. It pointed out that the AAT could equally have invoked common sense or orthodox legal reasoning in relation to the post hoc fallacy, without any denial of procedural fairness.[20]
48 Abraham J held that there had been no breach of procedural fairness. Her Honour observed that it was obvious to the parties that there was a difference of opinion between Dr McClure and Dr Champion, which had to be addressed by them. Her Honour observed that there were various reasons why the tribunal might have given Dr McClure's evidence less weight. In those circumstances her Honour held that the fact that the AAT had referred to the AMA Guides, which had not been referred to in argument, did not in the circumstances give rise to procedural unfairness. She observed as follows:
The applicant had ample opportunity and did make submissions as to why the evidence of Dr McClure ought to be accepted in preference to that of Dr Champion. The applicant's counsel had every opportunity to defend Dr McClure's evidence. The applicant was well aware that approach was being challenged. In that context, as the respondent correctly submitted, it is not incumbent on a tribunal of fact to point out the obvious. ... [W]hether there is a denial of procedural fairness by the trier of fact, in this context, must depend on the facts and whether the party was relevantly on notice of the issue. Given the nature of the topic, the applicant was not 'deprived of an opportunity to submit that Dr McClure's opinion did not amount to a post hoc fallacy'.
...
Finally, and in any event, given the evidence and Tribunal's reasons, it could not be said that there is a realistic possibility of the Tribunal reaching a different conclusion if the AMA Guides had been raised. For the Court to exercise its discretion to grant relief, a denial of procedural fairness must work a practical injustice on the applicant: MZAPC v Minister for Immigration and Border Protection. The applicant has not identified any practical injustice that would have been occasioned had he lost such an opportunity to present his case.[21]
49 What is apparent from this survey of the authorities is that when a medical panel or similar tribunal undertakes its own research, or considers materials not provided to it by the parties, and fails to provide the parties with an opportunity to comment on that material, that failure may constitute a breach of procedural fairness. But it will not necessarily do so. Whether there is a breach of procedural fairness will depend upon the particular circumstances of the case. Matters relevant to determining whether the course adopted by the panel is a breach of procedural fairness include:
(a) the nature of the statutory scheme under which the panel is making its decision;
(b) the interests affected by the decision;
(c) the nature of the matters in issue before the panel;
(d) the way in which the proceeding has been conducted by the parties;
(e) the nature of the materials to which the panel has made reference, including whether the materials raise a 'truly new matter', or whether the research, although more extensive than the materials relied upon by the parties, was otherwise available to the parties;
(f) the significance of the matter or matters to which the independent research or other materials relate; and
(g) the use to which the panel put the materials in question.
50 Ultimately the question is whether it was unfair that the parties did not have a chance to address the research or new material.
51 In addition, of course, attention must be paid to the issue of materiality - that is, if there was a failure to accord procedural fairness, whether that resulted in any 'practical injustice'. I will address materiality, and the cases relevant to that issue, later in these reasons.
52 In the present case, in my opinion, the panel's failure to provide the parties - and in particular Mr Noureddine - an opportunity to comment on the new evidence constituted a breach of its obligation of procedural fairness. My reasons for that conclusion are as follows.
53 First, I accept that under the statutory scheme the panel's function is to form its own opinion about the questions referred to it, based on its own expertise. In that context it is permissible for the panel to undertake its own research into relevant medical literature. Thus the fact that the panel in this case undertook its own research does not, in and of itself, bespeak error. But, as discussed above, to accept that is not to say that having undertaken such research, a failure by a medical panel to provide the parties with an opportunity to respond to such research will never breach the duty of procedural fairness. So much follows from Vegco and Wurth.
54 Secondly, Mr Noureddine's interests are significantly affected by the panel's decision. The panel's decision is a 'gateway' through which Mr Noureddine must pass in order to pursue his serious injury claim. That points towards a need for him to be fully informed of the matters put against him, so as to have an opportunity to respond to those matters.
55 Thirdly, the key issue before the panel was whether work-related stress was a significant contributing factor to Mr Noureddine's stroke injury. That raised two sub-questions: first, at a general level, could stress - including work-related stress - ever constitute a contributing factor to a stroke? That is, is stress a known risk factor for stroke? And, second, was work-related stress a significant contributing factor in Mr Noureddine's particular case? Of course if the answer to the first question was 'no', then the answer to the second question would also be 'no'.
56 The new evidence on which the panel relied went to the first of those sub-questions: the general question of whether work-related stress was a known risk factor for stroke. However, in my opinion that matter was not clearly a matter in issue before the panel. That is because the first panel had already accepted that stress was a risk factor for stroke; and each of the relevant medical reports had likewise accepted that stress was a risk factor in relation to stroke. In my opinion that includes Dr Hammond although, as I discuss further below, he expressed some caution in that regard. But notwithstanding that expression of caution, he (a) listed stress as one of the risk factors relevant to Mr Noureddine; and (b) after dealing with some medical literature, stated that he was in agreement with Professor Davis, who had opined that stress was 'recognised' as a risk factor for stroke.
57 Visy's submissions before the panel had pointed to those parts of Dr Hammond's report that had cast some doubt on the relationship between stress and stroke. However, at least two of the studies referred to in Dr Hammond's report were concerned with the question whether there was an association between an 'acute stress' or 'particular episode of stress' and the 'acute occurrence of a stroke'; they do not appear to have been more generally directed to whether stress (or work-related stress in particular) was a risk factor for stroke, or to the question whether prolonged stress, as opposed to acute stress, might be a risk factor for stroke. Further, as noted above, after pointing to these studies, Dr Hammond went on to say that he agreed with Professor Davis (who had described a link between stress and stroke as 'recognised'), and to opine that stress at work 'may statistically have increased Mr Noureddine's likelihood of stroke', although he then concluded that it was not possible to relate the occurrence of Mr Noureddine's stroke to his reported stress 'with any certainty'. In those circumstances, I accept Mr Noureddine's submission that the general question whether stress was a recognised risk factor for stroke was not a matter about which the experts were in dispute.
58 Fourthly, a consideration of the parties' joint list of issues filed with the panel and their written submissions reveals that the proceeding before the panel was conducted on the basis that a key issue for the panel to determine was whether work-related stress was a significant contributing factor to Mr Noureddine's stroke. However, the parties had not identified as an issue the 'hypothesis of work-related stroke' about which the panel had undertaken further research - which I understand to refer to the general question of whether work-related stress could ever be a significant contributing factor to a person's stroke.
59 In that context, it is also important to note that the first panel had accepted that work-related stress was a documented risk factor for stroke; and Visy did not squarely challenge that conclusion. Rather, it was critical of the first panel's reasoning in relation to Mr Noureddine specifically. Thus, it submitted that:
The findings of the previous Medical Panel:
(a) infer the documented 'association' between stress and the three physiological states identified was causal (ie work stress caused them);
(b) that these states, or some of them, must have been present, given stress was, despite no medical evidence for any one of them; and
(c) that one or more of them therefore 'would have played a significant role' in the stroke 'in the absence of other significant factors'.
That conclusion is not binding on this Medical Panel, which has access to additional medical evidence. In addition, the Defendant highlights that the previous opinion is founded upon: (1) the inability to identify a positive cause for the stroke in order to prove employment was not implicated; and (2) inferred, without medical evidence in this particular Plaintiff's case, that certain risk factors (epidemiologically) must have been present and must have been the cause in his case given no alternative having been proven.
60 Thus in my opinion whether stress was a risk factor for stroke was not a matter on which the parties had clearly joined issue through their submissions.
61 Fifthly, I also note that, even if the new evidence related to a matter on which the parties had joined issue, that would not have meant that the panel was not required to draw the new evidence to Mr Noureddine's attention and invite him to respond to it. That is because, in my opinion, the new evidence is 'truly new', in the sense referred to by Macaulay J[22] - that is, it is not something that would have already been available to the parties and in relation to which they could have chosen to make submissions or adduce evidence of medical opinion.
62 That is so because the new evidence was published on an undisclosed date in 2020 - that was after Professor Davis (the expert principally relied upon by Mr Noureddine) had provided his report, in 2019. It was possibly published after, but at least around the same time as, the reports of Dr Hammond, Dr Seneviratne and Mr Jackson. None of those experts referred to the new evidence and I infer that they were not aware of it. In that regard, it is notable that Dr Hammond referred to several medical articles concerning the relationship between work-related stress and stroke, but he did not refer to any such material that was published in 2020. In this regard, the new evidence appears to be quite different from the materials relied upon by the AAT in the cases upon which Visy relied. Those cases concerned reference to 'authoritative medical texts', the AMA Guides and a medical dictionary - not reference to newly published research that was unavailable to the expert relied upon by Mr Noureddine.
63 Sixthly, the material in question was of real significance to the key question in issue. If the 'work-related stress hypothesis' was not accepted as valid, then there was simply no basis for the panel to conclude that Mr Noureddine's particular stroke injury was the result of stress he had experienced at work. It was thus necessary for Mr Noureddine to be heard on new material that went to that issue.
64 Again, the panel's reliance on its own research in this case is distinguishable from the cases upon which Visy relied. Kirkpatrick and Winch concerned reference by the AAT to a standard medical dictionary and medical texts, respectively, to better understand the medical evidence that was before it. And in De Tarle, the AMA Guides were relied upon to support the identification of a well-known logical fallacy; in that context, Abraham J said that the tribunal of fact is not required to point out the obvious.[23] In contrast, in the present case the material was not used to better understand the medical evidence - which was to the effect that stress is a risk factor for stroke - but to contradict that evidence. The panel did not simply consult a standard medical text in order to understand the medical reports, or to make a point that was obvious. It identified new research, which it relied upon to reach a conclusion that was at odds with at least some, if not all, of the medical evidence before it, without giving Mr Noureddine an opportunity to respond to that new evidence.
65 Finally, the use to which the panel put the new evidence is important. In that regard, having identified in brief terms the new evidence, it then said that, '[b]ased on this information, the panel considered that it was probable that the stroke would have occurred irrespective of whether [Mr Noureddine's] employment had taken place and that the onset of the stroke was not affected by his employment in any way'. That is, the panel expressly relied upon the new evidence to conclude that Mr Noureddine's employment made no contribution at all to his stroke.
66 In light of the above matters, I consider that the panel was under a duty to inform the parties - in particular, Mr Noureddine - of the new evidence and invite him to respond to that new evidence (whether by way of providing further medical evidence or providing submissions). Its failure to do so constituted a breach of procedural fairness.
67 I now turn to the question whether the breach of procedural fairness was material. In that regard, the High Court has recently explained in some detail the operation of the requirement of materiality in the context of a breach of procedural fairness, in Nathanson. From that case the following propositions emerge:
(a) First, it is a common law principle of statutory interpretation that a statute conferring decision-making authority is 'ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance'.[24] I accept that that principle applies to the legislation in this case.
(b) Second, the materiality of a breach requires consideration of how the decision in question was in fact made, by proof of historical facts on the balance of probabilities.[25]
(c) Third, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with. This calls for 'reasonable conjecture within the parameters set by the historical facts'.[26]
(d) Fourth, the burden falls on the person challenging the decision to prove on the balance of probabilities the historical facts 'necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'.[27]
68 The burden imposed on the person challenging the decision will be relatively easy to discharge. In that respect the plurality said as follows:
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive 'story' of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.[28]
69 In the present case the panel accepted that Mr Noureddine was stressed by the workplace difficulties he had experienced. It also accepted that he had none of the known risk factors for stroke. However, it rejected Mr Noureddine's claim on the basis that it did not accept the hypothesis of work-related stroke, because the new evidence was to the effect that the evidence in support of the hypothesis was inconclusive. As a matter of 'reasonable conjecture', had Mr Noureddine had an opportunity to respond to that new evidence, it is possible that he could have persuaded the panel that the new evidence should be disregarded, or given little weight. Had he done so, the panel may have accepted that stress was a recognised risk factor for stroke, as Professor Davis had opined. It then would have had to consider whether, in Mr Noureddine's particular case, the stress that he had been under was a significant contributing factor to his stroke injury. It is significant that the first panel had concluded that the answer to that question was 'yes' (noting that the panel clearly relied upon the new evidence as its basis for disagreeing with the first panel). Thus, in my opinion it was possible that, were it not for the new evidence, the panel could have determined that Mr Noureddine's work-related stress was a significant contributing factor to his stroke injury. The existence of the first panel's report plainly demonstrates that an expert panel could have come to that conclusion. Thus I consider that the breach of procedural fairness was material.
70 I do not accept Visy's submission that Mr Noureddine had not discharged his onus in relation to materiality because he had not put before the Court the new evidence, which he could have requested from the panel. It is clear from Nathanson that Mr Noureddine is not required, in order to discharge his onus, to demonstrate how he might have taken advantage of the lost opportunity to respond to the new evidence. Thus, as Visy quite properly accepted, Mr Noureddine did not need to articulate what submissions he might have made about the new evidence, or what Professor Davis might have said about it had he provided a further report. In light of that, I do not consider that it was necessary for Mr Noureddine to put the new evidence before this Court in order to demonstrate that, had he had an opportunity to respond to it, he could have achieved a different outcome. It would not be possible for this Court to determine whether that possibility was a real possibility simply by reading the new evidence for itself. It would not be appropriate for the Court to form its own view on whether there might have been something to be said in response to the new evidence or whether, to the contrary, the new evidence was so overwhelming as to be irrebuttable. Not only does the Court lack the expertise to undertake such a task, it would in my view involve a departure from Nathanson and, arguably, a trespass into a form of merits review.
71 For these reasons, I conclude that ground 1 is made out.
72 Ground 2 alleges that the comment made by Dr Habersberger, 'Don't hate the Pratts' gives rise to an apprehension of bias in favour of Visy. As already noted, it is not strictly necessary for me to deal with this ground, given the conclusion I have reached in relation to ground 1, however I will briefly state my reasons for concluding that this ground is not made out.
73 The parties principally relied upon their written submissions in relation to ground 2. Again, there was no real dispute as to the relevant principles; rather, the dispute was whether the comment made by Dr Habersberger engaged those principles. (Visy accepted that Mr Habersberger had made the comment).
74 Mr Noureddine submitted that the panel had accepted Mr Noureddine's statements that there was a 'good relationship' between him and Visy, that he 'got on well with the Pratts' and 'would do anything for them', as reflected in Dr Kotzman's notes. In that context, he submitted, Dr Habersberger's comment 'was out of the blue, odd, and inconsistent with what had been discussed during the examination'. He submitted that the comment was 'consistent with Dr Habersberger having made up his mind that he was going to determine the medical questions in favour of Visy or the Pratt family'. He asked, rhetorically, 'why else would the Plaintiff need to be told not to "hate the Pratts"'? He submitted that 'this comment might cause a reasonable lay observer to form the view that Dr Habersberger might have impermissibly formed a concluded view adverse to Mr Noureddine's interests'. That is, he relied on an allegation of apparent prejudgment, not interest or association.
75 In contrast, Visy submitted that Dr Habersberger's comment 'could not reasonably be regarded as the expression of any "concluded view" on any of the medical questions referred for determination'. It submitted that a reasonable observer would not reasonably apprehend from that isolated comment that Dr Habersberger had prejudged any of the issues to be determined by the Panel. It also submitted that Mr Noureddine had waived his right to raise his apprehended bias objection because he had had an opportunity to raise it earlier, before the panel made its decision, and had not done so.
76 As Kaye JA observed in Jones v Fish, the well-established test for the establishment of apprehended bias is 'whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question which that decision-maker is required to decide'.[29]
77 In the present case, I do not accept that the comment made by Dr Habersberger was such that a fair-minded lay observer might reasonably apprehend that Dr Habersberger might have pre-judged the issues that the panel was to determine. That is, I do not accept that the remark conveyed that Dr Habersberger had already determined, at the time that he made the remark, that his view was that Mr Noureddine's employment with Visy was not a significant contributing factor to his injuries. One view of the comment might indeed be to the opposite effect: that Mr Noureddine should not 'hate the Pratts' even though their company had contributed to his injuries. Or it could have meant that Mr Noureddine should not 'hate the Pratts' in recognition that Mr Noureddine believed that their company had caused his injuries, although Dr Habersberger had not himself yet formed a view about that question. This latter way of understanding the comment is, in my opinion, a more natural way to understand it than the interpretation adopted by Mr Noureddine.
78 Ultimately, in my opinion the comment simply does not suggest that Dr Habersberger had reached a concluded view about any of the issues before the panel. For that reason, I would reject ground 2.
79 Ground 1 is made out. In light of that, it is appropriate to make the substantive orders sought by Mr Noureddine, namely an order in the nature of certiorari quashing the panel's decision and an order in the nature of mandamus, remitting the referred medical questions to be redetermined by a differently constituted panel in accordance with law. My present inclination is that Visy should pay Mr Noureddine's costs on the standard basis. I will hear the parties as to the precise form of orders, including whether it is appropriate to order that the referred question be referred to a differently constituted medical panel.
[1] There were additional medical reports by other experts, but those were not relevant to the question of the aetiology of the stroke.
[4] Relying upon Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, 748 [33] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26 ('Nathanson').
[5] Wurth Australia Pty Ltd v Gallichio [2010] VSC 630 ('Wurth'); McMullen v Commissioner for Superannuation [1985] FCA 143; (1985) 61 ALR 189 ('McMullen'); Kirkpatrick v Commonwealth [1985] FCA 440; (1985) 9 FCR 36 ('Kirkpatrick'); Winch v Repatriation Commission (1999) 55 ALD 351; [1999] FCA 408 ('Winch'); De Tarle v Comcare [2022] FCA 175 ('De Tarle').
[7] [2008] VSC 363, [23] (emphasis added) (citations omitted).
[8] Wurth [2010] VSC 630, [92] (Macaulay J).
[9] [2010] VSC 630, [89] (emphasis in original) (citation omitted).
[10] [2010] VSC 630, [88], [90].
[11] [2010] VSC 630, [91]-[94] (emphasis added).
[13] McMullen [1985] FCA 143; (1985) 61 ALR 189, 209 (Fisher, Gallop and Neaves JJ).
[14] Kirkpatrick [1985] FCA 440; (1985) 9 FCR 36, 41 (Davies, Beaumont and Burchett JJ).
[15] Kirkpatrick [1985] FCA 440; (1985) 9 FCR 36, 42 (Davies, Beaumont and Burchett JJ).
[16] Kirkpatrick [1985] FCA 440; (1985) 9 FCR 36, 42 (Davies, Beaumont and Burchett JJ) (emphasis added).
[17] Winch v Repatriation Commission [1998] FCA 1110, 12-13 (emphasis added) (citations omitted).
[18] Winch [1999] FCA 408; (1999) 55 ALD 351, 356 [18] (O'Connor, Branson and Marshall JJ); [1999] FCA 408.
[19] Winch [1999] FCA 408; (1999) 55 ALD 351, 357 [21] (O'Connor, Branson and Marshall JJ); [1999] FCA 408.
[20] De Tarle [2022] FCA 175, [93]-[97].
[21] [2022] FCA 175, [104], [106] (emphasis added) (citations omitted).
[22] Wurth [2010] VSC 630, [92].
[23] [2022] FCA 175, [104].
[24] [2022] HCA 26; (2022) 96 ALJR 737, 747 [30] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26. See also 752 [59] (Gageler J).
[25] [2022] HCA 26; (2022) 96 ALJR 737, 747 [32] (Kiefel CJ, Keane and Gleeson JJ), 750 [46], 752 [59] (Gageler J); [2022] HCA 26.
[26] [2022] HCA 26; (2022) 96 ALJR 737, 747 [32] (Kiefel CJ, Keane and Gleeson JJ), 750 [46] 752 [59] (Gageler J); [2022] HCA 26.
[27] [2022] HCA 26; (2022) 96 ALJR 737, 747-8 [32] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26 (emphasis in original). See also 750 [46], 752 [59] (Gageler J).
[28] [2022] HCA 26; (2022) 96 ALJR 737, 748 [33] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26 (emphasis added) (citations omitted). See also 750 [46], 752 [59] (Gageler J).
[29] [2020] VSC 542, [39]. See also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76, 98-9 [56]-[57] (Nettle and Gordon JJ); [2019] HCA 50; CD v Central Gippsland Health Service [2022] VSC 462, [506] (Croucher J); BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41, [33] (Rangiah, White and O'Callaghan JJ).
Noureddine
Adlard [2022] VSC 719
(2022) 96 ALJR 737
(1985) 9 FCR 36
(1985) 61 ALR 189
(1985) 159 CLR 550
(2019) 268 CLR 76