Plaintiff v First Defendant

2 By a notice dated 14 October 2009, the plaintiff's entitlement to weekly payments was terminated with effect from 15 January 2010. In purporting to terminate the plaintiff's entitlements, the sixth defendant's claims agent asserted that the plaintiff had a current work capacity. On 16 June 2011, the plaintiff commenced a proceeding in the Magistrates' Court against the sixth defendant in relation to the decision to terminate weekly payments.

3 On 17 October 2012, Magistrate Garnett referred certain medical questions pursuant to s 45(1) of the Act to a medical panel. A medical panel comprising the first, second, third, fourth and fifth defendants was convened to give the panel's opinion in connection with the referred medical questions. In December 2012, the panel gave a certificate of opinion dated 14 December 2012 recording its opinion in respect of the referred medical questions as follows:**

Question 1)

What is the nature of the medical condition(s) (including any sequelae) resulting from the injuries alleged in the Particulars of Injury namely:

(a) Back;

(b) Anxiety and Depression?

Answer:

In the Panel's opinion the Plaintiff is suffering from:

(a) lumbosacral spine dysfunction as a result of surgically treated lumbar spondylosis and, relevant to the alleged injury; and

(b) a mild adjustment disorder with depressed mood, in part relevant to the alleged anxiety and depression injury.

Question 2)

(a) Was the Plaintiff's employment in fact; or

(b) Could the Plaintiff's employment have been:

a significant contributing factor to - the injuries defined in question 1?

Answer:

In the Panel's opinion the Plaintiff's employment was in fact a significant contributing factor to lumbosacral spine dysfunction as a result of surgically treated lumbar spondylosis and a mild adjustment disorder with depressed mood.

Question 3)

(a) As at:

(b) Since -

15 January 2010:

did the Plaintiff have a current work capacity?

Answer:

(a) In the Panel's opinion the Plaintiff had no current work capacity as at 15 January 2010.

(b) In the Panel's opinion since 15 January 2010 until the end of October 2010 (being approximately 6 months post surgery in April 2010) the Plaintiff had no current work capacity. The Panel further concluded that since October 2010 the Plaintiff has had a current work capacity.

Question 4)

Does the Plaintiff have:

(a) a current work capacity

(b) no current work capacity?

Answer:

In the Panel's opinion the Plaintiff has a current work capacity.

Question 5)

If Yes to 4(b), is the Plaintiff likely to continue indefinitely to have no current work capacity.

Answer:

Not applicable

Question 6)

Does the incapacity for work result from, or is it materially contributed to by the injury.

Answer:

The Panel is of the opinion the Plaintiff's incapacity for work is still materially contributed to by the alleged injury.

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

5 In this proceeding, the plaintiff seeks an order quashing the decision of the medical panel and an order remitting the referred medical questions to a differently constituted medical panel. The plaintiff contends that the medical panel fell into jurisdictional error. Further, the plaintiff contends that the medical panel's reasons for its decision were inadequate.

6 Only the plaintiff and the sixth defendant took an active part in this proceeding. The first to fifth defendants took a Hardiman[1] approach and were content to abide the Court's decision save as to costs.**

**7 The medical panel commenced its reasons by setting out some of the plaintiff's history. The panel recorded that the plaintiff injured his lower back on 22 June 2005. The panel then recorded the plaintiff's progress through to his first operation on 21 July 2006, and then through to his second operation on 28 April 2010. In the course of setting out the plaintiff's history, the panel recorded that the plaintiff ceased work in April 2009 after a recurrence of pain, and that the plaintiff's employment was terminated in November 2009.

8 As to the plaintiff's history between the time of his second operation (April 2010) and the time of the plaintiff's examination by the panel, the panel recorded:**

On 28 April 2010 Prof Teddy undertook a "re-do L5-S1 microdiscectomy with decompression/rhizolysis and application of fat graft". The Plaintiff said that he improved little after this second operation.

The Plaintiff told the Panel that at the present time his symptoms comprise pain in the midline of the lower back, associated with severe pain in the left leg as far as the all the toes (sic). He said that he also has pain in the right leg, extending from the buttock to the foot and associated with numbness, and pins and needles on that side. He said that coughing leads to increased pain in the left leg.

...

The Plaintiff told the Panel that he attended a rehabilitation program in early 2011 for one week at Dorset Rehabilitation Hospital, under the direction of Dr C Thomas, but did not improve thereafter. He said that he also had a gym membership in 2012, which has just expired. He said that he attends the pool twice per week, and walks around in the water, and swims two laps of the pool.

He said that his current medication comprises Lyrica 600 mg twice daily, Tramal 200 mg twice daily, Zoloft 100 mg mane, Indocid 25 mg twice daily, Endep 20 mg nocte and Temazepam 5 mg nocte, and medication for diabetes, hypertension and hyperlipidaemia ... . He last had physiotherapy in 2010.

The Plaintiff said that he lives alone; his two children currently live with their mother. He said that he is independent in personal care, but does use a long shoehorn to put his shoes on, and sits in a chair when taking a shower. He said he can sit and stand for about 20 minutes and can walk for 20 minutes.

He said that he does his own cooking, but does very little cleaning. He said that his sleeping is very poor and he wakes six to eight times at night.

The Plaintiff told the Panel that he has a valid licence, but does not own a car, and has not driven since May 2011.

He plays bowls once or twice per month, using a long armed bowling aid. He drinks two to three cans of beer per day and smokes 10-15 cigarettes per day.

...

The Plaintiff described a typical day to the Panel. He said that he gets up some time between 7 am and midday, depending on how much he has slept during the night. He said that he sometimes walks about 10 minutes to the shops but otherwise stays at home, watching television, and occasionally reading. He stated to the Panel: "I can't enjoy anything".

9 The panel's reasons record that the panel undertook a physical examination of the plaintiff,[2] and that the panel examined radiological investigations and reports. The reasons then go on:

Based on the history taken by the Panel, its physical examination of the Plaintiff and its review of the attached medical records and radiological investigations, the Panel concluded that the Plaintiff is suffering from lumbosacral spine dysfunction as a result of surgically treated lumbar spondylosis.

10 The panel's reasons then record that, in addition to the physical examination, the panel undertook a psychiatric examination of the plaintiff.[3] The reasons then continue with further history taken from the plaintiff. This further history includes:

The Plaintiff told the Panel that after the incident he was off work for 10 months. He said that he returned to work in April/May 2007 on modified duties and said after four months he returned to his normal duties. He said that in April/May 2009 his back pain became worse and he ceased work and has not worked since and said that his employment was terminated in November 2009.

He said that the pain in his back got worse after the second operation, the pain in his left leg also increased.

The Plaintiff told the Panel that he spends the day watching television, reading the paper, going shopping and cooking and cleaning. He said that he has a mowing service for the lawns and said that he is able to drive a car but does not currently own a vehicle. He said that friends drop in to see him and he goes to the local club. He told the Panel that he currently does not have a partner.

...

The Plaintiff told the Panel that his pain is constant and described it as 8-9/10 on a VAS. The Plaintiff said that his energy levels are extremely low and he feels constantly fatigued. With regard to his future he said, "I don't know, but I can't work because of pain".

He said that he suffers delay with sleep and wakes up 5 to 7 times during the night with pain in the back and leg. He said that he averages 4 to 5 hours of sleep per night. He said that when (sic) he wakes in the morning feeling "washed and fatigued".

**11 Following its psychiatric examination, the panel concluded that the plaintiff was suffering from "a mild adjustment disorder with depressed mood which [had] arisen in part as a consequence of the plaintiff's lower back condition and partly due to unrelated factors". The panel went on to conclude that "[t]he plaintiff's employment was in fact a significant contributing factor to lumbosacral spine dysfunction as a result of surgically treated lumbar spondylosis and a consequential mild adjustment disorder with depressed mood".

12 The panel next referred to its consideration of the issue of the plaintiff's work capacity. The panel's reasons went on:**

The Panel formed the view that the nature and extent of the Plaintiff's lumbosacral spine dysfunction is such that he is unable to perform his pre-injury duties as an Area Manager, and that this incapacity for work is still materially contributed to by the alleged injury.

The Panel considered all aspects of the definitions of "suitable employment", "current work capacity" and "no current work capacity" contained in the Accident Compensation Act 1985.

The Panel specifically considered the Plaintiff's relatively young age of 49 years, his place of residence in the western suburbs of Melbourne, relatively close to potential work opportunities, his reasonably good reading and writing skills, his good communication skills, and his good work record from 1988, including his final position as a manager, with responsibility for the supervision of approximately seven salesmen.

The Panel also considered the Plaintiff's psychiatric condition is mild and does not affect the Plaintiff's capacity for work.

The Panel referred to the Vocational Assessment Report prepared by Nabenet (scil. Ayres Management Services), dated 3 September 2009 and provided with the referral and noted that the employment options of account manager, customer service manager, purchasing officer, stock clerk, general clerk/office assistant, enquiry/customer service Clark/information (sic) desk clerk, and retail sales assistant are identified as suitable for the Plaintiff.

The Panel considered the Defendant's submission dated 2 October 2012 to the effect that "the Plaintiff is a relatively young man. His skills lie in sedentary type work. He has strong managerial experience. He is (sic) continues providing assistance in a voluntary capacity as the treasurer of the Deer Park Club and remains active in this role. The consensus of considered medical opinion is that the plaintiff, since surgery continues to have a limited capacity for sedentary duties but no capacity for physical work".

The Panel, based upon its examination of the Plaintiff, and notwithstanding the Plaintiff's limited formal qualifications, agrees with this submission. The Panel noted that he had been promoted within the company for which he had worked, and where he had an excellent work record, and considered that he did have transferable skills which could be used within the potential employment options cited above, and that the sedentary nature of the suitable employment options would allow him to vary his position during the day.

The Panel thus concluded there is work for which the Plaintiff is suited, and could perform on a reliable and consistent basis, currently, and in the foreseeable future.

The Panel therefore concluded that the Plaintiff has a current work capacity.

13 The panel then set out further matters contained in the material before it, including material contained in the reports of Mr Clive Jones, Dr David Middleton and Mr Michael Troy, before going on:

The Panel therefore concluded that it (sic) as at 15 January 2010 the Plaintiff had no current work capacity.

With respect to the issue of whether, since the 15 January 2010, the Plaintiff had a current work capacity, the Panel considered the available evidence regarding the Plaintiff's post operative condition from those doctors who have treated and examined the Plaintiff, and the respective submissions from the parties as to the weight the Panel should accord to this evidence.

The Panel notes the Defendant (sic) submission wherein "it is conceded that the plaintiff would have had a limited period associated with the surgery during which he would not have had a current work capacity".

The Panel also again noted, and agreed with, the proposition advanced by the Defendant that "the consensus of considered medical opinion is that the plaintiff, since surgery continues to have a limited capacity for sedentary duties but no capacity for physical work".

The Panel therefore concluded that since 15 January 2010 until the end of October 2010 (being approximately 6 months post surgery in April 2010) the Plaintiff had no current work capacity. Thereafter, the Panel considers that, while the Plaintiff was unable to return to his pre-injury employment duties because of his lower back condition, there was work that the Plaintiff could perform on a reliable and consistent basis, and that the employment options identified in the Vocational Assessment Report dated 3 September 2009 (referred to above) constituted suitable employment for the Plaintiff.

The Panel therefore concluded that since October 2010 the Plaintiff had a current work capacity.

**14 The central issues in this proceeding concern the medical panel's conclusions that the plaintiff had no current work capacity from only 15 January 2010 until the end of October 2010 (being six months after the plaintiff's second operation). Specifically, the plaintiff makes complaint in this proceeding about the panel's conclusions that from the end of October 2010 to the time of the panel's Certificate of Opinion (December 2012), the plaintiff has had a current work capacity. The effect of these findings of the panel is that the plaintiff is no longer entitled to weekly payments of compensation under the Act.

15 In order to succeed in his claim for weekly payments under the Act, the plaintiff has to establish, amongst other things, that he has "no current work capacity" within the meaning of the Act.[4] The expression "no current work capacity" is defined in s 5(1) of the Act, in relation to a worker, to mean:**

[a] present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.

16 Relevantly for this proceeding, "suitable employment" is defined in s 5(1) of the Act as follows:

Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

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

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

(iv) the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether -

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market.

17 In his amended originating motion, the plaintiff makes complaint concerning the panel's answers to questions three and four of the medical questions referred to it for determination. Some of the complaints are said to constitute jurisdictional error. The jurisdictional errors are alleged to include:

(a) taking into account irrelevant material or considerations;

(b) failing to take into account relevant considerations;

(c) accepting a submission, made by the sixth defendant, for which there was no evidence;

(d) reaching a conclusion which was not open on the evidence; and

(e) failing to perform the task required of the panel by the Act.

18 The other group of complaints made by the plaintiff in this proceeding concern the adequacy of the panel's reasons in respect of its various disputed conclusions.

The panel's findings as to the plaintiff's capacity for employment from October 2010 to December 2012

**19 It is convenient to start with the plaintiff's complaint that the medical panel took into account an irrelevant consideration when it accepted the sixth defendant's submission that "the consensus of considered medical opinion [was] that the plaintiff, since surgery [in April 2010] continues to have a limited capacity for sedentary duties".

20 In this proceeding it was not disputed by the sixth defendant that a medical panel is amenable to judicial review; its opinion can be quashed if it makes a jurisdictional error; and it commits jurisdictional error if, in making its decision, it takes into account an irrelevant consideration and that irrelevant consideration materially affects the panel's decision.

21 In the present case, the plaintiff complains that there was no evidence in support of the sixth defendant's submission that the consensus of considered medical opinion was that the plaintiff, since surgery in April 2010, had a capacity for sedentary duties. On this issue, the plaintiff also contends, as I have said above, that in accepting this submission (for which there was no evidence), the panel had regard to an irrelevant consideration.

22 The reference in the panel's reasons to a consensus of considered medical opinion, being that the plaintiff has had a limited capacity for sedentary duties since the April 2010 surgery, comes from the fourth page of the sixth defendant's written submissions to the panel.[5] The sixth defendant submitted:**

The consensus of considered medical opinion is that the plaintiff, since surgery continues to have a limited capacity for sedentary duties but no capacity for physical work.

23 This submission was wrong. There was no basis for the sixth defendant's submission. In argument before me, Senior Counsel did not attempt to defend the submission.[6] That the submission was wrong can be demonstrated by the following extracts from the medical reports written after the April 2010 surgery and provided to the medical panel:

He [the plaintiff] still has no current capacity for work and will likely continue indefinitely subject to his back.[7]

- - -

With his ongoing back pain and limitations I believe that he has no capacity for work and with his age and restrictions arising from injuries the prospects of obtaining employment in the open labour market is (sic) slim.[8]

- - -

Since the operation [April 2010] it would be reasonable to indicate that he [the plaintiff] does not have work capacity.[9]

- - -

It is my opinion that Mr Nabbs has no current capacity for work. It is also my opinion that this level of incapacity is likely to continue indefinitely. To have no capacity for work, takes into consideration in particular Mr Nabbs' education and transferrable skills but also his age, work experience, place of residence, medical information and the incapacity arising directly out of the injury.[10]

- - -

Perhaps most importantly, the Agent has made no effort to provide Mr Nabbs a "vocational re-education program". On this basis, it remains my opinion that Mr Nabbs has no current capacity for work and that this level of incapacity is likely to continue indefinitely. I have taken into consideration that Mr Nabbs has a severely limited residual physical capacity and has not been supported in any formal education and has limited transferable skills, except in the area of sales. Mr Nabbs is now 49 years of age, resides in an area where employment opportunities are largely physically based and is lowly skilled work, has difficulty with transport, noting that he is now reliant upon a walking stick for security and if anything, his physical capacity is being allowed to deteriorate, as is his psychological robustness.

On this basis I do not believe that Mr Nabbs has a realistic prospect of obtaining employment in the open labour market.[11]

- - -

I believe that Mr Nabbs has no capacity for pre-injury employment now or into the foreseeable future as a result of the persisting work-related injury to the lumbar spine and the nerve root irritation persisting together with the severity of the neuropathic pain accompanying.

He has no capacity for suitable duties taking into account his age, education, skills and work experience and the incapacities and restrictions as a result of the work-related injury.

I note that he has been assessed at an interdisciplinary centre and has also attended an occupational rehabilitation group. However I believe that he has no capacity to undertake any employment in a reliable, productive or efficient manner and that he could not satisfy the requirements of any employer in this regard.[12]

24 The one report that might give some support for the proposition that, even with the plaintiff's physical injuries, the plaintiff has had a capacity for sedentary duties[13] is the report of Mr Michael Troy dated 14 July 2010. In that report, Mr Troy was asked and answered the following questions:

If in your clinical opinion the worker cannot return to their (sic) pre-injury duties and hours does the worker have a current work capacity?

Yes, sitting at a desk and/or answering the phone within his present restrictions of time. He states that he can sit for 20 minutes, stand for 20 minutes and walk for about 20 minutes. He may require retraining.

...

If the worker can return to work in modified pre-injury duties and/or hours, what is/are your recommendations modified pre-injury duties (sic), modified pre-injury hours, length of time for the modifications to remain in place, and review timeframe?

That he sits in an office where he can get up and move and stand and change position at will, that the ergonomics are correct and as long as he is not twisting or bending which would give him a recurrence of symptoms. He should initially start with four hours a day, two hours in the morning, a full hour break for lunch, followed by two hours in the afternoon, three days a week and increasing as he becomes work hardened and fitter.

**25 The following points may be made about Mr Troy's report. First, on no view could Mr Troy's opinions be said to represent a consensus of considered medical opinion as to the plaintiff's capacity for work following the surgery performed in April 2010. Secondly, it is difficult to see on what possible basis work with the time and hour restrictions referred to by Mr Troy could ever in the circumstances constitute "suitable employment" within the meaning of the Act. Thirdly, it should be noted that in concluding that the plaintiff had no work capacity up to the end of October 2010, the panel must have in any event rejected the opinion of Mr Troy as to a work capacity in July 2010.

26 In response to the plaintiff's complaint that the panel had acted upon the sixth defendant's submission as to the so-called consensus of considered medical opinion following the April 2010 surgery, the sixth defendant submitted:**

The [panel's] reasons cannot be fairly inferred to be opining about the existence or otherwise of an alleged consensus of medical opinion. Rather, the panel is to be taken to be saying that it agreed with what the sixth defendant was asserting the alleged consensus to be. The panel was giving its own opinion (agreeing with the content of the submitted consensus) that the plaintiff since surgery continues to have a limited capacity for sedentary duties but no capacity for physical work. The panel had ample evidence to come to such an opinion, not least its own expertise.[14]

**27 These submissions must be rejected. It is to be remembered that the panel referred to the so-called consensus of considered medical opinion in two places in its reasons. While there may have been some force in the sixth defendant's submissions if the panel had only referred to the matter in the terms of its first reference to the so-called consensus,[15] the second reference to the consensus[16] makes it clear that the panel agreed with the proposition that there was a consensus of considered medical opinion that since the April 2010 surgery, the plaintiff had a capacity for sedentary duties. The reasons then go on to record the panel's conclusion that the plaintiff has had a current work capacity since October 2010. This conclusion follows from the acceptance of the consensus submission made by the sixth defendant.

28 The panel only performed one physical examination of the plaintiff. This examination was performed on 12 November 2012. I accept that the panel were well placed to form its own expert view as to the plaintiff's capacity or incapacity as at November 2012. However, there is nothing in the material (or inherent in the circumstances of this case) to show how the panel could have formed any view as to the plaintiff's capacity for employment in October 2010 and through into 2011 other than by relying upon medical reports put before it by the parties. No doubt, this is why the panel referred to the various medical reports that dealt with the plaintiff's capacity for work in the two to three years before the panel's examination. That said, the simple fact is that the panel formed a view of that evidence which was not open to it. Having formed a view that was not open to it, the panel then relied upon that view to reason that the plaintiff had a relevant work capacity from October 2010 onwards.

29 It follows that in accepting the sixth defendant's submission that "the consensus of considered medical opinion [was] that the plaintiff, since surgery [in April 2010] continues to have a limited capacity for sedentary duties", the panel took into account an irrelevant consideration. This irrelevant consideration was material to the panel's reasons. The panel's conclusion must be quashed. At the hearing of this proceeding, no party suggested that, in the event that the panel was found to have committed a jurisdictional error in relation to the acceptance of the sixth defendant's consensus submission, only part of the panel's decision should be quashed - with an attempt to save uninfected parts of the decision. In the circumstances, the whole of the panel's decision (Certificate of Opinion) must be quashed.**

**30 Having regard to the conclusion I have reached above, it is not strictly necessary to deal with each of the plaintiff's other complaints concerning the panel's decision and reasons. In the circumstances I will express my conclusions briefly in relation to remaining matters.

The reasons of the medical panel do not contain any reasons, or adequate reasons, as to how it came to its conclusion that the plaintiff had a current work capacity at the end of October 2010, when he had none in January 2010 or in April 2010 (before the second operation) and the second operation had done nothing for him, his condition had not improved, and his ability to work had not improved.

**32 In my view, there is nothing in this point. The panel is an expert tribunal which performed its own medical assessments of the plaintiff. Having performed examinations of the plaintiff, the panel was well able to come to a conclusion that, at the time of its examination, the plaintiff had a particular capacity for employment. In such circumstances, it would be open to a panel to accept medical reports, produced by different doctors who had performed earlier examinations, that expressed different conclusions as to work capacity at earlier points in time. In a case such as the present, it may be that a medical panel cannot point to any objective improvement or event which has ameliorated the plaintiff's condition in an intervening period. In such circumstances, a medical panel may accept that there was a relevant incapacity in the past - but find that (without supervening improvement), on a current examination, such incapacity no longer exists. While one cannot be definitive about all cases, an approach of the kind I have mentioned does not necessarily bespeak some inadequacy in the reasons. Each case will depend on its own circumstances.

33 Complaint was made by the plaintiff concerning the panel's reliance upon a vocational assessment report dated 3 September 2009. The complaint was as to the relevance of this report to the issue of work capacity after October 2010, having regard to the fact that the report predated the plaintiff's second operation in April 2010 by some eight months. There is some force in this complaint.

34 The September 2009 vocational assessment report[17] identifies what are described as a number of "suitable employment options". These employment options were no doubt tailored to the plaintiff's history given at the time of that report and to the medical evidence as it then existed (as described in the report). There are discrepancies between the position as disclosed in the September 2009 vocational assessment report and the position disclosed in the medical reports compiled after the April 2010 surgery. For example, the vocational assessment report records the plaintiff as then (in September 2009) having an ability to stand for up to 40 minutes; whereas Mr Troy's report of 14 July 2010 (perhaps the high point for the sixth defendant's case) records the plaintiff saying he could only stand for 20 minutes, with Mr Troy's opinion being that any employment must be one where the plaintiff can "change position at will". It is difficult to see on what basis it could have been open to the panel to conclude that the existence of jobs in September 2009 which were suitable for a person with the plaintiff's then restrictions could have had a bearing on the existence or otherwise of jobs that might or might not exist in October 2010 for a person with the plaintiff's restrictions at that time.

35 If there is anything in the pre-April 2010 vocational assessment reports that is capable of bearing relevantly upon potential answers to the medical questions that have been referred by Magistrate Garnett, care needs to be taken to identify the material and the use to which it can be put. Ideally, on a re-determination of the medical questions, more current and relevant vocational assessment reports would be produced.

36 I turn now to another aspect of the panel's reasons. Putting to one side the Court of Appeal's decision in Kocak v Wingfoot Australia Partners & Ors,[18] and accepting that "overzealous judicial review" should be eschewed,[19] and accepting that the reasons of a medical panel do not need to advert in detail to all of the matters it has taken into account,[20] there can be matters which, if not specifically addressed in a medical panel's reasons, might lead a court to infer that the medical panel wrongly failed to take such matter into account. In the present case, the plaintiff gave a history to the medical panel that he was in constant pain, the level of which he described as eight to nine out of ten. The medical panel's reasons do not record whether the medical panel accepted this history - but concluded that the plaintiff had a work capacity in any event - or, on the other hand rejected this history. It may be that the matter was not dealt with because it appears that this history was given as part of a psychiatric examination conducted by only two members of the panel.[21]

37 If the panel rejected the plaintiff's history concerning constant high level pain, then no reasons for the rejection are given. Alternatively, if the panel accepted the history, then no reasons are given as to how or why the plaintiff might be held to have a relevant work capacity in the face of pain levels of this kind. Having regard to the conclusions I have reached above, it is not necessary for me to determine whether I should infer that the panel failed to have regard to a matter to which it was required to give consideration. I should just say for the sake of completeness that if (because there are different injuries requiring different specialties) different examinations are performed by different members of a panel[22] (and therefore different histories are given to different panel members), care needs to be taken to ensure that the panel as a whole takes into account all relevant histories given by an injured person to all panel members.

38 While I will refrain from expressing a concluded view on this issue, it appears to me to be open to conclude in this case that the pain history given to the first and second defendants during the course of the panel's psychiatric examination was not taken into account by the panel as a whole in considering whether the plaintiff had a current work capacity.**

**39 The Certificate of Opinion of the medical panel constituted by the first, second, third, fourth and fifth defendants and dated 14 December 2012 will be quashed.

40 The plaintiff submits that the medical questions should be referred back to the Convenor of Medical Panels[23] for referral for determination by a differently constituted panel. I agree. As was said by Davies and Foster JJ in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal & Anor:[24]**

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the re-hearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated.[25]

(1) The certificate of opinion of the medical panel constituted by the first, second, third, fourth and fifth defendants and dated 14 December 2012 be quashed.

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

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

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

[2] According to the panel's reasons, this was conducted by the third, fourth and fifth defendants on 12 November 2012.

[3] According to the panel's reasons, this was conducted by the first and second defendants on 2 November 2012.

[4] See s 93C(1)(a) of the Act.

[7] Report of Dr Peter Nicolaai dated 8 December 2010.

[8] Report of Dr Peter Nicolaai dated 16 March 2012.

[9] Report of Dr Clayton Thomas dated 8 December 2010. But cf the report of Dr Clayton Thomas dated 28 January 2011 in which he states:

The challenges for him were the following: 1. Whether to proceed with the option of spinal cord stimulation, as spoken to by Professor Peter Teddy. ... 2. To look at retraining options. He is an articulate man, and although his back would not hold up to any physical work, I would have thought that he would be able to return to some form of non-physical sedentary type part-time employment option.

[10] Report of Dr David Middleton dated 14 December 2007.

[11] Report of Dr David Middleton dated 12 March 2012.

[12] Report of Dr H Sutcliffe dated 1 June 2012.

[13] Putting to one side the report of the psychiatrist Dr N Rose, which is not relevant for present purposes.

[14] See paragraph 2(i) of the sixth defendant's further submissions in reply dated 7 August 2013.

[15] In particular, see in the first reference to the so-called consensus in the panel's reasons the sentence containing the words "... based upon its examination ... agrees with this submission ...".

[16] On the last page of the panel's reasons.

[18] [2012] VSCA 259; (2012) 295 ALR 730.

[19] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322, [18] and [71].

[20] Treacy v Newlands & Ors [2008] VSC 395, [7]; Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434.

[23] Cf s 63(4) of the Act.

[24] (1990) 26 FCR 39.