Plaintiff v Firstnamed Defendants Secondnamed Defendants

2 The plaintiff was born in June 1974. She commenced employment with the employer, Pacific Brands Holdings Pty Ltd ("Pacific") in November 2000 on a casual agency hire labour contract. In August 2004, the plaintiff commenced employment with Pacific as a store-worker on a contract basis. On 13 February 2006, the plaintiff completed a claim for compensation under the Act, alleging an injury to her left shoulder. She attributed the injury to her work with Pacific, which involved picking and packing shoes, lifting cartons, and moving pallets. As a result of her injuries, she was off work for a period of some three weeks. Thereafter, she returned to work on reduced hours of four hours per week, with a number of work restrictions. Her continued work was interrupted by further time off.

3 The plaintiff's claim for compensation was initially accepted. However, her entitlement to compensation was subsequently terminated on 22 March 2006, on the grounds that she was no longer incapacitated for work, and that her employment was not, or was no longer, a contributing factor to her claimed injury.

4 The plaintiff commenced proceedings in the Magistrates' Court against Pacific, and against its insurer, QBE Workers Compensation (Vic) Ltd, claiming resumption of her weekly payments for compensation and medical expenses. On the application of the defendants to those proceedings, the Magistrate, pursuant to s.45(1)(b) of the Act, referred a number of medical questions to the Medical Panel for its opinion. On 22 July 2008, the Panel issued its Certificate of Opinion.

5 In its Certificate, in answer to question one as to the nature of the plaintiff's medical condition as pleaded in her Statement of Claim, the Panel stated:

"The Panel is of the opinion that the Plaintiff is suffering from a chronic myofascial pain syndrome relevant to the said injuries.

The Panel is also of the opinion that the Plaintiff is not suffering from any intrinsic physical medical condition of the left shoulder, left hand or cervical spine relevant to the said injuries.

The Panel is of the opinion that the Plaintiff is suffering from an Adjustment Disorder with mixed anxiety and depressed mood, relevant to the said injuries."

In answer to the second question, whether the plaintiff's employment was a significant contributing factor to her injuries, the Panel stated:

"The Panel is of the opinion that the Plaintiff's employment was in fact a significant contributing factor to a soft tissue injury of the left shoulder, which has now resolved, and the development of a chronic myofascial pain syndrome, but employment could not possibly have been, and was not in fact, a significant contributing factor to any persisting left shoulder condition or to aggravated left hand or cervical spine injury or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the left shoulder, left hand or cervical spine, in any way."

6 Questions 3 and 4 raised the question whether the plaintiff had any capacity for work or suitable employment and, if applicable, what employment would, or would not, constitute suitable employment for her. In answer to both those questions, the Panel provided the same answer, namely:

"The Panel is of the opinion that the plaintiff is capable of performing her pre-injury duties."

7 In the present proceedings, the plaintiff, in essence, seeks to impugn the answers provided by the Panel to questions 3 and 4, relating to the plaintiff's capacity to work. In particular, it is submitted that the Panel answered the questions, in its Certificate of Opinion, based on a fundamental error as to the evidence before it as to the pre-injury duties performed by the plaintiff. It is submitted on behalf of the plaintiff that that error is manifest in the Reasons for Opinion provided by the Medical Panel, which accompanied the Certificate, and in which the Panel stated as follows:

"The Plaintiff said that she commenced employment with the defendant in November 2000 via a casual agency labour hire firm. In August 2004 she commenced employment as a full-time employee in a contract basis. She described her pre-injury duties as requiring the picking of items, namely shoes, from various shelves in order to fill orders. She said she was employed working four hours per day, five hours per week."

8 In support of her claim for relief in the current proceedings, the plaintiff swore an affidavit, in which she referred to the passage from the Panel's Reasons for Opinion which I have just quoted, and then deposed:

"At no stage did I inform the Medical Panel that I was only working four hours per day, five days per week before my injury. The Medical Panel was informed that I was working reduced hours after my injury of four hours per day, five days per week, being only half of my pre-injury hours. The Medical Panel has assumed a wrong history of the hours and the requirements of my employment prior to my injury. I also informed the Medical Panel that I initially commenced employment at the defendant's premises with a labour hire company in November 2000, and worked for approximately 1 year. I then started my own business as a florist and re-commenced work at the defendant's premises through a labour hire company in August 2004, transferring to a contract position with the defendant in October 2004. I also informed the Medical Panel that the work duties I performed were strenuous, physical duties which placed significant stress on my body, particularly my shoulder."

9 In submissions before me, Mr M Walsh of counsel, who appeared on behalf of the plaintiff, also relied on a further affidavit, sworn by his instructing solicitor, which exhibited the materials which had been provided to the Panel for its consideration. Mr Walsh took me to a number of documents which were contained in those materials, and which, he submitted, supported the plaintiff's statement, in her affidavit, that she had informed the Medical Panel that, before she suffered her injury in January 2006 for which she claimed compensation, she had worked on a full-time (40 hour week) basis for Pacific.

10 It is not necessary for me to recite the totality of that material. It is sufficient to indicate that the material, which was provided to the Panel, amply substantiates the submission by Mr Walsh that the supporting material sent to the Panel clearly established that the plaintiff, before her alleged injury, had been working on a full-time basis. Thus, for example, the WorkCover Worker's Claim form signed by the plaintiff in support of her claim stated that the total number of ordinary hours worked per week by her before her injury was 40 hours. Similarly, the form completed and signed by her employer stated that before her injury, the plaintiff worked a 38 hour week. A number of the medical reports, which were included in the materials provided to the Board, recorded that the plaintiff had told the examining and treating doctors that, before her injury, she had worked on a full-time contract basis with Pacific. Those reports also demonstrate that it was only after the plaintiff sustained her alleged injury that she, subsequently, resumed work on a restricted basis, performing lighter duties, for four hours per day.

11 Mr Walsh submitted to me, and I accept, that none of the materials put before the Panel stated, or justified the conclusion, that the plaintiff, before her alleged injury, was employed "working four hours per day five days per week", as stated in the Panel's Reasons for Opinion. Ms K. Footner, who appeared on behalf of the second defendants, also accepted that none of the materials before the Panel supported that statement in the Panel's Reasons. I interpolate that consistent with accepted practice, and in accordance with the observations of the High Court in R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors [1], the solicitors for the first defendants (the members of the Medical Panel), by letter to the Associate to the Listing Master, advised the Court that the first defendants would not appear or be represented at the trial of the proceeding, but would submit to such orders as the Court might make.

12 In her submissions, Ms Footner stated that she did not appear to contradict the submissions made on behalf of the plaintiff. She did, however, draw to my attention that, in the passage of the reasons of the Panel which I have already quoted, the Panel had also recorded that, in August 2004, the plaintiff had commenced employment "as a full-time employee on a contract basis." However, and notwithstanding the point made by Ms Footner, the fact remains that the Panel, nevertheless, clearly stated that, before the plaintiff's injury, she was employed working four hour per days, five days per week. I am well satisfied on the affidavit of the plaintiff, and on the materials to which Mr Walsh has drawn my attention, that there was a substantial amount of material before the Panel that, before her alleged injury, the plaintiff was working on a full-time (40 hour per week) basis. Equally, there was no material put before the Panel from which it could have concluded to the contrary, namely, that the plaintiff was only working four hours per day, five days per week.

13 The plaintiff's claim for relief in this case is made on a number of alternative bases. First, Mr Walsh submitted that the Panel made a jurisdictional error by failing to take into account the "evidence" before it, that the plaintiff's pre-injury duties involved her working full-time hours. Conversely, Mr Walsh submitted that the Panel erred in law in taking into account an irrelevant (or extraneous) circumstance unsubstantiated by any material before it, namely, that her pre-injury duties involved her working a four-hour day. Alternatively, Mr Walsh submitted that the Panel had failed to provide adequate reasons for its conclusion that the plaintiff worked a four-hour day before her injury, in the face of all the material that was before it, which was to the contrary effect.

14 Based on my conclusions thus far, I am satisfied that the Panel, in making the findings contained in its Certificate of Opinion, made an error of law which constituted jurisdictional error on its behalf. It is clear that the Panel based its ultimate opinion, as to the plaintiff's current work capacity, on a "finding" as to the number of hours worked by the plaintiff in her pre-injury duties, in circumstances when that "finding" was not open to the Panel on the evidence or material before it. Such an error constitutes an error of law.[2] Secondly, as an alternative way of characterising the relevant error, the Panel failed to take into account relevant material which was before it, namely, that, before her injury, the plaintiff had carried out full-time work duties for 40 hours per week. As an alternative to that basis, the Panel erred by taking into account an extraneous consideration, unsupported by any material before it, that the plaintiff, before her injury, had worked only four hours per day, five days per week. On the basis of each such characterisation, the error by the Panel constituted an error of law by it.[3]

15 The nature of the plaintiff's pre-injury duties, including the number of hours worked by her, were central, and thus material, to the ultimate conclusion by the Panel, recorded in its Certificate of Opinion, that the plaintiff is capable of forming her "pre-injury duties". Thus, the Panel based its conclusion on a material error of law. It is well established that, on each characterisation of that error of law, the Panel exceeded its jurisdiction, and thus its decision is amenable to relief by way of certiorari.[4] In this connection, Mr Walsh helpfully drew my attention to three relatively recent decisions of this Court, in which it was held that a similar error by a medical panel constituted jurisdictional error amenable to relief by way of certiorari, namely, Tralongo v Malios[5], Cladingboel v Newcrest Mining Ltd & Ors [6], and Ripper v Kotzmann & Ors[7].

16 Finally, although it is not necessary for me to consider Mr Walsh's alternative submission, that the Panel failed to give adequate reasons before its findings, nonetheless, based on the conclusions I have so far reached, I would also uphold that submission. The Panel based its ultimate decision on a "finding" that the plaintiff, before her injury, worked four hours per day. That "finding" was made in the face of a substantial body of evidence to the contrary. The Panel gave no reason for rejecting the evidence put before it that, before her injury, the plaintiff worked on a full-time basis. In doing so, the Panel made an error of law.[8]

17 Thus, for the reasons set out above, I accept the submission on behalf of the plaintiff that the Panel's decision of 22 July 2008 was affected by jurisdictional error, such that it is amenable to relief by way of certiorari. Mr Walsh submitted to me that, in those circumstances, I should remit the matter to the Convenor of Medical Panels for determination by a differently constituted Medical Panel. On the other hand, Ms Footner submitted that I should remit the matter for re-determination by the same Panel.

18 I have reached the conclusion that the matter should be remitted for hearing by a differently constituted Panel. In my view, there is an "air of unreality" in remitting the matter to the Medical Panel in the circumstances of this case.[9] Further, Mr Walsh informed me that the same persons who constituted the Medical Panel in this case may not now be on the list of members available for appointment to a medical panel under s.63 of the Act. In any event, some time has now passed since the Panel made its decision, and there would be little advantage, in terms of expense and time, in remitting the matter to the same medical panel.

19 Accordingly, and subject to hearing the parties, I propose to make the following orders:

(1) Declare that the Certificate of Opinion, issued by the Medical Panel on 22 July 2008, pursuant to the referral from Magistrate Braun received on 18 April 2008 pursuant to s.45(1)(b) of the Accident Compensation Act 1985, is void and of no effect.

(2) Order that the opinion of the Medical Panel set out in its Certificate of Opinion dated 22 July 2008 be quashed.

(3) The medical questions, so referred by Magistrate Braun, be remitted to the Convenor of Medical Panels for determination by a differently constituted Panel.

20 I will hear the parties on the question of costs.

[1] [1980] HCA 13; (1980) 144 CLR 13, 35.

[2] S v Crimes Compensation Tribunal [1998] 1VR 83, 89 (Phillips JA); Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).

[3] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.

[4] Craig v The State of South Australia (above), 179-180; The Returned and Services League of Australia (Vic Branch) Inc v Liquor Licensing Commission & Anor [1999] 2VR 203, 214-215; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206CLR 323, 351 (McHugh, Gummow and Hayne JJ).

[5] [2007] VSC 239, [75] to [78] (Williams J).

[6] (2007) VSC 345, [55] - [57]. (Habersberger J)

[7] [2008] VSC 448, [13] (Kyrou J).

[8] Masters v McCubbery & Ors [1996] 1VR 635.

[9] Clarke v National Mutual Life Insurance Ltd [2007] VSC 341, [70] (Forrest J); Treacy v Newlands & Ors [2008] VSC 395, [31] (Beach J).