Plaintiffs v Defendants

2 In 2010, the fourth defendant was employed by the first defendant as a transport operator. On 23 March 2010, he lodged a claim for weekly payments of compensation pursuant to the Accident Compensation Act 1985 ('the Act') in respect of injuries which he sustained in the course of his employment as a result of a fall from the back of a truck on 15 February 2010. Those injuries included a broken right wrist, a fractured left thumb, and an injury to the lower back. The claim was duly admitted, and weekly payments were commenced to be paid to the fourth defendant.

3 By a letter dated 6 March 2002, the fourth defendant applied to the agent of the second defendant, the Victorian Workcover Authority ('VWA'), for continuation of the weekly payments pursuant to s 93CD of the Act. The application was made on the grounds that the fourth defendant had returned to work in alternative employment for a period of not less than fifteen hours per week, and was in receipt of current earnings of at least $151 per week.

4 As the fourth defendant's injury was incurred before 5 April 2010, his application was governed by the form in which s 93CD(3) and s 93(4)(b) stood before the amendments that were introduced by Act No 9 of 2010. Those subsections provided that if the VWA refused the application, the VWA must refer the application, made by the fourth defendant under s 93CD, for the opinion of a medical panel.

5 Accordingly, the agent for the VWA referred to the Convenor of Medical Panels the statutory medical questions specified by s 93CD(4)(b). Consequently, a medical panel, compromising the first, second and third defendants ('the medical panel') was convened to give its opinion as to the medical questions which had been referred to it. The medical panel gave a Certificate of Opinion dated 20 December 2012, recording its opinions in respect of the referred medical questions, as follows:**

Question 1: Is the worker likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury?

Answer 1: Yes.

Question 2: If not, what further employment or work is the worker capable of undertaking?

Answer 2: Not applicable.

6 The medical panel also provided written Reasons for Opinion dated 20 December 2012. In their originating motion, the plaintiffs allege that the reasons reveal that the medical panel fell into jurisdictional error, or alternatively made errors of law which were apparent on the face of the record, and failed to provide adequate reasons for its opinion. Accordingly, the plaintiffs seek an order in the nature of certiorari quashing the opinion of the medical panel, and an order remitting the medical questions to a differently constituted panel to be reconsidered in accordance with law.

Section 93CD of the Act

**7 At the relevant time, s 93CD(1) provided that a worker, who has a 'current work capacity', and is, or has been, entitled to weekly payments, may apply to the VWA (or a self-insurer) for a determination that the worker's entitlement to weekly payments does not cease after the expiry of the 'second entitlement period' within the meaning of s 93CB(1).

8 Section 5 of the Act defines the phrase 'current work capacity' to mean**

a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

**9 Section 5 also defines the term 'suitable employment' to mean employment in work for which the worker is currently suited having regard to a number of specified factors, including the nature of the worker's incapacity and the worker's pre-injury employment.

10 Section 93CD(3) provided that the VWA (or the self-insurer) may determine that the worker's entitlement to weekly payments does not cease after expiry of the second entitlement period, if the VWA (or self-insurer) is satisfied that - **

(a) The worker has returned to work for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $132; and

(b) Because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings.

11 Section 93CD(4)(b) provided as follows:

The Authority or self-insurer -

...

(b) must not refuse to make a determination under subsection (3) on the ground that the Authority or self-insurer is not satisfied that subsection (3)(b) applies, unless -

(i) the Authority or self-insurer has referred the question whether because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work ... ; and

(ii) the opinion of the Medical Panel is that the worker is not so incapable ...

**12 It is necessary to set out, in a little detail, the Reasons for Opinion provided by the medical panel.

13 The panel commenced its reasons by referring to some of the materials provided to it. In particular, the panel referred to a conciliation report provided by Dr John Mackellar dated 25 June 2012 noting that the fourth defendant had returned to work with Express Car and Rental in September 2011 and that he should not return to pre-injury duties; and a certificate of capacity issued by Dr Mackellar on 11 September 2012 advising that the fourth defendant was fit for alternative duties and that his maximum weekly hours should not exceed 15 hours with restrictions. The materials also included a graph of hours worked per week by the fourth defendant for the period between 12 September 2011 and 18 August 2012. The panel noted that the issue in dispute related to the number of hours per week that the worker was capable of undertaking, and whether the worker was currently undertaking duties to the limit of his capacity.

14 The panel's reasons noted that the fourth defendant said that he had worked for 36 years in the transport industry, performing duties such as driving, mechanical repairs and book work. The panel's reasons then summarised the fourth defendant's account of how he injured himself, and of the treatment which he had received after the accident. It set out the fourth defendant's present complaints of injury in the following terms:**

The worker said that he now suffers constant pain in the lower right back, buttock, sacroiliac region and into the right groin. He said that the severity of the pain varies with activity. He said that on occasions he has pain into the right leg. He said that walking, driving, and sitting for long periods aggravate the pain and it is eased by varying his posture. He said that he was able to drive for up to 50 to 60 minutes and, when sitting, tends to sit on his right buttock but must get up after each hour. He is unable to sit evenly on both buttocks for more than two minutes. He says that his walking is limited to around two kilometres ... he says that he limps constantly, he is unable to run but will feel safe on a ladder. He finds that the pain in the right lower back occurs with descending stairs. He has no sensory change in the right leg.

15 On pages 4 to 5 of the reasons, the panel summarised what it had been told by the fourth defendant in relation to his hours of work as follows:

The worker told the Panel that he now works for a car and truck rental company. He said that his typical hours of work were Friday, Saturday, and Sunday averaging 21 hours per week. He said that on some weeks he would do some additional maintenance on the vehicles, which may increase his hours by three or four in that week. He said that at times, his employer goes on leave and he will perform additional hours of work, which is mainly in the office or on call when a rental is requested. He said that his typical hours are 21 hours per week and he will usually work five to six hours four days per week although his hours have at times gone up to 50 hours per week.

He described his employer as understanding and providing work when the worker is capable and that he helps out his employer when his employer is absent.

The Panel showed the worker the graph of his work hours provided in the referral documents. The worker said that weeks 14 to 19 corresponded to a time over Christmas when his employer was on leave and that the worker had filled in conducting the rental business largely on an on call basis although he had received hourly payments.

The worker said that the additional hours indicated under weeks 25, 29, and 30 corresponded to a period when his employer had laid off additional workers and the worker had performed additional hours on weekends.

16 The panel, in its reasons, then summarised the results of the physical examination which it performed on the fourth defendant, and referred to the reports of the radiological examinations that had been conducted on the fourth defendant. The panel stated its conclusions concerning the injuries sustained by the fourth defendant, in the following terms:

The Panel concluded that the worker is suffering from the residual effects of an intraarticular fracture of the right distal radius, injury to the left thumb, and a fractured sacrum but that these have all healed. The Panel also concluded that the worker is suffering from aggravation of lumbar spondylosis with persistent referred symptoms to the right lower extremity, which has not resolved.

17 The panel noted that it had also performed a psychiatric assessment of the fourth defendant. In doing so it noted the following:

The worker told the panel that he currently works 21 hours per week, working Friday afternoon, Saturday and Sunday all day. He said that the work consists mainly of office work and said that a couple of weeks recently he has worked fifty hours spread over seven consecutive days. He said that he enjoys the work and said that his employer is excellent.

18 The panel, in its reasons, then set out further matters relating to the fourth defendant's history, and his mental state. The panel concluded that the fourth defendant was suffering from an adjustment disorder with depressed and anxiety mood currently in remission. It stated that the fourth defendant was not likely to continue indefinitely to be incapable of undertaking further or additional employment because of the psychological injury. The panel concluded its reasons as follows:

The Panel considered the nature of the worker's current employment and his hours of duties together with the residual symptoms and restrictions of capacity as a result of the work injuries.

The Panel noted that the worker was working variable hours and would increase his hours within his capacity when these were available. In particular, the Panel noted that the worker was able to work hours in excess of his typical 21 hours per week on frequent occasions over the last twelve months.

The Panel considered that the worker provided a straightforward explanation of his capacity and of his willingness to work and that he had worked to the limits of his capacity when such work was provided by his employer.

The Panel therefore concluded that the worker is currently working to his maximal capacity and that the worker is incapable of performing additional hours of employment or work because of the injury.

The Panel considered the duration, nature of the worker's injury and the response to treatment to date. The Panel concluded that the nature and severity of the worker's injury was unlikely to significantly change within the foreseeable future.

The Panel therefore concluded that the worker was likely to continue indefinitely to be incapable of undertaking further additional employment or work because of the injury.

The plaintiffs' grounds for seeking judicial review

**19 In the originating motion, the plaintiffs rely on five separate grounds for seeking judicial review. Those grounds focus principally on the proposition, by the plaintiffs, that the panel's conclusion, as to the fourth defendant's current working capacity, is inconsistent with its finding that when the fourth defendant had worked up to 50 hours per week, 'he had worked to the limits of his capacity when such work was provided by his employer'.

20 In particular, the five grounds relied on by the plaintiffs are as follows:**

(1) The panel fell into jurisdictional error by asking itself the wrong question, namely, a question based upon the availability of work to the worker, rather than the correct question, namely, the worker's physical capacity to perform additional work.

(2) The panel fell into jurisdictional error by taking into account an irrelevant consideration, namely, the limit of the varying hours of work made available from time to time by the employer.

(3) The panel fell into error of law manifest on the face of the record by misconstruing s 93CD(4)(b).

(4) The conclusion by the panel, that the fourth defendant was currently working to his maximal capacity, and that he was incapable of performing additional hours of employment because of his injury, was not open having regard to its previous findings of fact, namely, that he had worked to the limits of his capacity when such work was provided to him by his employer.

(5) The panel erred in law in failing to give a proper and adequate statement of its reasons for its opinion in accordance with s 68(2) of the Act.

**21 Mr M Fleming SC, who appeared with Mr R Kumar on behalf of the plaintiffs, submitted that it was not open to the panel to find that the fourth defendant was currently working to his 'maximal capacity,' in circumstances where the panel had found that the fourth defendant was capable of increasing his hours of work to 50 hours per week and that he had worked to the limits of his capacity when such work was provided to him by his employer. Mr Fleming submitted that the conclusion by the panel, in that respect, could only have been made on the basis that it improperly took into account an irrelevant matter, namely, the varying hours of his employment, which depended on the work made available to him by his employer. In support of that submission, Mr Fleming referred to the earlier passage in the reasons, in which the panel had recorded that the fourth defendant stated that he had recently worked 50 hours per week for a couple of weeks, and that he enjoyed his work. Mr Fleming pointed out that there was no suggestion that, in that period, the fourth defendant had been only 'on call'.

22 Mr Fleming submitted that the question, which the panel was required to determine, was whether the fourth defendant had the physical or medical capacity to undertake further or additional employment or work. That question required the medical panel to ignore the availability of such employment or work. In circumstances in which the panel found that the worker had a capacity to perform up to 50 hours per week with his employer, the panel, he submitted, was bound at law to answer 'no' to the first question, and to answer the second question 'up to 50 hours per week in his current employment'. Mr Fleming submitted that the answer, given by the panel to the first question, was not open in law, having regard to the panel's previous findings in fact. Thus, he submitted that the medical panel made an error of law, which is manifest on the face of the record.

23 Mr Fleming further submitted that the medical panel erred in law by failing to give adequate reasons for the opinion which it expressed in answer to the two referred medical questions. In particular, Mr Fleming submitted that the medical panel failed to give reasons:**

(a) explaining the effect of the fourth defendant's compensable injury on his capacity for employment;

(b) explaining how it concluded that the fourth defendant was currently working to his maximal capacity and was incapable of performing additional hours of employment or work, in circumstances where his hours were variable and up to 50 hours per week;

(c) explaining how it concluded that the fourth defendant was currently working to his maximal capacity and was incapable of performing additional hours of employment or work, when it had also found that he would increase his hours within his capacity when they were available;

(d) explaining how the availability of work with the fourth defendant's employer was relevant to its determination that the fourth defendant was currently working to his maximal capacity and was incapable of performing additional hours of employment or work.

**24 In response, Mr P Jewell SC, who appeared with Mr N Dunstan on behalf of the fourth defendant, submitted that the panel's reasoning did not contain any error of law. He submitted that the submissions made on behalf of the plaintiffs were based on a misconstruction of the reasons of the panel. Mr Jewell contended that, on a proper reading of the reasons as a whole, the panel did not determine the issue of the fourth defendant's capacity for employment by reference to the hours of work made available to him by the employer. Mr Jewell contended that the submissions made on behalf of the plaintiffs inferred that the panel had acted irrationally, by addressing the issue of the availability of additional work to the fourth defendant, and not the medical capacity of the fourth defendant to perform further work. Mr Jewell submitted that the court should be slow to conclude that the panel, which comprised three experienced medical practitioners, had proceeded on such an irrational and misconceived basis.

25 Mr Jewell submitted that, implicitly, the panel accepted that the relationship between the fourth defendant and his employer had an element of mutual reciprocity, so that the fourth defendant helped out the employer when the employer was absent. He submitted that the panel also implicitly accepted the statement by the fourth defendant that weeks 14 to 29, displayed in the graph, largely constituted payments for hours on call, and that weeks 25, 29 and 30, displayed on the graph, also represented work performed by the fourth defendant on a temporary, fill in, basis, and did not reflect the type of hours which he was capable of performing on a sustained basis.

26 Thus Mr Jewell submitted that the panel was entitled to consider that the further hours worked by the fourth defendant did not represent, or demonstrate, a capacity by him to perform regular meaningfully sustained additional suitable work.

27 Mr Jewell further submitted that the panel's path of reasoning was adequately disclosed in its reasons. In particular, he noted that the panel:**

(a) had regard to the relevant factors set out in the definition of 'suitable employment' in s 5 of the Act;

(b) took account of the fourth defendant's complaints of pain and restrictions, and of the radiological investigations and other medical information;

(c) conducted and took account of a medical examination of the fourth defendant;

(d) stated its conclusion that the fourth defendant was continuing to suffer from compensable 'aggravation of lumbar spondylosis with persistent referred symptoms to the right lower extremity';

(e) used the panel's medical expertise to arrive at its final conclusion.

28 Mr Jewell submitted that it was apparent, from the panel's diagnosis of the fourth defendant's condition, his symptoms, restrictions and need for treatment, that the panel, relying on its medical expertise, formed the conclusion that the fourth defendant was confined to working limited duties for limited hours on a meaningfully sustained basis. Thus, Mr Jewell submitted that the panel's reasons were adequate.

**29 The first question, then, is whether the medical panel made an error of law in concluding that the fourth defendant was then working to his maximal capacity, and that that capacity would continue indefinitely. In essence, Mr Fleming made two submissions in relation to that conclusion, namely - **

(a) The conclusion was not open to the panel in view of its finding that the fourth defendant was capable of increasing his hours of work up to 50 hours per week when that work was available to him.

(b) The panel took into account an irrelevant consideration in forming its conclusion, namely, the lack of availability of longer hours of work.

**30 The submissions, made by Mr Fleming, are based on the proposition that the panel considered that the fourth defendant was capable of working up to 50 hours per week when the work was available to him, and that he was only unable to work those hours on a continuous basis because the employer did not have sufficient work available to enable him to do so. In my view, that proposition is based on an erroneous interpretation of the reasons of the medical panel.

31 The conclusions of the panel must be construed, and understood, in the context of the reasons as a whole. In my view, when considered in that way, the proper construction of the panel's conclusions is that the fourth defendant's capacity to work hours longer than 21 hours per week was variable, that he was not capable of working longer hours on a sustained or continuous basis, and that his injuries were the cause of his incapacity to do so.

32 It is important to bear in mind that the panel considered that the fourth defendant had provided a 'straightforward' - that is, truthful - explanation of his capacity to work. It follows that the panel accepted the fourth defendant's explanation that he ordinarily worked 21 hours per week, but that the employer, who was understanding of his circumstances, provided more work to him when he was 'capable'. In return, the fourth defendant worked extended hours, from time to time, to assist the employer. The panel, by considering the fourth defendant to be 'straightforward' concerning his hours of work, by implication also accepted the fourth defendant's explanation in respect of the hours of work recorded for weeks 14 to 19, namely, that he was only on call for that period. Thus the panel, in its reasons, noted that the fourth defendant 'was working variable hours and would increase his hours within his capacity when these were available'. (Emphasis added.)

33 In support of his submissions, Mr Fleming referred to the passage in the reasons in which the panel noted that a couple of weeks recently the fourth defendant had worked 50 hours spread over seven consecutive days. Mr Fleming pointed out that it was not suggested that the fourth defendant had merely been 'on call' during that two week period. However, the passage in the reasons, to which Mr Fleming referred, must be considered in its context. In particular, the reference, to the two weeks over which the fourth defendant had worked for 50 hours, was contained in the same passage in the reasons in which the panel recorded that the fourth defendant 'currently works 21 hours per week'. Thus, that passage is consistent with the balance of the panel's reasons, namely, that the fourth defendant was capable of working extended hours, from time to time. However that passage does not suggest that the fourth defendant was capable of working such hours permanently, or on a sustained or continuous basis.

34 Accordingly, in that context, it is clear that the panel's conclusion, that the fourth defendant 'is currently working to his maximal capacity', was not a conclusion by the panel that he was able to work consistently 50 hours per week when that work was available to him. Rather, in my view, the panel concluded that the fourth defendant was capable of working the extended hours, but only from time to time, and not on a sustained basis.

35 Further, it is clear from its conclusions, that the panel considered that the fourth defendant's incapacity to perform further work was not caused by the unavailability of further hours of work, but, rather, that it was the result of his injury. In the third last paragraph of its reasons, the panel expressly stated 'the worker is incapable of performing additional hours of employment or work because of the injury'. The panel made that statement in the context of the injuries, which it had already considered, and on which it had formed its conclusions. In the next paragraph, the panel stated that it had considered the duration and nature of the fourth defendant's injury, and the response of the injury to the treatment to date, and that it concluded that 'the nature and severity of the worker's injury was unlikely to significantly change within the foreseeable future'. On that basis the panel, in the final paragraph of the reasons, concluded that the fourth defendant was likely to continue indefinitely 'to be incapable of undertaking further additional employment or work because of the injury'.

36 Thus, when the panel's conclusions are construed in the context of the whole of its reasons, it is clear that the panel found that the fourth defendant was not able to work longer hours on a sustained basis, but that he was only capable of doing so from time to time. Secondly, the panel, in express terms, attributed the fourth defendant's incapacity, to work additional hours, to his injuries and the ongoing effects of them.

37 In this context, there is force in the submission made by Mr Jewell that the court should not readily attribute to the panel a line of reasoning that, on any view, would be irrational. The members of the panel were experienced medical practitioners. Part of the role of the panel was to perform a medical assessment of the fourth defendant, and to draw conclusions about his current medical condition, and, in particular, as to whether his condition was such that he was incapable of performing additional hours of employment. The first question, which the panel was required to answer, concerned whether the fourth defendant was likely to continue indefinitely to be incapable of undertaking further or additional employment or work 'because of the injury'. The panel, in its conclusions, expressly addressed that very question. It did so, and stated, in the second last paragraph of its reasons, that it had considered 'the duration nature of the worker's injury and the response to treatment to date'. There is, in my view, nothing in the reasons of the panel which suggests that, instead of addressing the question of the medical capacity of the fourth defendant to carry out additional hours of work, it somehow, for no rational reason, embarked on a 'frolic of its own', and instead formed its conclusion on the basis of the hours of work that were available to the fourth defendant.**

Did the panel provide adequate reasons for its decision?

**38 The next question is whether the panel provided adequate reasons for the opinion which it expressed in answer to the two medical questions referred to it.

39 Since the decision in Masters v McCubbery,[1] medical panels have been required to provide reasons for their opinions. Since 2010, that requirement has been expressly incorporated in s 68(2) of the Act, so that a failure to provide such reasons constitutes, of itself, an error of law on the face of the record.[2] In Moyston Court Fisheries Ltd v Malios & Ors,[3] J Forrest J helpfully set out the principles relevant to the provision of adequate reasons by a medical panel in the following terms:**

• A medical panel constituted under the Act is required to provide reasons for reaching its decision.

• Those reasons should enable the court and the parties to understand that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on the appropriate application of the panel members' medical knowledge and expertise.

• The panel is an expert panel, whose members are chosen for their experience and their findings need to be reviewed in that light (cf a non-expert tribunal).

• The reasons provided are those of a tribunal not that of a judicial body and must be viewed from that perspective.

• The reasons of the panel are to be read in context, taking into account the background of the case, the material provided, and the issues which have to be determined.

• The reasons of an administrative decision maker such as the panel are meant to inform and over-zealous judicial review is to be eschewed. The reasons should not be over-analysed.

• Judicial review should not be used to conduct a merits review.

• The reasons of the panel do not need to advert in detail to those matters it has taken into account.

• The County Court is only bound to act on the medical panel's answers to the questions posed by the court and is not permitted to look to the reasons to explain the opinion.[4]

40 The question of the sufficiency of the reasons of a medical panel was recently considered by the Court of Appeal in Kocak v Wingfoot Australia Partners Pty Ltd.[5] In that case, the court stated:

[I]n effect, serious injury applications now stand to be determined on the basis of Medical Panel Opinions which judges are bound to accept. Accordingly, just as judges who decide serious injury applications must give reasons sufficient to explain their path of reasoning - from the evidence to the facts and from the facts to their conclusions - so too we think must Medical Panels, on whose opinions the whole exercise may now rest. Further, if that is the standard to be required for some opinions, then consistency and convenience require that it be so for all of them.

Of course, the content of reasons will depend on the nature of the question and the particular circumstances of the case. Such is the range of questions likely to be directed to Medical Panels that the extent of reasons required is potentially infinitely variable. Even so, in the way in which the use of medical panels has developed, these days a medical panel will more often than not be assailed with competing bodies of expert medical opinion and submissions as to matters of fact and law on behalf of competing parties. In such cases ... we see no reason to accept that a Medical Panel's reasons should not meet the standard required of any other statutory decision maker exercising a comparable quasi adjudicative/investigative function. In such cases, a Medical Panel's reasons thus should include a statement of findings on material questions of fact; some sort of identification of the evidence or other material upon which those findings are based; and an intelligible explanation of the process of reasoning that has led the Panel from the evidence to the findings and from the findings to the Panel's ultimate conclusion.[6]

**41 In my view, in that passage, the Court of Appeal in Kocak did not alter the principles stated by J Forrest J in Moyston Court Fisheries Ltd, other than by qualifying, and amplifying, the eighth point outlined by J Forrest J. In particular, in considering the question whether the panel gave adequate reasons, it must be borne in mind that the reasons provided by the panel members were not those of a judicial body, but, rather, by members of an expert tribunal. The critical question is whether the panel has adequately described the path of reasoning which it took, and has outlined, sufficiently, the basis upon which it adopted that path of reasoning.

42 Bearing those principles in mind, I turn to the submissions made by Mr Fleming. The major focus of Mr Fleming's submissions was the second and third points, which I have summarised above in paragraph 23. However, it is appropriate to commence by considering the first point outlined by Mr Fleming, namely, the submission that the panel failed to explain the effect of the fourth defendant's compensable injury on his capacity for employment.

43 In considering that submission, it is important to bear in mind, first, that it was not in dispute between the parties that the fourth defendant's injury did affect his capacity for employment. In its reasons, the panel recorded that for 36 years the fourth defendant had worked in the transport industry performing duties such as driving, mechanical repairs and book-work. The panel also noted the two opinions expressed by Dr Mackellar, that the fourth defendant was not fit to return to his pre-injury duties, but that he was fit for alternative duties on the basis that the maximum weekly hours did not exceed 15 hours with restrictions. The duties performed by the fourth defendant, with his present employer, were described as being principally office duties. The materials, listed in the schedule to the panel's reasons, included a report by Dr Schutz dated 2 March 2012, in which the fourth defendant's duties, with Express Car and Truck Rental, were described as being 'completely different', and being principally of an administrative nature. As I have already stated, the panel, in its reasons, set out the fourth defendant's account of his restrictions, and also set out its conclusions, including that the fourth defendant suffered from an aggravation of lumbar spondylosis with persistent referred symptoms to the right lower extremity, which had not resolved. It was not in dispute before the panel that the fourth defendant was unfit for his previous employment, because of his injuries. In that light, it is clear that the panel sufficiently provided an explanation for its conclusion that those injuries, and disabilities, had the effect that the fourth defendant was not capable of performing additional hours of employment or work.

44 The focus of Mr Fleming's submissions, in respect of the question of the adequacy of the medical panel's reasons, is summarised in the second and third points in paragraph 23 above. In particular, Mr Fleming contended that there was a tension between the observation by the panel, in the fourth last paragraph of its reasons, that the fourth defendant 'had worked to the limits of his capacity when such work was provided by his employer', with the panel's conclusion, in the third last paragraph, that the fourth defendant was working to his maximal capacity and that he was incapable of performing additional hours of employment because of his injury. Mr Fleming submitted that the reasons of the panel were inadequate, because they did not explain how the panel reached its conclusion, as to the incapacity of the fourth defendant to work further hours, in circumstances in which he had worked 'to the limits of his capacity' when further work was provided by his employer.

45 For the reasons which I have already outlined, I do not consider that there is a 'tension' in the reasons of the panel, as submitted by Mr Fleming. Rather, taken in its proper context, it is clear that the panel accepted that the fourth defendant was, from time to time, capable of working beyond his restricted hours of 21 hours per week, for limited periods of time. In essence, the panel noted that the fourth defendant was, from time to time, able to work beyond 21 hours per week. However, its conclusion was that the fourth defendant's injuries precluded him from performing additional hours of employment or work than those performed by him thus far. In other words, the panel concluded that the fourth defendant was not capable of working continuously, on a sustained basis, for longer than his usual hours of work, namely, 21 hours per week. That being so, I do not accept the contention that there is a tension between the two passages in the panel's reasons that required explanation by the panel.

46 The final submission made by Mr Fleming, in respect of the adequacy of the reasons of the panel, is that the panel failed to explain how the availability of work with the fourth defendant's employer was relevant to its determination that the fourth defendant was currently working to his maximal capacity and was incapable of performing additional hours of employment or work. For the reasons I have already given, I have not accepted the submission made on behalf of the plaintiffs, that the panel took into account the availability of work with the fourth defendant's employer in determining that he was currently working to his maximum capacity and was incapable of performing additional hours of employment or work. Thus, the submission made by Mr Fleming, in this respect, was based on a premise which I have not accepted.

47 For those reasons, I reject the submission by the plaintiffs that the medical panel did not give adequate reasons for its opinion in respect of the medical questions which had been referred to it.**

48 For the reasons I have set out above, I have come to the following conclusions:

(1) The plaintiffs have not established any jurisdictional error, or error of law, by the medical panel in answering the two questions referred to it for its opinion.

(2) The medical panel provided proper and adequate reasons for its opinion in respect of the referred medical questions.

49 It follows that the application by the plaintiffs, for relief in the nature of certiorari and mandamus, should fail. Accordingly the proceeding should be dismissed.

[1] [1995] VICSC 209; [1996] 1 VR 635.

[2] Kocak v Wingfoot Australia Partners Pty Ltd [2012] VSCA 259, [80].

[3] [2007] VSC 518.

[5] [2012] VSCA 259.

[6] Ibid [47]-[48] (Nettle and Osborn JJA and Davies AJA).