Pope v W S Walker & Sons Pty Ltd & Anor [2006] VSCA 227

"For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

The issues on appeal

7 Although counsel on both sides agreed that s.68(4) did not render a medical panel opinion which had been obtained for the purposes of a statutory benefits claim final and conclusive for the purpose of a s.134AB application, they reached that conclusion by different routes.

8 Counsel for the appellant contended that notwithstanding the apparent broad terms of s.68(4) the provision had no application, at all, to a s.134AB application. From its introduction in 1997 it related, they submitted, only to medical panel opinions obtained for the purpose of applications concerning claims to statutory benefits, and the amendments to the Act in 2000 did not extend its scope of operation beyond such disputes.

9 Counsel for the respondents proffered a different construction of the sub-section. They submitted that although the sub-section when it was introduced in 1997 had application only to claims concerning statutory benefits the amendments to the Act in 2000 meant that it thereafter did have a, relatively limited, relevance to s.134AB applications: where a medical panel opinion was sought and obtained by a judge for the purpose of a s.134AB application then s.68(4) would apply, so that (subject to the terms of the medical question posed and the opinion expressed) the medical panel opinion was final and conclusive, for the purpose of the s.134AB application.

10 As I shall discuss, I agree with the interpretation of the legislation advanced by counsel for the respondents.

11 On both sides, counsel agreed that it was critical to the interpretation of s.68(4) that it be read in the context of the history of legislative changes to the Act which occurred first in 1997 and then in 2000. When understood in that context, they agreed, his Honour's interpretation of s.68(4) - i.e. that a judge hearing a s.134AB application could be bound by the terms of a medical panel opinion obtained for the purpose of a statutory benefits claim - did not reflect the intention of the legislature.

The legislative amendments in 1997

12 When s.68(4) was introduced in 1997 it was one of a series of significant amendments which accompanied the removal of the right of workers to claim common law damages. Prior to the 1997 amendments there had been a range of situations in which an opinion on a medical question might be sought under the Act from a medical panel, for the purpose of resolving a dispute concerning statutory benefits. In each instance, but in different language, the specific provision granting power to refer a medical question for an opinion imposed an obligation on the requesting body to adopt the opinion. That approach changed in 1997 when a single provision, s.68(4), was introduced which, in common language, imposed an obligation on each requesting court, body or person to adopt the opinion of a medical panel.

13 Thus, with the introduction of s.68(4) came the removal of sub-s.(1)(c) from s.45(1). Section 45(1), before repeal of paragraph (c) (highlighted below), had read:

"45(1) Where the County Court exercises jurisdiction under this Part -

(a) the Court may refer a medical question to a Medical Panel for an opinion; and

(b) if a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion; and

(c) the opinion of the Panel on that question shall, subject to this section, be adopted by the Court as the answer to that question."

14 When s.45(1)(c) was repealed in 1997 so too was s.56(7), which had rendered a medical opinion "conclusive" when sought and obtained by a conciliation officer with respect to a dispute concerning statutory benefits. In addition, s.99AB was repealed, pursuant to which the Administrative Appeals Tribunal had also been empowered to refer medical questions for the purpose of determining statutory benefits claims. In similar terms to s.45(1)(c), s.99AB(1)(c) had required the Tribunal to 'adopt' the opinion provided by the panel in response to its referred medical question. Other changes in 1997 included the introduction of s.104B, whereby the Authority, authorised insurer or self-insurer, were authorised to seek a medical panel opinion with respect to claims for compensation for non-economic loss under s.98C.

15 As I have said, the result of these 1997 amendments was that there became the single provision - s.68(4) - which rendered medical panel opinions "final and conclusive" in all situations where such opinions were authorised to be obtained under provisions of the Act. The significant factor, however, was that when s.68(4) was introduced in 1997 it was directed solely to medical panel opinions obtained for the purpose of disputes concerning statutory benefits (as had been the purpose to which each of the repealed provisions had related). The scope of s.68(4) was so limited because common law claims had been abolished, save to the extent that there remained s.135A, which allowed "serious injury" applications to be made to the Court with respect to the "run-off" of common law claims under the Act for injuries which arose before 12 November 1997. The County Court had not been empowered by s.135A to refer medical questions to a medical panel, nor did s.45(1) empower the court to do so. As its terms make clear, s.45(1) only authorised the County Court to refer a medical question to a panel when exercising jurisdiction "under this Part". Section 45(1) fell within Part 3 of the Act, which dealt with dispute resolution concerning claims for compensation, benefits and entitlements under the Act, that is, disputes concerning statutory benefits, whereas it was in Part 4 of the Act that s.135A appeared.

16 Prior to its removal in 1997 s.45(1)(c) had made it clear that it was only a medical panel opinion which had been obtained as a result of its own referral of a medical question that the County Court was bound to adopt. Thus a medical panel opinion obtained upon referral by a conciliation officer was not binding on the County Court judge hearing a dispute concerning statutory benefits. The terms of s.68(4) meant that thereafter the County Court, when exercising jurisdiction concerning a statutory benefits dispute, would also be required to accept as final and conclusive a medical panel opinion which was relevant to the statutory benefits dispute before the County Court, even though it had been obtained as a result of referral of a medical question by some other person, court or body for the purpose of a statutory benefit dispute. On both sides, counsel were in agreement as to that consequence of the 1997 amendments.

17 The question, then, is whether the 2000 amendments extended the operation of s.68(4) beyond applications concerning statutory benefits disputes, so that a court hearing an application under s.134AB would now be bound by medical opinions obtained with respect to disputes concerning statutory benefits.

The legislative amendments in 2000

18 In 2000 s.134AB was introduced,[2] which restored the right to bring claims for damages, for injuries arising on or after 20 October 1999. The section required that certain threshold conditions be met for such a claim including, where necessary, that a court grant leave upon determining that the injury was a serious injury (see: ss.134AB(16)(19)).

19 At the same time that s.134AB was introduced, some minor changes were made to s.45(1) but, more significantly, s.45(1A) was introduced. Those sub-sections then read as follows:

"45(1) Where the County Court exercises jurisdiction under this Part, the County Court -

(a) may refer a medical question; or

(b) if a party to the proceedings requests that a medical question or medical questions be so referred, must, subject to sub-sections (1B) and (1C), refer that medical question or those medical questions -

to a Medical Panel for an opinion under this Division.

(1A) This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b) -

(a) so as to enable in accordance with sub-section (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of 'medical question' in section 5(1)); or

(b) so as to require in accordance with sub-section (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of 'medical question' in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition) -

for the opinion of a Medical Panel."

20 Accordingly, when hearing an application under s.134AB for leave to bring common law proceedings the County Court was empowered by s.45(1A) to seek the opinion of a medical panel on medical questions. At the same time, the definition of "medical question" in s.5 of the Act, which had identified questions under paragraphs (a) to (g), was amended by the addition of two further paragraphs, (h) and (i), which read as follows:

"(h) a question prescribed to be a medical question in respect of an application for leave under section 134AB(16)(b);

(i) a question determined to be a medical question by a court hearing an application for leave under section 134AB(16)(b)."

21 Despite the introduction of s.134AB and s.45(1A) no change was made to the terms of s.68(4). I respectfully agree with the learned judge, who concluded that Parliament must have intended, therefore, that s.68(4) was to also apply to a County Court hearing of a s.134AB application. As I shall discuss, not only is that conclusion consistent with the terms of the amended legislation, it gains support from the words of the Minister in the Second Reading Speech when introducing the 2000 amendments. The question remains, however, whether the consequence of the various amendments was that s.68(4) bound all courts, bodies or persons to adopt the opinions of medical panels obtained by each other, irrespective of the purpose for which the opinion had been obtained. In particular, was the County Court, when hearing an application under s.134AB, bound to accept as final and conclusive the opinions of medical panels not provided upon its own referral of a medical question in those proceedings but upon referral of another person, body or court for the purpose of disputes concerning claims to statutory benefits? His Honour, giving full weight to the words of s.68(4) "irrespective of who referred the question to the panel or when it was referred", held that the County Court was so bound, but in my respectful opinion those words must be read down.

Should s.68(4) be read down?

22 Counsel on both sides urged the Court to adopt a purposive approach to the interpretation of s.68(4), and submitted that the intended scope of its operation can be gleaned not only by reference to the history of the legislative amendments to the Act but also by placing the sub-section in the context of the Act. To give the sub-section a too-literal interpretation would produce unintended and anomalous results, they submit.

23 The breadth of the terms of s.68(4) were remarked upon by Phillips, J.A. in QBE Workers Compensation (Vic) Ltd v. Freisleben,[3] who described them as "most extraordinary", and the terms of the sub-section are, indeed, so broad that, in my opinion, they must be read down, in any event. Otherwise, the sub-section would bind, for example, a jury hearing a common law damages claim, and would do so even if the claim was brought against a non-employer, in addition to an employer.[4]

24 His Honour, as he was entitled to do,[5] had regard to the Second Reading Speech of the responsible Minister when introducing Act No.26 of 2000. He concluded that his interpretation of s.68(4) was consistent with the statements of the Minister as to the intended effect of the legislative amendments. The Minister said this:

"The Bill makes important changes to the process for managing both the assessments of claims for statutory lump sum damages and access to damages for common law. These changes include the timing of the impairment assessment and the role of medical panels in dispute resolution. These changes pick up one of the very important recommendations of the working party, that the Victorian WorkCover Authority have in place a strong claims management process for common law. The changes are also based on the Masel Report which among other recommendations highlighted the importance of appropriate claims management and streamlined assessment processes for both statutory benefits and common law claims.

The bill requires that in future workers undergo a once-only whole person impairment assessment to determine their entitlement for both statutory lump sum benefits and access to common law under the whole person impairment test. The test will be undertaken no earlier than 12 months from the date of injury. Workers will initially be referred to an independent medical practitioner who will assess the level of impairment. If the assessment is not accepted by the worker, the assessment will be referred to a medical panel. The decision by the medical panel will be final and binding on the courts.

If the worker wishes to pursue recovery of pain and suffering damages at common law, then his or her right to payment of any statutory non economic loss compensation is suspended, pending the outcome of the common law claim. If the worker fails to recover any pain and suffering damages, he or she may then access the statutory non economic loss compensation. If the worker does receive a settlement offer or an award of pain and suffering damages, the worker would have the option of taking either the statutory non economic loss compensation or the damages but not both.

The worker's right to weekly payments compensation and damages for economic loss are unaffected by this proposal.

The common law pre-litigation process will only commence once the degree of impairment has been assessed and will be modified to dovetail with the new process. An essential aspect of these changes is that a worker will not be able to commence an application under the narrative serious injury test[6] until the worker's level of impairment has been assessed.

Medical panels are currently responsible for providing opinions on a range of medical questions in relation to statutory benefits. It is proposed to extend the role of medical panels to provide opinions on medical questions associated with the narrative serious injury test.

As is currently the case, the decisions of medical panels will be final and binding. The value of the medical panels is that independent experts determine medical questions and the degree of whole person impairment in a non adversarial environment. As is currently the case, the only appeal permitted will be on the basis that the medical panel has failed to afford procedural fairness or has breached other principles of administrative law."[7] [My emphases]

25 The sentences highlighted in the two concluding paragraphs of the extract quoted above are at odds with the primary contention for the appellant, namely, that s.68(4) had no application, at all, to proceedings under s.134AB. I turn then to the contention of the respondents that s.68(4) did have a limited relevance for s.134AB proceedings.

26 If the primary contention of counsel for the appellant were to be rejected by this Court then, as a fall-back position, they would adopt the contention of counsel for the respondents as to the limited application of s.68(4), with respect to applications under s.134AB.

27 In my opinion, the full extract from the Second Reading Speech is not inconsistent with the primary contention of counsel for the respondents, namely, that with regard to s.134AB applications, the sub-section did have limited relevance, in that s.68(4) would render final and conclusive those medical panel opinions that had been generated as a result of medical questions referred in the course of the s.134AB application.

28 However, notwithstanding the apparently clear and broad language of s.68(4), in my respectful opinion a purposive approach to interpretation of the legislation would not support his Honour's conclusion as to the operation of the sub-section.

The approach to statutory interpretation

29 The High Court has emphasised the importance of context in resolving questions of statutory interpretation.[8] Likewise, the Court endorsed an approach to interpretation which avoids producing inconvenient or anomalous results. In CIC Insurance Ltd v. Bankstown Football Club Ltd[9] Brennan, C.J., Dawson, Toohey and Gummow, JJ. held:[10]

"Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous ... [I]f the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent."

30 McHugh, J.A. in Kingston v. Keprose (No. 3),[11] in a passage later approved in Bropho v. State of Western Australia[12] held:

"A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act."

31 The history of amendment and replacement of the relevant statutory provisions may assist in determining the meaning of the provisions which replaced those that previously existed,[13] and it does so in this case. The fact that parliament retained, in s.68(4), the same words in what had become a quite different setting, namely, a setting where common law proceedings were now available (which was not the case when s.68(4) was introduced), raises the question, considered by Gummow, J. in Stingel v. Clark,[14] whether the case falls into the class identified in Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation (Cth),[15] where Gibbs, C.J. held:

"There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case".

Interpreting s.68(4) in the context of the Act

32 Parliament must be taken to have appreciated the historical difference between proceedings concerning statutory entitlement claims and hearings concerned with the right to bring common law proceedings. Whilst there might be some limited common factual issues, the questions which a Court must address under s.134AB are quite distinct from those dealt with in the Act concerning statutory benefits disputes. The complexity and uniqueness of the issues raised in an application for leave to bring common law proceedings is reflected by the multiplicity of sub-sections under s.134AB and by the extensive case law which has been generated both with respect to that provision and its predecessor, s.135A.

33 The legislation, as amended, reflects a recognition that an application for leave under s.134AB(16)(b) was of a very different character, and carried much greater significance, than the determination of a dispute concerning statutory benefits. In addition, the Court hearing the s.134AB application must concern itself with the question whether the applicant meets the threshold requirements as at the time of that proceeding. Given those factors, it would be surprising if Parliament had intended that the County Court could be bound by medical panel opinions sought and obtained at an earlier time, and by some other court, body or person, for the purpose of determination of statutory benefits claims. Inevitably, any medical panel opinion which had been thus obtained would have arisen in a substantially different context to a medical question framed by a judge for the purpose of a s.134AB proceeding.

34 The legislative acknowledgment that the character of proceedings under s.134AB is quite distinct from proceedings concerned with disputes about statutory entitlements is reflected, in my opinion, by the terms of s.45(1A) and the extended definition of "medical question". By those provisions the County Court is given unique power when hearing a s.134AB application. If the court chose to refer a medical question to a panel the unfettered scope of the court's power was made plain by the breadth of paragraph (i) in the definition of medical question.[16]

35 Although the breadth of medical question (i) would be such as to encompass any questions on the topics set out in the existing paragraphs of the definition in s.5 of "medical question", the fact that power to refer questions under the existing paragraphs was expressly granted as well as additional power under (h) and (i) does not indicate that Parliament treated an opinion obtained for the purpose of a statutory benefits dispute as being of equal relevance to the hearing of a s.134AB application.

36 Before 2000 all of the existing medical questions from (a) to (g) could have been referred by the Court to a medical panel with respect as to a dispute about statutory benefits, pursuant to the power under s.45(1), and it was statutory benefits claims with which s.68(4) was concerned. Thus, what is made clear by s.45(1A) is that the Court now has power to refer all such medical questions (i.e. those under (a) to (g)) for the purpose of its hearing of a s.134AB application, but, in addition, exclusive power is given to pose medical questions under (h) and (i). Thus, the Court hearing proceedings under s.134AB is given power which is no less, and is indeed greater, than that given to courts, bodies or persons concerned with statutory benefits disputes.

37 The opening words of s.68(4) are: "For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical panel ... ". In my view, the word "any" can not be interpreted literally, because to do so would give the provision unlimited operation, which could not have been intended. The provision is intended to give binding effect to the opinions of medical panels "on a medical question referred" and, as discussed above, the Act gives power to refer a medical question in quite specific contexts, one of which is with respect to proceedings under s.134AB(16)(b). Thus, it is natural to link the question or matter upon which the opinion is binding to the proceeding from which the question was referred. That then focuses attention on the nature of the proceedings in which the opinion was obtained. Section 68(4) goes on to state that the opinion must be "adopted and applied by any court, body or person", which means that the opinion is binding on all persons who have a role to play in proceedings of that nature. So construed, an opinion on a medical question referred in a proceeding concerning statutory benefits would not be binding on a court concerned with an application under s.134AB(16)(b).

38 The legislative scheme is, however, consistent with the conclusion that if a Court hearing a s.134AB application refers any of the questions from (a) to (i) to a medical panel, then it will be bound by the (final and conclusive) answer which is given (subject, of course, to consideration of such matters as the express terms of the question and answer and of the relevance and applicability of the opinion to the issues being addressed).

39 The amended provisions lend no support for the conclusion that medical panel opinions obtained under the quite distinct procedure under s.45(1), and for the quite distinct purpose of a statutory benefits dispute, would equally have final and conclusive effect in a s.134AB proceeding. To read that conclusion into the broad words of s.68(4) would be to ignore the distinction between s.134AB proceedings and those concerned with statutory benefits disputes which the legislation implicitly, if not expressly, acknowledges.

40 In Fitzgerald v. Masters[17] Dixon, C.J. and Fullagar, J. held that when interpreting a provision in legislation "words may generally be supplied where it is clearly necessary in order to avoid absurdity or inconsistency". It would be manifestly absurd, in my view, and inconsistent with the broad power given to the County Court, in seeking (or choosing not to seek) the opinions of medical panels when determining s.134AB applications, for the decision-making power of the County Court to be constrained by the terms of an opinion stated by a medical panel, perhaps years earlier, in response, for example, to a medical question framed, as was the case here, by a conciliator, for the purpose of resolving a claim to medical expenses.

41 In my view, to give effect to the legislative history and the scheme into which s.68(4) fitted after the 2000 amendments, it must be understood that the sub-section thereafter applied as follows: (a) it renders final and conclusive for the purpose of any hearing or determination of a statutory benefits claim any opinion of a medical panel given with respect to a statutory benefits claim, irrespective of who referred that question and when; and (b) it renders final and conclusive with respect to an application under s.134AB any opinion of a medical panel obtained by the County Court pursuant to s.45(1A) for the purpose of the s.134AB application,[18] irrespective of when or by which judge the referral was made for that purpose.

42 Accordingly, I agree with Mr Parrish, that s.68(4) has binding effect with respect to medical opinions obtained under s.45(1A) for the purpose of a s.134AB application, but that the court hearing such application is not bound to treat as final and conclusive (although it might well have regard to them) the opinions of medical panels obtained for the purpose of claims to statutory benefits.

43 I would allow the appeal and remit the matter to the County Court for re-hearing.

44 I have had the advantage of reading in draft the judgment of Eames, J.A. For the reasons his Honour gives, I agree that when the County Court hears an application under s.134AB, it is not bound by the opinion of a medical panel which was not sought by the judge for the purpose of s.134AB proceedings, but was obtained in earlier proceedings concerned with entitlement to a claim for statutory benefits.

45 I also agree that s.68(4) of the Accident Compensation Act 1985 make final and conclusive the opinion of a medical panel obtained by the County Court under s.45(1A) for the purposes of an application under s.134AB. I would therefore allow the appeal and remit the matter to the County Court for re-hearing.

46 I agree with Eames, J.A.

- - -

[1] By Act No.107 of 1997.

[2] By Act No. 26 of 2000

[3] [1999] VSCA 207; [1999] 3 V.R. 401, at 415 [39].

[4] We did not hear argument as to whether a medical panel opinion would constitute "evidence given before the Court" within the terms of s.44(3), and thus would not be capable of being used in any other proceedings.

[5] See s.35(b) of The Interpretation of Legislation Act 1984.

[6] The reference to the "narrative serious injury test" was to the threshold legal requirement that the worker satisfy the Court that he or she had suffered "serious injury" as defined by s.134AB(37).

[7] Hansard 13 April 2000, p 1001ff.

[8] Project Blue Sky Inc v. Australian Broadcasting Authority [1998] HCA 28; (1998) 194 C.L.R. 355, at 381 [69].

[9] CIC Insurance Ltd v. Bankstown Football Club Ltd (1997) 187 C.L.R. 384, at 408.

[10] At 408.

[11] (1987) 11 N.S.W.L.R. 404, at 423.

[12] [1990] HCA 24; (1990) 171 C.L.R. 1 at 20.

[13] R. v. Lavender [2005] HCA 37; (2005) 222 C.L.R. 67 at [41]- [42].

[14] [2006] HCA 37; (2006) 228 A.L.R. 229, at 247 [65].

[15] [1981] HCA 26; (1981) 147 C.L.R. 297, at 304.

[16] Counsel agreed, that as to par (h) of the definition of "medical question" no such question had ever been so prescribed, and the definition in that paragraph is effectively redundant.

[17] [1956] HCA 53; (1956) 95 C.L.R. 420, at 426-7; cited in Adams v. Lambert [2006] HCA 10; (2006) 225 A.L.R. 396, at [21].

[18] It is not necessary to decide whether a medical panel opinion obtained by one judge in the course of hearing a s.134AB application would be binding on another judge who, for whatever reason, later came to conduct a hearing on such an application. I have referred to an opinion obtained for "a" and "the" s.134AB application interchangeably, and without deciding that question.