Pyle v Nisselle [2000] VSC 398

1. The major definable cause of the stroke is the presence of high blood pressure.

2. The high blood pressure does not appear to be work related but this on the other hand should not substantially influence the claim for compensation.

3. The onset of stroke followed straining against the tow bar. This appears to involve considerable strain and is likely that the act of straining acted first to increase the blood pressure and then decrease the blood pressure during the period after the strain. During the increase in blood pressure there was an increase in blood flow to the brain and during the decrease in blood pressure a decrease in blood flow to the brain. It is likely that during the decrease in blood flow to the brain that followed the straining acted as a precipitating factor for the formation of the thrombosis within a cerebral artery and thus the stroke.

4. Once the stroke had commenced your client drove the vehicle for perhaps half an hour causing further fluctuations in blood pressure. These fluctuations are likely to have worsened the development of the stroke.

5. The anxiety and depression have occurred as a result of the medical and social disruption associated with the stroke.

The other specialist relied upon by the applicant was Robert Southby, a neurosurgeon. He referred amongst other things, to, the history of medication for high blood pressure and how for some time the applicant had not been needing the tablets. He went on to say:

"It would seem that his blood pressure became elevated again, but the high blood pressure did not cause him any symptoms, as is frequently the case. The extreme exertion which he employed to shift the trailer would have caused a sudden elevation of his blood pressure and this would have caused him to have the stroke. Although it is possible that he may have had the stroke at exactly the same time, even if he had not been engaged in any exertion, it is also possible that the stroke may not have occurred at all if he had simply been at rest. I think that it is reasonable, therefore, to consider that his work contributed significantly to the occurrence of the stroke."

86. The fourth and fifth respondents provided, firstly, a report from Dr Valentine, a specialist physician. His conclusion was expressed as follows:

"This man has cerebro-vascular disease which on the 4th March 1996 produced thrombotic occlusion in the right middle cerebral artery territory with resultant paralysis of the left arm and leg and slight impairment of speech. The latter has now recovered. There is a pre-existing hypertension now under reasonable control with treatment as well as gout. In addition the medication he is taking suggests that his blood cholesterol level is elevated. Not surprisingly he has become somewhat depressed . . . Mr Pyle's stroke was not significantly or indeed in any way contributed to by employment with the Department of Conservation. The stroke was constitutionally induced and basically related to high blood pressure and elevated cholesterol levels. The timing of his stroke was coincidental. The claim does not have any medical merit. Finally employment prior to 1st September 1985 cannot be implicated."

The applicant's counsel draws attention to the fact that the history recorded by Dr Valentine, did not refer to the strenuous work done shortly prior to the onset of symptoms in attempting to attach the trailer to the car. All he refers to is the applicant Pyle becoming unwell while driving from Foster to Tidal River.

91. The fourth and fifth respondents also relied upon a report of Dr Graham Symington, a neurologist. He did not see the applicant but rather commented on reports including those of Ogilvy, Valentine, Southby, Flame, Rosenbaum, Newell and Stone. He expressed his opinion so far as is relevant as follows:

"2. In my opinion work was not a significant contributing factor to the injury, namely cerebral infarction and in this regard I support the conclusion reached by Dr P A Valentine. Previous hypertension and hypercholesterolaemia would have been significant factors in the development of degenerative arterial disease which would be the underlining cause of the stroke."

Mr Southby gave the opinion that the condition was related to his employment but I do not agree with the reasons given. Mr Southby concluded that the stroke was a result of a sudden elevation of blood pressure brought about by the exertion employed in shifting the trailer. However, it must be emphasised the worker did not have a brain haemorrhage and that cerebral thrombosis is not a consequence of an acute elevation of blood pressure. On the other hand Dr Rosenbaum argued that there would have been decreased blood flow to the brain following a decrease in blood pressure. This suggestion would imply a hypo tensive episode whereas the worker did not demonstrate any symptoms of systemic hypotension. Dr Newell also hypothesised a sudden rise in systolic pressure causing damage to a susceptible intracranial artery resulting in "haemorrhage or thrombosis". Again the normal cranial CT scan absolutely excludes haemorrhage and cerebral thrombosis is not caused by acute elevation of the systemic blood pressure."

96. It is common ground between the parties that what emerged was a classic conflict of view between experts who subscribe to different schools of thought. On the one hand, the applicant's experts are of the view that a sudden increase in blood pressure can lead to the creation of a thrombosis. The respondent's experts, however, are of the view that that is not possible. The Medical Panel, therefore, had before it competing expert opinions from experts belonging to two different schools of thought. They had to consider them along with their own examination and their own understanding of the relevant physical processes and attempt to answer the questions, questions which also involved a consideration of the concept of "significant contributing factor".

100. Counsel for the applicant Pyles has submitted that the reasons supplied were inadequate. They submitted that the Panel stated its opinion, which was its conclusion, and then repeated it but did not explain how it reached its conclusion. In particular, it did not state any reason for rejecting the predominant view before it being that of the applicant's experts. They argued that it was necessary for the Panel to address these issues if their reasons were to be able to be ascertained and if justice was to be seen to be done (Sun Alliance Insurance Ltd v Massoud [1969] VR 8).

103. For the fourth and fifth respondents, counsel submitted that the reasons were adequate. They submitted that it is obvious that the fourth and fifth respondents did no subscribe to the theories accepted by the applicant's experts and it was not necessary for them to elaborate on why they did not subscribe to those views.

106. Counsel for the fourth and fifth respondents also submitted that, in the event that it was demonstrated that the reasons given were inadequate, the proceedings having been brought under the Administrative Law Act, s. 8 of that Act provided a code to deal with obligations as to reasons and s. 8(4) confined any relief to an order to compel the provisions of further reasons.

110. The test for the adequacy of reasons was discussed in the context of Medical Panels in the case of Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635. Winneke P said (at 651)

"They are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the Court to see that they have addressed their mind to relevant matters and have not acted unreasonably: see Iveagh (Earl of) v Minister of Housing and Local Government [1964] 1 QB 395 at 410." (See also Ormiston JA at 653 and Callaway JA at 661.)

114. In my view the reasons provided fail to satisfy this test. The Panel was required to explain why it reached its opinion. If it had rejected the opinions of the experts provided to it on behalf of the applicant, it should have explained why this was so. The rejection of those opinions is the most likely explanation for the decision reached. If, on the other hand, they did not reject these opinions, then the reasons should indicate why they were satisfied that the employment was not and could not possibly be a significant contributing factor in causing the applicant's disabilities. In my view there is a significant gap in the Panel's reasons.

117. If the Panel had come down in favour of the applicant and in its reasons offered no more information than was contained in the present reasons, it seems to me that the fourth and fifth respondents also would have had legitimate grounds to complain about the lack of reasons. In particular, they would be entitled to know why the Panel rejected the expert opinions of their experts.

121. It is necessary to consider two options. One is directing the Panel to supply further reasons and the other is to quash the decision.

124. On behalf of the fourth and fifth respondents it was submitted that the situation is controlled by the provisions of the Administrative Law Act 1978. Counsel submitted that the applicant when it was relying on that Act sought reasons from the Panel and it is that Act which imposed the obligation on the Panel to give reasons. He further submitted that s. 8(4) of the Administrative Law Act 1978 constitutes a code. It provides as follows:

"(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the Tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in view of any order to enforce compliance by the Tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record."

128. Counsel for the fourth and fifth respondents submitted that, a finding having been made that the reasons were not adequate, the next and only step that can be taken is to order the Panel to furnish a further statement of its reasons within the time specified in the order and that it was not until there was non-compliance with that that any order quashing the decision could be made.

131. I note also that counsel for the fourth and fifth respondents submitted that the s. 3 review procedure was not available in the circumstances and that a separate proceeding should have been commenced by originating motion. He indicated, however, that his clients did not wish to rely on that sort of argument and the matter could no doubt be cured with appropriate orders.

134. These issues were considered by Gobbo, J. in State Electricity Commission v Commissioner for Equal Opportunity & Ors [1992] VicRp 6; [1992] 1 VR 79. Gobbo, J. referred to the argument as to a code in the following terms:

"It was argued for the complainants that s. 8 constitutes a code that precludes relief for failure to provide reasons other than by recourse to a separate application under that section and not as part of a review under s. 3. . . ." (at 87)

"I do not accept that s. 8 is in effect a separate and water tight provision. It is, in my view, primarily directed to providing a mechanism to cover the provision of reasons. Sub-Section (4) plainly provides that it is not to operate alone. Where the procedure in the Act for requesting reasons has been followed and no statement of reasons is provided there is no reason why such failure should be irrelevant for purposes of a review under the same Act. It is true that no further direction was given by the Court in the proceedings commenced by the SEC against the Commissioner for that purpose but that was because the Commissioner agreed that no reasons had been given. The Commissioner went further and said in effect that no reasons would or could be given. It would be productive of inconvenience and procedural security if it was necessary to have separate proceedings in circumstances where it was clear that no reasons had been or would be supplied. I am accordingly of the view that the applicant is entitled in the particular circumstances of this case to rely upon the refusal to provide reasons as part of his application under s. 3 and that such refusal amounts to an error of law on the face of the record."

140. It is true, as was submitted by counsel for the fourth and fifth respondents, that the case before Gobbo J was an extreme case but his Honour based his decision on an analysis of the legislation. I agree with Gobbo J that s. 8 does not constitute a code and is intended to provide a mechanism to deal with the issue of the provision of reasons (see also Kuek v Victoria Legal Aid & Ors [1999] VSCA 44; [1999] 2 VR 331, 336). Reference was made in Masters v McCubbery (above at 640) to the fact that the Administrative Law Act 1978 was :

"introduced into the statute law of this State with the principle purpose of eliminating the complexities which attend applications to the Court for the grant of prerogative writs and similar remedies directed to inferior Tribunals or other bodies charged with the performance of, inter alia, statutory duties . . . s. 8 was no doubt introduced because it was seen to be a necessary incident of the function of a Tribunal which owed an obligation to accord procedural fairness to provide reasons for its decision. . . ."

It is relevant to refer to the Report of the Chief Justice's Law Reform Committee, "Review of Administrative Tribunals", 1968. It noted, inter alia, that the then restriction upon the writ of certiorari, that any error of law appear on the face of the record, greatly restricted the effectiveness of that remedy. It recommended adoption of the solution recommended by the Franks Report on Administrative Tribunals and Inquiries (1957, Cmd.218) of casting

"a duty upon the Tribunal to furnish reasons upon request, and to enact that a statement of reasons would be taken to form part of the decision and, accordingly, to be incorporated in the record . . . ".

In making the reasons part of the decision and part of the record, the intention was to give persons affected by the decision the opportunity to challenge the decision for error on the face of the record such error being demonstrated by the reasons s. 8 was intended to serve the s. 3 review. In light of the aims of the legislation there would need to be a clear statement in s. 8 that remedies under s. 3 of the Act were not available where the attack was based on inadequacy of reasons.

147. If the reasons are inadequate then in my view that amounts to an error of law (see for example Sun Alliance (above, at 20)). The Act itself makes the reasons part of the record and so there exists an error of law on the face of the record. Gobbo, J. applied a similar analysis when dealing with the alternative submission in the case before him which was that the reasons were not adequate. His Honour commented:

"In the final analysis, the reasons must set out the process of reasoning that led to the decision. The reasons here failed to do this, largely because it is not possible to separate narrative, observations of the present Commissioner, expressions of opinion that may be those of the present Commissioner or of the previous Commissioner, and findings that may be those of the present or previous Commissioner. In my view, if these are the reasons, then they are plainly defective and show error of law on the face of the record. They do so because they fail to show a process of reasoning of the decision maker leading to the decision. . . ."

151. An alternative analysis is that the provision of inadequate reasons constituted a denial of natural justice.

154. Accepting that the decision can be quashed, a choice has to be made. On the question of the appropriate orders, counsel for the applicant, Pyles, relied upon the statements by Ormiston, J. (as he then was) in Body Corporate Strata Plan No. 4166 & Ors v Sterling Properties Ltd [1984] VicRp 73; [1984] VR 903. He referred in particular to a passage at 912 where his Honour stated:

"However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling deliver of further or better reasons would have an air of unreality about it. Such an order would merely give a Tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the Tribunal overlooked the issue altogether. In the present case the form of the determination points clearly enough to the Board providing some reasons for its decision, whatever may otherwise be the deficiencies of that reasoning. But to ask the Board to give further reasons now is not only impractical, in that I am told that the Chairman of the division has retired, but is also undesirable that it should appear that the Board might have the opportunity to reconstruct its reasoning to meet the defects pointed out in detail at the hearing of these appeals."

His Honour's remarks are relevant in this matter because, while it may well be that the reason for the Panel's decision was simply a rejection of the school of thought relied upon by the applicant's experts, it is possible that the Panel in fact misapplied the test of "significant contributing factor". We do not know because of the inadequacy of the reasons. I suggest that this is a real possibility because, accepting that the Panel rejected the body of opinion relied upon by the applicant's experts, it would nonetheless have had to concede that that body of opinion may well be correct. It appears, after all, to have considerable support and from reputable experts and the test in the second question required the consideration of possibilities not probabilities.

159. There are other issues that concern me and in my view also weigh against the proposal put forward by counsel for the fourth and fifth respondents that the issue be referred back to the Panel.

162. I am concerned that the Panel having been formally asked to provide reasons did not deal with what appears to me to have been obvious issues in stating its reasons. In addition, however, both members of the Panel have sworn affidavits. When I began reading those affidavits I assumed that they had been filed for the purpose of elaborating on the reasons. The affidavits, however, do not and, instead, state the following:

"the certificate of opinion and reasons for opinion which are respectively 'CF16' and 'CF18' of the Flake affidavit accurately record the Medical Panel opinion and reasons relating to this referral."

166. This cryptic sentence suggests one of at least three things;

(a) that the Panel was extremely reluctant to elaborate on its reasons and that reluctance is likely to continue,

(b) that there were no other reasons, or

(c) it cannot further explain the conclusion that it reached.

172. Contrary to the submissions of their counsel, it appears to me that there is a real question as to whether an adequate response would be received from the fourth and fifth respondents if an order were to be made directing further reasons to be given.

175. There are obvious practical advantages in referring the matter back to the same Medical Panel. Time, cost and labour would be saved. Against that, however, I note that the Panel did not include a specialist physician and, in particular, did not include a cardio-vascular specialist. Referring the matter to a new Panel will present the opportunity for the first respondent to consider whether the specialists chosen came from the most relevant disciplines and whether some other discipline or disciplines might be more relevant.

178. For these reasons I have come to the conclusion that the preferable course is to quash the decision and to direct that the matter be referred for further consideration to another Medical Panel.