Richter v Driscoll [2016] VSCA 142

Richter v Driscoll [2016] VSCA 142 - VSCA 2016 case summary — Zoe

[135]

The concept of 'suitable employment' will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to 'work for which the worker is currently suited'. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker's incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as 'suitable' if situated too far from the worker's place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing 'suitable employment' for a worker resident in Melbourne. The expression 'whether or not that work is available' emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is 'suitable employment', whether or not the job is currently available.
None the less, the definition of 'suitable employment' was called in aid by Mr Maxwell to support an argument that the concept of capacity to earn in employment involved employability and that a worker who had been injured at work and successfully claimed compensation was in practical terms unemployable. It appears from the evidence given below that there are now persons calling themselves expert in the area of 'capacity to earn', and in one or more of these four appeals the so-called expert opined that, given the injury and the consequent claim for compensation, no employer would be prepared to risk employing the worker again in any capacity, having regard to the possibility that further injury might be sustained and even that the employer itself might be prosecuted under safety regulations. The mere history of injury and claim would be enough (it was suggested) to deter any employer from offering further employment to the victim of antecedent workplace injury - and that suggestion was made, as we followed it, almost irrespective of the magnitude of the injury in question.
The possibility that, irrespective of the nature and extent of the injury first suffered, a worker becomes unemployable because of the subsequent claim for compensation, is troubling. On the one hand, it may be said to be a realistic approach to the possibility of further employment, which will lead to common law damages for those in our community who are the most vulnerable because of injury at work. On the other hand, the mere reference to 'capacity for any employment' does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in para (g) what is relevant, after considering rehabilitation or re-training or the possibility of rehabilitation or training, is -

[173]

The Panel considered the functional requirements of the jobs identified in conjunction with the suitable employment criteria above. After taking into account the possible job options, the plaintiff's physical condition and taking into account her age, previous experience, education, skills and place of residence, the Panel considered that her lack of clerical skills, including difficulties with literacy and numeracy, would be a barrier to her working as a Customer Service Clerk, Cashier or Sales Assistant and the Panel considered that these roles did not constitute suitable employment. The Panel formed the opinion that the plaintiff does have a current work capacity to work as a light process worker as suggested in the NES report. As the report notes, this occupation is classed as light to medium physically. The Panel noted that such a role did not require specialised skills and training was, in most cases, 'on the job'. The Panel considered the duties listed in the vocational assessment for the role of light process worker and concluded that the duties would be able to be undertaken by the plaintiff in line with her current physical and mental condition. The Panel concluded that the plaintiff would be able to undertake the role of light process worker on a reliable and consistent basis.

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

The Panel noted the report by Dr Robyn Horsley, dated 7 April 2014, in which she states that the plaintiff 'is likely to stay out of the workforce permanently. There are considerable barriers. She is now 56 years of age. She has been out of the workforce for 20 years. Her previous work experience was as a babysitter and a nursery assistant for just a couple of months. She has Year 7 education. She has significant literacy issues. She has no computer skills. She presents poorly ... I believe (she) is unlikely to return to the workforce in any capacity. I believe that her attractiveness to a new employer in an open and competitive marketplace would be negligible. On the basis of her physical capacity alone, within the restrictions as outlined above in theory she probably has capacity for part-time work, possibly up to 15 hours per week. However, realistically, I believe that she will continue to remain out of the workforce in the longer term.'

The Panel acknowledges that it may be difficult for the plaintiff to find suitable employment but also acknowledges that the test of work capacity relates to identifying work that the plaintiff would be able to perform on the basis of her physical restrictions, her age, her qualifications, her experience and her place of residence. The Panel is not required to determine whether the plaintiff will be successful in obtaining employment. For this reason, and based on collective experience and expertise, formed to different opinion [sic] to Dr Horsley regarding the plaintiff's current work capacity.

[202]

The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

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