State Trustees v Transport Accident Commission [2002] VSC 428

Supreme Court of Victoria|2002-10-09|Before: Bongiorno J.

Administrative Law - Judicial review - Error of law - Construction of statutory document - Requirement for consideration of important evidence - ss. 46A, 46B Transport Accident Act 1986; ss. 117(2), 117(5) and 148 Victorian Civil and Administrative Tribunal Act 1998.

On 6 January 1996 Colin Dickinson (who is referred to in this judgment, for convenience, as the plaintiff) then aged forty-one, suffered severe injuries when he was struck by a bus whilst crossing a road. The accident in which he was injured was a transport accident within the meaning of the Transport Accident Act 1986. He made a claim in respect of his injuries on the Transport Accident Commission pursuant to s. 35 of the Act. On 25 January 1999 the Commission made a determination that the plaintiff had suffered a 30% whole person impairment by reason of his injuries, thus entitling him to limited compensation under the Act.

The plaintiff sought a review of the Commission's determination by the Victorian Civil and Administrative Tribunal pursuant to s. 77 of the Act, complaining that his permanent impairment should have been assessed at not less than 50%. The Tribunal reviewed the Commission's assessment and on 5 September 2000 substituted a determination that as a result of the transport accident in which the plaintiff was injured he suffered a 45% whole person impairment for the purposes of the Act.

Once again the plaintiff was dissatisfied with this assessment of his bodily impairment so he sought leave from a Master of this Court to bring a proceeding in this Court to appeal the Tribunal's decision pursuant to s. 148 of the Victorian Civil and Administrative Tribunal Act 1998. On 23 October 2000 that application was dismissed on the ground that his foreshadowed appeal raised no question of law. He appealed the Master's decision to a Judge who, on 14 November 2000, upheld the Master's determination.

There the matter remained until, in late August 2001, the plaintiff's solicitors became aware of the High Court decision in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[1] where it was held that, in the absence of a statutory provision to the contrary, an appeal lies to the Court of Appeal from the refusal of a single Judge of this Court to grant leave to appeal a decision of the Victorian Civil and Administrative Tribunal under s. 148 of the Victorian Civil and Administrative Tribunal Act 1998. Accordingly, the plaintiff applied for an extension of time in which to appeal the single Judge's order to which I have referred and on 9 November 2001 the Court of Appeal granted him an extension of time and allowed an appeal from the single Judge's order dismissing the plaintiff's appeal from the Master who had originally refused him leave to appeal from the Tribunal's decision. Thus, he now brings this proceeding to a single Judge of this Court by way of appeal against the Tribunal's decision pursuant to leave granted to do so by the Court of Appeal. Because he is a person under a disability he is represented by a litigation guardian, State Trustees. It is this proceeding with which this judgment is concerned.

Although, as will be seen, this Court is here concerned with relatively narrow questions of law arising from the Tribunal's decision, in order to understand the context in which those questions arise it is necessary to set out a brief summary of the facts of this case. I do so by further summarising the very helpful exposition of the facts set out by the Tribunal in its reasons for decision. Although, as the argument demonstrated, there are differences between the parties as to the plaintiff's present condition or, perhaps more accurately, differences as to the inferences which might or ought to be drawn as to the plaintiff's degree of impairment from the facts surrounding his present situation, the following description of those facts is, I believe, uncontentious.

The plaintiff was born in 1954. By his late teens he was an alcohol and drug abuser. His subsequent history included a dishonourable discharge from the Navy, lengthy terms of imprisonment and psychiatric treatment necessitating hospitalisation. At some point he was diagnosed as a paranoid schizophrenic, which illness led him to attempt suicide on at least one occasion.

Notwithstanding this unfortunate chain of events, in August 1995 the plaintiff obtained work in a metal polishing factory and appeared to be living a relatively stable life with his de facto wife, Julie. In October of that year their daughter, Emma, was born but, shortly afterwards, the plaintiff's paranoid schizophrenia reasserted itself. He became unemployed and separated from his de facto wife. It was whilst she was seeking to take him to the Monash Medical Centre for urgent treatment of a florid psychotic episode that he was struck and seriously injured by the bus to which I have referred. The accident may, in fact, have been a deliberate act of self-harm.

The physical injuries suffered by the plaintiff included a closed head injury "with a right subdural haematoma ... a frontal infarct, diffuse brain swelling and bilateral temporal lobe haemorrhages". He was treated at Monash Medical Centre and then at Bethesda until his physical aggression required him to be transferred to the Dandenong Psychiatric Hospital and then the Monash Psychiatric Unit. After a further spell in Bethesda, Ivanhoe Manor Private Rehabilitation Hospital and the Psychiatric Unit of Monash Medical Centre again, on 21 March 1997 he began living at Crosbie House, a special accommodation home in Murrumbeena.

The plaintiff presently takes a number of different medications including antipsychotics which are administered to him by the staff of Crosbie House. He is still subject to auditory hallucinations. So far as his life at Crosbie House is concerned the Tribunal expressed the situation in the following terms:

"His life is now a fully regimented one. Whilst he is at liberty to leave Crosbie House which is not a 'secure' facility, all feeding and housework is done for him by the staff. The principal event in his day is travel from Crosbie House in Murrumbeena to a chemist in Oakleigh where he receives a daily dose of methadone to control his opiate addiction. Thereafter he visits friends whom he has made at a local florist shop. He watches television and socialises at Crosbie House. He is a weekly church goer."

The Commission originally assessed the plaintiff's permanent impairment as 30% "whole person impairment".

Section 46A of the Transport Accident Act 1986 regulates a number of matters pertaining to the assessment of impairment by the Commission of people injured as a result of transport accidents. Section 46A(2) requires the Commission to make a determination in accordance with the "AMA Guides" or some other method or methods prescribed for the purposes of the section. In fact Regulation 6(1) of the Transport Accident (Impairment) Regulations 1988 is in the following terms:

"The methods to be used in determining a percentage for the purpose of establishing the degree of impairment of a person as a result of a transport accident are those described in the 'Guides to the Evaluation of Permanent Impairment' Second Edition, published by the American Medical Association."

These guides attempt to standardise the medical assessment of the effects of injury on the human body by the application of a complex system of criteria to injuries suffered and their effects; such criteria referring to twelve separate body systems. It is the construction of the terms of certain criteria relating to two of those body systems and their application to the plaintiff's situation which give rise to the questions of law which are said to have been erroneously determined by the Tribunal in this case.

Following his grant of leave to appeal, an amended notice of appeal was filed and served on the plaintiff's behalf, raising a number of interrelated questions arising from the Tribunal's decision. However, on the hearing of the appeal these were reduced to two:-

* Whether the Tribunal erred in its construction of one of the criteria found in chapter 2 of the AMA Guides relating to disturbances of complex, integrated cerebral functions; and

* Whether the Tribunal properly determined the plaintiff's percentage impairment caused by a condition suffered by the plaintiff which might meet criteria laid down by chapter 2 or chapter 12 of the Guides, or both such chapters.

Chapter 2 of the AMA Guides is entitled "The Nervous System". It provides criteria for the evaluation of permanent impairment resulting from dysfunction of the brain, spinal chord and cranial and peripheral nerves. As far as the brain is concerned, it nominates seven different types of impairment resulting from brain disorders and sets out criteria for evaluating each of them. It directs the assessor to quantify the degree of impairment in respect of each applicable type of impairment and then to select the highest impairment rating obtained as being the "impairment of whole person" percentage to be applied to the injured person in respect of injury to the brain.

The third of these types of impairment is described as follows:-

"3. Disturbances of Complex, Integrated Cerebral Functions - Disturbances of these functions constitute the well-known organic brain syndrome. The resulting deficits may include defects in orientation; ability to abstract or understand concepts; memory, both immediate and remote; judgment; ability to initiate decisions and perform planned action; and acceptable social behavior. The restrictions placed on patients with established organic brain syndromes provide criteria by which the permanent impairment may be evaluated. These criteria are:

1. There is a degree of impairment of complex integrated cerebral functions, but there is ability to carry out most activities of daily living as well as before onset . . . . .

2. There is a degree of impairment of complex integrated cerebral functions such that daily activities need some supervision and/or direction . . . . . . . . . . . . . . . . . . . . . . .

3. There is a degree of impairment of complex integrated cerebral functions that limits daily activities to directed care under confinement at home or in other domicile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4. There is such a severe degree of impairment of complex integrated cerebral functions that the individual is unable to care for self in any situation or manner . . .

An assessor, faced with an applicant suffering from brain damage causing a disability which is described in paragraph 3 must assess that applicant against the categories numbered 1 to 4 in that paragraph and choose that category which best describes the applicant's situation. The assessor must then assess the percentage whole person impairment of the applicant within the range of such impairments attributed to each such category.

In the plaintiff's case the Tribunal assessed him as falling into category 2 of paragraph 3 and assessed his percentage whole person disability at 45 percent - the top of the range attributed to that category. In doing so it was necessary for it to construe not only category 2 into which it placed the plaintiff but also category 3 so as to be able to exclude him from that category, inclusion in which would have entitled him to be assessed as having a percentage impairment of the whole person of at least 50 per cent and perhaps as much as 90%.

That the proper construction of the AMA Guides raises a question of law was not in dispute between the parties to this appeal. Mr Maxwell QC, for the Commission, accepted as much whilst submitting that the application of the Guides, properly construed, to the facts as found by the Tribunal to reach a decision as to an applicant's degree of impairment was a question of fact. He contended that the Tribunal correctly construed the criteria for inclusion in category 3 and correctly excluded the plaintiff from that category when it applied that construction to his factual situation as it found it to be.

In the course of construing category 3 the Tribunal had to consider the meaning of the word "confinement". It accepted that that word, as it was used in category 3, should be given a meaning corresponding to the meaning attributed to the word "confined" by Anderson, J in Hurren v Hurren[2]; that is to say as conveying the meaning that the person confined was "restrained within physical limits, shut up, imprisoned".[3] This was said by Anderson, J to be its ordinary meaning.

Mr Gorton QC, for the plaintiff, did not dispute Mr Maxwell's submission that the proper construction of category 3 was a question of law but contended that the Tribunal was in error in construing the concept of confinement as used in category 3 as narrowly as Anderson, J construed it in Hurren.

In Hurren v Hurren, Anderson, J was concerned with the question of whether a petitioner husband in a divorce suit had made out a ground so as to entitle him to a decree. The ground relied upon required the petitioner to prove that the respondent had:

"... within the period of six years immediately preceding the date of the petition ... been confined for a period of, or for periods aggregating, not less than five years in an institution where people may be confined for unsoundness of mind in accordance with law ..." (emphasis added.)

The respondent wife had, in fact, been a certified psychiatric patient under the then relevant Victorian legislation for more than the required six-year period but had been permitted to leave the psychiatric institution to which she was committed on "trial leave" for a total of 984 days or almost half of the required period. The question for Anderson, J was whether she was "confined" within the meaning of the relevant ground for the required period even though she was permitted trial leave. In finding she was not, his Honour was required to construe the meaning of "confinement" in the context of a statutory provision which spoke of such confinement as being "in an institution" and "in accordance with law".

That the confinement referred to in s 28(l)(ii) of the Matrimonial Causes Act 1959 (Cth) connoted confinement by legal restraint is undoubted. The section qualifies the concept of confinement by the words "in an institution" and "in accordance with law". In construing "confined" by reference to what Anderson, J referred to as its ordinary meaning, his Honour was construing it within the statutory contextual qualifications found in the section. He took no account of the possibility of the concept of confinement including restraint imposed by circumstances, events or conditions which may have no legal basis. He was not concerned to do so having regard to the statute with which he was concerned. That this was so is obvious from the discussion in his judgment of similar grounds for divorce provided by legislation in other places and his distinguishing of cases concerned with those statutes.

Confinement need not necessarily involve an externally imposed restraint, whether by law or otherwise. It might be imposed by one's work or other similar commitment, by one's desires or inclinations or, even (more appropriately for present purposes) by illness. For example, to say that a barrister was confined to her chambers by an ever-mounting pile of paperwork briefs or that she was confined to Melbourne by her devotion to her husband and family or, even more commonly, that she was confined to bed for three days by a cold are all entirely appropriate uses of the past participle of the verb "to confine".

That the use of the concept of confinement in the examples which I have given does not require a literal or total and complete confinement is obvious. Confinement to chambers by work commitments does not exclude the possibility of periods away from chambers just as confinement to a geographical location by an emotional attachment does not preclude excursions beyond that geographical location. Confinement to bed by an illness does not preclude periods out of bed.

The Transport Accident Act 1986, which gives legislative authority to the AMA Guides, is beneficial legislation the purpose of which is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents. That such legislation should not be given a narrow interpretation is well accepted. As Kirby, P (with whom Meagher and Cripps, JJA agreed) said in J Odlin Shopfitting International Pty Ltd v Kaljanac[4] in relation to a Workers' Compensation statute which he was construing:-

"It happens that the construction which I favour is also that which avoids a diminution or reduction of a worker's rights under the statute. As it is beneficial legislation, anomalies and ambiguities should ordinarily be resolved in favour of achieving the social purpose of providing compensation to injured workers in full measure as provided by the Act."

In Dodd v Executive Air Services[5] Newton and Norris, JJ[6] each adopted the comment made by Fullagar, J in Wilson v Wilson's Tile Works Pty Ltd[7] (in dissent but not on this point) to the effect that where two constructions of a Workers' Compensation Act are possible, that which is favourable to a worker should be preferred.[8] The legislation with which I am presently concerned is legislation of the same kind as workers compensation legislation. It exists to provide appropriate "no-fault" compensation to citizens injured in transport accidents. It should be construed similarly to the statutes with which Kirby, P and Fullagar, J were concerned. In particular, in the present context, in construing a legislative document which defines and delimits a right to compensation or the extent of that right, it would be inappropriate to exclude an accepted meaning of a word where to do so would limit or exclude an otherwise appropriate entitlement to benefits.

Category 3 of paragraph 3 of chapter 2 of the AMA Guides uses the expression "confinement' in the phrase "... confinement at home or in other domicile". In Hurren, Anderson, J concentrated upon the legal restraint required by the statute with which he was concerned. Category 3 says nothing of legal restraint. It refers to confinement at home. Save, possibly for a bail condition which might rarely impose a curfew on a person accused of crime, in Victoria there is no legal restraint which could confine a person to his or her home. Such restraint as is permitted by State law to be applied to persons outside the criminal justice system is confined to that prescribed by Division 2 of Part 3 of the Mental Health Act 1986. None of the provisions of that division contemplates confinement at home. Such confinement as is permitted is restricted to persons who are, or appear to be mentally ill and then only permits their confinement in statutorily specified places. A person's home is not such a place.

Category 3 describes a person who, because his or her daily activities[9] are limited by his or her degree of impairment to those encompassed by the phrase "directed care", must generally remain at the place where such direction can be obtained; viz. "at home or other domicile". However, being included in the category does not necessarily require the person's uninterrupted presence at the place of confinement nor does it require that such confinement be able to be described as akin to imprisonment or restraint. The phrase "directed care" does not necessarily require that the person providing such care be continuously in close proximity to the recipient of it. That even a small child can be permitted to go to and remain, unaccompanied by a parent, at a neighbour's house does not preclude the care being provided for that child by its parent being "directed care". Similarly, a person impaired by brain damage may be the subject of "directed care under confinement at home or other domicile" even if, either regularly or irregularly, he is able to go beyond the confines of the home or other domicile in which he lives.

That category 3 contemplates a wide range of capacities in the persons to whom it applies is demonstrated by the fact that the percentage impairment of the whole person which can be attributed to someone falling within category 3 covers a range between 50 and 90 per cent "whole person impairment". The degree and intensity of the directed care required by the person being assessed as well as his or her capacity to function under such directed care (whether under confinement at home or other domicile or otherwise) would be matters to be taken into account by the assessor in selecting the point between 50 per cent and 90 per cent at which to assess the brain damaged subject's whole person impairment.

Whilst the Tribunal was undoubtedly correct in its holding that the evidence of a medical expert witness was inadmissible on the question of what the word "confinement" meant in category 3, such question being a question of law,[10] its application of Anderson, J's narrow interpretation of the concept of "confinement" in Hurren to category 3 constituted an error of law. Bearing in mind the warning sounded by JD Phillips, JA in Lake v TAC[11] concerning the taking of an overly legalistic approach to the interpretation of the AMA Guides, a broader interpretation of the concept of confinement should have been taken by the Tribunal in construing that category.

It follows from the above that I uphold the first of the plaintiff's contentions in this case as to the proper construction of category 3 of paragraph 3 of chapter 2 of the AMA Guides thus necessitating a reassessment by the Tribunal of his percentage whole person impairment under that chapter of the Guides.

In its reasons for decision the Tribunal recognised the potential for overlap between assessments of an accident victim made under chapter 2 of the AMA Guides which deals with the nervous system and assessments made under chapter 12 which deals with mental and behavioural disorders. The Guides themselves acknowledge this potential overlap. The introduction to chapter 2 contains the following paragraph:-

"Evaluation of CNS impairment is difficult because of the complex relationships between the brain and the mind. It is impossible to avoid consideration of associated mental, emotional and personality processes. When appropriate, chapter 12 should be used in conjunction with this chapter."

No guidance is offered as to how the advice contained in the last sentence of this quote should be acted upon. The Deputy President who constituted the Tribunal in this case interpreted this direction from the Guides as requiring (or at least permitting) an assessment to be made under chapter 2 in a case where a psychiatrist offers an opinion that a psychiatric condition is attributable to organic brain damage. Conversely he held that to the extent that an impairment assessment includes consideration of matters that are purely psychological and are not the direct consequence of injury to the brain or other parts of the nervous system, those matters should be excluded from the assessment under chapter 2 and considered, if at all, under chapter 12. This is what the Deputy President considered the passage in the introduction to chapter 2 of the Guides which I have quoted meant. This approach, which he had first enunciated in an earlier case[12] (when he sat in the Administrative Appeals Tribunal), was not found to be legally erroneous by Mandie, J in Barnett v TAC,[13] at least in the case which he was there considering.

Similarly, the Tribunal recognised that s 46B of the Transport Accident Act 1986 might have some application in this case. The operative part of s 46B is as follows:-

"(1) In determining a degree of impairment of a person, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."

It analysed this legislative enactment and concluded that "... it would be wrong to exclude the symptoms of organic brain injury from assessment". It held that the purpose of s 46B was to avoid compounding or double counting with respect to psychiatric injury. It instanced the case of a back injury which produces both pain and restriction of movement and also a psychological injury. It concluded, in effect, that provided an assessment does not involve any double counting, s 46B has no operation.

Having regard to the conclusion I have reached as to this part of the appeal it is not necessary for me to rule on the correctness of the Tribunal's views, either as to the conjunctional use of chapters 2 and 12 or as to the effect of s. 46B in the circumstances of this case, and, accordingly, I decline to do so. Each of these problems raises difficult issues of construction and reconciliation which do not need a definitive answer in this case at this stage.

Mr Gorton submitted that, although the Tribunal directed itself as I have set out above, it did not deal with the question of "emotional disturbances" under chapter 2 at all despite having indicated that it would. I turn to consider this submission by reference to the evidence on this aspect.

At paragraph 13 of its reasons for decision the Tribunal quotes from a report written by a neurologist, Dr Richard Stark, concerning the plaintiff in these terms:-

Brain injury resulting in emotional disturbances in the form of aggravation of an underlying psychiatric disorder occurring under minimal stress requiring shelter."

At paragraph 16 the Tribunal acknowledged that Dr Stark was proffering an opinion referrable to category 3 of the paragraph of chapter 2 of the AMA Guides which provided for the assessment of emotional disturbances resulting from brain injury. However, in paragraph 28, the Tribunal, presumably in accordance with its earlier determination as to the potential overlap between chapter 2 and chapter 12, excluded assessments for emotional disturbance when considering the correct impairment assessment for the plaintiff under chapter 2. That this is so is obvious not only from what the Tribunal said but also from the fact that the impairment assessment made by it under chapter 2 was 45 per cent. Unless it rejected Dr Stark's opinion outright, an acceptance of that opinion for the purpose of assessment under chapter 2 would have resulted in an impairment assessment of 50 per cent. The problem, says Mr Gorton, is that although the Tribunal impliedly puts Dr Stark's opinion aside for the purpose of assessment under chapter 2, it never took it up again when considering an impairment assessment under chapter 12. In fact, as far as I can see, Dr Stark's impairment assessment for emotional disturbances is never referred to again in the Tribunal's reasons despite discussion of the plaintiff's psychiatric impairment at paragraph 33 et seq, which portion of the reasons include a discussion of opinions from Drs Epstein and Klepfisz, both of whom, impliedly at least, offer opinions on the same subject. Indeed, the Tribunal found that Dr Klepfisz concluded that the plaintiff suffered a total psychiatric impairment of 25-30 per cent of which 18 per cent was the consequence of organic brain damage and Dr Epstein considered that the accident caused a 20% direct psychiatric impairment to the plaintiff.

Mr Maxwell, for the Commission, submitted that s 46B of the Transport Accident Act 1986 was clear and required the Tribunal to take no account of Dr Klepfisz's finding as it was a consequence of physical injury and thus precluded from being considered upon an impairment assessment.

The many references to Dr Klepfisz (and, for that matter, Dr Epstein) in those parts of the Tribunal's reasons for decision dealing with psychiatric impairment possibly support Mr Maxwell's submission. However that may be, the complete absence of any reference to the opinion of Dr Stark, first expressed by the Tribunal at paragraph 13 of its reasons for decision, leads one to the inexorable conclusion that that opinion was not given consideration by the Tribunal when it considered the plaintiff's psychiatric assessment even though it had earlier indicated that a proper reconciliation of chapters 2 and 12 of the AMA Guides required it to take that course. Of course, the Tribunal might have rejected Dr Stark's evidence or might, as it appears to have done with that of Dr Klepfisz, excluded it by reason of s 46B of the Transport Accident Act 1986. The importance of that evidence was such, however, that if it had made either of these factual decisions (both of which are exclusively within its province) then it ought to have explained how and why it did so. Its failure to explain how it dealt with the important opinion of Dr Stark, particularly having regard to how it perceived its function in reconciling chapters 2 and 12 of the Guides, warrants an inference being drawn that it has failed to exercise its powers according to law: an error of law correctable by this proceeding. It is not the Tribunal's failure to adequately explain its reasoning processes, but rather the inference which can be drawn from that failure that amounts to the error of law. As Brennan, J said in Repatriation Commission v O'Brien:[14]

"... a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: see Denver Chemical Manufacturing Co. v. Commissioner of Taxation (N.S.W.)[15]; Sullivan v. Department of Transport[16]."

Brennan J's comments were an echo of what Barwick CJ had earlier said in Kentucky Fried Chicken Pty Ltd v Gantidis[17]:-

" Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some circumstances it may be indicative. But, in any case, such a failure to advert to some material circumstances, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal."

If a failure to explain the reasoning process of the Tribunal in reaching its decision had merely amounted to a failure to give adequate written reasons for that decision contrary to the statutory duty imposed upon it by s. 117(2) and/or s. 117(5) of the Victorian Civil and Administrative Tribunal Act 1998, then such failure would be correctable by a mandatory order of this Court. Such failure does not, of itself, amount to an error of law. It is only if the inference to which I have referred is able to be and is drawn by this Court that an error of law is identified. For the reasons I have given I am satisfied that the Tribunal's failure to deal with Dr Stark's evidence leads to such an inference. There is thus an error of law identified.

In reaching this conclusion I am conscious of the warning given by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[18] citing Collector of Customs v Pozzolanic Enterprises Pty Ltd[19] to the effect that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The decision maker's reasons should be given a "beneficial construction". This Court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision maker such as the Tribunal in this case.[20] The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[21]

The error of law identified above requires the remission of this matter to the Tribunal to be dealt with on the question of the plaintiff's percentage impairment for the emotional, psychiatric or psychological injuries suffered by him as well as on that discussed at paragraphs 13 to 30 of this judgment.

Section 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 confers power on this Court hearing an appeal from the Tribunal to, inter alia, remit the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. One such direction specifically provided for in s 148(8) is a direction as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

In this case the Deputy President who made the decision appealed from is fully seized of the plaintiff's application. He has heard the evidence and is, in my opinion, in a better position than any other Tribunal member would be to reconsider the plaintiff's application in light of this judgment. I will direct that, unless he is unable to do so, he should constitute the Tribunal for the purpose of this matter being remitted to it.

Accordingly, subject to hearing counsel for either party on the form of such orders, the Court will make the following orders:-

(i) That the appeal of the plaintiff in respect of a determination by the Victorian Civil and Administrative Tribunal of 5 September 2000 in proceeding No 1999/041191 be upheld.

(ii) That the said determination be quashed.

(iii) That the plaintiff's application for a review of the determination of the Transport Accident Commission of the impairment suffered by him as a result of injuries sustained in a transport accident on 6 January 1996 be reheard and determined according to law.

(iv) That for the purposes of rehearing the plaintiff's said application the Victorian Civil and Administrative Tribunal be constituted by Mr M F Macnamara, Deputy President; save that if he is, for any reason considered by him to be adequate, unable to constitute such Tribunal, then such Tribunal to be constituted as directed by the Honourable Justice Kellam, President of the Victorian Civil and Administrative Tribunal.

(v) That the defendant pay the plaintiff's costs, including reserved costs, to be taxed.

(vi) That the defendant be granted an appropriate certificate under the Appeals Costs Act 1998.

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[8] See also Loizos v Carlton and United Breweries Ltd [1994] NTSC 24; (1994) 94 NTR 31 at 33 and Bird v The Commonwealth [1988] HCA 23; (1988) 78 ALR 469 at 474.

[9] The term "daily activities" is not defined in the AMA Guides' Glossary (p 233) although a number of specific activities are individually defined under a general heading "Activities of Daily Living". J.D. Phillips JA in Lake v TAC [1998] 1 VR 616 at 621 thought the expressions were synonymous.

[10] Barnett v Transport Accident Commission [1999] VSC 484 at para 30; State Trustees v TAC [2000] VSC 494 at para 7; Lake v TAC [1998] 1 VR 616 at 624.

[12] Jonasson v TAC, AAT 24 December 1997.

[16] (1978) 20 ALR 323 at pp 348, 349, 352.

Transport Accident (Impairment) Regulations 1988

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (10)