Lancaster v Foxtel Management Pty Ltd

1. [1]

   BASTEN AJ: The plaintiff, Mark Lancaster, seeks relief by way of judicial review of a decision of a medical appeal panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). The defendant, Foxtel Management Pty Ltd, was the plaintiff’s employer for a period of months from February to July 2017.

2. [2]

   After leaving the employment of the defendant, the plaintiff made a claim for psychological injury resulting from “bullying and harassment” in the workplace. There was no dispute that he suffered an injury: the dispute is as to the extent of the injury. On 21 March 2019, the plaintiff made a claim for lump sum compensation under the Workers Compensation Act 1987 (NSW). Pursuant to s 65A(3) of that Act, no compensation is payable in respect of permanent impairment resulting from a psychological injury unless the degree of impairment is at least 15%. However, on 12 June 2020, an approved medical specialist, Dr Michael Hong, assessed the plaintiff’s whole person impairment at 9%. A medical assessment certificate was issued recording that determination.

3. [3]

   The plaintiff sought a referral by the Registrar of the Workers Compensation Commission [1] of his proposed appeal to a medical appeal panel. The matter was duly referred by the registrar, who was satisfied that at least one of the grounds of appeal specified in s 327(3) of the Workplace Injury Act had been made out. Before the Appeal Panel, the plaintiff provided a supplementary statement (by way of further or additional evidence) and sought to be re-examined by one or more members of the Panel.

4. [4]

   Relevantly for present purposes, that Panel (“first Appeal Panel”) did two things. First, it declined to re-examine the plaintiff and, secondly, it confirmed Dr Hong’s certificate.

5. [5]

   The plaintiff commenced proceedings in this Court to set aside the decision of the first Appeal Panel on a number of grounds, one of which, belatedly added, was that the refusal to re-examine the plaintiff had not been accompanied by any explanation in the reasons provided by the Panel. The plaintiff contended that either the first Appeal Panel had failed to consider his request or, if it had considered it, had failed to give reasons for refusing it.

6. [6]

   In its reasons, the first Appeal Panel stated that it “determined that it was not necessary for the worker to undergo a further medical examination”. One might have inferred from that language that, conscious of its powers to conduct an examination, the Panel had considered and refused the plaintiff’s request. Nevertheless, the defendant accepted, according to Adamson J (the judge hearing the review application), that the Panel “did not indicate in its reasons that it had actually considered the claimant’s request that he be re-examined or the basis on which it concluded that no examination was warranted”. [2] On 24 June 2021, Adamson J accepted that the proposed consent orders were appropriate and set aside the determination of the first Appeal Panel. [3] It may be noted that in delivering judgment, Adamson J stated that “the cursory fashion with which the Appeal Panel dealt with the claimant’s application that he be examined amounted to a denial of procedural fairness”. [4]

7. [7]

   Failure to consider an integral part of the plaintiff’s application may well have constituted procedural unfairness; a failure to provide adequate reasons for refusing the application may constitute an error of law appearing on the face of the record, but might not, of itself, constitute procedural unfairness and hence jurisdictional error. [5] Nothing turns on that for the present case.

8. [8]

   The matter was then remitted to the Personal Injury Commission and a second Appeal Panel established. On 21 December 2021, it handed down its decision, namely that the medical assessment certificate issued on 22 June 2020 be confirmed, together with its reasons. [6]

9. [9]

   On 14 December 2021, the plaintiff filed a summons seeking judicial review of the decision of the second Appeal Panel. An amended summons was filed on 8 February 2022. The seven grounds set out in par 7 of the amended summons in substance raised two broad issues. The first was whether the Appeal Panel properly exercised its powers according to law; the second was whether it committed some form of legal error in its assessment of the criteria for assessing psychological impairment.

Grounds of review

1. [10]

   The grounds of review set out in par 7 of the amended summons were discursive. They were helpfully encapsulated by the defendant’s counsel in written submissions which may be adopted for convenience, namely whether the Appeal Panel –

2. [11]

   The plaintiff’s written submissions did not follow this schema. As will be noted below, some grounds were not separately addressed in submissions, although none was abandoned.

Powers of Appeal Panel

1. [12]

   The plaintiff’s challenge to the second Appeal Panel decision with respect to its understanding of its powers involved several limbs. As pithily identified by counsel for the first defendant, in her written submissions, the plaintiff asserted error by the Panel, “first, in the characterisation of its task after receiving new evidence, and secondly, in then considering the question of clinical examination”. [7] It is convenient to deal with those issues in turn, but they are, nevertheless, interrelated. Both turn on the proper construction of s 327 and s 328 of the Workplace Injury Act, which currently read:

2. [13]

   There is an awkward relationship between s 327(3)(b), providing for a ground based on the “availability of additional relevant information”, and s 328(3) permitting the deployment before an appeal panel of what may be succinctly described as “fresh evidence”, in the sense that term is used in relation to judicial proceedings. Reading the provisions as complementary, s 328(3) allows the deployment of “additional relevant information” in support of grounds (a) (deterioration) or, more generally, (b). If, as here, ground (a) is not engaged, the inquiry under ground (b) must be a simple question, “Does the additional information lead the panel to a different conclusion from that reached by the medical specialist?” In other words, the medical specialist was wrong, but the reason may not fall within grounds (c) or (d). In a sense this invokes an appeal function separate from a demonstration of error on the part of the medical specialist. This has some bearing on the plaintiff’s first ground of appeal, although not relied on in these terms.

3. [14]

   There are two further issues, not explored by the parties. First, s 328(3) is in the form of a prohibition on adducing new material, subject to an exception for fresh evidence. There was no consideration as to how this provision related to the power to require an appellant to be clinically re-examined by a medical specialist on the appeal panel, pursuant to s 324(1)(c). [9] The issue was potentially live, because a psychological assessment is likely to involve another form of the worker describing his post-accident social functioning, as he did in his written statement. This, as will be noted below, might at least suggest limitations on the value of a further clinical examination. Secondly, there was an unexplored temporal element. Putting to one side a case involving alleged deterioration, did ground (b) assume additional information as to the worker’s condition at the time of the first assessment? Arguably, that would be so: the worker would not be expected to present evidence of improvement, but if (b) were restricted to post-assessment deterioration, it would render ground (a) redundant. On that view ground (b) should, perhaps, be read as limited to conditions existing at the time of the first assessment, but not then diagnosed. Because this issue was not the subject of submissions, it will not be pursued further.

4. [15]

   The term “medical assessment” in s 327(1) is defined in s 4(1) to mean an “assessment of a medical dispute by a medical assessor under Pt 7 of Ch 7”. Section 319 defines a “medical dispute” to include a dispute as to “the degree of permanent impairment of the worker as a result of an injury”. There is no issue that the medical assessment undertaken by Dr Hong satisfied the requirements of s 327(2), as relating to a matter conclusively presumed to be correct under s 326(1)(a).

5. [16]

   With respect to s 327(3), the plaintiff relied upon three grounds, being pars (b), (c) and (d), but not (a). In other words, he did not assert any deterioration in his condition resulting in an increase in the degree of his permanent impairment. It was common ground that the registrar’s delegate was satisfied as to at least one of the grounds being made out and that the Appeal Panel was not restricted to any particular ground identified by the registrar. However, it was restricted to the grounds relied on by the plaintiff, in accordance with s 328(2).

6. [17]

   There is a degree of overlap between pars (a) and (b) of subs (3), described by Leeming JA in Sleiman v Gadalla Pty Ltd as the “remedial” grounds. [10] A deterioration of a worker’s condition must generally be demonstrated by relevant information that was not available, and could not reasonably have been obtained, before the medical assessment. However, par (b) suggests that the possibility of additional information is not necessarily a self-contained ground. Thus, it may be possible to identify “demonstrable error”, by relying upon factual material which was not available and not reasonably available to the worker prior to the medical assessment. There does not appear to be a simple dichotomy between the remedial grounds (a) and (b), and the “error-based” grounds (c) and (d). [11]

7. [18]

   In principle, information known to the worker prior to the medical assessment (because, for example, it concerns his or her subjective experiences) would not qualify as additional information of the kind described in par (b) and commonly referred to as “fresh evidence”, a phrase used in s 328(3). In the present case, the supplementary statement provided by the plaintiff arguably fell into that category. The only reason that it was said not to have been “available” to the plaintiff before the assessment, and not reasonably able to have been “obtained” by him before the assessment, was that it purported to provide a factual basis for supporting different inferences from those drawn by the medical specialist as to the plaintiff’s condition. It may be doubted that it qualified as fresh evidence for the purposes of s 328(3). As Handley AJA explained in Lukacevic v Coates Hire Operations Pty Ltd: [12]

8. [19]

   Although the defendant objected to the reception of that statement before the Appeal Panel, no issue was raised in this Court to the Appeal Panel’s reliance upon it. In admitting the evidence, the Appeal Panel referred in its reasons to a statement of Deputy President Fleming in a case decided in 2002, [14] when par (b) was differently worded, in a significant respect, namely that the evidence must have been unavailable to the appellant “or” could not reasonably have been obtained by the appellant. There is now a single cumulative condition, the two parts being expressed conjunctively. [15] It is preferable that bodies operating under the terms of a specific statute address themselves to the language of the statute, rather than a paraphrase in a judgment or decision which may no longer be strictly on point. At the very least, the change in language should be acknowledged.

9. [20]

   If the evidence which is admitted is not properly identified as “fresh evidence”, but addresses circumstances different from those in evidence before the medical specialist, the evidence may raise a credibility issue for the Appeal Panel to resolve. (If the evidence does not support a different conclusion, it is in effect immaterial.) In the present case, the Appeal Panel accepted the supplementary statements made by the plaintiff at face value, but found that no different inferences should be drawn beyond those drawn by the medical specialist.

10. [21]

    Understanding how the supplementary evidence operated is important in determining whether the Appeal Panel misunderstood its function. In effect the plaintiff’s case was that, where additional evidence was proffered and accepted, it was necessary, as a matter of law, for the Appeal Panel to undertake a further clinical examination of the worker. That conclusion was said to flow from the analysis of the Panel’s functions by the Court of Appeal in Siddik v WorkCover Authority of New South Wales. [16] The analysis in Siddik commenced with the following statement:

11. [22]

    Both the use of the term “appeal” and the presumption that a second de novo hearing is not intended, were apt in relation to the otherwise non-prescriptive terms of s 328. There was, as McColl JA noted, limited assistance available either from the language of s 328 or the case law as to the nature of the appeal under that provision. She referred, however, to tentative conclusions of mine in Campbelltown City Council v Vegan [17] to the effect that “the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant”. [18] Those observations were approved by Mason P (McColl and Bell JJA agreeing) in Pitsonis v Registrar of the Workers Compensation Commission, [19] Mason P observing that “the ‘appeal’ to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh”. [20] To the extent that these comments are directed primarily to the “error-based” grounds, attention must be separately paid to the “remedial” grounds, as explained in Sleiman.

12. [23]

    The description of the appeal in s 328(2) as being “by way of review of the original medical assessment” led McColl JA to an extended historical analysis of the use of the terms “appeal” (requiring identification of error on the part of the decision-maker) and “review” (which could allow for a fresh hearing). She also considered that, once a basis for intervention had been established, the Appeal Panel was not limited to the grounds relied by the appellant. However, at least that latter conclusion is no longer available, s 328(2) having since been amended to provide that “the review is limited to the grounds of appeal on which the appeal is made”. [21] The exercise in characterisation undertaken abstractly in Siddik must now take account of the available grounds in a particular case.

13. [24]

    In a passage in Siddik relied on by the plaintiff, after referring to the power to receive additional evidence, McColl JA stated:

14. [25]

    However, these categorisations are often unhelpful. On the one hand, the power to re-examine the worker is not restricted to an appeal on the grounds under pars (a) and (b); on the other hand, an appeal panel is restricted to the grounds identified by the appellant (though that was not true in 2008). As the joint reasons of the High Court in Kostas v HIA Insurance Services Pty Ltd [22] explained, in describing the nature of an appeal from the Consumer, Trader and Tenancy Tribunal (NSW):

15. [26]

    The plaintiff submitted that the Appeal Panel’s reasons did not “identify that the Appeal Panel was alive to the two aspects of the power under [s 328]”. These were identified as an ordinary appeal by way of rehearing for correction of error and a separate power to conduct a fresh hearing on the basis of fresh evidence. The plaintiff found confirmation for this analysis in the judgment of Schmidt J in Versace v Australia’s Best Tyres & Auto Pty Ltd. [23]

16. [27]

    However, this submission cannot be accepted for three broad reasons. First, although it is true that in Siddik McColl JA described s 328(2) as providing “a novel form of appeal”, [24] that view must have depended upon the fact that, at that time, s 327(3) allowed an appellant to provide “additional relevant information” that was not “available to” the appellant before the medical assessment appealed from, whether or not it could reasonably have been obtained at that time. If that is the reason for the description of the form of appeal as “novel”, it is no longer sound because the general principles applying to fresh evidence (namely that it must be evidence that “could not reasonably have been obtained”) now qualify the right to call additional evidence. Thus, while it is not an appeal in the strict judicial sense (on the evidence and according to the law in force at the time of the initial decision), it is not different from the form of rehearing conducted in the Supreme Court under s 75A of the Supreme Court Act 1970 (NSW). To identify the powers conferred on the Appeal Panel as involving two different functions is, if not inaccurate, at least likely to be misleading. In any event, an analysis of a statute conferring functions on a non-judicial body which relies heavily on principles applied in characterising judicial functions is likely to lead to unsound conclusions. Siddik preceded Kostas by two years.

17. [28]

    Secondly, the observations in Versace were undoubtedly obiter, as no additional evidence had been adduced in that case. The same appears to be true of Siddik, as Giles JA explained:

18. [29]

    The discussion in the reasons of McColl JA, although no doubt instructive, did not require determination of the issue now relied on by the plaintiff.

19. [30]

    Thirdly, and critically, none of the authorities referred to by the plaintiff considered whether the Appeal Panel had power to determine the scope of its function in a particular case. If it did, this Court would be slow to find that it misconceived a function which was described in the statute in broad but flexible terms, by imposing some implied constraint not expressed in the statute nor necessary for the Panel’s functions.

20. [31]

    The effect of the plaintiff’s submission was that, once the Tribunal had accepted “additional evidence” it was bound to undertake a “de novo” or fresh hearing of the whole of the case. This ground was separate from the challenge to the reasons for not conducting a clinical examination. Accepting for present purposes that the Panel considered whether it should conduct a clinical examination, the plaintiff’s case was that, having admitted additional evidence, the Panel’s power was legally constrained so that it could not as a matter of law decline to conduct the examination.

21. [32]

    That submission was doubly misconceived. First, it assumed that the additional evidence was relevant to some aspect of the plaintiff’s condition which could be further revealed by conducting a clinical examination. Secondly, it denies to the Appeal Panel the power to make its own assessment as to the usefulness of a clinical examination in the context of the additional evidence. There is nothing in the statute which would support that conclusion. On the contrary, the power to conduct the appeal is conferred upon a tribunal comprising two medical specialists and an arbitrator. [25] In the absence of an express requirement as to how they are to conduct their function, the apparent statutory purpose is to allow them to conduct an appeal according to their professional judgment. There may be a need to accord procedural fairness, but the circumstances in which that will arise will be limited given that the review itself is limited to the grounds of appeal raised by the appellant.

22. [33]

    To the extent that it is useful to consider the nature of the additional evidence relied on by the plaintiff, that will be discussed below. It demonstrates that the Panel’s decision, far from being manifestly unreasonable (which may have been the only available ground of challenge), was entirely rational.

23. [34]

    It remains to refer to three authorities upon which the plaintiff sought to rely. First, there is the decision of the Court of Appeal in Allianz Australia Insurance Ltd v Rutland, [26] and in particular, a passage to the following effect:

24. [35]

    Reliance on Rutland failed to have regard to the relevant statutory context. Rutland was concerned with a review under the Motor Accidents Compensation Act 1999 (NSW), s 63(3A), which required that “[t]he review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned”. That statutory function is in materially different terms from the function conferred under s 328 of the Workplace Injury Act. The reasoning in Rutland provides no assistance in the present case.

25. [36]

    Next, the plaintiff sought to rely upon the decision of Drosd v Workers Compensation Nominal Insurer. [27] The reasoning in Drosd noted that the Appeal Panel had identified an error in the assessment made by the medical specialist and continued:

26. [37]

    This case is not in point. First, in the present case, the Panel did not decide to set aside the certificate. Secondly, it is doubtful that there is a two-step process required under s 328. Thirdly, Drosd was criticised by the Court of Appeal in Queanbeyan Racing Club Limited v Burton. [28] In any event, Drosd takes the matter no further for present purposes.

27. [38]

    Finally, the plaintiff relied upon the judgment in Ferguson v State of New South Wales. [29] Ferguson involved what was said to be an undue sensitivity on the part of the Appeal Panel to enquiring into the nature of the “life partnership involving sexual intimacy” which was said to have broken down as a result of a compensable injury. The Appeal Panel determined that “[t]he evidence does not sustain a finding that the relationship is strained, rather that its nature may have altered”. [30] The Court determined that not recognising that there may have been a material alteration in the nature of the relationship led the Appeal Panel to ask itself “the wrong question”. [31] The plaintiff’s submissions continued: [32]

28. [39]

    Ferguson has no bearing on the present issue of power, but may be relevant to the second broad issue and will be considered in that context.

29. [40]

    It is not correct to say that the Appeal Panel misunderstood its function in circumstances where it had regard to the additional material provided by the appellant, which it took into account in assessing the correctness of the decision of the medical specialist. The Panel considered whether to conduct a further clinical examination and decided not to. In the absence of any legal obligation to conduct such an examination, ground 7(a) must be rejected.

30. [41]

    The second aspect of the first issue raised by the plaintiff was directed to the obligation to give reasons and, in particular, an alleged failure of the Panel to provide reasons for not conducting a further clinical examination.

31. [42]

    There is no statutory obligation upon the Appeal Panel to give reasons for its determination of an appeal, but such an implied obligation was accepted by the Court of Appeal in Vegan at [26]. So much may be accepted. The question for present purposes concerns the scope of the obligation in relation to reasons for a decision based on expert medical opinion.

32. [43]

    The standard for reasons required of an appeal panel dealing with a medical assessment was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak. [33] That case concerned the reasons given by a medical panel constituted under the Accident Compensation Act 1985 (Vic), s 68(2) of which required that a medical panel “to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion”. The High Court stated:

33. [44]

    The Court rejected the suggestion that the reasons were required to explain why the panel rejected some expert medical opinions or preferred others. The requirement to identify a path of reasoning by which it arrived at its opinion did not entail an obligation “to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.” [34] The Court further noted, dealing with the facts before it:

34. [45]

    Although Wingfoot was concerned with a statutory obligation to give reasons, it is appropriate to adopt a similar approach in relation to the implied obligation under the Workplace Injury Act, based on a similar purpose from which it is derived. That purpose is to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel.

35. [46]

    There is no doubt that the Appeal Panel had the power to invite the plaintiff to attend for a further clinical examination. However, for the reasons already discussed, there was no obligation to do so. Whether or not the power should be exercised turned on a matter of professional judgment. That judgment was properly to be exercised by reference to the materials available to the Appeal Panel in written form, and assessed by them, relying on their professional expertise and experience.

36. [47]

    The determination of the Appeal Panel commenced by setting out the nature of the application, including the grounds, and the procedural background, noting that the plaintiff had suffered an injury and that the question was the extent of his whole person impairment. The Panel noted that there had been a previous appeal panel determination which had been set aside on the basis that it failed to provide reasons for not re-examining the plaintiff. The Panel noted that the plaintiff sought to challenge the categorisation by the medical specialist of his impairment in three categories, to which reference will be made shortly. The Panel then turned to consider the application to adduce fresh evidence. As has been noted, it took the view that the material sought to be presented in order to “try to remedy errors made by the AMS” was indeed material which was not available before the assessment and as such was relevant. [35] It noted that, to the extent that the additional material included “matters going to the process whereby the AMS makes his or her assessment”, it was not to be relied upon. [36] (That last finding was the subject of a separate challenge addressed below.)

37. [48]

    The Panel then stated that it had conducted a “preliminary review” of the original medical assessment and had determined “that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination”. [37] The reasons continued:

38. [49]

    That statement is sufficient to indicate that the Appeal Panel addressed the question of whether to re-examine the plaintiff, determined that it did not need to do so, and gave a reason, namely that there was sufficient expert material, together with the plaintiff’s own statements, to allow it to determine the appeal.

39. [50]

    The basis on which it was submitted that those reasons were insufficient is obscure. In fact, the written submissions filed by the plaintiff did not address the issue. In the course of oral argument senior counsel for the plaintiff did not abandon the ground, but neither did he expand upon it.

40. [51]

    Despite the lack of substance underlying this ground, two further observations should be made. First, this case demonstrates the danger in seeking to apply some general standard as to when a claimant should be subjected to a further clinical examination. This was a case where the claim turned almost entirely upon findings concerning the plaintiff’s social functioning. Except to the extent that he sought to rely on observations by other persons, the claim turned almost entirely upon self-reporting. Thus, the additional evidence, far from providing the basis for a need for clinical re-examination, provided the very material which he would have wished to adduce in the course of such an examination.

41. [52]

    Secondly, the adequacy of the reasons for not carrying out the examination must be viewed in the particular context of the case. Thus, when viewed as a whole, the adequacy of the reasons is overwhelmingly established. The Appeal Panel, as will be discussed further shortly, explained precisely and in detail how it took into account the additional information and compared it with and assessed it against the criteria to be applied for the purposes of the medical assessment. In short, the Panel accepted the plaintiff’s assertions at face value. No doubt, if it had doubted his truthfulness or reliability, it might well have thought it appropriate to re-examine him, that is to explain his current state of mind and social functioning in circumstances where it would be able to test his statements. As that was not necessary, it is readily understandable that a further re-examination was deemed unnecessary.

42. [53]

    Accordingly, to the extent that they were not abandoned, grounds 7(b) and (c) should be rejected.

43. [54]

    Ground 7(d) asserted that the Appeal Panel had misunderstood and misapplied the decision of this Court in Petrovic v BC Serv No 14 Pty Ltd. [38] This issue was not developed in the written submissions. The Appeal Panel stated:

44. [55]

    It is by no means clear to what this paragraph referred. It may have been a standard qualification adopted by appeal panels. The particular issue in Petrovic appears to have been a dispute as to the competence of an interpreter used in the course of the initial clinical examination. It is also possible that Petrovic has been misunderstood. It contained no unqualified rejection of evidence which went to the “process” before the medical specialist. Rather, Hoeben J, construing words in s 327(1)(b), stated:

45. [56]

    It not being explained how any misreading of Petrovic affected the decision in the present case, ground 7(d) must be rejected.

Application of the psychiatric impairment ratings scale: grounds 7 (e), (f), (g)

1. [57]

   The second set of grounds challenged the findings of the Appeal Panel with respect to the criteria specified in the approved guidelines for assessing psychiatric impairment. [39] Dr Hong applied the authorised rating scales to assess the degree of the plaintiff’s impairment under each of the six prescribed categories. Before the Appeal Panel the appellant challenged his assessments under three, namely (i) social functioning, (ii) social and recreational activities and (iii) self-care and personal hygiene. He now alleges error of law on the part of the Appeal Panel in rejecting each challenge.

2. [58]

   As counsel for the defendant noted, and as the Appeal Panel noted, Dr Hong’s assessment differed from that of the plaintiff’s consultant psychiatrist, Dr Michael Robertson, on only one scale, namely self-care and personal hygiene. To conclude that the Appeal Panel erred in law in accepting the evidence of the plaintiff’s own expert in regard to two categories would require a clear case of disregard of some critical element in the case. Senior counsel for the plaintiff submitted that Dr Robertson’s report was dated, having been prepared in February 2019, but was not able to identify any change in the plaintiff’s circumstances since then revealed in the evidence.

3. [59]

   To consider these grounds it is convenient to set out the effect of the plaintiff’s supplementary statement, as did the Appeal Panel at this stage of its reasons. The supplementary statement covered 3 pages, parts of which involved commentary, such as “I felt that Dr Hong was not asking as many questions as I believed he should have about my condition.” Such comments did not contain information or evidence, but constituted submissions as to the process undertaken by Dr Hong. It may have been matters of that kind which the Appeal Panel, applying Petrovic, disregarded. It was entitled to do so.

4. [60]

   Secondly, the plaintiff recounted statements he had made to Dr Hong which he believed were not accurately or completely addressed by Dr Hong in his reasons for his medical assessment certificate. Some of the complaints appear quite trivial, whilst others appear to have substance, if accepted. Whether they were trivial or substantial was a matter for the Appeal Panel. The Appeal Panel reasons identified a number of matters which it treated as “relevant evidence”. [40]

5. [61]

   Thirdly, the plaintiff included additional information which had not been supplied to Dr Hong. For example, he stated:

6. [62]

   By way of introduction to the further grounds, it is also appropriate to identify the provisions of the guidelines against which the plaintiff’s condition was assessed, namely chapter 11 which is headed “Psychiatric and psychological disorders”.

7. [63]

   Paragraph 11.11 sets out six tables comprising the “psychiatric impairment rating scale (PIRS)”. Each scale requires a specified category of impairment to be assessed with a score, described as assigning a “class” from 1-5. [42] The numerical scores are translated to a percentage of whole person impairment. The plaintiff challenged the scores (classes) given by the Appeal Panel with respect to “social functioning” (table 11.4), “social and recreational activities” (table 11.2) and “self-care and personal hygiene” (table 11.1). Each table provides a range from “class 1” through to “class 5”, with descriptions (sometimes referred to as “exemplars”) for each class. Thus, with respect to social functioning, class 2 covers:

8. [64]

   These examples are apposite because the plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, “[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”. [43] It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself “the wrong question”, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.

9. [65]

   Although the three grounds challenging the exercise undertaken by the Appeal Panel in assessing the psychiatric impairments did not assert inadequacy of reasons, they were expressed as allegations that the Panel “did not apply focus to ascertaining whether on the facts” the plaintiff’s circumstances fell within class 2 or class 3. That submission ran into the difficulty arising from the principles stated in Wingfoot, namely that the reasons were required to address the finding in fact made, and not possible alternative findings. Senior counsel for the plaintiff submitted, fairly, that a failure to refer to possible alternative findings might reveal a failure on the part of the Appeal Panel to address the plaintiff’s case. However, that inference could not be drawn in the present circumstances. With respect to each specific table in the guidelines, the Appeal Panel set out the paragraphs identifying class 2 (as found by Dr Hong), followed by a statement that “[t]he appellant seeks a reclassification of a class 3 rating”, the relevant provision for class 3 then being set out. The issue was thus expressly identified.

10. [66]

    In these circumstances, it would be sufficient to state that no error of law has been established with respect to the exercise undertaken by the Appeal Panel. There was no suggestion that par (c) of s 327 was in play: the Appeal Panel applied (as had Dr Hong) the correct criteria. To the extent that additional information was relied upon, the Appeal Panel considered those aspects of the supplementary statement of the plaintiff in relation to the criteria to which they related. That left only the question whether the plaintiff had established any change in the appropriate class resulting from that information and whether he had established failure on the part of the Appeal Panel to apply the correct legal criterion of “demonstrable error”. In that respect, the Appeal Panel concluded, in the exercise of its professional expertise, that the additional information did not make any material change to the circumstances considered by Dr Hong. [44] It further stated that in respect of none of the categories, was error demonstrated. The specific issues raised by the plaintiff may, however, be shortly identified with respect to each category.

11. [67]

    The issue with respect to “social functioning” concerned evidence that the plaintiff had, since the employment with the defendant, lived by himself, had an increasingly tense relationship with his 18-year-old daughter, and had lost friendships. Depending on the degree of deterioration, including with existing relationships, the table in the guidelines provides that the impairment may be described as “class 2” or “class 3”. The submissions included the following proposition: [45]

12. [68]

    The Appeal Panel set out the relevant criteria, considered the evidence and concluded that there was no error in classifying his condition as falling within class 2. The proposition set out above does no more than state a degree of disagreement about the proper classification. It has been said that mere disagreement with the outcome does not give rise to a basis for intervention. That is true, but that is because such a “disagreement” relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record.

13. [69]

    The plaintiff suggested that the Appeal Panel had failed to undertake an assessment in the form required in Ferguson. Unsurprisingly, Ferguson involved different facts. Furthermore, the Court’s reasoning in Ferguson was perilously close to a merit assessment of a factual issue. It provides no assistance.

14. [70]

    The plaintiff also sought to obtain assistance from the reasoning of the Court of Appeal in Ballas v Department of Education. [46] Ballas, as the plaintiff accepted, involved a different exercise, namely a challenge to a “gateway” decision by a delegate of the registrar under s 327(4), refusing to refer a proposed appeal to a medical appeal panel. The contention for the applicant, Ms Ballas, was that the medical specialist had wrongly taken into account, in assessing her “social and recreational activities”, a solitary activity which might have been relevant to other areas of impairment but did not bear upon that identified as “social and recreational activities”. The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a “demonstrable error”. The Court held that the reasons of the delegate revealed that she had confused the concepts of “scales” and “classes” and had wrongly concluded that the allocation of a function to a particular scale, and then concluding that the appropriate categorisation was a matter of discretion for the medical specialist, revealed legal error which appeared on the face of the record, namely the delegate’s reasons. [47] However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:

15. [71]

    The function of the delegate under s 327(4) was to determine whether the appellant had identified a ground which was capable of constituting “demonstrable error” on the part of the medical specialist. That error did not need to be a legal error. Accordingly, the assessment of a particular activity under the wrong “scale” could constitute a factual error. Clearly it was an error which was reviewable by an appeal panel. As the joint reasons in Ballas sought to make clear, the exercise being undertaken by the medical specialist was evaluative, not discretionary. The use of the phrase “taking into account an irrelevant consideration” might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to “demonstrable error” on the part of the medical specialist.

16. [72]

    The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.

17. [73]

    Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas. In any event, no similar error is alleged to have occurred in the present case: the question here is whether the Appeal Panel erred in assigning a particular class (that is level of severity) in relation to conduct which concededly fell within the particular scales (or categories).

18. [74]

    The second category as to which complaint is made is that of “social and recreational activities”. The plaintiff’s written submissions took issue with the Appeal Panel’s statement that “[t]here is no evidence that the appellant requires a support person to leave the house though the Appeal Panel accepts that his friend Garth assists him at times. On other occasions, the appellant is able to go kayaking and shopping by himself”. (Emphasis in submission.)

19. [75]

    Again, the issue raised is simply a factual assessment with which the plaintiff disagrees. There was no attempt to identify any error of law in the reasons of the Appeal Panel. The suggestion that the Panel erred in law because it used the phrase “no evidence”, a legal expression connoting an error or proposition of law, should not be accepted. Non-lawyers often speak of there being ‘no evidence of X’ when meaning there is ‘no evidence sufficient to persuade me of X’. Indeed, lawyers also express themselves in such shorthand.

20. [76]

    The third category is “self-care and personal hygiene”. The issues related to the number of times per week the plaintiff showers, whether he eats regularly and manages his diet and whether he needed regular support with respect to his independent living. The thrust of the plaintiff’s submissions was identified in the following proposition: [48]

21. [77]

    If this submission sought to identify error in a failure to apply the guidelines and the “exemplars” given in the guidelines, it is patently false. The Appeal Panel identified the relevant parts of the guidelines and discussed factors which were undoubtedly relevant to that exercise.

22. [78]

    If the submission required that the reasons demonstrate a particular level of scrutiny and degree of specificity with which the facts were scrutinised, that proposition must also be rejected. If it is to be derived from the authorities referred to, those authorities should not be followed: they predate Wingfoot and do not reflect its reasoning. This kind of exercise invites a merit review of factual findings with no attempt to identify an error of law on the face of the record. Grounds 7 (e), (f) and (g) must be rejected.

Other matters

1. [79]

   As noted above, the somewhat formulaic statement in the Appeal Panel reasons drawn from Petrovic was not said to be dispositive in this case. In a similar category were two other passages in the reasons which were not said to demonstrate material error, perhaps in part because they appear to be formulaic and bore little resemblance to the reasoning which followed. First, in Glenn William Parker v Select Civil Pty Ltd, [49] the Court stated, in a passage set out by the Appeal Panel at par 33 of its reasons:

2. [80]

   That approach resulted in the Court determining that the error identified by the Appeal Panel, being “a difference of opinion about which reasonable minds may differ”, was not a “demonstrable error” and therefore the Appeal Panel had committed an error of law appearing on the face of its reasons, which required its medical assessment to be set aside.

3. [81]

   That approach obtained support from the reasoning of the Court in Versace, referred to above, where Schmidt J stated that the Appeal Panel “could not simply substitute its own view for that of the medical specialist, absent a finding of error of the kind alleged on the appeal”. [50] As appears from the reasons of the Appeal Panel in Parker, set out by the judge at [38], the Panel expressly found error and determined that a different outcome was “the more appropriate one on the history taken by the AMS and the available evidence”.

4. [82]

   To be affirmatively satisfied that such a finding revealed that the appeal panel had failed to apply the correct legal test required a definition of “demonstrable error” which must at least be contentious. It is not a term of art and it is by no means clear that it has some precise legal definition. To confine an appeal panel as to the circumstances in which it can set aside a medical assessment certificate will result in an increase in the powers of this Court to set aside the determination of appeal panels, a result not consonant with principle as to the confined scope of judicial review.

5. [83]

   Secondly, there appears in the Appeal Panel reasons a statement in the following terms:

6. [84]

   That statement was no doubt correct: but if the inference were that an appeal panel can only uphold an appeal where an error warranting judicial review in the supervisory jurisdiction of the Court was demonstrated, that was plainly wrong. It may be that some confusion arose because the first of the two sentences quoted referred to “the clinical judgment of the AMS”, from which the appeal was taken. However, the explanation lay in the fact that the appeal panel upheld the decision of the AMS. The Court refused the application for judicial review of the appeal panel’s determination. The inclusion of this passage in the reasons of any appeal panel is apt to confuse and might, if it were acted upon, demonstrate legal error.

7. [85]

   Thirdly, the Appeal Panel, after setting out the extracts from Parker and Jenkins identified above continued:

8. [86]

   There are three difficulties with this approach. First, subpar (d) makes no sense. The relevant passage in Ferguson at [24] identifying the basis for intervention accepted by the Appeal Panel in that case read, “or if an unsupportable reasoning process could be made out”.

9. [87]

   Secondly, in Ferguson, the judge was satisfied that, according to those standards, the appeal panel’s finding of error itself involved an error of law on the face of its reasons. [51] For present purposes, that finding is beside the point: the question is why Ferguson is authority for the test (if correctly transcribed) set out by the Appeal Panel in the present case. It appears to be a gloss on the language of s 327(3), read with s 328(2).

10. [88]

    Thirdly, the statement constituted a summary of the reasons of an appeal panel in NSW Police Force v Wark. [52] The summary was not inaccurate, but read in context the reasoning was more nuanced and clearly not a statement of legal principles. Wark involved a police officer who had suffered psychological injury as the cumulative effect of a series of traumatic incidents. The employer appealed from the medical assessment but did not request a further clinical examination and none was undertaken. In that context the Appeal Panel stated:

11. [89]

    The panel in Wark then referred to a passage in the reasons of Mason P in Pitsonis in which the President equated “demonstrable error” with error manifest from an examination of the document referring the dispute for assessment and the medical assessment certificate. Care should be taken in applying that explanation in place of the statutory term.

12. [90]

    As noted above, these apparently formulaic statements were not applied: the reasoning of the Appeal Panel in the present case demonstrated careful attention to the material before it, resulting in satisfaction that “there is no demonstrable error” in the medical assessment. [53]

Conclusions

1. [91]

   For the reasons set out above, no error of law of the kind that would warrant the intervention of this Court has been identified. Accordingly, the application for judicial review must be dismissed.

2. [92]

   The Court makes the following orders:

   1. (1)

      Dismiss the amended summons filed on 8 February 2022 seeking judicial review of a decision of an appeal panel of the Personal Injury Commission of 21 September 2021.

   2. (2)

      Order that the plaintiff pay the defendant’s costs in this Court.