Written reasons for the opinion of a Medical Panel: what is the standard to meet?

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

The High Court explained the standard of reasons required where a Medical Panel gives its opinion on a medical question referred to it.

The case involved a Medical Panel, convened under the Accident Compensation Act 1985 (Vic), and its opinion that a pain in a worker’s neck was not related to an earlier workplace injury to that worker’s back. That opinion caused the Magistrates’ Court to dismiss the worker’s statutory compensation application for the neck injury.

The worker had also brought a serious injury application in the County Court for common law damages in respect of the neck injury. In that proceeding, the employer contended that the County Court was also bound by the opinion of the Panel. The County Court proceeding was then adjourned while the worker sought an order in the nature of certiorari to quash the opinion of the Panel. It was those latter proceedings that eventually came before the High Court.

Inadequacy of reasons

Under s 68(2) of the Accident Compensation Act 1985 (Vic), the Medical Panel to whom a medical question is referred must give a certificate as to its opinion and a written statement of reasons for the opinion. One of the questions before the High Court was the standard that is required under that section of a written statement of reasons.

The Court began from the well-settled position that there is no free-standing common law duty to give reasons ([43]) and reasoned that the standard required under s 68(2) was therefore to be determined by an exercise in statutory construction. There being no express standard in s 68(2), the standard could then only be determined as a matter of implication.

In considering the implied standard, the Court considered, among other things, the objective of requiring the Panel to give a written statement of reasons. In particular, it considered the legislative history of s 68(2), noting that the requirement to give reasons was apparently intended to obviate the need for a worker to seek the reasons of the Panel separately, under s 8 of the Administrative Law Act 1978 (Vic). Section 8 of the Administrative Law Act expressly requires the reasons given by a tribunal to be adequate to enable a court to see whether the decision does or does not involve any error of law.

The High Court thus concluded that the standard required under s 68(2) of the Accident Compensation Act was the same as that in s 8 of the Administrative Law Act, and overruled the Court of Appeal’s holding that some higher standard, approaching a judicial standard in giving reasons for decision, was required by s 68(2) of the Accident Compensation Act.

In other words, a failure of the Panel to give reasons which explain the 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 is itself an error of law ([55]). Furthermore, it is an error of law on the face of the record, and therefore amenable to certiorari, because of the extended definition of “record” in Victoria under s 10 of the Administrative Law Act 1978 (Vic). That section has the effect of including the reasons for decision as part of the record (compare the position at common law: Craig v South Australia (1995) 184 CLR 163).

Concluding remarks

As it happens, the Panel’s opinion in this case was not amenable to certiorari. That was so because of other holdings of the High Court which effectively rendered the Panel’s opinion of no further legal effect. Nevertheless, the Court’s decision provides important clarification regarding the standard of reasons required by Medical Panels convened under the Accident Compensation Act.

Whether the decision will inform the requirements of other administrative decision-makers in their giving of reasons (where there is a duty to give reasons) is perhaps unlikely, given the peculiar legislative history of the provision considered in this case. However, the decision still provides useful guidance for the approach to be taken in determining the standard of reasons required in other contexts where no express standard exists.

Alexander Solomon-Bridge – CommBar Profile