V

IN THE SUPREME COURT OF VICTORIAATCOMMON LAW DIVISION

KENNETH CLARKE

NATIONAL MUruAL LIFE INSURANCELTD & ORS

TUDGE:

WHERE HELD:

DATES OF HEARING:

DATE OF IUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATIONI

Not Restricted

No. 4554 of 2008

No.4569 of 2008

Plaintiff

Defendants

CAVANOUGHJ

Melbourne

6,71une2012

L0 October 2013

Clarke v National Mutual Life Insurance Ltd & Ors

[2013]VSC 536

ADMINISTRATIVE LAW - Judicial review - Medical panel - Referral of medical questions

- Answers given in certified opinion - Alleged inadequacy of panel's statement of reasons -Post-hearing developments affecting relevant principles - Principles remaining unsettled -Inappropriate to rnl" o., corresponding grounds of review - Alleged error of

_ law -

Divorcing the symptoms of mental disorder from the disease - Misunderstanding of

"exacerbãtion" oi a mental disorder - Error of law established - Answers vitiated - Opinion

quashed - Accident Compensation Act 1985 ss 5, 67, 68,82.

APPEARANCES:

For the Plaintiff

For the Defendant

Counsel

Mr A. G. Uren QC andMr A. D. B. Ingram

Dr K. P. Hanscombe SC

and Ms J. M. Forbes

Solicitors

Holding Redlich Lawyersand Consultants

Minter Ellison

1

HIS HONOUR:

Before the Court are two applications brought by Kerureth Clarke for judicial review

of an opinion relating to him given by a medical panel. The opinion is constituted by

the panel's answers to four medical questions referred by'a County Court Judge.

The medical questions were referred in relation to a pending claim in the County

Court brought by Mr Clarke against three entities sued (partly in the alternative) as

his former employers and also against the Victorian WorkCover Authority. The

County Court claim is for weekly payments and reasonable medical expenses under

t}re Accident Compensation Act 1-985 for alleged mental injury. A major issue in the

County Court proceeding is the relationship, if any, between the plaintiff's

employment with one or more of the entities sued and his alleged mental injuries. If

the medical panel's opinion were to stand the County Court would be obliged to

adopt it,1 and its effect would be to compel a finding that there is no relationship

between the employment and at least some of the mental injuries that are presently

alleged in the plaintiff's County Court pleadings. It may also extend to preclude a

claim in relation to other mental injuries that the plaintiff intends to allege by way of

amendment.2

The parties have agreed that only one of the applications for judicial review, namely

proceeding no 4569 of 2008, being an application under Order 56 of the Supreme

Court (Genernl Ciail Procedure) Rules 2005, should proceed to substantive hearing and

determination. It is agreed that the other proceeding (no 4554 of 2008), being an

application under tlne Administrøtiae Lørn Act 1-978, is to remain alive only in relation

to the question of costs, and that that question should be reserved for later hearing

and determination. |udgment in the Order 56 proceeding has been deferred until

now in the circumstances referred to under the next heading.

2

1

2

Accident Compensation Act 1.985, s 68(4).The plaintiff has indicated that he intends in due course to renew an abortive application he

previously made for leave to amend his statement of claim in the County Court in relation to thedescription of his mental injuries and in other respects: see Clørke a National Mutual Life Assurønce Ltd

[2010] vscA 43.

1 TUDGMENTSC:AP

J For the reasons set out below, I have concluded that the opinion of the medical panel

is invalid as a matter of law and should be quashed.

The nlaintiff's inadeouâte reasons develonmen ts since the hearins:deferral of iudement

Although certain other grounds were argued, the plaintiff's principal attack on the

medical panel's opinion was based - at least initially - on the alleged inadequacy of

its written statement of reasons for its opinion. The law relevant to that attack was

unsettled at the time of the hearing and, despite a series of intervening developments

to which I will shortly refer, it remains unsettled.

The medical panel's opinion pre-dated the 2010 amendments to the Accident

Compensøtion Act 1985 by which medical panels were required to give written

reasons for their opinions independently of any request under s S(1) of the

Administratiae Law Act L978 for a statement of reasons.3 That is to say, the relevant

statutory provisions in force at the time of the giving of the opinion were the same as

those which had been in force when the opinion the subject of the Court of Appeal's

decision in Sherlock u Lloyda was given. It was held in Sherlock a Ltoyd that there was

no common law obligation on a medical panel to provide an adequate or any

statement of reasons for its opinion, and that the only remedies for inadequacy in a

statement of reasons furnished pursuant to a request under s 8(1) of the

Administratiae Lara Act L978 were the remedies provided for by s S(a) of that Act.

The plaintiff does not seek a remedy under s S( ) of the Administrntiae Law Act 1g78.

He makes a formal submission that Sherlock u Lloyd was wrongly decided. Further,

he submits that Sherlocka Lloyd is distinguishable. He says that certain directions as

to the arrangement of the business of medical panels which had been given by the

Convenor of Medical Panels pursuant to s 65(7) of the Accident Compensøtion Act 1.g85

In this case both the opinion and the statement of reasons were dated 3ô Novemb er 2002. It appearsthat on or shortly after that date a copy of the opinion, but not a copy of the statement of t""ronr, *utsent to the plaintiff's solicitors; that,by letter dated 7 December 2007 sent on the plaintiff's behalf, thesolicitors requested written reasons pursuant to s 8(L) of the Administrøtiae l-nzn Ãct 1978; and that onL2 December 2007 the solicitors received a copy of the statement of reasons dated 30 November 2007:see CB 6 and 674.(2010) 27yR434.

2 IUDGMENT

4

5

6

3

4

SC:AP

7

in September 2006 imposed an enforceable legal obligation on medical panels to

produce statements of reasons for their opinions, and adequate statements at that.

Although those directions had been in existence at the time to which the decision in

Sherlock v Lloyd related, the aggrieved party in that case had not relied on the

Convenor's directions and they were not dealt with in the judgment.

At the time of the hearing before me, the plaintiff's claim to rely upon the

Convenor's directions fell to be considered in the light of what had been said by

Osborn J (as his Honour then was) in Georgiou €¡ Ors a Cøpitol Radiology pty Ltd A

Orss,notwithstanding that Georgiou arose in connection with a decision of a medical

panel given under the Wrongs Act L958 as distinct from tine Accident Compensøtion Act

L985 and notwithstanding that Georgiou rclated to a set of directions to medical

panels which, although similar to the directions on which the plaintiff relied, were

not identical thereto.

There were other respects, too, in which the obligations of medical panels in relation

to statements of reasons were controversial at the time of the hearing before me,

especially in relation to the standard required and in relation to what remedies

might be available for an inadequate statement after the abovementioned 2010

amendments to the Accident Compensøtion Act 1985. I had earlier discussed some of

those matters in Kocak a Wingfoot Australiø Pnrtners ptu Ltde .

Both Georgiou and Kocak were the subject of substantial submissions by the parties in

the present case. Each of those judgments was under appeal to the Court of Appeal

at the time of the hearing. Subsequently, the appeal in Kocøk was allowed. That

occurred on 23 October 2072. If the plaintiff could overcome Sherlock u Lloyd, the

decision of the Court of Appeal in Kocak might have assisted him in relation to the

required standard of reasons and in relation to available remedies. However, Kocak

was made the subject of an application to the High Court of Australia for special

leave to appeal. Special leave was ultimately granted on 10 }y'ray 2013. In the

[2011] VSC 158 (20 April2011).[201,1] VSC 285 (27lune2011).

8

9

5

6

JSC:AP JUDGMENT

meantime, on 20 December 2012, judgment was delivered in Gømble a Emerald HilI

Electricøl Pty Ltd €¡ OrsT in which President Maxwell and I noteds that there may be a

question whether certain observations made by the Court of Appeal inKocøk relating

to the standard of reasons required from medical panels were reconcilable with the

view previously expressed by the Court of AppeaI in Sherlock o Lloyde that, in

providing an opinion on a medical question referred to it, a medical panel was

performing an expert medical function, not a judicial function. Next, on 20 March

2013, the Court of Appeal handed down judgment in the appeal in Georgiou (sub nom

Colquhoun €¡ Ors a Capitol Rødiology Pty Ltd)to. The judgment in Georgiou/Colquhoun,

if it stands, would appear to present very serious difficulties for the success of the

plaintiff's attempt before me to distinguish Sherlock a Lloyd by reference to the

directions issued in 2006 by the Convenor of Medical Panels. Flowever, the Court of

Appeal's judgment in Georgiou/Colquhouø is itself the subject of an application to the

High Court for special leave to appeal. That application has not yet been heard.

10 In the substantive appeal in Kocøk, the respondent therein - who, like Mr Clarke, is

represented by Mr Uren QC and Mr Ingram - has invited the High Court to say, if

necessary, that certain aspects of the judgment of the Court of Appeal in Sherlock a

Lloyd were wrongly decided.ll He has also suggested that Georgiou/Colquhoun was

wrongly decided.l2

11 On L4 August 20L3 the oral argument in the substantive appeal to the High Court in

Kocøk was heard and judgment was reserved.

12 As each of these developments has occurred, I have considered whether to relist the

present matter for further hearing or invite further written submissions. I have done

neither, partly because on no occasion has there has been any request from the

parties to do so, partly because none of the developments has yet produced any

z l2012lvsc[322.s At [1e]-[20].t (2010) 27 VR 434,439 t?01-Í2L1.10 [2013] VSCA 58.11 See the respondent's written submissions in the High Court filed 5 July 2013, paras 27(d) and 43,72 Ibid, para 42.

SC:AP 4 IUDGMENT

apparent finality as to the relevant legal principles, partly because the actual

statement of reasons in issue in this case is arguably adequate on any view, and

partly because I have been conscious throughout that the proceeding might, on due

reflection, fall to be determined in the plaintiff's favour on other grounds in any

event.

13 Normally, in a judicial review case, a court would not wish to leave undetermined

the movingparty'sprincipal ground or grounds of review. However, it seems that it

may be quite some time yet before the legal principles relating to the present

plaintiff's inadequate reasons grounds are settled. In any event, as a matter of

natural justice, I could not determine the inadequate reasons grounds now without

giving the parties a proper opportunity to be heard on the developments to which I

have referred. That would probably require a further oral hearing, with concomitant

expense and further delay. There is already a long and unfortunate procedural

history to the underlying dispute between the plaintiff and his former employers.l3

In the circumstances I have examined the plaintiff's other pleaded grounds of review

in order to determine on a final basis whether any of them has been made out. As a

result, I am satisfied that the whole of the panel's opinion should be quashed on a

conventional ground, namely error of law.

74 Further, as was recognised by the parties during the latter stages of the hearing, the

plaintiff's inadequate reasons grounds are somewhat inconsistent with his error of

law grounds. That is because the inadequate reasons grounds assume that the

plaintiff's case is that he has a mental injury of a particular description (as pleaded in

his County Court statement of claim) whereas the error of law grounds assume that

he has a mental injury of a different description (not yet specifically pleaded).

Flence, if the etror of law grounds are good (as I am now satisfied they are) then the

inadequate reasons grounds tend to fallaway.

15 It follows that it is not necessary or appropriate to decide whether the panel's

13 See Clarke a Nationnl Mutual Life Assurance Ltd l20I0l VSCA 43; Clarke a Nationøl Mutual Life Assurønce

Ltd €¡ Ors (No 2) [2010] VSC 96. See further below.SC:AP 5 IUDGMENT

opinion also falls to be quashed on the ground of an inadequate statement of

reasons.

1,6

The issues relating to the error of law grounds

under the error of law ground.s the plaintiff contends that if the medical panel had

possessed a propef understanding of the relevant law and had applied it to the facts

actually found, then it could. not have concluded, as it did, that the plaintiff's

employment was not a significant contributing factor to a current mental iniury of

the plaintiff. Indeed, the plaintiff contends that the panel would have been bound to

conclude that his employment was a significant contributing factor to a current

mental injury constitute ð,by arecurrenc e, a11tavation, acceleration' exacerbation or

deterioration of a condition diagnosed in the plaintiff by the panel itself, namely a

,,Personality Disorder Not otherwise specified (DsM IV) with features of a paranoid

personality disord.er, antisocial personality disorder, and narcissistic personality

disorder".la Flowever, the plaintiff seeks only a quashing of the panel's opinion' He

does not suggest that he should have a declaration in this proceeding that he has

suffered compensable injury. Hence it is sufficient for the plaintiff's purposes to

show that the answefs given by the panel were affected by error of law' If he can do

that, he can succeed in having the panel',s opinion quashed without going so far as to

demonstrate that the panel was obliged. to give answers that would have established

completely an entitlement to compensation on his part'

The plaintiff's contentions are covered by the pleaded grounds of review' at least if

the grounds be read in combination.ls They are also addressed in the plaintiff's

written outline of submissions'16

The relevant defendantslT submit that the panel's conclusions were factual

conclusions based on its medical expertise and did not involve any

17

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15

Panel's statement of reasons, page 6'

See especially ground 1c¡ alìã, Lairectþ, ground (e) of the grounds set out in the order nisi of 8

February 200g and gio;a, þ) and (d) (and, to a lesser extent, grounds (f) and (g)) set out in the

,.r--on, and supporting affidavit of 4 February 2011'

See especially paras 2L-24lhereof '1ó

t7

6SC:APSee below.

JUDGMENT

misunderstanding or misapplication of the law. In the alternative they say that, even

if the panel did err in law as alleged, the error was of no consequence, because the

plaintiff has not (yet) pleaded in the County Court that he was suffering from a

work-related "recurrence, aggravation" etc of a personality disorder. They say that

the medical questions referred to the panel were restricted to the injuries currently

pleaded in the County Court claim. Flence, they submit, any errof of the kind

alleged did not vitiate the panel's answers to the actual questions referred to it'

Therefore, they say, its opinion should not be quashed on this ground'

The

I turn to the issues relating to the remaining grounds of review' Thty relate to the

form of the panel's answers to the referred questions. Those questions and the

panel's answers are set out in paragraph 36 below'

Ind.ependently of the error of law grounds, the plaintiff submits that the panel's

answers to questions L and 2 are insufficient in that they do not deal with each part

of each of those questions individually. As to question 3, the plaintiff submits that

the panel's answer is unresponsive in that the question means to ask whether or not

the plaintiff has a "curfent work capacity" generally, but the answer is confined 'to

whether the plaintiff has a "present inability to return to pre-injury employment

arising from an injury". since question 4 is consequential on question 3, the plaintiff

contends that the panel's answer to question 4 must also fall.

The relevant defendants deny that the panel was required to answer questions 1 and

2 more specifically than it did. They accept that the panel's answers to questions 3

and.4are not appropriately responsive to the questions asked, but they submit that

there would be no utility in quashing those answers because the panel's answers to

questions 1 and 2 would defeat the plaintiff's claim in any event.

The of and

The following matters relating to the parties and to the plaintiff's employment by the

relevant defendants (or some of them) between L986 and 1996 emerge from the

7 JUDGMENT

tor

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20

21,

22

SC:AP

23

24

documents that are before the Court in this proceeding, especially the pleadings, an

agreed statement of facts that was sent to the medical panells and the panel's opinion

and statement of reasons.le As I will indicate, the material leaves the identity and

correct names of the relevant employers of the plaintiff a little unclear.

On 2 April L986 the plaintiff commenced employment as an analyst/programmer in

Melbourne with an insurance organisation whose name included the expression

"National Mutual". The hearing before me has proceeded on the basis that that

organisation is also the first defendant in the County Court proceeding and the first

defendant in this proceeding. Flowever, the name of the first defendant has been

stated in several different ways in headings and other parts of documents filed in the

two proceedings. It may be that the title of one or other or both of the proceedings

will need to be corrected in that regard in due course. Otherwise, nothing turns on

this. So, for the sake of simplicity,I will hereafter refer to the organisation with

which the plaintiff commenced employment on 2 April 1986, and to the first

defendant in each of the two proceedings, as "National Mutual".

The plaintiff continued as an employee of National Mutual until 3 November 1994.

During the latter part of that period of employment he performed work in a

"Division" of National Mutual known as Nexis.20 However he was still an employee

of National Mutual. At some stage a company called Nexis Pty Ltd was formed.

Apparently, it was owned by National Mutual. On L4 October 1994 Nexis Pty Ltd

was sold to another company. The purchaser, according to the statement of agreed

facts, was "suncorp Metway Staff Pty Ltd".21 The statement of agreed facts

continues as follows:

The Plaintiff commenced employment with Nexis Pty Ltd or Suncorp

Metway Staff Pty Ltd starting on 3 November 1994. The Plaintiff resigned

The agreed statement of facts was prepared by the parties to the County Court proceeding and was

included in the referral to the medical panel: CB 18-21.

cB 436-448.County Court statement of agreed facts, para 2: CB 18.

Apparently by mistake, the statement of agreed facts refers to Suncorp Metway Staff Pty Ltd as "The

ffrii¿ peféniattt", whereas, according to all of the other County Court documents that are before me

and that contain schedules or lists of parties, the third defendant in the County Court proceeding is

the Victorian WorkCover Authority.S IUDGMENT

18

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20

21,

SC:AP

his employment with Nexis Pty Ltd or Suncorp Metway in April1996. At allrelevant times the plaintiff was employed and [sic] an analyst/computerprogrammer. For the purpose of this referral it is of no concem to theparties, or to the Medical Panel, whether his employment after 3 November1994was with Nexis or Suncorp.

The reference in the agreed statement of facts to Suncorp Metway Staff Pty Ltd may

or may not be another mistake. None of the other documents filed by the plaintiff in

the County Court proceeding refers to Suncorp Metway Staff Pty Ltd. Rather, each

refers to "suncorp Metway Pty Ltd". For example, the plaintiff's further amended

statement of claim in the County Court ("FASC") alleges that the plaintiff was

employed from 3 Novemb er 1994 until L April 1996 by "the Secon d and / or Fourth

Defendants". In the heading to the FASC, the Second Defendant is listed as Suncorp

Metway Pty Ltd and the fourth defendant is listed as Nexis Pty Ltd. On the other

hand, the schedule to the amended defence of the first and third defendants in the

County Court proceeding lists Suncorp Metway Staff Pty Ltd as the "Secondnamed

Defendant" to that proceeding.22 In this Supreme Court proceeding, the

corresponding party is everywhere described as "suncorp Metway Pty Ltd" and as

the "secondnamed Defendant".23 There may be a need in due course to correct the

name of the second defendant also, but, once again, for the sake of simplicity, I will

hereafter refer to the relevant Suncorp entity - meaning the entity which took over

Nexis Pty Ltd and which may itself have become the plaintiff's employer between 3

November 1994 and l. April 1996 - as "Suncorp Metway".

25 As indicated above, it is common ground that, if the plaintiff was not employed by

Suncorp Metway between 3 November 1994 and L April 1996, then he was employed

by Nexis Pty Ltd during that period. Nexis Pty Ltd is listed as the "Fourthnamed

Defendant" in the County Court proceeding. Apparently, Nexis Pty Ltd later

changed its name toKaz Business Services Australia Pty Ltd. In this Supreme Court

proceeding the Thirdnamed Defendant is listed as "KAZ BUSINESS SERVICES

AUSTRALIA PTY LTD (formerly known as NEXIS PTY LTD)". Notwithstanding the

22 CB 63.zs See, eg, the schedule of parties to the second amended originating motion dated 23 April 2012:

cB 609.

SC:AP 9 TUDGMENT

26

27

28

29

change of name, for the sake of clarity I will refer to this corporate entity as "Nexis".

The other parties to this Supreme Court proceeding are as follows. The

Fourthnamed Defendant is Dr Peter Lowthian (as Convenor of Medical Panels

pursuant to s 63 of the Accident Compensøtion Act 1985). The Fifthnamed Defendant

is the medical panel (constituted by Dr Stephen Adlard, Dr John Lloyd and Dr David

Kotzman). The Sixthnamed Defendant is the Victorian WorkCover Authority.

The Fourthnamed and Fifthnamed Defendants have simply agreed to abide the

decision of the Court in the usual way. The other defendants ("the relevant

defendants") oppose the plaintiff's application and have been represented jointly by

a single set of counsel.

As mentioned already, certain problems of nomenclature have attended the proper

identification of the parties to the Cóunty Court proceeding and the parties to this

proceeding. In addition, problems have beset the articulation by the plaintiff of his

underlying claim for compensation. This in turn has hampered analysis of the

referral to the medical panel and of its outcome and has contributed to a long history

of legal skirmishing both in the County Court and in this Court.

In the FASC, the plaintiff alleges that in the course of his employment with the

relevant defendants between L986 and 1996 he was exposed to certain listed

"psycho-social stressors, the effect of which caused the Plaintiff to suffer ínjury".

The particulars of injury are then pleaded, as follows:

(a) Chronic adjustment disorder with mixed disturbance of emotions andanxiety;

(b) Anxiety and Depression and/or in the alternative;

(c) Recurrence, aggravatiory acceleration, exacerbation and/ordeterioration of a pre-existing psychological ailment resulting in

Chronic Adjustment Disorder with mixed disturbance ofemotions and conduct; and/ or

Anxiety and depression.

10

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SC:AP

(iÐ

IUDGMENT

30 Unfortunately the FASC does not otherwise mention, much less specify the nature

of, the "pre-existing psychological ailment", which is alleged in the alternative in the

particulars of injury. Significantly, there is no reference to a pre-existing personality

disorder. Indeed, at least until recently, the plaintiff's primary position has been that

he did not have a pre-existing personality disorder and in particular that he did not

have a pre-existingparønoid personality disorder.2a Rather, at least until recently, he

has primarily asserted that he has a chronic adjustment disorder and/ or anxiety and

depression directly referable to the employment in question.2s

31 In the County Court, the plaintiff's claim as set out in the FASC is for weekly

payments for incapacity from L November 2000 until 15 fune 2001 and from

2 February 2002 to date and continuing. There is no claim for any incapacity prior to

l- November 2000. Flowever, work at National Mutual/Suncorp Metway/Nexis

between 1994 and1996 is alleged to be a cause of the alleged subsequent incapacity.

32 As indicated above, four medical questions were formulated for referral to a medical

panel. Some of the questions had multiple parts. The form of the questions was

agreed between the parties to the County Court proceeding. On 3 May 2006, fudge

Hicks referred the questions, together with a very large quantity of documentary

material, to the Convenor of Medical Panels. On or about 30 June 2006 a medical

panel ("the first panel") returned a certificate of opinion and a statement of reasons.

The panel answered the medical questions adversely to the plaintiff. In its reasons it

said that the plaintiff had a pre-existing paranoid personality disorder, unrelated to

work; that he suffered a temporary exacerbation of this disorder in

September/October 1994 when in the employ of National Mutual, resulting in a

temporary period of anxiety and depression; but that the effects of this temporary

exacerbation had resolved by early 1995. The first panel also found that the plaintiff

was fit for his usual work as an analyst/computer programmer.

24 See the judgment, referred to below, of f Forrest I n Clørke a National Mutual Life lnsurønce Ltd €¡ Ors

Í20071VSC 341 esp at 1441, lsLl, [54]-[55] and [59]-[61]. So far as the plaintiff's "inadequate reasons"grounds are concemed, that might still be his primary position.

25 Ibid.SC:AP 11. JUDGMENT

33 The plaintiff sought judicial review of the first panel's opinion. On L8 September

2007 the opinion was quashed by virtue of a judgment of the Honourable Justice ]

Forrest.26 His Honour accepted a submission by the plaintiff that the first panel had

provided an inadequate statement of reasons, in that it had not explained,

sufficiently or at all, why it had concluded that the plaintiff had had a pre-existing

paranoid personality disorder, or why it considered that the effects of the temporary

exacerbation of that disorder had resolved by early 1995, or why it disagreed with

the plaintiff's treating psychiatrist, Dr Cooper, who had expressed the view in a

medical report in 2006 that the plaintiff had suffered, and continued to suffer, from

symptoms of adjustment disorder.

34 As a result of the judgment of f Forrest J, a fresh medical panel was assembled, being

the panel with whose opinion I am now concerned ("the second panel"). Its opinion

and its reasons were both dated 30 November 2007. They are set out in paragraphs

36 and 37 below, respectively. It will be seen that the second panel, like the first,

answered the referred questions adversely to the plaintiff, albeit in somewhat

different terms; that, according to its statement of reasons, the second panel, like the

first, considered that the plaintiff had a pre-existing2T personality disorder; that, as

mentioned above, it considered the proper diagnosis to be "Personality Disorder Not

Otherwise Specified (DSM IV) with features of a paranoid personality disorder,

antisocial personality disorder and narcissistic personality disorder";28 that it

accepted that the plaintiff had had an "Adjustment Disorder with depressed mood

which developed in L995 (as diagnosed by Dr Cooper) in response to workplace

stressors at that time"; that, however, it considered that this had developed

independently of his personality disorder and had resolved by 1996; that it accepted

that the plaintiff had and continued to have violent and revengeful fantasies in

relation to National Mutual and its staff but considered that these were "symptoms"

of his Personality Disorder and not of his Adjustment Disorder; that it recognised

26 Clarke a Nøtional Mutuøl Life Insurance Ltd t Ors 120071VSC 341.27 The relevant defendants do not concede that the finding was of a pre-existing personality disorder but

I think that this is plainly implied in the second panel's reasons. See below.28 CB 447.SC:AP 12 JUDGMENT

35

36

2e Clarke a NationøI Mutual Life Assurnnce Ltd l20l0l VSCA 43.

SC:AP L3

that the plaintiff had a continued sense of injustice concerning events at work, but

considered that these were merely a focus of his Personality Disorder and not a

cause or an aggravatingfactor; and determined that, although the "nature and extent

of the Plaintiff's Personality Disorder is such that he is not capable of performing any

work, his Personality Disorder is not related to his employment".

The plaintiff commenced this proceeding in fanuary 2008. Flowever, he put it on

hold while he applied to a County Court Judge for leave to further amend the FASC

so as to take account of the second panel's findings in its statement of reasons insofar

as they favoured him. The County Court Judge refused the application, without

prejudice to any future application that the plaintiff might make after the hearing

and determination of this Supreme Court proceeding. The plaintiff then sought

leave to appeal to the Court of Appeal from that ruling. The Court of Appeal held

that the County Court judge should not have even entertained the application for

leave to amend while the present judicial review proceeding was pending.2s The

plaintiff then proceeded to make a series of amendments to his pleadings in these

Supreme Court judicial review proceedings.

The second panel's opinion and reasons

The second panel's certified opinion dated 30 November 2007, which incorporates

the four medical questions referred by fudge Hicks on 3 May 2006, is as follows:

"Question 1: What is the nature of the Plaintiff's medical condition,relevant to the Plaintiff's mental state being:

Recurrence, aggravation, acceleration, exacerbationand/or deterioration of a pre-existing psychologicalailment resulting in

i) Chronic adjustment disorder with mixeddisturbances of emotions and conduct and/or;

ii) Anxiety and depression.

Answer: The Panel is of the opinion that the Plaintiff is notsuffering from any recurrence, aggravation, acceleration,exacerbation and/ or deterioration of a pre-existing

JUDGMENT

psychological ailment resulting in a chronic adjustmentdisorder with mixed disturbances of emotions and

conduct and/ or anxiety and depression.

Question 2: Was the Plaintiff's employment:

a) with the First Defendant up until 3 November L994 ('the

first period of. employment') in f.act, a significantcontributing factor to a:

Ð recurrence and/or

ii) aggravation and/or

iii) acceleration and/or

iv) exacerbation and/or

v) deterioration -

of a pre-existing psychological ailment resulting in:

chronic adjustment disorder with mixeddisturbance of emotions and conduct and/or

x)

y)

z)

anxiety and depression

or a similar injury.

Answer: No.

b) with the Second and/or Fourth Defendant between 4November L994 and April 1996 (' the second period ofemployment') in f.act, a significant contributing factor toa:

Ð recurrence and/or

ii) aggravation and/or

vi) acceleration and/or

vii) exacerbation and/or

viii) deterioration -of a pre-existing psychological ailment resulting in:

x) chronic adjustment disorder with mixeddisturbance of emotions and conduct and/or

y) anxiety and dePression

z) or a similar injury.1.4 JUDGMENTSC:AP

3/

Answer: Not applicable.

Question 4: If the answer the [sic] question 3(a) is'no':

a) does the Plaintiff's incapacity for work result from, or isit materially contributed to by, the injuries, and if so

which of the injuries, identified in the answers to:

i) question 2a) and,lor

iÐ question 2b)?

Answer: Notapplicable."

It is also desirable to set out in full the statement of reasons dated 30 Novembet 2007

It reads:

REASONS FOR OPINION

Re: Mr Kenneth CLARKE

Medical Panel Ref: No: M107/3L47

1". The referral to the Medical Panel was received on 3 May 2006' The

documents considered by the Panel are described in Enclosure A'

2. The Plaintiff was examined by the Panel Members on the followingdate:

Answer:

Question 3:

Answer:

b)

Memberlointly by:

Dr Steven AdlardDr John Lloyd

Dr David Kotzman

Specialty

PsychiatristNeuroPsychiatristOccupationalPhysician

27 November 2007

27 November 2007

27 November 2007

No.

a) Does the Plaintiff have a current work capacity?

The Panel is of the opinion that the Plaintiff has nopresent inability to return to pre-injury employmentarising from an injury.

If no to part (a) hereol is the Plaintiff likely to continueindefinitely to have no current work capacity?

Examination

3. The Panel formed its opinion by reference to -

(a) the documents and information referred to in Enclosure A;and,

SC:AP 15 JUDGMENT

(b) the history provided by the Plaintiff and the examinationfindings elicited by the Panel at the above mentioned

examination of the Plaintiff.

4. The reasons for the Panel's opinion are as follows:

The Plaintiff stated that he began working with National Mutual in April1986. He said that he was employed as an analyst/programmer, on a full-time baSis.

He said that he began working with a division of National Mutual called

Nexis in 1988, but ihat this division was always part of National Mutual.

He reported that on the whole he had enjoyed his work with NationalMutual/Nexis.

He reported that he had an appraisal at the end of 1993, and two other

workers got a better appraisal and better pay than he did. He disagreed

with this, and wanted it corrected. He did not sign the appraisal, and felt

that he was being blamed for other people's errors.

The Plaintiff told the Panel that he was deliberately not working hard inL994 because he was unhappy with the appraisal. He admitted that this

was partly to get at his employer for the negative appraisal'

He stated that in September/October L994 Nexis was Purchased by

Suncorp Metway. At that time he said he raised the issue that he was

in his view still a National Mutual employee. He said that the general

manager of Neús did not transfer National Mutual employees to Nexis

and n" thought this was an attempt to 8et away from paying

redundan"y pày-et ts from National Mutual. He said that he spoke to

the human resources manager at Suncorp Metway, but the humanresoufces manager didn't want to talk about who his employer was.

The Plaintiff said that he forgot to tell the human resources manager

about his negative appraisal at the end of 1993.

The Plaintiff added that two days prior to the sale of Nexis he spoke to a

human resources managef (the Panel was unclear whether this was ahuman resources manager at Suncorp Metway or National Mutual)who he alleged agreed that the Plaintiff was a National Mutual

employee urrd told the Plaintiff that he would get 4-5 weeks pay. The

Plaintiif said that this "stank" because he felt he was entitled to a

redundancy payment. He reported that on the first day after the sale ofNexis he askèd for an employment contract. He said that two weeks

later he got a bit of paper but he didn't sign this.

The Plaintiff said that he approached his union, and alleged that he was

told to "go with the flow" and accept the situation.

The Plaintiff reported that at the time of the purchase of Nexis by

Suncorp Metway he was still generally happy in himself, there were no

family problems, and he was keen to work until the age of 55 years.

The Plaintiff stated that for the first two months of working for Suncorp

Metway he had little to do and got a bit bored' He said that he started

SC:AP L6 JUDGMENT

working a bit harder for his new boss, and hoped to get a Pay rise, butwas disappointed when he did not get one.

He reported that in April 1995 he became angfy because he noted thatcontract workers were earning more than he was. He said that because ofhis anger he attended his general practitioner. He also reported that he wasangry that he had not been given a work contract, and didn't get a pay risethat he expected. In addition to his anger he reported impaired sleep,

lowered mood, tiredness, an increased need for coffee, and reducedconcentration. When he saw his general practitioner he was given three

days off from work.

The Plaintiff said that sometime between February and June 1995, when he

tried to get to sleep at night he started imagining his former manager at

National Mutual and began having thoughts of attacking him, with a knife,

or hammer. At that stage he did not think of acting on these thoughts.

The Plaintiff said that in about October L995 he read about depression andre-attended his general practitioner, asking for a referral to a psychiatrist'He then attended a psychiatrist, Dr Cooper, in December 1995. The Plaintiffsaid that Dr Cooper suggested that he leave his job when his long service

leave was available. The Plaintiff said that he told Dr Cooper of his thoughtsof violence but that Dr Cooper did not take this seriously. He only saw

Dr Cooper on one occasion at that time.

The Plaintiff said that he began thìnking of acting on his violent thoughtstowards his former employer from about March 1996. He said that because

he did not want to get caught if he carried out any murders, he began

reading forensic science books.

The Plaintiff said that he resigned from Suncorp Metway in April 1996.

He said that his long service leave became available at that point, and thathe was advised by Dr Cooper to leave. He had been looking for a job

elsewhere from January L996, and said that he had a job lined up for whenhe left Suncorp Metway. He also told the Panel that he left Suncorp

Metway partly so he could take legal action against his former employer.

He commenced working with Coles Myer in April 1996. He told the Panel

that at that time his mood was still a little lowered, but he was moreoptimistic because he could take action at the Australian IndustrialRelations Comrnission (AIRC). He said that he went to the AIRC in May1996. The Plaintiff said that at that hearing National Mutual mentionedthat they could launch a counter claim for vexatious litigation. Hevoluntarily left Coles Myer at the end of 1997, because he said he couldearn more money as a contractor.

The Plaintiff said that from the start of 1998 he did contract IT contract [sic]work in his own business. From the end o1 1998 until August 1999 he didcontract IT work overseas. He said that during his spare time he read legal

books, and that in the back of his mind he was saving uP money for futurelegal costs. From August 1999 until November 2000 he worked for Telstra

in IT work. He said that he thought in that time he was "slightly depressed,

I suppose", andhe was continuing to think of taking legal action.

SC:AP t7 JUDGMENT

The Plaintiff said that in November 2000 he returned to his generalpractitioner and told him about his thoughts of killing people. He wasreferred back to Dr Cooper whom he saw in ]anuary 200i.. Dr Cooperreferred him to Professor Mullen for a second opinion in June 2001. Hesaid he had submitted his first WorkCover claim in December 2000.

The Plaintiff said that he did further contract work in the United Kingdomfrom June 2001. He was to work into 2002, but the contract was ended inNovember 2001- because the business he was working for was taken over.He returned to Australia in February 2002.

The Plaintiff said he has not worked since he returned to Australia inFebruary 2002. The Plaintiff said that because of his thoughts of killingpeople at work, it was best not to go. He also said that going to work was"putting the cart before the horse", and that he would use the WorkCoverprocess to improve his mental health by resolving the National Mutualsituation.

The Plaintiff also reported that in February 2002 his wife suggested aseparation. He said that she wanted him to go to work. He said that hewanted to follow through his WorkCover claim.

In February 2002the Plaintiff said that whilst he was lying in bed watchingthe TVnews his mother-in-law attended to take his daughter to school (shehad already taken his son to school). He said that she yelled at him, thatshe was in a bad mood, she came in and turned off the television andwouldn't leave the bedroom. He reported that he got increasingly ar.gryand threatened her, saying, "if. you don't go, I'11 hit you". He said that hepunched her, but she still didn't move. He told the Panel that he said toher "if you don't go, I will hit you with a chair". She did not move, so hesaid he hit her with the chair twice. He said that she noticed that she wasbleeding and called for her granddaughter. He said he saw some bloodand got a tea towel, before calling an ambulance. He said that his reactionwas that he felt tired, so he therefore had a cup of coffee. He said he hadno thoughts about his mother-in-1aw; no anger, no sadness for her, but hedid feel a bit uneasy.

The police arrived, and the Plaintiff said that he was admitted to the AustinHospital psychiatric unit for two weeks. He was treated with Efexor-XR 150mg daily, which he said calmed him down and dampened his emotions.

After discharge from hospital he lived in a number of youth hostels untiloctober 2002,'belore returning to live in the family home until mid-2003.During that time he slept on a mattress on the floor. There was a financialseparationin June 2003, following which he shared a f7at, before living inhis own rented flat since June 2006.

The Plaintiff said that he continued to consult Dr Cooper at'1,-2 monthlyintervals until mid-2006. During that time he ceased the Efexor-XRmedication h 2004, to see how he was without it. He said that he wasmore alert off the medication and he did not become depressed. Hestopped seeing Dr cooper in mid-2006 because he felt it was of no use, andmonitoring him was not useful to him. He reported that he continued tosee his general practitioner at monthly intervals.

SC:AP 18 IUDGMENT

The Ptaintiff said that he has spent much of his time since 2002 pursuing

his legal claim. He said that if his current legal claim failed, he might go

and kill people, but he would also pursue a seParate legal claim for his

,.rp"ru.ttìation. He said that he could not go and work now because he

wóuld not be able to handle his thoughts at work, he would not be able to

concentrate, and he also needs time to get National Mutual to correct their

mistakes. He said it was a full-time-job to improve his mental health and

gain time for his financial and legal settlement.

The Plaintiff described the following current symptoms:

o That his mood varied, from slightly low to normal. He said

that when he thought of his workCovet/legal issues this

affected his mood.

. That he had ongoing thoughts of killing people when the

idea of work comes up. sometimes this is specific people,

such as former management at National Mutual. He has

thoughts of using hammers, axes, knives, even Molotovcocktails. He said that sometimes the thoughts made him feel

good. He said he would like to bankrupt National Mutual,ãnd could attempt to do this by killing people who had lifeinsurance. He said that this thought helped cheer him up'He realised however that it practically would not be possible

to kill sufficient people to financialty damage such a large

company; it is a theory.

. When asked why he was able to stop acting on his violentthoughts, the Plaintiff said that he feared being caught, that

time was on his side, and he would still prefer to settle the

matters legally.

No auditory hallucinations.

No ideas of being followed or filmed (though he is aware

that insurance companies sometimes filmed people for

insurance purposes).

No delusions of reference.

That his sleep was mostly normal.

His weight and appetite are normal.

o That his concentration was okay, but if he were at work he

would be concerned by his morbid thoughts and unable to

concentrate.

The Plaintiff said that he attended a gym most days' He said that he

spends about two hours per day on the Internet, looking at dating sites, e-

mailing people and sending jokes. He reported spending some time doing

legal resea..h, h particular looking up WorkCover cases. He said he

reóently had a girlfriend, but the relationship had broken down. He

reportéd that he did not see his children very often, and he was a bit

a

a

o

a

a

SC:AP T9 JUDGMENT

disappointed that they do not contact him. He said that his ex-wife was

;;'rirpp"rtive of his'tegal claim; he said that a lot of damage had been

done and he needed tJcorrect this, and. hence the imperative of settling

his legal cases favourablY'

The to L994) and takes

no active PsYchiatric

trea wine' but does not

use any illicit substances.

The plaintiff told the panel that he was bom in England. He is one of four

children. He said that his family were not very well- off financially, and

that it was a strict upbringing. He said that he was told off a bit, and was

controlled by both parents. He reported that his father punished him with

a stick. Despite attinis he said, tt',ut n" was moderately huPPy overall, and

had some friends'

He reported that he kicked his Pet c

hard. -Between

the ages of 8-L0 he sai

near a church. On one of the fire lig

called. He said that he was involved

to 15 years.

He said that he attended school to ad,vanced levels, before doing a

university degree in mathematics. He said that whilst at university he

was never lonely, and, had a few friends, but never had a girlfriend' From

L982 hehas woiked in the computer/IT industry'

The Plaintiff said that he came to Australia if-:l:gTg, because he wanted to

travelandthenbecomearesidenthere'Hemarriedinlgs3andthecouple had three children, now L9, 20, and'22 years' tle reported that.he

had hit his wife on two occasions. He told the Panel he was once playing

chess when his wife came in and deliberately knocked over some chess

pi".",.Hesaid.n*n"punchedherintheface,causingbruisingtoherface. He was the subject of an Intervention order following the incident

with his mother-in-law in 2002'

on mental state examination the Panel noted that the Plaintiff presented

asasmallman,withbaldinggreyhairandabeard.Hehadacoldstare'He appeared restricted in uff"tt, and did not appear depressed' -anxiousor agitated. He was not tearful. He related his history in an obsessive

manner, with an exact knowled.ge of dates and details' He did not appear

distressed at all about the detáits described to the Panel, including the

violent and homicidal fantasies, the assault on his mother-in- law' or

punching his wife, for examPle'

ãetermination about him' There

expressed, such as auditorY hall

delusions. His cognition was normal; he appeared of above avefage

intelligence, and Ï,L .or.r."^tration and memory were objectively normal.

The Panel accepted that the Plaintiff wasupset by the changes at hisplace of

and'L996. Thé Panel noted that he attended his

5 and was seen by a psychiatrist in December

diagnosed the Plaintiff as suffering from an

SC:AP20 JUDGMENT

Adjustment Disorderwith depressed mood at that time'

The Panel noted however that the Plaintiff was able to stay at work during

this period. and he voluntarily left his place of employment in April L996,

to take up other full-timehistory both in AustraliPanel noted that the Pla

the United Kingdom for any psychiatric o

returned to his general practitioner in De

Workcover claim).

The Panel carefully took account of the following:

o the plaintiff had reported the önset of violent and revengeful

fantasies from about mid-1995, and he thought about acting

on these from aboutMarch 1996;

. the reported childhood thefts, childhood fire lighting, fights,

kicking of the Pet cat;

. his admitted assault of his wife on more than one occasion;

o the Plaintiff's intense sense of injustice, the sense of

entitlement;

. his presentation at the Panel's psychiatric interview;

o the self reported pleasure gained by some of his violent

fantasies;

o the goal directed nature of his behaviour;

o the assault of his mother-in-law and his response to that.

The Panel also carefully considered the information provided to the Panel,

as outlined in the Schedule of Attachments. It particularly noted the

opinions expressed by the treating doctors, Dr Cooper and Dr Mccoll, and

their diagnãses. The'Panel also particularly noted the diagnoses made by

other examining psychiatrists (including the possible diagnosis of

querulous paranoia made by Professor Mullen), as well the comments

made by the psychologist Dr Kennedy.

The Panel concluded that the Plaintiff suffers from a Personality Disorder

Not Otherwise Specified, (DSM IV) with features of a paranoid personality

disorder, antisoiial personality disorder, and narcissistic personality

disorder.

The Panel also considered the possibility that the worker could have a

psychotic disorder. While no frank bizarre delusions or hallucinations

wére identified the Panel noted the worker's continuing rumination in

relation to potential work situations and his stated intentions to kill

employees of his former workplace.indifference to those he has attacked prof affect in the interview situation. The

borderline psychotic state were probably present, but a formal diagnosis of

27 JUDGMENTSC:AP

a paranoid Psychotic disorder could not be substantiated'

The Panel consid.ered the worker does not currently have an Adjustment

Disorder based on its consideration of the nature of the Plaintiff's

current symptoms and its findings on his presentation at psychiatric

examination.

The Panel accepted that the Plaintiff did have an Adjustment Disorder with

depressed -oód which developed tn Lgg1, as diagnosed by Dr Cooper, in

response to workplace stressors at

condition developed independently onot be determined to be a recurrence/ a

and/ or deterioration of a pre-existingthe questions from the Court.

The panel considers the Plaintiff's Adjustment Disorder resolved shortly

after the time the Plaintiff ceased his employment (as this was the stressor

causing his Adjustment Disorder) with suncorp Metway in April L996 and

at about the time he thought of acting on his violent and revengeful

fantasies, which were sympioms of his Personality Disorder and not his

Adjustment Disorder'

Based on the nature of the Plaintiff's symptoms and the Panel's findings on

examination, the Panel considers the Plaintiff's employment had no effect on

his Personality Disorder as the continued sense of injustice for the events at

work *e." -ôrely a focus of his Personality Disorder and not a cause or an

aggravating factor.

The panel therefore concluded that the Plaintiff is not suffering from any

recurrence, aggravation, acceleration, exacerbation and/or deterioration of

a pre-existing-psychological ailment resulting in a chronic adjustment

disorder with mixed disturbances of emotions and conduct and/ot anxiety

and depression.

As the Panel considers the Plaintiff developed an Adjustment Disorder

directly as a result of the circumstances of his employment and that his

employment had no effect on his Personality Disorder, the Panel concluded

thai the Plaintiff's employment with National Mutual, Nexus and Suncorp

Metway was not in iact, a significant contributing factor to any alleged

recurrence, aggravation, acceleration, exacerbation and/or deterioration of

a pre-existing psychological ailment resulting in a chronic adjustment

disorder wittLmixád disturbances of emotions and conduct and/ot anúety

and depression.

The panel does consid.er the nature and extent of the Plaintiff's Personality

Disorder is such that he is not capable of performing any work, but as thepanel has determined that the Plaintiff's initial Adjustment Disorder has

resolved and that his Personality Disorder is not related to his employment,

it concluded that the Plaintiff has no present inability to return to pre-injury

employment arising from an injury.

Dr Steven Adlard (Presiding Member)For and on behalf of the Medical Panel

SC:AP 22

Date: 30/|L/07

JUDGMENT

38

39

40

41

42

Attached to the statement of reasons was a schedule entitled Enclosure A. The

schedule was signed by the presiding member and dated 26 November 2007. It

listed 77 documents, some of them containing multiple pages. Immediately above

the list is a declaration by the presiding member as follows:

I refer to the Medical Panel convened in this matter of which I am a memberand acknowledge receipt of the medical and other material listed in theschedule and confirm that the Panel took this information into considerationin forming the opinion.

Relevant legal principles

I am satisfied that in reaching its conclusions and answering the questions referred,

the second panel did not properly appreciate, or did not apply, the relevant legal

principles. To demonstrate this, it is necessary to refer to the applicable provisions of

the Accident Compensøtion Act L985 and to some relevant authorities.

Given the dates of the events in question, it is appropriate to have regard to the

relevant provisions of the Accídent Compensation Act 1,985 as they stood on

L November 2000 or thereabouts. It is not suggested that those provisions were

significantly different at any other relevant time.

The plaintiff's County Court claim is brought pursuant to s 82(1) of the Accident

Compensøtion Act 1985, which provided:

(1) If there is caused to a worker an injury arising out of or in the courseof any employment and if the worker's employment was a significantcontributing factor the worker shall be entitled to compensation inaccordance with this Act.

So far as presently relevant, s 5 of the Act defined "injury't as follows:

"lnjlry" means any physical or mental i.jtry and without limiting thegenerality of the foregoing includes -(a)

(b)

(c) the recurrence, aggravation, acceleration, exacerbation or deteriorationof any pre-eústing injury or disease where the worker's employmentwas a significant contributing factor to that recurrence, aggravation,acceleration, exacerbation or deterioration;

SC:AP 23 JUDGMENT

43

44

45

46

30 Hegedis u Cørlton I United Breweries Ltd (2000) 4VR296.31 lbid.SC:AP 24

The word "disease", which appeared in paragraph (c) of the definition of "ínjury",

was itself defined in s 5 as follows:

"disease" includes -(a) any physical or mental ailment, disorder, defect or morbid condition

whether of sudden or gradual development; and

(b) the aggravation, acceleratiory exacerbation or recurrence of any pre-existing disease;

Finally, the expression "current work capacity" was defined in s 5 as follows:

"Current work capacity, in relation to a worker/ means a present inabilityarising from an injury such that the worker is not able to return to his or herpre-injury employment but is able to return to work in suitable employment.

For the purposes of the error of law grounds, the plaintiff now proceeds principally

on the basis that he will in due course apply, again, to amend the FASC to allege (at

least in the alternative) that he suffered a work-related injury constitute d by a

recurrence, aggravation etc of the personality disorder diagnosed by the second

panel. Such an injury would be an injury in the paragraph (c) sense ("recurrence,

aggravation etc"), as distinct from an injury in the primary sense.3O Hence, if

permitted to amend, he would need to satisfy the County Court, under this heading,

that he had a pre-existing mental injury or disease (here, the personality disorder);

that there was a recurrence, aggravation, acceleration, exacerbation or deterioration

of it; that the recurrence etc of it was an injury arising out of or in the course of his

employment with one or more of the relevant defendants; and that the employment

was a significant contributing factor.31 On the other hand, the plaintiff still contends

that, regardless of any proposed amendment to the FASC, the legally erroneous

approach allegedly adopted by the panel vitiated the answers it actually gave to the

questions actually referred.

Section 5(18) of the Act required that, in determining whether a worker's

employment was a significant contributing factor to an injury, each of the matters

JUDGMENT

47

48

49

listed in paragraphs (a)-(g) thereof had to be taken into account' The panel makes no

express reference in its reasons to any of those requirements as such, but the parties

have not referred to or complained about that circumstance in this proceeding, and it

need not be further considered.32

The leading Australian workers' compensation case on psychological injuries and

their aggravation etc is Federal Broom Company Pty Ltd a Semlitchss' In that case a

worker with a history of functional mental illness predisposing her to delusions

sustained a muscular strain in the course of her work. She sought workers'

compensation in respect of a continuing incapacity resulting from a delusional

condition following upon the physical injury. The Worker's Compensation Act of

New South Wales, under which she claimed', defined "iniury" in a manner similar to

the manner in which "injury" was defined in Victoria as indicated above. She was

successful before the workers' Compensation Commission of New south wales'

The worker's employer apPealed to the Full Court of the Supreme Court of New

South Wales. By majority (Else-Mitchell ] dissenting) the appeal was dismissed' A

further appeal by the employer to the High Court was also dismissed' The High

Court held that, in determining whether there has been an "aggtavation etc" of a

functional mental illness, the underlying illness is not separable from its symptoms;

and that, on the evidence, a finding that there had been an1 "aggravation etc" had

been open to the Worker's Compensation Commission in that case. The High Court

further held that it had been open to the Commission to find that the injury at work

precipitated the new delusion and that the employment contributed to the

worsening of the disease.

McTiernan f considered that the wotket's proofs of deterioration in her mental

disease wefe sufficient. The disease had deteriorated in that symptoms which she

either did not have, or did not have to the same degree, immediately before the

employment incident appeared after such incident and had an effect on her, so that

Cf. St Møry's Schoolu Askwith [2011] VSCA 90'

(1964) 1L0 CLR 626.

32

33

SC:AP 25 JUDGMENT

50

her condition of health, in a material sense, became worse so she could not work'34

Further, according to McTiernan J, it had been open to the Commission to find that

the worker,s employment was a contributing factor to such "deterioration"' Her

belief that she was unable to work was a psychol0gical condition; it was a form of

madness which she had never exhibited before. A psychiatrist called by the

employer had said that people tend to become mofe disabled as their schizophrenia

goes on and that it was likely that in the end she would have become unable to work'

Flowever, the evidence had raised no probability that the "end" was near at about

the time of the workplace incident. The psychiatrist called by the worker said that in

his opinion the accident at work precipitated the delusion that the respondent was

unable to cope with her work. on this evidence and on the contrast between the

respondent's ability to work before the date of the incident and her loss of capacity

soon after that date, it was reasonably oPen to the Commission to find that the injury

sustained on that date and. the pain and distress it caused the respondent brought on

the new delusion that she was unable to work. Those facts were sufficient to prove a

nexus between the employment and the deterioration of the respondent's mental

condition. They raised the inference that it was more probable than not that the

employment was a contributing factor to the worsening of the disease from which

the respondent was suffering.

Kitto J delivered a separate judgment with which Taylor and Owen Jj agreed' Kitto J

set out the appellant's argument and explained why it was wrong' It was an

argument very similar, in my view, to the second panel's approach in the present

case. Kitto ] said:3s

Before this Court the contention h

was said that the only permissible conclusion on the evidence of the expert

witnesses was that the disease itself, as distinguished from the particular

d.elusions to which it gave rise from time to time, was not made any wolse

by the incident of Lst December L960, and' that therefore the definition of

(1964) 110 cLR 626,629

At633-634.34

35

SC:AP 26 JUDGMENT

"injury" is not satisfied in this case. The argument took it for granted thatthe collection of substantives in the definition-aggravation, acceleration,

exacerbation, deterioration---could be rolled into one so that the question fordecision could satisfactorily be rendered: whether it was open to the

Comrnission on the evidence to find that the development of the

respondent's new delusion as a result of the incident of Lst December L960

was a worsening of the disease from which she suffered or was only a new

manifestation of a disease which itself was not worsened. But fallacy lurksin paraphrase. To ask whether the disease became worse or merely issued inthe new delusion while itself being no worse is to invite a discussion uPon

which a court could not properly pronounce unless guided for the wholedistance by expert evidence, that is to say a discussion as to whether the

nature of the relevant kind of mental disease is such that a distinction may

legitimately be drawn between the disease, as an underlying general

condition, and the particular delusions stemrning from it under the influence

of particular occurrences or circumstances.

To pursue that discussion, however, seeÍìs to me to risk distraction from the

reaÍ point of the case. The four substantives are not slmonymous with each

othei, and a court should assume that it is for the differing shades ofmeaning of which they are susceptible that the draftsman has chosen toemploy them all. They are not all given their true force by asking simplywhèther the disease has been made worse. Molfitt I placed at least some ofhis emphasis upon the word "exacerbation", and it seems to me that thatword is the critical word for this case. As applied to a disease it is properlyused to refer to effects which the disease produces in the victim rather than

to the advance of the disease itself to a more serious stage of itsdevelopment. "A temporary increase in the violence of the symptoms of adiseasé" is the medical sense of the word according to Funk and Wagnall's

standard English Dictionary. In the oxford English Dictionary may be

found illustrations of the use of the word as referring to particularmanifestations of a diseased condition. It is not a technical word, requiringscientific explication or application. It is an ordinary English word to be

applied by the Court to the proved facts. Once it was established, as it was

established beyond question before the Comrnission by the evidence of the

psychiatrists who were called, that the incident of Lst December L960 acted

upon a pre-existing condition of mental illness (a disease) to produce a

delusion causing incapacity for work, the respondent had made a clear case

of exacerbation of her mental disease, according to the ordinary meaning ofthe word. Moffitt J was right,I think, in saying: "There is an exacerbation ofa disease where the expeiience of the disease by the patient is increased or

intensified by an increase or intensifying of symptoms. The word is directed

to the individuat and the effect of the disease upon him rather than being

concerned with the underlying mechanism". Accordingly if salt be applied

to an open wound, making the wound no worse but causing it to smart as ithad not smarted before, it is proper to say that there is an exacerbation of the

wound. Equally, where an untoward occurrence in a worker'S employment

causes a pre-efsting mental disorder to manifest itself in a new delusion, itseems to me proper to say that there is an exacerbation of the mental

disorder.

51. Likewise, the judgment of Windeyer I in Semlitch contains several passages which

SC:AP 27 JUDGMENT

36

37

38

are illuminating for present purposes. His Honour said:36

A rigid separation of a disease from its symptoms is difficult in the field ofpsychosomatic and neurological ailments. In the field of purely functionalmental disorders I think it is impossible. What was urged for the appellantwas that the irrational actions, hallucinations and delusions of a personafflicted in mind as the applicant was are but the symptoms of an underllngdeep-seated disease of the mind: and that one cannot say that the diseaseitself has worsened merely because changes occur iry for example, the natureof a delusion or in the objects upon which a fixed idea is focussed.sT That Ishall assume to be so. But to go from the idea that irrational beliefs andbehaviour betoken an underlying disorder of the mind to thinking of themind as an entity, a disorder of which may manifest itself in symptoms thatare apart from rather than a part of the disease itself, seems to me a

mistakenly simple view of a complex phenomenon. As I cannot conceive ofthe mind apart from its functioning, I cannot conceive of it as beingdisordered or diseased apart from its manifestly disordered functioning. Itherefore find it impossible to conceive of the malady as distinct from itsmanifestations. They are, it seems to me, of its essence. That view may bethe result of the limitations of my knowledge. I am not equipped to considerquestions of that kind. Nevertheless the view that I take accords, I think,with the manner in which, for the purposes of classification, mentaldisorders are coÍunonly described and given what one of the witnesses inthis case called "a diagnostic label". Classification of functionalabnormalities of mind appears to be based largely on the manner of theirmanifestations, in emotional states, irrationalities, delusions, and aberrationsin behaviour. That, at all events, is the conclusion that I draw from what thetwo psychiatrists said in this case. The applicant was said to be sufferingfrom schizophrenia. Doctor Ellard described this form of mental disorder interms of a syndrome. So far as the evidence showed, it could not bedescribed otherwise.

The question whether there has been an aggravatiory acceleration,exacerbation or deterioration of a mental disorder is, I think, essentially oneof fact. It is a question on which the opinion of psychiatrists may obviouslybe helpful. But the ønswer depends upon whether for the sffirer the consequences

of his ffiiction haae become more serious.aa The criteria of that are comparisonsbased upon the nature, apparent intensity and persistence of irrationalbeliefs, the degrees of insight and of withdrawal from reality that thesufferer has, the degree of his divergence from what may seem to be normalbehaviour and the extent of his capacity to participate in and adjust himselfto the normal requirements of life as a member of the community. It is byconsiderations of that sort, partly the results of observation of conduct anddemeanour and partly elicited from what the patient says, that the questionmust I think be answered, whoever has to answer it.

At 636-637.

My emphasis.My emphasis.

SC:AP 28 JUDGMENT

52

53

54

Windeyer J proceeded to say:3e

The next question then is, was there in December 1960 "an aggtavatiory

acceleration, exacerbation or deterioration" of the disease? The words have

somewhat differing meanings: one may be more apt than another to

describe'the circumstances of a particular case: but their several meanings

are not exclusive of one another. The question that each poses is, it seems to

me, whether the disease has been made worse in the sense of more grave/

more grievous or more serious in its effects upon the patient. To say that a

man's sickness is worse or has deteriorated means in ordinary parlance,

oddly enough, the same thing as saying that his health has deteriorated. The

word "acceleration" probably presupposes a progressive disease, one that,

running its ordinary course, increases in gravity until a climax such as death

or total invalidism is reached-its progress to this end result not being

ordinarily susceptible of being permanently arrested, but susceptible ofbeing hastened by external stimuli. If the word "accelerated" stood alone, Iwould be inclined to agree with the view that Else-Mitchell J took in hisjudgment in this case, and think that it was only to such progressive diseases

that the relevant part of the definition of "injury" in the Act could apply. But

the word does not stand alone; and I think, with respect, that the applicationof par.(b) of the definition cannot be confined as he suggested.

Schizophrenia is according to the evidence progressive in that it produces

delusions which may tend to become chronic. But in the present case the

WOrdS "aggraVation" Or "exacerbation" are mOre apt than "acceleration" tO

describe the matters on which the case for the applicant depends.

Windeyer J next summarised the essential facts. Having described the worker's

delusions, his Honour said:40

As a result of these delusions she firmly believes it is impossible for her to

work. And because she is persuaded that she carulot go to work, in fact she

cannot. That is undisputed.

His Honour summarised the worker's post-accident condition as follows:41

She was still a schizophrenic. But her irrational beliefs were continuouslydisturbing her, and were incapacitating her to a much greater extent than

formerly. Apparently they had become a fixed idea and were persistent.

Her disordered state had seemingly become chronic. In short, judged bycomparison with the attitudes and capacities of a normal person she had

become more abnormal.

Windeyer ] then passed to the question whether this aggravation or deterioration

was contributed to by her employment. He said: a2

At 639-640.At 640.

At64l.At 641-642.

39

40

47

42

SC:AP 29 IUDGMENT

55

56

This requirement of the Act is not satisfied by showing only that a worker

suffering from some disease would or might have suffered less severely if he

had notleen employed at all. When the Act speaks of "the employment" as

a contributing factor it refers not to the fact of being employed, but to what

the worker in fact does in his employment. The contributing factor must inmy opinion be either some event or occurrence in the course of the

eáployment or some characteristic of the work performed or the conditions

in which it was performed. In this case it was said that the employment was

a contributing fãctor in the worsening of the disease, because the applicant

focussedæ heráelusions of pain and discomfort upon her right side which she-believed

she had hurt when lifting a tea chest in the course of her work' Aminor physical strain she magnified in her irrational imagination into aserious-and continuing derangement of her internal organs. The incident

directed, or re-directeã, her hypochondriacal attention to her abdominal

muscles. But said the appellant, all that it did was to focusaa her existing

delusional tendencies inãparticular way: it was a cause of her condition

only in the sense that it acted as a Plecipitant. That may be true:

nevertheless, Doctor Ellard agreed that "something obviously happened inDecember to her to cause a change in her way of life".

The question involved is difficult. Can the event to which a disordered mind

irratiãna[y attributes physical suffering, that is real to the patient but

delusionaí, be properly called a contributing factor? Ordinary concepts- of

cause and consãqtìt ""

are perhaps not applicable. Yet it seems to me that

the incident which precipitated or stimulated, however irrationally, the

worsening of her cond.ition could be regarded as a factor contributing to it.

It was saù that in any event shd might have broken down sooner or later:

that some other incident might have provi ded a focusas for her delusions. But

it was this event at work that in fact did so'

In Commonu)ealth Bønking Corporøtion a Perciuøl+o the Full Court of the Federal Court

said that it was "fundamental to compensation law that a symptom of an injury or a

disease is a part of the condition in respect of which compensation for incapacity is

grarlted". The Court gave the example of pain, which the Court described as

"probably the most common symptom of injury or disease" artd as being, equally,

"the most common factor leading to compensable incapacity".a7 The Court cited

Semlitch as establishing that, in the case of a functional or mental illness, "the

underlying illness was not separable from its symptoms"'48

For a mental injury to "arise out of or in the course of any emPloyment", it may be

My emphasis.My emphasis.My emphasis.(1988) 20 FCR 176,L80.rbid.rbid.

43

M

45

46

47

48

SC:AP 30 JUDGMENT

necessary that there be "teal", as distinct from "imagined", events or circumstances

at work which contribute to the worker's injury.ae Flowever, as was held by the New

South Wales Court of Appeal in State Transit Authority of New South Wøles a

Chemler,so the "egg shell psyche" principle may apply. Hence a misperception by the

worker of the relevant events or circumstances will not necessarily disqualify him or

her. In St Møry's School p Askwith,sl a decision of the Victorian Court of Appeal, these

principles, which were common ground between the parties, were accepted as being

correct and as being applicable to the facts of that case. They were again accepted by

the New South Wales Court of Appeal in Commissioner of Police a Dølziel.s2 As Basten

JA said in Støte Trønsit Authority of New South Wøles a Chemlers3, in contrast to

discrimination law, the proper focus in this context is the consequence of conduct on

the claimant and not, even in a limited sense, the motivation, intention or other

mental state of the co-worker or supervisor. Even if the plaintiff's claim in the

County Court could be characterised as a "stress claim" for the purposes of s 82(2,A)

of the Accident Compensøtion Act 1985, nevertheless the relevant defendants have not

suggested that the defence of reasonable employer action provided for in that section

stands in the way of the grant of the relief sought by the plaintiff in the proceedings

before this Court.

The second medical nanel's findinss relatins to the nlaintiff's oersonalitv disorder

57 As its statement of reasons indicates, the second medical panel apparently accepted

the factual history given to it by the plaintiff. It recited that history in detail and said

little or nothing to indicate non-acceptance of any part of it, although it also took into

account the mental state examination carried out by members of the panel and the

opinions and diagnoses of other medical practitioners contained in the voluminous

material transmitted by the County Court judge.

4s State Transit Authority of Nezu South WøIes o Chemler 120071NSWCA 249,132l-1561 per Spigetm* CI,

Í671-Í691per Basten JA and [70] per Bryson AJA.s0 lbid.51 [2011]VSCA 90,1121.52 [2011] NSWCA 290,[25]-1261.53 Í20071NSWCA 249 Í691.SC:AP 31 JUDGMENT

58

59

60

The plaintiff's history included instances of the plaintiff having engaged in

disordered and aggressive behaviour from childhood. The panel obviously saw this

as significant. According to the Diagnostic and Statistical Manual of Mental

Disorders, 4th Edition (DSM-IV), the authoritative work published by the American

Psychiatric Association to which the panel referred in diagnosing the plaintiffsa, early

manifestation is a feature of all personality disorders. Contrary to the submissions of

the relevant defendants, it is plain that the second medical panel concluded that the

plaintiff had had a personality disorder (of the diagnosed type) prior to the

happening of the events in question at National Mutual/Nexis/Suncolp Metway.

The plaintiff's histoty, as accepted by the second medical panel, also indicated that

there were actual events and circumstances at work to which, rightly or wronglY, the

plaintiff took exception.ss At National Mutual, at the end of 1993, two other workers

got a better appraisal and better pay than the plaintiff did. The plaintiff "disagreed

with this, and wanted it corrected. He did not sign the appraisal, and felt that he

was being blamed for other peoples' errors". The plaintiff was deliberately not

working hard in l994because he was "unhappy with the appraisal". This was partly

to "get at" his employer for the negative appraisal. There was a significant

controversy between the plaintiff and National Mutual over his claimed redundancy

entitlements when Nexis was purchased by Suncorp in September/October 1994.

After the takeover, the plaintiff was again disappointed when he was denied a Pay

rise. In April L995 he "was angry" because contract workers were being paid more

than him and because he was not given a work contract. These things upset him so

much that he attended his GP and was given three days off work.

Between February and ]une 1995, the plaintiff began to imagine attacking his former

manager at National Mutual with a knife or hammer. This occurred when the

plaintiff tried to get to sleep at night. In October 1995 he saw the psychiatrist,

During the hearing, counsel for the relevant defendants invited me to have regard to the provisions of

DSM-IV for another purpose: see transcript 142.

Cf St Mary's School a Ashwith t20111 VSCA 90 [12]; Stnte Transit Authority of Nezu South Wales a Chemler

l2017l NSWCA 249 at Í551, 169l; Commissioner of Police a Dølziel [2011] NSWCA 90 126l-1271per Basten

|A (dissenting).32 IUDGMENT

54

55

SC:AP

Dr Cooper, and told him about his thoughts of violence. He began thinking of acting

on his violent thoughts towards his former employer from about March 1996. He

did not wish to be caught if he carried out any murders and so began reading

forensic science books. He left Suncorp/Metway in April 1996 partly in order to take

legal action against his former employer. Although he did other work for some five

years thereafter, he was continuing to think of taking legal action. He returned to his

GP in November 2000 and told him of his thoughts of killing people. He had not

worked after returning to Australia from the UK in February 2002. Because of his

thoughts of "killing people at wotk" he thought it was best not to go. He also

wanted to use the WorkCover process against National Mutual. He had spent much

of his time since 2002 pursuing his legal claim. He still had thoughts of killing

people. He " could not go ønd work now becøuse he would not be able to handle his thoughts

øt work, he would not be able to concentrate, and he also needs time to get National

Mutual to correct their mistakes".56

61 The panel found that the plaintiff's current "symptoms" included:

Mood variation when he thought of his WorkCover /IegaI issues; ando

Ongoing thoughts of killing people when the ideø of work comes up. Sometimes

this reløted to former mønøgement øt Nøtionnl Mutuø\.s7 He would like to

bankrupt National Mutual by killing people who had taken out life insurance

with it.

62 The panel expressly accepted that the plaintiff was upset by the changes at his place

of employment between 1994 and 1996, noting that he had attended medical

practitioners at that time. On the other hand, the panel observed that the plaintiff

had been able to stay at work during that period and had remained in gainful work

both in Australia and United Kingdom until late 2001.

63 The panel said that it took into account that the plaintiff had reported the onset of

My emphasis.My emphasis.

o

56

57

SC:AP 33 JUDGMENT

violent and revengeful fantasies from about mid-1995 and that he had thought of

acting on this from about March 1996. The panel also took into account "the

Plaintiff's intense sense of injustice, the sense of entitlement".

64 Next, the panel set out its diagnosis of the plaintiff (to which I have already referred),

to wit:

The Panel concluded that the Plaintiff suffers from a Personality Disorder

Not Otherwise Specified, (DSM IV) with features of a paranoid personality

disorder, antisocial personality disorder, and narcissistic personalitydisorder.ss

It is common ground that the reference to DSM IV was a reference to the above

mentioned Diagnostic and Statistical Manual of Mental Disorders, 4th Edition,

published by the American Psychiatric Association. It follows that, on the panel's

findings, the plaintiff was suffering from a recognised mental health disorder before

and at the time of his examination by the panel in2007.

65 Indeed, after setting out its diagnosis, the panel mentioned that it had considered the

possibility that the plaintiff might even have a psychotic disorder. In this regard the

panel mentioned particularly the plaintiff's "continuing rumination in relation to

potential work situations and his stated intentions to kill employees of his former

work place". The panel concluded that "elements of a border line psychotic state

were probably present, but a formal diagnosis of a paranoid psychotic disorder

could not be substantiated".

66 As already mentioned, the panel went on to accept that in L995 the plaintiff had had

an adjustment disorder which developed in response to work place stressors at that

time. Flowever, as has also been mentioned, the panel concluded that the

Adjustment Disorder developed independently of the personality disorder and that

the former "resolved shortly after the time the Plaintiff ceased his employment (as

this was the stressor causing his Adjustment Disorder) with Suncorp/Metway in

April 1996. ... ".

58

SC:APCB 447,

34 JUDGMENT

67

68

69

Flowever that may be, the panel clearly accepted that the plaintiff began to have

"violent and revengeful fantasies" about National Mutual and its staff in the first

half of 1995 and that he began to think about acting on those fantasies from April

1996. The panel described these "violent and revengeful fantasies" as "symptoms of

his Personality Disorder and not of his Adjustment Disorder". It went on to refer to

the plaintiff's "continued sense of injustice for the events at work". It accepted that

the nature and extent of the plaintiff's Personality Disorder was such that he was

"not capable of performing any work".

Nevertheless, as mentioned above, the panel concluded that the plaintiff's

employment "had no effect on his Personality Disorder". It sought to explain this

conclusion by saying that the plaintiff's continued sense of injustice for the events at

work" was "merely a focus of his Personality Disorder and not a cause or an

aggravating factor". On this basis the panel determined that the plaintiff's

Personality Disorder was not related to his employment. It followed, the panel said,

that the plaintiff "has no present inability to return to pre-injury employment arising

from an injury". That last conclusion is, of course, reflected in the panel's answer to

question 3.

disease: "exacerbation" of a mental dísorder

I am satisfied that the second medical panel failed to appreciate that, for the

purposes of workers' compensation law, a mental disorder is not separable from its

symptoms. On the panel's own findings, from mid 1995 the symptoms of

Mr Clarke's personality disorder included "violent and revengeful fantasies" with

respect to the staff at National Mutual. Previously, Mr Clarke had not experienced

any such fantasies. The violent and revengeful fantasies represented new symptoms

of the personality disorder. Th"y were so intense that Mr Clarke could no longer

perform any work. As he submits, his experience of the personality disorder was

thus "increased or intensified by an increase or intensifying of its symptoms".se On

59

SC:APSubmissions, para2l

35 JUDGMENT

70

71.

72

the authority of Semlitch, that necessarily amounted to an "exacerbation" of his

personality disorder, if not also an "aggtavation" or "deterioration" of it. The

panel's failure to recognise this represented an error of law.

The significance of the error

The error made by the panel, being an error of law on the face of the record, will be

sufficient to warrant the setting aside of its opinion if and to the extent that its

opinion might have been different in the absence of the error.60

In my view, if the panel had appreciated that the plaintiff's violent and revengeful

fantasies amounted to an exacerbation of his personality disorder, the panel might

well have incorporated, expressly or impliedly, a finding to that effect in each of its

answers to the four referred medical questions.

Further, if the panel had appreciated that there had been an "exacerbation" of

Mr Clarke's mental disorder, the panel might well have proceeded to find that the

exacerbation had occurred in the course of, or had arisen out of, the plaintiff's

employment and also that the employment was a significant contributing factor to

the exacerbation. After all, the violent and revengeful fantasies began while the

plaintiff was at work at National Mutual. Moreover, these disordered thoughts of

the plaintiff sprang from resentment on his part with respect to actual events that

occurred at work at National Mutual.61 To use the panel's own expression, the

events at work were a "fioclJs" of the plaintiff's disordered thoughts.ez It is not

necessary for this Court to determine whether or not the panel would have been

bound to determine that the exacerbation was work-related (in a relevant sense),

although on the facts found by the panel itself, it is strongly arguable that the panel

would have been so bound. Flowever that may be, it cannot be doubted that, if the

panel had directed itself properly in law, the panel might have determined that the

exacerbation was work-related.

Pmsu a County Court of Victoria l20t3l VSC L43 [68] (Emerton D.Cf St Mary's School a Askwith [2011] VSCA 90 [3], ln-í71,Í201-Í21l,l4rl-1471.Compare Semlitch (1964) 1L0 CLR 626,636,647-642 per Windeyer J (passages set out above).

36 JUDGMENT

60

61

62

SC:AP

73

74

75

Contrary to the relevant defendants' submission, I consider that, if the panel had

accepted that the plaintiff had suffered an exacerbation of his personality disorder -and all the more so if the panel had gone on (as would have been likely) to

determine that the exacerbation was work-related - the panel, quite properly, might

then have answered each of the four referred questions quite differently and in a

way considerably more favourable to the plaintiff.

As to question L, it is true that the wording of the question largely followed the

language of the particulars of injury contained in the FASC and, accordingly, that

question 1 does not expressly ask about a personality disorder. Hence I

acknowledge that, on any view of the law, it would have been open to the panel to

answer question 1 in the very words which it did happen to use for that purpose.

The relevant defendants go further and submit that the panel was confined to such

an extent by the language of question 1 that the panel could not lawfully have

included in its answer to that question any reference to the plaintiff's personality

disorder. I do not accept that submission. Question L is not so tightly drafted.

Indeed it is not very clearly expressed at all. I think that question L left room for the

panel to include in its answer a statement - if only for the avoidance of doubt or by

way of clarification - to the effect that the plaintiff did indeed have a "pre-existing

psychological ailment", namely a personality disorder, and that the plaintiff was

suffering from an exacerbation of that disorder manifested by violent and revengeful

fantasies relating to National Mutual. To that extent, the panel's answer to question

1 might have been different in the absence of the error of law.

Question 2 is a lengthy question of numerous parts. Instead of simply answering

"No" to both Part (a) and Part (b), the panel, in the absence of the error of law, might

properly have framed its answer on the basis that the exacerbation of the plaintiff's

personality disorder amounted to a "similar injury" within the meaning of

subparagraph (z) of sub-questions 2(a) and 2(b). And, given the strong work place

connections, the panel could properly have indicated in its answer that the plaintiff's

employment with one or more or all of the relevant defendants was a significant

'37 JUDGMENTSC:AP

76

77

78

contributing factor to the exacerbation

Question 3(a) inquired as to whether the plaintiff had a "current work capacity".

The definition of that term in the Act is set out above. Question 3(b) inquired as to

whether, if the plaintiff did not have a current work capacíty, the plaintiff was likely

to continue indefinitely to have no current work capacity. As already mentioned, it

is common ground that these questions were of general application. Given the

panel's finding that the plaintiff was unable to perform any work at all, the panel

could simply have answered question 3(a) "No" and question 3(b) "Yes". Instead,

the panel answered question 3(a) by saying that the plaintiff "has no present inability

to return to pre-injury employment arising from an injury" and it answered question

3(b) by saying "Not applicable". Even if question 3(a) had been framed in a

narrower fashion such that an answer of the kind given by the panel would have

been fully responsive, the panel's error of law would still have vitiated its answer.

The answer was based on the panel's conclusion that the plaintiff was not (any

longer) suffering from an "injury" within the meaning of tlne Accident Compensøtion

Act 2005. Flowever, for the reasons already given, the panel might have arrived at a

different conclusion, and might therefore have given a different answer, if it had

appreciated that an intensification of the symptoms of a mental disorder amounts to

an exacerbation of the disorder, and thus to an injury, within the meaning of the Act.

Of course, because the answer to question 3(a) is vitiated, so also is the answer to

question 3(b).

Question 4 is also linked to the answer to question 3(a). If question 3(a) had been

answered "No", as it might have been, then, instead of answering question 4 by

saying "Not applicable", the panel could properly have answered question 4 by

saying that the plaintiff's incapacity for work resulted from or was materially

contributed to by an injury consisting of an exacerbation of the plaintiff's pre-

existing personality disorder.

It is inherent in what I have already said that I do not accept the relevant defendants'

submission that the panel's error of law was of no consequence. In my view, in the38 IUDGMENTSC:AP

absence of the error of law, the panel might legitimately have answered each of the

four questions differently and in a way that was more favourable to the plaintiff. I

would accept that, generally speaking, a medical panel should answer only the

questions put.6¡ I accept that, in interpreting a medical question referred by a court,

it is legitimate to take into account the terms of the pleadings in the court. However,

I do not accept the relevant defendants' submission that a medical question that

travels beyond the current pleadings can never be validly asked. I see nothing to

support that submission in the definition of "medical question" or in s 67 of the

Accident Compensation Act 1985 (being the provisions to which the relevant

defendants have referred in this context).6a In the present case, both sides agreed to

the inclusion in the second medical question of the expression "a similar injury".

That expression does not appear in the FASC. Plainly, its inclusion in the second

medical question takes that question and, in consequence, question 4, beyond the

pleadings.

79 Further, it seems to me that the present submission of the relevant defendants is hard

to reconcile with the submission which they reportedly made to the County Court

judge in the course of opposing the plaintiff's application for leave to send a further

referral to the medical panel and for leave to amend the FASC. According to the

judgment of Hansen AfA (as his Honour then was) in Clarke v NøtionøI Mutuøl Life

Assurønce Ltd65, counsel for the relevant defendants had submitted to the County

Court judge that the amendment should not be allowed because it would have no

utility and was likely to cause waste, delay and embarrassment, for several stated

reasons. The stated reasons included that the extant opinion of the second medical

panel had disposed of all of the medical questions sought to be asked by the

proposed further referral and had also disposed of the fresh allegations of an injury

of "personality disorder not otherwise specified". Thus (the relevant defendants

submitted to the County Court judge) the further referral would be otiose (to the

63 The plaintiff himself makes that very point in another context in paragraph 25 of his writtensubmissions (CB 656), relying upon Dl Genoaa a Lefkoaits 120041VSC 491 at [31]-[32] (Kaye ].64 See esp. panL9 of the relevant defendants' written submissions (CB 666-667).

6s [2010] VSCA a3 atl23l-l2al.SC:AP 39 JUDGMENT

80

81

82

83

extent the answers were the same as those already given), or embarrassing to the

Court (if different answers were received, both of which were binding on the same

issue). Apparently, it was further submitted that the answer to question 3(a)

determined that Mr Clarke had no compensable injury at all. It was said that the

balance of the further questions proposed to be referred had already been answered

and that there was therefore no utility in asking the further questions. The relevant

defendants cannot have it both ways.

In my opinion, the entirety of the panel's opinion is vitiated by the error of law made

by the panel.

Insufficient and unresponsive answers

Strictly speaking, it is unnecessary to say any more about the grounds of review that

separately allege that the answers contained in the panel's certified opinion are

insufficient or unresponsive to the questions asked.

For completeness, however, I indicate that I do not uphold the grounds of this

character that relate to questions L and 2. I do not accept that the panel was obliged

to be any more specific than it was in its answers to those questions. The answer

given to question L could have been more detailed and could have included

qualifications, but the same were not mandatory. The answer given is sufficiently

responsive to every aspect of question L. The answer given to question 2(a) is,

simply, "No". I would read that answer as expressing a negative response in

relation to each and every part, and each and every combination of parts, of question

2(a). That, too, is sufficient. The same goes for question 2(b).

On the other hand, as mentioned alread/, it is common ground that the panel failed

to appreciate the full scope of questions 3 and 4. However, had it not been for the

panel's errot of law, I would have declined to grant any relief in relation to the

panel's answers to questions 3 and 4. I would have accepted the relevant

defendants' submission that there would be no utility in quashing the answers to

questions 3 and 4 because the panel's answers to questions L and 2 would have

40 JUDGMENTSC:AP

defeated the plaintiff's claim in any event.

Conclusion and orders

84 For these reasons, I propose to order, in proceeding no 4569 of 2008 (the Order 56

proceeding) that the entirety of the certified opinion of the medical panel dated 30

November 2007 be quashed. I will reserve liberty to the parties to apply, within 28

days, for any order they may consider to be needed to correct the name of the

firstnamed defendant or the name of the secondnamed defendant.

85 I will hear the parties as to what order should be made to dispose of proceeding no

4554 o12008 (the Administratiue Løut Act 1978 proceeding).

86 I will also hear the parties as to costs, including the costs of the proceeding under the

Administrøtiae Løut Act L978.

CERTIFICATE

I certify that this and the 40 preceding pages are a true copy of the reasons for

Judgment of Cavanough J of the Supreme Court of Victoria delivered on l-0

October 2013.

DATED this tenth day of October 2013.

IOOUR O¡

SC:AP 41 JUDGMENT