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  •   Notable Unreported Decision

Maher v General Medical Assessment Tribunal (Psychiatric)

 

[2003] QCA 517

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Maher v Dr Lawrence, Dr Hayes & Dr Coghlan as members of the General Medical Assessment Tribunal (Psychiatric) & Ors [2003] QCA 517

PARTIES:

JOHN JOSEPH MAHER

(applicant/appellant)

v

DR LAWRENCE, DR HAYES AND DR COGHLAN AS MEMBERS OF THE GENERAL MEDICAL ASSESSMENT TRIBUNAL (PSYCHIATRIC)

(first respondents)

DR SAINES, DR OHLRICH AND DR MERRY AS MEMBERS OF THE NEUROLOGY/NEUROSURGICAL ASSESSMENT TRIBUNAL

(second respondents/respondent)

WORKCOVER QUEENSLAND

(third respondent/respondent)

FILE NO/S:

Appeal No 4806 of 2003

SC No 3148 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2003

JUDGES:

de Jersey CJ, Williams JA and Mullins J

Judgment of the Court

ORDERS:

  1. Allow the appeal
  2. Set aside the decision of the Neurology/Neurosurgical Assessment Tribunal made on 14 March 2001
  3. Remit the reference to the Neurology/Neurosurgical Assessment Tribunal to a differently constituted Tribunal to be dealt with according to law
  4. Order the respondent WorkCover Queensland to pay the appellant’s costs of and incidental to the appeal, and the application under the Judicial Review Act, to be assessed

CATCHWORDS:

WORKERS’ COMPENSATION – WORKERS’ COMPENSATION – “INJURY” – WHAT CONSTITUTES INJURY – where appellant suffered oxygen deprivation in course of employment – where appellant sought damages certificate from WorkCover Queensland in pursuit of claim for damages against employer – where WorkCover Queensland referred question whether neurological “injury” had occurred to Neurology/Neurosurgical Assessment Tribunal – where Neurology/Neurosurgical Assessment Tribunal determined that no neurological “injury” had occurred – whether a neurological “injury” had occurred

Judicial Review Act 1991 (Qld)

WorkCover Queensland Act 1996 (Qld), s 34, s 40, s 41, s 43, s 259, s 265, s 324, s 325, s 437, s 440, s 442

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, considered

COUNSEL:

K D Dorney QC, with P L Feely, for the appellant

D O J North SC, with S A McLeod, for the respondents

SOLICITORS:

Ferguson Cannon O’Connor for the appellant

Bradley & Co for the respondents

  1. THE COURT:  The appellant suffered oxygen deprivation while cleaning an acid storage tank in the course of his employment at Tarong Power Station on 24 July 1997.  He was consequently absent from work for the next five days, then returned to work and continued in his occupation for two to three years. 
  1. Wishing to pursue a claim for damages against his former employer, the appellant applied to the third respondent (“WorkCover”) for a damages certificate under s 265(2) of the WorkCover Queensland Act 1996.  As obliged, he applied in the approved form, describing the nature of his injury as “psychological injury, hypoxia, acid burns”, attributing the hypoxia to “whole body” and the acid burns to his face. 
  1. WorkCover referred to the second respondent, the Neurology/Neurosurgical Assessment Tribunal (“the Tribunal”), the questions “whether the matters alleged for the purpose of seeking damages constitute an injury … and, if so, the nature of the injury” (s 440(2)); and “whether the worker has sustained a degree of permanent impairment”, and if so, “the degree of permanent impairment resulting from the injury” and “the nature and degree of the impairment” (s 442(2)). That is to be taken as a reference of any neurological injury. Any psychiatric injury was referred, separately, to the General Medical Assessment Tribunal (Psychiatric).
  1. The hearing before us proceeded on the basis that insofar as the form described any neurological injury, that was confined to the reference to hypoxia, although it was conceded (for the appellant) that is a phenomenon not an injury.
  1. For purposes of s 440(2) the term “injury” carries its meaning under s 34(1), that is, “personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury”.
  1. The Tribunal’s determination, and its reasons for arriving at that conclusion, were expressed as follows:

“The Tribunal determined that:

  1. The matters alleged for the purpose of seeking damages do not constitute an injury.

The Claimant suffered oxygen deprivation when he was working in a closed acid tank on 24 July 1997.  His memory was impaired for subsequent events for a short period.

The Claimant was off work for five (5) days and then returned to work where he continued for three (3) years.

During this period, the Claimant noted memory impairment, anxiety and depressive symptoms.  Also during this period, the Claimant was drinking alcohol heavily.  The Claimant was made redundant in late 2000.

On examination, there was impairment of memory and cognitive function.  There were signs of cerebellar impairment in arms and legs and his gait was unsteady.  There was evidence of a peripheral sensory neuropathy.

The Tribunal considers that the Claimant’s neurological impairment is due to the effects of excess alcohol intake.  It does not consider that it is due to the incident of oxygen deprivation in July 1997.”

  1. The appellant applied to the court, under the Judicial Review Act, for an order setting aside the determination of the Tribunal, on various grounds, all of which the learned primary Judge rejected. 
  1. The Tribunal appears to have identified, as the relevant “matters alleged” in the form submitted to WorkCover under s 265(2), the hypoxia, taken with what were claimed to be the appellant’s enduring neurological difficulties. It appears the Tribunal considered it had to determine whether the appellant’s neurological deficiencies, apparent as at the date of the Tribunal hearing, were attributable to the incident which occurred on 24 July 1997. The Tribunal came to the conclusion that the cause of the neurological impairment evident as at the date of the hearing (and examination by Tribunal members) was, in fact, excessive intake of alcohol. Accordingly, that neurological impairment did not, in the Tribunal’s view, amount to “personal injury arising out of, or in the course of, employment [with] the employment [being] … the major significant factor causing the injury”.
  1. The question the Tribunal does not appear to have addressed is whether or not there was any neurological impairment consequent upon the insult to the appellant’s body by the events which occurred in the course of his employment on 24 July 1997.
  1. The Tribunal does appear to have recognised that there were some consequences which could have had neurological implications; in its reasons the Tribunal recorded that “memory was impaired for subsequent events for a short period”.
  1. The learned primary Judge, after noting that finding by the Tribunal, said this:

“… the Tribunal has found that the incident, including the oxygen deprivation, did cause some injury.  I think that is correct … if the Tribunal was obliged to determine whether there was an injury constituted by this loss of memory of subsequent events for a short period, then the decision fairly reveals that it made a finding of an injury in that sense, and that the employment was the factor causing that injury.  In terms of the reference under s 442 the Tribunal has obviously seen such an injury as not involving any degree of permanent impairment, for this particular impairment was for but “a short period”.  The result is that if the Tribunal was obliged to characterise this short term memory impairment as a distinct injury, it did so and expressed its findings sufficiently to discharge its function under s 440 and s 442.”

  1. The appellant submitted before this court that the Tribunal should have been directed to address expressly the issue of injury, in relation to that short term disability, and its permanency or otherwise. As it was put:

“The learned primary judge should … have made orders directing the [Tribunal] to determine that:

(a)the matters alleged for the purpose of seeking damages do constitute an injury;

(b)the nature of such injury is a loss of memory of subsequent events for a short period, resulting from oxygen deprivation; and

(c)(arguably) such injury has not resulted in any degree of permanent impairment.”

  1. Mr Dorney QC, who appeared for the appellant, demonstrated, first, that an assessment of nil permanent disability would not exclude the possibility of court proceedings for damages in respect of an injury; and second, that court proceedings are permissible only if the claimant has an unconditional damages certificate. It is necessary to mention a number of the provisions of this not uncomplicated statutory scheme.
  1. It is s 265 which provides that a person in the position of the appellant may seek damages in a court proceeding only if WorkCover has given an unconditional certificate. WorkCover must do so if satisfied that the worker has sustained an “injury”, and the worker’s degree of permanent impairment has been assessed (s 265(3)).  It appears that may be “assessed” at zero:  cf. s 259(4).  Determination of those issues – injury, permanency – can be referred to a tribunal (s 437).  Here the reference was made under s 437(c) and (ea).  The Tribunal thereby became obliged to determine whether the matters alleged constituted an injury, and if so its nature (s 440); and whether the worker had sustained a degree of permanent impairment, and if so, its nature and degree (s 442).  If the degree of permanent impairment were to be assessed at zero, then the injury would be classified as a “non-certificate injury” (s 43 read with ss 40 and 41), with the consequence that, generally speaking, no order as to costs could be made in any subsequent court proceeding (ss 324, 325). 
  1. Mr Dorney submitted that the Tribunal erred in law, by addressing the longer term neurological impairment as if it constituted an injury, rather than by identifying any injury as being confined to the effect on the appellant of the hypoxia, which was loss of consciousness. That, he submitted, was the only relevant injury. He then submitted the Tribunal should have determined that was an injury within the meaning of the Act and should, if so minded, have gone on to specify there was nil permanent impairment.
  1. The formal finding of an injury, being loss of consciousness, would then have facilitated the appellant’s later bringing a damages claim in the court, in which however he would – on Mr Dorney’s submission – have been able to agitate afresh which of the subsequent neurological consequences should be attributed to that particular injury, unconstrained by the Tribunal’s conclusion that the longer term consequences were referable to alcohol and not the incident at work. The Tribunal’s finding as to the degree of permanent impairment would have consequences only in relation to costs (s 325).
  1. In the absence of an express finding by the Tribunal as to injury and permanency, there is no realistic prospect of the appellant’s gaining the requisite unconditional certificate under s 265(5), so that he would have no capacity to mount a court claim for damages. Mr Dorney submitted the court should have rectified this omission by itself making the findings, or alternatively it should have remitted the matter to the Tribunal for determination according to law.
  1. The court can safely proceed on the basis that, as a result of external events, the appellant did lose consciousness (cf. the neurologist Dr Todman’s report of 11 September 2000), and that the loss of consciousness amounted to an injury.  It amounted to an injury because it was “a sudden or identifiable physiological change”, in terms of Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, 298, 300, 306. 
  1. The Tribunal’s reasons are to be read as involving a finding that the appellant was injured on 24 July 1997 when he lost consciousness, with consequent memory loss over a short period. The Tribunal has not however made any assessment of the neurological impairment, if any, associated with that injury. Rather, as noted above, the Tribunal concluded that the longer term neurological impairment observed as at the date of the hearing was caused by the excessive intake of alcohol and was not employment related. The learned primary Judge therefore erred in concluding that the finding of the Tribunal in relation to the injury of loss of consciousness with consequent memory loss over a short period was sufficient to discharge its function under s 440, when there was not determination of the Tribunal to that effect.
  1. In order to identify clearly the work-related injury, which was strictly the loss of consciousness experienced on 24 July 1997, it would be necessary to describe that injury in such a way as to distinguish it from the later alcohol induced disruption. The relevant injury could perhaps be described as “a loss of consciousness experienced on 24 July 1997, with consequent memory loss of short duration, lasting approximately five days”. The reference to consequences would thereby form a necessary part of the identification of the injury, serving to distinguish it from that suffered later on.
  1. It may be suggested that because the appellant did not, in his form submitted to WorkCover, in terms include the only neurologically relevant injury, that is, loss of consciousness, among “the matters alleged for the purposes of seeking damages”, the findings should necessarily have been that those matters which were specified (and arguably neurological) did not constitute an injury. But what was specified included the hypoxia, in which the appellant should be taken to have included the loss of consciousness which was its immediate consequence. A narrow approach to the form would be out of place.
  1. In the circumstances it is not for this court to make a finding as to the neurological impairment, if any, associated with the initial injury. That is a matter for determination by the expert Tribunal. It may well be that the Tribunal would on further review conclude that the only relevant neurological injury was the loss of consciousness leading to memory loss over some five days; it may well be that in those circumstances the Tribunal would find nil permanent impairment. But, as already noted, those matters are for the Tribunal and not this court finally to determine.
  1. We were informed findings favourable to the appellant have been made by the General Medical Assessment Tribunal (Psychiatric) and the appellant should not be denied the opportunity of adding a neurological claim to any proceeding commenced in respect of his other injuries (including the burns to his face), if the Neurology/Neurological Assessment Tribunal in properly addressing the reference to it were to make a finding that the appellant had suffered a neurological injury as a result of the events on 24 July 1997.
  1. The following orders should be made:
  1. allow the appeal;
  1. set aside the decision of the Neurology/Neurosurgical Assessment Tribunal made on 14 March 2001;
  1. remit the reference to the Neurological/Neurosurgical Assessment Tribunal to a differently constituted Tribunal to be dealt with according to law;
  1. order the respondent WorkCover Queensland to pay the appellant’s costs of and incidental to the appeal, and the application under the Judicial Review Act,  to be assessed.
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Editorial Notes

  • Published Case Name:

    Maher v Dr Lawrence, Dr Hayes & Dr Coghlan as members of the General Medical Assessment Tribunal (Psychiatric) & Ors

  • Shortened Case Name:

    Maher v General Medical Assessment Tribunal (Psychiatric)

  • MNC:

    [2003] QCA 517

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Williams JA, Mullins J

  • Date:

    21 Nov 2003

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status