Irhazi v Workers Compensation (Dust Diseases) Board [2002] NSWCC 29 (26 April 2002)

Last Updated: 12 June 2002

NEW SOUTH WALES COMPENSATION COURT

CITATION: Irhazi v Workers Compensation (Dust Diseases) Board [2002] NSWCC 29


PARTIES:
Marton Irhazi
Workers Compensation (Dust Diseases) Board of New South Wales
The Medical Authority appointed under the Workers Compensation (Dust Diseases) Act 1942


CASE NUMBER: 8887 of 2001 of 2002.00


CATCH WORDS: Elements of Workers Compensation


LEGISLATION CITED:


CORAM: Bagnall AJ

DATES OF HEARING: 17/12/01-19/12/01, 08/02/02, 26/04/02

DECISION DATE: 26/04/2002


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr M J Joseph SC and Mr R A O'Keefe instructed by Alex Stuart & Associates
FOR RESPONDENT: Mr M J Neil QC and Mr A C Scotting instructed by Goldrick Farrell Mullan


JUDGMENT:

Introduction

1. The appellant Marton Irhazi appeals from a decision of the Workers Compensation (Dust Diseases) Board of New South Wales and The Medical Authority appointed under the Workers Compensation (Dust Diseases) Act 1942.

2. The appellant attached to the Application for Determination a letter from the Workers’ Compensation (Dust Diseases) Board dated 20 November 2001 which states the Authority’s opinion that Mr Irhazi does not have mesothelioma and further states that -

the Medical Authority has signed a certificate of non-disablement with a certification that Mr Irhazi has pleural plaques.

3. The appeal has been heard over three days on 17, 18 and 19 December 2001 after the end of term as an urgent matter. Legal argument continued on 8 February 2002.
Proceedings so far

4. Evidence has been called from the appellant and from various medical witnesses for the appellant and a lay witness has been called for the respondents and video footage shown.

5. The respondents wish to call in their case evidence from Dr J Lee whose report is before the court VD1. The respondents also wish to call the evidence of two other specialists, who, together with Dr Lee, constituted the Medical Authority. As a matter of convenience hereafter the judgment will refer to Dr Lee, but the issue determined in this judgment also applies to the evidence of the other two doctors.

6. It was properly foreshadowed by Mr M Joseph SC for the appellant that objection would be taken to the calling of Dr Lee to give evidence before me as that doctor sat on the decision of the Medical Authority. A second basis for objection was adumbrated which related to the attendance by Dr Lee at a conference with counsel for the respondent in the preparation of the case and further to the manner in which a later report by Dr Lee came into existence.

7. At page 17, point 10 to point 19, of the transcript of 19 December 2001 the court outlined the two matters for legal argument. The court then, in effect, ruled that -

So that the matter can make some progress, we will deal with the first issue, that is the admissibility as it relates to the role that Dr Lee played on the Dust Diseases Board and the Medical Tribunal. If we need to, we will then progress on to the second issue. Once Mr Joseph has formulated his argument, it is proper that he should reveal what the particulars of that argument are so that there is not an ambush of the respondents.

Legal Arguments on First Issue

8. There followed legal argument by both counsel and this judgment deals with the first issue raised as the second argument has not been particularised or argued.

9. The matter proceeded on facts which are presently agreed between the parties, namely -
1. Dr Lee, who sat on this decision, was a member of the Medical Authority;
2. He remains a member of the Medical Authority;
3. He has given, subsequent to making his decision, a medico-legal opinion, which is contained in the report Exhibit VD1.

10. Mr Joseph SC, at page 20 of the transcript of 11 December 2001, noted that there were three arguments to be considered.
· The first argument related to what level of activity, if any, Dr Lee should partake in these proceedings.
· The second argument, one of more general application, is whether the court should accept him as an expert.
· The third argument is whether, for either or both of the above reasons, the court should reject his evidence as a matter of discretion.
Nature of process

11. The Medical Authority is set up under provisions of s 7 of the Workers Compensation (Dust Diseases) Act 1942. It is a Medical Board consisting of three legally qualified medical practitioners. As a matter of practice, the medical practitioners are eminent in the field of dust diseases. A certificate affecting the compensation of any person shall be issued only after consideration of the case has been given by the Medical Authority at a meeting at which at least two members are present. The Medical Authority has power to undertake such duties and make such examinations and furnish reports thereon as the Board or the Minister may require, and the certificate of the Authority is conclusive evidence as to the matters certified.

12. This process is to be compared with the Medical Panel under the Workplace Injury Management and Workers Compensation Act 1998, when prior to the most recent legislative amendment, the Compensation Court could require a worker, who claims compensation, or is in receipt of weekly payments of compensation, to submit himself for examination by a Medical Referee or Medical Panel in circumstances where there is clearly an issue in dispute between the parties before the court. Alternatively, under s 122, if there is a medical dispute, the Registrar of the Compensation Court must, on the application of either the worker or the employer, refer the medical dispute to a Medical Panel.

13. The Medical Panel under the Workplace Injury Management and Workers Compensation Act 1998, is only empowered to act if there is a dispute between the employer and its employee over a medical issue and either the court has referred the dispute, or an application has been made by the parties to refer the dispute.

14. The Medical Authority under the Workers Compensation (Dust Diseases) Act, makes a report in the form of a certificate after a request from a worker. There is at that time, no matter in dispute between the worker and his employer. The dispute arises if either party is aggrieved by the certificate.

15. The Medical Authority under the Dust Diseases legislation is constituted by the Statute itself. The learned author of the Mills Workers Compensation Second Edition 1979 at page 455 states -

The board under the Broken Hill Act is constituted by the Statute itself (s 3), whereas under this Act (Workers Compensation Act), individuals are appointed to the board from case to case by the Commission: a decision of the board is conclusive and binding on the Commission, which itself is a true court.

16. The learned author notes the different methods of appointment between the Broken Hill Act and the Workers Compensation Act.

17. I am satisfied that the appointment of the Medical Authority under the Workers Compensation (Dust Diseases) Act is similar to the provisions under the Workmens Compensation (Lead Poisoning - Broken Hill) Act 1922, rather than to the Workers Compensation Act.

18. Hennessy v The Broken Hill Proprietary Co Ltd [1926 [1926] HCA 32; 38 CLR 342] is clearly the leading authority on whether or not evidence of a member of the Medical Board who has examined the workman is admissible to prove the state of his health. The court held that such a witness was a competent and hence compellable witness but the judgments in the case do suggest some limits on this [Mills op cit p 454]. The nature of the activities carried on by the Medical Board are also outlined in Hennessy.

19. At 349, Knox CJ and others state -

Now, the members of the Medical Board are neither Judges nor Arbitrators: their functions are administrative and supervisory. To them is confided the duty of ascertaining and certifying whether a workman is or is not suffering from lead poisoning, and whether he should be removed from future exposure to its risks. It is impossible in those circumstances in our opinion to deny their competency as witnesses; but the extent to which they can give evidence of matters coming before them officially is another matter.

In our opinion the evidence tendered is admissible because it is not prohibited or privileged, because it does not seek to invalidate any act of the Board or to explain, contradict or vary any of its certificates or acts or to disclose the manner in which the Board exercised any of its functions, but because it merely seeks the disclosure of existing facts and symptoms and the opinion of the expert witnesses who happen to be members of the Board on those facts and symptoms.

20. The medical authority’s activities were also considered by the NSW Court of Appeal in Workers Compensation (Dust Diseases) Board v Veksans 32 NSWLR 221. At page 226F Kirby P states -

The provisions of the Act relating to the giving of evidence in relation to an application before the Board do not apply to the authority. That authority acts administratively. The worker (or the worker’s dependents) have no right of appearance. They cannot give evidence. They have no right of cross-examination. No record is made of what takes place at a meeting of the authority. The rules of evidence do not appear to be binding on it. It is said that it is not obliged to give reasons for its decisions.

21. I am satisfied that the Medical Authority by the method of its operation in meetings and the non-adversarial nature of its inquiry as outlined by Veksans has a function equivalent to the function of the Medical Board as described by the High Court in Hennessy, where its functions were also said to be administrative and supervisory.

22. The High Court in Hennessy limited the evidence that could be given by the members of the Medical Board to evidence that does not seek to invalidate any act of the Board or to explain, contradict or vary any of its certificates or acts or to disclose the manner in which the Board exercised its functions (page 349).

23. A more recent expression of the same principle is in Herijanto v Refugee Tribunal & Ors [2000] HCA 49; 170 ALR 379 where Gaudron J at 383 states -

There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, ‘the record’ bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.

24. In the minority decision in Hennessy, Higgins J at page 353 states -

... ... Dr Hains, a member of the Board, was called by counsel for the Company and he deposed that he made a full examination of Hennessy before the certificiate of 21 March 1924 and that he had come to a definite opinion on the question of whether the symptoms of lead poisoning had disappeared from the man. The Dr Haines was asked ‘What is your own personal opinion and conclusion upon the question as to whether or not the symptoms of lead poisoning had disappeared?’

Objection was taken to the question, and it was disallowed. Even if it were allowed, and if the answer were that the symptoms of lead poisoning had disappeared, it would not (as I have stated) fit the case. But in view of further proceedings I ought to add that in my opinion, there is no law which forbids such a question to be asked and to be answered by one who, as a member of a Board such as this Medical Board, has examined a man, provided that the question is relevant to the inquiry in which the question is asked (see Duke of Buccleuch v Metropolitan Board of Works (1872) L.R. 5 H.L. 418, O’Rourke v Commission of Railways NSW (1890) 15 App.Cas 371.

25. Mr Joseph SC’s submission that the Medical Authority is to be contrasted with the Medical Board in Hennessy is rejected. Thus Mr Joseph SC’s submission that the Medical Authority is much more like a judge or judicial power or at least an arbitrator, is also rejected.

26. In Farthing v James Ward & Co Ltd (1929) WCR 76 Perdriau J regarded himself bound by Hennessy’s case but expressed concern that every effort should be made to maintain the public confidence in and absolute impartiality of medical boards and he thought it undesirable that either party should call a medical referee who had acted in the case to give evidence in the same matter. But he acknowledged the binding authority of Hennessy’s case.

27. In Kamperogaines v North Broken Hill Ltd (1955) WCR 183 Dignam J described the functions of the Medical Board as quasi judicial and rejected the tender of the medical witness. His finding that the function was quasi judicial was in relation to a Medical Panel under the Workers Compensation Act, rather than to the Medical Authority established under the Dust Diseases legislation, and is not an authority that I choose to follow in light of Hennessy’s case.

28. The administrative character of the medical authority’s function, clearly distinguishes this case from the authorities relied on by the appellant in which the appeals were from quasi judicial bodies such as the Australian Broadcasting Tribunal and cases of a similar nature where a body, or authority, or tribunal, has heard a matter inter parties and one of the parties appeals, or brings some prerogative writ, and a court then determines the issue. In such appeals from the Australian Broadcasting Tribunal, the Tribunal ordinarily files a submitting appearance and leaves the real litigants to conduct the proceedings in an adversarial way.

29. The situation in the present instance is different. The worker is aggrieved by the decision of the medical authority and names that authority as one of the respondents to its appeal. Thus the administrative character of the medical authority’s functions distinguishes this case from those authorities relied on by the appellant. In addition, the fact that the Medical Authority is a party to this appeal also distinguishes this appeal from the authorities relied on by the appellant.

Nature of proceedings before the Court

30. Mr Joseph SC has submitted, page 17 of the transcript, that the members of the Medical Authority who made the decision which the court is reviewing, should play no active role in the appeal proceedings in which their decision is being reviewed on its merits. The nature of the proceedings before me was clearly defined by the Court of Appeal decision in Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221. It is a full appeal, that is, an appeal by hearing de novo (230D). The court further stated at 231 A -

The whole point of providing an appeal to a judge of the Compensation Court would seem to be to permit a consideration of the evidence and to provide a review on the merits.

31. In Veksans Kirby P relied on Strang-Muir v Corrective Services Commission of NSW (1986) 5 NSWLR 234 at 249. In that case, McHugh JA observed that, in an appeal from one administrative body to another, the issue will normally be whether the original decision was correct when it was made. When an appeal lies from an administrative tribunal to a court, the presumption arises that the court is then to -

exercise original jurisdiction and not appellate jurisdiction ... The court hears fresh evidence and determines the case as at the date of the hearing Ex parte Australian Sporting Club Ltd Re Dash (1947) 47 SR NSW 283 was applied.

32. I am satisfied in a de novo hearing it is not a relevant consideration that the proposed witness is one of the authors of the certificate.

33. The court must give due weight to the certificate, but the court is entitled in a hearing de novo to the more comprehensive evidence which would come from the medical reports and from the mouths of the authors ie Dr Lee.

34. The court has heard evidence from the appellant’s medical witnesses. It would in my view be procedurally unfair to deny the Board and the medical authority, opportunity to call Dr Lee, subject to cross-examination.

35. Dr Lee and the other two doctors constitute the Medical Authority in this instance. The Medical Authority is a party. In my view it would be procedurally unfair to deny a party in a de novo hearing the opportunity to give evidence beyond that which is contained in the certificate. That parties have a right to be heard is fundamental to the rule of law and it is the basis upon which courts ordinarily operate.

Arguments regarding s 7 Workers Compensation (Dust Diseases) Act

36. The appellant (page 21) has argued that s 7(4) of the Workers Compensation (Dust Diseases) Act which is in the following terms -

7(4) Where a medical practitioner has been employed as a medical practitioner in connection with any case by or on behalf of a worker or by any employer of the worker he shall not act as medical authority in that case.

although dealing with a different concept, nevertheless points to a clear policy indication as to the need for the Medical Authority to be above reproach in all circumstances.

37. A similar argument was mounted in respect of s 7(6) which is in the following terms -

7(6) No action or suit shall be brought or maintained against any person who is, or at any time has been, a member of the Medical Authority for anything done or omitted by the member pursuant to the duties imposed upon the member by or under this Act, nor shall any action, suit or other proceeding lie against the member, nor any costs be payable by the member, in respect of any proceeding before the Medical Authority.

38. The appellant argued that the purpose of s 7(4) and (6) is that the legislature did not want members of the Medical Authority having to justify their conduct in a court as that was not their role.

39. That issue is clearly considered in Hennessy where the High Court limited the evidence in the way which has already been referred to. Hennessy was followed in Herijato where there was immunity from disclosing the decision making process and that immunity is required to ensure freedom of thought and independence of judgment.

40. I am satisfied that the evidence Dr Lee would give is within the evidentiary perimeters permitted by Hennessy and Herijanto. He is not being asked to justify his conduct and I am not satisfied that there is any principle to be extracted from s 7(4) or s7(6) which would to prevent Dr Lee giving evidence.

Public policy issues

Firstly, the appellant contends that if Dr Lee is called then the process is undermined and will lead to a lack of confidence in the process itself; and

Secondly the appellant argues that there is a need for the Medical Authority to have a continuing future perception of impartiality.

41. It is clear that the issue of public confidence was in the minds of the High Court in Hennessy. At page 351 Isaccs J says -

There is no legal reason why a member of the Medical Board is incompetent as a witness to depose to the condition of a workman examined by him officially. No official confidence is violated and there is therefore no lessening of capacity or public confidence in respect of future official functions.

42. I respectfully agree with Hennessy and reject the contention that the process is undermined by calling Dr Lee.

43. As to future conduct, the Board and Authority are bound by the findings of the court and must act in accordance with the decision of the court. I cannot be satisfied that the calling of Dr Lee in a de novo hearing can undermine confidence in the process and if the Medical Authority then acts in accordance with the court findings, the Authority cannot be said to act other than impartially. If in a further application to the Medical Authority on new evidence the appellant is again unsuccessful, then that decision can be appealed in the ordinary way.

Confidentiality

Workers’ Compensation (Dust Diseases) Regulation 1998 Part 2 - General clause 8.

44. Clause 8 is in the following terms -

Non-disclosure of information by Members of Medical Authority

8(1) A member of the Medical Authority must not disclose any information that the member has acquired, in the course of the member’s duties, as to the physical condition of an applicant for compensation.

(2) This clause does not prevent a Member of the Medical Authority from disclosing any such information to the applicant, or -

(a)with the written consent of the applicant, or

(b)in the performance of the Member’s duties,

to any other person.

45. The appellant argues that Dr Lee is bound by that regulation and is therefore prevented from giving evidence which must amount to a disclosure of such information. In my view the regulation is intended to prevent the usual mischief that would occur if a doctor were to disclose information about the physical condition of an appellant to another person. Doctors would ordinarily be bound by the ethics of their profession not to disclose such information but least there be an argument as to whether or not the appellant is a patient of the doctor, the provision has been included with a criminal penalty. However, in the present instance, Dr Lee is a member of the Medical Authority but he is also a party to the proceedings. There is clearly provision in the legislation for an appeal to the court and I am satisfied that Dr Lee is doing no more than performing his duty as a Member when called upon to give evidence to the court.

46. A further argument raised by the respondents is that there is authority in Kizon v Palmer 142 ALR 488 for the proposition that these types of provisions regarding disclosure do not apply where evidence is being given to a court.

47. In Kizon v Palmer at 505 there is the following passage -

By the operation of s 22(1)(a) of the Acts Interpretation Act 1 1901 (Commonwealth), unless a contrary intention appears, the word "person" includes "a body politic or corporate as well as an individual". The word "person" does not, in ordinary English usage refer to a court. A court is not an individual. The court is not a body politic.

48. I accept the argument that this court is not an individual. I am therefore satisfied that there is no breach of the regulation in allowing Dr Lee to give evidence.

Expert witness - Bias

49. The appellant contends that the medical witnesses who he concedes are parties (page 32 of the transcript) and who have agreed to be bound by the expert witness code, cannot comply with the code, in particular s 2, 3 and 4.

50. As Dr Lee is a party, he has not been engaged solely as an expert to give opinion in litigation. It cannot be contended that Dr Lee is an ‘advocate for a party’, he is a party. The expert code is directed at curing the mischief of paid professional expert witnesses giving opinions partially and advocating the cause of those who pay for the opinion. The situation of Dr Lee is quite different and it is not inconsistent with his general duty under the code for him to give evidence.

51. The proposed witness being a party as well as a qualified medical practitioner who has expressed a view on the issue before the court, the possibility of bias in favour is undoubtedly a matter to be taken into account by the court when deciding what weight is given to the expert evidence but it is not a ground for the court to reject the evidence that may assist the court in reaching the correct result. (Fagenblat v Feingold Partners Pty Ltd (2001) VSC 454).

52. Section 135 of the Evidence Act is as follows -

General discretion to exclude evidence

The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

53. The learned author of Odgers Uniform Evidence Law, 4th Edition, state the following proposition at 135.4 -

Evidence is not unfairly prejudicial to a party merely because it tends to damage the case of the party or to support the case of an opponent. (McHugh J in Papakosmas v The Queen (1999) 196 CLR297 at paragraphs 91, 98.)

The ALRC explained what is meant by the term -

The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional, basis ie on a basis logically unconnected with the issues in the case. ...

54. I am not satisfied that the medical opinion of highly qualified medical experts called by the respondent subject to cross-examination by the appellant and balanced by the medical evidence called by the appellant, can be said to create a danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional, basis ie on a basis logically unconnected with the issue in the case.

55. In fact, the availability of the evidence from the Medical Authority clearly enables the court to make a decision based on logic and not on emotion.

56. The second argument referable to s 135 was that there would be an undue waste of time in calling the evidence of Dr Lee. I cannot be satisfied that it is an undue waste of time to hear relevant evidence from a party who is also an expert. Such extra time has to be considered as a proportion in the over all length of the trial. In my view the evidence does not unduly delay the proceedings.

Current court practice

57. Mr Neil QC submitted a folder containing a number of cases as examples, where members of a Medical Authority have been called to give evidence. It was not contested by Mr Joseph SC that such evidence was given but his contention was that it was not challenged and that the challenge that he now mounts is, in fact, a novel challenge.

58. In view of the fact that members of the Medical Authority and Medical Boards have been giving evidence with High Court approval since Hennessy the folder of examples does not take the matter any further.

Conclusion

59. I have considered a wide range of arguments from the appellant as to why I should not allow the viva voce evidence from Dr Lee. I have rejected each of the various submissions.

60. I consider myself bound by the decision in Hennessy. It is in my view the case most on point. Higgins J in Hennessy said -

... there is no law which forbids such a question to be asked and to be answered by one who, as a member of the Board such as this Medical Board has examined a man provided that the question is relevant to the inquiry in which the question is asked.

61. Thus I am satisfied that Dr Lee’s evidence is likewise admissible.
Mr M J Joseph SC and Mr R A O’Keefe instructed by Alex Stuart & Associates appeared for the appellant.
Mr M J Neil QC and Mr A C Scotting instructed by Goldrick Farrell Mullan appeared for the respondents.