IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2022 02798 

MOHAMMAD HAIDARI 	Plaintiff	
		
v 		
		
VICTORIAN WORKCOVER AUTHORITY
(and others according to the Schedule)	Defendants	

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JUDGE:	Niall JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 August 2023	
DATE OF JUDGMENT:	5 September 2023 	
CASE MAY BE CITED AS:	Haidari v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2023] VSC 522	

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WORKERS’ COMPENSATION – Judicial review of medical panel decision – Whether medical panel gave adequate reasons for opinion – Conclusion as to work capacity flowed naturally from findings of fact in respect of participation in daily life – Different conclusion to previous medical panel clearly explained – Whether medical panel took into account irrelevant considerations – Errors of fact not established – Even if errors of fact established would not demonstrate medical panel took into account irrelevant considerations – Proceeding dismissed.

Workplace Injury Rehabilitation and Compensation Act 2013, s 313.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Dr KP Hanscombe SC with Ms K Bowshell	Zaparas Lawyers	
			
For the First Defendant	Mr MF Fleming KC with Ms S Gold	IDP Lawyers	
			
For the Second to Seventh Defendants	No appearance	DLA Piper Australia	

HIS HONOUR:
1	The plaintiff has made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’) in respect of an alleged workplace injury that is said to have occurred in January 2016 in the course of his employment as a plasterer. Pursuant to the WIRC Act a number of ‘medical questions’ were referred to a medical panel (‘the Panel’). The plaintiff, unhappy with the answers that were given, seeks judicial review on two grounds, which he contends demonstrate jurisdictional error entitling him to relief in the nature of certiorari.
2	The relevant medical questions and the answers given by the Panel are as follows:
Question 3	In any, and if so what period from September 2016 to the date of the Medical Panel examination did the plaintiff have: 
(a) 	a current work capacity; 
(b) 	no current work capacity?
Answer: 	In the Panel’s opinion, from 5 September 2016 to the date of the Medical Panel examination the plaintiff: 
(a) 	had a current work capacity; 
(b) 	did not have no current work capacity.
Question 4 	As at the date of the Medical Panel’s assessment, does the Plaintiff have no current work capacity, and is that likely to continue indefinitely?
Answer: 	In the Panel’s opinion, as at the date of the Medical Panel examination the plaintiff: 
(a) 	has a current work capacity; 
(b) 	does not have no current work capacity.
3	The Panel was required to provide reasons for its opinion pursuant to a duty imposed on it by s 313 of the WIRC Act. In purported compliance with that obligation, on 25 May 2022, the Panel published its reasons for opinion (‘Reasons’).
4	The two grounds raised by the plaintiff are as follows:
Inadequate reasons
1. 	The Medical Panel had a statutory obligation to provide reasons for its Opinion pursuant to section 313(2) of the WIRC Act. The Medical Panel’s Reasons for Opinion are inadequate to satisfy the statutory obligation, since they do not set out a comprehensible path of reasoning by which the Medical Panel arrived at the Opinion.
Particulars
a) 	The Medical Panel found that the Plaintiff has a chronic adjustment disorder with mixed anxiety and depressed mood which is materially contributed to by the accepted injury. A previous Medical Panel had determined that the Plaintiff’s mood disturbance had affected his ability to relate to his co-workers to the extent that he was obliged to leave the workplace after only one or two hours.
The Reasons for Opinion do not explain how the assessment in a medical setting of the Plaintiff’s ability to concentrate to the extent required for a medical assessment during a 75 minute psychiatric examination enabled the Medical Panel to reach the conclusion that he could work as: 
i. 	packer (hygiene products),
ii. 	packer (hair and cosmetic products) or 
iii. 	process worker/assembler (electronic products) (‘the suitable employment options’).
b) 	Further, the Reasons for Opinion do not explain how the assessment of the effect of the Plaintiff’s dizziness on his daily activities outside the house is relevant to his ability to work in the suitable employment options.
c) 	Further, the Medical Panel’s Reasons for Opinion do not explain what characteristics of the Plaintiff’s capacity make employment as a:
i. 	packer (hygiene products), 
ii. 	packer (hair and cosmetic products) or 
iii. 	process worker/assembler (electronic products)
suitable for him.
Irrelevant considerations
2. 	The Medical Panel took into account considerations that it was bound not to take into account.
Particulars
	The Medical Panel based its assessment of the Plaintiff’s ability to work on its findings that the Plaintiff’s functioning had improved since he was last examined because he was now engaged in daily participation in household activities, was able to leave the house daily and attend the local shopping arena and engage in social activity. The information which the Plaintiff had given to the Medical Panel did not support those findings.
In fact, the Reasons for Opinion record that the Plaintiff told the Medical Panel that he regularly goes out to the shops or to visit family members. The Reasons for Opinion also record that the Plaintiff told the Medical Panel that he went out to buy food three times a week and spends time in the plaza four times a week, and that he only changed his clothes if he needed to go out, and showered three or four times a week.
The Reasons
5	The Panel comprised five members. As the claimed injuries involved both physical and mental aspects, the Panel comprised a rehabilitation physician, orthopaedic surgeon, rheumatologist and two psychiatrists.
6	Given the grounds of review, it is necessary to refer in a little detail to the Reasons.
7	The Reasons record that the Panel examined the plaintiff on two occasions: on 3 March 2022 by the rehabilitation physician, orthopaedic surgeon and rheumatologist and on 22 March by the psychiatrist members. During each examination the Panel obtained a history from the plaintiff.
8	The Panel was provided with a joint statement pursuant to s 304(a) of the WIRC Act which contained some historical details in relation to the plaintiff. They included that he was born in Afghanistan, was at the time aged 40 and came to Australia in 2011. He worked as a plasterer on a subcontracting basis. He submitted a claim form on 21 March 2016 alleging an injury to the ‘neck and right arm’ as a result of hitting his head and neck on a timber beam when moving plaster. The claim was accepted and weekly payments of compensation commenced.
9	On 5 September 2016 an authorised agent of the Victorian WorkCover Authority decided that the plaintiff was no longer incapacitated for work, his condition was no longer materially contributed to by an injury arising out of or in the course of his employment and the claimed medical and like expenses were no longer for an injury which entitled him to compensation under the WIRC Act.
10	The Reasons record a detailed history under the following headings: history of claimed injuries; initial symptoms and treatment; current symptoms; current treatment; past medical history; social history; and vocational history. As this proceeding concerns the findings of the Panel in relation to the claimed psychiatric injury, it is not necessary to dwell on the physical injuries and how they were dealt with by the Panel. 
11	It suffices to note that the plaintiff recorded a frank injury to his neck following striking his head on a beam. His current physical symptoms include:
Pain and stiffness of the neck which is most severe on the right side and extends from the base of the skull down the spine to between the upper borders of the scapulae. He said that the pain is present when he gets up in the mornings, continues through the day, is worse in cold weather and wakes him at night; the pain is increased by movements of the neck in any direction. He described a grating sensation in his neck when he turns his head;
12	The Reasons also record the following current symptom: ‘Intermittent dizziness with no falls’.
13	Under the heading ‘social history’, the Reasons record:
The plaintiff told the Panel that he currently lives in a rented property house with four other men of Afghanistan origin. He is independent in personal care, keeps his own room tidy and sometimes vacuums and also helps with the cleaning of communal areas.
He participates in a housemate roster for cooking, preparing meals for all five people about three times per fortnight; he sometimes buys take-away food. He is not responsible for the garden.
The plaintiff said that he spends much of the day at home, regularly saying his prayers as a religious Muslim; he said that he is able to use the required prayer position on the floor although he may get pain in his neck while doing so. He now regularly goes out to the shops or to visit family members.
…
The plaintiff drives his automatic car, but seldom for more than 10–15 minutes in the local area. He finds it difficult to turn his head to look behind him while reversing.
14	The Reasons then address the Panel’s assessment and analysis of the plaintiff’s claimed psychiatric condition. In that part of the Reasons, the Panel referred to a report of a previous medical panel (‘the previous Panel’) dated 13 March 2020 and in respect of which the Panel said ‘did not identify any significant errors or omissions’. After setting out a summary of some of the findings contained in the earlier report, the Panel continued:
The current Panel noted that the previous Panel had formed the opinion that the plaintiff had a chronic adjustment disorder with mixed anxiety and depression materially contributed to by his chronic pain following the whiplash-type soft tissue injury to the neck in the presence of radiological changes normal for his age, the effects of which otherwise resolved.
…
The current Panel noted that the previous Panel considered the plaintiff’s multiple symptoms of depression and anxiety adversely impacted his ability to drive to new places, attend work reliably and functionally and have adequate cognition, concentration, memory and new learning skills and capacity for teamwork and ability to engage and communicate with others particularly those not previously well known to him, resulting in an impairment of functional capacity to the extent that he was precluded from performing his duties and hours of work of his preinjury employment…
15	The Panel then set out the plaintiff’s current psychological symptoms as described by the plaintiff in the examination with the Panel. As recorded in the Reasons the plaintiff told the Panel his enjoyment and energy remain reduced, he ruminates about the future, his mind wanders even when he prays and he is forgetful. Asked to give an example of his forgetfulness, the plaintiff said that he loses things around the house and forgets sometimes if the front door is closed.
16	Under the heading ‘current daily activities’, the Reasons record that:
The plaintiff said that after waking up he changes his clothes if he has to go out, but would stay in the same clothes if he does not. He said he prays two times a day some days. He said he showers three to four times a week. He said he is able to drive and he goes out to buy food for his main meal which he has in the afternoon three times a week. He said that he goes shopping at the vegetable market, supermarket and plaza without difficulty. He said he walks to the market which is 25 minutes away, four times a week and spends time in the plaza.
…
When asked about social activities, he said that he speaks to his family in Afghanistan for between 15 minutes and three hours every day. He says he visits his uncle and aunt who live nearby. He said he has three cousins who may visit or he visits and they play cards together. He said he has lost friends since he stopped working and they will not answer the phone.
17	The Reasons record that amongst other medications, the plaintiff takes ‘Pristiq 100mg daily (he said this was reduced from 150mg due to gastric symptoms)’ and ‘Mirtazapine 30mg daily (reduced from 45mg due to dizziness)’.
18	Based on its psychiatric examination, the Panel formed the opinion that the plaintiff had an adjustment disorder with mixed anxiety and depression arising from his accepted neck injury and subsequent persistent pain and psychosocial and financial consequences. The Panel was also of the opinion that the plaintiff’s current psychiatric condition of chronic adjustment disorder with mixed anxiety and depressed mood initially resulted from, and was materially contributed to by, the soft tissue injury of the neck that he sustained during the course of his employment, has persisted despite the resolution of the soft tissue injury, and thus continues to be materially contributed to by the alleged neck injury.
19	In addressing the plaintiff’s capacity for work the Panel had regard to vocational assessments carried out by Recovre, an occupational consultant, which identified employment as a packer (hygiene products), packer (hair and cosmetic products), process worker/assembler (electronic products) and traffic controller as potentially suitable. It will be necessary to return to these assessments in due course.
20	The Panel then came to express its conclusions on the plaintiff’s work capacity. Dealing first with the plaintiff’s physical condition, the Panel concluded that he had no current incapacity for his pre-injury employment or for suitable alternate employment which results from the claimed injuries.
21	Turning then to capacity based on his psychiatric condition, the Panel noted the plaintiff’s claim that he did not think he could work due to the pain and because he lacked energy, could not concentrate and was forgetful. He also said that his ability to work was limited by the dizziness he experienced from medication.
22	The Panel accepted that the plaintiff’s reduced energy, concentration and motivation were consistent with symptoms of his adjustment disorder with mixed anxiety and depression. The Panel noted that since the previous Panel’s report, which had found no current work capacity, there had been improvement in the plaintiff’s function to the degree that he is now engaged with daily participation in household activities, was able to leave his house on a daily basis and attend the local shopping area, and was able to engage in social activity. The Panel concluded the plaintiff’s reduced energy and concentration were not of such severity as to preclude him from engagement in suitable employment.
23	Addressing the plaintiff’s inability to concentrate, the Panel noted his capacity to concentrate persistently throughout the 75 minute assessment in the absence of major psychological distress and therefore formed the opinion that the plaintiff’s decreased concentration did not preclude suitable employment. The Panel regarded the plaintiff’s forgetfulness as falling ‘within the constraints of normal forgetfulness’ with no evidence of cognitive impairment.
24	Dealing with the plaintiff’s description of dizziness, the Panel noted that his medications had been reduced due to complaints of dizziness and that his concern about dizziness did not prevent his daily activities outside the house.
25	For these reasons the Panel concluded that the plaintiff had no current incapacity for his preinjury employment or suitable alternative employment and that the plaintiff ‘did not have no current work capacity from a mental health point of view’. 
26	The Panel concluded that there was no current psychiatric incapacity for work as a packer (hygiene products), packer (hair and cosmetic products) or process worker/assembler (electronic products). The Panel observed that the plaintiff did not hold the necessary qualifications for work in traffic management.
27	The Panel referred again to the opinion of the previous Panel which found no current work capacity, but observed that since that time the plaintiff had taken on an increased role within the household, daily activity outside the house and was taking a reduced dose of medication. The Panel considered that notwithstanding the plaintiff’s view, there was evidence of improvement in psychological symptoms and functions since the previous Panel assessment and thus the Panel had reached a different conclusion from that expressed in the earlier report. The Panel concluded as follows:
The Panel also concluded (as discussed in detail above) that the plaintiff’s psychiatric condition of an adjustment disorder with mixed anxiety and depression does not result in his having an incapacity for alternate suitable employment.
The Panel thus concluded that the plaintiff has no current incapacity for alternate suitable employment on the basis of either his physical or psychiatric condition relevant to the alleged injuries, and did not have no current work capacity from 5 September 2016, up to and including the date of the Medical Panel examination.
The Recovre Reports
28	In the Reasons, the Panel referred to a Capacity Support Services (‘CSS’) program dated 26 September 2016, from which, the Panel noted, the plaintiff had elected to withdraw, and a vocational assessment dated 30 May 2019 in respect of the two packer positions, process worker and traffic controller.
29	It appears that the Panel was only provided with an incomplete version of the CSS report but the extract provided to the Panel included the recommendation that the plaintiff has a capacity for modified duties on pre-injury hours and was a suitable candidate to continue the CSS program. As the Panel noted the plaintiff withdrew from that program, and it does not appear that the Panel placed any weight on that document.
30	The vocational assessment of 30 May 2019 detailed various medical opinions expressed by a number of practitioners. It contained worksite assessments of the various positions identified as potentially suitable for the plaintiff. In respect of the three roles that the Panel found were suitable the assessment provided as follows:
The first role (Packer) is with manufacturing business producing hygiene products. The assessed role is based in Springvale, Victoria. This role offers Mr Haidari a light packing role which accommodates his physical tolerances. There are no specific qualifications or language skills required to perform this role.
The second role (Process Worker) is with a business which assembles and tests electronic equipment used in medical type industries based in Bayswater, Victoria. There are no inherent qualifications or experience requirement to perform this role.
The third role (Packer) is with a business which operates a distribution centre for hair care and cosmetic products based in Dandenong South, Victoria. There are no inherent qualifications or experience requirement to perform this role.
31	Details of the first role included a description of the hours of work and overview of the role in the following terms:
Hours of Work:
Workers are employed to perform 3x12 hour shifts per week however they are paid for 38 hours per week. The plant operates 24 hours per day with a day shift, night shift and weekend shift pattern. Workers work Mon–Wed or Thurs–Sat with no Sunday shifts.
…
Overview of the workplace:
This is a manufacturing business producing sanitary products. Packers are employed to man each production line and are required to perform quality control and pack items into boxes for despatch. When the machine is not operating, workers perform light cleaning tasks. Despatch loading is handled by others. Packers rotate between lines on a 30 minute basis. Packer are not required to undertake any machine operation tasks as dedicated workers perform these activities.
32	The report provided considerable detail in relation to the demands of the position.
33	In relation to the process worker position, the report stated that: 
This business assembles and tests electronic equipment used in medical type industries. Workers are required to rotate between multiple assembly and packing workstations across the work day and perform bench top type small assembly tasks, quality testing and packing duties.
Workers may be expected to perform a large variety of small assembly tasks on any given day, however all of these tasks have very similar physical demands. 
34	The report noted that ‘tasks can require detailed attention and focus. In these instances workers are encouraged to break and stretch regularly’.
35	In respect of the third position, which was also a packer role, the hours of work were described as ‘Shifts to cover operating hours between 6am–12 midnight’. The number of staff was described as ‘1–2 staff perform this role per shift’.
Ground 1
36	The plaintiff submits that the Panel was required to give reasons for its decision. The plaintiff referred to Wingfoot Australia Partners Pty Ltd v Kocak as authority for the now uncontroversial proposition that inadequacy of reasons for the decision supports an order in the nature of certiorari. As to the content of the obligation the plaintiff refers to the following passage from the reasons in Wingfoot:
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. 
37	The plaintiff submits that the Reasons are insufficient in three respects:
(a)	they fail to explain the path of reasoning for the conclusion that the plaintiff could work in the three identified roles, given the conclusions of the previous Panel;
(b)	they fail to explain how the assessment of the effect of the plaintiff’s dizziness on his everyday activities relates to his ability to work in the suitable employment options, and did not address how the dizziness might affect his ability to perform the required tasks; and
(c)	they did not explain why the three identified jobs were suitable by reference to the plaintiff’s attributes and medical condition. 
38	As to the first aspect, the plaintiff noted that the Panel recorded that it ‘did not identify any significant errors or omissions’ in the previous Panel’s report and in that report, the previous Panel had accepted that the plaintiff’s mood disturbance prevented him from relating to his co-workers, to the extent that he could only attend the workplace for one to two hours. The plaintiff submits that the Panel did not explain why his ability to concentrate for 75 minutes in a medical examination demonstrated an ability to attend the workplace environment for more than two hours.
39	The plaintiff submits that the Panel failed to explain how the plaintiff was suitable for the three potential jobs given his symptoms.
(a)	Dealing with the first packer position, the plaintiff submits that the Panel gave no reason to explain how being able to attend a 75 minute medical examination meant that the plaintiff was able to work a 12 hour shift, three times a week.
(b)	In relation to the production assembly position, the plaintiff says there is no explanation in the Reasons as to how the plaintiff could work full time in a role that required detailed attention and focus. 
(c)	He submits that the third role requires the employee to work an 18 hour shift which was ‘a long time for anybody, let alone somebody who’s got impaired concentration’.
40	The plaintiff submits that it is not possible to discern from the Reasons how the Panel arrived at its conclusions that improvements in the plaintiff’s symptoms meant that he was now able to perform the three roles. He says that it takes inference or guesswork to piece the reasoning together.
41	The plaintiff submits that the Panel disregarded his dizziness without giving any reasons for doing so. He says that it is unclear whether the Panel discounted dizziness because it found that there had been a reduction in the dose of the medication (Mirtazapine) that had caused it, or for some other reason. The plaintiff submits that there is an inexplicable jump between the findings as to the plaintiff’s current symptoms of dizziness and lack of concentration, and the conclusion that he can work the long shifts requiring concentration and attention in the three positions.
Decision
42	The Reasons are adequate and ground 1 is rejected.
43	The principles that apply to the obligation on an administrative decision-maker such as the Panel to give reasons for its decision are well established. They are informed by a requirement that a person affected by a decision should know the basis on which the matter was decided and place that person in the position of knowing whether or not the law has been correctly understood and applied to the facts of the matter. That will generally require the decision-maker to refer to the evidence, record its findings of fact and explain its conclusions by setting out the path of reasoning. The obligation is not one of perfection but it is rarely satisfied by a mere statement of conclusion. Equally, the adequacy of reasons must be assessed having regard to the statutory issues that the decision-maker must determine and the issues that are in dispute. 
44	As Richards J said in Sidiqi v Kotsios:
Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law’. A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions. A real doubt may exist where a Panel’s conclusions are open to more than one interpretation, and in that case the reviewing court should not speculate about a Panel’s path of reasoning in order to resolve ambiguity or fill gaps.
At the same time, a Panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function — to form and give its opinion on medical questions referred to it — lawfully. The Panel’s reasons must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’. A Panel’s reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a ‘proper evidential foundation disclosed in the reasons’.
45	In considering the adequacy of the Reasons, it is also important to keep in mind the statutory function of a medical panel. It is an expert body whose task is to answer medical questions. As the Court of Appeal explained in Sidiqi, the character of the Panel’s function means that opinions on medical questions of fact raised by the questions asked of it will necessarily be informed by expertise which the Court does not possess and which will potentially govern the relevance and weight to be accorded to any particular aspect of the circumstantial evidence. 
46	In dealing with a medical question it is virtually inevitable that a medical panel will be required to draw inferences from the material before it. Again, as the Court of Appeal explained in Sidiqi:
When an inference is to be drawn by way of the opinion of a medical panel as to the nature, extent and severity of a medical condition, it follows from what we have said concerning the panel’s function that it will be for the panel to identify the relevant facts and evaluate the weight to be given to particular circumstances in light of its medical knowledge and experience.
47	The Panel clearly identified the diagnosis that it had made in relation to the plaintiff, namely an adjustment disorder with mixed anxiety and depression. The extent to which that condition or disorder affected the capacity of the plaintiff to engage in employment involved a professional judgment based on the history of the plaintiff, the findings of the Panel in relation to the current symptoms and the extent to which those symptoms affected the ability to perform one or other of the suggested potential roles.
48	In the Reasons, the Panel identified the main symptoms that impacted the plaintiff as being reduced energy, concentration and motivation, inability to concentrate, forgetfulness and dizziness. The Panel was provided with the Recovre Vocational Assessment Report dated 30 May 2019 and referred to it. That assessment provided details of the duties attached to each of the three relevant positions. The Panel was plainly alive to the possibility that the plaintiff’s symptoms might impact upon his ability to perform the required tasks for the required duration and addressed the impact of each of those symptoms.
49	Importantly, the plaintiff was not working at the time of the assessment and claimed to be incapacitated for work. Thus, the Panel had no current work history to assess capacity. However, the Panel did have the plaintiff’s account of his normal routine. The Panel found that there were a number of facts that pointed to a level of functional capacity that would translate to an employment setting:
(a)	his engagement with daily participation in household activities;
(b)	his ability to leave his house on a ‘daily basis’ to attend the local shopping area and engage in social activity;
(c)	his ability to concentrate persistently throughout a 75-minute assessment in the absence of major psychological distress;
(d)	his description of forgetfulness was within normal parameters; and
(e)	his dizziness did not prevent his ‘daily activities’ outside of the house.
50	Based on these matters the Panel concluded that the plaintiff could undertake the identified tasks in relation to the three positions. No jump in logic or fact was required; the conclusion, as a matter of inference, flowed naturally from the findings in respect of the plaintiff’s participation in the ordinary incidents of daily life. The fact that the plaintiff does not accept the findings of fact does not render the Reasons inadequate.
51	It is also plain that the Panel regarded it as important that it explained its findings and conclusions in light of the previous Panel report. The Panel was not bound by the earlier findings and was under a statutory duty in every case ‘to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’. Although the Panel stated that it did not find any significant errors or omissions in the earlier report, it made it clear that it regarded the factual material as being different in that there had been, according to the Panel, improvements the plaintiff’s symptoms.
52	The Panel clearly explained why it had formed a different conclusion to the previous Panel’s report, namely based on the plaintiff taking on an increased role within the household and changes to his daily activity outside the house at a reduced dose of medication. These facts provided a rational and logical explanation for the different conclusion.
53	Read fairly and without an eye attuned to the detection of error, the Panel was plainly of the expert opinion that the current symptoms of the plaintiff’s condition, as evidenced by his participation in a domestic setting, would not preclude him from undertaking the relatively mundane tasks associated with the three roles. In my view no further explanation is required.
54	At least to some degree the plaintiff’s submissions overstated the evidence in relation to the tasks associated with each position. For example, the plaintiff submitted the third position required a shift of 18 hours. Plainly that is not an accurate reading of the job description, which identifies the performance of shifts within an overall window of 18 hours.
55	The connection between the findings of fact in relation to the plaintiff’s current capacity within a domestic setting and his capacity to undertake the tasks associated with the identified jobs was obvious and called for no further explanation than is apparent from the Panel’s detailed and thorough Reasons.
Ground 2
56	The plaintiff submits that the Panel made findings about his ability to work which are not supported by what he told the Panel about his activity level. The plaintiff refers to the history recorded by the Panel that he regularly goes out to the shops or to visit family members, goes out to buy food three times a week and walks to the market four times a week. The plaintiff submits the Panel extrapolated from these matters a conclusion that the plaintiff engaged in daily household activity and was able to leave the house on a daily basis to attend the local shopping area.
57	The plaintiff acknowledges that an irrelevant consideration is a consideration which the statutory decision-maker is either expressly or impliedly prohibited from taking into account. He submits that there is an implied, but not express, prohibition on the Panel taking into account an incorrect inference of fact, or finding of fact, which goes to the question it has to determine. Here, he submits the Panel was required to determine whether the plaintiff had a capacity to work and if it makes that assessment on an incorrect factual basis it will have taken an irrelevant consideration into account.
58	The plaintiff submits that by making a wrong finding of fact as to the level of the plaintiff’s activity and then to employ that erroneous finding in its decision as to capacity, the Panel took into account an irrelevant consideration.
Decision
59	The plaintiff’s argument on this ground proceeds from a misconception. 
60	It may be accepted that the Panel was obliged to have regard to the material, including the history, provided by the plaintiff in support of his claim. In Sidiqi the Court of Appeal said that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider and consideration of which could materially affect its decision, or to fundamental issues raised by the facts of the case.
61	It is not a corollary of that proposition that if a medical panel makes an error of fact as part of that consideration it will have taken into account an irrelevant consideration. An irrelevant consideration in this context is a consideration or matter that the statute, either expressly or by implication, prohibits the decision-maker from taking into account. It is something that is truly extraneous to the decision-making task. The findings of fact made by the Panel impugned by the plaintiff were directly relevant to the subject matter of capacity, which was of direct concern to the statutory task reposed in the Panel.
62	It is well established that the merits of a decision are for the decision-maker and there is no jurisdictional error in the making of an erroneous factual finding. In certain circumstances the making of an error of fact may constitute an error of law and, again in certain circumstances, that error may be jurisdictional in nature. For example a finding of fact for which there is no evidence generally involves an error of law. In other cases erroneous findings of fact may cause the decision-maker to fail to address the proper legal question.
63	None of those errors are alleged here nor are they established. The Panel in terms addressed itself to the correct legal question about whether the plaintiff had work capacity. Further, it is not suggested that there was no evidence to support the findings of fact it did make. 
64	The plaintiff sought to make something of an apparent inconsistency between the activities recorded in the history and the findings of the Panel. To that end, the plaintiff points to the history recorded by the Panel that the plaintiff participates in a roster for cooking and preparing meals for all five people within the household ‘about three times per fortnight’, spends much of the day at home, regularly goes out to the shops and to visit family members, and seldom drives more than 10 to 15 minutes in the local area. Based on that history the plaintiff says that there was no basis to conclude, as the Panel did, that he participated in household activities on a ‘daily’ basis, left his house on a ‘daily’ basis and that his dizziness did not prevent his ‘daily activities’.
65	There are two problems with that submission. The first is that the plaintiff did not seek to prove the entirety of the record before the Panel, nor did he give any evidence about what he told the Panel. Thus it cannot be inferred that the only evidence before the Panel was that expressly recited in the history.
66	Second, and in any event, the description of daily participation and daily activities involved a fair, or at least reasonable, characterisation of the evidence as recorded in the history. It is particularly so given the following paragraph, which appears under the heading ‘Current daily activities’ and is set out above but worth repeating:
The plaintiff said that after waking up he changes his clothes if he has to go out, but would stay in the same clothes if he does not. He said he prays two times a day some days. He said he showers three to four times a week. He said he is able to drive and he goes out to buy food for his main meal which he has in the afternoon three times a week. He said that he goes shopping at the vegetable market, supermarket and plaza without difficulty. He said he walks to the market which is 25 minutes away, four times a week and spends time in the plaza.
67	Even the most literal reading of that passage would support a conclusion that the plaintiff undertook daily activities and engaged in daily participation of domestic tasks.
68	It follows that the plaintiff has not established the errors of fact that he attributes to the Panel and on which this ground is founded. The ground fails for that reason. Independently, even if he had established the errors of fact, that would not have made out this ground alleging the taking into account of irrelevant considerations. For the reasons already given, it is not correct in principle to regard an error of fact on a matter that is legally relevant to the decision as the taking into account of an irrelevant consideration.
Conclusion
69	Neither ground is made out. For that reason the proceeding must be dismissed. I will hear the parties on the form of orders to be made.
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SCHEDULE OF PARTIES

	S ECI 2022 02798	
		
BETWEEN:		

MOHAMMAD HAIDARI	Plaintiff	
		
- v -		
		
VICTORIAN WORKCOVER AUTHORITY	First Defendant	
		
PETER DISLER	Second Defendant	
		
MIRON GOLDWASSER	Third Defendant	
		
MANINDER MUNDAE	Fourth Defendant	
		
ALEXANDER HOLMES	Fifth Defendant	
		
DIANE NEILL	Sixth Defendant	
		
THE CONVENOR OF MEDICAL PANELS	Seventh Defendant