IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
JUDICIAL REVIEW AND APPEALS List
S ECI 2019 02274

DEREK BAINBRIDGE	Plaintiff	
		
v  		
		
WESTSIDE MEATS PTY LTD & ORS (according to the schedule)	Defendants	

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JUDGE:	Gorton J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 April 2021	
DATE OF JUDGMENT:	4 June 2021	
CASE MAY BE CITED AS:	Bainbridge v Westside Meats Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2021] VSC 320	

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Where worker suffered subsequent unrelated injury –  Whether Panel considered worker’s ability to return to work as a settled or established member of the workforce – Whether Panel’s findings supported by evidence – Adequacy of Panel’s reasons – Application dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr AG Uren QC and
Mr E Makowski	Ryan Carlisle Thomas	
			
For the First Defendant	Mr MF Fleming QC and
Ms RL Kaye	Thomson Geer	

TABLE OF CONTENTS

A.  Background	1
B.  Should the Panel have taken into account Mr Bainbridge’s right leg amputation?	3
C.  Did the Panel err in law by limiting its consideration to an ability to perform employment tasks and by not considering whether Mr Bainbridge could obtain employment or whether he could work as a settled or established member of the workforce?	5
C.1. Mr Bainbridge’s submissions	5
C.2.	The legal requirements — before definitions were introduced	6
C.3.  The legal requirements — in light of the current definitions	8
Capacity	8
Suitable employment	10
Relevant ‘personal characteristics’ — time out of work	11
Relevant ‘personal characteristics’ — marijuana use	14
C.4.  The Panel’s reasons and approach in this case	14
C.5. 	Did the Panel err as contended by Mr Bainbridge — ie did the Panel limit itself to the ability to perform the work tasks?	16
D.  Was there evidence that supported the Panel’s findings?	18
D.1. Finding 1 — The identified occupations would only require minimal use of Mr Bainbridge’s right hand that would not be beyond his capacity or tolerance	19
D.2.  Finding 2 — Evidence that the duties would not exacerbate his condition	20
D.3.  Finding 3 — Evidence that Mr Bainbridge had the transferable skills and capacity that would allow him to undertake the identified options with or without retraining	21
D.5.  Finding 4 — Evidence that Mr Bainbridge’s age and place of residence did not limit his employment options	21
E.  Did the Panel give adequate reasons for its opinions?	22
F.  Conclusion	24

HIS HONOUR:
A.  Background
1	On 2 November 2001, Mr Bainbridge started to work for Westside Meats Pty Ltd (‘Westside Meats’), the first defendant, as a boner in its abattoir.  He had injured his right wrist in employment as a boner with a previous employer.  In January 2002, Mr Bainbridge began to experience increasing pain in his wrist in the course of his employment with Westside Meats.  He ceased work in March 2003, and he has not worked since.  In September 2004, he had an operation on his wrist, followed by further treatment with hand therapy for about two years.  
2	On 21 May 2004, Mr Bainbridge made a claim under the Accident Compensation Act 1985 for compensation from Westside Meats, in which he identified the injury as being an aggravation to his existing right wrist condition.  The claim was accepted and Mr Bainbridge began to receive no-fault benefits including weekly payments of compensation.
3	In June 2005, Mr Bainbridge fractured his right femur in an unrelated incident.  He failed to make a good recovery from this fracture, and in May 2006 his leg was amputated above the knee.  It seems he began to receive a disability support pension at that time, although it seems that he also continued to receive weekly payments of compensation.
4	Mr Bainbridge told the Panel that he had ceased using analgesics some years prior to its assessment and that he no longer took any medication for his wrist injury or any other condition.  He also told the Panel that he had used marijuana since the age of 14, ‘regularly smoking three to four bongs per day, usually in the afternoon and evening’. 
5	By letter dated 30 August 2017, Gallagher Basset, the authorised agent of the Victorian WorkCover Authority, determined that Mr Bainbridge was no longer entitled to weekly payments of compensation on the grounds that he had a current work capacity, alternatively if he had no current work capacity it was not likely that this would continue indefinitely. Mr Bainbridge disputed that determination and commenced proceedings in the Magistrates’ Court of Victoria in which he asserted a continuing right to weekly payments of compensation. 
6	The Magistrates’ Court referred questions directed to this issue to a Medical Panel established under the Workplace Injury Rehabilitation and Compensation Act 2013.  The Panel consisted of a specialist occupational and environmental physician and specialist general practitioner, a rheumatologist, an orthopaedic surgeon, and two psychiatrists.  Members of the Panel examined Mr Bainbridge and took histories from him on 11 and 12 February 2019.  On 26 March 2019, the Panel provided its answers to the questions in a certificate of opinion.  The Panel’s opinion was that Mr Bainbridge continued to suffer from residual dysfunction of his right wrist following an aggravation of ‘Kienbock’s disease’ and from a mild adjustment disorder.  The Panel’s opinion was also that Mr Bainbridge had a current work capacity, and that he did not have ‘no current work capacity’.  In reaching this conclusion, the Panel identified a number of occupations which had been suggested but which it considered Mr Bainbridge could not perform by reason of his wrist injury and the manual handling requirements of those jobs.  It then stated:
The Panel considered that [Mr Bainbridge] has the transferrable skills and the physical and psychological functional capacity which would allow him to undertake the employment options of a weighbridge operator, a ticket seller, a meter reader, a mobile camera operator and a taxi rank coordinator without further retraining.
7	In this proceeding, Mr Bainbridge seeks to have the Panel’s decision quashed on the grounds that (as I understood the arguments as they were developed in oral submissions):
(a)	The Panel erred in law by failing to have regard to the fact that the Mr Bainbridge had suffered an amputation of his right leg when assessing his work capacity;
(b)	The Panel erred in law by limiting its consideration to whether Mr Bainbridge could perform the work tasks associated with the identified employment occupations, and by failing to consider whether Mr Bainbridge was able to return to work ‘as a settled or established member of the workforce’ in those employment occupations.  Associated with this ground was the assertion that the Panel was obliged to consider, but failed to consider, whether Mr Bainbridge would be able to ‘obtain’ employment in those occupations, failed to identify that those occupations were available to him within a reasonable distance of his place of residence, and failed to have regard to his marijuana use; 
(c)	There was no evidence to support the Panel’s findings; and
(d)	The Panel failed to give adequate reasons for its conclusion that the identified employment options were suitable employment.
B.  Should the Panel have taken into account Mr Bainbridge’s right leg amputation?
8	The established law in these circumstances is that a subsequent, unrelated injury is to be disregarded in determining what incapacity results from an earlier compensable injury.  As Nettle JA said in Walsh v Department of Human Services (‘Walsh’):  
[I]f the effects of the latter injury taken in conjunction with any residual effects of the earlier workplace injury are such as to leave the worker with ‘no current work capacity’, does that state of ‘no work capacity’ ‘result from’ or is it ‘materially contributed to’ by ‘an injury which entitles the worker to compensation’ within the meaning of s 93 of the Accident Compensation Act 1985?
The judge below answered that question in the negative, and I agree with his Honour. …
Logically it might be supposed that, because the workplace injury results in a degree of incapacity that contributes to the ultimate state of total incapacity, there is enough connection between the workplace injury and the ultimate state of incapacity to say that the ultimate state of incapacity ‘results from’ the workplace injury. But logic is not the only consideration. There are also issues of policy. There is a lesser degree of connection between the workplace injury and the ultimate state of incapacity in the latter circumstances than between a workplace injury and an exacerbation of that injury by subsequent injury in the manner previously referred to. Thus far, courts have taken the view that any decision to recognise such a lesser degree of connexion as sufficient to attract an entitlement to compensation is a decision which should be left to Parliament.
9	There was no suggestion that the need for the amputation was a sequela of the compensable wrist aggravation injury.  Accordingly, unless Walsh and the cases referred to in footnote 2 above are wrong or distinguishable, the Panel was correct to disregard the fact that Mr Bainbridge had an amputated leg when determining the incapacity that resulted from his wrist injury. And I note that Mr Bainbridge proceeded on that basis in the written submission he made to the Panel.
10	Mr Uren QC, who appeared with Mr Makowski for Mr Bainbridge, submitted that Richter v Driscoll altered that law when it stated that ‘the entirety of the worker’s personal circumstances’ should be considered when determining what constitutes suitable employment, and that Walsh was distinguishable because it concerned whether someone was entitled to commence to receive weekly payments, rather than, as was the case here, whether someone was entitled to remain on weekly payments.  I do not agree.  Neither Ward v Corrimal-Balgownie Collieries Ltd (‘Ward’) nor Walsh nor Minter Ellison Services Pty Ltd v Kotzman were cited or considered in Richter v Driscoll, and Richter v Driscoll did not concern a subsequent, unrelated injury.  It is, to my mind, clear that nothing said in Richter v Driscoll was intended to overturn the principle established in those cases, and, even if it were, I would be bound by Ward in any event.  
11	Further, the distinction between a worker seeking to establish an entitlement to commence receiving weekly payments and a worker seeking to stay on weekly payments was said to arise because it was only in the latter case that the concept of ‘suitable employment’ was engaged, and because a worker’s circumstances can change with time.  The first reason is not correct.  The concept of ‘suitable employment’ forms part of the definition of both ‘no current work capacity’ and of ‘current work capacity’, and those terms are central to the question of a worker’s entitlement to weekly payments at all times.  The fact that a worker’s circumstances may change over time means that the situation under consideration can arise, but it is not a reason for determining how a subsequent unrelated injury should be treated.
12	Mr Uren was unable to identify any policy reason why a distinction should be drawn between a worker who is seeking to establish an entitlement to weekly payments of compensation and a worker who is seeking to remain on weekly payments of compensation.  I see no reason to limit the principle established in Ward, and the other cases cited herein, to a situation where a worker is seeking to establish a right to compensation, rather than seeking to maintain a right to compensation.  If that distinction were drawn, a worker’s legal entitlement to receive weekly payments, and an employer’s legal obligation to pay weekly payments, could be permanently influenced by  whether a claim was accepted or rejected when first considered.  This would be a most surprising result and is not one that the legislature would have intended.
C.  Did the Panel err in law by limiting its consideration to an ability to perform employment tasks and by not considering whether Mr Bainbridge could obtain employment or whether he could work as a settled or established member of the workforce?
C.1. Mr Bainbridge’s submissions
13	Mr Bainbridge contended that the Panel:
(a)	was required to decide whether he was ‘likely to find employment’ in the identified occupations before that employment could be ‘suitable employment’, or before it could be concluded that he was able to ‘return to work’ in suitable employment; and
(b)	was required not just to consider, but to state in its reasons, explicitly, whether he was able to work ‘as a settled or established member of the workforce’, and that the failure to use those words was sufficient to establish jurisdictional error.
C.2.	The legal requirements — before definitions were introduced
14	The concept of partial or total incapacity for work resulting from injury attracting compensation has a long history in workers’ compensation legislation.  The term ‘incapacity’ was not defined in the Victorian legislation until 1992.  Total incapacity was interpreted to mean a condition where the injury has made a worker’s labour ‘unsaleable in any market reasonably accessible to him’, and partial incapacity was interpreted to mean a condition where the injury has made the worker’s labour ‘saleable for less than it would otherwise fetch’.  Whether or not this was so was a question of fact for the finder of fact.  A worker was entitled to lead evidence that he or she had applied for jobs but not been awarded them, and the finder of fact was permitted, within reasonable limits, to use his or her own common sense and knowledge of labour conditions. 
15	As the phrase ‘unsaleable in any market reasonably accessible to him’ makes clear, the place where the worker lives has always been relevant.  Employment had to be available within ‘reasonable access’ of the district where the worker lives.  This was, again, a question of fact.
16	The concept of an ‘odd lot’, or ‘nondescript’, came into use to describe a worker ‘so injured that he is only able to do certain very special jobs, depending on finding a very special employer who, either from compassion or because he has a special job, is able to give him employment, but any ordinary class of work he is not able to do’.  If a worker were categorised as an ‘odd lot’, then there was an onus on the employer to identify work that the worker could obtain and perform. 
17	However, if the medical condition of a worker allowed him or her to perform a category of work — such as, for example, ‘light labour’ — then that could be sufficient to establish a capacity for employment without any particular jobs having to be identified or without there having to be proved a capacity to actually ‘get employment’.
18	Further, the only incapacity that attracted compensation was incapacity that was due to the injury; no compensation was payable in the event that incapacity to earn was due to slackness of work or the state of the labour market.  
19	These distinctions are often not easy to apply.  An inability to obtain work may be due to the fact that an injury has made a worker less desirable to an employer than other applicants for a job such that the others would be preferred, but it cannot be said that the worker does not have something merchantable to sell; it may be a situation where a worker’s labour is ‘saleable’ but he or she has ‘failed to find a purchaser’.  Or the point may be reached where the undesirability amounts to a situation where the worker, in truth, has nothing merchantable to sell.  Which side of the line any particular worker falls in a particular case is a question of fact to be decided by the finder of fact in that case.
20	In summary, it was always the position that:
(a)	The mere ability to perform work duties was insufficient to establish a work capacity. Rather, there was a requirement that someone’s labour be merchantable in the employment marketplace; 
(b)	Any inability to obtain employment had to result from the compensable injury, and an inability to obtain employment that was due to the state of the labour market was not compensable.  Accordingly, the mere inability to obtain employment did not of itself establish incapacity; 
(c)	In ordinary circumstances, establishing a capacity to engage in a category of employment was sufficient to establish work capacity without having to establish a capacity to perform a particular job;
(d)	Establishing that someone was by reason of his or her injury unable to perform any employment of a type known to be ordinarily available established incapacity, unless a special job that the person could do was identified;  and
(e)	The question of work capacity was, ultimately, a question of fact for the trier of fact, and, at least to some extent, the trier of fact could use its own understanding of the work environment.
21	It should be noted that, in determining whether a worker’s labour was saleable in the market, consideration had to be given to what sort of work that person might be expected to be able to perform.  This led naturally to the concept of identifying whether there was ‘suitable employment’ for him or her, and the phrase ‘suitable employment’ was in common use long before it became a defined term.  For example, in the Accident Compensation Act 1986 as originally enacted, ‘incapacity’ was defined, for the purposes of industrial deafness, to include ‘inability to engage in the worker’s own or other suitable employment’, but ‘suitable employment’ remained undefined (as did the terms ‘total incapacity’ and ‘partial incapacity’).
C.3.  The legal requirements — in light of the current definitions
Capacity
22	It was in the above context that definitions of ‘total incapacity’, ‘partial incapacity’ and ‘suitable employment’ were introduced into the Victorian legislation by the Accident Compensation (WorkCover) Act 1992.  ‘Total incapacity’ was initially defined as an inability arising from injury such that the worker is unable to return to work, either in pre-injury employment or in suitable employment.  ‘Partial incapacity’ was defined to be an inability arising from an injury such that the worker is not able to return to pre-injury employment but is able to return to work in suitable employment.  
23	These terms have since been modified, with ‘current work capacity’ taking the place of ‘partial incapacity’, and ‘no current work capacity’ taking the place of ‘total incapacity’.  The definitions themselves have also been altered so that they read in terms of ‘capacity’, rather than ‘incapacity’.  I do not see this change in nomenclature as significant.  The definition of ‘suitable employment’ was expanded.  Presently:
(a)	‘current work capacity’ is defined to mean:
a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment
(b)	‘no current work capacity’ is defined to mean:
a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
24	As their Honours made clear in Richter v Driscoll, the fact that both these definitions embrace the concept of returning to work in employment conveys an intention to maintain the established notion that the mere fact that a worker is able to perform work duties does not mean that they have a work capacity.  Rather, the issue is whether they have the capacity to return to work, in the sense of having something to sell in the market for labour.
25	However, a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment.  There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn.  One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties.  Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment.  Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance.  Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance.  However, these cases would be the exception, rather than the rule.  It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter. 
Suitable employment
26	 ‘Suitable employment’ is relevantly defined to mean:
         employment in work for which the worker is currently suited—
(a)	having regard to the following—
(i) 	the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)	the nature of the worker’s pre-injury employment;
(iii) 	the worker’s age, education, skills and work experience;
(iv) 	the worker’s place of residence;
(v) 	any plan or document prepared as part of the return to work planning process;
(vi)	any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)	regardless of whether—
(i)	the work or the employment is available; or
(ii)	the work or the employment is of a type or nature that is generally available in the employment market…
27	Again, as the Court made clear in Richter v Driscoll, this definition, by confirming that employment is ‘suitable employment’ even if it is not ‘available’, conveys an intention to maintain the established notion that an inability to obtain work due to the state of the labour market does not give rise to an entitlement to compensation.  Associated with this is the fact that an inability to obtain work does not, of itself, establish a compensable incapacity.
28	It follows from the above that, contrary to Mr Bainbridge’s submission, so long as a Panel has in mind the concept of a worker’s labour having to be saleable in the labour market, a Panel is not required to conclude whether or not the worker could ‘find employment’.
Relevant ‘personal characteristics’ — time out of work 
29	There is an issue as to whether or not the factors that create the situation that a worker has an ability to perform work duties but no ability to return to work in employment must arise from the relevant injury.  
30	In Ball v William Hunt & Sons, the Court expressed the concept in terms that suggest that the relevant factor must derive from the injury.  Earl Loreburn LC posed the question of whether the incapacity for work ‘resulted from’ the work injury, before stating that the ‘physical defect’ must ‘make his labour unsaleable’.  Lord Atkinson said ‘the workman whom because of the injury caused by an accident, nobody will employ, comes within its purview as much as one who is rendered unable to do any work at all’.  The examples given in para 25 above are all of that type.
31	On the other hand, matters independent of the compensable injury, such as a worker’s age and work experience, have always been relevant.  Indeed, they now form part of the definition of ‘suitable employment’.  
32	In Richter v Driscoll, the Court referred to ‘the entirety of the worker’s personal circumstances’ as being relevant to the issue of whether a worker has labour to sell.  This proposition, if it was intended to include the effects of subsequent, independent injuries, would be too broad, because, as noted in Part B above, there are binding authorities that compel the contrary conclusion, and those authorities were not referred to in Richter v Driscoll.  
33	Also, when expressing the requirement that regard be had to the ‘entirety of the worker’s personal circumstances’, the Court approved the following observation of Buckley LJ in Cardiff Corporation v Hall:
[O]wing to incapacity for work arising from the accident the condition of the workman is such that his labour is not saleable…
34	Further, the Court quoted, and did not disagree with, the following passage in Barwon Spinners v Podolak (‘Barwon Spinners’):
If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.
35	Similarly, the Court in Richter v Driscoll did not dispute the conclusion reached by the Court in Barwon Spinners that incapacity cannot be established by showing that an employer is unlikely to hire a worker who has previously made a claim for compensation, even though the fact that a worker has previously made a claim would in ordinary parlance be a ‘personal circumstance’ of that worker. 
36	However, the Court in Richter v Driscoll did state that the fact that the worker had been ‘out of all work for 20 years by reason of an incapacity which had been compensated’ was ‘surely a matter which required consideration’.  It found this was a matter ‘of considerable importance’, whilst acknowledging that it was not a matter that fitted precisely into the categories to which reference was required to be made in the definition of suitable employment. 
37	What was meant by the phrase ‘personal circumstances’ was otherwise not the subject of argument, or further elucidated, because it did not have to be.  The respondent had accepted that the Panel was required to evaluate the applicant’s ‘capacity to re-enter the workforce … as a wage earning employee’ and the case turned on whether or not the Panel had improperly limited itself to the applicant’s physical capacity to perform work duties.  The Court concluded that the Panel had erred by focusing ‘entirely’ upon the applicant’s physical capacity to undertake the duties described, and by not taking into account the applicant’s age, previous experience, education, skills and place of residence.  That would have been sufficient to dispose of the case.  
38	As noted above, the ‘personal circumstance’ that featured in Richter v Driscoll was the fact that the worker had been on weekly payments of compensation for some 20 years prior to having the payments ceased.  If the Court of Appeal were intending that the fact that someone had been on weekly payments of compensation for an extended period was a consideration that had to be taken into account in assessing work capacity — ie that the worker may be a less desirable employee due to the fact that he or she had made a claim and received benefits — there would be a tension with the notion accepted in Barwon Spinners that the fact that a worker has had a compensation claim is not relevant. I assume, therefore, that the Court of Appeal was instead conveying that an extended period of time outside the workforce was a relevant consideration.  There could be no argument with that proposition, particularly if the extended period of unemployment was a result of injury suffered.  If nothing else, it would fall for consideration of part of the worker’s ‘work experience’, which is a mandatory consideration contained in para (a)(iii) of the definition of ‘suitable employment’.  
39	Accordingly, I accept that in the circumstances of this case, the Panel was required to have regard to the fact that Mr Bainbridge had been out of work since March 2003. 
Relevant ‘personal characteristics’ — marijuana use
40	Mr Uren submitted that the Panel was required to consider Mr Bainbridge’s marijuana use on the basis that it was one of his ‘personal characteristics’.  Mr Uren submitted that ‘it would be an issue in the person’s engagement by the employer that the person he was engaging was a regular user of an illicit substance’, and that ‘it might also have an effect on the ability to actually perform particular tasks’. 
41	I do not accept the submission that the Panel was required to consider Mr Bainbridge’s marijuana use on the basis that it was one of his ‘personal characteristics’.  
42	It was not suggested in this case that Mr Bainbridge’s marijuana use was due to a substance abuse disorder resulting from his injury, or that it was used as an analgesic.  In fact, his use of marijuana since the age of 14 would suggest the contrary.  It had not prevented Mr Bainbridge from engaging in employment prior to his wrist injury.  There was no suggestion that its use was anything other than recreational.  Further, Mr Bainbridge did not suggest to the Panel that it was a reason for which he could not work, and indeed, as discussed below in more detail, Mr Bainbridge thought that he was capable of some form of employment, albeit that he was ‘not sure what he could do’.  Finally, Mr Bainbridge, in his submissions to the Panel, did not rely on his marijuana use as a reason for which he contended he had no work capacity.
C.4.  The Panel’s reasons and approach in this case
43	Here, the Panel stated that it considered:
•	The nature, extent and severity of the Plaintiff’s physical medical condition, including, noting that he takes no analgesia but has limited use of his dominant right hand, and its effect on his physical capacity to cope with employment duties and to attend a workplace on a consistent basis;
•	The nature, extent and severity of the Plaintiff’s psychiatric medical condition, which the Panel considered would not affect his work capacity in any way;
•	The Plaintiff’s age of 47 years, which the Panel considered does not limit his employment options;
•	The Plaintiff’s place of residence in outer Melbourne suburbia, which the Panel considered does not limit his employment options;
•	The Plaintiff’s possession of a current driver’s licence and ability to drive a suitably modified vehicle, which the Panel considered to limit his employment options in relation to the transport industry;
•	The Plaintiff’s transferable skills, which include excellent English communication skills, good literacy and numeracy skills but limited computer skills, trade qualifications in butchery but an occupational experience which is limited to abattoirs, which the Panel considered does not preclude employment options in a range of other industries;
•	The occupational rehabilitation services which have been provided for the Plaintiff, which include four Vocational Assessments and two computer courses by way of retraining;
•	The length of the Plaintiff’s absence from the workforce, which the Panel considered would render a re-entry to the workforce difficult in the absence of motivation; and
•	The opinion of the Plaintiff’s treating general practitioner, Dr S Sooknandan, … [who] stated that although he has certified the Plaintiff to have a capacity ‘for modified duties, given his education, skills, work experience and medical condition, it seems unlikely that he would be able to get employment’.
44	The Panel then considered a number of the posited employment considerations, and concluded that they were not suitable because of the ‘bimanual handing’ requirements.  These occupations included cashier/console operator, sales assistant/customer service, parking attendant, service station attendant, light product assembler, courier, rental sales person, light process worker and machine operator.
45	The Panel then said:
The [Panel] considered the vocational options of a weighbridge operator, a ticket seller, a meter reader, a mobile camera operator and a taxi rank coordinator.  The Panel considered that the duties of these positions would require minimal use of the Plaintiff’s dominant right hand, which would not be beyond his physical functional capacity and/or tolerance.  The Panel also considered that these duties would not be beyond the Plaintiff’s intellectual and educational abilities and would provide him with on-the-job training, and potentially also for job-sharing and part-time employment if he so desired.  Based on its clinical and psychiatric examinations of the Plaintiff, the Panel also considered that none of these employment options would exacerbate or aggravate either the Plaintiff’s current physical and psychiatric medical condition in any way.
The Panel considered that the Plaintiff has the transferable skills and the physical and psychological functional capacity which would allow him to undertake the employment options of a weighbridge operator, a ticket seller, a meter reader, a mobile camera operator and a taxi rank coordinator without further retraining.
The Panel therefore concluded that the Plaintiff has a current work capacity.
46	The Panel then referred to an opinion placed before it to the effect that Mr Bainbridge did not have the literacy skills or computer-based skills to pursue the role of a ticket seller and weighbridge operator, but noted that it disagreed with that person about Mr Bainbridge’s intellectual abilities.
C.5. 	Did the Panel err as contended by Mr Bainbridge — ie did the Panel limit itself to the ability to perform the work tasks?
47	It must be remembered that the legislature has entrusted to the Panel the responsibility for answering the questions sent to it.  In doing so, it has entrusted to the Panel the responsibility for making the factual conclusions that underpin any finding of capacity or incapacity, as well as drawing what is often a contestable conclusion as to work capacity.  In a proceeding for judicial review, the Court is concerned with the legality, not the merits, of the decision.  The issue here is not whether the Panel reached a conclusion with which the Court agrees or disagrees, but rather whether the Panel correctly applied the legal principles, had regard to relevant considerations, and did not have regard to irrelevant considerations.
48	The features of this case that might allow for a conclusion that Mr Bainbridge was unable to return to work in employment notwithstanding a capacity to perform the identified work duties were his lack of prior experience in these jobs and the length of time for which he had been out of the workforce.  The Panel, explicitly, had regard to both of these issues.  The Panel noted that Mr Bainbridge’s occupational experience was limited to abattoirs, but concluded that, in light of his transferable skills, that did not preclude employment ‘in a range of other industries’.  The Panel referred to the  length of Mr Bainbridge’s absence from the workforce and said that it would render a re-entry to the workforce ‘difficult in the absence of motivation’.  By implication, with motivation, that period of absence would not preclude a return to work.  
49	Further, the Panel said it had regard to Mr Bainbridge’s capacity to cope with employment duties and ‘to attend a workplace on a consistent basis’.  It also stated that the performance of the duties would not exacerbate or aggravate Mr Bainbridge’s injuries.  It that context, it concluded that Mr Bainbridge could ‘undertake’ the identified employment options.  Finally, it confirmed that it had ‘formed a different opinion’ to the opinion of Dr Sooknandan, which opinion included the statement that it was unlikely that Mr Bainbridge ‘would be able to get employment’.
50	Together, these matters indicate that the Panel did not limit itself to whether or not Mr Bainbridge was able to perform the physical tasks associated with employment, but rather turned its mind to the broader question of his capacity to return to work in employment in the sense discussed in Part C.3 above.
51	Mr Uren made the further, more specific, submissions that:
(a)	The Panel was required to ask whether or not Mr Bainbridge was able to ‘get’ or ‘find’ employment.  For the reasons set out in paras 22–27 above, I do not agree.  The question it had to ask was whether or not he had a capacity to return to work in employment.
(b)	The Panel was required to use in its reasons the actual words ‘as a settled or established member of the workforce’, and that its failure to do so was, of itself, sufficient reason to set aside its decision.  I do not agree.  There is no magic formulation of words required.  Rather, the issue is whether, when the reasons are read as a whole, bearing in mind that they are not reasons of a Court and are to be given a beneficial construction rather than read with an eye for error, they reveal that the Panel misapplied the law. 
(c)	The Panel was required to identify suitable jobs within a reasonable driving distance of where Mr Bainbridge lived.  Again, I disagree, to the extent that this submission required an explicit finding on the part of the Panel.  The Panel, in forming its view, had to have regard to Mr Bainbridge’s place of residence in determining whether he had the capacity to return to work in suitable employment.  It did so: it noted that Mr Bainbridge lived in ‘outer Melbourne suburbia’, and explicitly said that this did not limit his employment options.  This conclusion was unsurprising given Mr Bainbridge’s ability to drive his motor vehicle.  And, as noted in Part D.5 below, the vocational reports indicated that, as a general proposition, employment of at least four of the five types under consideration existed in the ‘north west’. This was sufficient.
D.  Was there evidence that supported the Panel’s findings?
52	Mr Bainbridge had a ground of appeal that there was no evidence to support the Panel’s findings that: 
(a)	the identified occupations would only require minimal use of the plaintiff’s right hand that would not be beyond his capacity or tolerance; or 
(b)	the duties would not exacerbate his condition; or
(c)	he had the transferable skills and capacity that would allow him to undertake the identified options with or without retraining;
(d)	his age and place of residence did not limit his employment options.  
53	As stated above, the identified occupations were: weighbridge operator, ticket seller, meter reader, mobile camera operator and taxi rank coordinator.  The written submissions did not advance the matter beyond the grounds themselves.  In oral argument, this ground was essentially subsumed under the reasons ground.
54	The submission that there must be ‘evidence’ to support a finding, in my view, misconceives the role of the Panel.  A Panel is required to answer the questions posed for it by application of its own medical experience and medical expertise, rather than by adjudicating on the material put before it.  This concept is straightforward in the case of opinions that are clearly medical in nature, like a diagnosis of injury.  It is more problematic when the finding is not a simply medical matter.  This will often be the case when a Panel is opining as to capacity to engage in suitable employment.  The giving of such opinions will often require the Panel to turn its mind to matters such as the nature of the duties associated with various employment occupations.  This is the role that Parliament has required it to perform and, in ordinary circumstances, the Panel must answer the questions sent to it.  A plaintiff cannot simply impugn the answers on the basis there was no ‘evidence’ provided by the Panel in support of its answers.  The difficulties are ameliorated, at least to some extent, by the ability of the convenor to appoint an occupational physician to the Panel, as occurred here, and the Panel’s power to inform itself on any matter in any manner it thinks fit, or to request the referring body or worker to provide more information.
55	That said, there was, in my opinion occupational and other material before the Panel which amounted to ‘evidence’ that could, together with  the Panel’s examination findings and history, support the conclusions it reached.
D.1. Finding 1 — The identified occupations would only require minimal use of Mr Bainbridge’s right hand that would not be beyond his capacity or tolerance
56	The Panel examined Mr Bainbridge’s wrist.  It noted no evidence of swelling, no tenderness to palpation, restricted movements but no reported discomfort on movement, and no crepitus.  There was a full range of all the small joints of the fingers and thumbs and no evidence of any wasting of the intrinsic muscles of the hand.  There were trophic changes consistent with regular use of the hand, and no sensory abnormalities.  There was reduced grip strength compared to the left hand, but the grip strength was still 40kg on the right.
57	The Panel had before it a vocational report from Ayres Management Services (or AMS Consulting Group) dated 31 July 2017.  As examples, it set out information relating to:
(a)	the job title of ‘Weighbridge Operator’.  It described the duties as: ‘Operates weighing plant and issuing measurement tickets which provide readings of vehicles and livestock weight.’  The physical demands were described and ‘Light/Medium’; and
(b)	the job title of ‘Ticket Seller’.  It described the duties to include such things as receiving customers’ requests and issuing tickets, checking service availability and times and making reservations, and selling tickets.  The physical demands were described as ‘Sedentary’.
58	The Panel also had before it a vocational assessment from ‘healthework’ dated 20 March 2015, which set out some information relating to:
(a)	the job title of ‘Weighbridge Operator’.  The author stated that he had observed this role and undertaken a worksite assessment.  He listed the physical requirements, and made no reference to any manual handling.  The author thought that this role was ‘ideal for Mr Bainbridge’.
(b)	the job title of ‘mobile camera operator’.  It identified the lifting requirements of the job as setting up and operating the camera equipment, noting that this was not a repetitive task.  It otherwise identified the duties required, and, again, the author thought that this role was ‘ideal for Mr Bainbridge’.
(c)	the job title of ‘taxi rank coordinator – Airports, train stations etc’.  It was stated that this job did not include any repetitive upper limb activity except when hailing down a taxi, noted that this could be done with the left arm, and otherwise stated that the job involved ‘minimal’ use of both upper limbs.
59	If evidence were required as to the fact that the occupations would only require minimal use of Mr Bainbridge’s hand and would not be beyond his capacity or tolerance, these opinions, combined with the Panel’s medical expertise, would be sufficient.
D.2.  Finding 2 — Evidence that the duties would not exacerbate his condition
60	On any view, this was a matter within the Panel’s medical expertise and was not a matter that required any external ‘evidence’.
D.3.  Finding 3 — Evidence that Mr Bainbridge had the transferable skills and capacity that would allow him to undertake the identified options with or without retraining
61	It cannot be said that the Panel had ‘no evidence’ before it to the effect that Mr Bainbridge had the transferable skills and capacity that would allow him to undertake the identified options with or without retraining.  This is because the author of the healthework assessment opined that Mr Bainbridge had the necessary transferable skills and the acumen to learn new duties for vocational options including as a weighbridge operator, mobile camera operator and taxi rank coordinator.  Additionally, the author of the Ayres report stated that occupations including weighbridge operator, ticket seller, and meter reader were ‘considered suitable for Mr Bainbridge taking into consideration his medical restrictions, previous employment experiences, and transferable skills (including good English communication skills, interpersonal skills, and basic computer skills)’.
62	Further, the ‘evidence’ would include the Panel’s observations that Mr Bainbridge’s use of language was ‘simple and direct, and his general manner was amiable and open’, that his ‘cognitive functioning appeared intact and his insight and judgment were normal’, and the fact that he told the Panel that:
(a)	Despite his limited formal education, his literacy skills were good and that he was able to read and understand a newspaper; and
(b)	He had attended two computer course and, by implication, was able to learn what the courses covered, despite him saying that he considered himself to have gained little from this retraining, and that he has a computer at home that he used for Facebook and to play games.
D.5.  Finding 4 — Evidence that Mr Bainbridge’s age and place of residence did not limit his employment options
63	Mr Bainbridge is 47 and lives in Melton.  He told the Panel that he was able to drive his car.  There was nothing to suggest that he was restricted in the distances he could cover, or indeed that he could not catch public transport.
64	The Panel was obliged to consider Mr Bainbridge’s age and place of residence when considering what would be ‘suitable employment’.  The Panel stated that it considered Mr Bainbridge’s place of residence, and stated its opinion that his place of residence ‘does not limit’ his employment options.  It also considered his age, and stated its opinion that his age also ‘does not limit his employment options’.   
65	Mr Bainbridge’s argument under this head is not that the Panel failed to consider these matters, but rather that it reached conclusions for which there was ‘no evidence’.  In my view, no external ‘evidence’ was required to support those conclusions.  In the circumstances of this case, they were conclusions that the Panel could reach by application of its own knowledge and expertise.  
66	Further, the Ayres report gave examples of businesses located in the ‘north west’ that would have people employed as weighbridge operators, ticket sellers, and meter readers.  If evidence were required, that evidence would suffice.
E.  Did the Panel give adequate reasons for its opinions?
67	The reasons are required to expose the Panel’s reasoning process in sufficient detail for a Court to ascertain whether or not it fell into error.  They are entitled to a beneficial construction, and it is to be borne in mind that they are reasons given by doctors, rather than by judicial officers.
68	For the reasons set out in Part C.5 above, in my view the Panel’s reasons indicate that it applied the correct legal principles.  
69	Mr Uren submitted, based on observations made by the Court of Appeal in Richter v Driscoll and Cavanough J in Lang v Spendless Shoes, that the reasons were deficient because they did not give sufficient ‘practical content’ to the work options identified for the Court to determine whether or not the Panel had misdirected itself in concluding that Mr Bainbridge had the capacity to return to work in those employment options.
70	I disagree.  Each case must turn on its own facts, and observations as to the level of factual detail required in one case do not establish a minimum requirement of factual detail for all cases.  In the circumstances of this case, the reasons show, in my view, that the Panel properly directed itself in reaching the conclusions it did.
71	In this context, I note that there are significant differences between this case and the circumstances under consideration in Richter v Driscoll.  Although in both cases the claimants had been out of employment for a lengthy period, Mr Bainbridge was 47 years old, whilst Ms Richter was nearly 59 years old.  Mr Bainbridge had a wrist injury that, although stiff and ‘sore’, required no analgesic or other medication and limited only the use of his hand (although by extension also his arm).  On examination, there was no swelling or tenderness or discomfort on movement.  Ms Richter had a significant spinal injury, was in constant pain, was limited in her ability to sit, stand, walk, drive, bend and lift,  and was taking slow release morphine.  Mr Bainbridge had worked in an abattoir, whilst Ms Driscoll had ‘virtually no acquired employment skills or experience’.  Mr Bainbridge had left school at age 14 but, the Panel concluded, had good literacy skills, and his general manner was ‘amiable and open’.  He could use computers to a degree and had completed two courses, albeit that he did not consider that the courses had been of any benefit.  He also thought that he could engage in some employment, although he was not sure what.  Ms Driscoll had left school after year seven, had difficulties with literacy and numeracy, and had no computer skills.  
72	The Court of Appeal concluded in Richter v Driscoll that the Panel’s reasons were inadequate because they did not explain how the Panel concluded that the proposed work duties were within Ms Richter’s physical capacity, so the Court could not conclude whether or not it had erred in law.  This case is different.  In my view, there was no need for the Panel to give further content than it did to the employment options under consideration for me to be satisfied that it had not erred in law.
F.  Conclusion
73	As I have not been persuaded that the Panel erred in its approach or that the reasons were deficient, the proceeding ought be dismissed.
74	I will hear the parties on the question of costs.

SCHEDULE OF PARTIES
BETWEEN
DEREK BAINBRIDGE	Plaintiff	
		
– and –		
		
WESTSIDE MEATS PTY LTD	First Defendant	
		
SUSANNE HOMOLKA	Second Defendant	
		
MARIE FELETAR	Third Defendant	
		
ROGER WESTH	Fourth Defendant	
		
ALEXANDER HOLMES	Fifth Defendant	
		
JOHN CRONIN	Sixth Defendant