Boroondara City Council v Howell
[2023] VSC 406
•14 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01465
| BOROONDARA CITY COUNCIL | Plaintiff |
| v | |
| MARGARET HOWELL | First Defendant |
| and | |
| DR DAVID MURPHY and MR JOHN SKELLEY | Second and Third Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2023 |
DATE OF JUDGMENT: | 14 July 2023 |
CASE MAY BE CITED AS: | Boroondara City Council v Howell |
MEDIUM NEUTRAL CITATION: | [2023] VSC 406 |
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ADMINISTRATIVE LAW — Judicial review — Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 (Vic) — Panel’s determination that plaintiff’s degree of impairment satisfied the threshold level for a ‘significant injury’ — Whether Panel’s assessment of degree of impairment in accordance with the AMA Guides — Whether Panel failed to disregard impairments from unrelated injuries or causes — Whether Panel acted unreasonably by failing to obtain further medical records — Wrongs Act 1958 (Vic), ss 28LH, 28LL.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms RL Kaye KC with Mr T Staindl | Kennedys Lawyers |
| For the First Defendant | Mr PA Czarnota and Mr AJ Macaskill | Slater & Gordon Ltd |
| For the Second and Third Defendants | No appearance |
HER HONOUR:
On 11 July 2019, Margaret Howell walked from her home in Glen Iris to post a letter. On her way back, she tripped on a raised section of footpath, and fell and twisted her right knee. She was able to walk the rest of the way home, but later developed right knee pain and swelling, for which she sought medical treatment. Ms Howell’s orthopaedic surgeon, Mr Camdon Fary, prescribed a hinged knee brace, and referred her for an MRI, which showed her to have a strain of the lateral collateral ligament and an effusion with aggravation of her arthritis.
After wearing the knee brace for some weeks, Ms Howell was keen to return to her previous habit of walking without an aid. Her son expressed concern about her risk of further falls, and Mr Fary recommended that Ms Howell use a four-wheeled walking frame when out and about. Since then, Ms Howell has used a wheeled frame when walking outdoors.
Ms Howell claims compensation from Boroondara City Council, on the basis that it is responsible for the footpath where she fell and injured her right knee. Under Pt VBA of the Wrongs Act 1958 (Vic), Ms Howell can only recover damages for non-economic loss if she suffered a ‘significant injury’ as a result of her fall.[1] This requires a medical assessment that ‘the degree of impairment of the whole person resulting from the injury’ satisfies the ‘threshold level’.[2]
[1]Wrongs Act 1958 (Vic), s 28LE.
[2]Wrongs Act, s 28LF(1). The ‘threshold level’ is defined in s 28LB, and described at [31] below.
On 6 October 2021, Mr Craig Mills, an orthopaedic surgeon, provided a certificate of assessment for Ms Howell, which certified that he was satisfied that the degree of impairment resulting from her injury satisfied the threshold level. Mr Mills described the injury as a ‘fall causing knee injury resulting in changed gait’.
On 19 November 2021, through its lawyers, the Council referred a medical question to a Medical Panel for determination.[3] The question was whether the degree of impairment resulting from the physical injury to Ms Howell alleged in her claim satisfied the threshold level. The Council provided the Panel with information including Mr Mills’ certificate and impairment assessment report of 14 October 2021, medical records from Mr Fary, and medical records from Murray House Clinic, the general practice attended by Ms Howell. The referral letter from the Council’s solicitors also set out the Council’s arguments as to why Ms Howell’s injury did not meet the threshold level.
[3]Pursuant to Wrongs Act, s 28LWE.
A Medical Panel was convened to consider the referral, comprising Dr David Murphy, rehabilitation physician, and Mr John Skelley, orthopaedic surgeon. The Panel examined Ms Howell on 2 February 2022.
The Panel provided its certificate of determination and a written statement of reasons on 1 March 2022. It determined that the degree of whole person impairment resulting from the physical injury to Ms Howell alleged in her claim does satisfy the threshold level. The effect of the Panel’s determination is that Ms Howell suffered a ‘significant injury’ within the meaning of Pt VBA of the Wrongs Act and may recover damages for non-economic loss in respect of her injury.
In this proceeding, the Council seeks judicial review of the Panel’s determination. It contends that it was affected by jurisdictional error or error of law, because the Panel did not assess Ms Howell’s degree of impairment in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (Guides), as required by s 28LH of the Wrongs Act. Specifically, the Council claims that the Panel erred by using Section 3.2b of the Guides, the gait derangement method, to assess Ms Howell’s degree of impairment. The Council also argues that the Panel did not properly apply s 28LL(3) of the Wrongs Act, and failed to take into consideration impairments from unrelated injuries or causes which were to be disregarded under that provision. In addition, the Council submits that the Panel acted unreasonably by failing to obtain the records of Ms Howell’s treating neurologist.
The Council seeks an order in the nature of certiorari quashing the Panel’s determination, and an order in the nature of mandamus remitting the referred medical question to a differently constituted Medical Panel to be reconsidered in accordance with law.
For the reasons that follow, I have concluded that the Panel’s determination was free from error, and that the proceeding should be dismissed.
The Panel’s determination and reasons
The Panel’s certificate of determination was given pursuant to s 28LWE of the Wrongs Act, on 1 March 2022. It set out the Panel’s answer to the question that had been referred to it:
Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
Answer: The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does satisfy the threshold level.
The Panel’s reasons for determination recorded that Ms Howell was examined by both members of the Panel on 2 February 2022. The Panel said that it formed its opinion with regard to the documents and information referred to it in Enclosure A, the history provided by Ms Howell, and the examination findings elicited by the Panel at the examination. Enclosure A listed the documents provided by the Council’s solicitors with the referral.
The Panel noted from the referral Ms Howell’s claim that while walking near her Glen Iris home on 11 July 2019, she sustained injuries when she tripped and fell due to a displaced section of footpath. It also noted Ms Howell’s claimed injuries to her right knee, including the lateral collateral ligament.
The background and pre-incident history taken by the Panel included that Ms Howell was then 85 years old, had been widowed for seven years, and lives in a unit in Glen Iris. Her past medical history was recorded as:
–lower limb injury in 2009 when she slipped on a leaf - she had physiotherapy treatment and made a full recovery,
–right shoulder surgery with good result,
–lumbar laminectomy performed by Prof Peter Petty,
–epidural injections for referred leg pain which were helpful,
–cerebrovascular disease including a transient ischaemic event in 2016 and stroke in 2018 which mainly affected her speech and from which she made a good recovery,
–left total hip replacement in 2015 which Ms Howell’s said was “brilliant” and after rehabilitation was able to walk without a gait aid until the incident,
–anxiety and depression.
Ms Howell told the Panel that she had no pain or dysfunction in her right knee before the incident. She had seen a rheumatologist for generalised muscular aches and pains in the past, but could not recall having a specific problem with her right knee.
The Panel then recorded Ms Howell’s history of the incident and her subsequent treatment, including this account of how she came to be using a walking frame:
After review of the MRI Mr Fary told her that she had sprained but not ruptured the ligament and [that] she had pre-existing arthritis which had been aggravated by fall. He advised Ms Howell to continue to wear the brace for 6 weeks further and have physiotherapy. Ms Howell said she at this stage she was keen to return to her pre-incident habit of walking without an aid. Ms Howell’s son was present at this consultation [and] expressed his concern to Mr Fary that she was a risk of further falls. Mr Fary recommended that Ms Howell’s should use a four-wheeled frame when walking to relieve pressure on the right knee and for safety as her gait was less safe after the fall of 11 July 2019.
Ms Howell said she now always walks with a four-wheel frame outdoors and walks holding onto furniture in the house. She told the Panel that her right knee feels painful and unstable without the use of the frame, and she has accepted that she must continue to use the frame life-long.
The Panel noted Ms Howell’s current symptoms to be ‘aching, toothache like pain over the medial and posterior aspects of the right knee’, which is most troublesome at night and after walking. The knee feels unstable when she walks, without noticeable clicking, locking, or giving way. It swells from time to time. She regularly walks around the block; any further and the knee aches at night.
Ms Howell’s current treatment for her right knee was recorded as Panadol Osteo, taken according to the severity of her pain, with hot packs applied as required. She was not currently attending physiotherapy but was regularly doing the list of exercises she had been given to strengthen her knee. She occasionally took temazepam at night to help her sleep if her right knee was particularly painful, as well as taking other medication for other medical conditions.
As to her current function, Ms Howell told the Panel that she lived alone and was independent with personal care. She was unable to walk up and down steps alone, because someone else has to carry her walker. She no longer drives or uses public transport, as she had done before the incident. She uses taxis for transport, has council assistance for household chores and shopping, and help from her son and grandchildren with household and garden maintenance.
The Panel’s physical examination of Ms Howell showed:
–a frail lady who walked into the room with a 4-wheeled frame,
–flexed right knee in the standing position,
–inability to stand on heels and toes,
–slow, tentative, closely supervised, mildly antalgic gait favouring the right side when not using the frame,
–thigh circumferences right 43cm - left 41 cm,
–calf circumferences right 32 cm - left 31 cm,
–no leg length discrepancy,
–hips non-irritable,
–negative straight leg raise test both sides,
–normal neurological examination of the lower limbs,
–normal spinal posture,
–a well healed midline longitudinal scar over the lumbar spine,
–mild tenderness over the lower lumbar spine,
–mildly reduced lumbar flexion and extension,
–mildly and symmetrically reduced lumbar lateral flexion and rotation.
The Panel specifically examined Ms Howell’s right knee, and recorded the following findings:
–range of movement extension 0° - flexion 95°,
–normal alignment,
–no effusion,
–no quadriceps lag,
–mild tenderness over the medial joint line,
–no lateral tenderness,
–no posterior tenderness or swelling,
–mild crepitus of the patellofemoral joint,
–intact cruciate ligaments,
–no instability of the collateral ligaments.
Next, the Panel referred to the report of the MRI scan performed on 14 August 2019, and to a letter from Mr Fary to Murray House Clinic dated 9 September 2019, stating:
I reviewed Margaret whose MRI of her knee has demonstrated a strain of her lateral collateral ligament, not a full thickness tear. There is an effusion with aggravation of her arthritis. Her hinged knee brace has given her good stability to the point that she no longer wishes to use a walking stick which is not wise considering the multiple falls she has had over the last five years.
In discussion with her eldest son, we planned for her to use a four-wheel Zimmer frame when out and about as her balance and memory are decreasing. She will remove the hinge brace in four to six weeks.
The Panel considered that it did not require any further imaging or medical reports in order to form an opinion and assess the impairment.
The Panel concluded that Ms Howell was suffering from an aggravation of osteoarthritis of the right knee, and that the condition was stable.
Under the heading ‘Impairment Assessment’, the Panel said:
The Panel conducted an impairment assessment according to the methods prescribed in the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) (the Guides), as required by Section 28LH of the Wrongs Act 1958 (the Act). The Panel considered that no further information was required from Ms Howell’s treating practitioners to carry out the assessment.
The Panel assessed impairment of the right knee in accordance with Section 3.2 of Chapter Three. Active ranges of joint movement were measured using a goniometer in accordance with the instructions in the Guides.
While the Panel noted the narrative at 3/75 of the Guides that, with respect to gait derangement, “whenever possible, the evaluator should use the more specific methods of those other parts in estimating impairment,” the Panel considered Ms Howell’s current symptoms and function, including her routine use of a walking aid (in Ms Howell’s case a four wheel frame as a substitute for use of a cane or crutch), and is of the opinion that using the estimates related to gait disturbance was proper.
The Panel, therefore, assessed the appropriate whole person impairment resulting from routine use of a cane or crutch, pursuant to Table 36 of Section 3.2b.
The Panel considered it was unnecessary to determine whether there was any additional impairment when assessed in accordance with the Guides in order to answer the medical question.
The Panel then said that in making an assessment of impairment, it had taken into account Ms Howell’s history and referral material to determine the level of impairment that may have been present prior to or after the incident, which it was required to disregard as impairment from unrelated causes or injuries under s 28LL(3) of the Wrongs Act. It set out a passage from City of Melbourne v Neppessen,[4] regarding the approach to be taken to identifying and estimating the extent of an unrelated impairment. The Panel continued:
The Panel noted Ms Howell’s history of stroke, left total hip replacement and spinal surgery. The Panel noted that Ms Howell made good recoveries from these medical conditions and did not require the routine use of a gait aid after these events and considered that these conditions did not significantly contribute to her current requirement to use a gait aid. The Panel noted that Ms Howell has required the routine use of a gait aid since the incident of 11 July 2019.
The Panel considered Ms Howell’s history, reviewed the referral materials and concluded that there is no evidence of impairment from an unrelated injury or cause that is playing a part in Ms Howell’s current impairment which the Panel is obliged to disregard in accordance with Section 28LL(3) of the Act.
[4][2019] VSC 84, [122]–[123], set out at [64] below.
The Panel then said it had assessed impairment arising from Ms Howell’s claimed physical injuries in accordance with the appropriate chapters in the Guides, and considered that further explanation or detailed reasons of the basis on which it had calculated impairment was prohibited by s 28LZG(4) of the Wrongs Act. It also considered that it was not required to make a finding in relation to whether the medical conditions Ms Howell attributes to her claimed injuries were caused by the incident alleged. It said it had assessed impairment from the claimed injuries that were potentially compensable.
In conclusion, the Panel noted the submission made by the Council’s lawyers, and considered that it had adequately addressed the issues raised in the submission in its reasons.
Applicable provisions and principles
Part VBA of the Wrongs Act applies to claims for the recovery of damages for non‑economic loss, with exceptions as provided in s 28LC. Section 28LE provides that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
The term ‘significant injury’ is defined in s 28LF. Section 28LF(1) provides that an injury to a person (other than a psychiatric injury) is a significant injury if, relevantly:
(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level;
…
The ‘threshold level’ is defined in s 28LB to mean, in the case of injury (other than psychiatric or spinal injury), impairment of more than 5% and, in the case of spinal injury, impairment of 5% or more.
The assessment of degree of impairment must be made by an approved medical practitioner.[5] Section 28LH provides:
[5]Wrongs Act, s 28LG.
How is the degree of impairment to be assessed?
(1) Subject to this Division, an approved medical practitioner must make an assessment of degree of impairment under this Part—
(a) in accordance with—
(i) the A.M.A. Guides; or
(ii) the methods prescribed for the purposes of this Part; and
(b) in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
(2) Nothing in subsection (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all of the injuries to the person have stabilised.
Medical Panels are constituted under s 537 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) as necessary for the purposes of the WIRC Act, the Accident Compensation Act 1985 (Vic) (AC Act), and Pt VBA of the Wrongs Act. From a list of medical practitioners appointed by the Governor in Council, a Convenor is appointed,[6] who may convene and constitute a Medical Panel appropriate to each particular case.[7]
[6]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCAct), ss 537(2)–(3)(a).
[7]WIRC Act, s 537(7).
The function of a Medical Panel is neither arbitral nor adjudicative; it is ‘to form and to give its own opinion on the medical question referred for its opinion’.[8] Under Pt VBA of the Wrongs Act, the ‘medical question’ is invariably ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’.[9]
[8]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47] (Wingfoot); Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296, [14]–[16], [18] (Colquhoun); Maimonis v Bourke [2019] VSCA 302, [51](1).
[9]Wrongs Act, s 28LB (definition of ‘medical question’).
Section 28LZA of the Wrongs Act prescribes the information that a respondent must provide to a Medical Panel with a referral, which includes a notice setting out the medical question and a copy of any relevant certificate of assessment. The Convenor may request the respondent to provide further information, and the respondent must comply with any such request.[10]
[10]Wrongs Act, s 28LZA(2)–(2B).
A Medical Panel may ask a claimant to meet with the Panel and answer questions, supply copies of relevant documents in the claimant’s possession, and submit to a medical examination by the Panel.[11] With the consent of the claimant, a Medical Panel may also require a registered health practitioner who has examined the claimant to meet with the Panel and answer questions, and supply relevant documents to the Panel.[12]
[11]Wrongs Act, s 28LZC(1).
[12]Wrongs Act, s 28LZE(1).
A determination by the Medical Panel that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of Pt VBA of the Wrongs Act.[13] Conversely, a determination that the degree of impairment does not satisfy the threshold level must be accepted as a determination that the injury is not a significant injury.[14]
[13]Wrongs Act, s 28LZH(1).
[14]Wrongs Act, s 28LZH(2).
While the interpretation of the Guides is a question of law, the determination of a degree of impairment is a question of fact.[15] The Guides was written by expert medical practitioners to guide other medical practitioners in assessing permanent impairment; it is not a statute, and is not to be applied legalistically.[16]
[15]Saddington v Kotzman [2013] VSC 196, [22] (Saddington).
[16]Saddington, [24].
Unlike the WIRC Act, Pt VBA of the Wrongs Act does not require a Medical Panel to give a written statement of reasons for its determination.[17] Medical Panels convened to determine a question referred under Pt VBA often provide reasons voluntarily — perhaps in anticipation of receiving a request for reasons under s 8 of the Administrative Law Act 1978 (Vic).[18]
[17]Colquhoun, [42]–[44].
[18]A Medical Panel has been held to be a ‘tribunal’ for the purposes of the Administrative Law Act 1978 (Vic) and is required by s 8 of that Act to furnish a statement of its reasons for a determination, if requested to do so by any person affected by the determination: Masters v McCubbery [1996] 1 VR 635, 651 (Winneke P); Ingle v Australia Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50, [24].
Whether given voluntarily or in the performance of a statutory duty, a statement of reasons by a Medical Panel forms part of its determination and is incorporated into the record.[19] A statement of reasons provides a basis for a reviewing court to see whether the determination was affected by error. However, it must be read fairly, as a whole, and in context, and not with an eye keenly attuned to the perception of error.[20] Further, because there is no duty under Pt VBA of the Wrongs Act to provide a statement of reasons for a determination, any inadequacy in the reasons given would not amount to an error with legal consequences.[21]
[19]Administrative Law Act, s 10,
[20]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [9], [20] (Gamble); Dundar v Bas [2019] VSCA 315, [51].
[21]Colquhoun, [45]; cf Wingfoot, [55], in relation to the duty to provide reasons imposed by s 68(2) of the AC Act (and now s 313(2) of the WIRC Act).
Did the Panel err by applying the gait derangement method of assessment?
The Council’s first two grounds of review concern the Panel’s use of Section 3.2 of Chapter 3 of the Guides to assess the impairment of Ms Howell’s right knee. The Council contends that using this method amounted to jurisdictional error, or alternatively an error of law.
Section 3.2 of the Guides provides a number of different methods for evaluating impairment of the lower extremity, which includes the knee. The introduction provides some overall guidance about the selection of the most suitable method to evaluate an impairment:
3.2 The Lower Extremity
Anatomic, diagnostic, and functional methods are used in evaluating permanent impairments of the lower extremity. While some impairments may be evaluated appropriately by determining the range of motion of the extremity, others are better evaluated by the use of diagnostic categories or according to test criteria.
In general, only one evaluation method should be used to evaluate a specific impairment. In some instances, however, as with the example on p. 77, a combination of two or three methods may be required.
This section includes information on using some of the simpler, more reproducible methods of and tests for assessing function. It also includes examples illustrating how the physician selects the best approach to evaluate an impairment. Selecting the optimal approach or combining several methods requires judgment and experience. Also needed is careful testing that produces accurate and consistent results.
…
The method used by the Panel was 3.2b – Gait Derangement:
3.2b Gait Derangement
Gait derangement is a component of many different types of lower extremity impairments. Impairment estimates related to these conditions should be consistent with the pathologic findings, for instance, those seen by roentgenography. Except as otherwise noted, the percents given in Table 36 (p. 76) are for full-time derangements of persons who are dependent on assistive devices.
This part may serve as a general guide for estimating many lower extremity impairments. The lower limb impairment percents shown in Table 36 should stand alone and should not be combined with those given in other parts of Section 3.2. Whenever possible, the evaluator should use the more specific methods of those other parts in estimating impairments.
Section 3.2b does not apply to abnormalities based only on subjective factors, such as pain or sudden giving-way, as with, for example, a patient with low-back discomfort who chooses to use a cane to ease walking.
Example: A 61-year-old professor had symptoms of arthralgia in her left hip and difficulty with walking that required part-time use of a cane. On physical examination, the Trendelenburg test was mildly positive. The range of motion of the hip was normal. Roentgenography indicated moderately advanced hip arthritis.
Diagnosis: Antalgia (gait difficulty), moderately advanced arthritis requiring part-time use of a cane.
Impairment: 15% whole-person impairment.
Comment: The patient’s impairment might be estimated by using the estimates for gait derangement, those for arthritic degeneration (p. 82), or those for hip abductor muscle weakness (p. 77).
In this case, the evaluator believed the patient’s use of a cane best reflected the basic pathologic process and that using the estimates related to gait disturbance was proper.
Table 36 is headed ‘Lower Limb Impairment from Gait Derangement’:
Severity
Patient’s signs
Whole-person impairment (%)
Mild a. Antalgic limp with shortened stance phase and documented moderate to advanced arthritic changes of hip, knee, or ankle
b. Positive Trendelenberg sign and moderate to advanced osteoarthritis of hip
c. Same as category a or b above, but patient requires part-time use of cane or crutch for distance walking but not usually at home or in workplace
d. Requires routine use of short leg brace (ankle-foot orthosis [AFO])
7
10
15
15
Moderate e. Requires routine use of cane, crutch, or long leg brace (knee-ankle-foot orthosis [KAFO])
f. Requires routine use of cane or crutch and a short leg brace (AFO)
g. Requires routine use of two canes or two crutches
20
30
40
Severe h. Requires routine use of two canes or two crutches and a short leg brace (AFO)
i. Requires routine use of two canes or two crutches and a long leg brace (KAFO)
j. Requires routine use of two canes or two crutches and two lower extremity braces (either AFOs or KAFOs)
k. Wheelchair dependent
50
60
70
80
Council’s submissions
The Council contended that the Panel should not have used the gait derangement method to assess the impairment of Ms Howell’s right knee, because it was possible to use other, more specific methods to do so. It referred to ss 28LH and 28LZG(1) of the Wrongs Act, and to the ‘paramount importance’ of being faithful to the Guides’ plain words.[22] It submitted that a Panel must act in conformity with the Guides, by applying the methodologies specified by the Guides.[23]
[22]Referring to HJ Heinz Company Australia Ltd v Kotzman [2009] VSC 311, [26] (HJ Heinz) and Victorian WorkCover Authority v Elsdon (2013) 42 VR 434, [49].
[23]Referring to HJ Heinz, [45]–[48].
The Council relied on the direction in s 3.2b of the Guides that ‘whenever possible’, the evaluator should use the more specific methods provided in Section 3.2 for estimating impairment. It argued that the plain meaning of ‘whenever possible’ is ‘whenever it can be done’, and said that there were more specific methods than gait derangement that could have been used for assessing Ms Howell’s impairment. Mr Mills had identified three such methods in his report: Section 3.2e – Range of Motion; Section 3.2i – Diagnostic-based Estimates; and Section 3.2d – Manual Muscle Testing. The Council submitted that, as there were other more specific methods available, the Panel failed to properly apply the Guides by choosing the gait derangement method.
Further, the Council relied on the statement in Section 3.2b that it does not apply to ‘abnormalities based only on subjective factors, such as pain or sudden giving-way, as with, for example, a patient with low-back discomfort who chooses to use a cane to ease walking’. It said that gait-related abnormalities reported by Ms Howell were based only on subjective factors. Specifically, her use of a walking frame was due to her subjective experience of pain and instability, and fear of further falls. In those circumstances, the Council said that the Panel should have selected a method that focused on the objective impairment of the knee.
In oral argument, the Council submitted that the Panel’s reasons did not demonstrate that it had considered whether using any of the more specific methods was possible. It said that mere references to other methods did not demonstrate that the Panel had considered using them, or why it had determined they could not be used. The fact that the Panel was able to use a goniometer to measure the range of motion of Ms Howell’s right knee was said to illustrate that it was possible to use the range of motion method to assess her impairment. The Council sought to distinguish the statement in Walsh v Bourke,[24] that it will ordinarily be for a Medical Panel to determine the most appropriate method to use, on the basis that there is ‘clear direction’ in Section 3.2b that the gait derangement method should not be used when it is possible to use a more specific method.
[24][2022] VSC 282, [16] (Walsh).
While the Council accepted that the general direction of Section 3.2 is for the assessor to apply judgment and experience in selecting the optimal approach, it argued that this did not override the requirement to apply the plain words of the Guides. In relation to the example given in Section 3.2b, of an evaluator who believed that it was ‘proper’ to use the gait derangement method instead of other methods that might have been used, the Council submitted that the example should not control the meaning of the direction.[25]
[25]Referring to HJ Heinz, [28].
Ms Howell’s submissions
Ms Howell outlined some general legal propositions regarding judicial review of Medical Panel determinations.
(a) Where the Guides provides more than one method for assessing impairment, determining which method to use is generally a matter for the clinical judgment of the assessor.[26]
[26]Greater Shepparton City Council v Kotzman [2022] VSC 551, [24] (Greater Shepparton).
(b) The Panel is free to exercise its clinical judgment, and accord a matter whatever weight it sees fit, provided it can reasonably be inferred that it actively engaged with all mandatory relevant considerations.[27]
[27]Referring to Vellios Electrical Contractors v Barton [2014] VSC 664, [79]; Stojilkovic v Romas [2017] VSC 49, [19] (Stojilkovic).
(c) The Panel’s reasons should be read fairly, given a beneficial construction, and should not be overzealously scrutinised for error.[28]
(d) Where the Panel states in its reasons that it carried out the assessment in accordance with the Guides, there is a heavy onus on the challenging party to persuade the Court that this statement should not be taken at face value.[29]
(e) Care must be taken to avoid crossing the line from judicial review to merits review, which would exceed the Court’s supervisory role.[30]
[28]Referring to Gamble, [9], [20]; Gruma Oceania v Bakar [2014] VSCA 252, [29]; Dundar v Bas [2019] VSCA 315, [51]; Sidiqi v Kotsios [2021] VSCA 187, [64] (Sidiqi); Bhelley v Coles Supermarkets Australia [2022] VSC 446, [49] (Bhelley).
[29]Referring to Gamble, [56]; Bhelley, [54].
[30]Referring to Stojilkovic, [19]; Ryan v The Grange at Wodonga [2015] VSCA 17, [61] (Ryan); Blacker v Boss Trailers [2017] VSC 538, [17].
Ms Howell submitted that the most logical conclusion, based on a fair, beneficial, and not over-zealous review of the Panel’s reasons, is that the Panel complied with its obligation to assess her impairment ‘in accordance with’ the Guides. She referred to passages in the Panel’s reasons that indicated it had turned its mind to various possible methods for assessing impairment under Section 3.2, including limb length discrepancy, muscle atrophy, range of motion, arthritis, and diagnosis-based estimates. She pointed out that the Panel’s reasons set out the direction in Section 3.2b that more specific methods should be used whenever possible, before expressing its opinion that it was proper to use the estimates related to gait disturbance. The logical inference should be that the Panel had weighed up those alternative methods and determined that the gait derangement method was the appropriate method in this case.
In Ms Howell’s submission, the Panel was not obliged, as the Council argued, to apply the other specific methods identified by Mr Mills in preference to the gait derangement method. She said that the Guides makes it clear that gait derangement is an acceptable and appropriate method to apply in some circumstances, and can be used where there is routine use of a cane or crutch (or relevantly, a walking frame). She submitted that the words ‘whenever possible’ should be understood to mean whenever possible in the clinical judgment of the Panel.
Ms Howell refuted the suggestion that her use of a walking frame was based only on subjective factors, on the basis that it had been recommended by her treating doctor. She referred to the reasons given by Mr Fary for recommending use of the frame, including safety and relieving pressure on her right knee, which were specifically noted by the Panel. In oral argument, she emphasised that, as well as her use of a walking aid, the Panel had considered her current symptoms and function. On examination, the Panel found that she had a ‘slow, tentative, closely supervised, mildly antalgic gait favouring the right side when not using the frame’.
Ms Howell drew attention to the introductory instructions in Section 3.2 of the Guides, in particular the statement that ‘selecting the optimal approach or combining several methods requires judgment and experience’. She submitted that it is ultimately a matter for the Panel to determine what method in its professional opinion is appropriate in the circumstances of a given case.[31] She urged the Court not to ‘step into the shoes’ of the Panel, but to accept at face value its statement that it had conducted the assessment in accordance with the Guides.
[31]Referring to HJ Heinz, [46]; Greater Shepparton, [24].
Consideration
For the Council to succeed in its contention that the Panel failed to assess Ms Howell’s degree of impairment ‘in accordance with’ the Guides, it had to demonstrate that the Panel ‘departed from the methodology laid down by the AMA Guides to such an extent that it can be properly said of the assessment that it was not “in accordance with” the Guides’.[32] Reading the Panel’s reasons fairly, as a whole, and in context, I do not consider that they reveal any such departure.
[32]Gamble, [53].
The Panel stated that it conducted the impairment assessment according to the methods prescribed in the Guides, and assessed impairment of Ms Howell’s right knee in accordance with Section 3.2 of Chapter 3. In the absence of some very strong indication to the contrary, I will ordinarily accept a statement of this kind at face value.[33] For the following reasons, I am comfortable doing so in this case.
[33]Withers v Chalmers Industries Pty Ltd [2020] VSC 635, [44]; cf Edwards v State of Victoria [2021] VSC 423, [55] (Edwards).
First, the Panel was clearly alive to the direction in Section 3.2b of the Guides that, whenever possible, more specific methods than the gait derangement method should be used to estimate lower extremity impairments. It quoted the relevant passage from Section 3.2b in its reasons, before expressing its opinion that using the estimates related to gait disturbance was proper.
Second, the Panel’s examination findings include observations or measurements relevant to other evaluation methods, including limb length discrepancy, muscle atrophy, range of motion, and arthritis. This indicates that the Panel considered using these methods, before determining it should use the gait derangement method. The necessary inference that arises from the Panel’s selection of the gait derangement method is that it did not consider it possible to use the other methods to make ‘an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished’.[34]
[34]Guides, Section 1.1 – Impairment, Disability, Handicap: ‘An impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.’.
Third, I accept Ms Howell’s submission that ‘whenever possible’ in Section 3.2b means whenever possible in the clinical judgment of the assessor. As I have already noted, the Guides is a document prepared by expert medical practitioners, to be used by other medical practitioners in a practical setting, and is not to be applied in a legalistic fashion. The introduction to Section 3.2 makes it clear that it is for the assessing practitioner to select the best approach to evaluate an impairment of the lower limb, using their judgment and experience.
It is for the Panel to make a clinical judgment about whether it is possible to use a more specific evaluation method than gait derangement. That judgment can only be disturbed on judicial review on limited grounds — for example, that it was legally unreasonable, or made without genuinely engaging with mandatory considerations, or disregarding critically relevant material. The Court is not free to substitute its own judgment that it would have been possible to use a different evaluation method, because that would be to engage in merits review.
Fourth, the Panel’s approach was consistent with the example provided in Section 3.2b. The comment notes that the patient’s impairment might have been estimated by using the estimates for arthritic degeneration or muscle weakness, but that it was the evaluator’s belief that her use of a cane ‘best reflected the basic pathologic process and that using the estimate related to gait disturbance was proper’. The Panel used very similar wording to explain its selection of the gait derangement method, in preference to other methods. I do not discern any conflict between the example and the words ‘whenever possible’ in Section 3.2b. Rather, the example reinforces that it is a matter for clinical judgment whether it is possible to use a more specific method to evaluate the degree of impairment.
For similar reasons, I am not persuaded by the Council’s contention that the Panel should have selected a different method because Ms Howell’s gait derangement was based only on subjective factors. This appears to me to be an invitation to engage in merits review of the Panel’s clinical judgment as to the appropriate evaluation method. It was for the Panel to assess whether only subjective factors were affecting Ms Howell’s gait. The Panel noted Mr Fary’s reasons for recommending use of a walking frame, but also identified objective factors affecting Ms Howell’s gait, including the medical imaging and its observations of her gait when not using her walking frame. It was open to the Panel to conclude that Ms Howell’s gait abnormality was not based only on subjective factors.
Grounds 1 and 2 are not made out.
Did the Panel fail to disregard unrelated impairment?
Section 28LL(3) of the Wrongs Act provides that, for the purposes of Pt VBA, impairments from unrelated injuries or causes are to be disregarded in making an assessment. In City of Melbourne v Neppessen,[35] Niall JA explained what this provision requires of a Medical Panel:[36]
It was not controversial and follows from s 28LL(3) that, in making an impairment assessment, any impairment from an unrelated injury or cause must be disregarded so as to ensure that the impairment assessment relates solely to that resulting from the claimed injury. It would be inconsistent with that obligation for a medical panel to assess the impairment of an injured limb at large without adverting to the potential for impairment to be caused by different injuries or causes. The medical panel is obliged to identify any impairment arising from an unrelated injury or cause, whether pre-existing or subsequent, and ensure that its estimate of impairment disregards any other impairment.
In identifying the unrelated impairment, and in estimating its extent, the panel is not required to apply the Guides. It is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person’s current impairment. The process of attribution does not require the panel to speculate, but requires it to disregard any impairment, either pre-existing or post-dating the injury, which is established by evidence to have resulted from a cause other than the relevant injury.
[35][2019] VSC 84 (Neppessen).
[36]Neppessen, [122]–[123].
The Panel reproduced this passage in its reasons, before noting Ms Howell’s history and concluding that there was no evidence of an unrelated injury or cause that was playing a part in her current impairment, which it was obliged by s 28LL(3) to disregard.
Ground 3 in the Council’s originating motion contends that the Panel erred by failing to properly apply s 28LL(3). Ground 4 is that the Panel failed to take into consideration factors relevant to the application of s 28LL(3). The parties’ submissions addressed these two grounds together.
Council’s submissions
The Council submitted that the Panel’s conclusion on this question was based on too narrow an approach in relation to the application of s 28LL(3) and its duty to ascertain impairment from unrelated injuries or causes. It pointed to the following evidence that was before the Panel:
(a) Mr Fary’s letter stating that Ms Howell had had multiple falls in the five years before the incident and that he had planned for her to use a four-wheel walking frame when out and about as her balance and memory were decreasing; and
(b) the Panel’s own finding that Ms Howell had pre-existing osteoarthritis, which had been aggravated in the incident.
As to the first, the Council said that the Medical Panel plainly considered that Ms Howell’s need to use a walking aid was part of the relevant ‘impairment’ that it assessed, because it relied on her use of the frame in selecting the gait derangement method to assess her degree of impairment. The corollary of that approach was that any unrelated need for a walking aid was also an impairment that had to be disregarded under s 28LL(3). The Council described the Panel’s before and after analysis of the use of the walking frame as ‘unsophisticated’.
As to the second, the Council said that the pre-existing osteoarthritis also comprised impairment because it was causing Ms Howell loss or derangement of use of her knee. It relied on an entry in her general practitioner’s clinical records for 24 April 2019, noting ‘advice re osteoarthritis’, which it said indicated that Ms Howell’s arthritis was causing her such difficulty that she raised it with her general practitioner.
The Council argued that the Panel’s reasons showed it did not consider the impact of the pre-existing osteoarthritis on Ms Howell’s activities of daily living. This was because it had referred to her history of stroke, hip replacement, and spinal surgery but not to her history of falls or her unrelated osteoarthritis. It therefore failed to disregard these impairments from unrelated injuries or causes, contrary to the requirements of s 28LL(3).
Ms Howell’s submissions
Ms Howell referred to a number of authorities in support of the proposition that the focus of s 28LL was on impairment of activities of daily living, not the mere existence of other injuries or conditions.[37] She emphasised that the Panel was not required to assess an unrelated impairment in accordance with the Guides; it only had to do its best to evaluate the extent to which it was playing a part in the person’s current impairment.[38]
[37]Referring to Alcoa Holdings Ltd v Lowthian [2011] VSC 245, [73]–[76]; Chua v Lowthian [2011] VSC 468, [126]–[136] (Chua); Bazouni v State of Victoria [2019] VSC 407, [18]–[20] (Bazouni); St Luke’s Anglicare v Handrinos [2018] VSC 356, [34]–[40] (St Luke’s); City of Melbourne v Neppessen [2019] VSC 84, [122]–[123] (Neppessen); La’Brooy v Jensen [2021] VSC 89, [72]–[73].
[38]Referring to Chua, [132]–[135] and Neppessen, [123].
In Ms Howell’s submission, it was clear from the Panel’s reference to the extract from Neppessen that it understood its task under s 28LL(3). Further, she said that the Panel’s statements about the information it had considered in forming its opinion should be taken at face value and not considered to be disingenuous. She referred to the Panel’s statement that it had taken into account ‘Ms Howell’s history and referral material to determine the level of impairment that may have been present prior to and/or after the incident’, for the purposes of s 28LL(3). The Panel had also directly quoted and referred to Mr Fary’s letter and was evidently alive to his concern about ‘multiple falls’ over the last five years. Ms Howell said that the logical inference was that the Panel had concluded that these matters did not result in an ‘impairment’ in the requisite sense.
Ms Howell argued that the Panel properly had regard to whether her prior medical conditions were interfering with her ability to perform ‘activities of daily living’.[39] The Panel’s finding that her right knee injury was an aggravation of pre-existing osteoarthritis did not of itself support a conclusion that she suffered from a permanent impairment from an unrelated injury or cause. Neither Mr Mills’ report nor the general practice’s records identified any impairment that was permanent at the time of her fall. The records merely demonstrated that Ms Howell saw her treating doctors over the years in relation to various medical conditions, the most significant of which were identified and taken into account by the Panel.
[39]Referring to the Guides, Chapter 1, Section 1.1, and the glossary at 316–7 including the table.
In oral argument, Ms Howell referred to the clinical records kept by her general practice between 2007 and January 2021. She pointed out that the record for the consultation on 24 April 2019 noted only ‘advice re osteoarthritis’, among several other matters, and did not relate specifically to her right knee. There was one earlier reference to osteoarthritis, in October 2016, again not related to her right knee. There was an isolated mention of pain in her right knee in May 2016, three years before the incident, and no record that it had recurred. The general practice records do not reflect multiple falls over the period from 2014. She submitted that there was no evidence of a pre-existing or unrelated impairment, and no elephant in the room that the Panel had failed to address.
Consideration
The Guides provides a framework for evaluating permanent impairment. The Glossary to the Guides defines ‘impairment’ to mean ‘the loss, loss of use, or derangement of any body part, system, or function’. Chapter 1 – Impairment Evaluation provides the following elaboration of the definition of ‘impairment’:
1.1 Impairment, Disability, Handicap
Impairment is defined in the Guides as an alteration of an individual’s health status. Impairment, according to the Guides, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning. The Guides defines “permanent impairment” as one that has become static or stabilized during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy.
The Guides definition of an impairment closely parallels that of the World Health Organization (WHO), which has defined an impairment as “any loss or abnormality of psychological, physiological, or anatomical structure or function.”
In the Guides, impairments are defined as conditions that interfere with an individual’s “activities of daily living,” some of which are listed in the Glossary (p. 315). Activities of daily living include, but are not limited to, self-care and personal hygiene; eating and preparing food; communication, speaking, and writing; maintaining one’s posture, standing, and sitting; caring for the home and personal finances; walking, traveling, and moving about; recreational and social activities; and work activities.
An impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.
…
The Guides distinguishes between impairments that interfere with a person’s activities of daily living, and injuries, conditions, or life circumstances that do not have that effect. It does not follow that because a person had a pre-existing condition, that they must be regarded as suffering from a pre-existing permanent impairment.[40]
[40]Chua, [136]. See also Bazouni, [20] and St Luke’s, [39]–[40].
Here, the Panel was clearly aware of Ms Howell’s pre-existing osteoarthritis. It was also aware that it had not impaired her ability to walk without a gait aid, as she had done regularly before falling and injuring her knee. The Council did not point to any evidence that Ms Howell’s osteoarthritis affected her right knee or her ability to walk before her fall.
The Panel was also aware of Mr Fary’s belief that Ms Howell had had progressive issues with her balance and multiple falls in the five years before the incident. This was not reflected in the records of Murray House Clinic or in the history taken by the Panel. The logical inference from the Panel’s conclusion in relation to s 28LL(3) is that it did not share Mr Fary’s belief, and did not consider that there were issues with Ms Howell’s balance that impaired her gait before she injured her knee in 2019. Its straightforward (as distinct from unsophisticated) analysis was that Ms Howell had been able to walk unaided until the incident, and that since then she has required the routine use of a gait aid.
The Panel did not fail to properly apply s 28LL(3) of the Wrongs Act, because it found no impairment of Ms Howell’s right knee from an unrelated injury or cause. It reached that finding having ‘considered Ms Howell’s history’ and ‘reviewed the referral materials’ — which included the records of Mr Fary and the Murray House Clinic general practice. The Panel’s finding was open to it on that material.
Grounds 3 and 4 are not made out.
Should the Panel have obtained further records?
The Council’s fifth ground relied on the authorities that identify ‘a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained’ as a form of legal unreasonableness.[41] The parties accepted that a determination of a Medical Panel may be set aside on the basis of legal unreasonableness, while noting that the question is yet to be finally determined.[42]
[41]Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, [25]. See also, in relation to Medical Panel opinions, Chang v Neill (2019) 62 VR 174, [49]–[53] (Chang) and Schmael v Leach [2020] VSC 562, [36]–[38].
[42]Sidiqi, [56]–[58]; cf Ryan [82]–[100].
Council’s submissions
The Council contended that the Panel had failed to request the records of Dr Jorge Zavala, Ms Howell’s treating neurologist. It pointed to its written submissions to the Panel, in which it politely invited the Panel to make that inquiry ‘should it assist’. It said that, in circumstances where there was evidence that Ms Howell’s balance and memory were decreasing and that she had had multiple falls over the previous five years, the records of Dr Zavala were relevant to the Panel’s determination of her impairment, including impairment from unrelated causes or injuries.
By reference to the Murray House Clinic records, the Council said that Dr Zavala’s involvement was significant and contemporaneous. He was Ms Howell’s treating neurologist following her stroke in May 2018. She was referred to Dr Zavala again in November 2018 and he apparently reviewed her in late 2018 or early 2019. The Council argued that the Panel should have examined closely the issue of Ms Howell’s multiple falls, as noted by Mr Fary, with the benefit of her treating neurologist’s records in relation to her neurological state.
In the Council’s submission, the Panel acted unreasonably by failing to request those records. It was not sufficient to simply note that it ‘considered that no further information was required from Ms Howell’s treating practitioners’.
Ms Howell’s submissions
Ms Howell noted that the Panel’s reasons stated that it had considered the submissions made to it by the Council’s solicitors, and did not consider that further information was required from Ms Howell’s treating practitioners. Those submissions said that ‘Should it assist, the Panel can also request records of neurologist, Dr Jorge Zavala’. Ms Howell relied on the fact that the Council’s solicitors had not insisted that the Panel call for Dr Zavala’s records, but instead had accepted that it was a matter for the Panel in the exercise of its professional judgment to decide whether those records were necessary.
Ms Howell argued that the Court could be satisfied that the Panel had reasonably formed that view, based on the Murray House Clinic records. Those records indicated that she had a transient ischaemic event in 2016 and a stroke in 2018, for which she was treated by Dr Zavala. The Panel noted those conditions and recorded that they had mainly affected her speech, and that she had made a good recovery. Ms Howell said that there was nothing in the Murray House Clinic records to indicate that she had any permanent impairment following those events, or that they had affected her balance. The reference in Mr Fary’s letter to ‘multiple falls since her TIA’ was not supported by the Murray House Clinic records. In particular, the November 2018 referral to Mr Zavala was in relation to persistent nausea and, after that review with Mr Zavala, Ms Howell was noted to be ‘generally well’.
Consideration
The function of a Medical Panel under Pt VBA of the Wrongs Act is to provide an informed professional opinion in answer to a medical question referred to it.[43] The Wrongs Act gives information gathering powers to a Medical Panel that enable it to inform itself as it thinks fit. Those powers, including the power in s 28LZE to request information from a claimant’s treating doctor, are integral components of a Medical Panel’s function of giving an informed medical opinion.
[43]Colquhoun, [18]; Chang, [49]–[50]; Edwards, [70].
As I held in Edwards v State of Victoria:[44]
The function of a Medical Panel must be performed within the bounds of legal reasonableness, and an opinion or determination formed outside those bounds is beyond the Panel’s jurisdiction.[45] One form of legal unreasonableness is making a decision without attempting to obtain information that it is obvious is readily available and centrally relevant to the decision to be made.[46] Legal reasonableness also governs the powers of a Medical Panel to inform itself in order to perform its function. In circumstances where it is apparent that there is additional information that can easily be obtained about matters critical to its opinion, a Panel cannot disregard deficiencies in the material that it already has, and proceed to reach an opinion that is not informed.[47]
[44][2021] VSC 423, [73].
[45]Sidiqi, [52]–[60].
[46]Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, [49] (Nettle J); Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[47]Chang, [50].
In this case, I do not consider that there were deficiencies in the material before the Panel that it should have cured by requesting Dr Zavala’s records. The Council has not demonstrated that the records of the neurologist who treated Ms Howell after her stroke in May 2018 were critical or centrally relevant to the Panel’s determination of the degree of impairment resulting from the injury to her right knee.
I note in particular that:
(a) The history taken by the Panel was that Ms Howell ‘had a transient ischaemic event in 2016 and a stroke in 2018 which mainly affected her speech and from which she made a good recovery’. Neither that history nor the Murray House Clinic records indicated that she had residual balance or mobility issues following the stroke.
(b) The referral to Dr Zavala in November 2018 was in relation to ‘persistent nausea’. By 16 January 2019, Ms Howell had been reviewed and was ‘generally well’.
(c) Mr Fary’s statement that Ms Howell had progressive issues with her balance and multiple falls in the five years before the incident was not reflected in the records of her general practice or in the history taken by the Panel. As I found in relation to grounds 3 and 4, the logical inference is that the Panel did not share Mr Fary’s belief about those matters.
(d) The Council did not submit to the Panel that Dr Zavala’s records were critical to its determination. In the letter of referral, its solicitors said only that the Panel could request Dr Zavala’s records ‘should it assist’. There was no explanation of how those records might assist the Panel, or be relevant to its assessment of the impairment of Ms Howell’s right knee.
In those circumstances, it was open to the Panel to proceed to reach its determination without requesting further information from Dr Zavala. Put another way, it was not legally unreasonable for the Panel to form its opinion based on the information before it.
Ground 5 is not made out.
Disposition
None of the Council’s grounds of review has succeeded, and so the proceeding must be dismissed. I will hear the parties on the question of costs.
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