CD v Central Gippsland Health Service
[2022] VSC 462
•19 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02237
| Between: | |
| CD | Plaintiff |
| -and- | |
| CENTRAL GIPPSLAND HEALTH SERVICE | First Defendant |
| (and others according the attached Schedule of Parties) |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 19 May & 10 November 2021 |
DATE OF JUDGMENT: | 19 August 2022 |
CASE MAY BE CITED AS: | CD v Central Gippsland Health Service |
MEDIUM NEUTRAL CITATION: | [2022] VSC 462 |
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JUDICIAL REVIEW — Determinations of medical panel — Where CD alleges hospital negligently administered urethral catheters to him, causing injury — Where CD underwent surgical transurethral resection of the prostate (“TURP”) three months later — Where CD alleges permanent urinary incontinence, erectile dysfunction and post-traumatic stress disorder caused by catheterisations — Where CD gave inconsistent accounts of onset of erectile dysfunction to doctors and first medical panel — Where first panel opined that, when stabilised, impairments would not exceed statutory thresholds for “significant injury” because impairments resulted from causes unrelated to catheterisations — Where, following examinations, second panel noted inconsistent statements, including to it, regarding onset of erectile dysfunction and called for submissions — Where CD denied making inconsistent statements or otherwise sought to explain them, and reiterated that erectile dysfunction followed immediately after catheterisations and prior to TURP — Where, in its reasons, second panel referred to first panel’s reasons — Where second panel found psychiatric injury secondary to physical injury and less serious than claimed — Where second panel opined that physical and psychiatric impairments resulting from CD’s injuries did not satisfy thresholds — Where second panel opined physical impairment caused by matters unrelated to catheterisations, namely pre-existing conditions and TURP — Whether second panel erred in determining impairments unrelated to catheterisations — Whether second panel erred in making credit judgment on basis of inconsistent accounts as to when CD first experienced erectile dysfunction — Whether second panel ignored relevant matters — Whether second panel erred in its determination as to psychiatric impairment — Whether second panel failed to exercise jurisdiction by reason of approach to possible unrelated causes of CD’s impairments — Whether participation in second panel’s decision by urologist-consultant to first panel gave rise to reasonable apprehension of bias — Whether waiver by failure to object to urologist’s membership of second panel — Application dismissed — Wrongs Act 1958 (Vic), Part VBA.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Burns | Simon Parsons & Co |
| For the First Defendant | Mr M F Fleming QC with Ms F C Spencer | Lander & Rogers Lawyers |
HIS HONOUR:
PART 1: OVERVIEW
CD’s ordeal
Up until March 2017, CD[1] was a relatively fit and healthy man of 61. He could perform full-time work. A keen golfer, he played frequently, and off an impressive handicap of only five. He enjoyed an active sex life. Sadly, however, all of that was about to change, and dramatically so.
[1]Because of the sensitive and potentially embarrassing nature of the plaintiff’s impairments, I have, with the concurrence of the parties, used the pseudonym “CD” in place of the plaintiff’s name.
In the early hours of 11 March 2017, CD found that he was unable to urinate. He managed to get himself into a taxi and head for the Emergency Department of Sale Hospital. After a urethral catheterisation, he was sent home with a catheter bag strapped to his leg. But, within a few hours, he awoke in pain. There was no urine in the bag, only blood. He had the same inability to pass urine he had suffered only hours earlier. So, he returned to the hospital. There, repeated unsuccessful attempts were made to insert increasingly larger catheters into CD’s urethra. CD suffered great pain and distress in the process.
Some hours after this ordeal began, a doctor successfully inserted a suprapubic catheter. But CD was by that stage suffering from septicaemia. In severe pain, he was transferred to Casey Hospital in Berwick, where he spent a week. He spent a further two weeks at home convalescing with a visiting hospital service.
Three months later, CD underwent prostate surgery.
Competing cases
CD seeks to bring an action for damages against the hospital claiming economic and non-economic loss. He claims that the catheterisations caused him permanent erectile dysfunction and urinary incontinence. He has tried but cannot have sex because of his impotence. Once a man enjoying a full and vital life, he is now so apprehensive about wetting himself in public that he avoids social interactions and no longer plays sport. His working life is over. He also claims to suffer from post-traumatic stress disorder as a result of his dreadful experience.
The hospital appears to accept that CD is in a bad way. But it claims that his afflictions are the result of his pre-existing bladder and prostate problems and the prostate surgery he underwent three months later.
Medical panel’s determinations
Part VBA of the Wrongs Act 1958 (Vic) provides that, in order for a person to bring an action for damages for non-economic loss, he or she must have suffered “significant injury” within the meaning of the Act. An injury is significant where the impairment resulting from it satisfies the threshold level set by the Act. The hospital’s solicitors disputed that CD’s injuries were significant, and caused a medical panel to be convened to determine that issue.
For reasons I shall explain later, the matter ultimately went before a second medical panel. On 20 March 2020, that panel determined that the degrees of physical and psychiatric impairment resulting from CD’s injuries did not satisfy the applicable thresholds. That was because it considered that CD’s impairments resulted from causes unrelated to the events of 11 March — namely, his pre-existing prostatic afflictions and the prostate surgery.
Application to this Court
CD now applies to this Court for judicial review of the determinations of the second panel. He argues that the panel’s decision is vitiated by jurisdictional error. He seeks orders in the nature of certiorari and mandamus, quashing the decision and remitting the medical questions before it to a differently constituted medical panel for redetermination in accordance with law.
I have decided that CD’s application must be dismissed. My reasons for that conclusion are very lengthy. The next part of this judgment contains a summary of my reasons for that decision. My more detailed reasons follow in Parts 3 to 12, and my ultimate conclusions and proposed orders may be found in Part 13.
PART 2: SUMMARY
Background
Sale Hospital is operated by Central Gippsland Health Service, the first defendant. As I have said, CD was admitted to the hospital on 11 March 2017 when he found himself unable to pass urine. Staff at the hospital drained the contents of his bladder with a suprapubic catheter, but not before numerous unsuccessful attempts were made to catheterise him via his urethra. The process was very painful and unpleasant.
By May 2017, CD was suffering from serious urinary symptoms, including incontinence.
On 2 June 2017, CD underwent a cystoscopy, followed by a transurethral resection of his prostate (“TURP”).
While his symptoms appeared initially to improve in the months following the surgery, that did not last. CD has continued to suffer from incontinence and intermittent urinary tract infections.
CD also suffers from erectile dysfunction. The question of when he began to suffer from impotence was a matter of some controversy before this Court. CD denies having achieved an erection since attempts were made to catheterise him at the hospital. But he appears to have told some medical practitioners, including some of those on the two medical panels that examined him, that he only began to suffer from erectile dysfunction following his prostate surgery on 2 June. On the other hand, consistently with his position in this Court, he told a branch of the second panel that his erectile dysfunction commenced after the events of 11 March and before the TURP surgery.
CD alleges that his ills are the result of negligence by staff at the hospital. Those ills include not only his urinary and sexual problems, but psychiatric injury he asserts consists of PTSD as well as anxiety and depression secondary to his physical symptoms. In 2017, CD instructed solicitors with an eye to bringing an action for damages against the hospital.
As I mentioned earlier, Part VBA of the Wrongs Act has the consequence that a person is not entitled to bring an action claiming damages for negligence in respect of non-economic loss as of right. Rather, such a proceeding may be brought only by a person who has suffered “significant injury”. The expression “significant injury” is relevantly defined as an injury resulting in a degree of impairment that a medical panel determines satisfies the threshold level prescribed by the Act.
On 12 March 2019, a medical panel decided that it was unable to determine whether CD’s degree of impairment satisfied the threshold level because his condition had not stabilised — that is, because there was a possibility it might improve with treatment. That conclusion notwithstanding, the panel expressed the view that CD’s urogenital system impairment was not the result of the events of 11 March. A time was fixed for further assessment.
On 20 March 2020, a second medical panel decided that the degrees of physical and psychiatric impairment resulting from CD’s injury did not satisfy the threshold levels. Among the members of the second panel was a urologist who had acted as a consultant to the first panel. The panel’s view, in essence, was that CD’s physical impairment was not due to the events of 11 March 2017; rather, it was the result of a pre-existing prostate condition and the TURP operation he underwent in June that year. CD’s psychiatric impairment, the panel considered, did not result directly from the ordeal of 11 March — he was not suffering from PTSD — but was secondary to his incontinence and erectile dysfunction, and accordingly had to be disregarded in accordance with s 28LJ of the Act. The second panel’s decision is the subject of the present application.
CD filed his originating motion for judicial review in this Court on 19 May 2020. Oral argument was heard on 19 May 2021. On 21 May, I invited further submissions from the parties, which were filed on 4 June. On 7 September, I invited CD to apply for leave to add a further ground of review. Written submissions from CD and the hospital followed on 23 September and 15 October, respectively, and a further hearing was held on 10 November. Supplementary submissions were received on 17 and 24 November.
Grounds of review
In summary, CD submitted that the panel’s decision was vitiated by jurisdictional error for the following reasons:
a) The panel erred by purporting to determine the cause of CD’s incontinence and erectile dysfunction. Its statutory duty was to assess the impairment attributable to those symptoms, and not to enquire into their cause. Alternatively, the panel erred by making that causal determination in the absence of evidence, or on the basis of inadequate evidence.
b) The panel erred by making a judgment about CD’s credit in relation to the question whether he had suffered from erectile dysfunction from 11 March 2017 onwards, as opposed to from the time of the prostate operation.
c) The panel erred by failing to have regard to relevant factual material, namely CD’s history that he suffered from erectile dysfunction in the period between 11 March and 2 June 2017.
d) The panel erred in its determination as to psychiatric impairment by referring to and relying on findings made by the first panel and dismissing the fact that CD had suffered a life-threatening injury, and by giving inadequate reasons for its conclusion.
e) Despite the argument in paragraph (a), above, the panel constructively failed to exercise its jurisdiction by failing to reach a conclusion as to the medical cause of CD’s physical impairment. While this point was not pressed in the end, I shall address it anyway.
f) The panel’s decision was attended by an apprehension of bias by reason of the presence on it of the urologist who had acted as a consultant to the first panel. The relevant apprehension was that the urologist had an interest as a “witness” arising by virtue of his being privy to an inconsistent statement CD had purportedly made to the first panel, or that he might have prejudged the question the second panel was tasked with deciding.
A summary of my reasons for rejecting each of those complaints follows.
No error in determining CD’s impairment unrelated to injury
The panel did not err by making a determination as to the cause of CD’s incontinence and erectile dysfunction. Nor did it err by doing so in the absence of evidence.
CD’s argument as to the first point rested on a misconception of the concept of the “injury” the panel was required to assess. While a panel must not purport to determine whether the claimed injury is referable to the fault of another person, it must assess the level of impairment resulting from an injury referable to the alleged fault of that other person. That is, while a panel must not make a determination as to legal causation, it must make some determination about medical causation. The relevant injury in the present case was the injury caused by the catheterisation, and referable to the alleged fault of the hospital. Contrary to the submission of CD, the injury did not consist of CD’s incontinence and erectile dysfunction. Indeed, in the context of this matter, incontinence and erectile dysfunction are, properly considered, impairments and not injuries.
As to the second point, while a panel’s assessment of unrelated impairment must be based on evidence of some sort, it is not the case that its assessment will be reviewable on the basis that the evidence upon which it acted was inadequately cogent. Much less is it the case that a panel must act on “very strong” evidence in disregarding unrelated impairment. And, in any event, there was ample material justifying the panel’s conclusion in the present matter.
Further, I do not accept CD’s related arguments that the panel’s decision was speculative because:
a) the decision was based on considerations of his credit;
b) the panel referred to or relied on submissions and on the reasons of the previous panel;
c) the decision was contrary to some of the material before the panel (such as CD’s statement that he suffered from erectile dysfunction in the period following 11 March and prior to his prostate operation); and/or
d) the panel failed to make further enquiries before making its decision.
Nor do I accept, as CD argued, that the panel’s reference to the first panel’s reasons and its failure to make further enquiries of themselves constituted errors.
No error in making credit judgment
CD’s argument that the panel erred by making a judgment about his credibility with reference to his statement that he began to experience erectile dysfunction immediately after the incident of 11 March required consideration of two matters. The first was whether a medical panel convened under the Wrongs Act is entitled to make credit judgments. The second was whether the panel in the present case made a credit judgment.
Turning to the first point, I reject CD’s argument that the panel was not entitled to make a judgment about his credibility. I do not accept that a medical panel is forbidden from making credit judgments simpliciter. Nor do I accept CD’s argument that a medical panel may disbelieve a claimant only where the medical evidence before the panel demonstrates beyond all doubt that what the claimant told it is incorrect. I also reject the argument that a panel may only make a judgment about the veracity of a claimant on the question whether he or she is suffering from an impairment at all, in contrast to the question, say, whether his or her impairment is causally related to the potentially compensable injury.
As I explain in these reasons, I initially found attractive the proposition that there is a salient difference between a credit judgment based on medical evidence and a panel’s medical expertise and one based on, for example, prior inconsistent statements. But I have ultimately decided that according legal significance to any such difference is foreclosed by authority.
As to the second point, I consider that, contrary to the submission of the hospital, the panel in the present case did make a judgment about CD’s credibility vis-à-vis the onset of his impotence. It made such a judgment in the sense that it did not accept the account CD gave certain of its members on 28 January 2020, albeit it did not make an express finding about the truth of his claim to have suffered from erectile dysfunction from the time of the catheterisation.
Relevant material not ignored
I do not accept CD’s argument that the panel erred by failing to consider the history or histories it is accepted CD gave to the effect that he suffered erectile dysfunction in the period between the catheterisation and the TURP procedure. Nor do I accept his related argument that the panel erred by failing to explain how it resolved the inconsistencies between the histories CD gave various medical practitioners.
A failure to consider critically important factual material may in certain circumstances amount to a constructive failure to exercise jurisdiction. However, there is simply no warrant for the assertion that the panel ignored the statements CD made to the effect that he began to experience impotence following the incident of 11 March 2017 and prior to his prostate surgery three months later.
CD’s argument that the panel erred by failing to explain how it resolved the issue presented by CD’s inconsistent statements must also be rejected: the panel was under no obligation to provide reasons.
No error in determination as to psychiatric impairment
The panel did not err by dismissing the fact that CD reported thinking he would die whilst in hospital. It did not ignore his statements to that effect — it specifically referred to them in its reasons. And CD’s argument that the panel did not give those statements adequate weight invites merits review. Nor is there anything in CD’s arguments that the panel erred by referring to the first panel’s reasons or by according them too much weight, or by giving inadequate reasons.
No failure to reach conclusion as to medical cause of physical impairment
At one point in its reasons, the panel observed that “there is evidence of” unrelated impairment. A little later, it appeared to deny that it was required to make a finding as to whether CD’s impotence and incontinence were caused by the catheterisation. The question raised was whether this betrayed a failure by the panel to reach a conclusion as to the medical cause of CD’s physical impairment. While the point was provoked by me, I did not understand CD to take it up and press it in the end, presumably because it was thought to be inconsistent with his principal complaint about the panel’s approach to unrelated causes of the impairment. Be that as it may, when read as a whole, the reasons make it clear enough that the panel was of the opinion that CD’s physical impairment resulted from unrelated causes, namely the pre-existing conditions from which CD suffered and the TURP surgery.
No apprehension of bias
Despite initially being attracted by the argument that the panel’s decision was vitiated by a reasonable apprehension of bias, upon reflection, I have decided that it was not.
No apprehension of bias by way of prejudgment arises in respect of the decision. In essence, I come to that conclusion because the urologist as a result of whose participation the apprehension was said to arise, who it may be inferred had formed a view about the aetiology of CD’s impairment prior to his appointment to the second panel, formed that view within the confines of the decision-making process provided for by the Act, presumably after due consideration of the facts. There is no logical connection between the urologist’s participation in the second panel’s decision and a deviation from the course of decision-making in accordance with the merits.
I do not accept CD’s argument that an apprehension by reason of interest arises in respect of the second panel’s decision, either. While it might be possible to describe the urologist as having effectively been rendered a witness to a factual matter important to the second panel’s decision, consideration of the relevant authorities does not suggest that this gave him a disqualifying interest in the proceedings before the panel. Further, that the Act contemplates that successive panels may have members and consultants in common has the consequence that the urologist’s knowledge was acquired in the course of the proper performance of his statutory function. I have concluded that the urologist did not have an “interest” in the panel proceedings in the way that expression is understood in the authorities.
In any event, I consider that, were the second panel’s decision attended by an apprehension of bias, CD would have waived his right to object. CD was notified of the urologist’s appointment to the second panel well in advance of its decision. Yet no objection was taken by CD until the proceedings in this Court.
PART 3: BACKGROUND
The events of 11 March 2017
On the evening of 10 March 2017, after consuming a healthy amount of beer, CD returned home from a club. At around midnight, he found himself unable to pass urine. CD called himself a cab and was taken to the emergency department of the hospital.
In the wee hours of 11 March 2017, a doctor at the hospital catheterised CD with a 14-gauge indwelling urethral catheter, resulting in the drainage of 1.2 litres of rosé-coloured urine. CD was discharged home shortly after 2:00 a.m., the catheter in situ and a bag strapped to his leg. He went to bed.
At 6:30 or 7:00 a.m. that morning, pain roused CD from his sleep. He was “busting to go to the toilet”. But there was no urine in the bag, only a small amount of blood. CD returned to the hospital, where numerous attempts were made throughout the morning to pass increasingly larger catheters through CD’s urethra. Those attempts did not succeed in emptying the patient’s bladder. They did, however, result in the discharge of a significant amount of blood. In fact, there was so much blood that CD’s bedsheets had to be changed, twice. The ordeal caused CD considerable pain and distress. He recalls thinking he would die.
At 12:40 p.m., hospital staff decided to place a suprapubic catheter, which resulted in the release of the contents of CD’s distended bladder — more than 800 millilitres of bloody urine — and relief from his unappeasable urge to urinate. Unhappily, however, CD was by that stage septic and febrile. He was transferred to Casey Hospital in Berwick at 3:30 p.m. that afternoon, where he was treated with intravenously administered antibiotics.
There CD remained until 17 March when he was discharged into the care of “Hospital in the Home”,[2] under whose supervision intravenous antibiotic therapy continued until 30 March. A urethral catheter was substituted for the suprapubic catheter while CD was an inpatient at Casey Hospital. It is unclear on the material before the Court exactly when the urethral catheter was removed, but it appears to have been removed prior to CD’s discharge from Hospital in the Home on 30 March.
[2]Casey Hospital and Hospital in the Home are operated by Monash Health.
A previous admission
The events of 11 March were not the first time CD was admitted to hospital on account of urinary retention. He previously presented to Sale Hospital’s emergency department on 12 September 2016 after failing to pass urine for the two days prior. Hospital staff inserted a urethral catheter which was left in place for a week.
The culprit for CD’s two episodes of urinary retention was benign prostatic hyperplasia. An ultrasound performed on 15 September 2016 revealed that CD’s prostate was moderately enlarged; but it revealed no other significant pathology.
His enlarged prostate notwithstanding, CD reports having been able to pass urine adequately in the period between the removal of the urinary catheter and the incident of 11 March 2017. CD’s general practitioner, Dr Rakesh Nandha, referred him to a urological surgeon on 7 October 2016. But, on the evidence before this Court, nothing seems to have followed from that referral.
CD undergoes transurethral resection of prostate
Following the removal of CD’s urethral catheter by Hospital in the Home staff in March 2017, CD’s urinary function appears to have become regular, albeit he found himself in need of the toilet more frequently than he had in the past. His urine, for the most part clear, was occasionally tinged with blood. On 5 April 2017, CD complained to Dr Nandha of urinary urgency and dribbling. By 4 May 2017, CD was waking up to four to five times a night to urinate and experiencing urge incontinence.
It was in that context that CD was referred to a second urological surgeon, Mr Philip McCahy. On 4 May, Mr McCahy made arrangements for CD to undergo a cystoscopy and, depending upon its results, a TURP procedure.
CD underwent both procedures on 2 June 2017. The findings from the cystoscopy will be returned to below. Upon postoperative discharge, CD was noted by Mr McCahy to be “happy with his voiding”. When Mr McCahy reviewed him on 19 October that year, CD reported “a little bit of urgency”, but said it appeared to be improving.
CD’s current condition
Physical afflictions
Unfortunately, CD did not continue on the trajectory he appeared to be on in October 2017.
CD suffers from unpredictable urge incontinence, day and night. He also experiences stress incontinence when he exerts himself, such as by lifting or playing golf, and when he coughs or sneezes. His affliction forces him to wear disposable incontinence underwear, which he must change frequently. When he urinates, his stream is poor, and he feels as though he has not managed completely to empty his bladder. He continues to dribble thereafter. Intermittent urinary tract infections punctuate his experience.
Incontinence has changed CD’s life. Once an avid golfer with a single-figure handicap, he no longer plays; he finds needing to change his incontinence underwear every four or five holes embarrassing. Social interaction is a thing to be avoided, and CD spends most of his time at home with his cat. Tyre fitting had been CD’s trade, and in the weeks prior to 11 March, he had completed a successful trial as a labourer in a plumbing and tiling business. He is no longer able to work.
CD is impotent. His libido remains intact, but sexual arousal does not cause him to experience an erection. Nor does he experience spontaneous erections. Treatment with Viagra and the use of sexually arousing visual materials was ineffective. He has given up pursuing sexual relationships.
The progression of CD’s urinary symptoms does not appear to be controversial; he appears to have been suffering the afflictions just described from some point between February 2018 and February 2019.
The same cannot be said in relation to his erectile function. In his affidavit in support of the present application, CD deposes that he last achieved an erection on 8 March 2017, a date he remembers clearly. But as I have mentioned, CD appears to have told different people different things at different times in that connection. Those inconsistencies assumed some significance in this proceeding.
Psychological symptoms
CD experiences depression, feelings of frustration and irritability. He ruminates on the events of 11 March and their consequences. Around once a fortnight, CD awakes in a cold sweat from a nightmare in which he relives his experience at Sale Hospital. Though he initially suffered diurnal intrusive experiences related to the catheterisation, they have since ceased. The fear of experiencing haematuria he previously suffered from also appears to have abated.
The physical afflictions from which CD suffers mean he sleeps less. In April 2018, CD complained of an insomnia which deprived him of all but two hours’ sleep a night. More recently, CD said he sleeps in two-hour stints, waking up intermittently to use the bathroom. CD’s self-esteem has suffered, too. It upsets him that he is unable to lead the lifestyle to which he was previously accustomed. His social withdrawal and abandonment of the pursuit of physical intimacy cause him to feel lonely.
Admirably, despite the suffering described, CD told the medical panel that examined him on 21 January 2020 that he was “85 [per cent] better mentally than he was in 2017”.
CD commences civil action
At some point in 2017, CD instructed solicitors in this matter.
In a draft statement of claim dated 17 October 2018, CD claims damages in respect of injuries he alleges were caused on 11 March by reason of the negligence of the hospital, its servants or agents. The particulars of injury alleged in the draft statement of claim include:
a) permanent damage to the urethra;
b) urinary incontinence;
c) permanent loss of sexual function of the penis and inability to raise an erection;
d) PTSD with nightmares, flashbacks, hallucinations, insomnia and generalised anxiety and hyper-arousal;
e) increased anxiety and depression with resultant irritability, broken sleep patterns and lethargy, mood changes and mood swings, and decreased self-esteem.
PART 4: WRONGS ACT, PART VBA
No action for damages for non-economic loss as of right
Uninstructed in the ways of Part VBA of the Wrongs Act, I suspect many in the community might think that a person in the circumstances in which CD found himself would be entitled to bring an action claiming damages in respect of non-economic loss as of right. But, in this State, the entitlement of an injured person to sue for non-economic loss has been limited by Part VBA; only a person who has suffered “significant injury” may do so.
The decision under review here is the determination of a medical panel that CD did not suffer a significant injury. Before turning to that decision, it is necessary to say a little about its statutory context.
The threshold: Significant injury
The requirement that a person have suffered significant injury if he or she is to recover damages for non-economic loss is contained in s 28LE of the Act. That section reads:
28LE Restriction on recovery of damages for non-economic loss
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 expression “significant injury” is a term of art defined in s 28LF of the Act, which provides, relevantly:
28LF What is significant injury?
(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is a significant injury if—
(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
…
(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; or
…
(2) For the purposes of this Part psychiatric injury to a person is significant injury if—
(a) the degree of impairment 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
…
(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
…
The expression “threshold level” is defined, relevantly, in s 28LB:
threshold level means—
(a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;
(b) in the case of psychiatric injury, impairment of 10 per cent or more;
…
I note that “impairment” is defined to mean “permanent impairment”.[3]
Assessment of impairment under Part VBA
[3]Wrongs Act 1958 (Vic), s 28LB (definition of “impairment”).
General principles
As can be seen, the determination of the question whether a person has suffered significant injury will require the assessment of the degree of impairment “resulting from” that person’s injury.[4]
[4]An exception exists where the injury is the loss of a foetus, a psychiatric injury arising from the loss of a foetus or child in the course of childbirth, or the loss of a breast: see Wrongs Act 1958 (Vic), s 28LF(1)(c)-(d).
The principles applicable to an assessment of impairment under Part VBA are contained in Division 3 of that Part. For present purposes, two of the provisions contained in Division 3 are of particular import:
28LJ Regard not to be had to secondary psychiatric or psychological impairment
In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
…
28LL Assessment in relation to injuries arising out of the same incident
(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.
(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.
(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
Physical impairment must be assessed in accordance with the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“the Guides”).[5]
[5]Wrongs Act 1958 (Vic), ss 28LB (definition of “A.M.A. Guides”) & 28LH(1)(a)(i).
Psychiatric impairment must be assessed in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians (“the GEPIC”).[6]
[6]Wrongs Act 1958 (Vic), s 28LI(1).
Impairment assessment by approved medical practitioner
A person wishing to recover damages for non-economic loss in respect of an injury must have his or her impairment assessed by an approved medical practitioner in accordance with Part VBA,[7] who must in turn provide the person seeking the assessment with a certificate of assessment.[8] The prescribed form of a certificate of assessment, which may be found in the Wrongs (Part VBA Claims) Regulations 2015 (Vic) (“the Regulations”), is Form 1.[9] Section 28LN(2) of the Wrongs Act provides:
The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
[7]See Wrongs Act 1958 (Vic), ss 28LF(1)(a), (2)(a) & 28LG.
[8]Wrongs Act 1958 (Vic), s 28LN(1).
[9]Wrongs (Part VBA Claims) Regulations 2015 (Vic), reg 5, sch 1.
A person who receives a certificate of assessment on which he or she intends to rely — a “claimant”, in the statutory language[10] — must serve a copy of it on the defendant or prospective defendant, designated in Part VBA as the “respondent”.[11] The copy must be accompanied by prescribed information and in the prescribed form, Form 4.[12] Section 28LT(3) of the Act provides that the prescribed information may include information about, inter alia, “the injury” and “the incident out of which the alleged injury arose”. The Regulations prescribe that a Form 4 must include that information.[13] Question 7 on the Form 4 reads: “Set out all the injuries you claim you suffered as a result of the incident”.[14] The prescribed information also includes “details of any report of the incident on which the claimant intends to rely”.[15]
[10]See Wrongs Act 1958 (Vic), s 28LB (definition of “claimant”).
[11]Wrongs Act 1958 (Vic), ss 28LB (definition of “respondent”) & 28LT(1).
[12]Wrongs Act 1958 (Vic), s 28LT(2); Wrongs (Part VBA Claims) Regulations 2015 (Vic), reg 8, sch 1.
[13]Wrongs (Part VBA Claims) Regulations 2015 (Vic), regs 8(m) & (n).
[14]See Wrongs (Part VBA Claims) Regulations 2015 (Vic), sch 1.
[15]Wrongs (Part VBA Claims) Regulations 2015 (Vic), reg 8(1)(p).
Impairment assessment by medical panel
Once served with a Form 4 and certificate of assessment, a respondent may either accept the impairment assessment or refer a “medical question” to a medical panel for determination.[16] A respondent who does so must submit to the medical panel a notice in the prescribed form — namely, Form 5 — setting out the medical question and other prescribed information, including a copy of the claimant’s Form 4, a copy of any relevant certificate of assessment served on it by the claimant and, if the claimant has provided one, its statement of claim.[17]
[16]See Wrongs Act 1958 (Vic), ss 28LW(2)(a) & 28LWE(1).
[17]Wrongs Act 1958 (Vic), s 28LZA(1); Wrongs (Part VBA Claims) Regulations 2015 (Vic), reg 9, sch 1.
The expression “medical question” is defined in s 28LB as follows:
medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level[.]
I note that the words “alleged in the claim” modify the phrase “injury to the claimant” and not “the degree of impairment”.[18]
[18]Chua v Lowthian [2011] VSC 468 at [56] (per Osborn J).
The medical panel must assess the claimant’s degree of impairment in accordance with Division 3; that is to say, in accordance with the principles set out earlier.[19] In that way, the function of a medical panel is similar to that of an approved medical practitioner.
[19]Wrongs Act 1958 (Vic), s 28LZG(1).
In exercising its function and powers, a medical panel is not bound by the rules of evidence but may inform itself on any matter relating to a referral in any manner it sees fit.[20]
[20]Wrongs Act 1958 (Vic), s 28LZ(1).
After making its assessment, a medical panel must issue the claimant and the respondent with a determination or a certificate. Sections 28LZG and 28LZGA provide, relevantly:
28LZG Determination of Panel
…
(2) After making the assessment, the Medical Panel must give the claimant and the respondent—
(a) its determination of the medical question in accordance with subsection (4); or
(b) its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or
(c) its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).
…
(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(5) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.
(6) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing—
(a) certify that it is unable to determine the medical question; and
(b) fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.
(7) The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
(8) More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.
(9) A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
(10) If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be a significant injury.
28LZGA Further assessment
(1) If a Medical Panel fixes a time for further assessment under s 28LZG, the respondent may by notice in writing to the Medical Panel and the claimant waive the requirement for a further assessment.
(2) The notice must be given within 14 days after the respondent receives the statement of the Medical Panel.
(3) If the respondent waives the requirement for a further assessment under s 28LZG, the respondent is deemed to have accepted, for the purposes of this Part, the assessment in the certificate of assessment served under section 28LT.
(4) If a Medical Panel fixes a time for further assessment under section 28LZG, and at the end of 12 months after the first assessment, the Medical Panel certifies in writing that it is still unable to determine the medical question because an injury has not stabilised, the injury to the person is deemed to be a significant injury.
PART 5: THE DECISION UNDER REVIEW
Introduction
I turn to the decision under review. Before I do so, however, I will say something about the events culminating in that decision, including the decision of the first medical panel, and about the material before the panels.
Impairment assessment and referral
Sometime after CD instructed his solicitors, they arranged to have him examined by two doctors for the purposes of impairment assessment. Dr John Gill, a psychiatrist, provided CD’s solicitors with a Form 1 dated 3 May 2018 certifying that the degree of impairment resulting from CD’s psychiatric injury was more than ten per cent. Dr James Rowe, an occupational physician, provided CD’s solicitors with a Form 1 dated 10 July 2018 certifying that the degree of impairment resulting from CD’s physical injury was more than five per cent. Each of those doctors also provided CD’s solicitors with reports in which their conclusions were explained. The content of those reports will be returned to below.
On 17 October 2018, CD’s solicitors served on the hospital a Form 4, together with the reports of Dr Gill and Dr Rowe and the draft statement of claim to which reference was made earlier. It was alleged in the Form 4 that CD had suffered the injuries identified in the draft statement of claim as a result of the negligent treatment he received on 11 March, specifically the “multiple attempts [made] to insert a urethral catheter through the claimant’s penis all of which were unsuccessful”.
On 14 December 2018, by means of a Form 5, the hospital’s solicitors referred to a medical panel two medical questions, namely:
[1] Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
[2] Does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?
On 18 January 2019, the Convenor addressed a letter to CD’s solicitors and the hospital’s solicitors, informing that CD was to be examined by a medical panel on 21 February 2019.
Decision of first medical panel
Certificate
The first medical panel examined CD on 21 February 2019. On 12 March, it issued a certificate pursuant to s 28LZG(2)(c) of the Act, stating that it was unable to determine each of the medical questions, and fixing January 2020 as the time for further assessment of the degree of whole person impairment resulting from the injuries alleged in CD’s claim.
The wording of the first panel’s certificate assumed some relevance in the context of CD’s submission, considered below, that the second panel’s decision was attended by an apprehension of bias by way of prejudgment. The certificate read, in part:[21]
The Panel is unable to determine the medical question because the physical injury to the claimant alleged in the claim has not stabilised and the Panel is not satisfied that the degree of whole person impairment resulting from the physical injury alleged in the claim will satisfy the threshold level once the injury has stabilised.
[21]My emphasis.
Constitution of first panel
The first panel comprised Dr Paul Champion de Crespigny, nephrologist, Associate Professor Laurence Cleeve, urologist, and Dr Samari Jayarajah, psychiatrist. A/Prof Cleeve was identified on the certificate and in the written reasons, as well as in the letter of 18 January, as a “consultant” to the panel.
Dr Jayarajah examined CD separately from the other two panel members.
As will be seen, the constitution of the first panel assumed importance in CD’s application.
Material before first panel
Reports of specialists, radiology, ultrasound, medical records
The first panel had before it the reports of four specialists. The material before the panel also included medical records kept by medical professionals who treated CD which contained, among other things, reports of radiological investigations and an ultrasound.
Mr McCahy, treating urological surgeon
Among the specialists’ reports was a report of Mr McCahy dated 22 November 2017. Enclosed with that report were various other reports of his, including reports dated 4 May, 2 June and 19 October of the same year.
The report of 4 May, addressed to Dr Nandha, followed CD’s referral to Mr McCahy. In the report, Mr McCahy noted that CD was suffering from nocturia and urge incontinence at the time Mr McCahy examined him. He opined that the catheterisation might have caused a false passage or stricture, and accordingly made arrangements for a cystoscopy and possible TURP.
Mr McCahy’s operation report of 2 June contains, among other things, findings that CD’s prostate was enlarged, and that examination of his urethra showed “slight bulbar urethral narrowing” but that it was “otherwise normal”.
On 19 October, Mr McCahy provided Dr Nandha with a report following his review of CD. In it, he said that CD was “pretty happy” with the result of his operation. He reported that CD was suffering “a little bit of urgency”, albeit that it was improving. He forecast that the urgency would continue to improve over the coming months.
The report of 22 November 2017, addressed to CD’s solicitors, records a history consistent with the reports to which reference has been made above. In it, Mr McCahy had the following to say regarding the aetiology of CD’s urinary problems:[22]
[22]My emphasis.
At the time [of the examination of 4 May], I felt that [CD] may have sustained a false passage … due to the traumatic catheterisation and could have developed a stricture. I therefore made arrangements for a general anaesthetic cystoscopy which was performed on 2 June 2017. At that time I noted that he had a moderately enlarged, [benign-feeling] prostate gland. On visualisation of his urethra, I felt that … there was a slight bulbar urethral narrowing but otherwise no evidence of false passage or stricture.
…
[CD] suffered from a traumatic catheterisation. This led to bleeding and seems to have been complicated by urinary sepsis. The underlying cause for his problems was benign prostatic hyperplasia.
…
The incident of the traumatic catheterisation did not contribute to [CD’s] urinary problems but may have been responsible for [the] septic episode and the requirement for transfer to the higher acuity hospital for intravenous antibiotics.
No reference is made in Mr McCahy’s reports to the issue of CD’s erectile ability.
Dr Gill, psychiatrist
Dr Gill examined CD on 26 April 2018. His report bears the same date as the Form 1 he provided to CD’s solicitors.
In his report, Dr Gill recorded the following account of CD in relation to the onset of his afflictions:
[CD] told me that … since the surgery he has had no sexual function and has not been able to obtain an erection … He also has unpredictable frequent urinary incontinence which occurs usually on a daily basis.
Later, Dr Gill said:
[CD] said that subsequent to his surgery he has been completely unable to obtain a penile erection, although he has maintained libido. He also suffers unpredictable frequent episodes of urinary incontinence.
Dr Gill also referred to Mr McCahy’s report of 22 November 2017, and commented that the details of that report appeared to him “fully consistent” with the history CD provided at interview.
Turning to the nature of CD’s psychiatric injury, in Dr Gill’s view, CD had developed PTSD as a direct result of the events of 11 March 2017. At the time Dr Gill examined him, CD was suffering from insomnia and phobic anxiety relating to the prospect of experiencing further urethral bleeding, though his flashbacks had settled. Dr Gill considered that those symptoms, as well as CD’s nightmares, general anxiety, irritability and avoidant behaviour, were indicia of PTSD.
He also considered that CD had developed secondary depression as a consequence of the sequelae to the catheterisation; that is, he considered that CD had become depressed as a result of his incontinence and erectile dysfunction, which caused him to avoid social interaction and prevented him from playing sport and pursuing sexual relationships.
Dr Gill concluded that CD’s PTSD had stabilised and that the impairment resulting from that injury satisfied the threshold level.
Dr Rowe, occupational physician
Dr Rowe’s report of 10 July 2018 is a model of brevity. Dr Rowe recorded that CD suffered urinary retention on 11 March 2017, that he went to the Sale Hospital and was catheterised, and that he reported he had “been having problems ever since”.
For reasons which do not appear in the report, Dr Rowe went on to draw the following conclusions:
[CD] has urinary incontinence related to bladder catheterisation that occurred some years ago now.
…
His condition has stabilised, but it is ongoing.
…
The contributing factor to his condition is the catheterisation that occurred as a result of that urethral blockage that occurred in 2017; there is no other cause.
Curiously, however, Dr Rowe went on to describe CD’s injury as “[p]rostatic surgery and consequent [i]ncontinence related to surgery and bladder catheterisation” in the certificate of assessment supplied with the report.
The issue of CD’s sexual function does not appear in Dr Rowe’s report, which records, in passing, that CD “said he does not have a sex life because of his urinary incontinence”.
Mr Snow, urologist
Mr Ross Snow provided CD’s solicitors with a report dated 18 January 2019. Mr Snow reported that, at the time he examined CD on 19 December of the previous year, he was suffering from urge incontinence, that he had a poor stream and that he was experiencing stress incontinence. In relation to CD’s erectile ability, Mr Snow said:
[CD] … reports that he has lost erectile function since the episode of March 2017. He gets no early morning erections, and intercourse is just not possible. He has tried Viagra without success.
Mr Snow had access to and commented on the findings of the cystoscopy conducted by Mr McCahy on 2 June. He noted, consistently with that report, that the cystoscopy revealed narrowing of the bulbar urethra but that there was no evidence of a false passage or stricture. He added, however, that the cystoscopy showed that there was “a bit of scar tissue”.[23]
[23]It is not clear on what basis Mr Snow made that observation; neither the 2 June operation report nor Mr McCahy’s 22 November report makes any mention of urethral scarring.
In relation to the mechanism of CD’s injury, Mr Snow expressed the following view:[24]
[24]My emphasis.
[CD] requires urologic assessment now, to identify any local pathology affecting the bladder, prostate or urethra. There may well be treatment options that can help him.
Because he has not been seen by [a] [u]rologist since October of 2017, we don’t know what pathology is present within the lower urinary tract, nor do we know if his symptoms can be helped.
…
[CD] has an injury to the lower urinary tract, but it has not been assessed as to the exact pathology that is present now, and whether anything can be done about it.
…
The whole sequence of events, beginning with traumatic and failed catheterisation, subsequent septicaemia, and proven leakage of fluid into the retroperitoneal space, that is outside of the urinary tract, as evidenced by a CT scan performed on 15 March 2017, and the associated sepsis, and including the subsequent prostatic surgery, have led to the current situation.
…
The CT of 15 March 2017 shows extensive retroperitoneal fluid, indicating that there had been some damage and leakage from the urinary tract, and this presumably was related to the instrumentations that had been performed.
…
It does appear that there was significant instrumentation of the urethra in attempts to place a catheter. Whilst this was happening, [CD] was in a lot of pain, with bleeding, and almost certainly damage was done to the lower urinary tract.
…
I would therefore conclude that at this point in time [CD’s] injuries are not stable, but would qualify as being greater than [five per cent] of whole person impairment, if they are deemed to be permanent.
His situation is unstable until such time as there has been [s]pecialist review with cystoscopy etc.
Despite Mr Snow’s suggestion, there is no evidence that any further investigations into the mechanism of CD’s injury were conducted.[25]
Medical imaging
[25]Dr Nandha’s report of 14 February 2020 (discussed below) states that CD was referred back to Mr McCahy following Mr Snow’s report. But there is no evidence CD consulted Mr McCahy following the October 2017 review.
The reports of radiological and sonographic investigations before the panel included the following.
First, there was a report of an ultrasound of CD’s renal tract on 15 September 2016, conducted following his 12 September presentation. The findings of the ultrasound were that CD’s prostate was enlarged, with a volume of approximately 64 cubic centimetres. No other abnormalities of the urinary tract were identified.
Second, there was a report of a CT scan of CD’s abdomen and pelvis on 15 March 2017, conducted after his catheterisation on 11 March. The radiologist reported:
There is extensive stranding from fluid, anterior to the bladder and extending superiorly to the level of the kidneys in the retroperitone[al] space bilaterally. Small foci of gas in the anterior soft tissues and the bladder, presumably from the recent [suprapubic catheter]. In addition, there is a small amount of intraperitoneal fluid, around the liver and spleen.
The radiologist opined that the presence of fluid outside the bladder “indicat[ed] a leak from the bladder”.
Third, there was a report of a CT scan of CD’s abdomen and pelvis on 20 April 2017, which revealed a “[m]arkedly enlarged prostate indenting the bladder base” but “[n]o renal calculi or hydronephrosis” and “[n]o wall thickening in collecting system”.
The first panel’s reasons
The first panel gave reasons for its certification that it was unable to determine each of the medical questions.
The panel commenced by detailing the history of the 11 March catheterisation and its aftermath. That history included the following report of CD’s account of the onset of his erectile dysfunction:
[CD] told the Panel between the failed passage of a urinary catheter and his prostate operation on 2 June 2017, he had no sexual difficulties. He said since his prostate surgery “nothing worked”. He said he had no morning erections and he has “never had an erection” since his surgery.
Somewhat curiously, it might be thought, in its next breath, the panel stated that CD reported being “happy with Mr McCahy’s surgery”.
In recording CD’s history, the panel also noted that CD told it that, “by about 2 June 2017 he was passing urine normally but was told he needed to have a prostate operation” and that his incontinence returned “following his prostate surgery”.[26] This caused his “moodiness” to “c[o]me back”. It recorded that CD “accepted that incontinence can be part of the surgery he underwent”. Social withdrawal consequent on incontinence meant he felt lonely and missed company.
[26]This aspect of the history recorded by the first panel is inconsistent with other material before this Court, including a letter addressed by Mr McCahy to Dr Nandha on 4 May 2017, in which it is stated that CD “is now able to pee but has nocturia x4-5 and urge incontinence”.
The panel said CD “previously had nightmares after the incident which have now resolved”, but went on to say that he still had dreams in which he relived the events of 11 March, from which he would awake in a sweat. CD still suffered from anxiety, but no longer feared further urethral bleeding.
On the question of CD’s physical ailments, the panel accepted that he suffered from urinary frequency and urge incontinence, stress incontinence and erectile dysfunction. It referred to the reports of imaging investigations to which reference was made above and to Mr McCahy’s report of 22 November 2017, in particular to his finding on cystoscopy that there was no evidence of a false passage or stricture.
In terms of CD’s psychiatric afflictions, the panel considered that CD suffered not from PTSD, but from an adjustment disorder with anxiety and depressed mood. Addressing itself to Dr Gill’s contrary opinion, the panel noted that almost nine months had expired since Dr Gill’s examination of CD. Some of his symptoms had since resolved and, accordingly, a diagnosis of PTSD was no longer warranted. It added that it had arrived at its opinion based on its examination of CD and its “experience and expertise”.
The panel turned to the assessment of CD’s impairment. It began by stating:
The Panel noted that [CD] is to attend a continence clinic on 4 March 2019 for treatment of his urinary incontinence and therefore, as there is the possibility of further treatment which might substantially alter the level of impairment, the Panel considered that [CD’s] current urological, pain, sexual dysfunction and psychiatric conditions have not stabilised at this time.[27]
[27]It was nowhere explained how or why CD’s attending a continence clinic might improve his sexual function. As we have seen, however, it seems CD also underwent treatment aimed at improving his sexual function. Nor is it clear how, given the injunction in s 28LJ of the Act that secondary psychiatric impairment is to be disregarded in assessing impairment, any improvement in his ability to control his bladder might be relevant to his level of relevant psychiatric impairment.
It was on that basis that the panel certified it was unable to determine either of the medical questions.
In carrying out its impairment assessment, the panel referred to its obligation under s 28LL(3) of the Act to disregard unrelated impairment in making its assessment. In that connection, the panel considered submissions made to it by the hospital. Those submissions drew the panel’s attention to the statements Dr Gill’s report records CD as having made regarding the onset of his erectile dysfunction and his incontinence (to which reference was made above), as well as to Mr McCahy’s opinion that CD’s catheterisation did not contribute to his urinary problems. Those matters, it was submitted, furnished a “clear evidentiary basis by which [the panel] could satisfy itself of a pre-existing impairment”.[28] The panel went on to say this:
[28]Given that the TURP procedure came after CD’s catheterisation, the hospital presumably intended to refer not to pre-existing but simply to unrelated impairment.
The Panel noted that following the failed passage of his urinary catheter and subsequent treatment over the following few weeks, [CD] was suffering urinary frequency during the day but suffered no incontinence or erectile dysfunction.
The Panel further noted that urological examination which included a urethroscopy and cystoscopy performed on 2 June 2017, following the failed bladder catheterisation on 11 March 2017, did not reveal a false passage or other definite iatrogenic anatomical abnormality.
The Panel is of the opinion that there is evidence [of] impairment from an unrelated injury or cause which is playing a part in his current psychiatric and physical impairment and which the Panel is obliged to disregard in accordance with [s]ection 28LL(3) of the Act.
The panel fixed a time for further assessment because, as it explained:
After making the assessments, and disregarding unrelated impairment … the Panel is unable to determine the medical questions because both the physical and psychiatric injuries to [CD] alleged in the claim are not stable and the Panel is not satisfied that the degree of whole person impairment resulting from the physical and psychiatric injuries will satisfy the threshold levels once [they] have stabilised.
Decision of second medical panel
Certificate
In accordance with the first panel’s certificate, the second panel examined CD on 21 and 28 January 2020. On 20 March 2020, it issued a certificate of determination answering each of the medical questions in the negative.
Constitution of second panel
The members of the second panel are the second through fifth defendants in the application before this Court.
For reasons that will become apparent when CD’s claim of apprehended bias is considered, it is important to note that, prior to the examinations, on 18 December 2019, the Deputy Convenor sent to the parties’ representatives another pro forma letter of the kind sent on 18 January 2019. Amongst other things, that letter stated that A/Prof Cleeve would be one of the doctors on the second panel. The associate professor was not identified in the letter as a consultant to that panel. The letter noted that copies of the first panel’s opinion and reasons had been provided to the members of the second panel, and invited the parties to make submissions on “the relevance or content of” those reasons (as well as any other documents provided to the panel).[29]
[29]The letter to which I refer (along with the letter of 18 January 2019), was exhibited to the affidavit of Ms Christina David of Lander & Rogers. In the body of that affidavit, Ms David describes the exhibit as “a copy of a letter sent by the Deputy Convenor … to [CD’s] solicitor dated 18 December 2019”. The letter exhibited is addressed only to a Mr Edward Smith of Lander & Rogers. Neither CD nor his representatives are expressed to be copied. However, counsel for CD objected neither to the evidence, nor to counsel for the hospital’s submission that CD’s representatives had been sent a letter notifying them that A/Prof Cleeve had been appointed to the second panel and informing them that the members of that panel had been given a copy of the first panel’s reasons. That course of events would appear consistent with the Convenor’s Directions as to the Procedures of Medical Panels 2015 at [38], made under s 28LZ(4) of the Wrongs Act 1958 (Vic). In those circumstances, I accept Ms David’s evidence that the letter was sent to CD’s representatives.
CD was examined by psychiatrists Dr Diane Neill and Dr Chris Grant on 21 January 2020. On 28 January, he was examined by general practitioner Dr Judith Hammond and A/Prof Cleeve.
Throughout these reasons, Dr Hammond and A/Prof Cleeve are referred to as “the physical panel” or “the second physical panel”. That shorthand expression was used in the reasons of the second panel and in argument, and I adopt it. It should be said that, while convenient, the expression is infelicitous — there was only one second panel, constituted by the second through fifth defendants.
Material before second panel
Material before, and reasons of, first panel before second panel
The material before the second panel included all the material before the first panel, as well as the certificate and reasons of the first panel. In addition, it included two medical reports authored subsequently to the first panel’s decision.
A/Prof Brooks, urological surgeon
At the request of the hospital’s solicitors, Associate Professor Andrew Brooks, a urological surgeon, prepared a report dated 7 June 2019 addressing the aetiology of CD’s physical injuries. That report was provided to the Convenor of Medical Panels on 17 January 2020.
It appears that the hospital’s solicitors furnished A/Prof Brooks with various medical documentation relevant to CD’s claim for the purposes of the report’s preparation. It is unclear on the evidence exactly what A/Prof Brooks was provided with, but it appears as though he had access to the material before the first medical panel. A/Prof Brooks did not physically examine CD.
A/Prof Brooks noted Mr McCahy’s finding on cystoscopy that there was, in A/Prof Brooks’ words, “no evidence of any trauma to the urethra”. He stated that patients who present with acute urinary retention often experience significant bleeding upon catheterisation because the retention of urine causes the bladder lining or mucosa to become distended. CD’s bleeding was explicable by reference to that phenomenon. A/Prof Brooks added that the reason urethral catheterisation did not work to drain the contents of CD’s bladder was because the indwelling catheter was obstructed by blood clots present in his urine. There was, he said, “no evidence to support the claim of permanent damage to the urethra”.
The presence of fluid in the tissues surrounding the bladder revealed by the CT scan performed on 15 March, A/Prof Brooks opined, resulted from insertion of the suprapubic catheter; there was “no evidence that this had arisen as a result of bladder perforation”.[30]
[30]Presumably, A/Prof Brooks meant to say that the presence of fluid outside the bladder did not constitute evidence that CD’s bladder was perforated in the course of urethral catheterisation; the suprapubic catheter would have had to pass through CD’s bladder wall in order to work.
Turning to CD’s physical afflictions, A/Prof Brooks stated unequivocally that:[31]
[31]A/Prof Brooks described CD’s catheterisation as “non-traumatic” and “routine”. It appears that, unlike Mr McCahy and the authors of the second medical panel’s reasons, who were content to use the expression “traumatic catheterisation” to refer to catheterisation which did not result in urethral damage, for A/Prof Brooks, the absence of damage to the urethra rendered the catheterisation “non-traumatic”. Nothing appears to turn on the terminology used; the relevant consideration is whether CD’s urethra was damaged in the course of catheterisation.
The [non-traumatic] insertion of the urethral catheters … would not be responsible for any urinary incontinence the patient claims.
…
Repeated catheterisations without any evidence of urethral trauma would not result in erectile dysfunction.
Among the questions put to A/Prof Brooks by the hospital’s solicitors was a question asking what the most likely cause of each of CD’s injuries was. A/Prof Brooks answered as follows:
a) Urge incontinence — CD’s urge incontinence was related to his long-standing hyperprostatism and resultant outflow obstruction. That condition “results in changes to the detrusor muscle in the bladder wall”, which changes “result in decreased compliance which … manifest[s] as urgency and urge incontinence”. The TURP procedure may resolve urge incontinence, but fails to in approximately 20 per cent of cases.
b) Stress incontinence — Stress incontinence results from “weakness of the sphincteric muscles in the urethra” which, in males, is “invariably … related to damage to the sphincter”. Sphincteral damage “does not occur following routine catheterisation”, but may potentially occur following a TURP procedure.
c) Nocturia — Nocturia has multiple potential causes but, in CD’s case, was “related to the causes for urgency incontinence”.
d) Erectile dysfunction — CD’s erectile dysfunction was “not related to his attempts at urethral catheterisation”. Erectile dysfunction has various potential causes. Erectile dysfunction is a potential consequence of the TURP procedure, albeit a “relatively rare” one.
Dr Nandha, general practitioner
Dr Nandha provided CD’s solicitors with a report on 14 February 2020. It was forwarded to the Convenor on 27 February.
Dr Nandha referred briefly to Mr Snow’s report, in particular to his observation that the 15 March CT scan revealed that there was fluid in CD’s retroperitoneal space. He concluded that CD “must have suffered damage to his urinary tract in the course of the multiple attempts [at] catheterisation”, and that “this would account for the bleeding and pain he suffered”.
Notwithstanding that conclusion, Dr Nandha expressed the following tentative opinion regarding the cause of CD’s problems:
The urinary incontinence is a [well-known] complication after a TURP, and the erectile problem/dysfunction is another common problem after having the TURP surgery. In my notes of 19/03/2018, [CD] mentioned having this problem for 4-5 [months] and hence after the TURP surgery, and therefore from my general practice experience, these two problems are more related to the TURP surgery rather than the incident of 11 March 2017.
It may be worth getting an opinion of a [u]rologist with regard to this[.]
There is no evidence before me that CD saw a urologist at any time following his examination by Mr Snow 19 December 2017.
Second panel invites submissions
It will be recalled that the first panel recorded CD as having told it that he experienced no sexual difficulties in the period between 11 March 2017 and the TURP surgery, after which “nothing worked”. That version of events is consistent with that recorded in the reports of Dr Gill and Dr Nandha. But it is not consistent with what CD appears to have told Mr Snow, namely that he had been unable to achieve an erection since the episode of March 2017.
On 25 February 2020, Ms Robyn Goodwill on behalf of the Convenor wrote to the parties’ representatives inviting submissions “or other information” in relation to the history CD was said to have given Dr Hammond and A/Prof Cleeve on 28 January. The letter referred to the account CD gave the first panel of the time of onset of his erectile dysfunction, and continued:
At the time of the subsequent Panel psychiatric assessment on 21 January 2020, [CD] told the Panel that from the time of the TURP, he lost all sexual function, he no longer had spontaneous erections, and there was no benefit from medical treatments such as Viagra.
At the subsequent Panel physical assessment on 28 January 2020, [CD] retracted what he told the previous Panel that he had no sexual difficulty between the time of his failed catheterization on 11 March 2017 and his prostate surgery on 02 June 2017. He told the current Panel that he has suffered from complete sexual dysfunction … since the incident of 11 March 2017.
The letter went on to note the inconsistent histories recorded in the reports of Dr Gill and Mr Snow.
Solicitors for CD and those for the hospital made submissions on 10 and 11 March, respectively. Each party made submissions on the proper role of the panel under the Wrongs Act — which are not presently relevant — as well as on the material before the panel and the histories it recorded. In the submissions made on behalf of CD, his solicitors said:
Immediately prior to the failed catheterisation [CD] had a female partner with whom he had a regular sex life. He was fit and well, and had no difficulty obtaining an erection. Indeed, he instructs that he often woke with an erection. He has not had an erection since the failed catheterisation … After he had recovered sufficiently from the failed catheterisation he and his partner tried to have sex, but he was unable to achieve an erection.
They also said:[32]
[CD] is adamant that … [h]e did not tell the previous medical panel that he had “no sexual difficulties between the failed catheterisation and the subsequent prostate operation”. The questioning of both previous panels at the time of the examinations on 21 January 2019 and 21 February 2019 in relation to his sexual function were directed at the time subsequent to the prostate operation, and not to the period between the failed catheterisation and that operation … Nor did he say that to either Dr Gill or Mr Snow. Their questioning of him related only to erectile problems subsequent to his last surgery (the prostate).
[32]Emphasis in original. CD’s solicitors presumably intended to refer to 21 February 2019 (the date the first panel examined CD) and 21 January 2020 (the date the psychiatrists on the second panel examined CD). Nowhere in the Convenor’s invitation for submissions was it suggested CD had told Mr Snow that he had only begun to experience erectile dysfunction following the TURP procedure; in fact, the opposite was stated in the Convenor’s letter.
The hospital’s submissions did not address the question whether or not CD had said certain things to certain people. Instead, they drew the panel’s attention to:[33]
contemporaneous information in [CD’s] medical records regarding the onset of symptoms and the views of Dr [Nandha], [Mr] McCahy and A/Prof Brooks that [CD’s] alleged urinary incontinence and erectile dysfunction are not referable to his catheterisation on 11 March 2019 but to treatment of his underlying, pre-existing and unrelated prostate condition.
[33]I note that the hospital’s submissions contain a factual error inasmuch as they appear to assert that Mr McCahy expressed a view about the aetiology of CD’s erectile dysfunction: CD’s sexual function is not referred to in any of Mr McCahy’s reports.
The second panel’s reasons
Written reasons given
On the day it published its certificate of determination, the second panel gave a written statement of reasons for its answers to each of the medical questions. Those reasons are central to the application before this Court.
The panel began by listing the “alleged injuries” in CD’s Form 4.
Physical impairment
The panel’s reasons for its determination of the first medical question commence with a history of the claimed physical injuries, beginning with the September 2016 episode of urinary retention and ending with a description of the symptoms CD was suffering at the time the panel examined him on 28 January 2020.
In the course of summarising the history of CD’s injuries, the panel said:
Although the previous Panel recorded that [CD] said that he had no sexual difficulty between the time of his failed catheterization on 11 March 2017 and his prostate surgery on 02 June 2017, [CD] retracted this statement. He told the current Panel that he has suffered from complete sexual dysfunction, being unable to have or sustain an erection, nor waking with a morning erection, since the incident of 11 March 2017.
The panel noted that CD’s participation at the continence clinic whose therapies the previous panel thought might improve CD’s condition had not proved beneficial. Nor had therapies aimed at his erectile dysfunction, including the administration of Viagra and the use of sexually arousing visual material. CD’s urinary and sexual symptoms had remained unchanged for the four to five months prior to 28 January 2020. His condition had stabilised.
The panel went on to address the three imaging reports discussed above.[34] In relation to the report of the 15 March CT scan, the panel commented that the leak from the bladder that the radiologist considered the presence of extraperitoneal fluid evidenced was “presumably from the recent suprapubic catheter”. The panel considered — contrary to the views of Dr Nandha and Mr Snow — that no additional medical imaging or other investigations were necessary in order for it to assess CD’s impairment.
[34]The reasons make reference to four reports, including two purportedly conducted on 20 April. It is apparent, however, that the panel erringly referred to the report of the 20 April CT scan twice.
In a section headed “Analysis of the Physical Injuries”, the panel noted its obligation to identify a potentially compensable injury before proceeding to conduct its impairment assessment.[35] In its next breath, the panel stated that it considered CD was suffering from urinary frequency, urge incontinence, stress incontinence and erectile dysfunction. Contrary to CD’s claim that he suffered from permanent damage to the urethra, the panel said that there was “no persisting condition of the urethra arising from the traumatic catheterisation”.
[35]The panel referred to Chua v Lowthian [2011] VSC 468 at [59]-[60] (per Osborn J).
In the same section, the panel returned to the issue of CD’s inconsistent histories:
The Panel noted that in its examination of [CD] on 28 January 2020, he reported having a complete lack of erectile ability from 11 March 2017. The Panel further noted that this history is not concordant with that provided to the previous Panel when assessed in February 2019, nor that provided to the psychiatric panel when it examined [CD] on 21 January 2020. The Panel also noted the history recorded by Dr John Gill in his report prepared on 3 May 2018 … .
The Panel further noted, however, that the history provided to Mr Ross Snow in his report dated 18 January 2019 is consistent with [CD’s] account to the current physical Panel … .
The Panel considered the submissions on behalf of [CD] … and the respondent … with respect to the inconsistencies in history, outlined above.
The panel noted the inconsistent histories CD is recorded to have given a third time when detailing the history of his psychiatric injuries.
The reasons conclude with a section headed “Physical Impairment Assessment”. The panel commenced by stating that it had assessed impairment of CD’s bladder and penis using the Guides, and that it did not consider any other assessment was required.
The panel referred to its obligation under s 28LL(3) of the Act to disregard impairments from unrelated injuries or causes in making its assessment, and made three observations. First, the panel noted that it was not required to apply the Guides in estimating the extent of impairment pre-existing or post-dating the claimed injuries, but that it was not entitled to speculate; an impairment may be disregarded only if evidence establishes it resulted from an unrelated injury or cause.[36] Second, it pointed out that the obligation under s 28LL(3) required a medical panel to make a determination as to the cause of the impairment.[37] Third, the panel said it was cognisant of the need to draw a distinction between the assessment of legal causation of injury and medical causation of impairment in making the causal determination referred to.[38]
[36]The panel referred to City of Melbourne v Neppessen [2019] VSC 84 at [123] (per Niall JA).
[37]The panel referred to Amendola v Coles Supermarkets Australia Pty Ltd (2008) 28 VAR 122 at 132[32] (per Kaye J).
[38]The panel referred to Summers v Director of Housing [2012] VSC 395 at [61] (per Dixon J).
Were there any indication in the first panel’s reasons that it considered it had the power to determine the medical question adversely to CD even though his level of impairment had not yet stabilised, I would have considered the latter construction irresistible. For, in such circumstances, the panel’s decision to fix a time for further assessment would have been explicable only by reference to the fact that it was of the view that CD’s impairments resulted, at least in part, from the events of 11 March.
But there is no such indication in the panel’s reasons. And, further, on my reading of those reasons, the first panel was of the view that CD’s incontinence and erectile dysfunction were wholly unrelated to his catheterisation. The relevant parts of the first panel’s reasons are set out above. It suffices to observe that the first panel recorded a history according to which CD’s incontinence and erectile dysfunction each post-dated the TURP procedure, went on to refer to the hospital’s submission (which drew on the reports of Dr Gill and Mr McCahy, that there was a “clear evidentiary basis by which [the panel] could satisfy itself of a pre-existing [sic, unrelated] impairment”), and pointed out that the urethroscopy and cystoscopy showed no iatrogenic anatomical abnormality. The panel then said that “there is evidence [of] impairment from an unrelated injury or cause which is playing a part in his current psychiatric and physical impairment and which the Panel is obliged to disregard in accordance with [s] 28LL(3) of the Act”. It concluded that it was “not satisfied” CD’s injury-related impairment would satisfy the threshold level once stabilisation had taken place.
Although the first panel expressed the view that CD’s impairments might abate as a result of his attendance at the continence clinic, it is plain from its reasons that it was “not satisfied” that his impairments would satisfy the threshold level once they had stabilised because “there [was] evidence” that they resulted from a cause other than the claimed injury. The panel did not say it was not satisfied that CD’s level of impairment would meet the threshold level once his injuries had stabilised because of the possibility of an improvement in his condition. That possibility was the reason the panel considered itself unable to determine the medical question; but it was not the reason for its lack of the satisfaction required by s 28LZG(5). It will be apparent that I reject Mr Fleming’s submission that there may have been any number of reasons — including the prospect of further treatment — why the panel might not have been satisfied that CD would clear the threshold once his injuries had stabilised. In parsing the panel’s reference to there being “evidence [of]” unrelated impairment, two things ought to be born in mind. First, that the panel considered it was “obliged to disregard” the unrelated impairment makes clear that its reference to mere “evidence” should not be read literally. Second, the second panel — which considered that CD’s impairment was unrelated to the events of 11 March — used the very same language.
It is clear, then, that the first panel was of the view that CD’s impairments were not due to the events of 11 March. Although the first panel’s state of satisfaction was expressed negatively, I consider that it is clear from a reading of its reasons that it was of the view that CD’s level of impairment would not satisfy the threshold level come stabilisation. Indeed, to the extent that the panel was of the view that his bladder and urethra were free of any iatrogenic anatomical abnormality, it appears the panel was of the view that CD did not even continue to suffer from an injury. That is not to say, however, that it is not relevant to the question whether an apprehension of prejudgment arises that the panel expressed the relevant conclusion in negative terms. I will return to this point below. In line with CD’s submission, and the hospital’s concession, I infer that the first panel’s view was shared by A/Prof Cleeve.
I turn now to the question whether the panel was entitled to issue a certificate under s 28LZG(6) while at the same time opining that CD’s impairments were unconnected with the episode of 11 March.
Assuming for the moment that the construction of s 28LZG agreed upon by the parties is correct, I consider that the panel was entitled to issue the certificate and the reasons it did. That is, I do not accept that s 28LZG works to preclude a panel from specifying on its certificate that it is not satisfied that the claimant’s impairment will satisfy the threshold level once his or her injury has stabilised. Nor do I accept that a panel is not entitled to give reasons to similar effect, or even in which it positively expresses satisfaction to the contrary. Let me explain.
Turning to the issue of the certificate, s 28LZG(6) provides that, if a medical panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply — that is, the panel is not satisfied that the claimant will clear the threshold once his or her injury has stabilised — then the panel “must … certify that it is unable to determine the medical question … and fix a time … for further assessment”. Section 28LZG(2) sets out the three options open to a panel following an assessment, one of which must be exercised. The third of those is found in subsection (2)(c), which provides for the issue by the panel of “its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6)”.
True it is that neither subsection (2)(c) nor subsection (6) makes express provision for the inclusion on the panel’s certificate of an expression of an absence of satisfaction that a claimant’s impairment will satisfy the threshold level once his or her injury has stabilised. Compare subsections (2)(b) and (5), which contemplate that, if a panel is so satisfied, it may certify in writing to that effect. But I do not consider that subsections (2)(b) and (5) provide any basis for an implication that a panel acting pursuant to subsections (2)(c) and (6) may not indicate an absence of satisfaction in that connection. Where a panel issues a certificate under a 28LZG(6), it will be apparent that it is doing so because subsection (5) does not apply; that is, it will be obvious that the panel is not satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised. To sanction a reading of s 28LZG whereby a panel was prohibited from making explicit on a certificate that which is necessarily implied by its issue would be counterintuitive, to say the least.
As to the question whether a panel issuing a certificate under s 28LZG(6) can express in its reasons an opinion to the effect that a claimant’s impairment will not satisfy the threshold level once his or her injury has stabilised, I can see no reason why it should not be able to. The reasons a panel gives for its certification are separate from its certificate. While I do not consider that any implication of the kind contended for by Mr Burns exists with respect to the certificate of a panel anyway, those considerations could not work to place constraints on the content of a panel’s reasons.
Supposing I am wrong, however, and that the first panel lacked the power to issue the certificate and reasons it did, it by no means necessarily follows that an apprehension of bias attends the decision of the second panel. I will return to this below.
That fact is important not just in the event that I am wrong about the effect of the construction of s 28LZG favoured by the parties on the first panel’s ability to do what it did. It is important also in the event that the assumed construction of s 28LZG is incorrect. If it is the case that, on the proper construction of s 28LZG, given its view that CD’s impairment was not related to the events of 11 March, the first panel ought to have determined the medical question adversely to CD, then the panel lacked the power to certify as it did. That is because s 28LZG(6) applies only where a medical panel “is unable to determine the medical question”.
The second panel’s decision
Three aspects of the second panel’s decision are relevant for present purposes. The first is the opinion the panel expressed in its reasons. Like the first panel, the second panel referred to Mr McCahy’s opinion that CD’s catheterisation was not the cause of his urinary problems and to the finding upon cystoscopy that there was “no long term damage to the urethra” before concluding that “there is evidence of impairment from an unrelated injury or cause that is playing a part in [CD’s] current urogenital system impairment that the Panel is obliged to disregard”. Unlike the first panel, the second panel went on to disregard that impairment and conclude that CD’s level of impairment did not satisfy the threshold level. But it seems clear that the second panel formed essentially the same view, medically speaking, of CD’s predicament.
The second aspect relates to the manner in which the second panel expressed that opinion. Unlike the first panel, which confined itself to expressing the view that CD’s impairment was not due to the events of 11 March and implying that the TURP procedure had something to do with it, the second panel explained positively that his urge incontinence was a result of his prostatic hypertrophy, while his “urinary incontinence”[493] and erectile dysfunction resulted from the TURP procedure, whose performance was rendered necessary by his prostatic condition, and not the events of 11 March. More generally, it is important to note that the second panel’s reasons are its own. Its reasons are substantially longer and more detailed than the first panel’s reasons, and record a history which differs in some respects to that recorded by the first panel.[494] Any references to the first panel’s reasons are, as Mr Fleming submitted, purely by way of background.
[493]Presumably, the panel used this expression to refer to CD’s stress incontinence.
[494]For example, instead of recording that “by about 2 June 2017 [CD] was passing urine normally but was told he needed to have a prostate operation”, the second panel referred to the report of Mr McCahy dated 22 November, in which the urologist states that, in early-May 2017, CD was experiencing urge incontinence.
That fact reflects the third aspect of the second panel’s decision to which regard should be had, namely the process by which it was reached. The second panel examined CD for a second time, and took his history a second time. It appears that it need not have done so.[495] When it appeared to the second panel that CD had given its physical members a history inconsistent with that given to the first panel, it invited submissions in that connection, which it then said it considered.[496]
Conclusion: No apprehension of bias by reason of prejudgment
[495]See Wrongs Act 1958 (Vic), s 28LZC.
[496]Following Richards J in Mailton Holdings Pty Ltd v Jussy [2019] VSC 421 at [30], I see no reason not to take at face value the panel’s statement that it had regard to the submissions made on behalf of CD.
In those circumstances, might a fair-minded lay observer apprehend that, because A/Prof Cleeve had, in his capacity as a consultant to the first panel, formed a view that CD’s impairment did not result from the events of 11 March, the second panel, on which the associate professor was the specialist physician, might not have decided the reference in accordance with its merits?
It should by this stage be apparent that, were the fair-minded lay observer asked the relevant question at the time A/Prof Cleeve was appointed to the second panel, the answer would be “No.”
As we have seen, A/Prof Cleeve was properly a member of the second panel, in the sense that the Act allowed him to be on it. And the opinion he evidently had about the aetiology of CD’s impairment at the time he was appointed to the second panel was formed within the confines of the decision-making process provided for by the Act. Further, and importantly, there is no evidence that the associate professor did not form his opinion after due consideration of the facts; that is, there is no suggestion that he made his decision otherwise than in accordance with the merits.
That is so regardless of how s 28LZG is properly construed. Contrary to Mr Burns’ submission, even if it were the case that the first panel, in the circumstances, had no choice but to issue a certificate under s 28LZG(6), and if it were correct that, properly construed, that provision forbade the first panel from expressing its view that CD’s impairment was not related to his catheterisation, that would not alter the fact that A/Prof Cleeve had formed a view about the aetiology of CD’s impairment in the course of carrying out the function the Act required of him. It might be thought difficult to imagine a set of circumstances in which an assessment as to whether a claimant’s level of impairment has stabilised could be made absent a judgment about the nature and aetiology of that impairment.
Alternatively, if the first panel lacked the power to certify as it did in circumstances where it was not, in reality, unable to determine the medical question, that does not change the fact that A/Prof Cleeve formed the view it is alleged amounts to a prejudgment in the course of carrying out his statutory function. If it is the case that the first panel could and should have determined the medical question adversely to CD, it would be a strange state of affairs were the second panel to be held to have prejudged that question by virtue of the fact that the first panel, rather than determining the medical question, decided to fix a time for further assessment.
To the extent that the way the first panel’s certificate and reasons are expressed is even relevant (for, as we have seen, A/Prof Cleeve cannot be regarded as an author), the first panel did not express its conclusion emphatically; it expressed its conclusion negatively, mimicking the language of s 28LZG. It cannot be said, then, that the certificate or reasons of the first panel would give a bystander the impression that A/Prof Cleeve had closed his mind, or that he would not consider further material were it made available to him. I regard this as relevant notwithstanding the fact I consider that the first panel could permissibly have expressed itself in stronger terms. Accordingly, I reject Mr Burns’ submission that the first panel’s reasons indicated that A/Prof Cleeve might have had a closed mind.
In essence, the answer to CD’s argument that an apprehension of prejudgment attended the second panel’s decision is that it is not possible logically to articulate a connection between the fact that A/Prof Cleeve had formed a view about the cause of CD’s impairment prior to his appointment to the second panel — which may be accepted — and the feared deviation from the course of deciding the medical question in accordance with its merits. CD’s argument falls at the second hurdle presented by the Ebner two-step.
The conclusion I have reached is only strengthened when regard is had to what transpired after the second panel was convened. As we have seen, the only new material forwarded to the second panel supported its conclusions. That fact notwithstanding, the second panel examined CD a second time, took his history, invited submissions, considered those submissions, and authored a fresh set of reasons. I reject Mr Burns’ argument that the failure of the panel to request additional information or take some other unspecified further action following the receipt of the submissions reflects a failure to consider them or otherwise gives rise to an apprehension of bias.
Consideration: Whether apprehension of bias by receipt of extraneous information
I have rejected Mr Burns’ argument that the first panel lacked the power to express the view that CD’s impairment would not satisfy the threshold level once his condition had stabilised. However, in circumstances where Mr Burns suggested that the second panel ought not to have had regard to the first panel’s reasons, my view that the first panel might have lacked the power to certify under s 28LZG(6) in circumstances where it was of the view that CD’s impairment did not result from the events of 11 March make it necessary to ask whether the second panel’s consideration of the first panel’s certificate and reasons gave rise to an apprehension of bias.
The receipt by a decision-maker of extraneous information may give rise to an apprehension of bias.[497] The decisive factor here is the meaning of “extraneous”. In Webb, Deane J said that knowledge by a decision-maker “of some prejudicial but inadmissible fact or circumstance” might give rise to an apprehension of bias.[498] While the receipt by a decision-maker of extraneous information may result from non-compliance with a statutory duty,[499] it seems clear that information will be considered extraneous only when it is both irrelevant (or perhaps only marginally relevant) and unfairly prejudicial.[500] This should not be surprising, remembering that the test for apprehended bias requires an articulation of how the factor said to give rise to the apprehension — here, the information — might cause the decision-maker to decide the case otherwise than in accordance with its merits.
[497]See, e.g., CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76.
[498]Webb v The Queen (1994) 181 CLR 41 at 74.
[499]See, e.g., CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 85-86[14] & 95[46] (per Kiefel CJ and Gageler J) & 113[116] (per Edelman J).
[500]Hercules v Jacobs (1982) 60 FLR 82 at 87 (per Fitzgerald J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 90-91[29] (per Kiefel CJ and Gageler J), 96-97[50]-[51], 103[73], 107[92], 108[96] & 108[99]-109[101] (per Nettle and Gordon JJ) & 119[134] & 120[138] (per Edelman J).
Over and above the claim that the first panel lacked the power to give the reasons it did, Mr Burns offered no reason why the second panel ought not to have had regard to them. While the content of those reasons did not help CD’s cause, it cannot be described as irrelevant or prejudicial. The fact that the issue of those reasons might have been ultra vires is not to the point.
It is also worth pointing out that a power of a decision-maker to inform itself as it thinks fit, such as that contained in s 28LZ(1), will ordinarily mean that an interested party has no cause for complaint where a decision-maker has regard to certain material, provided the parties were made aware of the material and given an opportunity to comment.[501] As we have seen, CD was informed that the members of the second panel had been provided with copies of the first panel’s reasons and was given the opportunity to make submissions about that fact.
[501]Wajnberg v Raynor [1971] VR 665 at 678-679 (per McInerny J); Ewert v Lonie [1972] VR 308 at 312; Freedman v Petty [1981] VR 1001 at 1021 (per Marks J). See also the reasons of Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 108[100]. Their Honours considered it important that the irrelevant and prejudicial material before the Immigration Assessment Authority was hidden from the appellant.
Accordingly, I consider that, even if the first panel’s certification and reasons were ultra vires, no apprehension of bias arose by virtue of the fact that the second panel had regard to them.
Consideration: Whether apprehension of bias by reason of interest
It remains for me to consider whether an apprehension of bias attends the decision of the second panel by virtue of the fact that A/Prof Cleeve was rendered, as it were, a witness as a result of his role in the decision of the first panel. For the reasons that follow, it does not.
The law governing apprehended bias by reason of interest finds its roots in the maxim that no one is to be a judge in his or her own cause, but it extends to cases in which a decision-maker has an “interest” in the matter before him or her.[502] While the concept of an “interest” has been described as “protean”, “vague and uncertain”,[503] reference to the authorities suggests that a decision-maker will be considered interested in a decision only where he or she can be said to have become “in substance” a party to the proceedings.[504]
[502]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 349[25] (per Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at 396[182]).
[503]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 349[25] & 357[54] (per Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at 396[182]).
[504]McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 510[28] & 512[38] (per Spigelman CJ), referring to Cooper v Wilson [1937] 2 KB 309 at 322-324 (per Greer LJ) & 344-345 (per Scott LJ); R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411 at 427 (per Zeeman J).
Various forms of interest have been held to disqualify decision-makers by giving rise to an apprehension of bias.[505] For present purposes, I am concerned only with the authorities that provide support for the proposition that a person may not adjudicate an issue of fact in respect of which he is a witness.
[505]For example, a decision-maker may have a disqualifying interest where he or she stands to gain financially from the outcome of a decision (see, e.g., Re Skene’s Award (1904) 24 NZLR 591; R v Hendon Rural District Council; Ex parte Chorley [1933] 2 KB 696) or where he or she is associated with a party to or committed to a cause connected with the subject-matter of the decision (see, e.g., R v Bow Street Magistrate; Ex parte Pinochet Ugarte [No 2] [2000] 1 AC 119; In re Duffy [2008] UKHL 4).
In Dickason v Edwards,[506] a member of a friendly society was expelled after he was found by the judicial committee of the society to have verbally abused and threatened the district chief ranger. The district chief ranger was, by the society’s rules, a member of the society’s judicial committee. He was present at and presided as chairman over the hearing of the charge. The High Court held that the expelled member had been denied natural justice.
[506]Dickason v Edwards (1910) 10 CLR 243.
Justice Isaacs said:[507]
If it is incompatible for the same man to be at once a judge and occupy some other position which he really has in a case, then prima facie he must not act as a judge at all … Whether this incompatibility exists in any particular case depends upon the facts.
[507]Dickason v Edwards (1910) 10 CLR 243 at 259.
His Honour considered relevant the fact that the district chief ranger had been a witness to the alleged conduct, and had given his account of it to the district executive, which brought the charge on the basis of his evidence.[508]
[508]Dickason v Edwards (1910) 10 CLR 243 at 261-262.
Stollery v Greyhound Racing Control Board[509] concerned a similar set of facts. Mr Smith, a member of the respondent board, received from the appellant an envelope containing $200 in cash, and formed the view that the appellant had tried to bribe him. He reported the matter to the board, on which he subsequently sat, and before which he gave evidence. The High Court held that an apprehension of bias attended the board’s decision.
[509]Stollery v Greyhound Racing Control Board (1972) 128 CLR 509.
In those cases, however, the real reason for the tribunal members’ disqualification was that each of them had become, in substance, a party to the proceeding resulting in the impugned decision; specifically, the district chief ranger and Mr Smith each simultaneously played the role of “accuser” or “prosecutor” and adjudicator.[510] This was subsequently confirmed by the High Court in Isbester, where Kiefel, Bell, Keane and Nettle JJ considered that the disqualification of the decision-makers in Dickason and Stollery was accounted for by the interest each had as “prosecutor, accuser or other moving party”.[511] I note that the interest of a moving party is an interest in the outcome of the matter falling for determination, whether it be peculiarly personal, as in Dickason and Stollery, or more general, as in Isbester.[512]
[510]Dickason v Edwards (1910) 10 CLR 243 at 252-253 (per Griffith CJ) & 256-257 (per O’Connor J); Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 516 (per Barwick CJ, McTiernan J agreeing at 520), 520 (per Menzies J) & 527 (per Gibbs J, Stephen J agreeing at 528).
[511]Isbester v Knox City Council (2015) 255 CLR 135 at 152[45]. See also at 158[65] (per Gageler J).
[512]See Isbester v Knox City Council (2015) 255 CLR 135 at 152[45]-[46] (per Kiefel, Bell, Keane and Nettle JJ).
Plainly, there is no evidence whatever that A/Prof Cleeve had any comparable interest in the proceedings before the panel. Nor is there any evidence that A/Prof Cleeve had a memory of what CD told the first panel. Much less is there any evidence that the associate professor gave the other members of the second panel his account of what CD told the first panel.[513] And, in any event, the disqualified members of the decision-making bodies in Dickason and Stollery were witnesses to acts the subject of allegations those bodies were tasked with determining; they were not merely witnesses to statements made in the course of the proceedings before them.
[513]That said, were one to assume that A/Prof Cleeve might have remembered what he had been told by CD upon examination as a consultant to the first panel and that he might have discussed this with other members of the second panel, for reasons that follow, that assumption would not avail CD in the circumstances of this case.
This brings me to my next point, namely that, as I have explained, the Act contemplates that successive panels may have members or consultants in common. In light of that fact, it would be a perverse result were a claimant able to complain that a panel’s decision was vitiated by apprehended bias on the basis that he or she had told successive panels inconsistent things.
In McGovern, Basten JA explained why Councillor Ebbeck’s and Councillor Ryan’s firm expressions of support for the application did not amount to impermissible advocacy by reference to the fact that they had formed their views of the merits of the application “within the statutory confines of the decision-making process”.[514]
[514]McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 535[158].
In Isbester,[515] Gageler J explained why an investigator must not participate in the decision-making process by reference to s 5(c) of the Administrative Procedure Act 1946 (US), which reads, in part:
[I]nvestigators, if allowed to participate, would be likely to interpolate facts and information discovered by them ex parte and not adduced at the hearing, where the testimony is sworn and subject to cross-examination and rebuttal.
[515]Isbester v Knox City Council (2015) 255 CLR 135 at 157[64].
The dicta of Basten JA and Gageler J suggest that conduct or knowledge will not be probative of interest where the conduct is done or the knowledge is acquired by the decision-maker in the proper performance of its function, and not in the performance of some other, inconsistent function. In the present case, assuming A/Prof Cleeve had a memory of what was said at the first panel’s examination, it cannot be that an apprehension of bias arises by virtue of the fact that he acquired certain information — namely, a statement made by CD — in the course of the proper performance of his statutory function.[516]
[516]Nor would any such apprehension arise were it the case that A/Prof Cleeve discussed what CD said with other members of the panel in the course of performing that function. See footnote 513, above.
Accordingly, there is no sense in which A/Prof Cleeve can be said to have had an interest in the outcome of the second panel’s decision. No factor that might have led the associate professor — and, in turn, the second panel — to decide the reference otherwise than in accordance with its merits has been identified.
Waiver
CD waived his right to object
For the following reasons, if, contrary to my opinion, the second panel’s decision was attended by an apprehension of bias, I would have held that CD had waived his right to object on that basis.
Hospital’s submissions
Mr Fleming submitted that CD had knowledge of the key facts relied upon to ground his argument that the decision of the second panel was vitiated by an apprehension of bias by 18 December 2019, when the Deputy Convenor sent CD’s solicitors a letter advising them that A/Prof Cleeve had been appointed to the second panel. That is, he knew that the first panel had recorded him to have said that he did not begin to suffer from erectile dysfunction until after the TURP procedure, that A/Prof Cleeve had been present at the interview during which he purportedly made that statement, and that A/Prof Cleeve was to be a member of the second panel. The time the letter was received, it was argued, was the appropriate time for CD to object to the proposed constitution of the second panel. And by failing so to object, CD had waived his right to complain of apprehended bias.
Further, Mr Fleming pointed out, CD did not object to A/Prof Cleeve’s presence on the second panel upon receipt of Ms Goodwill’s letter of 25 February 2020, nor was the issue raised in his originating motion of 19 May 2020, or at the hearing in this Court on 19 May 2021. Rather, the point was embraced only when raised as a possibility by this Court following that hearing.
In the circumstances, it was submitted, to allow CD to complain of apprehended bias would be both wrong and unfair.
Plaintiff’s submissions
Mr Burns responded to the argument that CD had waived his right to object by failing to complain prior to the second panel’s decision in the following way. The rationale for the doctrine of waiver in application to the present context is that a party should not be allowed to keep the apprehended bias card up its sleeve until it becomes necessary to play it. Accordingly, waiver will result only where there is evidence that, cognisant of the circumstances giving rise to the apprehension, a party waits to see whether the relevant decision is unfavourable before deciding to object.
In the present case, Mr Burns argued, it was not until the publication of the second panel’s determination and reasons that the circumstances giving rise to the apprehension became apparent. That is because it was at that point in time that it became clear that the second panel had made its determination on the basis of nothing more than a finding as to CD’s credit and the fact that erectile dysfunction was a recognised potential complication of the TURP procedure.
Mr Burns did not deal with Mr Fleming’s submission that, even if CD had not waived his right to object by reason of his failure to say anything following receipt of the letter of 18 December 2019, he should be denied relief on the basis that he failed to complain of apprehended bias at all until it was raised at the instance of this Court.
Waiver and delay: Principles
The rule against apprehended bias is subject to considerations of waiver.[517] A court may also refuse a litigant who complains of apprehended bias prerogative relief on the basis that he or she has delayed in making a complaint.[518]
[517]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344[6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at 396[182]).
[518]British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 314[74] (per Gummow J), citing Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89[5] (per Gleeson CJ), 106-107[53] (per Gaudron and Gummow JJ) & 133[172] (per Hayne J).
Mr Burns was correct about the rationale for the doctrine of waiver. In Vakauta v Kelly,[519] Brennan, Deane and Gaudron JJ said:
It would be unfair and wrong if a failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
[519]Vakauta v Kelly (1989) 167 CLR 568 at 572 (per Brennan, Deane and Gaudron JJ). See also at 577 (per Dawson J).
It follows that, if a party with knowledge of the circumstances giving rise to an apprehension of bias waits until the impugned decision is made, he or she will be considered to have waived any right to object on that basis.[520] For this purpose, a party will be fixed with the knowledge of his or her legal representatives.[521]
[520]Dickason v Edwards (1910) 10 CLR 243 at 261 (per Isaacs J); R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 2] [2000] 1 AC 119 at 137 (per Lord Hoffman); Smits v Roach (2006) 227 CLR 423 at 439[43] & 440[44] (per Gleeson CJ, Heydon and Crennan JJ, Gummow and Hayne JJ agreeing at 445[61]). It is not necessary for the purposes of this application to consider whether a party may be held to have waived his or her right to object even earlier in the piece. On that question, see Smits v Roach (2006) 227 CLR 423 at 466[126] (per Kirby J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 102[71]-103[72] (per Nettle and Gordon JJ), referring to Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 449[76] (per Gummow ACJ, Hayne, Crennan and Bell JJ).
[521]Compare Smits v Roach (2006) 227 CLR 423 at 440[45]-442[48] (per Gleeson CJ, Heydon and Crennan JJ). Compare the remarks of Kirby J at 468[133]-470[139].
Consideration
If A/Prof Cleeve’s participation in the decision of the second panel had given rise to an apprehension of bias by way of prejudgment or interest — and I have held that it did not — the facts giving rise to that apprehension would have been apparent to CD by 18 December 2019, when the parties were notified that A/Prof Cleeve was to sit on the second panel. By that point in time, the first panel had issued its reasons, in which the view was expressed that CD’s impairment did not result from the catheterisation, and in which CD was recorded to have said that he only began to experience erectile dysfunction after he underwent the TURP procedure.
It is true that it was this Court that invited submissions on the question of apprehended bias. But, supposing I was wrong not only in my conclusion that no apprehension of bias attends the second panel’s decision, but also in my conclusion that it is not the case that such an apprehension arose only once the second panel had published its determination and reasons, I would likely refuse CD relief on the basis of his delay in complaint. The allegation of apprehended bias was not pleaded until 23 September 2021, some 16 months after CD filed his originating motion for judicial review in this Court, and 18 months after the second panel published its decision.
PART 13: CONCLUSION AND ORDERS
CD suffered a traumatic ordeal at the hospital on 17 March 2017. That he now suffers urinary incontinence and erectile dysfunction is dreadful and must be hard to bear. He has also suffered mentally. Would it were not so.
Given the opinions of Mr Snow and Dr Rowe, and CD’s instructions, it is not surprising that it was thought arguable that CD’s impairments were attributable (at least partly) to the attempts at catheterisation. But there was a good deal of evidence before the panel pointing to a different combination of causes of those impairments, causes that were unrelated to the attempts at catheterisation. The panel was entitled to act on this evidence and on its own medical opinion in arriving at its determination.
Further, the application to this Court appears to have been brought principally on two misapprehensions: first, that the levels of impairment were to be assessed by reference to those conditions listed in CD’s claim form, absent any consideration of whether the impairments resulted from unrelated causes; and, second, that the panel was not entitled to make a credit judgment.
For the reasons I have given, I am not satisfied that the panel made any legal error in finding that CD’s impairments were unrelated to the events of 11 March, that there was legal error in making a credit judgment, that the panel’s decision is attended by a reasonable apprehension of bias or that it made any other legal error.
It follows that CD’s application must fail, and I make orders accordingly.
I shall hear the parties on the question of costs.
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SCHEDULE OF PARTIES
S ECI 2020 02237
| Between: | |
| CD | Plaintiff |
| -and- | |
| CENTRAL GIPPSLAND HEALTH SERVICE (ABN 85 050 485 681) | First Defendant |
| -and- | |
| DR DIANE NEILL | Second Defendant |
| -and- | |
| DR CHRIS GRANT | Third Defendant |
| -and- | |
| DR JUDITH HAMMOND | Fourth Defendant |
| -and- | |
| ASSOCIATE PROFESSOR LAURENCE CLEEVE | Fifth Defendant |
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