Central Gippsland Health Service v Cooper
[2016] VSC 658
•4 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 06213
| CENTRAL GIPPSLAND HEALTH SERVICE | Plaintiff |
| v | |
| DEVON COOPER & ORS | Defendants |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2016 |
DATE OF JUDGMENT: | 4 November 2016 |
CASE MAY BE CITED AS: | Central Gippsland Health Service v Cooper |
MEDIUM NEUTRAL CITATION: | [2016] VSC 658 |
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JUDICIAL REVIEW – Medical negligence – Defendant broke ankle playing football – Alleged misapplication of plaster cast on broken ankle – Whether Panel failed to take into account and disregard impairment from an unrelated injury or cause, namely the football injury – Whether Panel misconstrued the requirement for an evidentiary basis for a pre-existing impairment – Whether Panel took an irrelevant consideration into account –Whether Panel misdirected itself in applying s 28LL(3) of the Wrongs Act 1958 – Wrongs Act 1958, ss 28LB, 28LE, 28LF, 28LH, 28LL & 28LN.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F McKenzie | Lander & Rogers |
| For the First Defendant For the Second Defendant | Mr A Ingram No appearance | Nowicki Carbone Lawyers |
For the Third Defendant No appearance
HER HONOUR:
Introduction
The plaintiff, Central Gippsland Health Service, is a public hospital operating as the Sale Hospital.
On 24 March 2012, the defendant, Devon Cooper (‘claimant’), attended the emergency department of the Sale Hospital for treatment of a right ankle injury (a fractured fibula) sustained while playing football. Staff at the Sale Hospital took an X-ray of the claimant’s ankle and applied a plaster cast below the knee. The claimant was then discharged.
Two days later, on 26 March 2012, the claimant again attended the emergency department of the Sale Hospital and the cast was removed and reapplied. The claimant was again discharged.
There followed a litany of referrals, consultations and medical procedures that included the further replacement of the cast on 3 April 2012, surgery to insert a plate on 23 October 2012 and the removal of the plate on 14 May 2013. The claimant developed a stress fracture through one of the screw holes from the surgery and a further plate was inserted on 11 March 2014.
On 23 March 2015, the claimant commenced County Court proceedings alleging that the plaintiff failed to properly carry out treatment on his admission. The particulars of negligence refer to the defective application of the plaster cast, failure to ensure a satisfactory position was achieved, failure to take an X-ray after the application of the cast, failure to confirm satisfactory alignment of the fracture and failure to carry out an early internal fixation of the fracture.
The particulars of injury in the claim are as follows:
·Persistence of injury to the right ankle with absence of resolution.
·Persistence of injury to the medial ligamentous structures.
·Persistence of injuries to the tibio-fibula and deltoid ligament.
·Probable development of arthritis.
·Aggravated limitation of movement and function.
·Protracted treatment.
·Possibility of ankle arthrodesis.
·Severe limitation of movement and function.
·Scarring.
On 12 June 2015, the claimant’s solicitors served on the plaintiff the prescribed information pursuant to the Wrongs Act1958 (Vic) (‘Act’), a Certificate of Assessment and a medical report by Associate Professor Bruce Love, both dated 19 November 2014.
The prescribed information form described the ‘injury’ in identical terms to the claim and the ‘incident’ in which the injury arose as follows:
The claimant presented to the Sale Hospital with a fractured ankle which was not adequately treated.
The Certificate of Assessment signed by Associate Professor Love stated:
I am satisfied that:
The degree of impairment resulting from this person’s injury is more than 5%.
Brief description of injury assessed:
1) Fractured fibula of the right ankle
2) soft tissue injury of medial ligamentous structures of the ankle, including the tibiofibular syndesmosis of the deltoid ligament medially.
On 7 August 2015, the plaintiff’s solicitors wrote to the Convenor of Medical Panels referring a medical question to a Medical Panel pursuant to s 28LWE of the Act in relation to the assessment (‘Referral’). The Medical Panel was asked to determine the following medical question:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
The Referral included the following instructions:
14.The respondent submits that A/P Love has failed to take into account the pre-existing injury that the claimant suffered whilst playing football.
…
16.The respondent considers that the claimant was suffering from a pre-existing condition because the fracture he sustained arose from a football injury and not as a result from the treatment he received at the Sale Hospital.
17.Pursuant to section 28LL(3) of the Act, ‘impairment from unrelated injuries or causes are to be disregarded in making an assessment’. Accordingly, any impairment sustained by the claimant whilst playing football should not be taken into account in any assessment.
A Medical Panel was duly convened to determine the degree of impairment in accordance with Division 5 of Part VBA of the Act.[1]
[1]The Medical Panel comprised Mr John Bourke, orthopaedic surgeon, and Dr Roy Karna, rheumatologist.
On 8 October 2015, the Medical Panel issued a Certificate of Determination, answering the medical question as follows:
The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does satisfy the threshold level.
The Certificate of Determination was accompanied by Reasons for Determination (‘Reasons’).
Statutory Framework
Part VBA of the Act establishes thresholds for the recovery of damages for non-economic loss. Section 28LE provides:
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.
Section 28LF(1)(b) provides that for the purposes of Part VBA, injury to a person is significant injury if ‘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’.
Section 28LB defines ‘impairment’ as ‘permanent impairment’; ‘threshold level’ relevantly means impairment of more than five per cent.
Accordingly, the claimant is not entitled to recover damages for non-economic loss unless he has been assessed as having a degree of permanent impairment of more than 5 per cent.
Section 28LN provides for a certificate of assessment to be provided by the approved medical practitioner who makes the assessment of degree of impairment under Part VBA. 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. [2]
[2]Section 28LNA makes special provision for when a medical practitioner is unable to determine the degree of impairment because the injury has not stabilised. If, at the end of 6 months after that first assessment, an approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised, that approved medical practitioner may issue a certificate of assessment: s 28LNA(2).
Section 28LH(1) provides that an approved medical practitioner must make an assessment of degree of impairment under Part VBA in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (‘Guides’) or the methods prescribed, and in accordance with operational guidelines as to the use of the Guides or methods issued by the Minister. Section 28LH(2) provides that nothing in sub-s (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all the injuries to the person have stabilised.
Section 28LL provides for the assessment of impairments resulting from injuries arising out of the one incident. It provides:
(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.
In other words, s 28LL provides for impairments from injuries arising from the same ‘incident’ to be assessed together; conversely, impairments from injuries that did not arise from the same incident are not to be assessed together. When assessing impairment resulting from an injury or injuries arising from a particular incident, impairments resulting from injuries that did not arise from that incident must be disregarded.
In this case, the ‘incident’ on the football ground and the injury resulting from it was to be distinguished from the ‘incident’ at the Sale Hospital and the injury resulting from that incident. Any impairment arising from the football injury had to be disregarded when assessing impairment from the hospital injury.
Reasons
The Reasons set out the claimant’s account of how he injured his ankle playing football and events at the emergency department at the Sale Hospital and following. The Reasons record the claimant’s past medical history, the results of the Panel’s physical examination of the claimant and its review of the claimant’s X-rays.
The Panel concluded that at the date of assessment the claimant was suffering from ‘mild to moderate right ankle joint dysfunction and minimal right hindfoot dysfunction, post surgical scarring and a superficial peripheral nerve injury’. The Panel considered that the claimant’s condition had stabilised.
The Panel described the manner in which it had carried out impairment assessments according to the methods prescribed in the Guides as required by s 28LH of the Act. The Reasons describe how the Panel assessed the claimant’s right ankle and hind foot, how it assessed the appropriate whole person impairment attributable to loss of movement, how it assessed the peripheral nerve injury and how it assessed the appropriate whole person impairment for the surgical scarring.
The Panel then turned to the matters raised by the plaintiff in paragraphs 14, 16 and 17 of the Referral concerning impairment from unrelated injuries or causes and continued:
The Panel considered the issue as to whether there is an impairment from an unrelated injury or cause which is playing a part in the claimant’s current impairment and which ought to be disregarded in accordance with Section 28LL(3) of the Wrongs Act 1958.
In considering its obligation to disregard unrelated impairment, the Panel noted the decision in Wilson v Liquorland Australia Pty Ltd [2014] VSC 545 wherein the Court emphasized the need for an ‘evidentiary basis by which the Panel could derive a positive satisfaction of a pre-existing impairment’.
The Panel noted the claimant sustained a mildly displaced oblique fracture of his right fibula, a medial ligament injury and a probable inferior tibio-fibular ligament injury. This was treated with a below knee plaster. The Panel noted there was no prior history of right ankle injury before 24 March 2012 and therefore there was no pre-existing impairment prior to this date.
The Panel concluded that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim was more than five per cent and was permanent.
At the conclusion of the Reasons, the Panel confirmed that it had assessed ‘all potentially compensable injuries’ in accordance with the Guides and said:
The Panel also considers it is not required to make a finding in relation to the issue of whether or not the claimant’s current impairment which the claimant attributes to the injuries alleged in the claim, was caused by the circumstances of the incident, as alleged, that gave rise to the claim but the Panel assessed impairment only arising from the injuries to the claimant that are potentially compensable.
Grounds of Review
The plaintiff contends that the Panel has made the following errors of law:
(1)It failed to identify an injury potentially caused in the manner alleged in the claim.
(2)It failed to take into account and disregard the impairment from an unrelated injury or cause, namely:
(a)physical injury caused by the accident that occurred during the football game; and/or
(b)potential impairment arising therefrom.
(3)It took into account an irrelevant consideration, namely, an unrelated injury or cause.
(4)There was no evidence for the Medical Panel’s finding that there was no evidentiary basis for a pre-existing impairment.
(5)It misconstrued the requirement for an evidentiary basis for a pre-existing impairment as set out in Wilson v Liquorland Australia Pty Ltd [2014] VSC 545.
(6)In the alternative, it took into account an irrelevant consideration, namely, medical treatment, being treatment reasonably undertaken to alleviate an injury, and as a result ‘part of’ that injury.
In fact, grounds 1 to 5 were grouped together as different ways of articulating the same complaint, and ground 6 was advanced only as an alternative to grounds 1 to 5.
The plaintiff seeks an order in the nature of certiorari setting aside the determination of the Medical Panel and an order in the nature of mandamus compelling it, differently constituted, to determine the medical question referred to it in accordance with law.
Grounds 1 – 5
Submissions
The substance of grounds 1 to 5 is that the Panel erred in failing consider whether there was an impairment from the football injury that had to be disregarded when assessing the degree of impairment resulting from the injuries in the claim, as required by s 28LL(3) of the Act.
This error is described in a number of ways.
It is first alleged that the Panel failed to identify and consider the injury alleged in the claim, because it did not identify and disregard any pre-existing impairment caused by the injury suffered on the football field. The Panel was required to consider the impairment alleged in the claim, that is, the impairment caused by the alleged negligence of the plaintiff. As part of this process, the Panel had to disregard any pre-existing impairment in accordance with s 28LL(3) of the Act. In the present case, this meant that it had to disregard any pre-existing impairment resulting from the football injury, which occurred prior to any alleged negligent act or omission by the plaintiff.
According to the plaintiff, the Reasons show that when considering the question of pre-existing impairment, the Panel confined its consideration to any impairment existing prior to 24 March 2012, which was the date of both the football injury and the first attendance at the Sale Hospital. As a result, so it is contended, the Panel did not consider whether there was any pre-existing impairment caused by the injury on the football field. In noting that there had to be an ‘evidentiary basis’ for there to be ‘positive satisfaction of a pre-existing impairment’ and in concluding that there was none, the Panel showed itself to have failed to consider pre-existing impairment occurring as a result of the football injury.
This, so the plaintiff contends, establishes grounds 1 and 2.
In respect of ground 3, the plaintiff says that the approach taken by the Panel also means that in assessing the level of impairment, the Panel impermissibly took into account impairment arising (or potentially arising) from the football injury. Such impairment was unrelated to any injury arising out of the treatment about which it is complained.
The plaintiff says further that ground 4 is made out because there was clear evidence of a pre-existing impairment by virtue of the football injury, its symptoms, and the X-ray taken.
With respect to ground 5, the plaintiff says that it appears that the Panel required further evidence than the consequences of the football injury that were evident on 24 March 2012, and that to require further evidence was contrary to law.
In general terms, the plaintiff submits that the Panel was required to apply its medical expertise to make its determination on the best evidence available and, ‘as best it could’, work out whether there was any impairment from unrelated injuries or causes. According to the plaintiff, the Panel might have decided that the football injury was an existing impairment, or that the football injury and its treatment resulted in some impairment. However, there is no evidence that the Panel turned its mind to any such question. The Panel simply said that there was no pre-existing impairment prior to the football injury. This, it was submitted, was an error of law.
For his part, the claimant submits that the football injury was not to be regarded as an ‘unrelated’ injury or cause under s 28LL(3) of the Act. He argues that the football injury was ‘intimately related’ to the treatment that was sought at the Sale Hospital and that s 28LL(3) of the Act therefore had no role to play.
In the alternative, the claimant submits that at the time of the assessment by the Panel, he was not suffering an ‘impairment’ from an unrelated injury or cause because he had no subsisting impairment from the football injury. The only impairment that was being assessed was the impairment caused by the acts or omissions of the plaintiff. While the football injury gave rise to a right ankle fracture injury, it was well within the expertise of the Panel to determine that with appropriate treatment, there would not have been any consequential impairment.
The claimant submits generally that the plaintiff’s case fails to recognise the distinction between injury and impairment. He seeks damages for the plaintiff’s negligence in the treatment afforded to him by the Sale Hospital. The Panel identified the injury claimed to have been caused by the negligence of the plaintiff and it was within the Panel’s expertise to determine that the entirety of this injury was occasioned by the acts or omissions of the plaintiff. In other words, it was within the expertise of the Panel to determine that the acts or omissions of the Sale Hospital gave rise to the injury that it found and the impairment that it assessed.
Analysis
The Act required the Panel to assess the degree of permanent impairment suffered by the claimant as a result of the injury in the claim for which the plaintiff is allegedly responsible.
In this case:
(a) The claimant suffered a football injury consisting of a broken ankle and ligament damage;
(b) He went to hospital on the same day, where he was treated for the football injury by the application of a plaster cast;
(c) He claims to have been injured by the misapplication of the plaster cast [3] and to have suffered a permanent impairment as a result of the injury arising from the misapplication of the plaster cast in the form of persistence of injury, limitation of movement and function, scarring and the probability or possibility of the occurrence of related conditions.
[3]The particulars of negligence go further than the misapplication of the cast, but for the sake of convenience I will refer to the alleged negligence in that way.
The injury described in the claim is therefore alleged to arise from the plaintiff’s treatment of the football injury rather than from the football injury itself.
In the Reasons, the Panel described the condition of the claimant’s right lower leg following the football injury in two ways:
(a) ‘mildly displaced oblique fracture of his right fibula, a medial ligament injury and a probable inferior tibio-fibular ligament injury’; and
(b) ‘mild to moderate right ankle joint dysfunction and minimal right hindfoot dysfunction, post surgical scarring and a superficial peripheral nerve injury’.
The first is the injury sustained on the football field; the second is the injury identified by the Panel’s physical examination of the claimant and its review of X-rays following treatment. The Panel assessed the degree of impairment arising from this second form of injury.
The Panel’s reasoning in relation to pre-existing impairment is contained in the extract from the Reasons in paragraph 27 above. The Panel:
(a) stated that it believed itself to have undertaken the exercise required by s 28LL(3);
(b) emphasised the need for there to be an evidentiary basis in order to derive a positive satisfaction of pre-existing impairment;
(c) referred expressly to the pre-existing injury – the football injury - and its treatment with below the knee plaster; and
(d) noted that there was no history of right ankle injury before the date of the football injury and its treatment and ‘therefore there was no pre-existing impairment prior to this date’.
Nowhere in the Reasons did the Panel expressly state that it had found no evidence of impairment resulting from the football injury. However, the Panel identified and described the pre-treatment injury – the football injury – separately from the treatment injury. It then moved to consider whether there was evidence of impairment prior to the football injury, noting that there was no prior history of right ankle injury before 24 March 2012 and therefore no pre-existing impairment prior to this date. The plaintiff contends that this shows that the Panel did not consider and disregard any impairment from the football injury. In my view, the fact that the Panel stated that there was no pre-existing ankle impairment prior to the date of the football injury does not mean that it neglected to consider whether there was any impairment resulting from the football injury. It can be inferred that the Panel found no evidence of permanent impairment resulting from the football injury, as distinct from impairment resulting from its treatment. This is unsurprising, given the eminently treatable nature of the football injury and the fact that, optimally treated, it should not result in any permanent impairment.
If the Panel erred in not expressly stating that it found no evidence of impairment resulting from the football injury itself, such an error would not be a vitiating error. It would be pointless, in my view, to remit the matter to the Panel to clarify this matter, when it is implicit in the Reasons that the Panel found no such evidence.
The Panel stated that it had assessed only impairment arising from potentially compensable injuries and that it had assessed impairment resulting from all compensable injuries, that is, those injuries arising from the treatment provided by the plaintiff. The Panel well understood that it had to assess the impairment resulting from the treatment injury. It stated that it identified and assessed only impairment resulting from the injury specified in the claim. The football injury was not a compensable injury: it was not the injury referred to in the claim or the injury resulting from the ‘incident’ referred to in the claim.
The Panel’s statements that it had assessed only impairment from compensable injuries and that it had assessed impairment from all compensable injuries were made in the context of the instructions in paragraphs 14, 16 and 17 of the Referral, of which the Panel would have been cognisant. The concluding paragraph in the Reasons means, in substance, that the Panel did not consider that it had included in its assessment of impairment any impairment resulting from causes or injuries unrelated to the ‘incident’ at the Sale Hospital, including impairment from the football injury itself.
I am therefore not satisfied that the Panel failed to undertake the task required by s 28LL(3). The Panel recognised that there was a football injury, for which the claimant obtained treatment from the plaintiff, but it found no evidence of impairment from the football injury subsisting as at the date of the assessment. It was within the Panel’s expertise to so find.
Many of the issues raised by grounds 1 to 5 were considered and discussed by Osborn J in Chua v Lowthian & Ors.[4] Chua concerned an injury allegedly caused by a doctor’s misdiagnosis of an existing tendon condition and the delayed referral of the claimant to a specialist for treatment. The patient claimed that had her ankle condition been correctly diagnosed, it could and would have been more speedily addressed than by the serious surgery that was ultimately necessary - a triple fusion arthrodesis - and that her current level of impairment would have been avoided. The Panel determined that the patient had suffered impairment of the requisite level in consequence of the condition of her left ankle following the triple fusion arthrodesis. Dr Chua contended that, among other things, the Panel had misdirected itself in failing to disregard a pre-existing impairment of the patient’s left ankle in accordance with s 28LL(3) of the Act.
[4][2011] VSC 468.
Justice Osborn confirmed that where there is a supervening cause of injury, it will be necessary to assess the ‘net impairment’ caused by the injury the subject of the claim:[5]
The existence or absence of pre-existing impairment must logically be relevant in a case such as the present case where the current impairment suffered by the claimant results from a supervening cause, namely the triple fusion arthrodesis she has suffered. The Panel must assess the net impairment caused by the injury the subject of the claim.
[5]Ibid [118].
However, his Honour found that the evidentiary basis for the contention that the claimant was suffering from an impairment which predated Dr Chua’s treatment had not been made out. His Honour said:[6]
It is one thing to say the claimant had a pre-existing tendon condition at the time Dr Chua treated her. It is quite another to say that she suffered from pre-existing permanent impairment of her left lower leg, ankle or foot. The material before the Panel raised this possibility but does not demonstrate the Panel was bound to so conclude. It is not sufficient for Dr Chua to suggest that this is possible. He must demonstrate that there was an impairment which the Panel was bound to disregard and failed to do so in order to demonstrate error in the terms particularised above.
[6]Ibid [113].
His Honour held that it was open to a Panel to find that a claimant’s pre-existing condition had not stabilised so as to constitute permanent impairment of any ascertainable extent. Such a situation was contemplated by the Act itself. Moreover, if such a finding were made, it would be open to characterise a subsequent supervening injury as giving rise to the whole of the permanent impairment that occurred as a result of the supervening incident.[7] His Honour concluded:[8]
In my view, the Act does not require the Panel to assume that a pre-existing condition causes a permanent impairment when the evidence does not demonstrate that it did so. It does not require the Panel to speculate. It requires the Panel to disregard pre-existing impairment which is established by evidence to have resulted from a cause other than the relevant injury.
[7]Ibid [123].
[8]Ibid [124].
Dr Chua submitted that even if a claimant was very seriously injured, if the extent of a possible pre-existing impairment could not be ascertained, then a Panel could not certify the level of the existing impairment. Justice Osborn rejected this submission, holding that if the Panel could positively identify a current impairment potentially caused as alleged in the claim and there was no evidence establishing a pre-existing impairment, then there was nothing to be disregarded.[9]
[9]Ibid [125].
Importantly, Osborn J rejected the submission that because the claimant suffered from a pre-existing condition, she had to be regarded as having suffered from a pre-existing permanent impairment. The Panel was not bound to conclude the claimant suffered from a pre-existing impairment of the requisite permanent nature.[10] A pre-existing condition or injury may or may not constitute pre-existing impairment, because the impairment in a relevant sense is permanent impairment.
[10]Ibid [136]. In fact, as his Honour observed at [120], the Panel in Chua did not merely find that it could not be satisfied that the claimant’s pre-existing condition was permanent, it found positively that it was probable that the claimant’s condition had not stabilised at the time she was seen by Dr Chua.
In Chua, Osborn J very helpfully extracted the following principles relevant to the operation of s 28LL(3) of the Act concerning the identification of the impairment resulting from the injury claimed and the identification of any pre-existing impairment from an unrelated injury or cause:[11]
(a)The Panel must identify an injury potentially caused in the manner alleged in the claim.[12]
(b)In order to assess the degree of impairment consequent upon the compensable injury, the Panel is required to disregard impairment from unrelated injuries or causes.
(c)A pre-existing condition or injury may or may not constitute pre-existing impairment because the impairment in a relevant sense is permanent impairment.
(d)Pre-existing impairment can be established and assessed in accordance with the Guides on the basis of historical evidence or there may be historical evidence which demonstrates that there was a level of pre-existing impairment. In the latter case, the Panel must disregard and discount such impairment as best it can as an expert tribunal, having regard to the probabilities on the evidence available.[13]
(e)Once the Panel has identified a potentially compensable injury and the current level of impairment caused by it, the Panel is not required to hypothesise what level of impairment the claimant would have suffered from as at the date of assessment if the injury had not occurred.
(f)The Panel must undertake a ‘before and after’ inquiry in the context of a medical negligence claim, but is not required to undertake a comparison between the hypothetical and actual after situations. A ‘before and after’ inquiry will bear on the threshold question of whether potentially compensable injury has occurred. Once that question has been answered in the affirmative, however, the Panel’s statutory task is not to inquire further. The comparison of what is and what would have been if the injury had not occurred goes to the assessment of risks which are properly resolved when considering quantum upon the trial of the common law proceeding.
[11]Ibid [161].
[12]The Panel will not be able to do so if it concludes that the claimant’s current impairment is the result of the ordinary progression of a pre-existing condition.
[13]The evidence may raise an issue of stabilisation with respect to a pre-existing condition. If the Panel concludes that the condition has not sufficiently stabilised so as to constitute permanent impairment at the time of the compensable injury, then there is no impairment to be disregarded as irrelevant. Conversely, although a condition has not stabilised at the time of the compensable injury, it may nevertheless be concluded that there was already a level of permanent impairment and in such cases the Panel must assess the level of such impairment as best it can as an expert tribunal having regard to the probabilities on the evidence available.
In this case, the Panel identified a potentially compensable injury (the treatment injury) and assessed the level of impairment caused by it. It identified the injury potentially caused by the plaintiff in the manner alleged in the claim as ‘mild to moderate right ankle joint dysfunction and minimal right hind foot dysfunction, post-surgical scarring and a superficial peripheral nerve injury’ and assessed the impairment arising from that injury. The Panel also identified the injury suffered on the football field. It did not identify any permanent impairment resulting from this injury: there was no evidence that this ‘pre-existing’ injury resulted in impairment that the Panel had to disregard. The Panel was not required to hypothesise what level of impairment the claimant would have suffered as at the date of assessment if the compensable (treatment) injury had not occurred.
It was submitted by the plaintiff that the Panel was required by s 28LL(3) to determine that the entirety of the claimant’s injury was occasioned by the acts or omissions of the plaintiff. That was not the task. The question was whether, on the date of assessment, there was evidence of impairment from an unrelated injury or cause. That question was answered in the negative.
The Panel stated that it would disregard only pre-existing impairments for which there was an evidentiary basis. It emphasised the need for an evidentiary basis from which it could ‘derive a positive satisfaction of a pre-existing impairment’. Impairment is defined in Part VBA as permanent impairment. There was clear evidence of the football injury, which was described by the Panel in the Reasons. However, the Act distinguishes between ‘injury’ and ‘impairment’. As Osborn J held in Chua, impairment may or may not result from injury and a pre-existing condition or injury may or may not constitute pre-existing impairment.
In the light of this distinction, grounds 4 and 5 are misconceived. Evidence of injury is not necessarily evidence of impairment. It is not the case that there was ‘clear evidence’ of impairment by virtue of the football injury, its symptoms or the X-ray taken.
There must be evidence of impairment if the Panel is to assess it or to disregard it in assessing impairment resulting from the injury in the claim. So much was emphasised by J Forrest J in Alcoav Lowthian & Ors[14] and by Rush J in Wilson v Liquorland Australia Pty Ltd.[15] It can be inferred from the Reasons, having regard to the Panel’s path of reasoning, that at the time of the assessment, the Panel saw no evidence of permanent impairment resulting from the football injury that it described. There was evidence of an injury that occurred on the football field, but no evidence of permanent impairment resulting from that injury.
[14][2011] VSC 245.
[15][2014] VSC 545 (‘Wilson’).
In these circumstances, I do not consider that the Tribunal failed to consider something that it was bound to consider or that it took into account an irrelevant consideration, or misdirected itself as to its task. It might have been hypothetically possible for the football injury to have been of a kind leading to permanent impairment no matter how it was treated. However, there was no evidence of any such impairment. In the absence of evidence of an impairment arising from the football injury – as opposed to the treatment of that injury – the Panel was entitled to disregard the possibility of permanent impairment resulting from the football injury, irrespective of how it was treated.
As a result, I have concluded that:
(1)The Panel did not fail to identify an injury potentially caused in the manner alleged in the claim, that is, by negligent medical treatment;
(2)The Panel did not fail to take into account and disregard the impairment from an unrelated injury or cause, namely the football injury and/or the potential impairment arising therefrom;
(3)The Panel did not take into account in its impairment assessment an irrelevant consideration, namely, the football injury;
(4)The Panel did not err in finding that there was no evidentiary basis for a pre-existing permanent impairment; and
(5)The Panel did not err in referring to the requirement for an evidentiary basis for a pre-existing impairment as was required in Wilson.
Grounds 1 to 5 are not made out.
Ground 6
The substance of ground 6 is that the football injury included the reasonable treatment of the injury and that the treatment of the football injury was not a separate potentially compensable injury as alleged in the claim.
This proposition, so it is contended, is supported by the decisions of Mahony v Kruschich[16] and Kidman v Sefa,[17] where it was held that the exacerbation of an injury by medical treatment may be treated not merely as a consequence of the original injury but as itself an injury arising out of or in the course of employment. Both of these cases were decided on the basis of the principle that where an employer has caused injury to an employee, the reasonable foreseeability of risk of injury carries with it the deterioration of the condition through medical treatment.
[16](1985) 156 CLR 522.
[17][1996] 1 VR 86.
This is not an employment case. More particularly, this is not a case where there is any suggestion of a negligent act on the football field leading to injury. There is no issue of the foreseeability of the risk of injury in relation to what happened on the football field.
Ground 6 is not made out.
Conclusion
None of the grounds is made out. The plaintiff’s application for review is dismissed.
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