Georgiou & Ors v Capitol Radiology Pty Ltd & Ors
[2011] VSC 158
•20 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4210 of 2010
No. 4214 of 2010
No. 4216 of 2010
No. 4218 of 2010
| MARION GEORGIOU & ORS (According to the schedule annexed) | Plaintiffs |
| v | |
| CAPITOL RADIOLOGY PTY LTD & ORS (According to the schedule annexed) | Defendants |
---
JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March and 1 April 2011 | |
DATE OF JUDGMENT: | 20 April 2011 | |
CASE MAY BE CITED AS: | Georgiou & Ors v Capitol Radiology Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 158 | |
---
ADMINISTRATIVE LAW – Judicial review – Determinations of Medical Panel – Threshold test of significant injury – Part VBA of the Wrongs Act 1958 – Whether Panel subject to obligation to give reasons at common law – Whether obligation to give reasons pursuant to Convenor’s direction – Content of obligation pursuant to direction – Potential inference of substantive error – Consequence of inadequate reasons if no substantive error – Guide to the Evaluation of Psychiatric Impairment for Clinicians (‘the GEPIC’) – Whether reasons in each case adequate – Discernible path of reasoning – Relevant considerations – Whether Panel required to state or explain conclusions as to specific degree of impairment – Prohibitions contained in s 28LZG(4) of the Wrongs Act 1958 and the Convenor’s Direction – Possible inadequacy of reasons in one case – No vitiating defect demonstrated – Inadequacy of reasons not established – Alleged inadequacy of reasons not sufficient to warrant relief claimed – Wrongs Act 1958 ss 28LB, 28LC, 28LD, 28LE, 28LF(2), 28LG, 28LH, 28LI, 28LI(1), 28LL(3), 28LN, 28LNA, 28LT, 28LWE, 28LWE(1), 28LZ, 28LZ(1), 28LZ(2), 28LZ(4), 28LZ(5), 28LZA, 28LZC, 28LZC(1), 28LZD, 28LZE, 28LZE(1), 28LZF, 28LZG(1), 28LZG(2), 28LZG(4), 28LZH, 28LZI, 28LZP, pt VBA, sch 5.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Uren SC with Mr A Ingram | Clark Toop & Taylor |
| For the Defendant | Dr K Hanscombe SC with Ms F McKenzie | Lander & Rogers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
The Wrongs Act 1958......................................................................................................................... 6
Preliminary Questions..................................................................................................................... 11
Was the Panel under an overarching common law obligation to deliver reasons?......... 12
Was the Panel under an obligation to deliver reasons for its determination pursuant to s 28LZ of the Act?................................................................................................................................................ 17
If there was an obligation pursuant to procedural direction, what was the content of such obligation?........................................................................................................................................................ 21
May reasons of the type delivered by the Panel potentially form the basis of an inference that it has not acted in accordance with law?............................................................................................ 22
Does a failure to deliver adequate reasons in accordance with the Panel’s obligation to do so provide a basis for setting aside the Panel’s decision?........................................................................ 24
The GEPIC......................................................................................................................................... 27
The Adequacy of the Reasons....................................................................................................... 34
Jane Colquhoun........................................................................................................................... 34
David Colquhoun....................................................................................................................... 41
Ellen Colquhoun......................................................................................................................... 48
Marion Georgiou......................................................................................................................... 55
Conclusion......................................................................................................................................... 63
HIS HONOUR:
Introduction
On 7 April 2008, Mr William Colquhoun attended the Williamstown Hospital for the purpose of a radiological investigation. In the course of that investigation Mr Colquhoun fell from a hospital trolley to the ground, striking his head and fracturing the neck of his left femur necessitating hip replacement surgery. Following the surgery, Mr Colquhoun suffered vascular dementia and was placed in a nursing home, where he suffered a series of strokes. He died on 16 June 2009 after suffering a major stroke.
Mr Colquhoun’s wife and three children (‘the plaintiffs’) wish to institute proceedings against Capitol Radiology (‘the defendant’), alleging that as a result of the defendant’s failure to provide an adequate standard of care for their husband and father, he fell from the table, suffered vascular dementia and subsequently died. Each of the plaintiffs claim that they have sustained psychiatric injuries as a result.
Section 28LE of the Wrongs Act 1958 (‘the Act’) provides that a person may only recover damages for non-economic loss for personal injury in respect of ‘significant injury’.
Pursuant to s 28LT of the Act, on 2 March 2010 the plaintiffs served on the defendant copies of certificates of assessment, each of which was signed by an approved medical practitioner and stated that the practitioner was satisfied that the degree of impairment resulting from the individual plaintiff’s psychiatric injury was more than 10 per cent (and hence met the threshold for significant injury).
The defendant did not accept the assessments and on 30 April 2010 under s 28LWE(1) of the Act referred medical questions in respect of each plaintiff to a medical panel (‘the Panel’), asking whether the degree of psychiatric impairment of each plaintiff satisfied the required threshold level of more than 10 per cent.
On 4 July 2010, the Panel provided a certificate of determination in respect of each plaintiff pursuant to s 28LZG(2)(a) of the Act. Each certificate stated that:
The Panel determined that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim does not satisfy the threshold level.
In addition to the certificates, and on the same date, the Panel provided written reasons for determination in respect of each plaintiff.
Those reasons show that in three of the four cases in issue the Panel concluded that no psychiatric impairment resulting from the alleged injury was present. In the fourth case, the Panel accepted that the claimant suffered from an adjustment disorder. The Panel stated its conclusions in respect of each plaintiff as follows:
· Jane Colquhoun is suffering from bereavement relating to the loss of her father; and also suffered from an adjustment disorder with anxious and depressed mood, which has now resolved.
· David Colquhoun has a substance abuse disorder which is in remission, and a mixed anxiety/depressive disorder, and both of these conditions are pre-existing. The Panel concluded that any aggravation of the mixed anxiety/depressive disorder has resolved.
· Ellen Colquhoun has bereavement relating to the loss of her husband and also suffers from anxiety and frailty which are pre-existing and unrelated.
· Marion Georgiou has bereavement relating to the loss of her father and also suffers from an adjustment disorder with anxious and depressed mood.
In each case the Panel answered the medical question referred to it by concluding in its reasons:
In the Panel’s opinion the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is not more than 10 per cent and is permanent.
The plaintiffs now seek to set aside the Panel’s determinations on the following alleged bases (although somewhat differently expressed in each case):
(a) Failing to fully and adequately assess the plaintiff’s psychiatric injuries in accordance with the applicable guide, the Guide to the Evaluation of Psychiatric Impairments for Clinicians (‘GEPIC’).
(b) Failing to provide adequate reasons in the sense of disclosing a discernible path of reasoning.
(c) Failing to comply with s 28LZ(4) of the Act in respect of the Deputy Convenor’s Directions as to the Procedures of Medical Panels, which requires Panels to give reasons for their decisions.
(d) Failing to provide adequate reasons for rejecting the previous diagnoses of other medical practitioners on whom the plaintiffs rely.
(e) Failing to provide a proper explanation of the basis upon which it calculated the relevant degree of impairment.
(f) Misapplying s 28LZG(4) of the Act which prohibits the stating in its determination of a Panel’s assessment of a claimant’s specific degree of impairment.
The plaintiffs seek relief in the nature of certiorari pursuant to r 56 of ch 1 of the Supreme Court (General Civil Procedure) Rules 2005.
The basis of such relief was stated by the High Court in Craig v South Australia:[1]
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
[1][1995] HCA 58; (1995) 184 CLR 163,[16]–[17].
Pursuant to s 10 of the Administrative Law Act 1978 (‘the ALA’):
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.[2]
[2]Administrative Law Act 1978, s 10.
It was not contested that the Panel is a tribunal as defined by the ALA.[3] Accordingly if the reasons of the Panel disclose error of law then the plaintiffs can obtain relief in the nature of certiorari even if they cannot establish jurisdictional error.
[3]Cf Masters v McCubbery [1996] 1 VR 635.
However, for reasons which I shall explain, I do not accept that it can be inferred that the Panel failed to adequately assess the plaintiffs’ psychiatric conditions in accordance with the applicable guide.
Further, I am satisfied that the Panel’s reasons in each case do disclose a discernible path of reasoning and comply with the terms of a direction of the Deputy Convenor as to the giving of reasons.
I do not accept that the Panel was required to provide further reasons responding to the previous findings of other medical practitioners.
Nor do I accept that the Panel was required to state a calculation of specific impairment under the relevant guide. Accordingly, I do not accept that the Panel misapplied s 28LZG(4) of the Act.
I note that the second and third defendants, comprising the Deputy Convenor and the Panel, have indicated that they will not participate in this proceeding and will abide by any order made by the court in accordance with the principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman.[4]
The Wrongs Act 1958
[4](1980) 144 CLR 13.
Part VBA of the Act provides for the ascertainment of threshold levels of impairment as a preliminary to claims for the recovery of damages for non-economic loss resulting from personal injury.
Section 28LC provides that pt VBA applies to claims for non-economic loss except for those which are specifically excluded by sub-ss 2 or 3. The exclusions include claims to which pts 3, 6 or 10 of the Transport Accident Act 1986 and pt IV of the Accident Compensation Act 1985 (the ‘ACA’) apply.
Section 28LD entrenches the substantive provisions of pt VBA by providing:
For the avoidance of doubt it is declared that all the provisions of this Part contain matters that are substantive law and are not procedural in nature.
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 28LB defines injury to include psychological or psychiatric injury and includes aggravation, acceleration or recurrence of an injury or disease.
Section 28LF(2) provides:
(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
(aa)a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5;[5] or
(b)a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
[5]Section 28LNA governs cases in which an injury has not stabilised.
Section 28LB defines impairment to mean ‘permanent impairment’. It follows that pt VBA is fundamentally concerned with the ascertainment of permanent impairment.
It can be seen that s 28LF(2) envisages either an assessment of impairment by an approved medical practitioner or a determination of such degree of impairment by a panel.[6] Section 28LG and LH go on to provide for the assessment of impairment by approved medical practitioners.
[6]Section 28LF(3) further provides that an injury may be deemed to be significant in circumstances not presently relevant.
Section 28LI(1) provides for the mode of assessment relevantly as follows:
For the purposes of assessing the degree of psychiatric impairment the A.M.A Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 14 there were substituted the guidelines entitled ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’ (‘the GEPIC’).
Section 28LL(3) states that for the purposes of pt VBA impairments ‘from unrelated injuries or causes’ are to be disregarded in making an assessment. In the present case, the Panel was confronted with the need to disaggregate impairment from bereavement as distinct from psychiatric injury and to distinguish pre-existing conditions from psychiatric injury stemming from the claim.
Section 28LN provides that, subject to s 28LNA (governing cases in which the assessor is unable to determine the degree of impairment because the injury has not stabilised), an approved medical practitioner who makes an assessment of degree of impairment under pt VBA must provide a certificate of assessment to the person seeking the assessment.
The sections which follow provide for a series of alternative procedures. Section 28LT relevantly requires that a certificate of assessment on which a claimant intends to rely must be served on the respondent to the claim.
In turn, s 28LWE provides the respondent may refer a medical question in relation to the assessment to a medical panel for determination.
‘Medical question’ is defined by s 28LB to mean ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’. The question concerns the actual degree of impairment. The words ‘alleged in the claim’ relate to the phrase ‘injury to the claimant’.
‘Threshold level’ is defined to mean impairment of more than 10 per cent in the case of psychiatric injury.[7] In the present case the question referred to the Panel was thus whether the plaintiffs were in each case suffering a permanent psychiatric impairment of more than 10 per cent.
[7]Section 28LB.
Medical panels are constituted pursuant to s 63 of the ACA.
Division 5 of pt VBA governs the powers and procedures of panels in relation to medical questions referred to them.[8]
[8]Section 28LY.
Section 28LZ provides as follows:
(1)A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2)A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
(3)The Minister, after consultation with the Minister administering Part III of the Accident Compensation Act 1985, may for the purposes of—
(a)ensuring procedural fairness in the procedures of Medical Panels under this Part; and
(b)facilitating the proper administration of the Medical Panels under this Part—
issue guidelines as to the procedures of Medical Panels under this Part.
(4)The Convenor may give directions as to the procedures of Medical Panels under this Part but must not give directions inconsistent with any guidelines issued by the Minister under this Part.
(5) A Medical Panel must comply with—
(a)any relevant guidelines as to the procedures of Medical Panels issued under subsection (3); and
(b)any directions given by the Convenor under subsection (4).
It can be seen that the section makes cascading provisions for procedural requirements. First they are specified by express requirement within pt VBA itself. Secondly, they may be the subject of guidelines by the Minister inter alia for ensuring procedural fairness. Thirdly, they may be the outcome of directions by the Convenor subject to consistency with any guidelines made by the Minister. This last category is thus a subsidiary and residual one.
These provisions of s 28LZ are analogous to s 65(1), (2), (8) and (9) of the ACA.
In addition, s 28LZP of the Act enables regulations to be made by the Governor in Council ‘generally prescribing any matter or thing required or permitted by this Part to be provided or necessary to be prescribed to give effect to this Part.’
Section 28LI relating to the basis of assessment of psychiatric impairment is itself expressly subject to the making of such regulations.
The regulation making power also potentially constrains the potential ambit of the Convenor’s directions. The Convenor could not override the requirements imposed by regulation for prescribed information under s 28LZA or otherwise give directions inconsistent with regulations made within power.
As I have said, the plaintiffs rely upon directions given by the Convenor with respect to the giving of reasons by panels and it will be necessary to deal with the terms of those directions below.
Section 28LZA provides for the submission of relevant background material to the panel by a respondent.
Section 28LZC and LZD give the panel power to require the claimant to provide information to and be medically examined by the panel.
Section 28LZC(1) provides that a panel may ask a claimant to meet with the panel and answer questions; to supply to the panel copies of all documents in the possession of the claimant that relate to the medical questions; and to submit to a medical examination by the panel or by a member of the panel. Section 28LZD further provides that any attendance of a claimant before a panel must be in private unless the panel considers that it is necessary for another person to be present.
Section 28LZE enables the panel if the claimant consents, to obtain information from a registered health practitioner who has examined the claimant.
Section 28LZF provides for limited confidentiality of information given to a medical panel.
Section 28LG governs the making of determinations. It relevantly provides:
(1)A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.
(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.
…
(9)A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
The Act thus provides for a written determination or certificate, but not for the giving of reasons in respect of such determination or certificate. It also prohibits the determination from stating the specific degree of impairment. The prohibition presumably stems in part from the limited nature of the medical question referred to medical panels under the legislation, but whatever its basis its terms are plain.
Section 28LZH provides for the effect of a determination as to the threshold level.
(1)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
(2)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
Section 28LZI provides:
(1)No appeal on the merits may be made to a court from an assessment or determination of a Medical Panel under this Division.
(2)Nothing in subsection (1) affects any right of a court to grant any other relief or remedy in relation to an assessment or determination of a Medical Panel under this Division.
Preliminary Questions
In the course of submissions counsel addressed the following issues:
(a) Was the Panel under an obligation at common law (not the product of specific statutory requirement) to deliver reasons for its determination?
(b) Was the Panel under an obligation to deliver reasons for its determination by reason of a procedural direction given pursuant to the Act by the Convenor of Medical Panels?
(c) If there was an obligation pursuant to procedural direction what was the content of such obligation?
(d) May reasons of the type delivered by the Panel potentially form the basis of an inference that it has not acted in accordance with law?
(e) Does a failure to deliver adequate reasons in accordance with the Panel’s obligation to do so (if any) provide a basis for setting aside the Panel’s decision?
I will address each of these issues in turn.
Was the Panel under an overarching common law obligation to deliver reasons?
In Osmond[9] Gibbs CJ with whom Wilson, Brennan, Deane,[10] and Dawson JJ agreed, stated:
There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interest, or defeat legitimate or reasonable expectations, of other persons.[11]
[9]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (‘Osmond’).
[10]Deane J agreed subject to further observations.
[11]Ibid, 662.
Accordingly, in the absence of a specific statutory obligation to give reasons for a decision, there is no obligation upon an administrative tribunal such as the Panel to state reasons for its decision. In Sherlock v Lloyd & Ors[12] the Court of Appeal applied the principles stated in Osmond to a medical panel giving an opinion upon medical questions referred to it under s 45(1) of the ACA. No satisfactory basis has been identified for distinguishing the fundamental principles applicable to panels giving opinions upon medical questions referred to them under the provisions of the Act from those stated in Sherlock.
[12][2010] VSCA 122 (‘Sherlock’).
It was submitted on behalf of the plaintiffs that the panel should be regarded as performing a judicial function. I do not accept this is so. The Panel was required to form its own specialist opinion with respect to the medical questions referred to it. It did not sit as an arbitrator upon the opinions expressed by others. The Panel must make its own assessment of the degree of impairment in accordance with div 3 of pt VBA of the Act.[13]
[13]Section 28LZG(1).
The Panel may have regard to the opinions of medical practitioners submitted to it or require a registered health practitioner who has examined the claimant to provide evidence to it.[14] Ultimately however, to draw an analogy with another area of the law, the Panel’s function is more akin to that of a valuer required to form his or her own opinion than it is to that of an arbitrator required to adjudicate upon opinion evidence.
[14]Section 28LZE(1).
The Panel’s function should be contrasted with that of the Appeal Panel under NSW legislation which provided for the medical assessment of injuries in Campbelltown City Council v Vegan.[15] In that case the appeal panel heard appeals from prior determinations in accordance with the following procedure:
[15](2006) 67 NSWLR 372.
(1)An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2)The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.
(3)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.
(4)When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5)The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6)The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.[16]
[16] Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 328.
The function of an Appeal Panel is expressed to be to conduct an appeal by way of review of the original assessment under this legislation. There is a limitation on the ability of a party to provide fresh evidence to the Appeal Panel. There is provision for the party to be legally represented. The Appeal Panel is empowered to confirm the certificate or to revoke it and issue a new certificate.
It was submitted on behalf of the plaintiffs that the Panel’s determinations in the present case had the effect of concluding or potentially concluding causes of action at common law. The effect of the Act provisions is to create a gateway through which plaintiffs must pass before bringing common law claims for non-economic loss arising out of personal injury. The Panel in effect determines a jurisdictional fact. If the determination is adverse to the plaintiff then a claim for this type of damages cannot be brought. If it is favourable to the plaintiff then the claim remains at large. These characteristics were not regarded as generating a requirement for reasons in Sherlock. The Court of Appeal observed that the question is one of statutory construction:
16Osmond held, as we have already noted, that there is ‘no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions.’ The judgments in Osmond and the cases which have followed it have, however, acknowledged that this principle will yield to a statutory intention that reasons be given. This intention might be indicated – for example – where the statute empowered the tribunal to exercise a power in the nature of a judicial function; or to do so subject to a right of appeal which could not be exercised without some indication of the reasoning process which led to the tribunal’s decision; or, perhaps, in what Gibbs CJ in Osmond identified as ‘special circumstances’ in which procedural fairness required that reasons be given. It could not be said, however, consistently with the Osmond principle, that the mere fact that the decision was final and determined rights of the parties was of itself sufficient to attract an obligation to give reasons. [17]
[17]Sherlock, [16]. Citations omitted.
The Court went on to summarise the procedural framework governing medical panels under the ACA:
17There is, as we have mentioned, no express provision in the ACA requiring a medical panel to give reasons for its opinion. By s 68 the panel is required to form its opinion upon the referred questions and to give a certificate as to this opinion. It must give its opinion in writing within seven days of forming the opinion. Where the question for the panel’s opinion is referred by the County Court, a copy of the opinion must be given to the worker and to the employer, the Authority or self-insurer. The ACA does not contemplate that further information will be provided to the parties as to the opinion or the reasons of the medical panel unless, perhaps, this is exposed where a panel member gives evidence under s 48.
18The medical panel is not bound by rules or practices as to evidence but may inform itself in any manner it thinks fit. Although it is required to act informally and without regard to technicalities, and to do so speedily, it is required to comply with the rules of natural justice. Nevertheless, where the claimant attends before the panel this must be in private unless the panel considers it necessary for another person to be present. Its opinion must be adopted in the court and must be accepted as final and conclusive. There is no provision for appeal from an opinion. [18]
[18]Ibid, [17] and [18]. Citations omitted.
The Court then concluded:
19In our view, the function of a medical panel to which a medical question has been referred under the ACA is not such as to impose on that panel an obligation to provide reasons for its opinion. First, the statutory framework in which the medical panel operates lacks the indicia identified by the New South Wales Court of Appeal in Vegan. There is in the ACA no provision for appeal or for re-opening the opinion of the medical panel. There is no aspect of the claims procedure which would require an examination of its reasons. Indeed, its reasons are not to be considered by the court which may be required to give effect to the opinion in its decision as to the claim.
20Secondly, the function of a panel under the ACA is altogether different from that of the appeal panel under the New South Wales legislation. A panel under the ACA does not sit ‘on appeal’ from a medical assessment made by some other person or body. Rather, it expresses its ‘opinion’ on specific medical questions referred by the Court. In this sense, the panel operates as a statutory expert, providing an expert opinion for the assistance of the court and the parties on medical (not legal) questions.
21The provisions of the ACA foreclose debate on the panel’s opinion, by making the panel’s answers conclusive of the issue(s) the subject of the referred medical questions. But that circumstance could not, in our view, convert into a judicial function what is defined – by the express terms of the Act – as an expert medical function. As the ACA makes clear, the panel performs its medical function in aid of the judicial function being performed by the County Court. [19]
[19]Sherlock, [19]-[21].
As is the case under the ACA, the Act does not require panels to give reasons for their opinions. Whilst the statutory provisions differ in some respects, the procedure is nevertheless relevantly analogous to that which is required under the ACA. There is no provision under the Act for appeal or for re-opening the opinion of the medical panel. There is no aspect of the claims procedure which would require an examination of its reasons. Section 28LZI of the Act provides that no appeal on the merits may be made to a court from an assessment or determination of a medical panel under the Act.
Critically, a panel determining matters under the Act acts as a statutory expert providing an expert opinion as do medical panels acting under the ACA.
The plaintiffs rely on the observations of Basten JA by way of obiter in Sydney Ferries v Morton:[20]
Although the exercise of classifying the nature of the power was one which I adopted in Vegan, distinguishing Osmond at [105]-[109], there are risks in approaching this question by an a priori classification of a power as judicial, quasi judicial or administrative. This would reflect the language of an earlier age conditioning the availability of certiorari on the existence of a duty to act ‘judicially’: see R v Electricity Commissioners; ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 (Atkin LJ). This approach can deflect attention from the analysis necessary by allowing the appropriate answer to follow, as a matter of apparent logic, from the label. The better course is to consider the specific issue, namely the obligation to give reasons, by reference to the characteristics of the power and the circumstances of its exercise.
[20][2010] NSWCA 156, [79].
I am not persuaded that the characteristics of the power here in issue and the circumstances of its exercise are materially different from those considered in Sherlock. Likewise, it is apparent that they are fundamentally different from those under consideration in Vegan. I am not persuaded that the provisions of the Act themselves disclose an intention that reasons be given for the Panel’s determinations.
Was the Panel under an obligation to deliver reasons for its determination pursuant to s 28LZ of the Act?
The Plaintiffs argue next that the ‘Deputy Convenor’s Directions as to the Procedures of Medical Panels under Part VBA of the Wrongs Act 1958 2008’ place an obligation on medical panels to provide reasons, independently of s 8 of the ALA.
The directions are made pursuant to s 28LZ(4) of the Act.
The definition of Convenor includes Deputy Convenor.[21]
[21]Section 28LB.
The Directions provide in part:
8.The purpose of these directions is to define the procedures to ensure Medical Panels provide the appropriate Determination or Certificate in response to the medical question as to whether the degree of impairment resulting from the injury to the claimant alleged in the claim for damages for non-economic loss satisfies the threshold level.
9. To fulfil this purpose, these directions aim to facilitate:-
(a) a referral of the medical question;
(b)a Determination or Certificate of a Medical Panel that is responsive to the medical question; and
(c)a process by which the Determination or Certificate is produced in a manner that is efficient and transparently thorough and fair.
…
38. After the Medical Panel has made an impairment assessment and:
· if it is satisfied that the injury alleged in the claim has stabilised, it will issue a Determination in the form set out in SCHEDULE 1; or
· if it is not satisfied that the injury alleged in the claim has stabilised, but it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised, it will issue a Certificate in the form set out in SCHEDULE 2; or
· if it is not satisfied that the injury alleged in the claim has stabilised and it is is not satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilized, it will issue a Certificate in the form set out in SCHEDULE 3; or
· if it is satisfied after further assessment that the injury alleged in the claim has stabilised, it will issue a Determination in the form set out in SCHEDULE 4.
39.The presiding member will also prepare, and circulate to any other Panel members, a draft of the written reasons, in the form set out in SCHEDULE 5 for settling.
40.The Determination or Certificate and Reasons for Determination or Certificate are to be forwarded to the Deputy Convenor for sending to the respondent and claimant within the appropriate prescribed time limit.
…
45.On receiving the final signed Determination or Certificate and Reasons for Determination or Certificate, the Deputy Convenor will forward copies to the claimant and respondent or their respective representatives.[22]
[22]Emphasis added.
Schedule 5 provides further direction to decision makers in providing reasons.
Schedule 5
REASONS FOR DETERMINATION [CERTIFICATE]
Re: [claimant’s name]
Medical Panel Ref. No: M /
1. The referral to the Medical Panel was received on [date]. The documents considered by the Panel are described in Enclosure A.
2. The claimant was examined by the Panel members [and Consultant/s] on the following dates:
Member: Specialty: Examination:
Dr. One Specialty One date month year
Dr. Two Specialty Two date month year
Dr. Three Specialty Three date month year
Consultant: Specialty: Examination:
Dr Specialty date month year3. The Panel formed its opinion by reference to –
(a) the documents and information referred to in Enclosure A; and
(b) the history provided by the claimant and the examination findings elicited by the Panel at the abovementioned examination(s) of the claimant.
[(c) the guidance provided by the Consultant(s)]
4. The reasons for the Panel’s Determination [Certificate] are as follows:
(NB: Reasons should be written succinctly and in plain language. They should clearly reveal the Panel’s core clinical and other findings and the assessment process, but must not state the specific degree of impairment. In the case of a multi-member Panel, the reasons (including the core clinical and other findings) should be those of the Panel as a whole arising from the consultative process.)
__________________________________ ________________
Dr. One (Presiding Member) Date:
I accept that the Deputy Convenor’s direction required the Panel to formulate reasons which clearly revealed the Panel’s core clinical and other findings and the assessment process. Such requirement was subject to the proviso that the Panel ‘must not state the specific degree of impairment’. The proviso mirrors the limitation imposed by s 28LZG(4) upon the terms of a determination.
The defendant submitted at one point that the power to give directions did not extend to the giving of reasons. I do not accept this submission. The power extends to procedures ‘under this Part’ and governs procedures both with respect to the assessment of impairment under div 3 and the issuing of a determination under div 5.
The directions themselves are expressed to be aimed at objects ancillary to the delivery of a proper determination of the medical question in issue, namely facilitation of:
(a) a determination which is responsive to medical questions; and
(b) a process by which the determination is produced ‘in a manner that is efficient and transparently thorough and fair’.
These objects may be assisted by the giving of reasons for the purposes identified in dissent by Kirby J in Palme:[23]
The rationale of the obligation to provide reasons for administrative decisions is that they amount to a ‘salutary discipline for those who have to decide anything that adversely affects others’. They encourage ‘a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making’. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases ‘public confidence in, and the legitimacy of, the administrative process’.[24]
[23]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212.
[24]Ibid, 242 [105]. Footnotes omitted. Cited with approval by Ashley and Redlich JJA in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 661 [225].
The defendant submits that para 45 of the Deputy Convenor’s directions leaves the giving of reasons to the parties in the hands of the Deputy Convenor. In consequence it is said it does not impose a requirement on the Panel to give reasons to the parties. The directions do, however, require the Panel to prepare reasons as an incident of its decision-making process and give those reasons to the Deputy Convenor.[25]
[25]Santos v Warden [2009] VSC 303, [45].
It may be that there is no enforceable obligation upon the Deputy Convenor to deliver the reasons to the parties pursuant to the Act. But once such reasons are obtained by the parties whether by reason of voluntary action of the Deputy Convenor as contemplated by the directions, or pursuant to Freedom of Information legislation or otherwise, this question is of no moment. The reasons form part of the record of the Panel’s decision.
It is next submitted that the Deputy Convenor’s directions are at best delegated legislation in the face of a legislative scheme which does not provide an obligation to give reasons as part of the decision process. Reliance is placed upon Morton v The Union Steamship Company of New Zealand Limited:[26]
Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself.[27]
[26](1951) 83 CLR 402.
[27]Ibid, 410.
In my view the directions do not vary or depart from the positive provisions made by the Act. Nor do they go outside the field of operation which the Act marks out for itself. As I have said, the directions are ancillary to the process provided for by the Act.
If there was an obligation pursuant to procedural direction, what was the content of such obligation?
The obligation was one to comply with the intention of the directions in accordance with sch 5. The reasons should clearly reveal the Panel’s ‘core clinical and other findings and the assessment process, but must not state the specific degree of impairment.’
This said it is of some significance to note the precise terms of the direction. A statement of the Panel’s core clinical and other findings is not a statement of ‘the findings on any material question of fact’ nor is it a statement of matters rejected by the Panel.
It was for the Panel as an expert tribunal to form its own view as to what constituted its core clinical and other findings.
In Yusuf[28] McHugh, Gummow and Hayne JJ addressed a similar issue in part when they considered whether the obligation under s 430 of the Migration Act 1958 (Cth) required a tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word ‘material’ in s 430(1)(c). It was said[29] that ‘material’ in the expression ‘material questions of fact’ must mean ‘objectively material’. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read ‘material’ as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.[30]
[28]Minister for Immigration v Yusuf (‘Yusuf’) (2001) 206 CLR 323, 346 [68].
[29]Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, 481 [47]-[48].
[30]Yusuf (2001) 206 CLR 323, 346 [68]. Emphasis in original.
In the present case what is required is the setting out of the findings which the Panel considered to be the core clinical and other findings made by it and the assessment process which the Panel itself undertook.
May reasons of the type delivered by the Panel potentially form the basis of an inference that it has not acted in accordance with law?
Reasons may provide the basis for an inference of error of law on the part of an administrative decision-maker, whether or not they are given pursuant to a statutory obligation.
In our view, reasons are no less important where an authority, though not under a statutory duty to provide reasons, provides reasons to explain the discretionary exercise of a statutory power. Where the authority gives reasons for its decision, the court may act upon them if they demonstrate an erroneous approach to an exercise of power. But, like reasons given pursuant to a statutory obligation, reasons voluntarily provided should not be overzealously scrutinised. [31]
[31]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 661 [228]. Citations omitted.
Reasons given by a ‘a tribunal’ will form part of the record of that tribunal’s decision whether or not they are formulated and provided pursuant to statutory obligation.[32]
[32]See s 10 of the ALA quoted above, [13].
In Sherlock’s case the Court of Appeal cited with approval the statement by Bongiorno J in Brambles Industries Limited v Nisselle:[33]
The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court. If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure. A Medical Panel’s decision is not a judgment of a Court. It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version.
[33][2005] VSC 82, cited in Sherlock, [69]. Citations omitted. Emphasis in original.
As the Court of Appeal observed:[34]
70The highlighted passage from the reasons of Bongiorno J drew explicitly on the influential judgment of Brennan J in Repatriation Commission v O’Brien,[35] where his Honour had said:
It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O’Brien’s claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside.[36]
[34]Sherlock, [70].
[35](1985) 155 CLR 422.
[36]Ibid 445‑6. The other members of the Court did not discuss this issue.
In Yusuf’s case Gleeson CJ also observed of the tribunal under the regime there in issue:
If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the tribunal did not consider the matter to be material.[37]
[37]Yusuf, 330, [5].
Likewise, in the present case if the Panel does not set out a finding on some question of fact, that will indicate that it did not make a core finding of fact in respect of that question; and that in turn may indicate that the tribunal did not consider the matter to be of core significance.
A substantial failure to state reasons may, in the circumstances of a particular case, warrant the inference that a panel has failed to exercise its powers in accordance with law.[38]
[38]Sherlock, [71] and [72]; Santos v Wadren Pty Ltd [2009] VSC 303.
In this Court, the question of whether an inference of error of law by reason of failure to have regard to relevant considerations can be drawn arises frequently in the statutory jurisdictions giving a right of appeal to the Court on questions of law. The classic statement of the relevant test is that of Sholl J in Yendall v Smith Mitchell & Co Ltd[39] as restated by his Honour in Harrison v Mansfield:
The true principle ... must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to. have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.[40]
[39][1953] VLR 369, 379.
[40][1953] VLR 399, 404.
In the present case, the plaintiffs submit that an inference can be drawn from omissions in the reasons that the Panel in each case has not applied the GEPIC in accordance with law.
Does a failure to deliver adequate reasons in accordance with the Panel’s obligation to do so provide a basis for setting aside the Panel’s decision?
If the Panel’s reasons do not provide the basis for an inference that the Panel has acted other than in accordance with law, the question arises whether simple inadequacy in the reasons themselves may nevertheless invalidate the decision. The answer to this question turns on the construction of the Act in accordance with the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority.[41] The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.
[41](1998) 194 CLR 355, 390-1 [93].
This is not a case in which, as the Court of Appeal put it in Byrne v Legal Services Commissioner,[42] the statute expressly provides in substance that the giving of reasons is a condition of the exercise of the power.[43]
[42][2010] VSC 162.
[43]Ibid, [55].
It is not a case such as Dornan v Riordan[44] in which the statute related to the fixing of pharmaceutical benefits by the Pharmaceutical Benefits Remuneration Tribunal and expressly provided:
98BD (1) After the completion of an inquiry under section 98BA, the Tribunal shall issue, in a proceeding conducted in public, a statement, in writing, of its findings and the reasons for them.[45]
[44](1990) 24 FCR 564.
[45]National Health Act 1953 (Cth).
The provision here in question is not one expressly directed to the giving of reasons, but a broader power to give procedural directions ancillary to the making of the Panel’s assessments and determinations.
As I have said, the Act itself postulates a series of cascading levels of procedural requirement. The Act itself makes express procedural requirements. It contemplates the prescription of requirements by regulations. It contemplates the making of Ministerial guidelines directed inter alia to ensuring procedural fairness and it contemplates the giving of procedural directions by the Convenor (or in this case the Deputy Convenor).
It cannot sensibly be concluded that the Act intends that compliance with the Deputy Convenor’s directions condition the validity of the Panel’s determinations. The Deputy Convenor’s powers are subsidiary to the basic procedural charter stated in ss 28LZ(1) and (2). They are also subject to regulations made pursuant to the Act and to Ministerial guidelines. The subsidiary nature of the Deputy Convenor’s powers tells strongly against the proposition that the intention was that the validity of a panel’s determination would depend upon compliance with the Deputy Convenor’s directions.
When regard is had to the Deputy Convenor’s directions themselves they contain a series of provisions which demonstrate the proposition that to so construe the Act would have potentially anomalous and unreasonable consequences. They include provisions with respect to administrative procedures upon receipt of a referral of a medical question, consolidation of referrals, the mode of convening a medical panel and the administrative conduct of panels.
It is true that the directions also include specific provisions with respect to matters affecting procedural fairness.[46] A breach of such directions would found a challenge on the separate underlying basis of breach of procedural fairness. The inclusion of such provisions does not however demonstrate that it is sensible to construe the Act as intending to make compliance with the directions of the Deputy Convenor a precondition of itself to a valid determination.
[46]For example, 21 governing potential issues of apprehended bias; 26 governing proper notice and advice to persons prior to examination procedures; 29 governing a claimant’s procedural rights during medical examinations; and 35 governing the provision to opposing parties of copies of written submissions and other material received after the initial referral.
As Osmond makes clear, the provision of reasons is not an element of procedural fairness under the common law of Australia with respect to the making of an administrative decision (save in special circumstances).[47]
[47]See [55] above.
There is nothing in pt VBA when read as a whole that supports the view that the legislature intended the validity of the Panel’s determinations to be conditioned upon compliance with procedural directions given by the Deputy Convenor.
Likewise, no extrinsic material was produced supporting this conclusion and I note that pt VBA was the product of a substantial tort law reform process.
Despite the use of the word ‘must’ in s 28LZ(5), I am not persuaded it is a purpose of the legislation that determinations made other than in compliance with the procedural directions given by the Deputy Convenor be treated as invalid.
If the reasons are inadequate the proper remedy is simply an order in the nature of mandamus compelling further reasons. In turn, these further reasons may or may not provide a basis for application for relief in the nature of certiorari.
Having answered these four questions, I will consider the adequacy of the reasons provided by the Panel in each of the four cases. It is necessary to first consider the nature of the assessment task that the Act and the GEPIC required the Panel to undertake in the exercise of its expert functions.
The GEPIC
The GEPIC sets out a procedure for calculation of the degree of whole person psychiatric impairment of a claimant who has suffered psychiatric injury.
It states the following with respect to its conceptual basis:
Psychiatric Impairment Evaluation
The assessment of psychiatric impairment is based on the systematic application of empirical criteria, and takes into consideration both the diagnosis and other factors unique to the individual. It is also relevant to consider motivation, and to review the history of the illness, as well as the treatment and rehabilitation methods. These considerations can be summarised in the following five principles:
Principle 1:
In assessing the impairment that results from any mental or physical disorder, readily observable empirical criteria must be applied accurately. The mental state examination, as used by consultant psychiatrists, is the prime method of evaluating psychiatric impairment.
Principle 2:
Diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is by no means the sole criterion.
Principle 3:
The evaluation of psychiatric impairment requires that consideration be also given to a number of other factors including, but not limited to, level of functioning, educational, financial, social and family situation.
Principle 4:
The underlying character and value system of the individual is of considerable importance in the outcome of the disorder, be it mental or physical. Motivation for improvement is a key factor in the outcome.
Principle 5:
A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgment can be made until the whole history of the illness, the treatment, the rehabilitation phase, and the individual’s current mental and physical status and behaviour have been considered.[48]
[48]‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC)’ Victorian Government Gazette G 19 8 May 2008 997.
It can be seen that the methodology expressly endorses the mental state examination as the primary method of evaluating psychiatric impairment. It also makes clear that a comprehensive history must be obtained with respect to the illness complained of.
It follows that the current condition of an individual is critical to the application of the GEPIC. The GEPIC subsequently states:
The second edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment stated that ‘the overall rating of a patient [is] based upon the mental status and upon the current condition as observed by the evaluator. The rating is based upon observed attributes and phenomena that are somewhat interrelated, and it necessarily must be considered to be somewhat subjective’.
In developing the Clinical Guidelines, and also in the current revision, the authors have taken this comment into account.
Nevertheless I accept the plaintiffs’ submissions that in one sense the mental state examination provides a snapshot, whereas the evidence as a whole (including the history obtained upon examination) may be compared to a film.
The GEPIC goes on to state by way of preliminary:
The presence and extent of impairment is a medical issue, and is assessed by medical means. This Guide has been designed for use by medical practitioners; in evaluating psychiatric impairment in accordance with this Guide clinical information has to be obtained and assessed, together with an examination of the individual’s mental state.
The evaluation of psychiatric impairment in accordance with the Guide is meant to be informed by clinical judgment, based on appropriate training and experience, and the specific rating criteria are not meant to be used in a ‘cookbook’ fashion.
The descriptors associated with particular classes for each [mental] function are intended to be indicative only. They are intended to provide an overview of the type and severity of symptoms expected for each particular class. It would be futile to attempt to list all relevant symptoms and would be onerous for the assessor. The absence of a particular symptom in the list of descriptors does not mean that that symptom is to be disregarded. The assessor may be required to justify why that/those symptom(s) is/are associated with a particular class of severity.
It is ultimately for the clinician, and no one else, to make the clinical judgment whether a specific rating criterion is present. If the clinician doubts that a particular symptom or abnormality of mental function is present, even after hearing the patient describe it, the item should be rated as not present. This convention is advocated in the Structured Clinical Interview for DSM-IV Axis I Disorders, and it is important to emphasise that the evaluation of psychiatric impairment, like diagnosis, is based on ‘ratings of criterion items, not of answers to questions’.
The method described in this Guide involves the assessment of the severity of six specific mental functions into five classes of increasing severity. The different classes are combined to produce a total psychiatric impairment. Use is made of a modified form of the table that was in the second edition of the AMA Guides.
The GEPIC emphasises that the presence and extent of impairment is a medical issue and that the GEPIC is designed for use by persons with medical expertise. In turn, the expert nature of a tribunal is a matter relevant to the reading of its reasons.[49]
[49]Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, 11 per Stephen J.
The question is one of degree involving elements of value judgment. As such it is a quintessential judgment of fact for the decision-maker.[50]
[50]See S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 per Phillips JA.
The GEPIC provides a definition of permanent psychiatric impairment:
Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite future medical treatment. If an impairment is not permanent, it is inappropriate to characterise it as such.
The method described in the GEPIC involves the assessment of the severity of impairment of six mental functions by reference to five classes of percentage of impairment. The assessment with respect to each of the six mental functions is combined to arrive at a calculation of the overall class of impairment and in turn a specific degree of whole person impairment is assessed within that class. The classes and mental functions are described in the following table:
Class of impairment 1 2 3 4 5 Percentage of impairment 0% to 5% 10% to 20% 25% to 50% 55% to 75% over 75% MENTAL FUNCTION Intellingence
(Capacity for understanding)Normal to slight Mild Moderate Moderately severe Severe Thinking
(The ability to form or conceive in the mind)Normal to slight Mild Moderate Moderately severe Severe Perception
(The brain’s interpretation of internal and external stimuli)Normal to slight Mild Moderate Moderately severe Severe Judgment
(Ability to assess a given situation and act appropriately)Normal to slight Mild Moderate Moderately severe Severe Mood
(Emotional tone underlying all behaviours)Normal to slight Mild Moderate Moderately severe Severe Behaviour
(Behaviour that is disruptive, distressing or aggressive)Normal to slight Mild Moderate Moderately severe Severe
It can be seen that the value for normal is zero per cent. It will, of course, be common for an individual to be normal with respect to some mental functions but impaired with respect to others. If, however, there is no impairment at all, then although the descriptors of mental function in effect provide a checklist, they do not sensibly provide a basis for calculation of degree of impairment by reference to classes. If there is no impairment then there is no class 1 impairment or otherwise.
Conversely, if impairment is detected with respect to any of the descriptors of mental function referred to by the GEPIC then the GEPIC enables an assessment of whole person impairment.
It does this in the first instance by calculating the median of the class of mental function indicators assessed as applicable in accordance with the table above. The GEPIC states:
It remains our considered view that the ‘median method’ is the most appropriate and fairest of the three statistical methods available by which the overall level of the whole person psychiatric impairment can be calculated, based on each of the six items reflecting mental functions. The three methods are the ‘mean’ (or average), the ‘median’, and the ‘mode’. The advantage of using the median is that it is not influenced by extreme scores (as is the ‘mean’ or averaging method), yet it is significantly more sensitive to variability of scores than the mode, especially with the modification implemented in this Guide.
Because each of the six aspects of mental functioning that constitute the Guide is rated on what is essentially an ordinal scale, the median method is technically the most appropriate method of determining the overall rating.
For that reason, the determination of the ‘class’ of the overall collective whole person psychiatric impairment assessed in accordance with this Guide is to be undertaken in accordance with the median method. The median is the middle number of a series; a typical result of scores for the six individual aspects of mental function may be 112233, and thus the middle number is 2. ‘Class 2’ is therefore the correct class for the ‘whole person psychiatric impairment’ in this example.
If the median of the respective classes applicable is not a whole number, then it is taken to the class next above the median.
It may be the case that the median of a series is not a whole number, e.g., 111233: the median of this series is 1.5; similarly, a series such as 222334 has a median of 2.5. There are problems of legality, equity and simplicity with a number of proposed solutions to this dilemma.
When the Clinical Guidelines were developed, the Medical Panel considered that an appropriate and simple solution is to promote the median figure to the next highest class and allow, except in unusual circumstances, only the lowest percentage in that class. This practice should also be followed when using this revised Guide.
Using the examples given therefore:
-Series 111233, median 1.5 becomes 2, and therefore the whole person psychiatric impairment is 10 per cent (‘Class 2’ range 10-20 per cent);
-Series 222334, median 2.5 becomes 3, and therefore the whole person psychiatric impairment is 25 per cent (‘Class 3’ range 25-30 per cent).
If the distribution of scores is skewed, with four or more scores in the ‘Class 1’ range and one or two higher scores, the highest possible ‘whole person’ psychiatric impairment rating is ten (10) per cent.
The GEPIC goes on to provide for the calculation of a specific percentage of whole person psychiatric impairment.
The overall collective percentage impairment is within the percentage range of the median class. The final figure is determined by taking into account the person’s level of functioning, on the basis of clinical judgment.
Each median class includes descriptors which indicate a range of symptoms within that class. Each class has a low range, a mid range, and a high range.
The indicative ranges for each class are as follows:
Low range Mid range High range Class One 0-1% 2-3% 4-5% Class Two 10-12% 14-16% 18-20% Class Three 25-30% 35-40% 45-50% Class Four 55-60% 65-70% 70-75% Class Five 75-80% 85-90% 95-100% In coming to the final rating of the whole person psychiatric impairment the assessor should consider the range of descriptors and/or equivalent symptoms that emerged during the interview, as well as the findings on mental state examination.
The assessor should consider both the descriptors for each class and equivalent symptoms that might not be listed amongst the descriptors. The assessor should assess the severity of each symptom or descriptor and/or the number of symptoms or descriptors present. As a result of this clinical assessment the assessor should use clinical judgment to determine where the final figure lies.
The assessor should consider in which part of the median class these descriptors and/or equivalent symptoms would fall, e.g. if the individual assessed has symptoms which lie within median class 2, and these symptoms were relatively minimal in severity or there were only a few symptoms this indicates a final value in the low range for class 2 (10-12%). If the descriptors and/or equivalent symptoms were more numerous and/or more severe the final value is likely to be mid range (14-16%). If the individual has most of the descriptors and/or equivalent symptoms for median class 2 or fewer but more severe descriptors and/or symptoms the final value would be in the upper range (18-20%). These indicative ranges are to provide guidance to clinicians and do not preclude the use of final values lying between them, e.g., 13%.
The core findings that result from application of the GEPIC to a person who has psychiatric impairment thus include first an assessment of the appropriate median class of impairment and, secondly, the assessment of specific degree of impairment.
When the GEPIC is used for the purposes of the Act the assessment of the median class of impairment may implicitly answer the relevant medical question, namely whether impairment is more than 10 per cent. This will be the case if the median class is class 1 (necessarily less than 10 per cent) or class 3 or above (necessarily more than 10 per cent). If however the relevant class is class 2, then the characterisation may or may not indicate a whole person impairment of more than 10 per cent. It will be necessary to have regard to the assessment of the specific degree of impairment made in accordance with the GEPIC in order to resolve this issue.
The plaintiffs tendered and relied upon a set of reasons delivered by a panel for an assessment in accordance with GEPIC under the ACA. These reasons stated in part:
The Panel also conducted an impairment assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) as required by Section 91(6) of the Accident Compensation Act 1985, as shown in the following Table:
Mental Function Class Intelligence 1 Thinking 2 Perception 2 Judgment 3 Mood 3 Behaviour 3
In the Panel’s opinion the median class is 3 and the degree of psychiatric impairment is 25%, and of this impairment there is psychiatric impairment of 15% which arises directly due to the nature and circumstance of the accepted psychiatric condition injury, and the remaining psychiatric impairment of 10% arises secondary to the accepted physical injuries and is therefore excluded from the psychiatric impairment assessment in accordance with Section 91(2) of the Act. The Panel considers the degree of impairment is permanent.
It can be seen first that this analysis is directed not to the medical question raised by the threshold stipulated in the Act in the present cases, but rather to a determination of whole person impairment as such. Secondly, the Panel could not in the present cases state its assessment of specific degree of impairment in the same way as a panel does under s 91(6) of the ACA, by reason of the prohibitions confronting it. Thirdly, the Panel in the present cases could potentially state the median class within which the impairment lay, provided in some circumstances that it was not class 2. If it both found that the impairment was not more than 10 per cent and that it fell within class 2, such findings would by necessary implication state a specific degree of impairment of 10 per cent contrary to the prohibitions facing the Panel.
Likewise, the Panel could not state its assessment of class of impairment by reference to the six aspects of mental function, if that necessarily created the inference by way of calculation that the whole person impairment was class 2 and that inference was coupled with a finding that the degree of impairment was not above 10 per cent. Once again, the prohibitions would be breached.
The Adequacy of the Reasons
I will now consider the reasons provided by the Panel in respect of each plaintiff.
Jane Colquhoun
The Panel’s reasons for determination relating to Jane Colquhoun identify the materials submitted to it including: a medical report from Dr H Sutcliffe dated 18 January 2010 and a certificate of assessment of the same date, together with a medical report from Dr D Shan dated 3 May 2010.
The reasons state that the claimant was examined by two specialist psychiatrist Panel members on 3 June 2010.
The reasons state that the Panel formed its opinion by reference to the documents and information supplied to it, the history provided by the claimant and the examination findings elicited by the Panel.
The Panel noted the description of the incident alleged to have caused the injury in issue. It noted that the information provided to it stated ‘[a]s a result of the incident the claimant sustained psychological injuries including nervous shock and adjustment disorder with depression.’
The Panel went on to set out an extensive and detailed history obtained from the claimant. It noted that Jane was a 49 year old mortgage broker, and the second of her father’s children. It recorded her account of the incident and went on to state:
The claimant told the Panel that she has felt upset and anxious from the time of the incident. She said she imagined her father crawling in pain over to the door to get help. She said that she had difficulty getting off to sleep and staying asleep, and she began to drink alcohol each night to help her sleep, consuming about 3 glasses of chardonnay a night, and 1-2 bottles a day on weekends.
The claimant told the Panel that in May 2008, she was on her way to the hospital with a friend when she received a phone call ’that father had had a turn’. She said that her legs went numb, [she] could not breathe, and she feared she was having a stroke. She recovered in a few minutes after stopping the car and getting out to walk. She said that she had about 9 further panic attacks over the course of the next year, the last one being ‘just before his death’.
The claimant told the Panel that during the course of the next year and following her father’s death, she ‘felt sad and empty, and cried a lot’. She said ‘I wasn’t feeling my best; I was in a slump, dragging myself out of bed’. She said that ‘it felt too painful to want to be here’, but she did not want to die. She said that she did not lose interest in herself and her life, but she struggled, was not really motivated at work, and she relied unduly upon her business partner to fill gaps she left, and the business did not do as well as it should have. She was spending a lot of time visiting her father.
The claimant told the Panel that in early to mid 2009, she began to be angry and argumentative, and was unable to cope with confrontation. She said that she felt ‘angry with life; about my father; about life in general; with the situation (incident); with everything’.
The claimant told the Panel that she continued to feel depressed, anxious and angry throughout 2009. She said in September 2009, she established her present business partnership. She said that a few months prior to the Panel examination, she ‘realised where this (depression) could all end up, and that he wouldn’t want that; I have been teaching myself to cope with it a lot more’.
The claimant told the Panel that ‘for the past couple of months, I have been getting back into things – I have my days, but I am okay’. She said she has taken up power walking 6 days a week, and she has stopped drinking alcohol apart from 1-2 drinks occasionally at social events. She said that she has generally ‘detoxed’, and no longer drinks caffeine, and has reduced her cigarette consumption back to her usual 10 a week.
The claimant told the Panel she still feels anxious at times, but does not have panic attacks, and she ‘misses my father every day’ but she is comforted by talking to him in her mind, and lifted by getting more involved in things, and talking with friends. She said that she tends to avoid talking with her family, because it upsets them. She said that she is able to have good memories of her father.
The claimant said to the Panel that although she talks to her father in her mind, she does not have a conversation with him, she does not hear his voice, and she has not ever had any hallucinations or like experiences in any modality, nor any significant misidentifications or misperceptions. She said that imagining her father crawling across the floor happens ‘only sometimes’ at a frequency of no more than every couple of months.
The claimant told the Panel that she attended a single family group grief counselling session in early 2009, but did not find it helpful. She has not otherwise had any mental health treatment of any kind.
The claimant told the Panel that her general health is good and she does not have any treatment for any medical condition.
The claimant told the Panel that she works 40-70 hours a week, power walks for about an hour 6 days a week, spends time with her partner, with 3 close girlfriends and with her business partner, and shares domestic and personal financial matters with her partner. She said that she is required to take a Certificate IV in loan management but has not enrolled as yet.
(2)the diagnosis of Dr Entwistle, psychiatrist, that the plaintiff was suffering aggravation of a pre-existing generalised anxiety disorder –
arising from the death of William Colquhoun.
Dr Sutcliffe’s report implicitly recognises it was necessary in Ellen’s case to separate any psychiatric injury suffered by her from bereavement.
Dr Entwistle’s opinion was:
Ms Colquhoun is beginning to improve in respect to her sense of grief over her husband’s death. She told me she is now beginning to socialise with her friends, enjoys people, and is in regular contact with her children. She had required care provided by her husband in respect to her various physical problems prior to his death. That role has now been taken over by her son, David. Ms Colquhoun continues to describe ongoing emotional distress, and as such, I do believe she is likely to suffer a degree of permanent impairment as a result of her perceptions of her husband’s death.
I do not accept that the Panel was required in the course of revealing its ‘core clinical and other findings’ to expressly deal with the detailed content of the earlier medical reports submitted to it. The Panel’s reasons traverse the considerations canvassed by Dr Sutcliffe and they note the elapse of time since Dr Sutcliffe examined the claimant. The Panel’s reasons also traverse the considerations canvassed by Dr Entwistle. Consistently with Dr Entwistle, they note an improvement in Ellen’s mood and capacity for social activity.
It is plain from the prior medical reports that a critical issue was the disaggregation of bereavement from psychiatric impairment and pre-existing psychiatric impairment from impairment resulting from the injury the subject of the claim.
In my view, the Panel’s reasons demonstrate that it had regard to the prior medical reports but reached its own conclusions on the basis of the history obtained and the examination undertaken by it. It may be inferred that it rejected the conclusions of Dr Sutcliffe and Dr Entwistle.
I note once again that neither Dr Sutcliffe nor Dr Entwistle set out the basis for their conclusion in numerical terms in their reports. Accordingly it was not open to the Panel to respond to their underlying analysis in terms of the GEPIC.
Ground 4(e) of the application for judicial review is:
(e)The Medical Panel erred in law in determining not to provide further explanation or detailed reasons as to the basis upon which it calculated the impairment assessed by reason of a misapprehension and/or misapplication of section 28LZG(4) of the Act.
I reject this ground for the same reasons I reject with respect to the reasons given in respect of Jane.
It is plain that the Panel’s fundamental conclusion was that Ellen had no present impairment as a result of the incident.
Marion Georgiou
The Panel’s reasons for determination relating to Marion Georgiou identify the material submitted to it including a medical report from Dr H Sutcliffe dated 18 January 2010 and a certificate of assessment of the same date, together with a medical report from Dr D Shan of 19 May 2010.
The reasons state that the claimant was examined by two specialist psychiatrist Panel members on 3 June 2010.
Their reasons state the Panel formed its opinion by reference to the documents and information supplied to it, the history provided by the claimant and the examination findings elicited by the Panel.
The Panel noted the description of the incident alleged to have caused the injury in issue. It noted that the information provided to it stated ‘[a]s a result of the incident the claimant sustained psychological injuries including nervous shock and adjustment disorder with depression.’
The Panel then set out an extensive and detailed history obtained from the claimant. It recorded the claimant’s account of the incident involving her father.
It went on to record:
The claimant told the Panel that she reduced her hours at work from fulltime to 2½ days a week in about mid 2008 – ‘I had to work fulltime till then financially with family commitments’. She said she visited her father daily and focused on researching as much as she could about dementia so as to assist her father and the family.
The claimant said to the Panel that she ‘was so obsessed to get father better; trying to make up for what had happened’ that she neglected her partner and her younger son. She said that she broke up for a time with her partner and in about March 2009 moved in with her sister. After about 6 weeks, she re-set her priorities when her younger son ‘had some trouble with the police’ and she and her partner reconciled.
The claimant told the Panel that when her father died on 16 June 2009, she felt relief because ‘he suffered terribly, and when he no longer knew me, it was horrible – my grief was watching him get worse’.
The claimant told the Panel that there was a meeting with the Respondent which ‘affected me terribly – they said that there was not an incident report made; they lied about what had happened’. She said that she believed that based upon her own nursing experience that her father should not have been left unattended. She said that she was distressed by visions of imagining him crawling across the floor to get help. She said that the thought of her father in that situation ‘comes back to mind when things (or conversations) happen to remind me’, occasionally.
The claimant told the Panel that throughout the time from the incident at the hospital up till her father’s death, her emotional and interpersonal life was under strain. She said she kept on going to work, but apart from that and trying to help her father she neglected everything else, including her own routine health needs, leisure, and family life. She said her husband felt she was neglecting him, which led to their separation, and she lost the closeness she used to have with her son. She said that she feels that she has still ‘lost something’ with both her husband and her son, although things are generally okay.
The claimant told the Panel that she has felt worrisome, finds it difficult to relax, and feels driven to keep busy and be ready, in case something happens. She said that she worries about her mother. She said that she has asked friends not to phone after about 7pm as she assumes a phone call means something has gone wrong.
The claimant told the Panel that her mood is ‘labile’, and said she ‘does get down – I never used to be’ and that she may feel down for some hours before her mood lifts or she gets busy. She estimates her mood as 3-4/10 on a scale of 1-10, where 10 is a normal mood. She said that she has never felt hopeless or not wanting to live, and that she can feel very happy and normal.
She said that she feels angry that the incident occurred, about the circumstances in which it occurred, about her sense of being lied to by the respondent, and by the summation by the respondent that ‘it is a hopeless case’, which she took to be a comment about her father’s condition.
It can be seen that Marion gave a coherent history of her mood since the incident. She went on to describe her behaviour.
She said that she has not slept well since the time of the incident. She and her partner sleep separately because she has the light on to read. She takes time to get to sleep but eventually falls asleep after reading. She wakes about 2am ‘thinking about what I have to do, and worrying about Mum’. She tries to relax by various means, and does get back to sleep, but may wake again before 5.30am, which is the time she always gets up, whether working or not. She dresses and is ready in case something happens or the phone rings.
The claimant told the Panel she cleans and keeps the household spotless sufficient to draw comment from her son, and to be bothersome to a degree to others in the household. She does not have any other obsessive-compulsive symptoms.
The claimant told the Panel that she thinks of exercise as a means of helping herself, and she goes to the gym several days a week. She said that although ‘I still exercise a lot, I (also) used to go out a lot with friends and my partner – I don’t do that now; it’s feels safe at home’.
The claimant told the Panel that she does not eat much but that her weight is unchanged. She said she lacks concentration sometimes, but has not had any notable problems with memory function.
The reasons then set out relevant aspects of Marion’s medical and developmental history.
The claimant told the Panel that after her son’s court appearance, the whole family attended a grief counsellor at the general practitioner’s surgery for a single session, after which she attended on her own once. She said that ‘maybe I vented things, but I didn’t find it all that helpful’.
The claimant told the Panel that she has not had any other mental health treatment.
The claimant said to the Panel that she went through a sudden menopause some time after the incident. She said that after her father’s death, she was given some advice by medical colleagues at her workplace about the need to pay attention to her own health, and she underwent gastroscopy, colonscopy, and a DEXA bone density scan as well as a range of blood tests, all of which were normal. Other than hormone replacement therapy, she takes no usual medication.
The claimant gave the Panel a past history which was not significant for any medical or psychiatric illness or condition; there is a family history of psychiatric illness with her brother having a chronic mental illness as a result of which he has not worked for about 20 years, and is in psychiatric treatment.
The claimant described to the Panel a developmental and personal history which was unremarkable. She said she has always been very close to her parents, lived at home until her first marriage and again between her first and second marriages, and has always spent every afternoon with her mother when she is not working. She said that notwithstanding her mother also having had a fractured hip in a fall at home in 2002 and thereafter having mobility problems and requiring a carer, up until the time of the incident she considered that her mother had ‘gotten well’, and she was not anxious about her mother, whereas now she feels it is essential to make herself always available.
The reasons go on to record the Panel’s findings upon a mental state examination:
The Panel undertook a mental state examination. The claimant is a slim woman of youthful appearance who appears to be in good general health. She was well dressed and groomed, was pleasant and co-operative, and engaged reasonably comfortably. She was distressed and tearful at times. She spoke clearly, fluently, spontaneously, expressively and coherently, with some discursiveness. There were themes of loss and grief, aggrievement, and worry. There were no delusional or overvalued ideas or perceptual disturbance. Judgment is skewed by her anxious, guilt-responsibility set. Her affect was mildly depressed and anxious, full in range and normally reactive and congruent. Attention, concentration and memory functions were normal at clinical interview.
It can be seen that the Panel made findings with respect to presentation and manner, capacity for self-expression, themes, absence of delusional or overvalued ideas or perceptual disturbance, judgment, affect, attention, concentration, and memory function.
The Panel stated:
The Panel concluded that the claimant has bereavement relating to loss of her father and also suffers from an adjustment disorder with anxious and depressed mood. The Panel considers that the claimant’s condition has stabilized.
The Panel noted the conclusions of Dr Sutcliffe that Marion is suffering from an adjustment disorder with depression and has a whole person impairment of 25 per cent. It also noted the conclusions of Dr Shan that Marion is suffering from a chronic adjustment disorder with depression and has a psychiatric impairment of 10 per cent.
The Panel further recorded that it had conducted a psychiatric impairment assessment in accordance with the GEPIC as required by the Act.
It stated that it disregarded any impairment from any unrelated causes or injuries associated with bereavement as required by the Act.
It expressed the opinion that the degree of psychiatric impairment resulting from psychiatric injury to the claimant alleged in the claim is not more than 10 per cent and is permanent. This opinion reflects the terms of the medical question referred to it.
Lastly, it stated that it considered that further explanation or detailed reasons of the basis on which it had calculated impairment was prohibited by s 28LZG(4) of the Act.
Ground 4(c) upon which relief is sought is:
(c)The Medical Panel failed to provide adequate reasons for its determination.
The Panel’s reasons disclose a clearly discernible path of reasoning. The Panel’s conclusion is responsive both to the history taken by it and the findings made by it upon mental state examination.
I do not accept that it can be concluded that the Panel has failed to reveal its core clinical and other findings. It states its findings both with respect to the symptoms and evidence which led to its conclusions. It also describes the assessment process undertaken by it. It states the basis of its clinical judgment. Insofar as its assessment of Marion’s specific degree of impairment is concerned, it confronted the prohibitions upon further reasons which I shall discuss below.
Ground 4(a) upon which relief is sought is:
(a)The Medical Panel having diagnosed the plaintiff to be suffering adjustment disorder with anxious and depressed mood, being the same diagnosis of [sic] that of Dr Sutcliffe, occupational physician, failed to provide a discernible path of reasoning to distinguish the respective impairments which it made and which Dr Sutcliffe made in respect of the plaintiff’s condition.
Dr Sutcliffe’s diagnosis is not in precisely the same terms as that of the Panel. Dr Sutcliffe’s diagnosis is one of ‘substantial symptoms related to adjustment disorder with depression’. There is no reference to anxiety.
Dr Shan’s diagnosis recognised ongoing depressive and anxious symptoms and was one of chronic adjustment disorder with depression. As I have said, Dr Sutcliffe assessed Marion’s whole person impairment at 25 per cent. Dr Shan assessed it at 10 per cent.
It should also be noted that Dr Sutcliffe recorded that Marion completed the K10 Questionnaire and the Beck Depression Inventory indicating the presence of depression, but gave no details of the results save to state:
In the questionnaire she confirmed current fatigue, loss of concentration, loss of interest, agitation and sleep disorder.
I do not accept that the Panel was required in the course of revealing its ‘core clinical and other findings’ to expressly deal with the detailed content of the earlier medical reports submitted to it. The Panel’s reasons traverse the considerations canvassed by Dr Sutcliffe and it notes the elapse of time since Dr Sutcliffe examined the claimant. Its diagnosis is substantially similar to that of Dr Sutcliffe. Its assessment of the degree of impairment is founded upon a fuller history than that provided by Dr Sutcliffe which history was taken some seven months after Dr Sutcliffe saw Marion. It is also based upon a mental state examination whereas it appears that Dr Sutcliffe’s examination findings were substantially based upon the questionnaire and inventory to which she refers. It is plain that the Panel had regard to Dr Sutcliffe’s report but reached its own conclusions on the basis of the history obtained and the examination undertaken by it. The reasons provide a discernible path of reasoning for distinguishing the respective impairments made by the Panel and Dr Sutcliffe by stating as a matter of necessary inference that the core findings which the Panel made differed from and rejected those of Dr Sutcliffe.
Ground 4(b) upon which relief is sought is:
(b)The Medical Panel failed to fully and/or adequately assess the plaintiff’s psychiatric condition in accordance with the AMA guides as required by s 28LH(1) and s 28LI(1) of the Act and in particular assessing any anxiety condition as wholly pre-existing and/or not aggravated by the death of William Colquhoun.
This ground is in part misconceived. The Panel specifically concluded that Marion does suffer from an adjustment disorder with anxious and depressed mood as a result of her father’s death. It did not assess any anxiety condition as wholly pre-existing.
Furthermore, I do not accept that it can be inferred that the Panel has failed to assess the claimant in accordance with the GEPIC. The Panel expressly states that it did assess Marion’s impairment in accordance with the GEPIC. As the GEPIC makes clear the degree of psychiatric impairment present is ultimately a matter for clinical judgment. The Panel relied upon the mental state examination undertaken by it, which as Principle 1 contained in the GEPIC makes clear is ‘the prime method of evaluating psychiatric impairment’. It is also clear that the Panel had regard to the other factors referred to in Principles 2, 3, 4 and 5 referred to in the GEPIC. These include ‘level of functioning’ and ‘the whole history of the illness, the treatment, the rehabilitation phase, and the individual’s current mental and physical status and behaviour’.
Once again it is true that the Panel does not expressly evaluate the presence of psychiatric impairment by reference to the individual aspects of mental function identified in the GEPIC namely intelligence, thinking, perception, judgment, mood and behaviour. Nevertheless, it is plain that it considered each of these functions in the course of the investigations undertaken by it. Likewise, I do not accept that the failure to set out a structural calculation of whole person psychiatric impairment enables an inference to be drawn that the Panel did not apply the GEPIC.
Ground 4(d) upon which relief is sought is:
(d)The Medical Panel erred in law in determining not to provide further explanation or detailed reasons as to the basis upon which it calculated the impairment assessed by reason of misapprehension and/or misapplication of s 28LZG(4) of the Act.
The Panel was prohibited by the Act and by Sch 5 from setting out the basis of its calculation of specific impairment insofar as such calculation would necessarily amount to a statement of the specific degree of impairment which it ultimately assessed.
Further, as I have sought to explain above, once it stated that Marion’s degree of impairment was not more than 10 per cent, it could not also state that her impairment fell within class 2. Such a statement would necessarily imply that her specific degree of impairment was 10 per cent.
A finding of 10 per cent cannot be regarded as improbable because it is within the range identified by the Panel and is the figure which would result from the rounding up of the median. It was the conclusion reached by Dr Shan in his detailed report.
Likewise, the Panel could not set out its assessment of aspects of mental function forming the basis of a median value of class 2. If it did so, that would necessarily enable the median class to be calculated.
Conversely it is possible that the Panel assessed Marion’s whole person impairment as falling within class 1. If that were so, I accept that such an assessment would be a core finding and should be stated in the reasons in accordance with the Deputy Convenor’s directions. It is not, however, enough for Marion to demonstrate some possibility of inadequacy in the Panel’s reasons. In order to found a claim to relief she must demonstrate that a vitiating error has occurred in the reasons.[54] The framework of statutory prohibitions means that the reasons cannot be shown to be deficient in the present case.
[54]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 per Smith J; Body Corporate Strata Plan No. 4166 v Sterling Properties Ltd No 2 [1984] VR 909, 913-4; Flynn v DPP [1988] 1 VR 322; S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 per Phillips JA.
Further and in any event, for the reasons I have earlier explained, if the reasons were to be regarded as deficient, the appropriate relief would be an order for supplementary reasons not an order setting aside the Panel’s substantive decision.
Conclusion
For the above reasons each proceeding must be dismissed. I do not accept that the plaintiffs have demonstrated substantive error of law on the part of the Panel with regard to its determinations. Nor do I accept that they have demonstrated the Panel’s reasons are relevantly deficient. I accept that in the case of Marion it has been demonstrated that the reasons may possibly be deficient, but this is not sufficient to show the reasons are in fact deficient. If I am wrong with respect to my conclusions relating to the Panel’s reasons in respect of Marion or otherwise, such deficiencies would not invalidate the Panel’s substantive decisions. The appropriate remedy would be an order for further reasons and no such order is sought by the plaintiffs.
SCHEDULE OF PARTIES
| BETWEEN: | |
| MARION GEORGIOU | No. 4210 of 2010 |
| ELLEN ELIZABETH COLQUHOUN | No. 4214 of 2010 |
| JANE COLQUHOUN | No. 4216 of 2010 |
| DAVID COLQUHOUN | No. 4218 of 2010 |
| Plaintiffs | |
| - and - | |
| CAPITOL RADIOLOGY PTY LTD | Firstnamed Defendant |
| DR JOHN MALIOS (As Deputy Convenor of MEDICAL PANELS pursuant to the provisions of the Wrongs Act 1958) | Secondnamed Defendant |
| MEDICAL PANEL (Constituted by Dr Diane Neill and Dr James Carson) | Thirdnamed Defendant |
38
5
0