Masterton v Coles Supermarkets
[2013] VSC 498
•18 September 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
No. S CI 2013 01543
| DEBRA MASTERTON | Plaintiff |
| v | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD DR JOHN MALIOS (Convenor of Medical Panels) MEDICAL PANEL (Constituted by Dr Diane Neill, Associate Professor Evange Romas and Mr John Bourke) | Defendants |
---
JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2013 | |
DATE OF JUDGMENT: | 18 September 2013 | |
CASE MAY BE CITED AS: | Masterton v Coles Supermarkets & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 498 | |
---
ADMINISTRATIVE LAW – Judicial review – Review of medical panel – Error of law on the face of the record – Whether error of law – Reasons – Whether reasons disclose failure to take relevant matter into account – Wrongs Act 1958, Part VBA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.G. Uren QC | Melbourne Injury Lawyers Pty Ltd |
| For the First Defendant | Mr M.F. Fleming SC with Mr R. Kumar | Richard Mole & Associates |
| For the Second and Third Defendants | No appearance | Moray & Agnew |
HIS HONOUR:
Introduction
The plaintiff alleges she suffered injury on 29 October 2009 when she slipped on something that had been spilled onto the floor of a Coles Supermarket in Port Melbourne. In order to recover damages for non-economic loss from the first defendant, the plaintiff must satisfy the “significant injury” requirements of Part VBA of the Wrongs Act 1958 (“the Act”).
On 14 September 2012, Mr M.A. Khan, an orthopaedic surgeon, completed a “Certificate of assessment of degree of impairment arising from stabilised injury” in respect of the plaintiff pursuant to s 28LN of the Act. In the certificate of assessment, Mr Khan certified that the degree of permanent impairment resulting from the plaintiff’s injury was more than 5%. Physical injury giving rise to a permanent impairment assessed, in accordance with the provisions of Part VBA of the Act, as being more than 5%, satisfies the significant injury requirements of the Act.
On 9 November 2012, pursuant to s 28LT of the Act, the plaintiff’s solicitors served on the first defendant the certificate of assessment and the information prescribed by regulation 6 of the Wrongs (Part VBA Claims) Regulations 2005. The first defendant disputed, and disputes, the plaintiff’s assessment.
On 15 November 2012, the first defendant, pursuant to s 28LWE of the Act, referred the following medical question to a medical panel:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?[1]
[1]The expression “threshold level” is relevantly defined in s 28LB, for physical injury, to mean “impairment (itself defined to mean “permanent impairment”) of more than 5 per cent”.
A medical panel (the third defendant) was convened by the Convenor of Medical Panels (the second defendant). After conducting examinations on 17 and 22 January 2013, the medical panel answered the medical question as follows:
The panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.
The panel determined that the degree of whole person impairment resulting from the psychiatric injury to the claimant alleged in the claim does not satisfy the threshold level.
The medical panel’s certificate of determination containing its answer to the medical question, and the medical panel’s reasons for determination were provided to the parties on 4 February 2013.
In this proceeding, the plaintiff seeks judicial review of, and an order quashing, the medical panel’s decision. The plaintiff contends that the medical panel has committed errors of law, including failing to take into account part of the history given by the plaintiff to the panel and failing to provide adequate reasons. Specifically, the plaintiff alleges that the panel’s determination and its reasons “are in error of law on the following grounds”:
(a)the Medical Panel failed to record or alternatively to act upon a history provided to it by the Plaintiff, namely that her treating Sports Physician Dr Cairns had referred her to the Alfred Hospital and told her that she needed an operation to repair a tear between her legs;
(b)the Medical Panel erred in considering that the Plaintiff’s medical condition had stabilised in circumstances where the Plaintiff had, as she informed the Panel, been referred by her treating Sports Physician Dr Cairns to the Alfred Hospital and had been told that she needed an operation to repair a tear between her legs;
(c)the Medical Panel erred in proceeding to issue a certificate of determination pursuant to s 28LZG(2)(a) of the Wrongs Act 1958 being a determination of stabilised injury in circumstances where the Panel had been informed that the Plaintiff had been referred by her treating Sports Physician Dr Cairns to the Alfred Hospital and had been told that she needed an operation to repair a tear between her legs;
(d)the Medical Panel failed to take into account a relevant consideration, namely that the Plaintiff was awaiting operative treatment to repair a tear between her legs;
(e)the reasons of the Medical Panel are inadequate in particular failing to refer to the Plaintiff’s evidence supplied to it that she was awaiting surgical treatment at the Alfred Hospital to repair a tear between her legs.[2]
[2]Paragraph 6 of the grounds upon which relief is sought set out in the plaintiff’s originating motion.
Only the plaintiff and the first defendant took an active part in this proceeding. At trial, the first defendant opposed the granting of the orders sought by the plaintiff. The first defendant contended that there were no errors of law committed by the plaintiff, and that there was no basis for quashing the medical panel’s determination. The second and third defendants took a Hardiman approach to the proceeding, advising the Court that they were content to submit to such orders as the Court might make in the proceeding.[3]
[3]R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13. See the letter from Moray & Agnew to the Prothonotary dated 9 July 2013.
The plaintiff’s complaints
In essence, the plaintiff complains in this proceeding that the medical panel concluded that her injury had stabilised, in circumstances where she says that the history she gave the panel should have led them to the conclusion that her injury had not stabilised. A conclusion by the medical panel that the plaintiff’s injury had not stabilised would have meant that the medical panel would not have answered the medical question in a way which denied the plaintiff the ability to claim damages for non-economic loss – the question of whether the plaintiff satisfied the threshold level[4] would have been deferred for further assessment, unless the medical panel was satisfied that the degree of impairment would satisfy the threshold level once the injury had stabilised.[5]
[4]As that expression is defined in s 28LB of the Act.
[5]See ss 28LZG(5) and (6) of the Act. See further, s 28LZGA(4) of the Act.
At trial, counsel for the plaintiff put the plaintiff’s case on three bases: first, inadequacy of reasons – although this ground was said to be unable to be advanced at first instance as a result of the decision of the Court of Appeal in Colquhoun v Capitol Radiology Pty Ltd & Ors;[6] secondly, an alleged failure to take into account relevant material (namely, what the plaintiff told the medical panel concerning the suggested need for further surgery); and thirdly, on the basis that the medical panel made an impairment assessment contrary to the provisions of Part VBA of the Act when the plaintiff’s injury had not stabilised. The second two bases were said by counsel for the plaintiff to be “broadly connected”.
[6][2013] VSCA 58.
In order to understand the plaintiff’s complaints about the medical panel’s decision and reasons, it is necessary to set out the plaintiff’s description of the history she gave the panel from the time of her alleged fall until the time of the medical panel’s examination. In an affidavit sworn by the plaintiff in this proceeding on 8 April 2013, the plaintiff deposes as follows:
I sustained injury on 24 October 2009 when attending the Coles Supermarket at Port Melbourne and I slipped and fell on a spillage present on the floor surface. The mechanism of the fall was that my right leg went underneath me and my right knee flexed and my right heel made contact with my left inner buttock as I fell heavily to the floor.
I subsequently attended a medical practitioner Dr Popescu who arranged for x-rays and I was told that I had not sustained any fractures although a subsequent ultrasound pointed to a bruised area high in the back of my left thigh. I consulted a number of other practitioners but was unable to obtain any clear reason for persisting severe pain which I was suffering in my groin region.
I had to wait an extended period of time for an appointment at the Alfred Hospital and underwent further investigations and a five day course of Prednisolone as well as ultrasound guided cortico steroid injections which provided me with some temporary relief in my level of pain.
The level of my progress was such that in the end I decided to pay to obtain treatment and through a friend was given the name of the medical centre at which a Sports Physician Dr Ross Cairns practiced. That was how I came to be under his care.
I have read the Medical Panel’s reasons for determination dated 31 January 2013 … .
The matters of which I informed the Medical Panel at my examination on 22 January 2013, as stated in the reasons, contain a number of omissions which I believe are of significance.
With respect to my past history, I told the Panel that my panic attacks resulted not from an actual event, but from dreams that my eldest daughter had suffered an injury when dropped between a train carriage and a platform. I also told the Panel that my daughter had been born in 1975 not 1976.[7]
With respect to my physical symptoms, I told the Panel that I was suffering constant pain in my buttock area and between my legs. I told the Panel that my gait was affected by such symptoms. I not only told the Panel that I had seen a sports physician who had administered three “blood patch” injections, such treatment concluding in December 2012, I also identified that sports physician as Dr Ross Cairns.
I told the Medical Panel that at my last consultation with Dr Cairns on 4 December 2012 he had referred me back to the Alfred Hospital as a public patient and told me that I needed an operation to repair a tear between my legs. I told the Panel that Dr Cairns had also given me a letter referring me to two private doctors who I could consult if I had the financial means available rather than wait on the public list.
Given the information, which is not recorded by the Medical Panel in its reasons, but which was provided at the time of my examination I do not understand the basis upon which the Panel determined that my medical conditions have stabilized. I am presently waiting for referral to be seen at the Alfred Hospital to discuss surgical repair of a tear between my legs which I understand is a muscular tear and is present at the point at which my right heel came into contact with my groin region at the time I fell. I remain in significant pain and will not know the outcome of my injuries until after I have had the surgery which has been recommended. I note that in the schedule to the reasons of the Medical Panel which list information which was available to the Panel there is no reference to any information from Dr Cairns despite the matters which I drew to the Panel’s attention.[8]
[7]While the plaintiff’s affidavit suggests that the plaintiff believes the matters in this paragraph of her affidavit “are of significance”, at trial, the plaintiff’s counsel eschewed any reliance upon the alleged inaccuracies referred to in this paragraph as founding grounds for judicial review.
[8]Plaintiff’s affidavit sworn 8 April 2013, paragraphs [3]-[12].
The medical panel’s reasons contain no reference to Dr Cairns by name. However, on one view, this is not surprising. At no time did the plaintiff’s solicitors refer to the existence of Dr Cairns or the possibility of future surgery in any of the material or submissions supplied by them to the first defendant, the Convenor of Medical Panels or the medical panel itself. Indeed, apart from the operation of ss 28LZG(5) and (6) of the Act, it might be said that the dispute between the parties (the plaintiff and the first defendant), so far as the significant injury requirements of the Act are concerned, was confined to one involving the proper assessment of a stabilised physical injury.
Further, at no time between 4 December 2012 and the medical panel’s examinations of the plaintiff did the plaintiff’s solicitors write to inform the Convenor of Medical Panels or the medical panel of the alleged referral by Dr Cairns back to the Alfred Hospital for the operation described by the plaintiff in her affidavit (or indeed at all); nor did they write to advise any relevant party that the plaintiff now contended that her injury was not, or might not have, stabilised.[9]
[9]Cf the plaintiff’s solicitors’ submissions to the medical panel (although addressed to the Convenor of Medical Panels) dated 4 December 2012.
The medical evidence concerning a tear
In addition to the certificate of assessment, the medical panel were provided with a report from Mr Khan.[10] In his report, Mr Khan stated:
As a result of this injury, as confirmed by the rheumatology department of the Alfred Hospital, she [the plaintiff] has presented with mild antalgic gait and pain in the left buttock and hip area. She has a tear of the hamstring tendon attachment at the gluteal tuberosity, with signs of tendonopathy of the tendons of the gluteus medius and minimi.
…
Her doctors at the moment have decided to treat her along conservative lines with injections, steroids, local massage and physiotherapy. With considerable scarring and irritability of the condition, the pain has not completely resolved in the left hip area and she has developed symptoms of chronic tendonopathy associated with pain and discomfort. This results in her inability to sit on hard surfaces for long periods or perform activities involving twisting and turning of her right hip or any strenuous activities such as sitting for a while, getting up after sitting for a while and climbing up and down stairs.
[10]Dated 13 September 2012.
In respect of the tear, an MRI (referred to by Mr Khan in his report) was reported on as follows:
Small partial thickness tear of the hamstrings origin involving both the semimembranosus tendon insertion and extending medially to involve the conjoint biceps femoris, semitendinosus tendon.
There is increased PD signal within the insertional fibres of the gluteus medius and minimus tendons compatible with tendinopathy. No tear.
…
Comment:
1. Small partial thickness tear involving the left hamstring insertion.
2. Gluteus minimus and medius tendinopathy without tear.
In a letter dated 18 May 2012, the consultant rheumatologist at the Alfred Hospital, Dr Aw, said:
Diagnosis: Chronic left buttock pain secondary to partial thickness tear involving left hamstring insertion at a point of the ischial tuberosity.
I reviewed Debbie today following a recent MRI. The cause of her chronic left buttock pain is finally apparent. She has a partial thickness tear of her hamstrings. She also had a steroid injection into the ischial tuberosity which abolished her symptoms for several days.
Her response to the steroid injections was temporal but sufficient to localise where the underlying problem is.
…
I have recommended she consider blood patch injections into the tear. This is a procedure that is not available at the Alfred Hospital.
I have suggested she see a sports medicine physician who is more familiar with these procedures.
On 12 July 2012, Dr D. MacDonald, a medico-legal consultant at the Alfred Hospital, wrote:
The patient was next and last seen on the 18th May 2012. It was noted that the MRI scan had demonstrated a cause for her chronic left buttock pain. It showed a partial thickness tear of her hamstrings. It was noted that the steroid injection into the ischial tuberosity had abolished her symptoms for several days, and was sufficient to localise where the underlying problem was.
The rheumatologist Dr Julian Aw recommended blood patch injections into the tear. He noted that this procedure was not available at the Alfred Hospital and asked the LMO to arrange a referral to a sports medicine physician who was familiar with these procedures.
Each of these reports (along with other medical material and submissions) was provided to the panel. However, as I have said above, no material was provided to the panel from Dr Cairns.
In the panel’s reasons, the panel state that they reviewed relevant medical imaging including the MRI scan of May 2012. On the panel’s review of the MRI scan, the panel concluded that it “showed abnormal signal in the region of the left hamstring origins, consistent with a soft tissue injury, and abnormal signal in the left gluteus medius tendon, with no tendon tear visualised”. The reference to “soft tissue injury” is no doubt a reference to the tear referred to in the written report of the MRI that was submitted to the panel. I turn now to consider the panel’s reasons in more detail.
The panel’s reasons
The panel’s reasons commenced with a description of the plaintiff’s injuries, including:
·left hip injury;
·tear of the left hamstring tendon attachment at the gluteal tuberosity with signs of tendinopathy of the tendons of the left gluteus minimus and minimi; and
·left hip chronic tendinopathy.
The next 2½ pages of the panel’s reasons contain a relatively detailed history taken by the panel from the plaintiff. This included details of the plaintiff’s past medical history, and details of the circumstances of the alleged injury and its immediate aftermath. The history included the plaintiff’s statement that “she was in constant pain”. The history also included the plaintiff’s description of various investigations and treatment, including that the plaintiff “said that she had been referred to a sports physician who administered a course of three ‘blood patch’ injections into the left hamstring insertion”. In the light of the plaintiff’s affidavit, the reference to the sports physician was no doubt a reference to Dr Cairns.
The history set out by the panel also included the plaintiff’s description of her persisting symptoms and problems as follows:
·left buttock pain which is throbbing and constant and present even at night;
·inability to sit comfortably for more than a brief moment, on the left buttock cheek, due to pain;
·sharp pain which shoots between her legs when she shifts position;
·some difficulty walking as she said that she ‘favours her left side’, but said she is now ‘getting used to it’ and the problem has improved significantly;
·mild low back pain without any pain radiation, numbness or tingling into the lower extremities;
·reduced tolerance for sitting (five to ten minutes, mainly bearing weight of the right buttock cheek).
The [plaintiff] said that her main physical problem is the pain in her left buttock and the upper thigh, not being able to sit or lie comfortably, and not being able to sit for more than ten minutes.
The panel went on to record matters of history taken from the plaintiff concerning medications and treatment. In this part of its reasons, the panel recorded:
She said that she attends a physiotherapist about once weekly and described ultrasonic massage, stretching exercises and electrical stimulation therapy. She also described recent exercises which have improved her gait.
The panel then recorded its conduct of a physical examination, and then its conduct of a mental state examination, performed on the plaintiff. The reasons then record that the panel reviewed relevant medical imaging, including an MRI scan dated 7 May 2012, which the panel said, “showed abnormal signal in the region of the left hamstrings origin, consistent with a soft tissue injury, and abnormal signal in the left gluteus medius tendon, with no tendon tear visualised”.
The panel’s reasons went on:
The Panel considered that no additional medical imaging or further investigations were necessary for the Panel to assess the Claimant’s [plaintiff’s] physical condition and answer the medical question.
The Panel concluded that the Claimant is suffering from the following potentially compensable conditions:
·Non-specific low back pain, without any radiculopathy component
·Left hip dysfunction following a soft tissue injury of the proximal hamstrings
·An anxiety disorder with Panic attacks
The Panel also concluded that the Claimant is not suffering from any intrinsic medical condition of the left hip joint, or clinically verifiable medical condition of the left gluteus medius or minimus tendons.
The Panel considered that the Claimant’s medical conditions have stabilised.
The reasons then described the impairment assessment the panel conducted in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (“the Guides”) as required by s 28LH of the Act. The panel’s reasons, in respect of physical impairment, then provided:
The Panel followed the required procedure for combining of whole person impairments in accordance with the Guides and concluded that the degree of whole person impairment resulting from the physical injury to the Claimant [plaintiff] alleged in the claim is not more than 5% and is permanent.
The Panel noted the impairment evaluation conducted by independent medical examiner Mr M.A. Khan (10 September 2012) in which he similarly evaluated the lumbosacral spine, and assessed gait. The Panel considers that gait assessment is not an appropriate method to evaluate the Claimant’s left hip as there is no intrinsic arthritis of the left hip joint, the Claimant currently has no antalgic limp and there exist more specific methods of evaluation, which according to the Guides, are preferred.
The Panel also considered the submission by Melbourne Injury Lawyers on behalf [of] the Claimant (which is dated 4 December 2012[11]), and considers that its Reasons herein adequately address the issues raised.
[11]The same day on which the plaintiff last saw Dr Cairns (see paragraph 11 of the plaintiff’s affidavit sworn 8 April 2013).
Was there a failure to take into account relevant matters of history?
There is no dispute in this case that a medical panel’s decision can be quashed if, in making its decision, the medical panel ignores a matter it was bound to take into account and that matter materially affects the panel’s decision.[12] In Mikhman v Royal Victorian Aero Club & Ors,[13] Kaye J had to consider a claim by a plaintiff that a medical panel had failed to record (and therefore to take into account) the history given to it by the plaintiff. In discussing this issue, his Honour said:
Obviously, it is relevant, and necessary, for a medical panel to take into account a history related to it by a claimant. Equally, a panel is not entitled to take into account, as part of the “history”, matters which were not related to it by a claimant. However, that does not mean that every fact, stated by a claimant to the panel, and recorded by the panel in its reasons, must be relevant. Nor does it mean that each time a panel, in its reasons, misstates part of the history communicated to it by a claimant, the panel must, thereby, have committed jurisdictional error. In order to constitute relevant error, there must, first, be a material discrepancy between the facts recorded by the panel on the one hand, and the facts stated to the panel by the claimant. Secondly, the particular discrepancy in the facts, so recorded by the panel as the history taken by it from the claimant, must, at the least, have played a role in the decision by the panel of the degree of impairment of the claimant.[14]
[12]See Ripper v Kotzman [2008] VSC 448 [13] (Kyrou J).
[13][2012] VSC 42.
[14]Ibid [48] (citations omitted).
As originally formulated the plaintiff’s argument was that the panel failed to take into account her history that she was going to have surgery in the future – which fact was said to bear upon whether her injury had in fact stabilised at the time she was examined by the panel. However, as the argument progressed, additional bases were put upon which it was said that the plaintiff’s history about future surgery was relevant. First it was said that “the prospect of future surgery for a tear shows that somebody has considered her condition serious enough to warrant surgical intervention”.[15] It was then said that this opinion was a matter the panel was required to deal with. Secondly it was said that surgical intervention might show more about the condition “because MRIs don’t show everything”.[16]
[15]T10.29 – T11.1.
[16]T11.16 – T11.18.
In order to determine whether there was in fact a failure to take into account a relevant matter of history, it is first necessary to pay attention to what it is the plaintiff actually said to the medical panel. At times during argument, counsel for the plaintiff appeared to base his arguments on the proposition that the plaintiff told the medical panel she was going to have surgery to repair the tear.[17] This is not what the plaintiff said to the medical panel.
[17]See for example, T7.21 – T7.22 and T12.8 – T12.9.
As sworn to by the plaintiff, the plaintiff said to the medical panel that Dr Cairns had told her that she needed an operation to repair a tear between her legs; and that Dr Cairns had also given her a letter referring her to two private doctors who she could consult if she had the financial means available to her. The plaintiff does not depose to telling the panel that she was going to have the surgery. One would have expected that if the plaintiff told this to the panel, then she would have deposed to it in her affidavit.[18]
[18]Not infrequently in this Court’s common law jurisdiction, plaintiffs give evidence of being told they need an operation, but then go on to give evidence that for fear of consequences or some other matter, they choose not to follow this advice.
Further, while it might be inferred from paragraph 12 of her affidavit[19] that the plaintiff now intends to have the surgery which she says has been recommended by Dr Cairns, even at the time she swore her affidavit (some 2½ months after her examination by the medical panel), the plaintiff was “waiting for referral to be seen at the Alfred Hospital to discuss surgical repair”. In any event, it is difficult to be critical of a medical panel for not taking into account something that they were not told.
[19]Sworn 8 April 2013.
Further, the plaintiff’s argument appeared to proceed upon an assumption that the posited repair surgery might make the plaintiff’s condition worse and/or her impairment greater than it was when it was assessed by the medical panel. There is an element of counterintuitive reasoning in this argument. Ordinarily, one might think that surgery to repair a tear would be likely to reduce any permanent impairment. Even if such surgery was unsuccessful, it is not easily contemplated that the surgery might increase any permanent impairment. Certainly, there was no medical evidence or argument put by or on behalf of the plaintiff to the medical panel that there was a prospect that future surgery would increase the plaintiff’s impairment.
On the other hand, if the panel thought that future surgery was likely to improve the plaintiff’s impairment, then even if one concluded that, for that reason, the injury had not stabilised, discretionary considerations may tell against the granting of relief quashing the medical panel’s determination. However, the short point in respect of this aspect of the case is that there is no evidence to support an assertion that future surgery might mean that any permanent impairment sustained by the plaintiff, which would otherwise be open to be regarded as stabilised, should now not be open to be so regarded.[20]
[20]See further, page 1 of the Guides where there is a reference to “permanent impairment” being defined in the Guides as “one that has become static or stabilized during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy” (emphasis added).
While the panel did not record the plaintiff’s history of the statements attributed to Dr Cairns, I am not persuaded that the panel failed to take account of the history that Dr Cairns had told her she needed an operation to repair her tear. This was simply something that had been told to the plaintiff by someone from whom no report had been obtained and provided to the panel. A medical panel is not bound to record every hearsay statement that an injured person recounts to it during the course of an examination – particularly when there is no medical evidence of any consequences that might flow from the matters referred to.
The plaintiff contends that the history taken by the medical panel is very detailed. It is said that this detail, coupled with the failure to record the plaintiff’s statement as to Dr Cairns’ opinion, shows that the panel did not take account of Dr Cairns’ opinion as relayed to it by the plaintiff. Again, I am not persuaded this is so. The medical panel’s reasons demonstrate a careful and considered approach to the statutory task conferred upon it.[21] When one looks at all of the material (submissions and evidence) given to the panel, considers the issues and what was in dispute between the parties and looks at the task required of the panel, I do not conclude that the failure to record a hearsay opinion of a medical practitioner from whom no report has been obtained demonstrates that any part of the history given by the plaintiff to the panel was not properly taken into account.
[21]Notwithstanding the errors referred to by the plaintiff in paragraph 9 of her affidavit sworn 8 April 2013.
There is no suggestion that the panel did not consider all of the documents submitted to it.[22] These documents included relevant medical reports, radiology reports and written submissions made by the plaintiff’s solicitors. In addition to taking a detailed history from the plaintiff, the medical panel reviewed for itself the radiology. The medical panel conducted its own physical examination of the plaintiff, before concluding that the plaintiff’s injury had stabilised and she had not satisfied the threshold level. These were matters all well within the province and expertise of the panel. Further, an expression of opinion from another medical practitioner that surgery is necessary (at least in the context of this case) does not have any necessary implication in respect of the issue of stabilisation or level of permanent impairment. To the extent it was submitted on behalf of the plaintiff that the medical panel was, in its reasons, bound to deal with Dr Cairns’ opinion so far as was said to go to the question of seriousness, I reject this submission.
[22]See paragraph 1 of the panel’s reasons and enclosures A and B to the panel’s reasons.
Further, at the time of the service of the certificate of assessment upon the first defendant pursuant to s 28LT, the plaintiff’s case was that her injury had stabilised. The plaintiff’s case never changed at any time before the medical panel gave its determination. In the circumstances, it is not surprising that the medical panel said very little about the issue of stabilisation. There was simply no dispute between the parties and neither the plaintiff nor anyone acting on her behalf advised the medical panel that the plaintiff’s case in this regard had, or might have, altered between September 2012 and January 2013.
Counsel for the plaintiff submitted that the present case was not to be approached on the basis of what a particular party’s case might have been. It was submitted that the statutory task was one which required the medical panel to determine for itself whether an injured person’s injury had stabilised, before making one of the determinations provided for in s 28LZG. In part, that submission may be accepted. Nevertheless, the position of the parties in disputes of the present kind is not irrelevant. In many cases, a medical panel could hardly be criticised for not giving reasons about a determination made by it in respect of a matter which is not (or was not) in dispute between the parties.[23]
[23]See generally, Mitchell v Malios & Ors [2013] VSC 480 [34]-[35].
Having regard to what was in dispute between the parties and the material submitted to the medical panel, and having regard to the medical panel’s own ability to determine for itself the question of whether the plaintiff’s injury had stabilised at any and what level, I do not conclude that in failing to refer to the plaintiff’s account of the opinion of Dr Cairns, the medical panel failed to have regard to a relevant matter. Further, to the extent that it was submitted that Dr Cairns’ opinion might show a different view of the seriousness of the plaintiff’s condition, I am not prepared to conclude that any failure by the medical panel to take that matter into consideration was material to the panel’s determination having regard to the medical evidence actually submitted and the panel’s ability to conduct its own assessment of the seriousness of the plaintiff’s condition (and in respect of which adequate reasons were given by the panel).
Additionally, the fact that further surgery might show in greater detail the extent of the plaintiff’s condition could not have been a proper basis for the panel failing to perform its statutory task. There is always the possibility that a further investigation or procedure might disclose with greater clarity a particular medical condition. However, that does not relieve a medical panel of the task of determining whether or not an injury is stabilised in an appropriate case, and then whether or not the injury satisfies the threshold level.
Did the panel make an impairment assessment when the plaintiff’s injury had not stabilised?
In essence, the plaintiff contends that it was not open to the medical panel to conclude that her injury had stabilised. I reject this submission. The commencement of the medical panel review process by the plaintiff presupposes that her injury had stabilised.[24] Indeed, that was the effect of the plaintiff’s evidence and the submissions made on her behalf by her solicitors to the medical panel.
[24]See ss 28LN and 28LT of the Act.
Merely because surgery was said to be needed to repair the tear which had already been diagnosed does not mean that the plaintiff’s injury was no longer open to be regarded as one that had stabilised. Again, it is to be remembered that the plaintiff’s evidence is that she told the panel that the sports physician, Dr Cairns, had told her that surgery was necessary to repair the tear – not that surgery was actually going to take place. For these reasons, this ground of the plaintiff’s claim also fails.
Adequacy of reasons
Initially, the plaintiff made complaint about the panel’s failure to deal with her history concerning recommended surgery in its reasons. However, at trial, the plaintiff did not pursue this aspect of her claim having regard to the Court of Appeal’s decision in Colquhoun v Capitol Radiology Pty Ltd & Ors.[25] In the circumstances, it is not necessary for me to determine the question of the adequacy of the panel’s reasons. That said, as has frequently been said:
(a)the law is clear that the standard of reasons expected of a statutory decision maker must accord to the purpose for which the reasons are required;[26] and
(b)the content of reasons will depend upon the nature of the question and the particular circumstances of the case.[27]
[25][2013] VSCA 58.
[26]Kocak v Wingfoot Australia Partners Pty Ltd (2012) 295 ALR 730, 742 [47].
[27]Ibid [48].
In the present case, there was no dispute between the parties at any stage that the plaintiff’s injury had not stabilised. In serving a certificate of assessment and particulars required by s 28LT, the plaintiff was asserting that her injury had stabilised. This was never disputed. In the event of any relevant change of position, it would have been open to the plaintiff and/or her solicitors to take a different position, and perhaps put the matter in issue between the parties. However, they chose not to do so. In such circumstances, it is difficult to see how there could be any criticism of the medical panel’s reasons (or lack thereof) on the issue of whether or not the injury had stabilised.
Conclusion
The plaintiff’s proceeding will be dismissed.
0
3
0